[Federal Register Volume 78, Number 35 (Thursday, February 21, 2013)]
[Proposed Rules]
[Pages 11998-12002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03942]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

[Docket No. USPC-2013-01]


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: Notice of proposed rulemaking.

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SUMMARY: The United States Parole Commission proposes to revise its 
rules describing the conditions of release set for persons on 
supervision. The revision is part of our ongoing effort to make our 
rules easier to understand for those persons affected by the rules and 
other interested persons and organizations. We also propose to add new 
procedures for imposing special conditions for sex offenders, and to 
fill a gap left by an earlier rule change in 2003 regarding the 
administrative appeals that may be filed by District of Columbia 
offenders on supervised release.

DATES: Submit comments on or before April 22, 2013.

ADDRESSES: Submit your comments, identified by docket identification 
number USPC-2013-01 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Mail: Office of the General Counsel, U.S. Parole Commission, 
attention: USPC Rules Group, 90 K Street, NE., Washington, DC 20530.
    3. Fax: (202) 357-1083.

FOR FURTHER INFORMATION CONTACT: Office of the General Counsel, U.S. 
Parole Commission, 90 K Street, NE., Washington, DC 20530, telephone 
(202) 346-7030. Questions about this publication are welcome, but 
inquiries concerning individual cases cannot be answered over the 
telephone.

SUPPLEMENTARY INFORMATION: The Parole Commission is responsible for 
paroling those federal and District of Columbia offenders serving 
parole-eligible sentences and for monitoring the supervision of paroled 
offenders and DC offenders whose sentences require supervised release 
after serving their prison terms. We impose conditions of release for 
parolees and releasees pursuant to the authority granted by statutory 
law. For federal parolees, that authority is found at 18 U.S.C. 4209. 
For District of Columbia parolees, we are required to comply with the 
parole laws of the District of Columbia (DC Code 24-131(c)), and the 
parole law at DC Code 24-404(a) states that the Commission may parole a 
prisoner ``upon such terms and conditions as the Commission shall from 
time to time prescribe.'' For District of Columbia offenders on 
supervised release, our authority to impose release conditions is 
derived from both DC and federal law. DC Code 24-403.01(b)(6) 
(referencing 18 U.S.C. 3583(d)-(i)).
    Through the conditions of release we provide guides for the 
offender's conduct while under supervision. Some conditions are 
required by law. We impose other conditions based on policy 
determinations using the criteria set by the statutes cited above. We 
impose and enforce the release conditions primarily to protect the 
public from a recurrence of criminal activity by the offender and to 
encourage the offender's successful re-entry into the community. The 
conditions are listed on a certificate of release given to the offender 
at the outset of the supervision term. If we change the conditions of 
release while the offender is on parole or supervised release, we 
advise the offender of the new condition by a notice of action. The 
offender's supervision officer is responsible for the day-to-day 
implementation of the release conditions. If the offender violates the 
release conditions, the consequences may range from an informal 
reprimand from the supervision officer to the offender's return to 
prison through the revocation process. Given the serious consequences 
that may follow from a violation of release conditions and the

[[Page 11999]]

