Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes, 9516-9521 [2010-4270]
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Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Rules and Regulations
Authority for This Rulemaking
List of Subjects in 14 CFR Part 39
Title 49 of the United States Code
specifies the FAA’s authority to issue
rules on aviation safety. Subtitle I,
section 106, describes the authority of
the FAA Administrator. ‘‘Subtitle VII:
Aviation Programs,’’ describes in more
detail the scope of the Agency’s
authority.
We are issuing this rulemaking under
the authority described in ‘‘Subtitle VII,
Part A, Subpart III, Section 44701:
General requirements.’’ Under that
section, Congress charges the FAA with
promoting safe flight of civil aircraft in
air commerce by prescribing regulations
for practices, methods, and procedures
the Administrator finds necessary for
safety in air commerce. This regulation
is within the scope of that authority
because it addresses an unsafe condition
that is likely to exist or develop on
products identified in this rulemaking
action.
Air transportation, Aircraft, Aviation
safety, Safety.
Regulatory Findings
We determined that this AD will not
have federalism implications under
Executive Order 13132. This AD will
not have a substantial direct effect 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.
For the reasons discussed above, I
certify this AD:
1. Is not a ‘‘significant regulatory
action’’ under Executive Order 12866;
2. Is not a ‘‘significant rule’’ under the
DOT Regulatory Policies and Procedures
(44 FR 11034, February 26, 1979); and
3. Will not have a significant
economic impact, positive or negative,
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
We prepared a regulatory evaluation
of the estimated costs to comply with
this AD and placed it in the AD docket.
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Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov; or in person at the
Docket Operations office between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket
contains this AD, the regulatory
evaluation, any comments received, and
other information. The street address for
the Docket Operations office (telephone
(800) 647–5527) is provided in the
ADDRESSES section. Comments will be
available in the AD docket shortly after
receipt.
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Adoption of the Amendment
Accordingly, under the authority
delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as
follows:
■
PART 39—AIRWORTHINESS
DIRECTIVES
1. The authority citation for part 39
continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40113, 44701.
§ 39.13
[Amended]
2. The FAA amends § 39.13 by adding
the following new AD:
■
2010–05–09 Dowty Propellers: Amendment
39–16219. Docket No. FAA–2008–0545;
Directorate Identifier 2008–NE–16–AD.
Effective Date
(a) This airworthiness directive (AD)
becomes effective April 7, 2010.
Affected ADs
(b) None.
(c) This AD applies to Dowty Propellers
Models R354/4–123–F/13, R354/4–123–F/20,
R375/4–123–F/21, R389/4–123–F/25, R389/
4–123–F/26, and R390/4–123–F/27
propellers. These propellers are installed on,
but not limited to, Saab AB, Saab
Aerosystems SF340A and SAAB SF340B
airplanes.
Reason
(d) European Aviation Safety Agency
(EASA) AD No. 2008–0033, dated
February 19, 2008, states:
A number of propeller blade outer sleeves
have been found with cracks since 1996.
Testing has shown that blade retention
integrity is not affected by this cracking.
However, this condition, if not detected and
corrected, can lead to blade counterweight
release, possibly resulting in damage to the
aircraft and injury to occupants or persons on
the ground.
This AD requires initial and repetitive
visual inspections of propeller blade root
outer sleeves for cracks, and removal before
further flight of propeller blades with cracked
blade root outer sleeves. We are issuing this
AD to prevent blade counterweight release,
which could result in injury or damage to the
airplane.
Actions and Compliance
(e) Unless already done, do the following
actions.
Propeller Blade Root Outer Sleeve Visual
Inspections
(1) At the next 1,600 flight hours (FH)
aircraft check after the effective date of this
AD, or, after any blade accumulates 15,000
FH time-in-service, whichever occurs later,
visually inspect all propeller blade root outer
sleeves for cracks.
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(2) Thereafter, at intervals not to exceed
1,600 FH, visually inspect all propeller blade
root outer sleeves for cracks.
(3) Before further flight, remove any
propeller blades found with cracked root
outer sleeves during the visual inspections in
paragraphs (e)(1) and (e)(2) of this AD.
FAA AD Differences
(f) None.
Alternative Methods of Compliance
(AMOCs)
(g) The Manager, Boston Aircraft
Certification Office, FAA, Engine and
Propeller Directorate, has the authority to
approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19.
