[Federal Register Volume 68, Number 66 (Monday, April 7, 2003)]
[Proposed Rules]
[Pages 16743-16746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7849]


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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: Parole Commission, Justice.

ACTION: Proposed rule.

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SUMMARY: The U.S. Parole Commission is proposing to revise three rules 
that describe the conditions of release for federal and District of 
Columbia offenders on parole supervision, and District of Columbia 
offenders serving terms of supervised release. The proposed revision 
consolidates similar provisions for the three groups of offenders and 
makes the conditions easier to read and understand. There are some 
minor changes in the directions given to the releasees. Finally, the 
Commission proposes to generally apply a condition presently required 
for some DC supervised releasees convicted of domestic violence 
offenses to all persons under supervision who were convicted of 
domestic violence offenses.

DATES: Comments must be received by May 7, 2003.

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

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 has the responsibility 
of imposing and enforcing conditions of release for those federal and 
District of Columbia offenders who have been released to parole 
supervision \1\ and those District of Columbia felon offenders 
sentenced to a term of supervised release. Section 4209 of Title 18 
U.S. Code describes the conditions of release that must be imposed for 
federal parolees, and permits the Commission to impose other conditions 
that are reasonably related to the nature and circumstances of the 
parolee's offense and the history and characteristics of the parolee, 
and other limitations that are reasonable to protect the public 
welfare. As a result of the transfer of parole authority required by 
the National Capital Revitalization and Self-Government Improvement Act 
of 1997, Pub. L. 105-33, and laws now codified at DC Code 24-131(a) and 
(c) the Commission has the same broad authority granted to the former 
District of Columbia Board of Parole to release a prisoner on parole 
``upon such terms and conditions as the Board shall from time to time 
prescribe.'' DC Code 24-404(a). For District of Columbia offenders on 
supervised release, the Commission has the authority to impose 
conditions of supervised release as provided in 18 U.S.C. 3583 using 
the procedures outlined in the federal parole statutes. DC Code 24-
133(c)(2) and 24-403.01(b)(6).
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    \1\ ``Parole supervision'' includes supervision of offenders for 
the remainder of the sentence of imprisonment after release by good 
time deduction. See, e.g., 18 U.S.C. 4164.
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    Through the conditions of release the Commission provides guides 
and limitations for the releasee's conduct while under supervision. See 
18 U.S.C. 4209(b) and 3583(f). The Commission imposes and enforces the 
conditions primarily to protect the public from a recurrence of 
criminal behavior by the releasee. The conditions are listed on a 
certificate given to the releasee at the outset of the supervision 
term. Examples of general conditions of release are requirements that 
the releasee obey all laws, remain within the geographical limits of 
the supervision district, and give complete and accurate reports of his 
activities to the supervision officer. Some conditions are required by 
statute, e.g., that the offender refrain from unlawful use of a 
controlled substance or that a sex offender comply with sex offender 
registration laws. The Commission may also impose special conditions of 
release to address specific problems evident from the releasee's 
history, such as a requirement that the releasee participate in a drug 
treatment program or a mental health aftercare program.
    The releasee's supervision officer is responsible for the day-to-
day implementation of the release conditions.\2\ If the releasee 
violates a condition of release, the consequence may range from an 
informal reprimand from the supervision officer or modification of 
release conditions to the releasee's return to prison through a 
revocation proceeding. Therefore, it is important that the release 
conditions should be sufficiently clear and specific to effectively 
inform the releasee of the rules he must follow under supervision. The 
releasee has the responsibility of seeking the guidance of the 
supervision officer if there is any ambiguity concerning the duties 
required of the releasee by the conditions.
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    \2\ For federal parolees, the supervision officer is a U.S. 
Probation Officer. 28 CFR 2.38. DC Code offenders on parole or 
supervised release in the District of Columbia are supervised by 
community supervision officers of the Court Services and Offender 
Supervision Agency of the District of Columbia. 28 CFR 2.91.
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    Under the present format of the rules, the Commission has described 
the conditions of release that generally apply to persons on 
supervision in three separate rules within Part 2 of 28 CFR. Section 
2.40 describes the conditions of parole for federal parolees. Section 
2.85 covers conditions of parole for DC parolees. Section 2.204 lists 
the conditions of supervised release for DC supervised releasees. Each 
of these rules lists in full the general conditions of

