Rules of Practice and Procedure

UNITED STATES SENTENCING COMMISSION

Rules of Practice and Procedure

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed rules of practice and procedure. Request for

public comment.

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SUMMARY: Pursuant to its authority under 995(a)(1) of title 28, United

States Code, the Sentencing Commission is considering the promulgation

of internal rules of practice and procedure. The proposed rules are set

forth below. The Commission invites comment on these proposed rules.

DATES: Written comment should be submitted to Michael Courlander,

Public Information Specialist, no later than November 1, 1996.

ADDRESSES: Comments should be sent to: United States Sentencing

Commission, One Columbus Circle, N.E., Suite 2-500, South Lobby,

Washington, D.C. 20002-8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information

Specialist, Telephone: (202) 273-4590.

SUPPLEMENTARY INFORMATION: Section 995(a)(1) of title 28 authorizes the

U.S. Sentencing Commission, an independent agency in the judicial

branch of the United States Government, to establish general policies

and promulgate rules and regulations for the Commission as necessary to

carry out the purposes of the Sentencing Reform Act of 1984.

These rules of practice and procedure are designed to facilitate

public understanding and participation in the work of the Sentencing

Commission. For the most part these rules do not

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represent substantive change in the way the Commission has

traditionally conducted its business. These rules are not intended to

enlarge the rights of any person sentenced under the guidelines

promulgated by the Commission or otherwise create any private right of

action.

Authority: 28 U.S.C. 995(a)(1).

Richard P. Conaboy,

Chairman.

RULES OF PRACTICE AND PROCEDURE

PART I--SCOPE OF RULES

Rule 1.1 Application and Purpose

Pursuant to 28 U.S.C. 995(a)(1) and other applicable provisions of

its organizational statute, the United States Sentencing Commission

(``the Commission'') has established these rules governing its usual

operating practices. While the Commission, an agency within the

judicial branch of government, is not subject as a general matter to

the Administrative Procedures Act and a variety of other statutes

typically applicable to executive branch agencies, the Commission

nevertheless desires to involve interested members of the public in its

work to the maximum extent practicable. Accordingly, these rules are

issued for the purpose of more fully informing interested persons of

opportunities and procedures for becoming aware of and participating in

the public business of the Commission. These rules are not intended to

enlarge the rights of any person sentenced under the guidelines

promulgated by the Commission or otherwise create any private right of

action.

Rule 1.2 Suspension of Rules and Promulgation of Temporary Rules

The Commission in a public meeting at which a quorum is present

may, by vote of a majority of members, promulgate, modify, or suspend

any rule contained herein, or promulgate a temporary, supplemental, or

superseding rule.

PART II--ACTION BY THE COMMISSION

Rule 2.1 Members

For purposes of the voting procedures set forth in these Rules,

``member'' of the Commission shall mean a voting member and shall not

include an ex-officio, non-voting member. Ex-officio members may

participate in all discussions of the Commission but may not vote or

make motions.

Rule 2.2 Voting Rules for Action by the Commission

Except as otherwise provided in these rules or by law, action by

the Commission requires the affirmative vote of a majority of the

members at a public meeting at which a quorum is present. A quorum

shall consist of a majority of the members then serving. Members shall

be deemed ``present'' and may participate and vote in public meetings

from remote locations by electronic means, including, but not limited

to, telephone, satellite and video conference devices.

Promulgation of guidelines, policy statements, official commentary,

and amendments thereto shall require the affirmative vote of at least

four members at a public meeting. See 28 U.S.C. 994(a).

Publication of proposed amendments to guidelines, policy

statements, or official commentary in the Federal Register shall

require the affirmative vote of at least three members at a public

meeting.

Action on miscellaneous matters may be taken without a meeting

based on the affirmative vote of a majority of the members then serving

by written or oral communication. Such matters may include, but are not

limited to, the approval of budget requests, legal briefs, staff

reports, analyses of legislation, and administrative and personnel

issues.

PART III--INFORMATION ABOUT THE COMMISSION

Rule 3.1 Office(s)

The offices of the Commission are located in the Thurgood Marshall

Federal Judiciary Building, Suite 2-500, South Lobby, One Columbus

Circle, N.E., Washington, D.C. 20002-8002.

The office can be reached telephonically between 8:30 a.m. and 5:30

p.m. Monday through Friday. The main telephone number is 202/273-4500.

