[Federal Register Volume 87, Number 213 (Friday, November 4, 2022)]
[Rules and Regulations]
[Pages 66549-66550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23793]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

[Docket No. USPC-2020-04]
RIN 1104-AA09


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 U.S. Parole Commission is modifying a rule that permits it 
to reopen a case and rescind a parole date when the prisoner has 
committed a violation of institutional rules. This modification will 
permit findings by a Residential Reentry Center's Disciplinary 
Committee, as well as findings by the Disciplinary Hearing Officer, as 
conclusive evidence of misconduct for the United States Parole 
Commission to rescind an established parole date.

DATES: This regulation is effective November 4, 2022.

FOR FURTHER INFORMATION CONTACT: Helen H. Krapels, General Counsel, 
U.S. Parole Commission, 90 K Street NE, Third Floor, Washington, DC 
20530, telephone (202) 346-7000. Questions about this publication are 
welcome, but inquiries concerning individual cases cannot be answered 
over the telephone.

SUPPLEMENTARY INFORMATION: In 2021, the United States Parole Commission 
issued an interim rule revising 28 CFR 2.34(a) (86 FR 51271, September 
15, 2021). The comment period expired on November 15, 2021, and the 
Parole Commission did not receive any comments on the change. On 
October 13, 2022, the Parole Commission voted to
    After the U.S. Parole Commission has granted a prisoner a parole 
effective date, but before the prisoner has signed the parole 
certificate, if the prisoner violates the rules of the institution, the 
Parole Commission may reopen the case and schedule a rescission 
hearing. 28 CFR 2.34(a). At that hearing, the Parole Commission may 
consider the report of the Bureau of Prisons (``BOP'') Disciplinary 
Hearing Officer (``DHO'') following a disciplinary hearing, that a 
prisoner has violated disciplinary rules as ``conclusive evidence of 
institutional misconduct,'' and does not need to conduct a full hearing 
to consider witnesses and evidence. 28 CFR 2.34(c). The disciplinary 
hearing conducted by the DHO complies with the procedural due process 
requirements established by the Supreme Court in Wolff v. McDonnell, 
i.e., the prisoner has notice of the alleged violations at least 24 
hours in advance of hearing, a statement of factfinding, the right to 
call witnesses and present documentary evidence. Thus, the Parole 
Commission may rely on the findings and conclusions of the DHO to take 
action in response to the information.
    For prisoners who are housed at a Residential Reentry Center 
(``RRC'') prior to their release and violate the rules, the in-person 
disciplinary hearing is conducted before the RRC's Center Disciplinary 
Committee (``CDC''). Under the BOP's Program Statement 7300.09, the CDC 
then refers its findings to the DHO for review, final action, and 
sanctions. Every court which has examined the procedures established by 
Program Statement 7300.09 has held that hearing procedures used by the 
CDC satisfy the procedural due process requirements established by the 
Supreme Court in Wolff v. McDonnell.
    This rule permits the U.S. Parole Commission to rely on the CDC's 
findings to promote the smooth transition to the community or to return 
a prisoner who has demonstrated that he or she is not ready to be 
released to the community without requiring a second hearing by the DHO 
or a fully contested disciplinary hearing conducted by the U.S. Parole 
Commission.
    The Parole Commission has added a phrase to clarify that parole may 
also be rescinded without a hearing for DC Code prisoners for up to 120 
days. The interim rule only referenced the 90-day rescission of parole 
that pertains to US Code prisoners and the rule will apply 
correspondingly to US Code prisoner and DC Code prisoners under the 
Parole Commission's jurisdiction. The Parole Commission is publishing 
the revised rule at Sec.  2.34(a) as a final rule without seeking 
public comment because this does not create a substantive change to 
parole decision-making.

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

    This 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

    This 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)

    This 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). This 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

[[Page 66550]]

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.

The Interim Rule

    Accordingly, the interim rule amending 28 CFR part 2 which was 
published at 86 FR 51271 on September 15, 2021, is adopted as final 
with the following change:

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. Section 2.34 is amended by revising paragraphs (a) and (c) to read 
as follows:


Sec.  2.34  Rescission of parole.

    (a) When an effective date of parole has been set by the 
Commission, release on that date is conditioned upon continued 
satisfactory conduct by the prisoner. If a prisoner granted such a date 
has been found in violation of institution rules by a Discipline 
Hearing Officer, or the Center Disciplinary Committee, or is alleged to 
have committed a new criminal act at any time prior to the delivery of 
the certificate of parole, the Commissioner shall be advised promptly 
of such information. The prisoner shall not be released until the 
institution has been notified that no change has been made in the 
Commission's order to parole. Following receipt of such information, 
the Commissioner may reopen the case and retard the parole date for up 
to 90 days without a hearing, or 120 days for a DC Code sentenced 
prisoner, or schedule a rescission hearing under this section on the 
next available docket at the institution or on the first docket 
following return to a federal institution from a community corrections 
center or a state or local halfway house.
* * * * *
    (c) A hearing before a Discipline Hearing Officer, or the Center 
Disciplinary Committee, resulting in a finding that the prisoner has 
committed a violation of disciplinary rules may be relied upon by the 
Commission as conclusive evidence of institutional misconduct. However, 
the prisoner will be afforded an opportunity to explain any mitigating 
circumstances, and to present documentary evidence in mitigation of the 
misconduct at the rescission hearing.
* * * * *

Patricia K. Cushwa,
Chairman (Acting), U.S. Parole Commission.
[FR Doc. 2022-23793 Filed 11-3-22; 8:45 am]
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