[[Page 16744]]

release. Since the general conditions of release are virtually 
identical for all three groups of offenders, the rules are 
unnecessarily duplicative. The proposed rules reduce this duplication 
by using Sec.  2.204 as the rule for the full statement of applicable 
conditions and then placing cross-references to Sec.  2.204 in Sec.  
2.40 and Sec.  2.85. Provisions that are unique to a particular group 
of offenders are maintained in the rules for the respective group, 
e.g., the rule on the effect of a prisoner's refusal to sign a release 
certificate is maintained in Sec.  2.40 and Sec.  2.85.
    The rules were reorganized and edited to make the conditions easier 
to read and understand. The revision includes minor changes and 
clarifications in the directions given to releasees. For example, the 
revised rule at Sec.  2.204(a)(3) changes the direction given to a 
releasee who has an emergency and cannot report to the designated 
supervision office within 72 hours of release. The revised rule 
instructs that a releasee in this situation shall contact the 
designated supervision office by telephone, rather than report to the 
U.S. Probation Office nearest to the releasee's location. The revised 
rule at Sec.  2.204(a)(5)(ii) clarifies that a releasee is prohibited 
from possessing ammunition, in addition to firearms and other dangerous 
weapons. (Convicted felons are prohibited by 18 U.S.C. 922(g) from 
possessing a firearm or ammunition.) The revised rule at Sec.  
2.204(a)(4)(iii), with the cross-references in the other sections, 
removes any question whether the condition advising a releasee to 
permit visits of the supervision officer to the releasee's residence 
and workplace applies to federal parolees as well as DC parolees and 
supervised releasees.
    The Commission proposes Sec.  2.204 as the repository for the full 
statement of the release conditions because the Commission's workload 
will eventually shift from parole to DC supervised release cases, and 
the statute governing supervised release cases (18 U.S.C. 3583) 
outlines the greatest number of release conditions that Congress has 
mandated for persons on supervision. The proposed revision incorporates 
in the rules all release conditions and other provisions required by 
statutory law for persons in the three groups. The proposal includes a 
decision to generally extend a condition mandating treatment for a 
supervised releasee convicted of a crime of domestic violence those 
persons on parole supervision. The statute at 18 U.S.C. 4209 does not 
require the condition for federal parolees and there is no DC law that 
mandates this condition for DC parolees. The Commission believes that 
this condition should be required for all persons on supervision who 
have been convicted of a crime of domestic violence.
    The proposed revision retains rules on such matters as the 
consequence of an offender's failure to acknowledge his acceptance of 
release conditions by signing the release certificate and the 
procedures for modifying release conditions after an offender is 
released to the community.

Regulatory Assessment Requirements

    The U.S. Parole Commission has determined that this proposed rule 
does not constitute a significant rule within the meaning of Executive 
Order 12866. The proposed rule, if adopted, 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 Proposed Rule

    Accordingly, the U.S. Parole Commission proposes the following 
amendments 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 2.40 is revised to read as follows:


Sec.  2.40  Conditions of release.

