[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81457-81459]
From the Federal Register Online via the Government Publishing 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.
* * * * *
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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