83 FR 58499 - Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes

DEPARTMENT OF JUSTICE
Parole Commission

Federal Register Volume 83, Issue 224 (November 20, 2018)

Page Range		58499-58500
FR Document		2018-25103

The United States Parole Commission is revising its regulations to account for a membership of fewer than three Commissioners.

Federal Register, Volume 83 Issue 224 (Tuesday, November 20, 2018)

[Federal Register Volume 83, Number 224 (Tuesday, November 20, 2018)]
[Rules and Regulations]
[Pages 58499-58500]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-25103]



[[Page 58499]]

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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

[Docket No. USPC-2018-01]


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 rule.

-----------------------------------------------------------------------

SUMMARY: The United States Parole Commission is revising its 
regulations to account for a membership of fewer than three 
Commissioners.

DATES: This regulation is effective November 20, 2018.

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: The Parole Commission is modifying its 
voting procedures to account for commissioner unavailability. The 
recommended modifications retain a second Commissioner review procedure 
in cases where the first Commissioner voting on the case has a 
significant disagreement with the panel recommendation. The Commission 
is making these changes permanent even though its membership may be 
increased in the future.
    With regard to the problem of resolving a tie vote, the rule 
revisions incorporate the principle that the consensus of all agency 
decision-makers in a given case, Commissioners and examiners, is best 
represented by the Commissioner's vote that is in agreement with the 
hearing examiner panel. If no Commissioner vote is in agreement with 
the hearing examiner panel, the vote that is the most favorable to the 
offender will be the Commission's decision.
    The revision of Sec.  2.63 resolves split decisions for the variety 
of decisions found in the Commission's rules, including original 
jurisdiction cases, NAB appeals, and reopenings.
    The revisions at Sec. Sec.  2.68, 2.74, and 2.76, modify the 
present two-vote requirements in Transfer Treaty Determinations, D.C. 
parole decisions, and decisions to reduce the minimum term for D.C. 
Code offenders sentenced to parolable sentences by providing that these 
may be made by one Commissioner, with a second vote required only if 
the first Commissioner disagrees with the panel recommendation. A 
conforming amendment to the rule on miscellaneous provisions at 28 CFR 
2.89 is also made. The Commission is publishing the revisions as final 
rules without seeking public comment because they are procedural in 
nature and do not establish any new substantive criteria for making 
parole or release decisions.

Executive Orders 12866 and 13563

    These regulations have 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 
these rules are not a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), Regulatory Planning and Review, and 
accordingly these rules have not been reviewed by the Office of 
Management and Budget.

Executive Order 13132

    These rules 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

    These 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).

Unfunded Mandates Reform Act of 1995

    These 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 
they 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)

    None of these rules are 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). 
These 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 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 Final Rule

    Accordingly, the U.S. Parole Commission adopts the following 
revisions 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.  2.63 to read as follows:


Sec.  2.63  Quorum and voting requirements.

    (a) A quorum of the Commission consists of the majority of those 
Commissioners holding office at the time an action is under 
consideration. Any action authorized by law may be decided by the 
majority vote of the Commissioners holding office at the time the 
action is taken. Voting requirements in parole decision-making are 
established in other provisions of this part, including paragraphs (b) 
and (c) of this section.
    (b)(1) In the event of a tie vote of the Commission's membership on 
an issue that requires the vote or authorization of the Commission, the 
issue 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 whether to 
reopen or reconsider a previous decision of the Commission, the 
previous decision shall remain in effect. This includes decisions as to 
whether to rescind a parole date, to revoke parole or supervised 
release, or to grant parole after parole has been denied under 18 
U.S.C. 4206(d).
    (3) If the matter that is the subject of a tie vote is whether to 
grant parole at

[[Page 58500]]

any initial hearing, 15-year reconsideration hearing, or D.C. Code 
rehearing, that decision shall be the Commissioner vote that is in 
agreement with the hearing examiner panel. If there is a tie vote and 
no commissioner agrees with the hearing examiner panel, then the 
decision will be the Commissioner's vote most favorable to the 
prisoner.
    (4) If the matter that is the subject of the tie vote is whether to 
grant or deny release at the two-thirds date of the sentence per 18 
U.S.C. 4206(d), or to terminate parole after the parolee has been on 
parole for 5 years per 18 U.S.C. 4211(c) and D.C. Code sec. 24-404(a-
1)(3), the prisoner must be granted release under the statute or parole 
must be terminated respectively.
    (5) If the matter that is the subject of a tie vote is a decision 
under appellate review per Sec.  2.26, if no concurrence is reached, 
the decision under appellate review shall be considered affirmed. This 
rule also applies to decisions under Sec.  2.17 to remove a case from 
the original jurisdiction of the Commission.
    (6) 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.
    (c) If there is only one Commissioner holding office, all 
provisions in these rules requiring concurring votes or resolving split 
decisions are suspended until the membership of the Commission is 
increased, and any action may be taken by one Commissioner.

