[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5610]


[[Page Unknown]]

[Federal Register: March 10, 1994]


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DEPARTMENT OF JUSTICE
28 CFR Part 2

 

Paroling, Recommitting, and Supervising Federal Prisoners: Parole 
Hearings Conducted by Hearing Examiners

AGENCY: Parole Commission, Justice.

ACTION: Interim rule with request for public comment.

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SUMMARY: The U.S. Parole Commission is amending its regulations that 
define the role of the hearing examiner in conducting parole hearings 
and in formulating a panel recommendation to the Regional Commissioner. 
At present, the Commission's rules require that parole hearings be 
conducted by panels of two examiners, with single examiner hearings 
being the exception. The amended rule makes single examiner hearings 
the norm, with the Regional Commissioner having the option to order 
two-examiner panels for hearings when appropriate. Under the new rule, 
review and voting by the Regional Administrator will provide the 
Regional Commissioner with a panel recommendation. The amended rule 
also permits a hearing examiner (or panel) to withhold the recommended 
decision that is ordinarily given to the prisoner at the conclusion of 
a parole hearing, if a critical issues requires further consideration. 
The purpose served by these changes is to adjust the Commission's 
procedures to the down-sizing requirements of the Commission's 
impending abolition, without lessening the quality of justice in parole 
hearings and decisions.

DATES: Effective Date: The interim rule takes effect April 11, 1994.

COMMENTS: Comments must be submitted by May 9, 1994, in order to be 
received by the Commission prior to consideration of a final rule.

ADDRESSES: Send comments to Richard K. Preston, Office of General 
Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, 
Maryland 20815.

FOR FURTHER INFORMATION CONTACT:
Richard K. Preston, Office of General Counsel, U.S. Parole Commission, 
telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: Under the Sentencing Reform Act of 1984, the 
U.S. Parole Commission will be abolished effective November 1, 1997. It 
has a diminishing caseload that consists primarily of offenders who 
committed their crimes prior to November 1, 1987. In order to achieve 
an orderly reduction of its staffing levels, it is imperative for the 
Parole Commission to conduct parole hearings, wherever feasible, with 
single hearing examiners.
    This procedure is authorized by law. In 1986, Congress amended 18 
U.S.C. 4208(g) to permit a hearing to be conducted by ``a 
representative of the Commission'' as opposed to the former requirement 
for hearings to be conducted by a panel of two examiners. The 
legislative history of this statutory amendment makes it clear that 
Congress intended to remove any bar to single examiner hearings so as 
to permit the Commission to continue functioning with reduced staff 
resources.
    In order to ensure a thoroughly considered parole decision in every 
case, review by the Regional Administrator will provide a concurring 
vote, with a referral to other hearing examiners for a concurring vote 
in the event of a disagreement between the examiner who conducted the 
hearing and the Regional Administrator. Regional Commissioners will 
have the option of ordering panel hearings whenever a hearing examiner 
is deemed to be insufficiently experienced to conduct a docket of 
hearings without assistance, and whenever there are particularly 
complex cases to be heard. To further the purpose of adequate 
consideration in every case, examiners (and panels of examiners) will 
no longer be required to give the inmate a final recommendation at the 
conclusion of each hearing. A final recommendation will continue to be 
provided in most cases, but in exceptional cases examiners may reserve 
judgment if there are issues that require further deliberation. In such 
cases, the amended rule requires that the prisoner be informed of a 
tentative recommendation, and of the issue (or issues) that need to be 
resolved.
    Finally, the Commission has cautiously experimented with single 
examiner hearings for many years, and has traditionally used single 
examiners to conduct local revocation hearings (as permitted by 18 
U.S.C. 4203). The Commission is confident that the quality of its 
hearings will not be diminished by making single examiner hearings the 
norm. Regional Commissioners will determine, at their discretion, when 
panel hearings should be used. The decision to order panel hearings 
will reflect administrative and staffing concerns only, and will not 
reflect any prejudgment about prisoners whose hearings will or will not 
be conducted by a panel of hearing examiners.

Implementation

    This interim rule will be followed for all parole hearings 
(including statutory interim hearings, rescission hearings, special 
reconsideration hearings, etc.) on dockets conducted after the 
effective date announced above. It will not apply to transfer treaty 
prisoners under 18 U.S.C. 4106A.

Executive Order 12291 and Regulatory Flexibility Statement

    The U.S. Parole Commission has determined that this rule is not a 
major rule within the meaning of Executive Order 12291. It is a rule of 
internal procedure only, which has been published for comment solely in 
order to reassure federal prisoners and their representatives of 
continued fair treatment. 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).

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Prisoners, Probation and 
parole.

The Amended Rule

    Accordingly, the U.S. Parole Commission amends 28 CFR Part 2 as 
follows:
    (1) The authority citation for 28 CFR part 2 continues to read as 
follows:

PART 2--[AMENDED]

    Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).

    (2) 28 CFR Part 2, Sec. 2.13 is amended by revising paragraphs (a), 
(b) and (c) to read as follows:


Sec. 2.13  Initial hearing; procedure.

    (a) An initial hearing shall be conducted by a single hearing 
examiner unless the Regional Commissioner orders that the hearing be 
conducted by a panel of two examiners. The examiner shall discuss with 
the prisoner his offense severity rating and salient factor score as 
described in Sec. 2.20, his institutional conduct and, in addition, any 
other matter the examiner may deem relevant.
    (b) A prisoner may be represented a hearing by a person of his or 
her choice. The function of the prisoner's representative shall be to 
offer a statement at the conclusion of the interview of the prisoner by 
the examiner, and to provide such additional information as the 
examiner shall request. Interested parties who oppose parole may select 
a representative to appear and offer a statement. The hearing examiner 
shall limit or exclude any irrelevant or repetitious statement.
    (c) At the conclusion of the hearing, the examiner shall discuss 
the recommendation and the reasons therefor.
* * * * *
    (3) 28 CFR part 2, Sec. 2.23 is amended by revising paragraphs (a), 
(b) and (c) to read as follows:


Sec. 2.23  Delegation to hearing examiners.

    (a) There is hereby delegated to hearing examiners the authority 
necessary to conduct hearings and to make recommendations relative to 
the grant or denial of parole or reparole, revocation or reinstatement 
of parole or mandatory release, and conditions of parole. Any hearing 
may be conducted by a single examiner or by a panel of examiners. A 
Regional Administrator may function as a hearing examiner for the 
purpose of obtaining a panel recommendation whenever the Regional 
Commissioner has not ordered that a hearing be conducted by a panel of 
two examiners.
    (b) The concurrence of two hearing examiners, or of a hearing 
examiner and the Regional Administrator, shall be required to obtain a 
panel recommendation to the Regional Commissioner. A panel 
recommendation is required in each case decided by a Regional 
Commissioner after the holding of a hearing.
    (c) An examiner panel recommendation consists of two concurring 
examiner votes. In the event of divergent votes, the case shall be 
referred to another hearing examiner (or to the Regional Administrator 
in the case of a hearing conducted by a panel of examiners) for another 
vote. If concurring votes do not result from such a referral, the case 
shall be referred to any available hearing examiner until a panel 
recommendation is obtained.
* * * * *
Edward R. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 94-5610 Filed 3-9-94; 8:45 am]
BILLING CODE 4410-01-M