E8-3986. 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 Parole Commission's regulation regarding the Commission's transfer treaty function describes the procedures and policies for making release date and supervised release term decisions for prisoners transferred under treaty to the custody of the United States for service of the remainder of their foreign sentences. The Commission is amending this regulation to: add a policy statement that the Commission, like a federal district judge in imposing a sentence, uses the U.S. Sentencing Guidelines as advisory guidelines in making decisions for a transfer treaty prisoner; and eliminate the requirement that a certified court reporter record a transfer treaty hearing.

DATES:

Effective date: April 9, 2008.

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 statute at 18 U.S.C. 4106A grants the Parole Commission the authority to set a release date and a term and conditions of supervised release for a prisoner transferred by treaty to the United States for service of a foreign prison term. The Commission is instructed to make these determinations “as though the offender were convicted in a United States district court” of an offense similar to that of the foreign offense. 18 U.S.C. 4106A(b)(1)(A). The Commission's regulation at 28 CFR 2.68 implements the statute, and contains a statement regarding decision-making criteria and the procedures used at a transfer treaty hearing. Commission decisions for transferred prisoners may be appealed to a federal court of appeals. See 18 U.S.C. 4106A(b)(2).

Before the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the Commission, like a federal district judge imposing a criminal sentence, made the decisions for a transfer treaty prisoner in accordance with the U.S. Sentencing Guidelines unless it found good cause for departure. After Booker, the Commission considered the sentencing guidelines as advisory guidelines for its decision-making under 18 U.S.C. 4106A. Appellate courts have made it clear that the Commission should apply the holding in Booker to transfer treaty prisoner determinations. Odili v. U.S. Parole Commission, 474 F.3d 1255 (11th Cir. 2007); Austin v. U.S. Parole Commission, 448 F.3d 197 (2d Cir. 2006). The first amendment to § 2.68 sets forth an explicit policy statement that the Commission makes decisions for transferred offenders under 18 U.S.C. 4106A using the sentencing guidelines as advisory guidelines.

The second amendment eliminates the procedural requirement that a transfer treaty hearing must be recorded by a certified court reporter. When the Commission initially promulgated the regulation on transfer treaty determinations, the Commission decided, as a matter of policy, to adopt some of the procedures that were normally found in sentencing proceedings, e.g., prehearing disclosure of the probation officer's post-sentence report, representation by counsel and the use of a court reporter to record the proceeding.

The Commission did not interpret the statute at section 4106A to require the Commission, an administrative agency, to adopt identical procedures for judicial proceedings in conducting its administrative hearings. In addition to the recording of the hearing by the court reporter, after the transfer treaty hearing, the hearing examiner prepares a written summary of the proceeding for the review of other decision-makers in the case.

For parole release and revocation hearings, Commission hearing examiners use digital recorders to record the hearings verbatim, and dictate hearing summaries that are transcribed for inclusion in the file. Under the amendment, the hearing examiner will follow these same procedures in transfer treaty hearings. The Commission is facing severe budget constraints in the current fiscal year, and this procedural change will be one small step in cutting costs for the agency. If an appeal is filed and a review of the verbatim record is necessary, the Commission will prepare a transcription of the hearing, or provide the digital recording for review by the court.

The Commission is promulgating these amendments as a final rule without the need for public comment because the amended policy statement only implements a legal requirement and the elimination of the court reporter provision changes only a procedural rule.

Implementation

The amended rules will take effect April 9, 2008, and will apply to transfer treaty hearings held on or after the effective date.

Executive Order 12866

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

Executive Order 13132

The 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, the rule does not have sufficient federalism implications requiring a Federalism Assessment.

Regulatory Flexibility Act

The rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

Unfunded Mandates Reform Act of 1995

The rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle E—Congressional Review Act)

The rule is not a “major rule” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle E—Congressional Review Act), now codified at 5 U.S.C. 804(2). The 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. Moreover, this is a rule of agency procedure or practice that does not substantially affect the rights or obligations of non-agency parties, and does not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Part 2

• Administrative practice and procedure
• Prisoners
• Probation and Parole

The 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. Amend § 2.68 by revising the first sentence of paragraph (g) and the second sentence of paragraph (h) to read as follows:

§ 2.68

Prisoners transferred pursuant to treaty.

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(g) The decisionmaking criteria. The Commission will consider the United States Sentencing Guidelines as advisory guidelines in making its decisions, as though the transferee were convicted in a United States District Court of a statutory offense most nearly similar to the offense of which the transferee was convicted in the foreign court. * * *

(h) Hearing procedures. * * * Each special transferee hearing shall be recorded by the hearing examiner. * * *

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Dated: February 6, 2008.

Edward F. Reilly, Jr.,

Chairman, U. S. Parole Commission.