Related Information
(h) Refer to European Aviation Safety
Agency AD 2008–0033, dated February 19,
2008, and Dowty Propellers Alert Service
Bulletin No. SF340–61–A106, Revision 1,
dated March 20, 2008, for related
information.
(i) Contact Terry Fahr, Aerospace Engineer,
Boston Aircraft Certification Office, FAA,
Engine and Propeller Directorate, 12 New
England Executive Park, Burlington, MA
01803; e-mail: terry.fahr@faa.gov; telephone
(781) 238–7155; fax (781) 238–7170, for more
information about this AD.
Material Incorporated by Reference
(j) None.
Issued in Burlington, Massachusetts, on
February 23, 2010.
Francis A. Favara,
Manager, Engine and Propeller Directorate,
Aircraft Certification Service.
[FR Doc. 2010–4219 Filed 3–2–10; 8:45 am]
BILLING CODE 4910–13–P
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: Final rule.
SUMMARY: The U.S. Parole Commission
is promulgating final 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
a parolee lose credit for all time spent
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on parole when the Commission revokes
the 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 for both DC
and U.S. Code offenders.
DATES: Effective date: April 12, 2010.
FOR FURTHER INFORMATION CONTACT:
Rockne Chickinell, 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:
Legislation and Interim Rules
The Parole Commission described the
provisions of the Equitable Street Time
Credit Amendment Act of 2008, DC Law
17–389 (hereinafter ‘‘the Act’’) in its June
17, 2009 publication of interim rules
implementing the Act. 74 FR 28602–06.
When it became effective May 20, 2009,
the Act made two significant changes in
parole laws for DC offenders. First,
Section 3(a) of the Act amended 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. Before
this change, the Commission could only
transfer a parolee to inactive
supervision for good behavior on parole.
Second, Section 3(b) of the Act
amended DC Code 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 provided
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
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or willfully disobeyed a Commission
direction.
The Commission’s interim rules for
the procedures governing early
termination from supervision for DC
parolees are almost identical to the rules
governing early termination decisions
for federal parolees. The interim rules
for street time forfeiture largely follow
the statutory language. The final rules
are virtually identical to the interim
rules, with several changes resulting
from the public comment submitted in
response to the interim rules. These
comments and the Commission’s
responses are summarized below. 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 the final rules on DC
parolees.
Public Comment on Interim Rules
Regarding Early Termination From
Supervision
The Commission received public
comment on the interim rules from the
District of Columbia Public Defender
Service (‘‘PDS’’) and the Washington
Lawyers’ Committee for Civil Rights and
Urban Affairs (‘‘WLC’’). First, PDS asked
that the Commission amend 28 CFR
§ 2.95(c) to specify the procedures that
apply to a five-year hearing on early
termination from supervision. Unlike
the federal statute for early termination
hearings at 18 U.S.C. 4211(c), the new
DC law does not specify these
procedures. In conducting early
termination hearings for DC offenders,
the Commission has always intended to
use the same procedures that apply to
federal early termination hearings. The
Commission is amending the interim
rule at § 2.95(c) to add a cross-reference
to 18 U.S.C. 4214(a)(2) (the statute
describing procedures that apply to
federal revocation and early termination
hearings). The rule at § 2.43(c) for
federal parolees is similarly amended.
Second, PDS suggested that the
Commission require notice to parolees
and supervised releasees of early
termination denials and reasons for the
termination denials. Among other
reasons, PDS contended that these
requirements would safeguard the
offender’s liberty interest in early
termination from supervision, and equip
the offender with the tools needed to
achieve early termination at the next
review. Under its practice for federal
parolees, the Commission sends a notice
of the early termination decision when
the Commission: (1) Grants early
termination from supervision; (2) denies
early termination at the five-year mark
or thereafter; and (3) denies early
termination in disagreement with the
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9517
supervision officer’s recommendation in
favor of early termination. Notice of the
decision is not required by 18 U.S.C.
4211, or the Commission’s rule at 28
CFR 2.43. The Commission disagrees
with the contention that a parolee,
whether serving a federal or DC Code
sentence, has a liberty interest in early
termination of parole that is protected
by the Due Process Clause. (Under case
precedent, a DC Code prisoner does not
have a liberty interest in parole release.)
Finally, in cases where the offender may
benefit from some direction on
improvement, it is likely that the
offender is already on notice from the
supervision officer of deficient behavior
that requires correction.
