[Federal Register Volume 83, Number 224 (Tuesday, November 20, 2018)]
[Rules and Regulations]
[Pages 58499-58500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25103]



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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

[Docket No. USPC-2018-01]


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 
regulations to account for a membership of fewer than three 
Commissioners.

DATES: This regulation is effective November 20, 2018.

FOR FURTHER INFORMATION CONTACT: Helen H. Krapels, General Counsel, 
U.S. Parole Commission, 90 K Street NE, Third Floor, 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 modifying its 
voting procedures to account for commissioner unavailability. The 
recommended modifications retain a second Commissioner review procedure 
in cases where the first Commissioner voting on the case has a 
significant disagreement with the panel recommendation. The Commission 
is making these changes permanent even though its membership may be 
increased in the future.
    With regard to the problem of resolving a tie vote, the rule 
revisions incorporate the principle that the consensus of all agency 
decision-makers in a given case, Commissioners and examiners, is best 
represented by the Commissioner's vote that is in agreement with the 
hearing examiner panel. If no Commissioner vote is in agreement with 
the hearing examiner panel, the vote that is the most favorable to the 
offender will be the Commission's decision.
    The revision of Sec.  2.63 resolves split decisions for the variety 
of decisions found in the Commission's rules, including original 
jurisdiction cases, NAB appeals, and reopenings.
    The revisions at Sec. Sec.  2.68, 2.74, and 2.76, modify the 
present two-vote requirements in Transfer Treaty Determinations, D.C. 
parole decisions, and decisions to reduce the minimum term for D.C. 
Code offenders sentenced to parolable sentences by providing that these 
may be made by one Commissioner, with a second vote required only if 
the first Commissioner disagrees with the panel recommendation. A 
conforming amendment to the rule on miscellaneous provisions at 28 CFR 
2.89 is also made. The Commission is publishing the revisions as final 
rules without seeking public comment because they are procedural in 
nature and do not establish any new substantive criteria for making 
parole or release decisions.

Executive Orders 12866 and 13563

    These regulations have 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 
these rules are not a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), Regulatory Planning and Review, and 
accordingly these rules have not been reviewed by the Office of 
Management and Budget.

Executive Order 13132

    These rules 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

    These 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

    These 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 
they 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)

    None of these rules are 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). 
These 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 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.

The Final Rule

    Accordingly, the U.S. Parole Commission adopts the following 
revisions 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.  2.63 to read as follows:


Sec.  2.63  Quorum and voting requirements.

    (a) A quorum of the Commission consists of the majority of those 
Commissioners holding office at the time an action is under 
consideration. Any action authorized by law may be decided by the 
majority vote of the Commissioners holding office at the time the 
action is taken. Voting requirements in parole decision-making are 
established in other provisions of this part, including paragraphs (b) 
and (c) of this section.
    (b)(1) In the event of a tie vote of the Commission's membership on 
an issue that requires the vote or authorization of the Commission, the 
issue that is the subject of the vote is not adopted by the Commission.
    (2) If the matter that is the subject of the tie vote is whether to 
reopen or reconsider a previous decision of the Commission, the 
previous decision shall remain in effect. This includes decisions as to 
whether to rescind a parole date, to revoke parole or supervised 
release, or to grant parole after parole has been denied under 18 
U.S.C. 4206(d).
    (3) If the matter that is the subject of a tie vote is whether to 
grant parole at

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any initial hearing, 15-year reconsideration hearing, or D.C. Code 
rehearing, that decision shall be the Commissioner vote that is in 
agreement with the hearing examiner panel. If there is a tie vote and 
no commissioner agrees with the hearing examiner panel, then the 
decision will be the Commissioner's vote most favorable to the 
prisoner.
    (4) If the matter that is the subject of the tie vote is whether to 
grant or deny release at the two-thirds date of the sentence per 18 
U.S.C. 4206(d), or to terminate parole after the parolee has been on 
parole for 5 years per 18 U.S.C. 4211(c) and D.C. Code sec. 24-404(a-
1)(3), the prisoner must be granted release under the statute or parole 
must be terminated respectively.
    (5) If the matter that is the subject of a tie vote is a decision 
under appellate review per Sec.  2.26, if no concurrence is reached, 
the decision under appellate review shall be considered affirmed. This 
rule also applies to decisions under Sec.  2.17 to remove a case from 
the original jurisdiction of the Commission.
    (6) The Commission may re-vote on a case disposition to resolve a 
tie vote or other impasse in satisfying a voting requirement of these 
rules.
    (c) If there is only one Commissioner holding office, all 
provisions in these rules requiring concurring votes or resolving split 
decisions are suspended until the membership of the Commission is 
increased, and any action may be taken by one Commissioner.

0
3. Revise Sec.  2.68(i)(1) to read as follows:


Sec.  2.68  Prisoners transferred pursuant to treaty.

* * * * *
    (i) * * *
    (1) The Commission shall render a decision as soon as practicable 
and without unnecessary delay. Upon review of the examiner panel 
recommendation, the Commissioner may make the decision by concurring 
with the panel recommendation. If the Commissioner does not concur, the 
Commissioner shall refer the case to another Commissioner and the 
decision shall be made on the concurring votes of two Commissioners. 
The decision shall set a release date and a period and conditions of 
supervised release. If the Commission determines that the appropriate 
release date under 18 U.S.C. 4106A is the full term date of the foreign 
sentence, the Commission will order the transferee to ``continue to 
expiration.''
* * * * *

0
4. Revise Sec.  2.74(c) to read as follows:


Sec.  2.74   Decision of the Commission.

* * * * *
    (c) All decisions may be made by one Commissioner, except that if 
the Commissioner does not concur with a panel recommendation, the case 
shall be referred to another Commissioner for a vote and the decision 
shall be based on the concurring votes of two Commissioners.

0
5. Revise Sec.  2.76(b) to read as follows:


Sec.  2.76  Reduction in minimum sentence.

* * * * *
    (b) A prisoner's request under this section may be approved on the 
vote of one Commissioner.
* * * * *

0
6. Amend Sec.  2.89 by adding an entry for ``2.63'' in numerical order 
to read as follows:


Sec.  2.89  Miscellaneous provisions.

* * * * *
    2.63 (Quorum)
* * * * *

Patricia K. Cushwa,
Chairman (Acting), U.S. Parole Commission.
[FR Doc. 2018-25103 Filed 11-19-18; 8:45 am]
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