[Federal Register Volume 74, Number 115 (Wednesday, June 17, 2009)]
[Rules and Regulations]
[Pages 28602-28606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14157]


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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: Interim rule with request for comments.

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SUMMARY: The U.S. Parole Commission is promulgating interim rules to 
implement the District of Columbia Equitable Street Time Credit 
Amendment Act of 2008. This Act modifies parole laws for District of 
Columbia offenders by allowing the Parole Commission to terminate the 
supervision and legal custody of a parolee before the expiration of the 
parolee's sentence. The Act also modifies the requirement that the 
parolee lose credit for all time spent on parole when the Commission 
revokes a parolee's release for violating parole conditions. With these 
modifications, parole laws for DC offenders are more consistent with 
similar parole laws governing U.S. Code parole eligible offenders. The 
Commission is also making a number of conforming amendments to 
regulations that refer to the functions that are the subject of the new 
DC law, and editing regulations on the same subjects for U.S. Code 
parolees to make the regulations simpler and more understandable.

DATES: Comments must be received by August 31, 2009.

ADDRESSES: Submit your comments, identified by docket identification 
number USPC-2009-01 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the online instructions for submitting comments.

[[Page 28603]]

    2. Mail: Office of the General Counsel, U.S. Parole Commission, 
5550 Friendship Blvd., Chevy Chase, Maryland 20815.
    3. Fax: 301-492-5563.

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: Under the National Capital Revitalization 
and Self-Government Improvement Act of 1997, Public Law 105-33, the 
U.S. Parole Commission assumed parole release and revocation authority 
over District of Columbia felony offenders, exercising such authority 
pursuant to the parole laws and regulations of the District of 
Columbia. DC Code 24-131(c). The Attorney General of the United States 
must concur in any changes made by the Council of the District of 
Columbia in these laws and regulations. Id. The Commission has 
exclusive authority to amend or supplement any regulation that 
interprets or implements DC parole laws. DC Code 24-131(a)(1).
    In December 2008 the DC Council passed the Equitable Street Time 
Credit Amendment Act of 2008 (hereinafter ``the Act''). Former Attorney 
General Mukasey concurred in the legislation, and the Mayor of the 
District of Columbia signed the legislation in January 2009. After a 
period of congressional review, the Act became effective on May 20, 
2009 as DC Law 17-389. The Act makes two significant changes in parole 
laws for DC offenders. First, Section 3(a) of the Act amends DC Code 
24-404 to provide that the Commission may terminate a DC parolee from 
supervision, and legal custody of the parolee, before the expiration 
date of the sentence. Under present law, the Commission may only 
transfer a DC parolee to inactive supervision before the sentence 
expires. This first change gives the Commission the same authority, and 
same responsibilities, it presently carries out for Federal parolees 
under its jurisdiction (see 18 U.S.C. 4211). The Commission is required 
to conduct an early termination record review for the DC parolee after 
the parolee serves two years of continuous supervision. If the parolee 
is not discharged from supervision and the sentence after five years of 
supervision, the Commission must conduct a five-year termination 
hearing using the same decision-making standard it uses for Federal 
parolees, i.e., whether there is a reasonable probability that the 
parolee will violate any criminal law if he were discharged from the 
sentence.
    The interim rule is almost identical to the current rule governing 
early termination decisions for Federal parolees. No substantive change 
is intended from the procedures for Federal parolees. The Commission is 
adopting the early termination guidelines it now uses for Federal 
parolees in carrying out its new duties for DC parolees. In doing so, 
the Commission is eliminating the use of a violence assessment under 
the guidelines at 28 CFR Sec.  2.80 as a decision-making criterion. 
This assessment is presently used in the guidelines for transferring a 
DC parolee from active to inactive supervision. The elimination of the 
violence assessment is not intended to signal any devaluation of the 
risk of possible violence as a factor in the Commission's decision. 
Instead, the risk of future violence will be addressed as a case-
specific factor that may warrant a departure from the advisory 
guidelines. The Commission is also amending the rules at 28 CFR 2.43 
(for Federal parolees) and 2.208 (for DC supervised releasees) to 
conform with this interim rule and the clearer language and simpler 
format of the new rule.
    The legislation applies to all DC parolees now under active or 
inactive supervision, and any DC prisoner who will be released to 
parole (including mandatory release) supervision. For those offenders 
released before the effective date of the Act, the Commission must 
apply the procedures of the new law within one year of the effective 
date.
    The second significant amendment of DC parole law is found in 
Section 3(b) of the Act. Under the current version of DC Code 24-406, 
if parole is revoked, the parole violator must forfeit all time spent 
on parole, regardless of the nature of the violation. Section 3(b) of 
the Act amends 24-406 to limit the forfeiture of parole time to those 
revoked parolees who have incurred a new conviction for an offense 
punishable by imprisonment, or who have intentionally refused or failed 
to respond to a request or order of the Commission. The legislation 
provides for mandatory forfeiture of the parole period if the parolee 
is convicted of a crime punishable by a prison term of more than one 
year. If the new conviction carries a possible jail term of one year or 
less, the Commission has discretion to allow sentence credit if the 
Commission decides that forfeiture is not necessary to protect the 
public welfare. This change in forfeiture law brings DC parole laws 
more in line with the forfeiture provisions for Federal parolees found 
at 18 U.S.C. 4210(b) and (c), which require parole time forfeiture for 
a revoked parolee who is convicted of a crime punishable by 
imprisonment, and permit forfeiture of a period while the parolee 
absconded from supervision or willfully disobeyed a Commission 
direction. For now, the Commission has decided not to promulgate 
guidelines regarding the exercise of discretionary judgment in granting 
parole time credit to persons convicted of misdemeanor crimes. As its 
experience develops, the Commission may decide that guidelines are 
desirable in making this decision. The amendment to the parole time 
credit laws does not apply to parole periods that have already been 
revoked and forfeited before the effective date of the Act.
    Finally, the Commission is amending a number of other rules to 
conform with the amendments required by the new law.

