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[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81457-81459]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32596]

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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.

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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.

[[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 Sec.  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 Sec.  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 Sec.  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).

[[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

0
Accordingly, the U. S. Parole Commission is adopting the following 
amendment to 28 CFR part 2.

PART 2--[AMENDED]>

0
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).

0
2. Revise Sec.  2.17 (b) to read as follows:

Sec.  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.
* * * * *

0
3. Revise Sec.  2.63 by designating the existing text as paragraph (a) 
and adding paragraph (b) as follows:

Sec.  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 Sec.  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
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