Third, PDS recommended that the
rules be modified to state that after five
years on supervision, there is a
presumption that the parolee must be
terminated from supervision unless the
Commission finds that the parolee is a
risk to the public safety. The rules fully
implement the directives of federal and
DC statutes. The related request for a
new rule requiring the parolee’s
termination from supervision if a
hearing is not held within sixty days of
the five-year mark is contrary to
established case precedent from the
federal circuits.
Finally, PDS recommended amending
the early termination guidelines and
expanding the examples of case-specific
factors for departing from the
guidelines. In particular, PDS objects to
the use of the salient factor score in
making early termination decisions. The
Commission continues to explore the
use of an alternative risk prediction
device for reparole decisions for DC
offenders. Until this investigation
results in proposed rulemaking, the
Commission will continue to use the
early termination guidelines.
WLC asked the Commission for more
formal procedures in conducting case
reviews before the five-year point of the
parolee’s supervision term. WLC also
recommended that the Commission
enhance the statutory presumption for
termination from supervision at the fiveyear mark by adopting a policy that a
parolee must be released from further
supervision at that point if he had not
been convicted of a new crime or had
his parole revoked. Finally, WLC
echoed the comments of PDS on the
Commission’s use of the salient factor
score.
WLC’s recommendations concerning
the case review process for early
termination decisions are again founded
upon the supposition that the parolee
has a constitutionally-protected liberty
interest in being discharged early from
parole supervision. As noted earlier, a
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parolee does not possess such a liberty
interest. There does not appear to be a
compelling need for the Commission to
adopt more complex procedures or more
restrictive evidentiary standards for
early termination decisions. If the
Commission chose to establish more
complex procedures for this function, it
would likely have to add more
personnel to accommodate the
increased workload.
In reviewing the interim rules, the
Commission discovered a mistake in the
rule governing appeals for early
termination denials for federal parolees
(28 CFR 2.43(e)). When the Commission
promulgated the interim rule, it
mistakenly referred to adverse decisions
under paragraph (b) of revised § 2.43,
rather than paragraph (c), as subject to
appeal. Paragraph (b) covers adverse
decisions before the parolee has served
five years on supervision, while
paragraph (c) covers adverse decisions
at the five-year mark and thereafter. The
statute establishing an administrative
appeal remedy for federal parole-eligible
offenders only specifies an
administrative appeal for offenders who
are denied early termination from
supervision ‘‘under section 4211(c) [of
Title 18, U.S.C.],’’ the provision for early
termination of parole supervision after
service of five years on parole. The
Commission has never extended an
administrative appeal for early
termination denials to parolees before
the five-year mark (see 28 CFR
§ 2.43(c)(3) (2008)), and did not intend
to do so in its interim rule. The final
rule corrects this mistake and provides
that only federal parolees who have
been denied early termination of parole
after serving five years on supervision
have the opportunity to appeal the
denial to the Commission.
Public Comment on Interim Rules
Regarding Forfeiture of Time Spent on
Parole
Regarding the rules governing
forfeiture of street time for parole
violators, PDS suggested that the
Commission amend 28 CFR 2.105(d) to
provide that all street time can be
forfeited only when the parolee has
been convicted of: (1) A crime
punishable by more than one year of
imprisonment; or (2) a crime punishable
by a maximum prison term of one year
and the Commission finds the parolee is
a risk to the public safety. PDS
contended that this change would bring
the rule in line with the new law at DC
Code 24–406(c)(2). However, the
Commission’s rule already directs that
the Commission must forfeit street time
for a parolee convicted of a crime
punishable by more than one year in
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prison. 28 CFR 2.105(d)(2)(A).
Regarding a parolee convicted of a crime
punishable by a lesser term of
incarceration, the wording of
§ 2.105(d)(2)(B) is more consistent with
the new law than the proposed wording
sought by PDS. The statute directs the
Commission to forfeit street time for a
parolee convicted of a new offense
punishable by ‘‘one year or less’’ of
imprisonment. DC Code 24–406(c)(2)(B).