Implementation

    The regulations set forth below will be made effective as of the 
date of publication, and will apply to all persons who are serving 
sentences imposed for felony crimes under the District of Columbia 
Code. The Commission has already begun implementing the street time 
forfeiture provisions of the Act for revocation decisions issued on or 
after May 20, 2009, the Act's effective date. As noted above, the Act 
does not disturb the street time forfeiture decisions for DC offenders 
issued by the Commission before May 20, 2009, and it allows the 
Commission a period of one year to implement the provisions on early 
termination of supervision for those DC parolees who were released 
before the Act's effective date.

Good Cause Finding

    The Commission is making these interim rules effective less than 30 
days from the date of this publication for good cause pursuant to 5 
U.S.C. 553(d)(3). The effective date of the new Act has already passed 
and the Commission must immediately implement the new Act to ensure 
that determinations as to street time credit for revoked parolees are 
made in accordance with the Act, and that these parolees do not 
improperly forfeit sentence credit. Delaying the effective date of the 
rules would not serve the public interest regarding the fair 
administration of criminal laws, and is not necessary to prepare either 
the general public or other components of the DC criminal justice 
system for the implementation of the new Act. Almost

[[Page 28604]]

all of the changes required by the Act will be matters for the internal 
administration of the Commission's functions.

Executive Order 12866

    The U. S. Parole Commission has determined that these interim rules 
do not constitute significant rules within the meaning of Executive 
Order 12866.

Executive Order 13132

    These regulations 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, these rules 
do not have sufficient federalism implications requiring a federalism 
Assessment.

Regulatory Flexibility Act

    The interim rules 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 rules 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 (Subtitle 
E--Congressional Review Act)

    These rules are not ``major rules'' 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 
rules 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, these are 
rules of agency practice or procedure that do not substantially affect 
the rights or obligations of non-agency parties, and do 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.

The Interim Rule

    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)(l) and 4204(a)(6).

0
2. The table of contents for 28 CFR part 2 is amended by revising the 
headings for Sections 2.95 and 2.96 to read as follows:

Part 2-PAROLE, RELEASE, SUPERVISION AND RECOMMITMENT OF PRISONERS, 
YOUTH OFFENDERS, AND JUVENILE DELINQUENTS

* * * * *

Subpart C-District of Columbia Code: Prisoners and Parolees

* * * * *


Sec.  2.95  Early termination from supervision.


Sec.  2.96  Order of early termination.

* * * * *

0
3. Section 2.43 is revised to read as follows:


Sec.  2.43  Early termination.

