[Federal Register Volume 61, Number 210 (Tuesday, October 29, 1996)]
[Rules and Regulations]
[Pages 55742-55743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27303]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2


Paroling, Recommitting, and Supervising Federal Prisoners: Voting 
Quorums

AGENCY: United States Parole Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is amending the voting quorum 
requirements in its regulations to conform to the Parole Commission 
Phaseout Act of 1996. This law has the effect of reducing the 
Commission to three-members. The law permits the Commission to perform 
its functions with any quorum of Commissioners, or Commissioner, as the 
Commission may prescribe by regulation. Pursuant to this statutory 
authority, the Commission is herein prescribing appropriate voting 
quorums for a three-member agency. It is also eliminating a regulation 
that required the Commission to establish final release dates prior to 
abolition of the agency. This regulation was based on a provision of 
law enacted in 1984, which the Parole Commission Phaseout Act of 1996 
has conditionally repealed.

EFFECTIVE DATE: November 29, 1996.

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

SUPPLEMENTARY INFORMATION: The Parole Commission Phaseout Act of 1996, 
Public Law 104-232, took effect on October 2, 1996. The Act has 
extended the life of the Commission from November 1, 1997, to November 
1, 2002. The Act also gives the Attorney General the authority, 
beginning on November 1, 1998 to transfer the Commission's functions to 
an entity within the Department of Justice. After such transfer takes 
place, the Commission will not be required to set final release dates 
that would otherwise be required by Section 235(b)(3) of the Sentencing 
Reform Act of 1984. The Act also mandates the downsizing of the 
Commission, and has reduced the Commission to three members. In keeping 
with this reduction, the Act authorizes the Commission to perform its 
functions with any quorum of Commissioners, or Commissioner, as the 
Commission may prescribe by regulation.
    In the revisions published today, the Commission is exercising its 
authority to establish appropriate quorums for decisionmaking. The 
Commission is retaining the established system of a Regional 
Commissioner who renders the initial decision in most cases, with an 
appeal to the National Appeals Board. All three Commissioners will 
serve on the National Appeals Board, and appeals to the National 
Appeals Board will therefore assume (in part) the character of 
petitions for reconsideration. Decisions of a Regional Commissioner 
will be subject to affirmance on the vote of a National Commissioner, 
but two Commissioner votes (which may include the vote of the Regional 
Commissioner) will continue to be required to modify or reverse the 
decisions of a Regional Commissioner.
    For original jurisdiction cases, as well as for all other types of 
decisions formerly requiring a quorum of more than two Commissioner 
votes (e.g., reopening a case to consider new and significant adverse 
information), a quorum of two out of three Commissioner votes is now 
established. These cases will therefore be decided upon a majority vote 
of the Commission.
    The absence or recusal of a Commissioner will not suspend the 
majority-vote requirements of the revised regulations. In the event of 
the absence or recusal of a Regional Commissioner, the Chairman will 
designate an Acting Regional Commissioner. Reversal of the Acting 
Regional Commissioner's decision by the National Appeals Board will 
require the concurring votes of the Chairman and the Acting Regional 
Commissioner. Likewise, in the absence or recusal of a National 
Commissioner (including the Chairman), reversal of the Regional 
Commissioner's decision by the National Appeals Board will require the 
concurring votes of the National Commissioner reviewing the appeal and 
the Regional Commissioner. In original jurisdiction cases, initial 
decisions will continue to require the concurrence of two Commissioner 
votes. On original jurisdiction appeals, the initial decision will 
stand affirmed if the concurrence of two Commissioner votes for a 
different decision is not obtained.
    Finally, the Commission will continue to promulgate regulations and 
establish policy by majority vote. The revision of the Commission's 
regulations to conform to Public Law 104-232 will include the deletion 
of 28 CFR 2.67. This rule reflects a provision of the Sentencing Reform 
Act that has now been conditionally repealed by Section 3(b)(2) of the 
Act, as described above.

Implementation

    This rule change will apply to all cases decided after the 
effective date shown above. The guidelines at 28 CFR 2.20 and all other 
applicable regulations will continue to govern the Commission's 
decisions to grant, deny, and revoke parole. The revised regulations 
will affect only the internal voting procedures of the Commission, and 
will not implicate the merits of any prisoner's case for parole or 
change the way in which hearings are conducted. Hence, notice and 
public comment are not required. See 5 U.S.C. 553(b)(A).

Executive Order 12866 and Regulatory Flexibility Statement

    The U.S. Parole Commission has determined that this rule is not a

[[Page 55743]]

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, Prisoners, Probation and 
parole.

