[Federal Register Volume 84, Number 245 (Friday, December 20, 2019)]
[Rules and Regulations]
[Pages 70013-70014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27340]
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DEPARTMENT OF JUSTICE
Parole Commission
28 CFR Part 2
[Docket No. USPC-2018-02]
Paroling, Recommitting, and Supervising Federal Prisoners:
Prisoners Serving Sentences Under the United States and District of
Columbia Codes
AGENCY: United States Parole Commission, Justice.
ACTION: Final rule.
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SUMMARY: The United States Parole Commission is amending its rule
allowing hearings by videoconference to include parole termination
hearings.
DATES: This regulation is effective December 20, 2019.
FOR FURTHER INFORMATION CONTACT: Helen H. Krapels, General Counsel,
U.S. Parole Commission, 90 K Street NE, Third Floor, Washington, DC
20530, telephone (202) 346-7030. Questions about this publication are
welcome, but inquiries concerning individual cases cannot be answered
over the telephone.
SUPPLEMENTARY INFORMATION: Since early 2004, the United States Parole
Commission has been conducting some parole proceedings by
videoconference to cut down on delays in scheduling in-person hearings
and conserve Commission resources. The Commission originally initiated
the use of videoconference in parole release hearings as a pilot
project in 2004 and then extended the use of videoconferencing to
institutional revocation hearings in 2005, followed by probable cause
hearings in 2007. Using videoconference for termination hearings is a
natural progression in the use of this technology.
Conducted pursuant to 28 CFR 2.43(c) and 2.95(c), the primary
objective of a termination hearing is to obtain information which
assists the Commission in determining whether or not early termination
of parole is appropriate. The subject is usually represented by an
attorney, and the community supervision officer or the U.S. Probation
officer provides a recommendation based on the subject's compliance
with parole requirements. Given the limited purpose of the hearing,
other witnesses are usually not present, and the hearing does not
typically last long. The amendment will save travel time and expense,
allowing the Commission to conduct termination hearings in a more
expeditious manner.
In the interim rule with request for comments (83 FR 58500 (Nov.
20,
[[Page 70014]]
2018)), we encouraged the public to comment on our changes. We received
written comments from the Public Defender Service for the District of
Columbia (PDS) and one anonymous comment. We discuss those public
comments below.
Public Comment From the Public Defender Service
PDS objects to amending Sec. 2.25 to include parole termination
hearings, and renews its prior objections to the use of videoconference
for probable cause hearings. PDS's comments, both past and present,
characterize videoconference as a barrier to due process which
unjustifiably denies a subject the opportunity to appear in person
before the Commission. The Commission does not agree with this
proposition. Termination hearings are limited in scope. Unlike
revocation hearings, when all facets of the case are explored,
witnesses testify, and the status of the offender is finally
determined, the purpose of a termination hearing is to obtain
information regarding the parolee's conduct in the community. The
liberty interest implicated in a revocation hearing is not implicated
in a termination hearing. At a termination hearing, the subject does
not face the possibility of a loss of freedom as a result of
termination being denied. See Henderson v. Sims, 223 F.3d 267, 274 (4th
Cir. 2000); Little v. Thomas, 719 F.2d 50, 52 (3d Cir. 1982). Further,
there is no constitutional or statutory entitlement to early
termination of parole supervision. See Myers v. U.S. Parole Comm'n, 813
F.2d 957, 960 (9th Cir. 1987). Thus, the fact that the parolee's
appearance for the termination hearing will be by videoconference does
not violate due process.
PDS recommends that termination hearings only be conducted by
videoconference in circumstances where either distance or physical
hardship renders the subject unable to appear in person. While the
Commission agrees that videoconferencing may be appropriate in the
circumstances described by PDS, the Commission does not agree that the
rule should be so narrow. It is within the Commission's discretion to
determine when conducting a termination hearing by videoconference is
appropriate.
PDS also raises concerns about technological issues, stating that
experiencing technical difficulties during a hearing would completely
undermine the value of having a hearing at all. Over the years, the
Commission's experience has been that the quality of the transmission
has improved and the personal interactions among the hearing
participants does not appreciably decline with the use of
videoconferencing.
Anonymous Comment
The Commission also received an anonymous comment in support the
use of videoconferencing for parole termination hearings. The comment,
while acknowledging the issue of losing face-to-face contact, described
the amendment as a logical practice that will increase the efficiency
of the termination process.
Executive Orders 12866 and 13563
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulation Planning and Review,'' section
1(b), Principles of Regulation, and in accordance with Executive Order
13565, ``Improving Regulation and Regulatory Review,'' section 1(b),
General Principles of Regulation. The Commission has determined that
this rule is not a ``significant regulatory action'' under Executive
Order 12866, section 3(f), Regulatory Planning and Review, and
accordingly this rule has not been reviewed by the Office of Management
and Budget.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Under Executive Order 13132, this rule does not
have sufficient federalism implications requiring a Federalism
Assessment.
Regulatory Flexibility Act
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 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 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 practice or
procedure that does not substantially affect the rights or obligations
of non-agency parties, and does not come within the meaning of the term
``rule'' as used in Section 804(3)(C), now codified at 5 U.S.C.
804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does
not apply.
List of Subjects in 28 CFR Part 2
Administrative practice and procedure, Prisoners, Probation and
Parole.
The Final Rule
0
Accordingly, the U. S. Parole Commission adopts the interim rule
amending 28 CFR part 2, which was published at 83 FR 58500 on November
20, 2018, as final without change.
Patricia K. Cushwa,
Chairman (Acting), U.S. Parole Commission.
[FR Doc. 2019-27340 Filed 12-19-19; 8:45 am]
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