    (a)(1) Upon its own motion or upon request of a parolee, the 
Commission may terminate a parolee's supervision, and legal custody 
over the parolee, before the sentence expires.
    (2) The Commission may terminate supervision of a committed youth 
offender after the offender serves one year on supervision. Upon 
terminating supervision before the sentence expires, the Commission 
shall set aside the committed youth offender's conviction and issue a 
certificate setting aside the conviction instead of a certificate of 
termination.
    (b) Two years after releasing a prisoner on supervision, and at 
least annually thereafter, the Commission shall review the status of 
the parolee to determine the need for continued supervision. The 
Commission shall also conduct a status review whenever the supervision 
officer recommends early termination of the parolee's supervision.
    (c) Five years after releasing a prisoner on supervision, the 
Commission shall terminate supervision over the parolee unless the 
Commission determines, after a hearing, that such supervision should 
not be terminated because there is a likelihood that the parolee will 
engage in conduct violating any criminal law. If the Commission does 
not terminate supervision under this paragraph, the parolee may request 
a hearing annually thereafter, and the Commission shall conduct an 
early termination hearing at least every two years.
    (d) In calculating the two-year and five-year periods provided in 
paragraphs (b) and (c) of this section, the Commission shall not 
include any period of parole before the most recent release, or any 
period served in confinement on any other sentence.
    (e) A parolee may appeal an adverse decision under paragraph (b) of 
this section under Sec.  2.26 or Sec.  2.27 as applicable.
    (f) If the case is designated for the original jurisdiction of the 
Commission, a decision to terminate supervision under paragraphs (a)(2) 
and (b) of this section, or a decision to terminate or continue 
supervision under paragraph (c) of this section shall be made under the 
provisions of Sec.  2.17.
    (g)(1) In determining whether to grant early termination from 
supervision, the Commission shall consider the guidelines of this 
paragraph. The guidelines are advisory and the Commission may disregard 
the outcome indicated by the guidelines based on case-specific factors. 
Termination of supervision is indicated if the parolee:
    (A) Has a salient factor score in the very good risk category and 
has completed two continuous years of supervision free from an incident 
of new criminal behavior or serious parole violation; or
    (B) Has a salient factor score in a risk category other than very 
good and has completed three continuous years of supervision free from 
an incident of new criminal behavior or serious parole violation.
    (2) As used in this paragraph, the term ``an incident of new 
criminal behavior or serious parole violation'' includes a new arrest 
or report of a parole violation if supported by substantial evidence of 
guilt, even if no conviction or parole revocation results. The 
Commission shall not terminate supervision of a parolee until it 
determines the disposition of a pending criminal charge.
    (h) Case-specific factors that may justify a departure either above 
or below the early termination guidelines may relate to the current 
behavior of the parolee, or to the parolee's background and criminal 
history.

0
4. Section 2.65 is amended by revising paragraph (i) to read as 
follows:

[[Page 28605]]

Sec.  2.65  Paroling policy for prisoners serving aggregate U.S. and DC 
Code sentences.

* * * * *
    (i) Forfeiture of parole time. All time on parole shall be 
forfeited if required under Sec.  2.52(c) and Sec.  2,105(d) of these 
regulations. If not, the Commission shall divide the total time on 
parole according to the proportional relationship of the DC sentence to 
the U.S. sentence, and shall order the forfeiture of the portion 
corresponding to the DC sentence pursuant to Sec.  2.105(d). For 
example, if the parolee is serving a two-year DC Code sentence and a 
three-year U.S. Code sentence, the DC sentence is two fifths, or 40 
percent, of the aggregate sentence (five years). If the parolee was on 
parole 100 days and parole is revoked for a misdemeanor conviction, a 
period of 40 days is subject to possible forfeiture under Sec.  
2.105(d).

0
5. Section 2.74 is amended by revising the third sentence of paragraph 
(c) to read as follows:


Sec.  2.74  Decision of the Commission.

* * * * *
    (c) * * *
    A decision terminating a parolee early from supervision shall also 
be based on the concurrence of two Commissioners.
* * * * *

0
6. Section 2.92 is amended by revising paragraphs (a), (c), and (d) to 
read as follows:


Sec.  2.92  Jurisdiction of the Commission.

