[Federal Register Volume 73, Number 47 (Monday, March 10, 2008)]
[Rules and Regulations]
[Pages 12635-12637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3986]


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DEPARTMENT OF JUSTICE

United States 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.

[[Page 12636]]


ACTION: Final rule.

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SUMMARY: The Parole Commission's regulation regarding the Commission's 
transfer treaty function describes the procedures and policies for 
making release date and supervised release term decisions for prisoners 
transferred under treaty to the custody of the United States for 
service of the remainder of their foreign sentences. The Commission is 
amending this regulation to: add a policy statement that the 
Commission, like a federal district judge in imposing a sentence, uses 
the U.S. Sentencing Guidelines as advisory guidelines in making 
decisions for a transfer treaty prisoner; and eliminate the requirement 
that a certified court reporter record a transfer treaty hearing.

DATES: Effective date: April 9, 2008.

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 statute at 18 U.S.C. 4106A grants the 
Parole Commission the authority to set a release date and a term and 
conditions of supervised release for a prisoner transferred by treaty 
to the United States for service of a foreign prison term. The 
Commission is instructed to make these determinations ``as though the 
offender were convicted in a United States district court'' of an 
offense similar to that of the foreign offense. 18 U.S.C. 
4106A(b)(1)(A). The Commission's regulation at 28 CFR 2.68 implements 
the statute, and contains a statement regarding decision-making 
criteria and the procedures used at a transfer treaty hearing. 
Commission decisions for transferred prisoners may be appealed to a 
federal court of appeals. See 18 U.S.C. 4106A(b)(2).
    Before the Supreme Court's decision in United States v. Booker, 543 
U.S. 220 (2005), the Commission, like a federal district judge imposing 
a criminal sentence, made the decisions for a transfer treaty prisoner 
in accordance with the U.S. Sentencing Guidelines unless it found good 
cause for departure. After Booker, the Commission considered the 
sentencing guidelines as advisory guidelines for its decision-making 
under 18 U.S.C. 4106A. Appellate courts have made it clear that the 
Commission should apply the holding in Booker to transfer treaty 
prisoner determinations. Odili v. U.S. Parole Commission, 474 F.3d 1255 
(11th Cir. 2007); Austin v. U.S. Parole Commission, 448 F.3d 197 (2d 
Cir. 2006). The first amendment to Sec.  2.68 sets forth an explicit 
policy statement that the Commission makes decisions for transferred 
offenders under 18 U.S.C. 4106A using the sentencing guidelines as 
advisory guidelines.
    The second amendment eliminates the procedural requirement that a 
transfer treaty hearing must be recorded by a certified court reporter. 
When the Commission initially promulgated the regulation on transfer 
treaty determinations, the Commission decided, as a matter of policy, 
to adopt some of the procedures that were normally found in sentencing 
proceedings, e.g., prehearing disclosure of the probation officer's 
post-sentence report, representation by counsel and the use of a court 
reporter to record the proceeding.
    The Commission did not interpret the statute at section 4106A to 
require the Commission, an administrative agency, to adopt identical 
procedures for judicial proceedings in conducting its administrative 
hearings. In addition to the recording of the hearing by the court 
reporter, after the transfer treaty hearing, the hearing examiner 
prepares a written summary of the proceeding for the review of other 
decision-makers in the case.
    For parole release and revocation hearings, Commission hearing 
examiners use digital recorders to record the hearings verbatim, and 
dictate hearing summaries that are transcribed for inclusion in the 
file. Under the amendment, the hearing examiner will follow these same 
procedures in transfer treaty hearings. The Commission is facing severe 
budget constraints in the current fiscal year, and this procedural 
change will be one small step in cutting costs for the agency. If an 
appeal is filed and a review of the verbatim record is necessary, the 
Commission will prepare a transcription of the hearing, or provide the 
digital recording for review by the court.
    The Commission is promulgating these amendments as a final rule 
without the need for public comment because the amended policy 
statement only implements a legal requirement and the elimination of 
the court reporter provision changes only a procedural rule.

Implementation

    The amended rules will take effect April 9, 2008, and will apply to 
transfer treaty hearings held on or after the effective date.

Executive Order 12866

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

Executive Order 13132

    The 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, the 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).

Unfunded Mandates Reform Act of 1995

    The 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 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 (Subtitle 
E--Congressional Review Act)

    The rule is not a ``major rule'' as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle 
E--Congressional Review Act), now codified at 5 U.S.C. 804(2). The 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. Moreover, this is a rule of agency procedure 
or practice that does not substantially affect the rights or 
obligations of non-agency parties, and does not come within the meaning 
of the term ``rule'' as used in Section 804(3)(C), now codified at 5 
U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 
does not apply.

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Prisoners, Probation and 
Parole.

[[Page 12637]]

The Final Rule

0
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).


0
2. Amend Sec.  2.68 by revising the first sentence of paragraph (g) and 
the second sentence of paragraph (h) to read as follows:


Sec.  2.68  Prisoners transferred pursuant to treaty.

* * * * *
    (g) The decisionmaking criteria. The Commission will consider the 
United States Sentencing Guidelines as advisory guidelines in making 
its decisions, as though the transferee were convicted in a United 
States District Court of a statutory offense most nearly similar to the 
offense of which the transferee was convicted in the foreign court. * * 
*
    (h) Hearing procedures. * * * Each special transferee hearing shall 
be recorded by the hearing examiner. * * *
* * * * *

    Dated: February 6, 2008.
Edward F. Reilly, Jr.,
Chairman, U. S. Parole Commission.
 [FR Doc. E8-3986 Filed 3-7-08; 8:45 am]
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