01-25111. 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 amending the rule that delegates to its hearing examiners various powers in conducting parole release and revocation proceedings for United States Code and District of Columbia offenders. The amendment delegates to hearing examiners the authority to make probable cause determinations for parolees and supervised releasees charged with violating the conditions of release, and to determine the location of a revocation hearing and the witnesses who would attend the proceeding. Through this delegation, the Commission seeks to ensure an efficient allocation of workload between the Commission and its staff, identify and correct procedural errors in conducting revocation proceedings at an early stage of the process, and increase its consistency in scheduling revocation hearings within statutory and constitutional deadlines.

EFFECTIVE DATE:

October 9, 2001.

FOR FURTHER INFORMATION CONTACT:

Office of General Counsel, U.S. Parole Commission, 5550 Friendship Blvd, Chevy Chase, Maryland 20815, telephone [phone]. Questions about this publication are welcome, but inquiries concerning individual cases cannot be answered over the telephone.

SUPPLEMENTARY INFORMATION:

The Parole Commission's statute at 18 U.S.C. 4203(c)(2) permits the Commission to delegate to hearing examiners a number of powers, including the power to “make findings of probable cause and issue subpenas for witnesses or evidence in parole revocation proceedings.” Until now, the Commission has not delegated this power and has reserved to itself the duty of making these preliminary decisions. Because the transfer of jurisdiction over District of Columbia parolees on August 5, 2000 substantially increased its workload, the Commission has been reviewing the allocation of work between Commissioners and staff and exploring methods of reducing the time necessary to conduct revocation proceedings and make revocation decisions. This effort has become more urgent since the membership of the Commission has been reduced to only three Commissioners by a recent resignation. By using the authority provided in the above statute and delegating the functions of making probable cause decisions and issuing subpoenas to hearing examiners, the Commission seeks to eliminate several days of case processing time and still reserve to the Commissioners' review and judgment the most significant decisions for accused release violators, i.e., the initial deprivation of the offender's liberty through the issuance of a warrant, and revoking parole or supervised release. The Commission anticipates that the increased efficiency achieved in its probable cause determinations will materially contribute to the agency's ability to meet its deadlines in concluding final revocation hearings for both U.S. Code and D.C. Code parolees.

In implementing the delegation, the Commission expects that the delegated functions would be exercised in almost all cases by the agency's Case Services Administrator, a position normally held by a senior-level hearing examiner. But this practice may vary, depending on changes in staff responsibilities and the agency's workload. Other Commission administrators or hearing examiners may be called upon to perform these duties, or the Commissioners may reassume these functions at any time. Though quality control of the Commission's work is exercised by all professional personnel, when the Case Services Administrator exercises these newly-delegated functions, that official is well-positioned to review and correct the work of the case analysts in preparing revocation cases. This built-in quality control review should reduce the incidence of errors which can slow down the revocation process or require a rehearing, and will assist supervisory staff in the ongoing training of case analysts in revocation procedures.

The amended rule also provides that, along with the probable cause determination, the hearing examiner would decide the location of the revocation hearing and those witnesses who would attend the proceeding. These procedural matters clearly fall within other powers that may be delegated to hearing examiners, namely the powers to “conduct hearings and proceedings” and to “obtain and make a record of pertinent information.” 18 U.S.C. 4203(c)(2). Moreover, as noted earlier, the statute expressly allows the Commission to delegate the authority to issue subpoenas to witnesses and to produce documentary evidence. If a hearing examiner may require a witness's attendance at a revocation proceeding through compulsory process, he obviously may determine those witnesses who should attend the proceeding upon request and in the absence of a subpoena. Since subpoenas frequently have to be reissued because of rescheduled revocation hearings, delegation of the task of issuing subpoenas would reduce the number of file transfers to the Commissioners, and again reserve their review for final case decisions.

As a result of the delegation, in some cases a hearing examiner's order will result in the discharge of an accused violator from custody. But the exercise of this power is limited to cases where the examiner finds no probable cause for the alleged violation. The delegation does not include the authority to release an accused violator to the community if probable cause for violation is found. See 18 U.S.C. 4214(a)(1)(A). Section 4203(c)(2) expressly provides only for the delegation of the power to make a probable cause finding and is silent on the power of restoring a parolee to supervision despite a finding of probable cause for parole violation. On this point, the Commission has decided to take a cautious approach in interpreting its statutory delegation authority. If a hearing examiner finds probable cause and nonetheless believes that the parolee should be returned to the community either before or without a revocation hearing, the case will be referred to a Commissioner for a decision as to release. A recommendation for release may be made, but this is the extent of the hearing examiner's authority.^[1]

Finally, the amended rule provides that the delegated powers apply to the relevant provisions for parole revocations for U.S. Code offenders and for parole and supervised release revocations for D.C. Code offenders. Due to Section 11233(c)(2)(A) of the National Capital Revitalization and Self-Government Act of 1997,^[2] the Commission is authorized to use the same procedures to revoke supervised release terms for D.C. Code offenders that apply to federal parolees.

Since the rule is only a procedural rule and pertains only to the allocation of functions within the Commission, the Commission has determined that the rule is not subject to the notice and comment or the thirty-day delay provisions of 5 U.S.C. 553.

Regulatory Assessment Requirements

The U.S. Parole Commission has determined that this final rule does not constitute a significant rule within the meaning of Executive Order 12866. The final 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), and is deemed by the Commission to be a rule of agency practice that does not substantially affect the rights or obligations of non-agency parties pursuant to Section 804(3)(c) of the Congressional Review Act.

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 amendment to 28 CFR part 2.

PART 2—[AMENDED]

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).

2. Section 2.23, paragraph (a) is amended by adding the following sentence to the end to read as follows:

§ 2.23

Delegation to hearing examiners.

(a) * * * Notwithstanding the provisions of §§ 2.48 through 2.51, §§ 2.101 through 2.104, and §§ 2.214 through 2.217, there is also delegated to hearing examiners the authority necessary to make a probable cause finding, to determine the location of a revocation hearing, and to determine the witnesses who will attend the hearing, including the authority to issue subpoenas for witnesses and evidence.

Dated: September 25, 2001.

Edward F. Reilly, Jr.,

Chairman, Parole Commission.

Footnotes

1.  In this regard it is worth noting that Section 4203(c)(2) only permits the delegation of the function of recommending revocation and reparole dispositions. Consequently, hearing examiners may not make final decisions on these matters.

2.  Public Law 105-33; 111 Stat. 749 (Aug. 5, 1997) (now codified at D.C. Code 24-1233(c)(2)(A)).