    (a) The jurisdiction of the Commission over a parolee shall expire 
on the date of expiration of the maximum term or terms for which he was 
sentenced, or upon the early termination of supervision as provided in 
Sec.  2.95, subject to the provisions of this subpart relating to 
warrant issuance, time in absconder status, and the forfeiture of time 
on parole in the case of revocation.
    (b) * * *
    (c) When the parolee's sentence expires, the supervision officer 
shall issue a certificate of discharge to the parolee and to such other 
agencies as may be appropriate. If the Commission terminates the 
parolee's supervision early under Sec.  2.95, the Commission shall 
issue a certificate of discharge for delivery to the parolee by the 
supervision officer.
    (d) An order of revocation shall not affect the Commission's 
jurisdiction to grant and enforce any further periods of parole, up to 
the date of expiration of the offender's maximum term, or upon the 
early termination of supervision under Sec.  2.95.

0
7. Section 2.95 is revised to read as follows:


Sec.  2.95  Early termination from supervision.

    (a) (1) Upon its own motion or upon request of a parolee, the 
Commission may terminate a parolee's supervision, and legal custody 
over the parolee, before the sentence expires. (2) The Commission may 
terminate supervision of a committed youth offender after the offender 
serves one year on supervision. Upon terminating supervision before the 
sentence expires, the Commission shall set aside the committed youth 
offender's conviction and issue a certificate setting aside the 
conviction instead of a certificate of termination.
    (b) Two years after releasing a prisoner on supervision, and at 
least annually thereafter, the Commission shall review the status of 
the parolee to determine the need for continued supervision. The 
Commission shall also conduct a status review whenever the supervision 
officer recommends early termination of the parolee's supervision.
    (c) Five years after releasing a prisoner on supervision, the 
Commission shall terminate supervision over the parolee unless the 
Commission determines, after a hearing, that such supervision should 
not be terminated because there is a likelihood that the parolee will 
engage in conduct violating any criminal law. If the Commission does 
not terminate supervision under this paragraph, the parolee may request 
a hearing annually thereafter, and the Commission shall conduct an 
early termination hearing at least every two years.
    (d) In calculating the two-year and five-year periods provided in 
paragraphs (b) and (c) of this section, the Commission shall not 
include any period of parole before the most recent release, or any 
period the parolee served in confinement on any other sentence.
    (e)(1) In determining whether to grant early termination from 
supervision, the Commission shall consider the guidelines of this 
paragraph. The guidelines are advisory and the Commission may disregard 
the outcome indicated by the guidelines based on case-specific factors. 
Termination of supervision is indicated if the parolee:
    (A) Has a salient factor score in the very good risk category and 
has completed two continuous years of supervision free from an incident 
of new criminal behavior or serious parole violation; or
    (B) has a salient factor score in a risk category other than very 
good and has completed three continuous years of supervision free from 
an incident of new criminal behavior or serious parole violation.
    (2) As used in this paragraph, the term ``an incident of new 
criminal behavior or serious parole violation'' includes a new arrest 
or report of a parole violation if supported by substantial evidence of 
guilt, even if no conviction or parole revocation results. The 
Commission shall not terminate supervision of a parolee until it 
determines the disposition of a pending criminal charge.
    (3) Case-specific factors that may justify a departure either above 
or below the early termination guidelines may relate to the current 
behavior of the parolee, or to the parolee's background and criminal 
history.

0
8. Section 2.96 is revised to read as follows:


Sec.  2.96  Order of early termination.

    When the Commission orders early termination from supervision, the 
Commission shall issue a certificate to the parolee granting a full 
discharge from the sentence. The termination and discharge shall take 
effect only upon the actual delivery of the certificate of discharge to 
the parolee by the supervision officer, and may be rescinded for good 
cause at any time before such delivery.

0
9. Section 2.97 is amended by revising the first clause of the first 
sentence to read as follows:


Sec.  2.97  Withdrawal of order of release.

    If, after an order for release from active supervision under former 
Sec.  2.95 has been issued by the Commission,
* * * * *

0
10. Section 2.98 is amended in paragraph (e) by removing ``DC Code 24-
406(a)'' and adding in its place ``DC Code 24-406(c).''

0
11. Section 2.100 is amended in paragraph (d)(2) by removing ``DC Code 
24-406(a)'' and adding in its place ``DC Code 24-406(c).''

