[Federal Register Volume 86, Number 176 (Wednesday, September 15, 2021)]
[Rules and Regulations]
[Pages 51271-51272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19885]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

[Docket No. USPC-2021-04]
RIN 1104-AA09


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: Interim rule with request for comments.

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SUMMARY: The United States Parole Commission is revising its 
regulations to permit findings by a Residential Reentry Center's 
Disciplinary Committee to be used as conclusive evidence of prisoner 
misconduct while in a Residential Reentry Center.

DATES: This regulation is effective September 15, 2021. Comments due on 
or before November 15, 2021.

ADDRESSES: Submit your comments, identified by docket identification 
number USPC-2021-04 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Mail: Office of the General Counsel, U.S. Parole Commission, 
attention: USPC Rules Group, 90 K Street NE, Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: Helen H. Krapels, General Counsel, 
U.S. Parole Commission, 90 K Street NE, Third Floor, Washington, DC 
20530, telephone (202) 346-7030. Questions about this publication are 
welcome, but inquiries concerning individual cases cannot be answered 
over the telephone.

SUPPLEMENTARY INFORMATION: After the U.S. Parole Commission has granted 
a prisoner a parole effective date, but before the prisoner signed the 
parole certificate, if the prisoner violates the rules of the 
institution, the Parole Commission may reopen the case and schedule a 
rescission hearing. 28 CFR 2.34(a). At that hearing, the Parole 
Commission may consider the report of the Bureau of Prisons (``BOP'') 
Disciplinary Hearing Officer (``DHO'') following a disciplinary 
hearing, that a prisoner has violated disciplinary rules as 
``conclusive evidence of institutional misconduct,'' and does not need 
to conduct a full hearing to consider witnesses and evidence. 28 CFR 
2.34(c). The disciplinary hearing conducted by the DHO complies with 
the procedural due process requirements established by the Supreme 
Court in Wolff v. McDonnell, i.e., the prisoner has notice of the 
alleged violations at least 24 hours in advance of hearing, a statement 
of factfinding, the right to call witnesses and present documentary 
evidence. Thus, the Parole Commission may rely on the findings and 
conclusions of the DHO to take action in response to the information.
    For prisoners who are housed at a Residential Reentry Center 
(``RRC'') prior to their release and violate the rules, the in-person 
disciplinary hearing is conducted before the RRC's Center Disciplinary 
Committee (``CDC''). Under the BOP's Program Statement 7300.09, the CDC 
then refers its findings to the DHO for review, final action, and 
sanctions. Every court which has examined the procedures established by 
Program Statement 7300.09 has held that hearing procedures used by the 
CDC satisfy the procedural due process requirements established by the 
Supreme Court in Wolff v. McDonnell.
    Thus far, the Parole Commission has not taken the step to amend its

[[Page 51272]]

regulation to include findings of the CDC after a hearing as conclusive 
evidence that the prisoner violated the rules of the institution. With 
more and more prisoners being placed in RRC's before their parole 
dates, it is critical that the Commission be able to rely on the CDC's 
findings to promote the smooth transition to the community or to pull 
back an inmate who has demonstrated that he or she is not ready to be 
released to the community without requiring a second hearing by the DHO 
or a fully contested disciplinary hearing conducted by the U.S. Parole 
Commission.
    The Parole Commission is promulgating this rule as an interim rule 
and is providing a 60-day period for public comment. The amended rule 
will take effect upon publication in the Federal Register.

Executive Orders 12866 and 13563

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulation Planning and Review,'' section 
1(b), Principles of Regulation, and in accordance with Executive Order 
13565, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation. The Commission has determined that 
this rule is not a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), Regulatory Planning and Review, and 
accordingly this rule has not been reviewed by the Office of Management 
and Budget.

Executive Order 13132

    This rule 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, this rule does not 
have sufficient federalism implications requiring a Federalism 
Assessment.

Regulatory Flexibility Act

    This rule 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).

Unfunded Mandates Reform Act of 1995

    This rule will not cause State, local, or tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
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)

    This rule is not a ``major rule'' 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). This rule 
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, this is a rule of agency practice or 
procedure that does not substantially affect the rights or obligations 
of non-agency parties, and does 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 Interim Rule

    Accordingly, the U.S. Parole Commission amends 28 CFR part 2 as 
follows:

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. Amend Sec.  2.34 by revising paragraphs (a) and (c) to read as 
follows:


Sec.  2.34   Rescission of parole.

    (a) When an effective date of parole has been set by the 
Commission, release on that date is conditioned upon continued 
satisfactory conduct by the prisoner. If a prisoner granted such a date 
has been found in violation of institution rules by a Discipline 
Hearing Officer, or the Center Disciplinary Committee, or is alleged to 
have committed a new criminal act at any time prior to the delivery of 
the certificate of parole, the Commissioner shall be advised promptly 
of such information. The prisoner shall not be released until the 
institution has been notified that no change has been made in the 
Commission's order to parole. Following receipt of such information, 
the Commissioner may reopen the case and retard the parole date for up 
to 90 days without a hearing, or schedule a rescission hearing under 
this section on the next available docket at the institution or on the 
first docket following return to a federal institution from a community 
corrections center or a state or local halfway house.
* * * * *
    (c) A hearing before a Discipline Hearing Officer, or the Center 
Disciplinary Committee, resulting in a finding that the prisoner has 
committed a violation of disciplinary rules may be relied upon by the 
Commission as conclusive evidence of institutional misconduct. However, 
the prisoner will be afforded an opportunity to explain any mitigating 
circumstances, and to present documentary evidence in mitigation of the 
misconduct at the rescission hearing.
* * * * *

Patricia K. Cushwa,
Chairman (Acting), U.S. Parole Commission.
[FR Doc. 2021-19885 Filed 9-14-21; 8:45 am]
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