    (a) General conditions of release. (1) The conditions set forth in 
Sec.  2.204(a)(3)-(6) apply for the reasons set forth in Sec.  
2.204(a)(1). These conditions are printed on the certificate of release 
issued to each releasee.
    (2) The refusal of a prisoner who has been granted a parole date to 
sign the certificate of release (or any other document necessary to 
fulfill a condition of release) constitutes withdrawal of that 
prisoner's application for parole as of the date of refusal. To be 
considered for parole again, that prisoner must reapply for parole 
consideration. A prisoner who is released to supervision through good-
time deduction who refuses to sign the certificate of release is 
nevertheless bound by the conditions set forth in that certificate.
    (b) Special conditions of release. (1) The Commission may impose a 
condition other than one of the general conditions of release if the 
Commission determines that such condition is necessary to protect the 
public welfare and provide adequate supervision of the releasee. 
Examples of special conditions of release that the Commission 
frequently imposes are found at Sec.  2.204(b)(2).
    (2) If the Commission requires the releasee's participation in a 
drug-treatment program, the releasee must submit to a drug test before 
release, if the special condition was imposed before release, and to at 
least two other drug tests, as determined by the supervision officer. A 
decision not to impose this special condition, because available 
information indicates a low risk of future substance abuse by the 
releasee, shall constitute good cause for suspension of the drug 
testing requirements of 18 U.S.C. 4209(a). If the Commission imposes 
this special condition before release, a grant of parole or reparole is 
contingent upon the prisoner passing all pre-release drug tests 
administered by the Bureau of Prisons.
    (c) Changing conditions of release. The provisions of Sec.  
2.204(c) apply.
    (d) Appeal. A releasee may appeal under Sec.  2.26 an order to 
impose or modify a release condition not later than 30 days after the 
date the condition is imposed or modified.
    (e) Application of release conditions to absconder. The provisions 
of Sec.  2.204(d) apply.
    (f) Revocation for possession of a controlled substance. If the 
Commission finds after a revocation hearing that a releasee, released 
after December 31, 1988, has possessed a controlled substance, the 
Commission shall revoke parole or mandatory release. If such a releasee 
fails a drug test, the Commission shall consider appropriate 
alternatives to revocation. The Commission shall not revoke parole on 
the basis of a single, unconfirmed positive drug test, if the releasee 
challenges the test result and there is no other violation found by the 
Commission to justify revocation.
    (g) Supervision officer guidance. The provisions of Sec.  2.204(f) 
apply.
    (h) Definitions. For purposes of this section--
    (1) The terms supervision officer, domestic violence crime, 
approved offender-rehabilitation program and firearm, as used in Sec.  
2.204, have the

[[Page 16745]]

meanings given those terms by Sec.  2.204(g);
    (2) The term releasee, as used in this section and in Sec.  2.204 
means a person convicted of a federal offense who has been released on 
parole or released through good-time deduction; and
    (3) The term certificate of release, as used in this section and 
Sec.  2.204, means the certificate of parole or mandatory release 
delivered to the prisoner under Sec.  2.29.

    3. Section 2.85 is revised by revising the section to read as 
follows:


Sec.  2.85  Conditions of Release.

    (a) General conditions of release. (1) The conditions set forth in 
Sec.  2.204(a)(3)-(6) apply for the reasons set forth in Sec.  
2.204(a)(1). These conditions are printed on the certificate of release 
issued to each releasee.
    (2) The refusal of a prisoner who has been granted a parole date to 
sign the certificate of release (or any other document necessary to 
fulfill a condition of release) constitutes withdrawal of that 
prisoner's application for parole as of the date of refusal. To be 
considered for parole again, the prisoner must reapply for parole 
consideration. A prisoner who is released to supervision through good-
time deduction who refuses to sign the certificate of release is 
nevertheless bound by the conditions set forth in that certificate.
    (b) Special conditions of release. The Commission may impose a 
condition other than one of the general conditions of release if the 
Commission determines that such condition is necessary to protect the 
public welfare and provide adequate supervision of the releasee. 
Examples of special conditions of release that the Commission 
frequently imposes are found at Sec.  2.204(b)(2).
    (c) Changing conditions of release. The provisions of Sec.  
2.204(c) apply.
    (d) Application of release conditions to absconder. The provisions 
of Sec.  2.204(d) apply.
    (e) Supervision officer guidance. The provisions of Sec.  2.204(f) 
apply.
    (f) Definitions. For purposes of this section--
    (1) The terms supervision officer, domestic violence crime, 
approved offender-rehabilitation program and firearm, as used in Sec.  
2.204, have the meanings given those terms by Sec.  2.204(g);
    (2) The term releasee, as used in this section and in Sec.  2.204, 
means a person convicted of an offense under the District of Columbia 
Code who has been released on parole or released through good-time 
deduction; and
    (3) The term certificate of release, as used in this section and in 
Sec.  2.204, means the certificate of parole or mandatory release 
delivered to the releasee under Sec.  2.86.
    4. Section 2.204 is revised to read as follows:


Sec.  2.204  Conditions of Supervised Release.