societal benefit from the offender's successful re-entry into the 
community, release conditions should give clear directions to the 
offender of the rules he must follow under supervision. On the other 
hand, the offender has the responsibility of asking for guidance from 
his supervision officer when the offender has questions concerning the 
application of a particular condition to his conduct.
    The conditions of release may be divided into three broad 
categories: (1) Conditions that facilitate the monitoring and 
supervision of the offender; (2) conditions that prohibit certain 
activities; and (3) conditions that are intended to assist the offender 
in reintegrating into the community and acting as a law-abiding 
citizen. Conditions on periodic reporting by the offender to the 
supervision officer and the reporting of a change of residence or 
employment fall into the first category. The second category includes 
warnings not to engage in criminal activity, use illegal drugs or 
possess a weapon. Examples of conditions in the third category are 
conditions that the offender must participate in a domestic violence 
prevention program, work regularly if able to do so and pay any court-
ordered financial obligations. These general conditions of release all 
meet the requirements of statutory law that the conditions must be 
reasonably related to the offender's crime or personal history and 
characteristics, or the need to safeguard the public welfare. In 
addition to these general conditions of release, we frequently impose 
one or more special conditions that again must be consistent with our 
statutory authority. Such a special condition may be a requirement to 
temporarily reside in a community corrections center, a restriction 
from certain employment or a requirement that the offender participate 
in substance abuse treatment. In imposing a special condition for a DC 
supervised releasee, we must consider whether the condition poses no 
greater deprivation of liberty than is reasonably necessary to satisfy 
the goals of deterrence, protection of the public and offender 
rehabilitation. Though this same requirement is not present for setting 
a special condition of release for parolees, we acknowledge that this 
analysis is beneficial for these offenders as well.
    We may impose a special condition of release before the offender's 
release from custody or sometime thereafter. In some cases, a change of 
circumstances or a deterioration of the offender's progress under 
supervision calls for a modification of release conditions during the 
supervision period. Unless an immediate implementation of the new 
condition is required to protect the public or assist the offender, the 
offender has a 10-day period to object in writing to a special 
condition requested by the supervision officer and we will postpone 
implementation of the condition until we consider the objections. In 
the proposed rules, we provide additional procedures when we are 
considering special conditions of release for some sex offenders on 
parole or supervised release. For an offender convicted of a sex 
offense, we may impose a special condition for sex offender evaluation 
and treatment after using the notice and 10-day comment period noted 
above. If the person has not been convicted of a sex offense and there 
is information that indicates an evaluation for sex offender treatment 
is reasonably necessary to protect the public, deter the offender from 
further crimes or give the offender appropriate care, we may first 
impose a special condition for sex offender evaluation after using the 
notice and 10-day comment period procedure. Following the evaluation, 
if we determine that sex offender treatment may be necessary and the 
offender objects to the proposed treatment, we will conduct a hearing 
for the offender to review the need for sex offender treatment. At the 
hearing, the offender will have the right to counsel, the opportunity 
to testify and present witnesses and evidence, and, in some cases, the 
right to confront and cross-examine a person who has given information 
regarding the proposed imposition of the treatment condition. We will 
determine whether the opportunity for confrontation and cross-
examination should be granted to the offender on a case-by-case basis. 
In every case, we will expect that the supervision officer who requests 
the special condition on sex offender treatment, or an appropriate 
substitute officer, will be present at the hearing for possible 
questioning. After the hearing, we will make written findings 
concerning the decision on imposing the treatment condition. There may 
be other circumstances in which we may follow the same hearing 
procedure if we intend to impose a particular condition of release for 
a sex offender.
    The proposed rules provide that any offender--whether on parole or 
supervised release, or serving a DC Code or U.S. Code sentence--has the 
right to appeal the modification of release conditions to the 
Commission within 30 days of the notice of action, with the limits set 
out in the proposed rules (i.e., appeal is not available if the 
offender accepted an expedited revocation offer or asked for the 
modified conditions). The proposed rules thereby expand the 
availability of an administrative appeal to DC parolees regarding post-
release modifications of release conditions. The opportunity for this 
appeal is not required by statutory law. We are limiting the 
availability of the appeal for D.C parolees to post-release 
modifications so that we do not invite more appeals than the Commission 
can reasonably process. For a DC offender on supervised release, the 
proposed rules clarify that the supervised releasee has the procedural 
right of appeal that is guaranteed by DC Code 24-403.01(b)(6)(A) for 
imposing or modifying release conditions. This procedural right for a 
DC supervised releasee was not addressed in our last rulemaking on 
release conditions in 2003.

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 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

[[Page 12000]]

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 Proposed Rules

    Accordingly, the U. S. Parole Commission proposes to adopt 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.  2.40 paragraph (b)(1) to read as follows:


Sec.  2.40  Conditions of Release.

* * * * *
    (b) Special conditions of release. (1) The Commission may impose a 
condition other than a condition described in Sec.  2.204(a)(3)-(6) if 
it decides that the condition is reasonably related to: the nature and 
circumstances of the offense and the releasee's history and 
characteristics; or the need to deter the releasee from criminal 
conduct; or the need to protect the public from further crimes; or the 
need to provide the releasee with training or correctional treatment or 
medical care. In choosing a condition the Commission will also consider 
whether the condition involves no greater deprivation of liberty than 
is reasonably necessary for the purposes of deterrence of criminal 
conduct, protection of the public from crime and offender 
rehabilitation.
* * * * *
0
3. Revise Sec.  2.85 paragraphs (b) and (c) to read as follows:


Sec.  2.85  Conditions of release.

