34688 Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Rules and Regulations 

DEPARTMENT OF JUSTICE 

Parole Commission 

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, Department of Justice. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Parole Commission is 

implementing, as an interim rule, an 

administrative remedy for those paroleeligible District of Columbia prisoners 

who contend that the Commission’s use 

of the parole guidelines at 28 CFR 

2.80(b) through (m) have significantly 

increased the risk of their punishment 

in violation of the Ex Post Facto Clause 

of the Constitution. Under the remedial 

plan, the Commission will schedule 

new parole hearings for those prisoners 

who meet the plan’s eligibility criteria, 

unless the Commission grants the 

applicant a parole effective date after a 

pre-hearing assessment on the record. In 

conducting the new consideration, the 

Commission will apply the parole 

guidelines of the former District of 

Columbia Board of Parole that were 

promulgated in March 1985 and 

published in May 1987. The 

Commission is amending § 2.80 by 

replacing paragraph (o), which describes 

a procedure no longer employed by the 

Commission, with the remedial plan. 

DATES: Effective date is August 17, 2009. 

Comments must be received by 

September 15, 2009. 

ADDRESSES: Submit your comments, 

identified by docket identification 

number USPC–2009–02 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 

Friendship Blvd., Chevy Chase, 

Maryland 20815. 

3. Fax: 301–492–5563. 

FOR FURTHER INFORMATION CONTACT: 

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: 

Public Participation and Request for 

Comments 

We encourage you to submit 

comments on the interim rule through 

one of the methods described above. If 

you choose to use the rulemaking portal 

on the Internet, your comments will be 

posted without change to http:// 

www.regulations.gov and will include 

any personal information you included 

in your correspondence. Your 

comments are most helpful when you 

provide us with the reasons behind the 

opinions or conclusions you express in 

your correspondence. 

Background 

The U.S. Parole Commission is 

responsible for making parole release 

decisions for District of Columbia felony 

offenders who are eligible for parole. DC 

Code 24–131(a). The Commission took 

over this responsibility on August 5, 

1998 as a result of the National Capital 

Revitalization and Self-Government 

Improvement Act of 1997 (Pub. L. 105– 

33). The Commission immediately 

promulgated regulations to implement 

its new duties, including paroling 

policy guidelines at 28 CFR 2.80. 63 FR 

39172–39183 (July 21, 1998). In 

promulgating the decisionmaking 

guidelines, the Commission used the 

basic approach and format of the 1987 

guidelines of the District of Columbia 

Board of Parole, but made modifications 

to the Board’s guidelines in an effort to 

incorporate factors that led to 

departures from the guidelines. 63 FR 

39172–39174. In 2000, the Commission 

modified the guidelines for DC 

prisoners, creating suggested ranges of 

months to be served based on the preand post-incarceration factors evaluated 

under the guidelines, which in turn 

allowed the Commission to extend 

presumptive parole dates to prisoners 

up to three years from the hearing date. 

65 FR 45885–45903. Also in 2000, the 

U.S. Supreme Court decided the case of 

Garner v. Jones, 529 U.S. 244 (2000), 

indicating that parole rules that allow 

for the use of discretionary judgment 

may come within the proscription of the 

Ex Post Facto Clause of the Constitution. 

For over twenty years, federal appellate 

courts had rejected claims that the 

Commission’s use of discretionary 

guidelines for parole release decisions 

violated the constitutional ban against 

ex post facto laws. As a result of the 

Supreme Court’s decision in Garner, the 

U.S. Court of Appeals for the District of 

Columbia Circuit held that parole 

release guidelines may constitute laws 

that are covered by the Ex Post Facto 

Clause. Fletcher v. District of Columbia, 

391 F.3d 250 (DC Cir. 2004) (Fletcher II). 

Following upon the Fletcher II decision 

and the decision in Fletcher v. Reilly, 

433 F.3d 867 (DC Cir. 2006) (Fletcher 

III), the U.S. District Court for the 

District of Columbia (Huvelle, District 

Judge) held that the Parole 

Commission’s application of its 2000 

paroling guidelines for several DC Code 

prisoners violated the Ex Post Facto 

Clause. Sellmon v. Reilly, 551 

F.Supp.2d 66 (D.D.C. 2008). Several 

other prisoner-plaintiffs were denied 

relief by the district court. The court 

ordered that the Commission conduct 

new parole hearings for the successful 

plaintiffs, using the 1987 Board of 

Parole guidelines, instead of the 

Commission’s parole guidelines at 28 

CFR 2.80(b) through (m). The Sellmon 

decision affects only the plaintiffs in 

that case. But other complaints brought 

in the District of Columbia would now 

likely result in a similar outcome, at a 

significant cost to the Commission. 