0
3. Revise Sec.  2.68(i)(1) to read as follows:


Sec.  2.68  Prisoners transferred pursuant to treaty.

* * * * *
    (i) * * *
    (1) The Commission shall render a decision as soon as practicable 
and without unnecessary delay. Upon review of the examiner panel 
recommendation, the Commissioner may make the decision by concurring 
with the panel recommendation. If the Commissioner does not concur, the 
Commissioner shall refer the case to another Commissioner and the 
decision shall be made on the concurring votes of two Commissioners. 
The decision shall set a release date and a period and conditions of 
supervised release. If the Commission determines that the appropriate 
release date under 18 U.S.C. 4106A is the full term date of the foreign 
sentence, the Commission will order the transferee to ``continue to 
expiration.''
* * * * *

0
4. Revise Sec.  2.74(c) to read as follows:


Sec.  2.74   Decision of the Commission.

* * * * *
    (c) All decisions may be made by one Commissioner, except that if 
the Commissioner does not concur with a panel recommendation, the case 
shall be referred to another Commissioner for a vote and the decision 
shall be based on the concurring votes of two Commissioners.

0
5. Revise Sec.  2.76(b) to read as follows:


Sec.  2.76  Reduction in minimum sentence.

* * * * *
    (b) A prisoner's request under this section may be approved on the 
vote of one Commissioner.
* * * * *

0
6. Amend Sec.  2.89 by adding an entry for ``2.63'' in numerical order 
to read as follows:


Sec.  2.89  Miscellaneous provisions.

* * * * *
    2.63 (Quorum)
* * * * *

Patricia K. Cushwa,
Chairman (Acting), U.S. Parole Commission.
[FR Doc. 2018-25103 Filed 11-19-18; 8:45 am]
BILLING CODE 4410-31-P

Federal Register / Vol. 83, No. 224 / Tuesday, November 20, 2018 / Rules and Regulations 58499

