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###### Department of Justice

          - [Docket No. USPC-2010-04]
          - 28 CFR Part 2

# 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.

      ( print page 81458)    

# 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 eight-member 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 evenly-split 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).                          ( print page 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 

(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 

(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]

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