* * * * *
    (b) Special conditions of release. The Commission may impose a 
condition other than a condition described in Sec.  2.204(a)(3)-( 6) if 
it decides that the condition is reasonably related to: the nature and 
circumstances of the offense and the releasee's history and 
characteristics; or the need to deter the releasee from criminal 
conduct; or the need to protect the public from further crimes; or the 
need to provide the releasee with training or correctional treatment or 
medical care. In choosing a condition the Commission will also consider 
whether the condition involves no greater deprivation of liberty than 
is reasonably necessary for the purposes of deterrence of criminal 
conduct, protection of the public from crime and offender 
rehabilitation.
    (c) Changing conditions of release. The provisions of Sec.  
2.204(c) apply to post-release modifications in release conditions, 
including an appeal under the procedures of Sec.  2.26. Appeal is not 
available for the original imposition of conditions upon parole 
release. An appeal of a modification of release conditions as part of a 
revocation decision is governed by Sec.  2.105(g).
* * * * *
0
4. Revise Sec.  2.204 to read as follows:


Sec.  2.204  Conditions of supervised release.

    (a)(1) General conditions of release and notice by certificate of 
release. All persons on supervision and under our jurisdiction must 
follow the conditions of release described in paragraphs (a) (3)-( 6) 
of this section. These conditions are necessary to satisfy the purposes 
of release conditions stated in 18 U.S.C. 3583(d) and 3553(a). Your 
certificate of release informs you of these conditions and other 
special conditions that we have imposed for your supervision.
    (2) Refusing to sign the certificate of release does not excuse 
compliance. If you refuse to sign the certificate of release, you must 
still follow the conditions listed in the certificate.
    (3) Report your arrival. After you are released from custody, you 
must go directly to the district named in the certificate. You must 
appear in person at the supervision office and report your home address 
to the supervision officer. If you cannot appear in person at that 
office within 72 hours of your release because of an emergency, you 
must report to the nearest CSOSA or U.S. probation office and obey the 
instructions given by the duty officer. If you were initially released 
to the custody of another authority, you must follow the procedures 
described in this paragraph after you are released from the custody of 
the other authority.
    (4) Provide information to and cooperate with the supervision 
officer. (i) Written reports. Between the first and third day of each 
month, you must make a written report to the supervision officer on a 
form provided to you. You must also report to the supervision officer 
as that officer directs. You must answer the supervision officer 
completely and truthfully when the officer asks you for information.
    (ii) Promptly inform the supervision officer of an arrest or 
questioning, or a change in your job or address. Within two days of 
your arrest or questioning by a law-enforcement officer, you must 
inform your supervision officer of the contact with the law-enforcement 
officer. You must also inform your supervision officer of a change in 
your employment or address within two days of the change.
    (iii) Allow visits of the supervision officer. You must allow the 
supervision officer to visit your home and workplace.
    (iv) Allow seizure of prohibited items. You must allow the 
supervision officer to seize any item that the officer reasonably 
believes is an item you are prohibited from possessing (for example, an 
illegal drug or a weapon), and that is in plain view in your 
possession, including in your home, workplace or vehicle.
    (v) Take drug or alcohol tests. You must take a drug or alcohol 
test whenever your supervision officer orders you to take the test.
    (5) Prohibited conduct. (i) Do not violate any law. You must not 
violate any law and must not associate with any person who is violating 
any law.
    (ii) Do not possess a firearm or dangerous weapon. You must not 
possess a firearm or other dangerous weapon or ammunition.
    (iii) Do not illegally possess or use a controlled substance or 
drink alcohol to excess. You must not illegally possess or use a 
controlled substance and you must not drink alcoholic beverages to 
excess. You must stay away from a place where a controlled substance is 
illegally sold, used or given away.
    (iv) Do not leave the district of supervision without permission. 
You must not leave the district of supervision without the written 
permission of your supervision officer.
    (v) Do not associate with a person with a criminal record. You must 
not associate with a person who has a criminal record without the 
permission of your supervision officer.
    (vi) Do not act as an informant. You must not agree to act as an 
informant for any law-enforcement officer without the prior approval of 
the Commission.
    (6) Additional conditions. (i) Work. You must make a good faith 
effort to work regularly, unless excused by your supervision officer. 
You must support your children and any legal dependent. You must 
participate in an employment-readiness program if your supervision 
officer directs you to do so.
    (ii) Pay court-ordered obligations. You must make a good faith 
effort to pay any fine, restitution order, court costs or assessment or 
court-ordered child support or alimony payment. You must