DEPARTMENT OF JUSTICE to parolable sentences by providing that Business Regulatory Enforcement
these may be made by one Fairness Act of 1996 Subtitle E—
Parole Commission Commissioner, with a second vote Congressional Review Act, now codified
required only if the first Commissioner at 5 U.S.C. 804(2). These rules will not
28 CFR Part 2 disagrees with the panel result in an annual effect on the
[Docket No. USPC–2018–01] recommendation. A conforming economy of $100,000,000 or more; a
amendment to the rule on major increase in costs or prices; or
Paroling, Recommitting, and miscellaneous provisions at 28 CFR 2.89 significant adverse effects on the ability
Supervising Federal Prisoners: is also made. The Commission is of United States-based companies to
Prisoners Serving Sentences Under publishing the revisions as final rules compete with foreign-based companies.
the United States and District of without seeking public comment Moreover, these are rules of agency
Columbia Codes because they are procedural in nature practice or procedure that do not
and do not establish any new substantially affect the rights or
AGENCY: United States Parole substantive criteria for making parole or obligations of non-agency parties, and
Commission, Justice. release decisions. does not come within the meaning of
ACTION: Final rule. the term ‘‘rule’’ as used in Section
Executive Orders 12866 and 13563
804(3)(C), now codified at 5 U.S.C.
SUMMARY: The United States Parole These regulations have been drafted 804(3)(C). Therefore, the reporting
Commission is revising its regulations to and reviewed in accordance with requirement of 5 U.S.C. 801 does not
account for a membership of fewer than Executive Order 12866, ‘‘Regulation apply.
three Commissioners. Planning and Review,’’ section 1(b),
DATES: This regulation is effective Principles of Regulation, and in List of Subjects in 28 CFR Part 2
November 20, 2018. accordance with Executive Order 13565, Administrative practice and
FOR FURTHER INFORMATION CONTACT: ‘‘Improving Regulation and Regulatory procedure, Prisoners, Probation and
Helen H. Krapels, General Counsel, U.S. Review,’’ section 1(b), General parole.
Parole Commission, 90 K Street NE, Principles of Regulation. The The Final Rule
Third Floor, Washington, DC 20530, Commission has determined that these
rules are not a ‘‘significant regulatory Accordingly, the U.S. Parole
telephone (202) 346–7030. Questions
action’’ under Executive Order 12866, Commission adopts the following
about this publication are welcome, but
section 3(f), Regulatory Planning and revisions to 28 CFR part 2:
inquiries concerning individual cases
cannot be answered over the telephone. Review, and accordingly these rules
PART 2—[AMENDED]
SUPPLEMENTARY INFORMATION: The Parole have not been reviewed by the Office of
Commission is modifying its voting Management and Budget. ■ 1. The authority citation for 28 CFR
procedures to account for commissioner Executive Order 13132 part 2 continues to read as follows:
unavailability. The recommended Authority: 18 U.S.C. 4203(a)(1) and
These rules will not have substantial
modifications retain a second 4204(a)(6).
direct effects on the States, on the
Commissioner review procedure in
relationship between the national ■ 2. Revise § 2.63 to read as follows:
cases where the first Commissioner
government and the States, or on the
voting on the case has a significant § 2.63 Quorum and voting requirements.
distribution of power and
disagreement with the panel (a) A quorum of the Commission
responsibilities among the various
recommendation. The Commission is consists of the majority of those
levels of government. Under Executive
making these changes permanent even Commissioners holding office at the
Order 13132, these rules do not have
though its membership may be time an action is under consideration.
sufficient federalism implications
increased in the future. Any action authorized by law may be
requiring a Federalism Assessment.
With regard to the problem of decided by the majority vote of the
resolving a tie vote, the rule revisions Regulatory Flexibility Act Commissioners holding office at the
incorporate the principle that the These rules will not have a significant time the action is taken. Voting
consensus of all agency decision-makers economic impact upon a substantial requirements in parole decision-making
in a given case, Commissioners and number of small entities within the are established in other provisions of
examiners, is best represented by the meaning of the Regulatory Flexibility this part, including paragraphs (b) and
Commissioner’s vote that is in Act, 5 U.S.C. 605(b). (c) of this section.
agreement with the hearing examiner (b)(1) In the event of a tie vote of the
panel. If no Commissioner vote is in Unfunded Mandates Reform Act of Commission’s membership on an issue
agreement with the hearing examiner 1995 that requires the vote or authorization of
panel, the vote that is the most favorable These rules will not cause State, local, the Commission, the issue that is the
to the offender will be the Commission’s or tribal governments, or the private subject of the vote is not adopted by the
decision. sector, to spend $100,000,000 or more in Commission.
The revision of § 2.63 resolves split any one year, and they will not (2) If the matter that is the subject of
decisions for the variety of decisions significantly or uniquely affect small the tie vote is whether to reopen or
found in the Commission’s rules, governments. No action under the reconsider a previous decision of the
including original jurisdiction cases, Unfunded Mandates Reform Act of 1995 Commission, the previous decision shall
NAB appeals, and reopenings. is necessary. remain in effect. This includes decisions
The revisions at §§ 2.68, 2.74, and as to whether to rescind a parole date,
2.76, modify the present two-vote Small Business Regulatory Enforcement to revoke parole or supervised release,
requirements in Transfer Treaty Fairness Act of 1996 (Subtitle E— or to grant parole after parole has been
Determinations, D.C. parole decisions, Congressional Review Act) denied under 18 U.S.C. 4206(d).
and decisions to reduce the minimum None of these rules are a ‘‘major rule’’ (3) If the matter that is the subject of
term for D.C. Code offenders sentenced as defined by Section 804 of the Small a tie vote is whether to grant parole at

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58500 Federal Register / Vol. 83, No. 224 / Tuesday, November 20, 2018 / Rules and Regulations