The Final Rule

    Accordingly, the U.S. Parole Commission amends 28 CFR Part 2 as 
follows:

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. 2.1(c), (d), and (e) are revised to read as 
follows:


Sec. 2.1  Definitions.

* * * * *
    (c) The term National Appeals Board refers to the three-member 
Commission sitting as a body to decide appeals taken from decisions of 
a Regional Commissioner, who participates as a member of the National 
Appeals Board. The Vice Chairman shall be Chairman of the National 
Appeals Board.
    (d) The term National Commissioners refers to the Chairman of the 
Commission and to the Commissioner who is not serving as the Regional 
Commissioner in respect to a particular case.
    (e) The term Regional Commissioner refers to Commissioners who are 
assigned to make initial decisions, pursuant to the authority delegated 
by these rules, in respect to prisoners and parolees in regions defined 
by the Commission.
* * * * *
    3. 28 CFR Part 2, Sec. 2.17(a) is revised to read as follows:


Sec. 2.17  Original jurisdiction cases.

    (a) Following any hearing conducted pursuant to these rules, a 
Regional Commissioner may designate certain cases for decision by a 
majority of the Commission, as original jurisdiction cases. In such 
instances, he shall forward the case with his vote, and any additional 
comments he may deem germane, to the National Commissioners for 
decision. Decisions shall be based upon the concurrence of two votes, 
with the Regional Commissioner and the National Commissioners each 
having one vote.
* * * * *
    4. 28 CFR Part 2, Sec. 2.26(b) is revised to read as follows:


Sec. 2.26  Appeal to National Appeals Board.

* * * * *
    (b)(1) The National Appeals Board may: Affirm the decision of a 
Regional Commissioner on the vote of a single Commissioner other than 
the Commissioner who issued the decision from which the appeal is 
taken; or modify or reverse the decision of a Regional Commissioner, or 
order a new hearing, upon the concurrence of two Commissioners. The 
Commissioner first reviewing the case may in his discretion circulate 
the case for review and vote by the other Commissioners notwithstanding 
his own vote to affirm the Regional Commissioner's decision. In such 
event, the case shall be decided by the concurrence of two out of three 
votes.
    (2) All Commissioners serve as members of the National Appeals 
Board, and it shall in no case be an objection to a decision of the 
Board that the Commissioner who issued the decision from which an 
appeal is taken participated as a voting member on appeal.
* * * * *
    5. 28 CFR Part 2, Sec. 2.27(a) is revised to read as follows:


Sec. 2.27  Petition for reconsideration of original jurisdiction cases.

    (a) A petition for reconsideration may be filed with the Commission 
in cases decided under the procedure specified in Sec. 2.17 within 
thirty days of the date of such decision. A form is provided for this 
purpose. A petition for reconsideration will be reviewed at the next 
regularly scheduled meeting of the Commission provided the petition is 
received thirty days in advance of such meeting. Petitions received by 
the Commission less than thirty days in advance of a regularly 
scheduled meeting will be reviewed at the next regularly scheduled 
meeting. The concurrence of two Commissioners shall be required to 
modify or reverse the decision for which reconsideration is sought. If 
such concurrence is not obtained, the previous decision shall stand. A 
decision under this rule shall be final.
* * * * *
    6. 28 CFR Part 2, Sec. 2.28(f) is revised to read as follows:


Sec. 2.28  Reopening of cases.

* * * * *
    (f) New adverse information. Upon receipt of new and significant 
adverse information that is not covered by paragraphs (a) through (e) 
of this section, a Commissioner may refer the case to the National 
Commissioners with his recommendation and vote to schedule the case for 
a special reconsideration hearing. Such referral shall automatically 
retard the prisoner's scheduled release date until a final decision is 
reached in the case. The decision to schedule a case for a special 
reconsideration hearing shall be based on the concurrence of two 
Commissioner votes, including the vote of the referring Commissioner. 
The hearing shall be conducted in accordance with the procedures set 
forth in Secs. 2.12 and 2.13. The entry of a new order following such 
hearing shall void the previously established release date.
    7. 28 CFR Part 2, Sec. 2.64 is revised to read as follows:


Sec. 2.64.  Quorum.

    Any Commission action authorized by law may be taken on a majority 
vote of the Commissioners holding office at the time the action is 
taken.


Sec. 2.67  [Removed]

    8. 28 CFR Part 2, Sec. 2.67 is removed.

    Dated: October 21, 1996.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 96-27303 Filed 10-28-96; 8:45 am]
BILLING CODE 4410-01-P