Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81457 

are age 55 or over is expressed under the 

terms of the plan as a life annuity 

payable at normal retirement age (or 

current age, if later) as described in 

paragraph (b)(1)(i)(A) of this section and 

the plan provides that the accumulated 

benefit of participants who are younger 

than age 55 is expressed as the current 

balance of a hypothetical account as 

described in paragraph (b)(1)(i)(B) of 

this section, then the safe harbor 

described in section 411(b)(5)(A) and 

paragraph (b)(1)(i) of this section does 

not apply to individuals who are or 

could be participants who are age 55 or 

over. 

(iv) * * * 

Example 4. * * * 

(iii) * * * If, instead of the facts in 

paragraph (i) of this Example 4, the plan had 

been amended to provide only participants 

who have not yet attained age 55 by January 

1, 2012, with a benefit that is the greater of 

the benefit under the average annual 

compensation formula and a benefit that is 

based on the balance of a hypothetical 

account, then the safe harbor would not be 

satisfied with respect to individuals who 

have attained age 55 by January 1, 2012. 

* * * 

* * * * * 

(c) * * * 

(5) * * * 

Example 2. * * * 

(iv) * * * The plan provides that, as of a 

participant’s annuity starting date, the plan 

will determine whether the benefit 

attributable to the opening hypothetical 

account balance payable in the particular 

optional form of benefit selected is equal to 

or greater than the benefit accrued under the 

plan through the date of conversion and 

payable in the same generalized optional 

form of benefit with the same annuity 

starting date. * * * 

Example 3. * * * (i) * * * Under the 

terms of Plan E, the benefit attributable to A’s 

opening hypothetical account balance is 

increased so that A’s straight life annuity 

commencing on January 1, 2015, is $1,000 

per month. * * * 

* * * * * 

(d) * * * 

(1) * * * 

(iii) Market rate of return for single 

rates. Except as otherwise provided in 

this paragraph (d)(1), an interest 

crediting rate is not in excess of a 

market rate of return only if the plan 

terms provide that the interest credit for 

each plan year is determined using one 

of the following specified interest 

crediting rates: 

* * * * * 

(f) * * * 

(2) * * * 

(iii) * * * For the periods after the 

statutory effective date set forth in 

paragraph (f)(1) of this section and 

before the regulatory effective date set 

forth in paragraph (f)(2)(i) of this 

section, the safe harbor and other relief 

of section 411(b)(5) apply and the 

market rate of return and other 

requirements of section 411(b)(5) must 

be satisfied. * * * 

Guy R. Traynor 

Acting Chief, Publications and Regulations 

Branch, Legal Processing Division, Associate 

Chief Counsel, Procedure and 

Administration. 

[FR Doc. 2010–32539 Filed 12–27–10; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9508] 

RIN 1545–BJ85 

Source of Income From Qualified Fails 

Charges; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correcting amendment. 

SUMMARY: This document contains a 

correction to temporary regulations (TD 

9508) thatwere published in the Federal 

Register on Wednesday, December 8, 

2010 (75 FR 76262)providing guidance 

about the treatment of fails charges for 

purposes of sections 871 and 881, which 

generally require gross-basis taxation of 

foreign persons not otherwise subject to 

U.S. net-basis taxation and the 

withholding of such tax under sections 

1441 and 1442. 

DATES: This correction is effective on 

December 28, 2010, and is applicable 

beginning December 8, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Sheila Ramaswamy or Anthony J. Marra 

at (202) 622–3870 (not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: 

Background 

The temporary regulations (TD 9508) 

that are the subject of this document are 

under section 863 of the Internal 

Revenue Code. 

Need for Correction 

As published, the temporary 

regulations (TD 9508) contain an error 

that may prove to be misleading and is 

in need of clarification. 

List of Subject in 26 CFR Part 1 

Income taxes, Reporting and 

recordkeeping requirements. 

Correction of Publication 

■ Accordingly, 26 CFR part 1 is 

corrected by making the following 

correcting amendment: 

PART 1—INCOME TAXES 

■ Paragraph 1. The authority citation 

for part 1 continues to read in part as 

follows: 

Authority: 26 U.S.C. 7805 * * * 

■ Par. 2. Section 1.863–10T is amended 

by revising the paragraph (f) to read as 

follows: 

§ 1.863–10T Source of income from a 

qualified fails charge (temporary). 

* * * * * 

(f) Expiration date. This section 

expires on December 6, 2013. 

Guy R. Traynor, 

Acting Chief, Publications and Regulations 

Branch, Legal Processing Division, Associate 

Chief Counsel, Procedure and 

Administration. 