Therefore, a parolee convicted of a
crime punishable by a maximum jail
term of less than one year (e.g., 90 days
or 6 months, common statutory
penalties for misdemeanors) is subject
to street time forfeiture under the
statute. Finally, the new statute does not
require that, before taking away a
misdemeanant’s street time, the
Commission must find that the street
time forfeiture is necessary to protect
the public safety. Instead, DC Code 24–
406(c)(2)(B) directs the Commission to
forfeit the street time for the
misdemeanant ‘‘unless the Commission
determines that such forfeiture of credit
is not necessary to protect the public
welfare.’’ Therefore, the misdemeanant
avoids the street time forfeiture only if
the Commission finds that forfeiture is
not needed to protect the public. If the
Commission refrains from making the
finding, the statutory command controls
and requires the forfeiture.
PDS recommended that the
Commission add other examples to the
list of information the Commission
considers in making a determination
that street time forfeiture is not
warranted for a parolee convicted of a
new misdemeanor. Several examples
proposed by PDS are incorporated in the
final rule. The Commission decided to
forego promulgating guidelines for
evaluating whether street time forfeiture
is not necessary to protect the public
welfare, and instead continue to make
these decisions on a case-by-case basis.
PDS also recommended that 28 CFR
2.105(d)(3) provide that ‘‘[t]he parolee
shall receive credit for the remainder of
the time on parole’’ if the Commission
partially forfeits street time for the
parolee who loses contact with the
supervision officer or violates an order.
This recommended amendment is
unnecessary because § 2.105(d) begins
with the instruction ‘‘[e]xcept as
otherwise provided in paragraphs (d)(2)
and (d)(3), the Commission shall grant
a revoked parolee credit toward
completion of the sentence for all time
served on parole.’’ In addition,
paragraph (d)(3) clearly states that the
forfeiture allowed under that paragraph
is ‘‘for the period of time that the
Commission determines that the parolee
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failed or refused to respond to such a
request, order, summons, or warrant.’’
WLC feared that through the interim
rules Commission sought to expand its
authority to forfeit street time for a
parolee who had committed only
administrative violations. This fear is
groundless. WLC suggested that the
Commission specify those misdemeanor
crimes that shall lead to street time
forfeiture. This suggestion shares the
same underlying flaw as found in the
comments of PDS, i.e., that the new law
requires that the Commission must find
that the parolee presents a danger to the
public safety before it can forfeit street
time for a new misdemeanor conviction.
WLC also recommended that the
Commission provide notice to the
parolee of those ‘‘reasonable requests or
orders’’ that may result in street time
forfeiture under § 2.105(d)(3) if the
parolee refuses to obey the request or
order. Neither due process nor the terms
of the new law require the notice
suggested by WLC. Given the variety of
situations that could lead to a partial
street time forfeiture under paragraph
(d)(3), and the infrequency of street time
forfeitures outside the absconder
situation, the Commission sees no
reason to undertake the difficult task of
preparing a rule or other notice that
seeks to give a parolee warning of
requests or orders that may lead to the
forfeiture of street time if the parolee
disobeys the request or order.
Implementation
The regulations set forth below will
be made effective on April 12, 2010. The
Commission earlier implemented the
Act’s provisions with the interim rules
made effective June 17, 2009. The Act
does not disturb the street time
forfeiture decisions for DC offenders
issued by the Commission before May
20, 2009 (the effective date of the Act),
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.
Executive Order 12866
The U.S. Parole Commission has
determined that these final 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
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sufficient federalism implications
requiring a Federalism Assessment.
Regulatory Flexibility Act
The final 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 Final Rule
Accordingly, the U. S. Parole
Commission is adopting the following
amendments to 28 CFR Part 2.
■
PART 2—[AMENDED]
1. The authority citation for 28 CFR
Part 2 continues to read as follows:
■
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Authority: 18 U.S.C. 4203(a)(1) and
4204(a)(6).
2. Section 2.43 is revised to read as
follows:
■
§ 2.43
Early termination.
(a)(1) Upon its own motion or upon
request of a parolee, the Commission
may terminate a parolee’s supervision,
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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 conducted in
accordance with the procedures
prescribed in 18 U.S.C. 4214(a)(2), 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 (c) of this
section under § 2.26 or § 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 § 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:
(i) Has a salient factor score in the
very good risk category and has
completed two continuous years of
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9519
supervision free from an incident of
new criminal behavior or serious parole
violation; or
(ii) 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 (g), 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.
■ 3. Section 2.65 is amended by revising
paragraph (i) to read as follows:
§ 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 § 2.52(c) and § 2.105(d) of this
part. 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 § 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 § 2.105(d).