any initial hearing, 15-year § 2.74 Decision of the Commission. FOR FURTHER INFORMATION CONTACT:
reconsideration hearing, or D.C. Code * * * * * Helen H. Krapels, General Counsel, U.S.
rehearing, that decision shall be the (c) All decisions may be made by one Parole Commission, 90 K Street NE,
Commissioner vote that is in agreement Commissioner, except that if the Third Floor, Washington, DC 20530,
with the hearing examiner panel. If Commissioner does not concur with a telephone (202) 346–7030. Questions
there is a tie vote and no commissioner panel recommendation, the case shall be about this publication are welcome, but
agrees with the hearing examiner panel, referred to another Commissioner for a inquiries concerning individual cases
then the decision will be the vote and the decision shall be based on cannot be answered over the telephone.
Commissioner’s vote most favorable to the concurring votes of two SUPPLEMENTARY INFORMATION: Since
the prisoner. Commissioners. early 2004, the Parole Commission has
(4) If the matter that is the subject of ■ 5. Revise § 2.76(b) to read as follows: been conducting some parole
the tie vote is whether to grant or deny proceedings by videoconference to
release at the two-thirds date of the § 2.76 Reduction in minimum sentence. reduce travel costs and conserve the
sentence per 18 U.S.C. 4206(d), or to * * * * * time and effort of its hearing examiners,
terminate parole after the parolee has (b) A prisoner’s request under this and cut down on delays in scheduling
been on parole for 5 years per 18 U.S.C. section may be approved on the vote of in-person hearings. The Commission
4211(c) and D.C. Code sec. 24–404(a– one Commissioner. originally initiated the use of
1)(3), the prisoner must be granted * * * * * videoconference in parole release
release under the statute or parole must ■ 6. Amend § 2.89 by adding an entry hearings as a pilot project and then
be terminated respectively. for ‘‘2.63’’ in numerical order to read as extended the use of videoconferencing
(5) If the matter that is the subject of follows: to institutional revocation hearings and
a tie vote is a decision under appellate probable cause hearings. Using
review per § 2.26, if no concurrence is § 2.89 Miscellaneous provisions. videoconference for termination
reached, the decision under appellate * * * * * hearings is a natural progression in the
review shall be considered affirmed. 2.63 (Quorum) use of this technology. The hearings are
This rule also applies to decisions under * * * * * informal administrative proceedings
§ 2.17 to remove a case from the original and there is little value in having the
jurisdiction of the Commission. Patricia K. Cushwa, hearing examiner and the offender
(6) The Commission may re-vote on a Chairman (Acting), U.S. Parole Commission. appear in person.
case disposition to resolve a tie vote or [FR Doc. 2018–25103 Filed 11–19–18; 8:45 am] There are several benefits to using
other impasse in satisfying a voting BILLING CODE 4410–31–P videoconferencing for parole
requirement of these rules. termination hearings, which are
(c) If there is only one Commissioner conducted pursuant to 28 CFR 2.43(c)
holding office, all provisions in these DEPARTMENT OF JUSTICE and 2.95(c). Videoconferencing will
rules requiring concurring votes or save time and expense for travel, which
resolving split decisions are suspended Parole Commission will allow the hearing examiner to make
until the membership of the the best use of his or her time in the
Commission is increased, and any 28 CFR Part 2 office. The examiner will have access to
action may be taken by one [Docket No. USPC–2018–02] documents in the parolee’s file and can
Commissioner. quickly resolve problems or answer
Paroling, Recommitting, and questions. Videoconference may offer
■ 3. Revise § 2.68(i)(1) to read as
Supervising Federal Prisoners: the possibility of more expeditious
follows:
Prisoners Serving Sentences Under hearings and decisions regarding the
§ 2.68 Prisoners transferred pursuant to the United States and District of disposition of the case.
treaty. Columbia Codes The Commission is promulgating this
* * * * * rule as an interim rule in order to
AGENCY: United States Parole determine the utility of the
(i) * * *
Commission, Justice. videoconference procedure for parole
(1) The Commission shall render a
ACTION: Interim rule with request for termination hearings and is providing a
decision as soon as practicable and
without unnecessary delay. Upon comments. 60-day period for the public to comment
review of the examiner panel on the use of the procedure for such
SUMMARY: The United States Parole
recommendation, the Commissioner hearings.
Commission is amending its rule The amended rule will take effect
may make the decision by concurring allowing hearings by videoconference to
with the panel recommendation. If the upon publication in the Federal
include parole termination hearings. Register and will apply to termination
Commissioner does not concur, the DATES: This regulation is effective
Commissioner shall refer the case to hearings conducted on or after the
November 20, 2018. Comments due on effective date.
another Commissioner and the decision or before January 22, 2019.
shall be made on the concurring votes Executive Orders 12866 and 13563
ADDRESSES: Submit your comments,
of two Commissioners. The decision This regulation has been drafted and
identified by docket identification
shall set a release date and a period and reviewed in accordance with Executive
number USPC–2018–02 by one of the
conditions of supervised release. If the Order 12866, ‘‘Regulation Planning and
following methods:
Commission determines that the Review,’’ section 1(b), Principles of
1. Federal eRulemaking Portal: http://
appropriate release date under 18 U.S.C. Regulation, and in accordance with
www.regulations.gov. Follow the online
4106A is the full term date of the foreign Executive Order 13565, ‘‘Improving
instructions for submitting comments.
sentence, the Commission will order the 2. Mail: Office of the General Counsel, Regulation and Regulatory Review,’’
transferee to ‘‘continue to expiration.’’ U.S. Parole Commission, attention: section 1(b), General Principles of
* * * * * USPC Rules Group, 90 K Street NE, Regulation. The Commission has
■ 4. Revise § 2.74(c) to read as follows: Washington, DC 20530. determined that this rule is not a

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Document Created: 2018-11-20 07:59:01
Document Modified: 2018-11-20 07:59:01

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This regulation is effective November 20, 2018.
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.
FR Citation		83 FR 58499
CFR Associated		Administrative Practice and Procedure; Prisoners and Probation and Parole

83 FR 58499 - Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes

DEPARTMENT OF JUSTICEParole Commission

Federal Register Volume 83, Issue 224 (November 20, 2018)

DEPARTMENT OF JUSTICE
Parole Commission