The fax number is 202/273-4529.

Rule 3.2 Communications Office

The Communications Office administers the Commission's policy on

Public Access to Sentencing Commission Documents and Data. See 54 Fed.

Reg. 238, 51279 (1989). This office also maintainsA Guide to

Publications & Resources that lists all publications and datasets

available from the Commission. This document is available on request.

Generally, the Communications Office will maintain for public

inspection by appointment official Commission documents, meetings and

hearing schedules and agendas, public comment submissions, and other

documents (or citations thereto) that inform Commission decisions or

actions.

Rule 3.3 Internet Site

The Commission maintains and updates information and documents on

an Internet Web Site and Electronic Bulletin Board. The Web Site is

found at: http://www.ussc.gov. The Electronic Bulletin Board can be

accessed directly by computer via modem by dialing 202/273-4709.

This resource shall include general information, such as background

information about the Commission and Commissioners, notices for

scheduled meetings and hearings, minutes of recent meetings, listings

of Commission priorities and projects, outstanding public comment

solicitations, recently promulgated amendments, a list of all reports

and resources available from the Commission, and the text of the

Guidelines Manual and Commission reports.

Rule 3.4 Information at Federal Depository Libraries

All Commission publications printed by the Government Printing

Office, and other selected documents, are available in hard copy or

microfiched form through the Government Printing Office's Regional

Depository Libraries (of which there are more than 600 nationwide). The

location of the nearest Federal Depository Library can be determined in

several ways: (1) Request a free copy of the Directory of Depository

Libraries from the U.S. Government Printing Office, Library Programs

Services, Stop: SLLD, Washington, DC 20401; (2) ask your local library

for the address of the nearest Federal Depository Library; or (3) use

the Internet at http://www.access.gpo.gov/su__docs; Select:

``Information Available for Free Public Use in Federal Depository

Libraries.'' Search the listing by state or by area code.

Rule 3.5 Access to Commission Data--Research Consortium

The Commission provides its various databases to the University of

Michigan's Inter-University Consortium for Political and Social

Research (ICPSR). Researchers interested in studying federal sentencing

practices through quantitative methods can access Commission sentencing

data through this means. Contact ICPSR, P.O. Box 1248, Ann Arbor, MI

48106; or call 1-800-999-0960; or use the following Internet address:

http://www.ICPSR.umich.edu/NACJD/home.html.

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PART IV--MEETINGS AND HEARINGS

Rule 4.1 Meetings

The Chair shall call and preside at Commission meetings. In the

absence of the Chair, the Chair will designate a Vice Chair to preside.

Rule 4.2 Public Meetings

The Commission shall endeavor to meet publicly on at least two

separate occasions in each calendar quarter to inform the public and

receive public comment on matters under consideration by the

Commission.

To the extent practicable, the Chair shall issue, through the

Office of Staff Director, a public notice of any public meeting at

least seven days prior to the date of the meeting. The public notice,

to the extent practicable, shall indicate the general purpose(s) of the

meeting and include an agenda and any related documents approved for

public release.

In the discretion of the Chair, and to the extent the Chair may

deem appropriate, members of the public may be afforded an opportunity

to comment on any issue on the agenda of a public meeting.

Rule 4.3 Executive Sessions

The Commission may hold executive sessions closed to the public to

transact business of the Commission that is not appropriate for a

public meeting, including, but not limited to, discussion and

resolution of personnel and budget issues.

Rule 4.4 Working Sessions

The Commission routinely may hold working sessions that are not

open to the public for the purpose of receiving information from staff

and others and for conducting in-depth discussions of matters before

the Commission.

Rule 4.5 Public Hearings Generally

The Commission may convene a public hearing on any matter involving

the promulgation of sentencing guidelines or any other matter affecting

the Commission's business. Notice of such hearing will be placed in the

Federal Register as soon as practicable and the notice shall include,

if applicable, a procedure for requesting the opportunity to testify

and the availability for public inspection of documents or reports

relevant to the subject of the hearing.

The Communications Office shall make available by customary means

the topic(s) that will be the subject of testimony and any other topics

or issues about which only written submissions will be accepted.

The Commission may exclude from such a hearing any electronic

devices that record the voice or image of any or all witnesses, as well

as cameras of any kind.

At the request of any witness to turn off any such electronic

device(s) during that person's testimony, the Chair of the Commission

may order, at his or her discretion, that use of such devices be

discontinued during the testimony of that witness.

