[Federal Register Volume 80, Number 170 (Wednesday, September 2, 2015)]
[Rules and Regulations]
[Pages 52982-52984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21094]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

[Docket No. UPSC 2014-01]


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: Final rule.

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SUMMARY: The United States Parole Commission is revising its rules 
pertaining to decisions to revoke terms of supervision without a 
revocation hearing. The rule allows for a releasee charged with 
administrative violations or specifically identified misdemeanor crimes 
to apply for a prison sanction of 8 months or less. If a releasee 
qualifies and applies for a sanction under this section, the Commission 
may approve a revocation decision that includes no more than 8 months 
of imprisonment without using its normal guidelines for decision-making

DATES: Effective September 2, 2015.

FOR FURTHER INFORMATION CONTACT: Stephen J. Husk, Case Operations 
Administrator U.S. Parole Commission, 90 K Street NE., Washington, DC 
20530, telephone (202) 346-7061. Questions about this publication are 
welcome, but inquiries concerning individual cases cannot be answered 
over the phone.

SUPPLEMENTARY INFORMATION: 

Background

    In the notice of proposed rulemaking published at 79 FR 47603-
47605, we discussed the possible revision of our rules pertaining to 
decisions to revoke terms of supervision without a revocation hearing 
for persons charged with only administrative violations or specifically 
identified misdemeanor crimes. We refer you to the previous publication 
for a review of the background material. In the notice of proposed 
rulemaking, we encouraged the public to comment on our proposed changes 
and we received two written comments from interested persons and/or 
organizations. However, only one public comment, submitted by the 
Public Defender Service for the District of Columbia, suggested 
modifications to the proposed rule.

Public Comment From the Public Defender Service for the District of 
Columbia (PDS)

    PDS recommends that we develop a new risk assessment tool to be 
applied to all residents of the District of Columbia. While we may 
review the effectiveness of risk assessment tools used for all cases 
under our jurisdiction, we believe that the final rule for special 
procedures for swift and short-term sanctions should be extended only 
to those persons who commit low level violations of supervision.
    Paragraph (d)(3) of the proposed rule stated that, notwithstanding 
our general policy, when revoking supervised release for administrative 
violations under this paragraph, we may impose new terms of supervised 
release that are less than the maximum authorized term. PDS recommends 
that we provide training to our Hearing Examiners to impose shorter 
terms of supervision even when revoking supervised release for other 
types of violations.
    Based on the comments, the final rule omits the language from 
paragraph (d)(3) of the proposed rule. We are permitted to impose 
periods of supervised release that are less than the maximum authorized 
term for all

[[Page 52983]]

supervised release violators. Therefore, the language from paragraph 
(d)(3) of the proposed rule is unnecessary and inaccurately implies 
that we are not permitted to impose shorter periods of supervised 
release when revoking for other types of violations.
    PDS suggests that the inclusion of the proposed rule under the 
section entitled Revocation Decision Without a Hearing inaccurately 
implies that a person sanctioned under this paragraph is waiving any 
type of hearing and not just a revocation hearing. We believe that the 
proposed rule was included in the correct section. All other processes 
for revocation without a hearing outlined in Sec.  2.66 refer to 
persons that waive a revocation hearing after a probable cause 
determination has been made. The procedures set forth in paragraph (d) 
are the same in that regard.
    PDS expressed a concern that persons arrested outside the District 
of Columbia will not receive legal advice when deciding to apply for a 
sanction under paragraph (d)(1) of the proposed rule. Because all 
alleged violators of supervision are provided with the right to request 
an attorney at the probable cause proceeding, we are satisfied that all 
alleged violators who qualify for sanction under this paragraph will be 
provided with an attorney if they want one.
    The proposed rule allows for a prison sanction of ``no more than 8 
months'' for persons sentenced pursuant to Sec.  2.66(d). During the 
pilot project that preceded publishing of the proposed rule, we issued 
policy statements to guide our Hearing Examiners as to the expected 
length of the prison term within the 8 month range. The policy 
statements provided a guide as to the length of the prison sanction 
based solely on the type of administrative violation that had occurred. 
However, the policy statements were not included in the proposed rule. 
PDS commented that failure to include these policy statements is 
inherently unfair because it punishes all administrative violations the 
same.
    We have determined that it is not necessary to include the policy 
statements in the final rule. We have decided over 1,000 cases under 
these procedures since the pilot project began in 2012. A review of the 
data for those cases showed that we were not following the policy 
statements in a high number of cases. When the length of the prison 
term differed from what was suggested by the policy statements, the 
term was usually shorter than what was suggested. This included the 
decision to sentence over 200 alleged violators who had absconded from 
supervision to time served despite the policy statement that suggested 
that they serve between 5 and 8 months. There are a number of factors 
other than the type of violation that we consider in determining the 
length of a prison sanction. Based on our extensive experience in 
sanctioning alleged violators during the pilot project, we believe we 
can fairly consider all persons that qualify for a sanction under this 
section without using policy statements that are based solely on the 
type of administrative violation that has occurred.
    PDS requested that the Commission eliminate or modify the 
requirement in paragraph (d)(1)(v) of the proposed rule that an alleged 
violator cannot be sanctioned twice under this section. We find this to 
be an appropriate requirement and consistent with the alleged 
violator's agreement to modify his or her non-compliant behavior to 
successfully complete any remaining period of supervision as indicated 
in (d)(1)(iv).
    The proposed rule did not include any method for an alleged 
violator to ask the Commission to reconsider a decision to disapprove a 
sanction under this paragraph or to approve a sanction that is greater 
than recommended by a Hearing Examiner. It also did not require a 
Commissioner, when disapproving a case that qualifies, to provide a 
written explanation. PDS requested that the final rule include these 
procedures.
    We have determined that these procedures are not necessary. To be 
sanctioned under this paragraph, an alleged violator must agree to a 
sanction of ``no more than 8 months.'' Thus, we do not believe it is 
appropriate to allow that same individual the right to petition the 
Commission to reconsider a decision that is within the scope of the 
written agreement. Also, a decision not to approve an alleged violator 
for a sanction under this paragraph only means that the Commission has 
decided that a revocation hearing will be conducted. If the alleged 
violator is not satisfied with the result of that hearing, he or she 
has the right to appeal the decision.

