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###### Department of Justice

###### Parole Commission

          - 28 CFR Part 2

# AGENCY:

United States Parole Commission, Justice.

# ACTION:

Proposed rule.

# SUMMARY:

The U.S. Parole Commission proposes to amend a rule that implements its authority under the District of Columbia Youth Rehabilitation Act to set aside a conviction for a youth offender. The proposed rule specifies the Commission's authority to set aside a youth offender's misdemeanor conviction and describes the information the Commission examines in making such a determination, given that the misdemeanant only served a jail term for the offense without subsequent community supervision on parole or supervised release. In addition, the rule clarifies the Commission's policy for issuing a set-aside certificate for a youth offender who was formerly on supervised release and who was not reviewed for the set-aside certificate before the offender's sentence expired. The proposed rule adopts the Commission's established criteria for conducting set-aside reviews when a youth offender's parole term ends before such a review has been held.

# DATES:

Comments must be received by June 30, 2010.

# ADDRESSES:

Submit your comments, identified by docket identification number USPC-2010-02 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, 5550                               ( print page 28222)                            Friendship Blvd., Chevy Chase, Maryland 20815.                    

                        3.                         *Fax:*                         (301) 492-5563.                    

# 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.

# SUPPLEMENTARY INFORMATION:

The District of Columbia Youth Rehabilitation Act authorizes the Parole Commission to set aside a conviction for a deserving youth offender who has been committed under the Act. DC Code 24-906. The sentencing judge exercises similar authority for a youth offender if the judge sentenced the offender to probation. DC Code 24-906(e). Normally, the Commission reviews a youth offender's case for issuance of a set-aside certificate after the offender has served a period of community supervision on parole or supervised release following discharge from the commitment portion of the sentence. DC Code 24-906(a), (c), and (d) require the issuance of a set-aside certificate if the Commission terminates parole supervision or supervised release before the expiration of the committed youth offender's sentence. Under 24-906(b), the Commission also has the authority to exercise its discretion to set aside a committed youth offender's conviction if the youth offender's sentence expires before the unconditional discharge of the offender. This situation will normally arise when: (1) A youth offender's jail term for a misdemeanor conviction expires and the offender is discharged from the custody of the DC Department of Corrections without further supervision in the community; or (2) a youth offender is unconditionally discharged from parole supervision or supervised release and the Commission somehow did not review the case for early termination from supervision.

                    The Commission's rules presently do not address the agency's authority to grant a set-aside certificate to a youth offender who was sentenced only to a jail term for a misdemeanor offense, or a youth offender formerly on supervised release who was not reviewed for early termination from supervision before the supervised release term expired.                     *See*28 CFR 2.106 and 2.208. The Commission has been carrying out its statutory authority to consider these offenders for set-aside certificates even in the absence of a regulation on this function. Given the gap in its rules on issuing set-aside certificates for youth misdemeanants who have not been on parole or supervised release, the Commission is proposing a revision of paragraph (a) in 28 CFR 2.208 to include a brief statement of the Commission's authority to issue a set-aside certificate after the youth offender's sentence expires and the information the Commission would consider in granting or denying the set-aside certificate. For former supervised releasees, the new rule proposes a cross-reference to § 2.106(f)(3), which describes the Commission's criteria for issuing a set-aside certificate                     *nunc pro tunc*                     for a youth offender who was on parole supervision and who was not reviewed for early termination from supervision (and the possible issuance of the set-aside certificate) before the expiration of the sentence.                

## Executive Order 12866

The U.S. Parole Commission has determined that this proposed rule does not constitute a significant rule within the meaning of Executive Order 12866.

## Executive Order 13132

This regulation 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

The proposed 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

The 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 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)

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). The 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 Proposed Rule

Accordingly, the U.S. Parole Commission is proposing 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 § 2.208(a)(2) to read as follows:

§ 2.208 

(a) * * *

                            (2) Upon terminating supervision of a committed youth offender before the sentence expires, the Commission shall set aside the offender's conviction and issue a certificate setting aside the conviction instead of a certificate of discharge. The Commission may issue a set-aside certificate                             *nunc pro tunc*                             for a youth offender previously under supervised release on the sentence and who was not considered for early termination from supervision, using the criteria stated at § 2.106(f)(3). If the youth offender was sentenced only to a term of incarceration without any supervision to follow release, the Commission may issue a set-aside certificate after the expiration of the sentence. In such cases, the Commission shall determine whether to grant the set-aside certificate after considering factors such as the offender's crime, criminal history, social and employment history, record of institutional conduct, efforts at rehabilitation, and any other relevant and available information.                        

* * * * *

Dated: May 11, 2010.

Isaac Fulwood,

Chairman, U.S. Parole Commission.

[FR Doc. 2010-12023 Filed 5-19-10; 8:45 am]

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