Therefore, the Commission is 

establishing an administrative remedy 

to avoid further ex post facto challenges 

to its parole determinations for DC 

prisoners. 

Discussion of the Interim Rule and 

Implementation 

As the Sellmon decision showed, not 

every DC prisoner must be reconsidered 

under the 1987 guidelines to avoid ex 

post facto problems. The Ex Post Facto 

Clause only requires that an offender be 

punished according to the law in effect 

at the time of his offense. If the prisoner 

committed his crime before the effective 

date of the 1987 guidelines (March 4, 

1985), then the Commission is not 

required to apply those guidelines to his 

case. Similarly, the Commission is not 

required to apply the 1987 guidelines to 

a DC prisoner who committed his crime 

after August 4, 1998 (the last date the 

former Board exercised its parole release 

authority). Therefore, the Commission is 

adopting the following criteria for 

eligibility under the remedial plan: (1) 

The prisoner committed the crime after 

March 3, 1985 and before August 5, 

1998; (2) the prisoner received his 

initial hearing after August 4, 1998 and 

therefore has not been considered for 

parole under the 1987 Board guidelines; 

(3) the prisoner is not incarcerated on a 

parole revocation; and (4) the prisoner 

does not have a parole effective date or 

a presumptive parole date before 

January 1, 2010. The Commission will 

ask the institutions to provide notice of 

the remedial plan to eligible prisoners. 

After the interim rule becomes effective, 

cases will be added to hearing dockets 

as the Commission’s workload permits 

until the remedial proceedings are 

completed. 


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Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Rules and Regulations 34689 

At the hearing under the remedial 

plan the hearing examiner will evaluate 

the prisoner for parole using the Board’s 

1987 guidelines. The Commission has 

employed these guidelines for some DC 

prisoners since 1992, and continues to 

use the 1987 guidelines for a DC 

prisoner who had his initial hearing 

before August 5, 1998. 28 CFR 

2.80(a)(4). The ‘‘1987 guidelines’’ 

include the salient factor score, the 

calculation of points for pre- and postincarceration factors, the point 

assignment grid, the decisions indicated 

by the prisoner’s point score, and the 

reasons for departing from the 

guidelines listed in the decision 

worksheet at Appendix 2–1 of the 

former Board’s rules. Because the 

suggested reasons include the term 

‘‘other,’’ the Commission is not 

restricted to the listed reasons in making 

departures from the guidelines. 

A 1991 policy guideline of the DC 

Board provides definitions of terms 

used in scoring post-incarceration 

factors of the 1987 guidelines (‘‘negative 

institutional behavior’’ and ‘‘sustained 

program or work assignment 

achievement’’), and in giving reasons for 

departing from the outcome indicated 

by the guidelines point score (e.g., 

‘‘unusually extensive or serious prior 

record’’). For prisoners who committed 

their crimes while the policy guideline 

was in effect (from December 16, 1991 

to October 23, 1995), the Commission 

will follow the definitions given in the 

1991 policy guideline for scoring 

negative behavior or sustained 

achievement, and in using the departure 

reasons that have been identified by the 

Board in its rules and the policy 

guideline. But again, the Commission is 

not restricted from relying on ‘‘other’’ 

reasons for departing from the 

guidelines, reasons not listed in the 

rules and the policy statement, with one 

caveat. The Commission will not depart 

from the guidelines for the reason that 

the prisoner has not served a sufficient 

prison term to be ‘‘accountable’’ for his 

crime or because his release would 

depreciate the seriousness of his 

offense. Under the former Board’s policy 

the factor of offense accountability or 

punishment for the crime is satisfied by 

the prisoner’s service of the minimum 

term imposed by the sentencing judge. 

