[Federal Register Volume 59, Number 151 (Monday, August 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19214]


[[Page Unknown]]

[Federal Register: August 8, 1994]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

 

Paroling, Recommitting, and Supervising Federal Prisoners: 
Procedures for Attorney General Requests to Review Parole Decisions

AGENCY: United States Parole Commission, Justice.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is adopting a procedure for the 
handling of requests from the Attorney General under 18 U.S.C. 4215(c) 
to review parole decisions by Regional Commissioners. Although 
statutory law permits the Attorney General to request the National 
Appeals Board to review any parole decision of a Regional Commissioner 
within thirty days of the Regional Commissioner's decision, the 
provision has been so infrequently used that the Commission has not 
hitherto published any procedure for the handling of such requests. The 
purpose of this publication is to set forth such a procedure, and to 
ensure compliance with other statutory provisions regarding disclosure 
of the documentary evidence that is relied upon by the Commission, in 
the case of an Attorney General request that is accompanied by new 
information.

EFFECTIVE DATE: September 7, 1994.

FOR FURTHER INFORMATION CONTACT: Richard K. Preston, Office of General 
Counsel, 5550 Friendship Blvd., Chevy Chase, Maryland 20815, Telephone 
(301) 492-5959.

SUPPLEMENTARY INFORMATION: Federal parole laws remain in effect until 
November 1, 1997, for prisoners and parolees who committed their crimes 
prior to November 1, 1987, and whose sentences place them under the 
jurisdiction of the U.S. Parole Commission. See Section 235(b) of the 
Sentencing Reform Act of 1987, Public Law 98-473 (as amended) and 18 
U.S.C. 4201 through 4218. Under 18 U.S.C. 4215(c), the Attorney General 
may request the National Appeals Board of the U.S. Parole Commission to 
review any decision of a Regional Commissioner, provided the Attorney 
General's request is received within 30 days of the Regional 
Commissioner's decision. The National Appeals Board then has 60 days to 
reaffirm, modify, or reverse the Regional Commissioner's decision. This 
statutory provision preserves the independence and integrity of the 
U.S. Parole Commission by providing the Attorney General (and through 
the Attorney General, the prosecutorial arm of the Department of 
Justice) with a formal procedure for making objection to any parole 
release or denial ordered by a Commissioner. Although enacted in 1976, 
this procedure has been rarely employed, and the Commission has 
hitherto not had occasion to publish any procedure for the handling of 
such requests.
    The Commission was recently confronted with a request from the 
Attorney General under 18 U.S.C. 4215 that raised an important 
procedural question. The request was accompanied by documentary 
evidence not previously in the Commission's record. If the National 
Appeals Board were to decide the case without observing the normal 
right of a federal prisoner to have disclosure and an opportunity to 
rebut adverse information, see 18 U.S.C. 4208, procedural fairness 
would not be achieved. On the other hand, the 60-day period allowed by 
4215(c) is not enough time for the statutory hearing process to be 
carried out prior to review and decision by the National Appeals Board. 
See 18 U.S.C. 4208.
    Accordingly, the Commission has decided to adopt a procedure 
whereby the National Appeals Board will consider the new information in 
deciding to reaffirm, modify, or reverse the Regional Commissioner's 
decision within the statutory 60-day period, but will also remand the 
case for a new hearing if the decision (and the information) is adverse 
to the prisoner. After a hearing with the opportunity for rebuttal, the 
case will be returned to the National Appeals Board for a final 
decision as to the disposition of the case. Although the final decision 
of the National Appeals Board will be rendered after the 60-day 
deadline has expired, the Commission has the statutory authority to 
delegate to the National Appeals Board this additional decisionmaking 
responsibility under 18 U.S.C. 4203. The legislative history of the 
Commission's enabling statute makes it clear that the Commission was 
intended by Congress to have significant freedom of choice as to the 
powers to be delegated to the National Appeals Board. 2 U.S. Code Cong. 
& Admin. News at 354-355 (1976).
    This procedure will provide the Attorney General with the 
unqualified right to have the National Appeals Board review a Regional 
Commissioner's decision within the statutory deadline, while also 
providing the prisoner with a meaningful opportunity to rebut any new 
adverse information before the disposition of the case is deemed to be 
final. This rule has not been published for notice and comment prior to 
adoption because it is strictly a rule of procedure.

Executive Order 12866 and Regulatory Flexibility Statement

    The U.S. Parole Commission has determined that this rule is not a 
significant regulatory action for the purposes of Executive Order 12866 
and the rule has therefore not been reviewed by the Office of 
Management and Budget. The 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, probation and parole, 
prisoners.

The Final Rule

    Accordingly, the U.S. Parole Commission makes 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. 28 CFR Part 2, Sec. 2.26 is amended by adding the following 
paragraph (f):


Sec. 2.26  Appeal to National Appeals Board.

* * * * *
    (f) Upon the written request of the Attorney General seeking review 
of a decision of a Regional Commissioner, which is received within 30 
days of such decision, the National Appeals Board shall reaffirm, 
modify, or reverse the Regional Commissioner's decision within 60 days 
of receipt of the Attorney General's request. The National Appeals 
Board shall inform the Attorney General and the prisoner to whom the 
decision applies in writing of its decision and the reasons therefor. 
In the event the Attorney General submits new and significant 
information that has not previously been disclosed to the prisoner 
prior to a hearing under these rules, the National Appeals Board shall 
act within 60 days to reaffirm, modify or reverse the Regional 
Commissioner's decision, but shall also remand the case for a new 
hearing if its decision is adverse to the prisoner. The prisoner shall 
have disclosure of the new information, and the opportunity to dispute 
that information under Sec. 2.19(c) of this part. Following the 
hearing, the case shall be returned to the National Appeals Board, 
together with a recommendation from the hearing examiner, to render a 
final Commission decision as to the disposition of the case.

    Dated: July 22, 1994.
Jasper R. Clay, Jr.,
Vice Chairman, U.S. Parole Commission.
[FR Doc. 94-19214 Filed 8-5-94; 8:45 am]
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