■ 4. Section 2.74 is amended by revising
the third sentence of paragraph (c) to
read as follows:
§ 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. * * *
■ 5. Section 2.92 is amended by revising
paragraphs (a), (c), and (d) to read as
follows:
§ 2.92
Jurisdiction of the Commission.
(a) The jurisdiction of the
Commission over a parolee shall expire
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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 § 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.
*
*
*
*
*
(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 § 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 § 2.95.
■ 6. Section 2.95 is revised to read as
follows:
erowe on DSK5CLS3C1PROD with RULES
§ 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 conducted in
accordance with the procedures
prescribed in 18 U.S.C. 4214(a)(2), 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
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14:14 Mar 02, 2010
Jkt 220001
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 (e). 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:
(i) 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
(ii) 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 (e), 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.
7. Section 2.96 is revised to read as
follows:
■
§ 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.
8. Section 2.97 is amended by revising
the introductory text to read as follows:
■
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Fmt 4700
Sfmt 4700
§ 2.97
Withdrawal of order of release.
If, after an order for release from
active supervision under former § 2.95
has been issued by the Commission, and
prior to the expiration date of the
sentence(s) being served, the parolee
commits any new criminal offense or
engages in any conduct that might bring
discredit to the parole system, the
Commission may, in its discretion, do
any of the following:
*
*
*
*
*
■ 9. 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).’’
■ 10. 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).’’
■ 11. Section § 2.105 is amended by
revising paragraphs (b), (d), and (e) to
read as follows:
§ 2.105
Revocation decisions.
*
*
*
*
*
(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 § 2.81.
*
*
*
*
*
(d)(1) Except as provided in
paragraphs (d)(2) and (d)(3) of this
section, the Commission shall grant a
revoked parolee credit toward
completion of the sentence for all time
served on parole.
(2)(i) 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.
(ii) 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, family support and
stability, employment record,
participation in applicable treatment
programs, 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
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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
(e) 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
§ 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.
*
*
*
*
*
■ 12. Section § 2.208 is revised to read
as follows:
erowe on DSK5CLS3C1PROD with RULES
§ 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.
VerDate Nov<24>2008
14:14 Mar 02, 2010
Jkt 220001
(d)(1) In deciding whether to
terminate supervised release, the
Commission shall consider the
guidelines of this paragraph (d). 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:
(i) 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
(ii) 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 (d), 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: February 24, 2010.
Isaac Fulwood,
Chairman, U.S. Parole Commission.
[FR Doc. 2010–4270 Filed 3–2–10; 8:45 am]
BILLING CODE 4410–31–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2010–0083]
Drawbridge Operation Regulations;
Elizabeth River, Eastern Branch, VA
Coast Guard, DHS.
Temporary deviation from
regulations; request for comments.
AGENCY:
ACTION:
SUMMARY: The Commander, Fifth Coast
Guard District, has issued a temporary
deviation from the regulation governing
the operation of the Berkley Bridge
across the Eastern Branch of the
Elizabeth River, mile 0.4, at Norfolk,
Virginia. This deviation is necessary to
test another change in the drawbridge
PO 00000
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Fmt 4700
Sfmt 4700
9521
operation schedule based on comments
received from the first test deviation
published on October 9, 2009.
DATES: This deviation is effective from
9 a.m. on March 10, 2010 through 2:30
p.m. on September 3, 2010.
Comments and related material must
be received by the Coast Guard on or
before July 1, 2010.
ADDRESSES: You may submit comments
identified by docket number USCG–
2010–0083 using any one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov.
• Fax: 202–493–2251.
• Mail: Docket Management Facility
(M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590–
0001.
• Hand delivery: Same as mail
address above, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays. The telephone number
is 202–366–9329.
To avoid duplication, please use only
one of these methods. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this proposed
rule, call or e-mail Terrance A. Knowles,
Environmental Protection Specialist,
Fifth Coast Guard District, telephone
757–398–6587, e-mail
Terrance.A.Knowles@uscg.mil. If you
have questions on viewing or submitting
material to the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone 202–366–9826.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for
Comments
We encourage you to participate in
this rulemaking by submitting
comments and related materials. All
comments received will be posted,
without change, to https://
www.regulations.gov and will include
any personal information you have
provided.