Executive Orders 12866 and 13563

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulation Planning and Review,'' section 
1(b), Principles of Regulation, and in accordance with Executive Order 
13565, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation. The Commission has determined that 
this rule is not a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), Regulatory Planning and Review, and 
accordingly this rule has not been reviewed by the Office of Management 
and Budget.

Executive Order 13132

    This rule 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).

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 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 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 practice or 
procedure 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 52984]]

The Final Rule

    Accordingly, the U.S. Parole Commission adopts the following 
amendments 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. In Sec.  2.66, add paragraph (d) to read as follows:


Sec.  2.66  Revocation decision without hearing.

    (d) Special procedures for swift and short-term sanctions for 
administrative violations of supervision. (1) An alleged violator may, 
at the time of the probable cause hearing or preliminary interview, 
waive the right to a revocation hearing and apply in writing for an 
immediate prison sanction of no more than 8 months. Notwithstanding the 
reparole guidelines at Sec.  2.21, the Commission will consider such a 
sanction if--
    (i) The releasee has not already postponed the initial probable 
cause hearing/preliminary interview by more than 30 days;
    (ii) The charges alleged by the Commission do not include a 
violation of the law;
    (iii) The releasee has accepted responsibility for the violations;
    (iv) The releasee has agreed to modify the non-compliant behavior 
to successfully complete any remaining period of supervision; and
    (v) The releasee has not already been sanctioned pursuant to this 
paragraph (d)(1).
    (2) A sanction imposed pursuant to paragraph (d)(1) of this section 
may include any other action authorized by Sec.  2.52, Sec.  2.105, or 
Sec.  2.218.
    (3) Any case not approved by the Commission for a revocation 
sanction pursuant to paragraph (d)(1) of this section shall receive the 
normal revocation hearing procedures including the application of the 
guidelines at Sec.  2.21.
    Note to paragraph (d). For purpose of paragraph (d)(1) of this 
section only, the Commission will consider the sanctioning of the 
following crimes as administrative violations if they have been charged 
only as misdemeanors:
1. Public Intoxication
2. Possession of an Open Container of Alcohol
3. Urinating in Public
4. Traffic Violations
5. Disorderly Conduct/Breach of Peace
6. Driving without a License or with a revoked/suspended license
7. Providing False Information to a Police Officer
8. Loitering
9. Failure to Pay court ordered support (i.e. child support/alimony)
10. Solicitation/Prostitution
11. Resisting Arrest
12. Reckless Driving
13. Gambling
14. Failure to Obey a Police Officer
15. Leaving the Scene of an Accident (only if no injury occurred)-
16. Hitchhiking
17. Vending without a License
18. Possession of Drug Paraphernalia (indicating purpose of personal 
use only)
19. Possession of a Controlled Substance (for personal use only)

    Dated: August 17, 2015.
J. Patricia Wilson Smoot,
Chairman, United States Parole Commission.
[FR Doc. 2015-21094 Filed 9-1-15; 8:45 am]
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