[[Page 12001]]

provide financial information relevant to the payment of such a 
financial obligation when your supervision officer asks for such 
information. You must cooperate with your supervision officer in 
setting up an installment plan to pay the obligation.
    (iii) Participate in a program for preventing domestic violence. If 
the term of supervision results from your conviction for a domestic 
violence crime, and such conviction is your first conviction for such a 
crime, you must attend, as directed by your supervision officer, an 
approved offender-rehabilitation program for the prevention of domestic 
violence if such a program is readily available within 50 miles of your 
home.
    (iv) Register if you are covered by a special offender registration 
law. You must comply with any applicable special offender registration 
law, for example, a law that requires you to register as a sex-offender 
or a gun-offender.
    (v) Provide a DNA sample. You must provide a DNA sample, as 
directed by your supervision officer, if collection of such sample is 
authorized by the DNA Analysis Backlog Elimination Act of 2000.
    (vi) Comply with a graduated sanction. If you are supervised by 
CSOSA, you must comply with the sanction(s) imposed by the supervision 
officer and as established by an approved schedule of graduated 
sanctions. We may decide to begin revocation proceedings for you even 
if the supervision officer has earlier imposed a graduated sanction for 
your alleged violation of a release condition.
    (vii) Inform another person of your criminal record or personal 
history as directed by the supervision officer. You must inform a 
person of your criminal record or personal history if your supervision 
officer determines that your relationship or contact with this person 
may pose a risk of harm to this person. The supervision officer may 
direct you to give this notice and then confirm with the person that 
you obeyed the officer's direction. The supervision officer may also 
give the notice directly to the person.
    (b)(1) Special conditions of release. We may impose a condition of 
release other than a condition described in paragraphs (a)(3)-(6) of 
this section if we determine that imposing the condition is reasonably 
related to: the nature and circumstances of your offense and your 
history and characteristics; or the need to deter you from criminal 
conduct; or the need to protect the public from further crimes; or the 
need to provide you with training or correctional treatment or medical 
care. In choosing a condition we will also consider whether the 
condition involves no greater deprivation of liberty than is reasonably 
necessary for the purposes of deterrence of criminal conduct, 
protection of the public from crime and offender rehabilitation.
    (2) The following are examples of special conditions that we may 
impose--
    (i) That you reside in and/or participate in a program of a 
community corrections center for all or part of the period of 
supervision;
    (ii) That you participate in a drug- or alcohol-treatment program, 
and not use alcohol and other intoxicants at any time;
    (iii) That you remain at home during hours you are not working or 
going to school, and have your compliance with this condition checked 
by telephone or an electronic signaling device; and
    (iv) That you permit a supervision officer to conduct a search of 
your person, or of any building, vehicle or other area under your 
control, at such time as that supervision officer decides, and to seize 
any prohibited items the officer, or a person assisting the officer, 
may find.
    (3) If we require your participation in a drug-treatment program, 
you must submit to a drug test within 15 days of your release and to at 
least two other drug tests, as determined by your supervision officer. 
If we decide not to impose the special condition on drug-treatment, 
because available information indicates you are a low risk for 
substance abuse, this decision constitutes good cause for suspending 
the drug testing requirements of 18 U.S.C. 3583(d).
    (c)(1) Changing conditions of release. We may at any time change or 
add to the conditions of release if we decide that such action is 
consistent with the criteria described in paragraph (b)(1) of this 
section.
    (2) Objecting to the proposed change. If we impose a special 
condition for you upon your release, you may appeal the imposition of 
the special condition as provided in Sec.  2.220 within 30 days of the 
date on the notice of action. If we propose to change your conditions 
after your release, we will notify you of the proposed change, the 
reason for the proposed change and give you 10 days from your receipt 
of the notice to comment on the proposed change. You can waive the 10-
day comment period and agree to the proposed change. You are not 
entitled to the notice and 10-day comment period if: (i) You ask for 
the change; (ii) we make the change as part of a revocation hearing or 
an expedited revocation decision; or (iii) we find that the change must 
be made immediately to prevent harm to you or another person. We will 
make a decision on the proposed change within 21 days (excluding 
holidays) after the 10-day comment period ends, and notify you in 
writing of the decision.
    (3) Appeal of a change in conditions made after release. You may 
appeal the change in your conditons as provided in Sec.  2.220 and 
under the procedures of Sec.  2.26, unless you asked for the change or 
we make the change as part of an expedited revocation decision.
    (d)(1) Imposing special conditions for a sex offender. If your 
criminal record includes a conviction for a sex offense, we may impose 
a special condition that you undergo an evaluation for sex offender 
treatment, and participate in a sex offender treatment program as 
directed by your supervision officer. We will impose the sex offender 
evaluation and treatment conditions using the procedures described in 
paragraph (c) of this section. For purposes of applying the procedures 
described in this section, we use the definitions of ``sex offense'' 
and ``convicted'' listed at 42 U.S.C. 16911(5) and (8).
    (2) (i) If your criminal record does not include a conviction for a 
sex offense, we may decide that your current behavior or your personal 
history shows that you should be evaluated for sex offender treatment. 
In this case, we may impose a special condition requiring an evaluation 
for sex offender treatment using the procedures described in paragraph 
(c) of this section.
    (ii) At the conclusion of the evaluation, if sex offender treatment 
appears warranted and you object to such treatment, we will conduct a 
hearing to consider whether you should be required to participate in 
sex offender treatment. You will be given notice of the date and time 
of the hearing and the subject of the hearing, disclosure of the 
information supporting the proposed action, the opportunity to testify 
concerning the proposed action and to present evidence and the 
testimony of witnesses, the opportunity to be represented by retained 
or appointed counsel and written findings regarding the decision. You 
will have the opportunity to confront and cross-examine persons who 
have given information that is relied on for the proposed action, if 
you ask that these witnesses appear at the hearing, unless we find good 
cause for excusing the appearance of the witness.
    (iii) A hearing is not required if we impose the sex offender 
treatment condition at your request, as part of a revocation hearing or 
an expedited