Submitting Comments
If you submit a comment, please
include the docket number for this
rulemaking (USCG–2010–0083),
indicate the specific section of this
document to which each comment
applies, and provide a reason for each
suggestion or recommendation. You
may submit your comments and
material online (https://
E:\FR\FM\03MRR1.SGM
03MRR1
]]>Agencies
[Federal Register Volume 75, Number 41 (Wednesday, March 3, 2010)]
[Rules and Regulations]
[Pages 9516-9521]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4270]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Parole Commission is promulgating final 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 a
parolee lose credit for all time spent
[[Page 9517]]
on parole when the Commission revokes the 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 for both DC and U.S.
Code offenders.
DATES: Effective date: April 12, 2010.
FOR FURTHER INFORMATION CONTACT: Rockne Chickinell, 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:
Legislation and Interim Rules
The Parole Commission described the provisions of the Equitable
Street Time Credit Amendment Act of 2008, DC Law 17-389 (hereinafter
``the Act'') in its June 17, 2009 publication of interim rules
implementing the Act. 74 FR 28602-06. When it became effective May 20,
2009, the Act made two significant changes in parole laws for DC
offenders. First, Section 3(a) of the Act amended 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. Before this change, the Commission could only
transfer a parolee to inactive supervision for good behavior on parole.
Second, Section 3(b) of the Act amended DC Code 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 provided 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.
The Commission's interim rules for the procedures governing early
termination from supervision for DC parolees are almost identical to
the rules governing early termination decisions for federal parolees.
The interim rules for street time forfeiture largely follow the
statutory language. The final rules are virtually identical to the
interim rules, with several changes resulting from the public comment
submitted in response to the interim rules. These comments and the
Commission's responses are summarized below. The Commission is also
amending the rules at 28 CFR 2.43 (for federal parolees) and Sec.
2.208 (for DC supervised releasees) to conform with the final rules on
DC parolees.
Public Comment on Interim Rules Regarding Early Termination From
Supervision
The Commission received public comment on the interim rules from
the District of Columbia Public Defender Service (``PDS'') and the
Washington Lawyers' Committee for Civil Rights and Urban Affairs
(``WLC''). First, PDS asked that the Commission amend 28 CFR Sec.
2.95(c) to specify the procedures that apply to a five-year hearing on
early termination from supervision. Unlike the federal statute for
early termination hearings at 18 U.S.C. 4211(c), the new DC law does
not specify these procedures. In conducting early termination hearings
for DC offenders, the Commission has always intended to use the same
procedures that apply to federal early termination hearings. The
Commission is amending the interim rule at Sec. 2.95(c) to add a
cross-reference to 18 U.S.C. 4214(a)(2) (the statute describing
procedures that apply to federal revocation and early termination
hearings). The rule at Sec. 2.43(c) for federal parolees is similarly
amended.
Second, PDS suggested that the Commission require notice to
parolees and supervised releasees of early termination denials and
reasons for the termination denials. Among other reasons, PDS contended
that these requirements would safeguard the offender's liberty interest
in early termination from supervision, and equip the offender with the
tools needed to achieve early termination at the next review. Under its
practice for federal parolees, the Commission sends a notice of the
early termination decision when the Commission: (1) Grants early
termination from supervision; (2) denies early termination at the five-
year mark or thereafter; and (3) denies early termination in
disagreement with the supervision officer's recommendation in favor of
early termination. Notice of the decision is not required by 18 U.S.C.
4211, or the Commission's rule at 28 CFR 2.43. The Commission disagrees
with the contention that a parolee, whether serving a federal or DC
Code sentence, has a liberty interest in early termination of parole
that is protected by the Due Process Clause. (Under case precedent, a
DC Code prisoner does not have a liberty interest in parole release.)
Finally, in cases where the offender may benefit from some direction on
improvement, it is likely that the offender is already on notice from
the supervision officer of deficient behavior that requires correction.
Third, PDS recommended that the rules be modified to state that
after five years on supervision, there is a presumption that the
parolee must be terminated from supervision unless the Commission finds
that the parolee is a risk to the public safety. The rules fully
implement the directives of federal and DC statutes. The related
request for a new rule requiring the parolee's termination from
supervision if a hearing is not held within sixty days of the five-year
mark is contrary to established case precedent from the federal
circuits.
