[Federal Register Volume 72, Number 180 (Tuesday, September 18, 2007)]
[Rules and Regulations]
[Pages 53114-53116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17760]


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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 Parole Commission is amending its regulations to 
incorporate a procedural alternative that allows a parolee or 
supervised releasee to initiate the process of accepting a revocation 
decision without the need of a revocation hearing. This ``advanced 
consent'' alternative has been used in a pilot project in the District 
of Columbia since October 2005 and has assisted in the prompt 
resolution of revocation cases. Through this amendment, the Commission 
is formalizing the adoption of this variation of the expedited 
revocation procedure and simplifying the format and language of the 
rule.

DATES: Effective date: October 18, 2007.

FOR FURTHER INFORMATION CONTACT: Office of General Counsel, U.S. Parole

[[Page 53115]]

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: In 1998 the Parole Commission promulgated a 
rule establishing the expedited revocation procedure. 63 FR 25769-70 
(May 21, 1998). Under this procedure, after a preliminary interview and 
a probable cause determination, the Commission may offer an alleged 
parole violator the opportunity to receive a revocation and reparole 
decision without a revocation hearing. By accepting the Commission's 
offer and foregoing the revocation hearing, the alleged violator may 
expedite his transfer from a local jail to a federal institution where 
vocational, educational, and other prison programs are available. In 
using this procedure, the Commission saves the costs associated with 
conducting an in-person hearing.
    In October 2005, the Commission began an ``advanced consent'' pilot 
project at the District of Columbia Central Detention Facility at the 
suggestion of the Commission's hearing examiners and attorneys from the 
District of Columbia Public Defender Service. After a parolee or 
supervised releasee is arrested on a violator warrant issued by the 
Commission, a Commission hearing examiner conducts a probable cause 
hearing for the alleged violator at the DC jail within 5 days of the 
arrest. See 28 CFR 2.101(a). Under the pilot project, the alleged 
violator may propose to the hearing examiner at the probable cause 
hearing that he will accept a disposition of the case without a 
revocation hearing. Usually the alleged violator makes the proposal 
with the condition that the prison term resulting from the revocation 
stays at the bottom of the applicable guideline range (see 28 CFR 2.20 
and 2.21). The Commission maintains the authority to reject the 
proposal for any reason, and uses the same substantive criteria in 
evaluating the case that are described in the present rule at Sec.  
2.66, e.g., cases in which the offense severity rating for the alleged 
violation behavior under the paroling policy guidelines (28 CFR 2.20) 
is Category Two or less (Categories One and Two are the least serious 
offense ratings in the guidelines). Under the advanced consent process, 
the Commission hoped to expedite revocation proceedings and reduce the 
number of days the offender would be incarcerated at the DC jail before 
transferring to a federal facility where more programs would be 
available to the offender.
    The results of the advanced consent program show that this 
procedure does expedite the resolution of less serious parole and 
supervised release revocation cases. For the period from January 1, 
2006 to June 30, 2007, the Commission made 2,607 revocation decisions 
for violators in the District of Columbia. Of this number, 1048 cases 
(40%) were decided using the advanced consent procedure. The average 
processing time of these 1048 cases was 44 days from the date the 
violator was arrested on a violator warrant to the date of the 
revocation decision, almost half the time contemplated by the 
Commission's regulation governing local revocation hearings. See 28 CFR 
2.105(c) and 2.218(g) (a revocation decision for a DC violator must be 
made within 86 days of arrest on a violator warrant).
    With the success of the pilot project, the Commission is now 
amending its rule at Sec.  2.66 to incorporate the advanced consent 
alternative as a variation of the expedited revocation procedure. No 
change has been made in the criteria used by the Commission in 
determining those offenders who may be considered for revocation 
without the need of a hearing. In applying the amended rule, the 
Commission will continue to exercise its discretion to conduct a 
hearing when it deems a hearing to be necessary to protect the public 
safety, even if the alleged violator's case appears to meet one of the 
criteria for consideration under Sec.  2.66. The Commission has also 
edited the rule to ensure that it is clear and easy to read. With the 
editing of the rule, a conforming amendment is made to the rule on 
miscellaneous provisions at 28 CFR 2.89. The Commission is publishing 
the amended rule at Sec.  2.66 as a final rule without seeking public 
comment because the rule is procedural in nature and does not establish 
any new substantive criteria for making revocation and reparole 
decisions.

Implementation

    The amended rules will take effect October 18, 2007, and will apply 
to federal and District of Columbia offenders.

Executive Order 12866

    The U.S. Parole Commission has determined that this final rule does 
not constitute a significant rule within the meaning of Executive Order 
12866.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Under Executive Order 13132, this rule 
does not have sufficient federalism implications requiring a Federalism 
Assessment.

Regulatory Flexibility Act

    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), 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.

Unfunded Mandates Reform Act of 1995

    This rule will not cause State, local, or tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
it will not significantly or uniquely affect small governments. No 
action under the Unfunded Mandates Reform Act of 1995 is necessary.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on the ability of United States-based companies to compete with 
foreign-based companies.

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Prisoners, Probation and 
parole.

The Final Rule

0
Accordingly, the U.S. Parole Commission is adopting the following 
amendment to 28 CFR part 2.

PART 2--[AMENDED]

0
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).


0
2. Revise Sec.  2.66 to read as follows:


Sec.  2.66  Revocation decision without hearing.

    (a) If the releasee agrees to the decision, the Commission may make 
a revocation decision without a hearing if--

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    (1) The alleged violation would be graded no higher than Category 
Two under the guidelines at Sec.  2.20;
    (2) The alleged violation is in any category under the guidelines 
at Sec.  2.20 and the decision imposes the maximum sanction authorized 
by law; or
    (3) The Commission determines that the releasee has already served 
sufficient time in custody as a sanction for the violation but that 
forfeiture of time on parole is necessary to provide an adequate period 
of supervision.
    (b) A releasee who agrees to such a disposition shall indicate such 
agreement by--
    (1) Accepting the decision proposed by the Commission in the Notice 
of Eligibility for Expedited Revocation Procedure that the Commission 
sent to the releasee, thereby agreeing that the releasee does not 
contest the validity of the charge and waives a revocation hearing; or
    (2) Offering in writing, before the finding of probable cause or at 
a probable cause hearing, not to contest the validity of the charge, to 
waive a revocation hearing, and to accept a decision that is at the 
bottom of the applicable guideline range as determined by the 
Commission if the violation would be graded no higher than Category Two 
under the guidelines at Sec.  2.20, or is the maximum sanction 
authorized by law.
    (c) An alleged violator's agreement under this provision shall not 
preclude the Commission from taking any action authorized by law or 
limit the statutory consequences of a revocation decision.

0
3. Amend Sec.  2.89 by adding an entry for Sec.  2.66 to read as 
follows:


Sec.  2.89  Miscellaneous provisions.

* * * * *
2.66 (Revocation Decision Without Hearing)
* * * * *

    Dated: August 22, 2007.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. E7-17760 Filed 9-17-07; 8:45 am]
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