    (a)(1) General conditions of release and notice by certificate of 
release. The conditions set forth in paragraphs (a)(3)-(6) of this 
section apply to every releasee and are necessary to protect the public 
welfare and to provide adequate supervision of the releasee. The 
certificate of release issued to each releasee by the Commission 
notifies the releasee of these conditions.
    (2) Effect of refusal to sign certificate of release. A releasee 
who refuses to sign the certificate of release is nonetheless bound by 
the conditions set forth in that certificate.
    (3) Reporting arrival. The releasee shall go directly to the 
district named in the certificate, appear in person at the supervision 
office, and report the releasee's residence address to the supervision 
officer. If the releasee is unable to appear in person at that office 
within 72 hours of release because of an emergency, the releasee shall 
contact that office by telephone. A releasee who is initially released 
to the physical custody of another authority shall follow these 
directions upon release from the custody of the other authority.
    (4) Providing information to and cooperating with the supervision 
officer.
    (i) The releasee shall, between the first and third day of each 
month, make a written report to the supervision officer on a form 
provided for that purpose. The releasee shall also report to the 
supervision officer at such times and in such a manner as that officer 
directs and shall provide such information as the supervision officer 
requests. All information that a releasee provides to the supervision 
officer shall be complete and truthful.
    (ii) The releasee shall notify the supervision officer within two 
days of an arrest or questioning by a law-enforcement officer, a change 
in place of residence, or a change in employment.
    (iii) The releasee shall permit the supervision officer to visit 
the releasee's residence and workplace.
    (iv) The releasee shall permit the supervision officer to 
confiscate any material that the supervision officer believes may 
constitute contraband and that is in plain view in the releasee's 
possession, including in the releasee's residence, workplace, or 
vehicle.
    (v) The releasee shall submit to a drug or alcohol test whenever 
ordered to do so by the supervision officer.
    (5) Prohibited conduct.
    (i) The releasee shall not violate any law and shall not associate 
with a person who is violating any law.
    (ii) The releasee shall not possess a firearm, other dangerous 
weapon, or ammunition.
    (iii) The releasee shall not drink alcoholic beverages to excess 
and shall not illegally buy, possess, use, or administer a controlled 
substance. The releasee shall not frequent a place where a controlled 
substance is illegally sold, dispensed, used, or given away.
    (iv) The releasee shall not leave the geographic limits set by the 
certificate of release without written permission from the supervision 
officer.
    (v) The releasee shall not associate with a person who has a 
criminal record without permission from the supervision officer.
    (vi) The releasee shall not enter into an agreement to act as an 
informer or special agent for a law-enforcement agency without the 
prior approval of the Commission.
    (6) Additional conditions.
    (i) The releasee shall make a diligent effort to work regularly, 
unless excused by the supervision officer, and to support any legal 
dependent. The releasee shall participate in an employment readiness 
program if so directed by the supervision officer
    (ii) The releasee shall make a diligent effort to satisfy any fine, 
restitution order, court costs or assessment, or court-ordered child 
support or alimony payment to which the releasee is subject. The 
releasee shall provide financial information relevant to the payment of 
such a financial obligation that is requested by the supervision 
officer. If unable to pay such a financial obligation in one sum, the 
releasee shall cooperate with the supervision officer to establish an 
installment-payment schedule.
    (iii) If the term of supervision results from a conviction for a 
domestic violence crime, and such conviction is the releasee's first 
conviction for such a crime, the releasee shall, as directed by the 
supervision officer, attend an approved offender-rehabilitation program 
if such a program is readily available within a 50-mile radius of the 
releasee's residence.
    (iv) The releasee shall comply with any applicable sex-offender 
registration law.
    (v) The releasee shall provide a DNA sample, as directed by the 
supervision officer, if collection of such sample is

[[Page 16746]]