Finally, PDS recommended amending the early termination guidelines
and expanding the examples of case-specific factors for departing from
the guidelines. In particular, PDS objects to the use of the salient
factor score in making early termination decisions. The Commission
continues to explore the use of an alternative risk prediction device
for reparole decisions for DC offenders. Until this investigation
results in proposed rulemaking, the Commission will continue to use the
early termination guidelines.
WLC asked the Commission for more formal procedures in conducting
case reviews before the five-year point of the parolee's supervision
term. WLC also recommended that the Commission enhance the statutory
presumption for termination from supervision at the five-year mark by
adopting a policy that a parolee must be released from further
supervision at that point if he had not been convicted of a new crime
or had his parole revoked. Finally, WLC echoed the comments of PDS on
the Commission's use of the salient factor score.
WLC's recommendations concerning the case review process for early
termination decisions are again founded upon the supposition that the
parolee has a constitutionally-protected liberty interest in being
discharged early from parole supervision. As noted earlier, a
[[Page 9518]]
parolee does not possess such a liberty interest. There does not appear
to be a compelling need for the Commission to adopt more complex
procedures or more restrictive evidentiary standards for early
termination decisions. If the Commission chose to establish more
complex procedures for this function, it would likely have to add more
personnel to accommodate the increased workload.
In reviewing the interim rules, the Commission discovered a mistake
in the rule governing appeals for early termination denials for federal
parolees (28 CFR 2.43(e)). When the Commission promulgated the interim
rule, it mistakenly referred to adverse decisions under paragraph (b)
of revised Sec. 2.43, rather than paragraph (c), as subject to appeal.
Paragraph (b) covers adverse decisions before the parolee has served
five years on supervision, while paragraph (c) covers adverse decisions
at the five-year mark and thereafter. The statute establishing an
administrative appeal remedy for federal parole-eligible offenders only
specifies an administrative appeal for offenders who are denied early
termination from supervision ``under section 4211(c) [of Title 18,
U.S.C.],'' the provision for early termination of parole supervision
after service of five years on parole. The Commission has never
extended an administrative appeal for early termination denials to
parolees before the five-year mark (see 28 CFR Sec. 2.43(c)(3)
(2008)), and did not intend to do so in its interim rule. The final
rule corrects this mistake and provides that only federal parolees who
have been denied early termination of parole after serving five years
on supervision have the opportunity to appeal the denial to the
Commission.
Public Comment on Interim Rules Regarding Forfeiture of Time Spent on
Parole
Regarding the rules governing forfeiture of street time for parole
violators, PDS suggested that the Commission amend 28 CFR 2.105(d) to
provide that all street time can be forfeited only when the parolee has
been convicted of: (1) A crime punishable by more than one year of
imprisonment; or (2) a crime punishable by a maximum prison term of one
year and the Commission finds the parolee is a risk to the public
safety. PDS contended that this change would bring the rule in line
with the new law at DC Code 24-406(c)(2). However, the Commission's
rule already directs that the Commission must forfeit street time for a
parolee convicted of a crime punishable by more than one year in
prison. 28 CFR 2.105(d)(2)(A). Regarding a parolee convicted of a crime
punishable by a lesser term of incarceration, the wording of Sec.
2.105(d)(2)(B) is more consistent with the new law than the proposed
wording sought by PDS. The statute directs the Commission to forfeit
street time for a parolee convicted of a new offense punishable by
``one year or less'' of imprisonment. DC Code 24-406(c)(2)(B).
Therefore, a parolee convicted of a crime punishable by a maximum jail
term of less than one year (e.g., 90 days or 6 months, common statutory
penalties for misdemeanors) is subject to street time forfeiture under
the statute. Finally, the new statute does not require that, before
taking away a misdemeanant's street time, the Commission must find that
the street time forfeiture is necessary to protect the public safety.
Instead, DC Code 24-406(c)(2)(B) directs the Commission to forfeit the
street time for the misdemeanant ``unless the Commission determines
that such forfeiture of credit is not necessary to protect the public
welfare.'' Therefore, the misdemeanant avoids the street time
forfeiture only if the Commission finds that forfeiture is not needed
to protect the public. If the Commission refrains from making the
finding, the statutory command controls and requires the forfeiture.