[FR Doc. 2010–32536 Filed 12–27–10; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

[Docket No. USPC–2010–04] 

28 CFR Part 2 

Paroling, Recommitting, and 

Supervising Federal Prisoners: 

Prisoners Serving Sentences Under 

the United States and District of 

Columbia Codes 

AGENCY: United States Parole 

Commission, Justice. 

ACTION: Final rules. 

SUMMARY: The U.S. Parole Commission 

is revising its rule on original 

jurisdiction cases. The revision adds as 

a criterion for original jurisdiction 

designation a case in which the offender 

caused the death of a law enforcement 

officer while the officer was performing 

his duty. In the rule on the quorum of 

Commissioners needed for agency 

action, the Commission is adding 

provisions that describe the 

consequence of a vote in which the 

Commission members are equally 

divided in their decisions. 

DATES: Effective date: January 31, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Rockne Chickinell, Office of General 

Counsel, U. S. Parole Commission, 5550 

Friendship Blvd., Chevy Chase, 

Maryland 20815, telephone (301) 492– 

5959. Questions about this publication 

are welcome, but inquiries concerning 

individual cases cannot be answered 

over the telephone. 


srobinson on DSKHWCL6B1PROD with RULES
81458 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

SUPPLEMENTARY INFORMATION: In 1974, 

the predecessor to the United States 

Parole Commission, the United States 

Board of Parole, began using an ‘‘original 

jurisdiction’’ voting procedure. 28 CFR 

2.17 (1974). A regional director—a 

Parole Board member sitting in one of 

the five regional offices of the former 

Board—could designate the case for the 

‘‘original jurisdiction of the regional 

directors,’’ and the decision to grant or 

deny parole would then be made on the 

majority vote of the five regional 

directors at a quarterly meeting of these 

directors. The criteria for designation 

were: (1) National security offense; (2) 

organized crime offender; (3) national or 

unusual interest in the prisoner; and (4) 

long-term sentence. The prisoner could 

appeal a parole denial to the three 

national Board members in Washington, 

DC and some appeals were scheduled 

for resolution by the entire eightmember Board of Parole at a quarterly 

business meeting. 28 CFR 2.27 (1974). 

In explaining a 1975 amendment to 

§ 2.17, the Board of Parole noted that the 

increased voting requirement in original 

jurisdiction cases was ‘‘designed to 

protect the public’s confidence in the 

integrity of Parole Board decisions by 

providing a broadly based consensus of 

Board Members in cases where there is 

more likely to be public interest in the 

grant or denial of parole.’’ 40 FR 5357 

(Feb. 5, 1975). That same year the Board 

eliminated the requirement that all five 

regional directors vote on original 

jurisdiction cases, and instead provided 

that the decision could be made on the 

votes of a regional director and the 

national directors in Washington, DC. 

Appeals would be decided at the 

Board’s quarterly business meetings. In 

1976, Congress enacted the Parole 

Commission Reorganization Act (Pub. L. 

94–233) and confirmed many of the 

changes made by the Board of Parole on 

the regionalization of parole functions 

and the use of paroling policy 

guidelines. In the conference report 

regarding the legislation, the conferees 

from the House and Senate stated that 

the new statute was flexible enough to 

allow the Parole Commission to 

continue to reserve special categories of 

cases for initial consideration by the full 

Commission, but that they expected that 

such consideration ‘‘should occur only 

in cases involving special 

circumstances.’’ House Conference 

Report No. 94–838 at 22. 

The original jurisdiction regulation 

has remained essentially the same since 

1976. The voting quorum requirement 

and nature of the second review has 

changed given the fluctuating 

membership of the Commission. The 

initial decision is now made by the 

majority vote of those Commissioners 

holding office, and the second review is 

no longer denominated an ‘‘appeal,’’ but 

a reconsideration by the entire 

membership. The designation of a case 

for the original jurisdiction of the 

Commission only affects the number of 

Commissioners voting on a case 

disposition and does not change the 

substantive criteria in making the 

determination. 

In recent years the Commission has 

conducted parole determination 

proceedings for some prisoners whose 

offense behavior caused the death of a 

law enforcement officer during the 

officer’s performance of his duties, 

whether an agent with the Federal 

Bureau of Investigation, a ranger with 

the U.S. Park Service, or a local police 

officer. These proceedings, and the 

possibility of the prisoner’s discharge 

from custody on parole, understandably 

cause heightened interest in the 

Commission’s decision-making process 

from the victim’s family, other persons 

and organizations, and various media 

representatives. While the 

Commission’s present criteria for 

original jurisdiction designations almost 

always result in the use of the voting 

procedure for prisoners who have 

caused the death of law enforcement 

personnel, the Commission believes that 

an additional criterion specifying the 

use of the original jurisdiction 

procedure for these cases is appropriate. 

