[Federal Register Volume 61, Number 202 (Thursday, October 17, 1996)]
[Rules and Regulations]
[Pages 54096-54097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26655]


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DEPARTMENT OF JUSTICE
28 CFR Part 2


Paroling, Recommitting, and Supervising Federal Prisoners: 
Transfer Treaty Prisoners

AGENCY: United States Parole Commission, Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The U.S. Parole Commission is amending its regulations to 
extend the time within which the Commission normally conducts a hearing 
for a prisoner who is transferred to the United States to serve a 
foreign sentence. The extension is from four months to six months. This 
extension reflects the need for the preparation of postsentence reports 
supported by translations of foreign court documents, and for 
completion of other procedures (including a thorough prehearing 
assessment by Commission staff) prior to conducting a hearing to 
determine a release date and a period and conditions of supervised 
release. The Commission is also amending its regulations to permit the 
agency to render a determination without a hearing in the case of a 
transferee who is given a release date by the Bureau of Prisons that is 
less than six months from the date the transferee enters the United 
States. These are cases in which the time is too short for the 
Commission to prepare for, and conduct, an in-person hearing. The 
Commission must nonetheless discharge its statutory responsibility to 
place the transferee under a period and conditions of supervised 
release before the transferee is released from prison.

DATES: November 18, 1996. Comments must be submitted by December 16, 
1996.

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

FOR FURTHER INFORMATION CONTACT: Pamela A. Posch, Office of General 
Counsel, Telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: When the Commission originally established 
its procedures for conducting transfer treaty hearings under 18 U.S.C. 
4106A, four months from the date of the prisoner's arrival in the 
United States appeared to be an adequate time to have a postsentence 
report prepared, the views of the prisoner's representative submitted, 
the case reviewed by Commission staff, and for the prisoner to be given 
an in-person hearing. A more realistic time frame would now appear to 
be six months. For those cases in which foreign court documents need to 
be translated (a procedure that will increasingly be requested by the 
Commission) an extended time frame is a practical necessity. This 
extension will not prejudice those transferees who believe that they 
are qualified to receive an early release date from the Commission, 
because the amended rule will set forth the Commission's current 
procedure permitting the transferee to waive a hearing in order to be 
released from prison within 60 days.
    A special problem is raised by transferees who, through the 
application of jail credits and/or service credits from the Bureau of 
Prisons, are scheduled for release from prison shortly after their 
arrival in the United States. For example, some nations do not award 
credit for jail time, which is awarded by the Bureau of Prisons in 
accordance with U.S. law as soon as the transferee is received into 
United States custody. The Commission has experienced a number of cases 
wherein a release date is established by the Bureau of Prisons that 
does not permit the Commission time to conduct an in-person hearing. 
Yet, 18 U.S.C. 4106A requires the Commission to establish both a 
release date and a period and conditions of supervised release. 
Accordingly, the Commission is amending its regulation to permit it to 
render this determination without conducting a hearing when the release 
date established by the Bureau of Prisons falls too soon for a hearing 
to be conducted under normal procedures. Even in cases wherein the 
transferee's immediate release is required, the

[[Page 54097]]

Bureau of Prisons will contact the Parole Commission for an emergency 
determination prior to release of the prisoner, and a determination 
will be entered the same day the prisoner is released. Otherwise, a 
nunc pro tunc order will be entered.
    In order to avoid minor disputes over the period and conditions of 
supervised release becoming grounds for an appeal to a U.S. Court of 
Appeals, the amended regulation permits the Commission to act upon a 
petition for a more favorable decision within a 60-day deadline from 
the date the determination is issued.
    Public comment is expressly invited, especially from those who 
practice before the Commission, both in regard to the specific 
amendments published today, and in regard to any improvements or 
modifications in the Commission's pre-hearing procedures in transfer 
treaty cases that might be advisable.

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, accordingly, 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 Interim Rule

    Accordingly, the U.S. Parole Commission makes the following changes 
to 28 CFR Part 2:
    (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).


Sec. 2.62  [Amended]

    (2) 28 CFR Part 2, Sec. 2.62(e) is revised to read as follows:


Sec. 2.62  Prisoners transferred pursuant to treaty.

* * * * *
    (e) Special Transferee Hearing. A special transferee hearing shall 
be conducted within 180 days from the transferee's entry into the 
United States, or as soon as is practicable following completion of the 
postsentence report along with any corrections or addendum to the 
report and appointment of counsel for an indigent transferee.
    (1) Waivers. The transferee may waive the special transferee 
hearing on a form provided for that purpose, and the Commission may 
either: (A) set a release date that falls within 60 days of receipt of 
the waiver and establish a period and conditions of supervised release; 
or (B) reject the waiver and schedule a hearing.
    (2) Short-term Cases. In the case of a transferee who has less than 
six months from the date of his entry into the United States to his 
release date as calculated by the Bureau of Prisons under 18 U.S.C. 
4105, the Commission may, without conducting a hearing or awaiting a 
waiver, set a release date and a period and conditions of supervised 
release. In such cases, the period of supervised release shall not 
exceed the minimum necessary to satisfy the applicable sentencing 
guideline (but may extend to the full-term of the foreign sentence if 
such period is shorter than the minimum of applicable sentencing 
guideline). The transferee may petition the Commission for a more 
favorable decision within 60 days of the Commission's determination, 
and the Commission may act upon the petition regardless of whether or 
not the transferee has been released from prison.
* * * * *
    Dated: October 10, 1996.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 96-26655 Filed 10-16-96; 8:45 am]
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