0
12. Section Sec.  2.105 is amended by revising paragraphs (b), (d), and 
(e) to read as follows: 2.105 Revocation decisions.
    (a) * * *
    (b) If parole is revoked under this section, the Commission shall 
determine whether immediate reparole is warranted or whether the 
parolee should be returned to prison. If the parolee is returned to 
prison, the Commission shall also determine whether to set a 
presumptive release date pursuant to Sec.  2.81.
    (c) * * *
    (d)(1) Except as provided in paragraphs (d)(2) and (d)(3), the

[[Page 28606]]

Commission shall grant a revoked parolee credit toward completion of 
the sentence for all time served on parole.
    (2)(A) The Commission shall forfeit credit for the period of parole 
if a parolee is convicted of a crime committed during a period of 
parole and that is punishable by a term of imprisonment of more than 
one year.
    (B) If the crime is punishable by any other term of imprisonment, 
the Commission shall forfeit credit for the period of parole unless the 
Commission determines that such forfeiture is not necessary to protect 
the public welfare. In making this decision, the Commission shall 
consider the nature and circumstances of the violation behavior, the 
history and characteristics of the offender, including the offender's 
supervision history, and other available and relevant information.
    (3) If, during the period of parole, a parolee intentionally 
refuses or fails to respond to any reasonable request, order, summons, 
or warrant of the Commission or any member or agent of the Commission, 
the Commission may order that the parolee not receive credit for the 
period of time that the Commission determines that the parolee failed 
or refused to respond to such a request, order, summons, or warrant.
    (4) The provisions of this paragraph shall apply only to any period 
of parole that is being served on or after May 20, 2009, and shall not 
apply to any period of parole that was revoked before that date.
    (e) Notwithstanding paragraphs (a) through (d) of this section, 
prisoners committed under the Federal Youth Corrections Act shall not 
be subject to forfeiture of time on parole, but shall serve 
uninterrupted sentences from the date of conviction except as provided 
in Sec.  2.10(b) and (c). DC Code 24-406(c) and paragraphs (a) through 
(d) of this section are fully applicable to prisoners serving sentences 
under the DC Youth Rehabilitation Act.
* * * * *

0
13. Section Sec.  2.208 is revised to read as follows:


Sec.  2.208  Termination of a term of supervised release.

    (a)(1) The Commission may terminate a term of supervised release 
and discharge the releasee from supervision after the expiration of one 
year of supervised release, if the Commission is satisfied that such 
action is warranted by the conduct of the releasee and the interest of 
justice.
    (2) Upon terminating supervision of a committed youth offender 
before the sentence expires, the Commission shall set aside the 
committed youth offender's conviction and issue a certificate setting 
aside the conviction instead of a certificate of discharge.
    (b) Two years after a prisoner is released on supervision, and at 
least annually thereafter, the Commission shall review the status of 
the releasee to determine the need for continued supervision. The 
Commission shall also conduct a status review whenever the supervision 
officer recommends termination of the supervised release term. If the 
term of supervised release imposed by the court is two years or less, 
the Commission shall consider termination of supervision only if 
recommended by the releasee's supervision officer.
    (c) In calculating the two-year period provided in paragraph (b) of 
this section, the Commission shall not include any period of release 
before the most recent release, or any period served in confinement on 
any other sentence.
    (d) (1) In deciding whether to terminate supervised release, the 
Commission shall consider the guidelines of this paragraph. The 
guidelines are advisory and the Commission may disregard the outcome 
indicated by the guidelines based on case specific factors. Termination 
of supervision is indicated if the releasee:
    (A) Has a salient factor score in the very good risk category and 
has completed two continuous years of supervision free from an incident 
of new criminal behavior or serious release violation; or
    (B) Has a salient factor score in a risk category other than very 
good and has completed three continuous years of supervision free from 
an incident of new criminal behavior or serious release violation.
    (2) As used in this paragraph, the term ``an incident of new 
criminal behavior or serious release violation'' includes a new arrest 
or report of a release violation if supported by substantial evidence 
of guilt, even if no conviction or release revocation results. The 
Commission shall not terminate supervision of a releasee until it 
determines the disposition of a pending criminal charge.
    (3) Case-specific factors that may justify a departure either above 
or below the early termination guidelines may relate to the current 
behavior of the releasee, or to the releasee's background and criminal 
history.

    Dated: June 8, 2009.
Isaac Fulwood,
Chairman, U.S. Parole Commission.
[FR Doc. E9-14157 Filed 6-16-09; 8:45 am]
BILLING CODE 4410-31-M