authorized by the DNA Analysis Backlog Elimination Act of 2000.
    (vi) If the releasee is supervised by the District of Columbia 
Court Services and Offender Supervision Agency, the releasee shall 
submit to the sanctions imposed by the supervision officer within the 
limits established by an approved schedule of graduated sanctions if 
the supervision officer finds that the releasee has tested positive for 
illegal drugs or has committed a noncriminal violation of the 
conditions of release. Notwithstanding the imposition of a graduated 
sanction, if the releasee is a risk to the public safety, or is not 
complying in good faith with the sanction imposed, the Commission may 
revoke the term of supervision based upon the violation that caused the 
imposition of the sanction, the failure to comply with the sanction 
imposed, or both.
    (b)(1) Special conditions of release. The Commission may impose a 
condition other than a condition set forth in paragraphs (a)(3)-(6) of 
this section if the Commission determines that such condition is 
necessary to protect the public welfare and provide adequate 
supervision of the releasee.
    (2) The following are examples of special conditions frequently 
imposed by the Commission--
    (i) That the releasee reside in or participate in the program of a 
community corrections center, or both, for all or part of the period of 
supervision;
    (ii) That the releasee participate in a drug- or alcohol-treatment 
program, and abstain from all use of alcohol and other intoxicants;
    (iii) That, as an alternative to incarceration, the releasee remain 
at home during nonworking hours and have compliance with this condition 
monitored by telephone or electronic signaling devices; and
    (iv) That the releasee permit a supervision officer to conduct a 
search of the releasee's person, or of any building, vehicle, or other 
area under the control of the releasee, at such time as that 
supervision officer shall decide, and to seize contraband found thereon 
or therein.
    (3) If the Commission requires the releasee's participation in a 
drug-treatment program, the releasee must submit to a drug test within 
15 days of release, if the special condition was imposed before 
release, and to at least two other drug tests, as determined by the 
supervision officer. A decision not to impose this special condition, 
because available information indicates a low risk of future substance 
abuse by the releasee, shall constitute good cause for suspension of 
the drug testing requirements of 18 U.S.C. 3583(d).
    (c) Changing conditions of release. (1) The Commission, sua sponte 
or at the request of the supervision officer or the releasee, may at 
any time modify or add to the conditions of release if the Commission 
determines that such modification or addition is necessary to protect 
the public welfare and provide adequate supervision.
    (2)(i) Except as provided in paragraph (c)(2)(ii) of this section, 
before the Commission orders a change of condition, the releasee shall 
be notified of the proposed modification or addition and, unless 
waived, shall have 10 days from receipt of such notification to comment 
on the proposed modification or addition. Following that 10-day period, 
the Commission shall have 21 days, exclusive of holidays, to determine 
whether to order such modification or addition to the conditions of 
release.
    (ii) The 10-day notice requirement of paragraph (c)(2)(i) of this 
section does not apply to a change of condition that results from a 
revocation hearing for the releasee, a determination that the 
modification or addition must be ordered immediately to prevent harm to 
the releasee or to the public, or a request from the releasee.
    (d) Application of release conditions to absconder. A releasee who 
absconds from supervision prevents the term of supervision from 
expiring and the running of the term is tolled during the time that the 
releasee is an absconder. A releasee who absconds from supervision 
remains bound by the conditions of release, even after the date that 
the term of supervision originally was scheduled to expire. The 
Commission may revoke the term of supervision based on a violation of a 
release condition committed by such a releasee before the expiration of 
the term of supervision, as extended by the period of absconding.
    (e) Revocation for certain violations of release conditions. If the 
Commission finds after a revocation hearing that a releasee has 
possessed a controlled substance, refused to comply with drug testing, 
or possessed a firearm, the Commission shall revoke the term of 
supervision and impose a term of imprisonment as provided at Sec.  
2.218.
    (f) Supervision officer guidance. The Commission expects a releasee 
to understand the conditions of release according to the plain meaning 
of those conditions and to seek the guidance of the supervision officer 
before engaging in conduct that may violate a condition of release. The 
supervision officer may instruct a releasee to refrain from particular 
conduct that would violate a condition of release or to take specific 
steps to avoid or correct a violation of a condition of release.
    (g) Definitions. As used in this section, the term--
    (1) Releasee means a person who has been sentenced to a term of 
supervised release by the Superior Court of the District of Columbia;
    (2) Supervision officer means a Community Supervision Officer of 
the District of Columbia Court Services and Offender Supervision Agency 
or United States Probation Officer;
    (3) Domestic violence crime has the meaning given that term by 18 
U.S.C. 3561, except that the term ``court of the United States'' as 
used in that definition shall be deemed to include the District of 
Columbia Superior Court;
    (4) Approved offender-rehabilitation program means a program that 
has been approved by the District of Columbia Court Services and 
Offender Supervision Agency (or the United States Probation Office) in 
consultation with a State Coalition Against Domestic Violence or other 
appropriate experts;
    (5) Certificate of release means the certificate of supervised 
release delivered to the releasee under Sec.  2.203; and
    (6) Firearm has the meaning given by 18 U.S.C. 921.

    Dated: March 21, 2003.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 03-7849 Filed 4-4-03; 8:45 am]
BILLING CODE 4410-31-P