PDS recommended that the Commission add other examples to the list
of information the Commission considers in making a determination that
street time forfeiture is not warranted for a parolee convicted of a
new misdemeanor. Several examples proposed by PDS are incorporated in
the final rule. The Commission decided to forego promulgating
guidelines for evaluating whether street time forfeiture is not
necessary to protect the public welfare, and instead continue to make
these decisions on a case-by-case basis.
PDS also recommended that 28 CFR 2.105(d)(3) provide that ``[t]he
parolee shall receive credit for the remainder of the time on parole''
if the Commission partially forfeits street time for the parolee who
loses contact with the supervision officer or violates an order. This
recommended amendment is unnecessary because Sec. 2.105(d) begins with
the instruction ``[e]xcept as otherwise provided in paragraphs (d)(2)
and (d)(3), the Commission shall grant a revoked parolee credit toward
completion of the sentence for all time served on parole.'' In
addition, paragraph (d)(3) clearly states that the forfeiture allowed
under that paragraph is ``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.''
WLC feared that through the interim rules Commission sought to
expand its authority to forfeit street time for a parolee who had
committed only administrative violations. This fear is groundless. WLC
suggested that the Commission specify those misdemeanor crimes that
shall lead to street time forfeiture. This suggestion shares the same
underlying flaw as found in the comments of PDS, i.e., that the new law
requires that the Commission must find that the parolee presents a
danger to the public safety before it can forfeit street time for a new
misdemeanor conviction.
WLC also recommended that the Commission provide notice to the
parolee of those ``reasonable requests or orders'' that may result in
street time forfeiture under Sec. 2.105(d)(3) if the parolee refuses
to obey the request or order. Neither due process nor the terms of the
new law require the notice suggested by WLC. Given the variety of
situations that could lead to a partial street time forfeiture under
paragraph (d)(3), and the infrequency of street time forfeitures
outside the absconder situation, the Commission sees no reason to
undertake the difficult task of preparing a rule or other notice that
seeks to give a parolee warning of requests or orders that may lead to
the forfeiture of street time if the parolee disobeys the request or
order.
Implementation
The regulations set forth below will be made effective on April 12,
2010. The Commission earlier implemented the Act's provisions with the
interim rules made effective June 17, 2009. The Act does not disturb
the street time forfeiture decisions for DC offenders issued by the
Commission before May 20, 2009 (the effective date of the Act), 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.
Executive Order 12866
The U.S. Parole Commission has determined that these final 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
[[Page 9519]]
sufficient federalism implications requiring a Federalism Assessment.
Regulatory Flexibility Act
The final 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 Final Rule
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Accordingly, the U. S. Parole Commission is adopting the following
amendments to 28 CFR Part 2.
PART 2--[AMENDED]
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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).
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2. 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 conducted in accordance with the
procedures prescribed in 18 U.S.C. 4214(a)(2), 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 (c) 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:
(i) 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
(ii) 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 (g), 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.
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3. Section 2.65 is amended by revising paragraph (i) to read as
follows:
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 this
part. 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).
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4. 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. * * *
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5. 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
[[Page 9520]]
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.
* * * * *
(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.
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6. 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 conducted in accordance with the
procedures prescribed in 18 U.S.C. 4214(a)(2), 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 (e). 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:
(i) 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
(ii) 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 (e), 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.
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7. 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.
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8. Section 2.97 is amended by revising the introductory text 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, and prior to the
expiration date of the sentence(s) being served, the parolee commits
any new criminal offense or engages in any conduct that might bring
discredit to the parole system, the Commission may, in its discretion,
do any of the following:
* * * * *
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9. 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).''
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10. 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).''
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11. Section Sec. 2.105 is amended by revising paragraphs (b), (d), and
(e) to read as follows:
Sec. 2.105 Revocation decisions.
* * * * *
(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.
* * * * *
(d)(1) Except as provided in paragraphs (d)(2) and (d)(3) of this
section, the Commission shall grant a revoked parolee credit toward
completion of the sentence for all time served on parole.
(2)(i) 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.
(ii) 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, family support and stability, employment record,
participation in applicable treatment programs, 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
[[Page 9521]]
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 (e) 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.
* * * * *
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12. 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 (d). 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:
(i) 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
(ii) 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 (d), 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: February 24, 2010.
Isaac Fulwood,
Chairman, U.S. Parole Commission.
[FR Doc. 2010-4270 Filed 3-2-10; 8:45 am]
BILLING CODE 4410-31-P
