04-2105. 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:

Interim rule with request for comments.

SUMMARY:

During 2004 the Parole Commission will carry out a pilot project to study the feasibility of conducting parole release hearings through video conferences between an examiner at the Commission's office and prisoners at selected Bureau of Prisons's institutions. In order to provide notice of this project, the Commission is promulgating an interim rule that provides that a parole release hearing may be conducted through a video conference with the prisoner. The Commission is also promulgating several conforming rule changes, including an amendment to the rule at 28 CFR 2.72 that eliminates the provision that an initial hearing for a District of Columbia offender is conducted “in person” before a Commission hearing examiner.

DATES:

Effective date: March 5, 2004. Comments must be received by May 4, 2004.

ADDRESSES:

Send comments to Office of General Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815.

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 hearing examiners travel to more than 60 locations of Federal correctional facilities to conduct parole release and revocation hearings. As the number of parole-eligible prisoners drops in the Federal prison system, the Commission is expending considerable resources in conducting hearings for a small number of prisoners at facilities that are difficult to reach. Therefore, the Commission is looking for ways to reduce travel costs and conserve the time of its hearing examiners. Conducting some parole release hearings through video conferences may be one procedure that will enhance the Commission's ability to make the most efficient use of limited financial and staff resources without detracting from the prisoner's opportunity for a fair parole hearing. Video conference technology has improved considerably since the Commission last considered holding hearings by video conference, and the Commission expects that the prisoner's ability to effectively participate in the hearing will not be diminished by the use of this procedure.

The Commission is undertaking a pilot project with the Federal Bureau of Prisons to conduct some parole release hearings through a video conference between a hearing examiner at the Commission's office in Chevy Chase, Maryland and the prisoner incarcerated in a Bureau facility. During 2004 the Commission intends to use 12 institutions for the project and expects that the number of hearings conducted under the project will not exceed 180 hearings, less than 10% of the parole release hearing caseload. The pilot project will only extend to parole release hearings (including rescission hearings) conducted in Bureau facilities. Under the project, the Commission will not use video conferencing for revocation hearings.

The Commission is promulgating an interim rule on this subject to give notice of the pilot project and the variance from the agency's traditional hearing practice, and is providing an extended opportunity for the public to comment on the use of video conferencing for parole hearings. The interim rule is added at 28 CFR 2.25. For most cases under the Commission's jurisdiction, the Commission could proceed with the project without raising any question concerning compliance with the agency's current rules. But the present rule at 28 CFR 2.72(a), which states that the prisoner appear “in person” before a Commission hearing examiner, could be interpreted to require the physical presence of the prisoner before the hearing examiner in order to conduct an initial hearing for a D.C. Code offender. Therefore, the Commission is amending this rule to eliminate the provision for an “in person” appearance. A corresponding change is made to the rule at 2.75(d). The Commission is also amending a list of rules for U.S. Code offenders that are implemented for D.C. Code offenders to include the interim rule at § 2.25.

Implementation

The amended rule will take effect March 5, 2004, and will apply to parole determination hearings for Federal and District of Columbia offenders.

Executive Order 12866

The U.S. Parole Commission has determined that this interim rule does not constitute a significant rule within the meaning of Executive Order 12866.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

Regulatory Flexibility Act

The interim 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.

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 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

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. 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 of United States-based companies to compete with foreign-based companies.

List of Subjects in 28 CFR Part 2

• Administrative practice and procedure
• Prisoners
• Probation and Parole

The Interim 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 2.25 is added to read as follows:

§ 2.25

Hearings by video conference.

Parole determination hearings, including rescission hearings, may be conducted by a video conference between the hearing examiner and the prisoner.

§ 2.72

[Amended]

3. Amend § 2.72(a) as follows:

a. Remove the first sentence; and

b. Remove “The” from the beginning of the second sentence and add in its place “At the initial hearing the”.

§ 2.75

[Amended]

4. Amend § 2.75(d) by removing “in-person” from the second sentence.

5. Amend § 2.89 by adding the following entry in numerical order to read as follows:

§ 2.89

Miscellaneous provisions.

* * * * *

2.25 (Hearings by video conference)

* * * * *

Dated: January 28, 2004.

Edward F. Reilly, Jr.,

Chairman, U.S. Parole Commission.