The addition of this criterion expresses 

the Commission’s resolve that the 

general public, and those persons 

charged with enforcing federal, state 

and local laws, have confidence in 

parole decisions for offenders whose 

grievous crimes against law enforcement 

personnel have caused an unusual 

interest in the outcome of the parole 

consideration. In revising § 2.17, the 

Commission has also edited paragraph 

(a) to make it more readable. 

The Commission is also revising its 

regulation at 28 CFR 2.63 that describes 

the quorum requirement of the 

Commission. The revision specifies the 

decision that results from an evenlysplit vote of the Commission’s members 

on the disposition of a matter before the 

entire membership of the Commission. 

The Commission presently has four 

voting members holding office so the 

prospect of such a vote is more likely 

than when the Commission has an odd 

number of members. The revised rule 

implements the common law and 

parliamentary law principle that a 

proposed action that is the subject of a 

tie vote fails of adoption. E.g., 59 AmJur 

2d, Parliamentary Law § 17 (2010). The 

Commission already incorporates this 

principle in its rule at 28 CFR 2.27(a) on 

the disposition of petitions for 

reconsideration in original jurisdiction 

cases. When a majority vote of the 

Commission’s membership cannot be 

reached in a case disposition, the 

revised rule states that if the 

Commission made an earlier decision 

for the offender, for example ‘‘continue 

to a presumptive parole after service of 

240 months,’’ then the previous decision 

remains unchanged. If the Commission 

has not previously made a decision on 

the case matter under review, then the 

tie vote results in a return to the 

offender’s status quo ante, which may 

be a prisoner’s continuance in custody 

until the next parole release hearing, or 

a parolee’s return to parole supervision 

after release from the custody of a 

violator warrant. The one significant 

exception to this general rule occurs in 

the case of a prisoner under 

consideration for mandatory parole 

pursuant to 18 U.S.C. 4206(d). This 

statute requires the prisoner’s release on 

parole unless the Commission makes a 

finding on one of the disqualifying 

criteria listed in the statute. If, after a 

hearing in a mandatory parole 

consideration there is a tie vote by the 

Commissioners, the result would be a 

parole release. The amended rule also 

explicitly authorizes a re-vote by the 

Commissioners to resolve an impasse. 

The Commission is promulgating 

these rules as final rules without the 

opportunity for public comment 

because the rules are procedural rules 

that do not affect the substantive criteria 

for making case dispositions. 

Implementation 

The regulations set forth below will 

be made effective on January 31, 2011. 

Executive Order 12866 

The U. S. Parole Commission has 

determined that these final rules do not 

constitute significant rules within the 

meaning of Executive Order 12866. 

Executive Order 13132 

These regulations will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Under Executive 

Order 13132, these rules do not have 

sufficient federalism implications 

requiring a Federalism Assessment. 

Regulatory Flexibility Act 

The final rules will not have a 

significant economic impact upon a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 605(b). 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81459 

Unfunded Mandates Reform Act of 

1995 

The rules will not cause State, local, 

or tribal governments, or the private 

sector, to spend $100,000,000 or more in 

any one year, and it will not 

significantly or uniquely affect small 

governments. No action under the 

Unfunded Mandates Reform Act of 1995 

is necessary. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (Subtitle E— 

Congressional Review Act) 

These rules are not ‘‘major rules’’ as 

defined by Section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 Subtitle E— 

Congressional Review Act), now 

codified at 5 U.S.C. 804(2). The rules 

will not result in an annual effect on the 

economy of $100,000,000 or more; a 

major increase in costs or prices; or 

significant adverse effects on the ability 

of United States-based companies to 

compete with foreign-based companies. 

Moreover, these are rules of agency 

practice or procedure that do not 

substantially affect the rights or 

obligations of non-agency parties, and 

do not come within the meaning of the 

term ‘‘rule’’ as used in Section 804(3)(C), 

now codified at 5 U.S.C. 804(3)(C). 

Therefore, the reporting requirement of 

5 U.S.C. 801 does not apply. 

List of Subjects in 28 CFR Part 2 

Administrative practice and 

procedure, Prisoners, Probation and 

parole. 

The Final Rule 

■ Accordingly, the U. S. Parole 

Commission is adopting the following 

amendment to 28 CFR part 2. 

PART 2—[AMENDED] 

■ 1. The authority citation for 28 CFR 

part 2 continues to read as follows: 

Authority: 18 U.S.C. 4203(a)(1) and 

4204(a)(6). 

■ 2. Revise § 2.17 (b) to read as follows: 

§ 2.17 Original jurisdiction cases. 