The 1991 policy guideline sets 

standards for guideline departure that 

arguably raise doubts as to whether the 

standards, in some cases, sufficiently 

protect the public safety. For example, 

the Board defined the aggravating factor 

of ‘‘unusually extensive or serious prior 

record’’ as ‘‘at least five (5) felony 

convictions for commission, or 

attempted commission, of * * * [arson, 

assault, murder, kidnapping, etc.].’’ The 

aggravating factor of ‘‘history of 

repetitive sophisticated criminal 

behavior’’ is defined as ‘‘three (3) or 

more convictions, including the current 

conviction, for: a. Serious crimes 

involving premeditation or methodical 

planning; or b. Assaultive or fraudulent 

criminal behavior.’’ These definitions 

would seem to preclude a departure 

from the guidelines for the prisoner who 

has committed murder while on parole 

for murder, or who is in custody for a 

new rape conviction with a prior 

conviction for forcible sodomy or rape. 

These are the types of cases the 

Commission will have to carefully 

consider when deciding whether 

‘‘other’’ reasons exist for a guidelines 

departure. The Board itself appears to 

have recognized the problems created 

by its 1991 policy guideline because it 

wrote a revised statement in 1995 that 

superseded the 1991 policy guideline 

and removed specific standards, such as 

the number of convictions and types of 

crimes, in describing the terms for 

departure. 

The remedial hearing will be 

conducted using the initial hearing 

guidelines of the former DC Board. If the 

hearing examiner does not recommend 

parole, the examiner will recommend a 

rehearing date 12 months from the 

initial hearing date under the former 

Board’s rule on the timing for 

rehearings, unless the examiner finds a 

good reason to depart from the normal 

rehearing schedule. If the examiner’s 

recommended rehearing date has 

already passed, the examiner will then 

apply the 1987 guidelines for rehearing 

decisions and make a recommendation 

on the premise that the case is a 

rehearing case. 

If a prisoner has been granted a 

presumptive parole date under the 

Commission’s guidelines at § 2.80(b)– 

(m), the presumptive date will not be 

rescinded unless the Commission would 

rescind the date for one of the accepted 

bases for such action, i.e., new criminal 

conduct, new institutional misconduct, 

or new adverse information. The interim 

rule also provides that the Commission 

may set a presumptive parole date for a 

prisoner who is considered under the 

remedial plan if the Commission 

determines that the prisoner needs to 

successfully complete a treatment 

program to reduce the risk his release 

would pose to the community, and the 

prisoner’s eligibility for entry into the 

program includes an expected release 

date within a certain number of months 

or years. In these cases, the Commission 

may grant the presumptive parole date 

on the condition that the prisoner 

successfully completes the particular 

treatment program. The Commission 

may rescind the presumptive date if the 

prisoner failed in the program or one of 

the other accepted bases for rescission 

of a presumptive date were present. 

At the quarterly business meeting 

held on May 14, 2009, the Commission 

received written and oral comments 

from interested organizations on a 

proposed remedial plan to use the 1987 

guidelines for some DC prisoners. The 

comments came from representatives of 

the District of Columbia Public Defender 

Service, the Washington Lawyers’ 

Committee on Civil Rights and Urban 

Affairs, the attorney who represented 

the plaintiffs in the Sellmon case, and 

the U.S. Attorney’s Office for the 

District of Columbia. Several 

commenters questioned the plan’s 

eligibility criteria, especially the 

limitation regarding offenders who 

committed their crimes before the 

Board’s guidelines became effective in 

March 1985. In their view, the 

Commission should apply the 1987 

guidelines to those offenders as well as 

offenders who committed their crimes 

when the guidelines were in effect. 

Concerns were also expressed regarding 

the proposal’s allowance that the 

Commission be able to depart from the 

Board’s guidelines for reasons ‘‘other’’ 

than those listed in the Board’s 

regulations and policy guidelines. The 

issues raised by the commenters are 

substantial and worthy of careful 

consideration before the Commission 

adopts a final rule implementing a 

remedial plan. 

The Commission will amend § 2.80 by 

replacing paragraph (o), which describes 

conversion procedures no longer used 

by the Commission, with the interim 

remedial plan. The Commission is 

proceeding expeditiously with an 

interim rule because key personnel who 

are presently available to implement the 

plan will be lost through retirement by 

the end of the calendar year. 

Executive Order 12866 

The U.S. Parole Commission has 

determined that this interim 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. 


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34690 Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Rules and Regulations 

Regulatory Flexibility Act 

The interim 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), and is 

deemed by the Commission to be a rule 

of agency practice that does not 

substantially affect the rights or 

obligations of non-agency parties 

pursuant to Section 804(3)(c) of the 

Congressional Review Act. 