[[Page 12002]]

revocation decision, or if a hearing on the need for sex offender 
treatment (including a revocation hearing) was conducted within 24 
months of the request for the special condition.
    (iv) In most cases we expect that a hearing conducted under this 
paragraph will be held in person with you, especially if you are 
supervised in the District of Columbia. But we may conduct the hearing 
by videoconference.
    (v) You may appeal the imposition of a special condition requiring 
sex offender treatment as provided in Sec.  2.220 unless you asked for 
the change or we make the change as part of an expedited revocation 
decision.
    (3) Whether your criminal record includes a conviction for a sex 
offense or not, if we propose to impose other restrictions on your 
activities, we will use either the notice and comment procedures of 
paragraph (c) or the hearing procedures of this paragraph, depending on 
a case-by-case evaluation of the releasee's interest and the public 
interest.
    (e) Application of release conditions to an absconder. If you 
abscond from and evade supervision, you will stop the running of your 
supervised release term as of the date of your absconding and you will 
prevent the expiration of your supervised release term. But you will 
still be bound by the conditions of release while you are an absconder, 
even after the original expiration date of your supervised release 
term. We may revoke the term of supervised release for a violation of a 
release condition that you commit before the revised expiration date of 
the supervised release term (the original expiration date plus the time 
you were an absconder).
    (f) Revocation for certain violations of release conditions. If we 
find after a revocation hearing that you have illegally possessed a 
controlled substance, refused to comply with drug testing, possessed a 
firearm or tested positive for illegal controlled substances more than 
three times during one year, we must revoke the term of supervised 
release and impose a prison term as provided at Sec.  2.218. When 
considering mandatory revocation for repeatedly failing a drug test, we 
must consider appropriate alternatives to incarceration.
    (g) Supervision officer guidance. We expect you to understand the 
conditions of release according to the plain meaning of the conditions. 
You should ask for guidance from your supervision officer if there are 
conditions you do not understand and before you take actions that may 
risk violation of your release conditions. The supervision officer may 
instruct you to refrain from particular conduct, or to take specific 
actions or to correct an existing violation of a release condition. If 
the supervision officer directs you to report on your compliance with 
an officer's instruction and you fail to do so, we may consider that 
your failure is itself a release violation.
    (h) Definitions. As used in this section, the term--
    (1) Supervision officer means a community supervision officer of 
the District of Columbia Court Services and Offender Supervision Agency 
or a United States probation officer;
    (2) 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 Superior Court 
of the District of Columbia;
    (3) Approved offender-rehabilitation program means a program that 
has been approved by CSOSA (or the United States Probation Office) in 
consultation with a State Coalition Against Domestic Violence or other 
appropriate experts;
    (4) Certificate of release means the certificate of supervised 
release delivered to the release under Sec.  2.203; and
    (5) Firearm has the meaning given by 18 U.S.C. 921.
    (6) Sex offense means any ``registration offense'' as that term is 
defined at DC Code 22-4001(8) and any ``sex offense'' as that term is 
defined at 42 U.S.C. 16911(5).
0
5. Revise the first sentence of Sec.  2.220 to read as follows:


Sec.  2.220  Appeal.

    A supervised releasee may appeal a decision to revoke supervised 
release, impose a term of imprisonment or a new term of supervised 
release after revocation, or impose or modify a condition of supervised 
release. * * *

Isaac Fulwood,
Chairman, U.S. Parole Commission.
[FR Doc. 2013-03942 Filed 2-20-13; 8:45 am]
BILLING CODE 4410-31-P