(a) * * * 

(b) A Commissioner may designate a 

case as an original jurisdiction case if 

the case involves an offender: 

(1) Who committed a serious crime 

against the security of the nation; 

(2) Whose offense behavior included 

an unusual degree of sophistication or 

planning or was part of a large scale 

criminal conspiracy or continuing 

criminal enterprise; 

(3) Who received national or unusual 

attention because of the nature of the 

crime, arrest, trial, or prisoner status, or 

because of the community status of the 

offender or a victim of the crime; 

(4) Whose offense behavior caused the 

death of a law enforcement officer while 

the officer was in the line of duty; or 

(5) Who was sentenced to a maximum 

term of at least 45 years or life 

imprisonment. 

* * * * * 

■ 3. Revise § 2.63 by designating the 

existing text as paragraph (a) and adding 

paragraph (b) as follows: 

§ 2.63 Quorum. 

(a) * * * 

(b)(1) In the event of a tie vote of the 

Commission’s membership on a matter, 

the matter that is the subject of the vote 

is not adopted by the Commission. 

(2) If the matter that is the subject of 

the tie vote is the disposition of an 

offender’s case, then the result of the tie 

vote is the offender’s status quo ante, 

i.e., no action is taken that is more 

favorable or more adverse regarding the 

offender. If in an earlier decision the 

Commission has given an offender a 

presumptive release date or a date for a 

15-year reconsideration hearing, then 

the result of the tie vote is no change in 

the presumptive date or the date of the 

15-year reconsideration hearing. If an 

offender is facing possible parole 

rescission or revocation, the result of the 

tie vote is the offender’s retention of the 

parole effective date or the offender’s 

return to supervision. Exception: If there 

is a tie vote in making one of the 

findings required by § 2.53 in a 

mandatory parole determination, the 

result of the tie vote is that the prisoner 

must be granted mandatory parole. 

(3) The Commission may re-vote on a 

case disposition to resolve a tie vote or 

other impasse in satisfying a voting 

requirement of these rules. 

Dated: December 21, 2010. 

Isaac Fulwood, 

Chairman, United States Parole Commission. 

[FR Doc. 2010–32596 Filed 12–27–10; 8:45 am] 

BILLING CODE 4410–31–P 

FEDERAL MINE SAFETY AND HEALTH 

REVIEW COMMISSION 

29 CFR Part 2700 

Simplified Proceedings 

AGENCY: Federal Mine Safety and Health 

Review Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Mine Safety and 

Health Review Commission (the 

‘‘Commission’’) is an independent 

adjudicatory agency that provides 

hearings and appellate review of cases 

arising under the Federal Mine Safety 

and Health Act of 1977, or Mine Act. 

Hearings are held before the 

Commission’s Administrative Law 

Judges, and appellate review is provided 

by a five-member Review Commission 

appointed by the President and 

confirmed by the Senate. The 

Commission is publishing a final rule to 

simplify the procedures for handling 

certain civil penalty proceedings. 

DATES: The final rule takes effect on 

March 1, 2011. The Commission will 

accept written and electronic comments 

received on or before January 12, 2011. 

ADDRESSES: Written comments should 

be mailed to Michael A. McCord, 

General Counsel, Office of the General 

Counsel, Federal Mine Safety and 

Health Review Commission, 601 New 

Jersey Avenue, NW., Suite 9500, 

Washington, DC 20001, or sent via 

facsimile to 202–434–9944. Persons 

mailing written comments shall provide 

an original and three copies of their 

comments. Electronic comments should 

state ‘‘Comments on Simplified 

Proceedings’’ in the subject line and be 

sent to mmccord@fmshrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Michael A. McCord, General Counsel, 

Office of the General Counsel, 601 New 

Jersey Avenue, NW., Suite 9500, 

Washington, DC 20001; telephone 202– 

434–9935; fax 202–434–9944. 

SUPPLEMENTARY INFORMATION: 

Background 

On May 20, 2010, the Commission 

published in the Federal Register a rule 

proposing Simplified Proceedings in 

certain civil penalty proceedings. 75 FR 

28223. The Commission explained that 

since 2006, the number of new cases 

filed with the Commission has 

dramatically increased, and that in 

order to deal with that burgeoning 

caseload, the Commission is considering 

methods to simplify and streamline its 

procedures for handling certain civil 

penalty proceedings. 

The Commission invited comments 

on the proposed rule through June 21, 

2010. The Commission received 

comments from: (1) The Law Offices of 

Adele L. Abrams; (2) the United Mine 

Workers of America; (3) the Secretary of 

Labor through the Office of the Solicitor 

(‘‘MSHA’’ or the ‘‘Secretary’’); (4) Public 

Citizen; (5) Industrial Minerals 

Association-North America; (6) Alliance 

Coal, LLC; (7) Chris Barber; (8) Arch 

Coal, Inc.; (9) Jackson Kelly PLLC; and 

(10) Imerys. 

The major differences between the 

simplified procedures set forth in the 

proposed rule and current conventional 


srobinson on DSKHWCL6B1PROD with RULES