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 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 Interim 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. Amend § 2.80 by revising paragraph 

(o) to read as follows: 

§ 2.80 Guidelines for DC Code Offenders. 

* * * 

(o)(1) A prisoner who is eligible under 

the criteria of paragraph (o)(2) may 

receive a parole determination using the 

1987 guidelines of the former District of 

Columbia Board of Parole (hereinafter 

‘‘the 1987 guidelines’’). 

(2) A prisoner must satisfy the 

following criteria to obtain a 

determination using the 1987 

guidelines: 

(i) The prisoner committed the offense 

of conviction after March 3, 1985 and 

before August 5, 1998; 

(ii) The prisoner is not incarcerated as 

a parole violator; 

(iii) The prisoner received his initial 

hearing after August 4, 1998; and 

(iv) The prisoner does not have a 

parole effective date, or a presumptive 

parole date before January 1, 2010. 

(3) If an eligible prisoner applies for 

a hearing under the 1987 guidelines, a 

hearing examiner shall review the case 

on the record. If the hearing examiner 

recommends that the prisoner receive a 

parole effective date and the 

Commission concurs in the 

recommendation, the case shall not be 

scheduled for a hearing. If the hearing 

examiner does not recommend a parole 

effective date, the examiner shall 

recommend a hearing on an appropriate 

hearing docket. 

(4) At the hearing, the hearing 

examiner shall evaluate the prisoner’s 

case using the 1987 guidelines as if the 

prisoner were receiving an initial 

hearing shortly before the date of parole 

eligibility. If the prisoner has passed the 

rehearing date that the examiner 

determines is appropriate under the 

circumstances presented by the case, the 

examiner shall also evaluate the case 

under the rehearing guidelines. The 

Commission shall also use the former 

Board’s policy guidelines in making its 

determinations under this paragraph, 

according to the policy guideline in 

effect at the time of the prisoner’s 

offense. 

(5) If the Commission denies parole 

after the hearing, and the prisoner 

received a presumptive parole date 

under the parole determination that 

preceded the hearing under this 

paragraph, the prisoner shall not forfeit 

the presumptive parole date unless the 

presumptive date is rescinded for 

institutional misconduct, new criminal 

conduct, or for new adverse 

information. 

(6) Decisions resulting from hearings 

under this paragraph may not be 

appealed to the Commission. 

Dated: July 8, 2009. 

Isaac Fulwood, 

Chairman, United States Parole Commission. 

[FR Doc. E9–16969 Filed 7–16–09; 8:45 am] 

BILLING CODE 4410–31–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 159 

[DOD–2008–OS–0125/RIN 0790–AI38] 

Private Security Contractors (PSCs) 

Operating in Contingency Operations 

AGENCY: Office of the Under Secretary of 

Defense for Acquisition, Technology, 

and Logistics, DoD. 

ACTION: Interim final rule. 

SUMMARY: This part establishes policy, 

assigns responsibilities and provides 

procedures for the regulation of the 

selection, accountability, training, 

equipping, and conduct of personnel 

performing private security functions 

under a covered contract during 

contingency operations. It also assigns 

responsibilities and establishes 

procedures for incident reporting, use of 

and accountability for equipment, rules 

for the use of force, and a process for 

administrative action or the removal, as 

appropriate, of PSCs and PSC personnel. 

For the Department of Defense, this IFR 

supplements DoD Instruction 3020.41, 

‘‘Contractor Personnel Authorized to 

Accompany the U.S. Armed Forces,’’ 

which provides guidance for all DoD 

contractors operating in contingency 

operations. 

This part is of critical importance. It 

is being published as an Interim Final 

Rule because there is insufficient policy 

and guidance regulating the actions of 

DoD and other governmental PSCs and 

their movements in the operational area. 

It will procedurally close existing gaps 

in the oversight of Private Security 

Contractors (PSCs), ensure compliance 

with laws and regulations pertaining to 

Inherently Governmental functions, and 

ensure proper performance by armed 

contractors. The expansion of troops in 

Afghanistan will result in a 

corresponding increase in the number of 

PSCs performing in that Area of 

Operations. This part is required to 

ensure implementation of necessary 

guidance for all U.S.G. PSCs across the 

CENTCOM area of responsibility. 

Further, the publication of this IFR is 

required to meet the mandate of Section 

862 of the 2008 National Defense 

Authorization Act. The Congress has 

expressed continuing concern that 


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