[Federal Register Volume 66, Number 195 (Tuesday, October 9, 2001)]
[Rules and Regulations]
[Pages 51301-51302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25111]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2


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.

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SUMMARY: The U.S. Parole Commission is amending the rule that delegates 
to its hearing examiners various powers in conducting parole release 
and revocation proceedings for United States Code and District of 
Columbia offenders. The amendment delegates to hearing examiners the 
authority to make probable cause determinations for parolees and 
supervised releasees charged with violating the conditions of release, 
and to determine the location of a revocation hearing and the witnesses 
who would attend the proceeding. Through this delegation, the 
Commission seeks to ensure an efficient allocation of workload between 
the Commission and its staff, identify and correct procedural errors in 
conducting revocation proceedings at an early stage of the process, and 
increase its consistency in scheduling revocation hearings within 
statutory and constitutional deadlines.

EFFECTIVE DATE: October 9, 2001.

FOR FURTHER INFORMATION CONTACT: Office of General Counsel, U.S. Parole 
Commission, 5550 Friendship Blvd, Chevy Chase, Maryland 20815, 
telephone (301) 492-5959. Questions about this publication are welcome, 
but inquiries concerning individual cases cannot be answered over the 
telephone.

SUPPLEMENTARY INFORMATION: The Parole Commission's statute at 18 U.S.C. 
4203(c)(2) permits the Commission to delegate to hearing examiners a 
number of powers, including the power to ``make findings of probable 
cause and issue subpenas for witnesses or evidence in parole revocation 
proceedings.'' Until now, the Commission has not delegated this power 
and has reserved to itself the duty of making these preliminary 
decisions. Because the transfer of jurisdiction over District of 
Columbia parolees on August 5, 2000 substantially increased its 
workload, the Commission has been reviewing the allocation of work 
between Commissioners and staff and exploring methods of reducing the 
time necessary to conduct revocation proceedings and make revocation 
decisions. This effort has become more urgent since the membership of 
the Commission has been reduced to only three Commissioners by a recent 
resignation. By using the authority provided in the above statute and 
delegating the functions of making probable cause decisions and issuing 
subpoenas to hearing examiners, the Commission seeks to eliminate 
several days of case processing time and still reserve to the 
Commissioners' review and judgment the most significant decisions for 
accused release violators, i.e., the initial deprivation of the 
offender's liberty through the issuance of a warrant, and revoking 
parole or supervised release. The Commission anticipates that the 
increased efficiency achieved in its probable cause determinations will 
materially contribute to the agency's ability to meet its deadlines in 
concluding final revocation hearings for both U.S. Code and D.C. Code 
parolees.
    In implementing the delegation, the Commission expects that the 
delegated functions would be exercised in almost all cases by the 
agency's Case Services Administrator, a position normally held by a 
senior-level hearing examiner. But this practice may vary, depending on 
changes in staff responsibilities and the agency's workload. Other 
Commission administrators or hearing examiners may be called upon to 
perform these duties, or the Commissioners may reassume these functions 
at any time. Though quality control of the Commission's work is 
exercised by all professional personnel, when the Case Services 
Administrator exercises these newly-delegated functions, that official 
is well-positioned to review and correct the work of the case analysts 
in preparing revocation cases. This built-in quality control review 
should reduce the incidence of errors which can slow down the 
revocation process or require a rehearing, and will assist supervisory 
staff in the ongoing training of case analysts in revocation 
procedures.
    The amended rule also provides that, along with the probable cause 
determination, the hearing examiner would decide the location of the 
revocation hearing and those witnesses who would attend the proceeding. 
These procedural matters clearly fall within other powers that may be 
delegated to hearing examiners, namely the powers to ``conduct hearings 
and proceedings'' and to ``obtain and make a record of pertinent 
information.'' 18 U.S.C. 4203(c)(2). Moreover, as noted earlier, the 
statute expressly allows the Commission to delegate the authority to 
issue subpoenas to witnesses and to

[[Page 51302]]

produce documentary evidence. If a hearing examiner may require a 
witness's attendance at a revocation proceeding through compulsory 
process, he obviously may determine those witnesses who should attend 
the proceeding upon request and in the absence of a subpoena. Since 
subpoenas frequently have to be reissued because of rescheduled 
revocation hearings, delegation of the task of issuing subpoenas would 
reduce the number of file transfers to the Commissioners, and again 
reserve their review for final case decisions.
    As a result of the delegation, in some cases a hearing examiner's 
order will result in the discharge of an accused violator from custody. 
But the exercise of this power is limited to cases where the examiner 
finds no probable cause for the alleged violation. The delegation does 
not include the authority to release an accused violator to the 
community if probable cause for violation is found. See 18 U.S.C. 
4214(a)(1)(A). Section 4203(c)(2) expressly provides only for the 
delegation of the power to make a probable cause finding and is silent 
on the power of restoring a parolee to supervision despite a finding of 
probable cause for parole violation. On this point, the Commission has 
decided to take a cautious approach in interpreting its statutory 
delegation authority. If a hearing examiner finds probable cause and 
nonetheless believes that the parolee should be returned to the 
community either before or without a revocation hearing, the case will 
be referred to a Commissioner for a decision as to release. A 
recommendation for release may be made, but this is the extent of the 
hearing examiner's authority.\1\
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    \1\ In this regard it is worth noting that Section 4203(c)(2) 
only permits the delegation of the function of recommending 
revocation and reparole dispositions. Consequently, hearing 
examiners may not make final decisions on these matters.
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    Finally, the amended rule provides that the delegated powers apply 
to the relevant provisions for parole revocations for U.S. Code 
offenders and for parole and supervised release revocations for D.C. 
Code offenders. Due to Section 11233(c)(2)(A) of the National Capital 
Revitalization and Self-Government Act of 1997,\2\ the Commission is 
authorized to use the same procedures to revoke supervised release 
terms for D.C. Code offenders that apply to federal parolees.
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    \2\ Public Law 105-33; 111 Stat. 749 (Aug. 5, 1997) (now 
codified at D.C. Code 24-1233(c)(2)(A)).
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    Since the rule is only a procedural rule and pertains only to the 
allocation of functions within the Commission, the Commission has 
determined that the rule is not subject to the notice and comment or 
the thirty-day delay provisions of 5 U.S.C. 553.

Regulatory Assessment Requirements

    The U.S. Parole Commission has determined that this final rule does 
not constitute a significant rule within the meaning of Executive Order 
12866. The final 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), and is deemed by the 
Commission to be a rule of agency practice that does not substantially 
affect the rights or obligations of non-agency parties pursuant to 
Section 804(3)(c) of the Congressional Review Act.

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 is adopting 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. Section 2.23, paragraph (a) is amended by adding the following 
sentence to the end to read as follows:


Sec. 2.23  Delegation to hearing examiners.

    (a) * * * Notwithstanding the provisions of Secs. 2.48 through 
2.51, Secs. 2.101 through 2.104, and Secs. 2.214 through 2.217, there 
is also delegated to hearing examiners the authority necessary to make 
a probable cause finding, to determine the location of a revocation 
hearing, and to determine the witnesses who will attend the hearing, 
including the authority to issue subpoenas for witnesses and evidence.

    Dated: September 25, 2001.
Edward F. Reilly, Jr.,
Chairman, Parole Commission.
[FR Doc. 01-25111 Filed 10-5-01; 8:45 am]
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