Rule 4.6 Written Record of Meetings and Hearings

The Commission shall prepare and maintain written minutes of public

meetings and make them publicly available by customary means within a

reasonable time after their approval by the Commission.

The Commission shall maintain a written transcription of public

hearings that shall be publicly available for inspection.

PART V--AMENDMENT PROCESS

Rule 5.1 Promulgation of Amendments

The Commission may promulgate and submit to Congress amendments to

the guidelines between the beginning of a regular session of Congress

and the first day of May that year. Amendments shall be accompanied by

a brief explanation or statement of reasons for the amendments. Unless

otherwise specified, or unless Congress legislates to the contrary,

amendments submitted for review shall take effect on the first day of

November of the year in which submitted. 28 U.S.C. 994(p).

The Commission may promulgate amendments at other times pursuant to

special statutory enactment (e.g., the ``emergency'' amendment

authority under section 730 of the Antiterrorism and Effective Death

Penalty Act of 1996).

Amendments to policy statements and commentary may be promulgated

and put into effect at any time. However, to the extent practicable,

the Commission shall endeavor to include amendments to policy

statements and commentary in any submission of guideline amendments to

Congress and put them into effect on the same November 1 date as any

guideline amendments issued in the same year.

Rule 5.2 Prison Impact of Amendments

In promulgating amendments to the guidelines, the Commission shall

consider the available penal, correctional, and other facilities and

services.

To the extent practicable, the Commission shall consider and, make

available to the public by customary means, information describing the

prison impact of any amendments that significantly impact on prison

population.

Rule 5.3 Notice and Comment on Proposed Amendments

In proposing and promulgating guidelines and amendments thereto,

the Commission shall comply with the requirements of section 553 of

title 5, United States Code, relating to publication in the Federal

Register and public hearing procedure. 28 U.S.C. 994(x).

The Commission may promulgate commentary and policy statements, and

amendments thereto, without regard to the provisions of 28 U.S.C.

994(x). Nevertheless, the Commission will endeavor to provide, to the

extent practicable, comparable opportunities for public input on

proposed policy statements and commentary considered in conjunction

with guideline amendments.

Rule 5.4 Federal Register Notice of Proposed Amendments

As stated in Rule 2.2, supra, upon the affirmative vote of three

voting members, the Commission may authorize publication in the Federal

Register of a proposed amendment to a guideline, policy statement, or

official commentary. A vote to publish shall be deemed to be a request

for public comment on the proposed amendment.

The notice of proposed amendments also shall provide, where

appropriate and practicable, reasons for consideration of amendments, a

summary of or reference to information that is relevant to the

issue(s), and whether the Commission possesses information on the

issue(s) that is publicly available. In addition, the publication

notice shall include a deadline for public comment and may include a

notice of any scheduled public hearing(s) or meetings on the issue(s).

In the case of proposed amendments to guidelines or issues for

comment that form the basis for possible guidelines amendments, to the

extent practicable, there shall be a minimum period of public comment

of at least 60 calendar days prior to final Commission action on the

proposed amendments.

Rule 5.5 Public Hearing on Proposed Amendments

Unless time does not permit or the Commission determines that a

hearing would not substantially assist the

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amendment process, the Commission shall conduct a public hearing on

proposed amendments. The hearing shall be noticed in the Federal

Register and otherwise announced by customary means.

PART VI--PUBLIC INPUT TO AMENDMENT PROCESS

Rule 6.1 Public Comment File

As stated in Rule 3.2, supra, the Communications Office shall

receive and maintain public comment and public hearing testimony

received by the Commission. This public comment file will be available

during normal business hours for public inspection pursuant to written

or telephonic request and with reasonable notice.

Rule 6.2 Notice of Priorities

Annually, following the submission to Congress of any guideline

amendments, the Commission shall publish in the Federal Register and

make available to the public by customary means, a notice of the

tentative priorities for future Commission inquiry and possible action,

including areas for possible amendments to guidelines, policy

statements, and commentary. Any such notice shall include an invitation

to, and deadline for, the submission of written public comment on the

proposed priorities.

Rule 6.3 Data and Reports Relevant to the Amendment Process

To fulfill Commission priorities and inform consideration of

potential amendments, the Staff Director shall direct the preparation

of relevant data and reports for consideration by the Commission. Upon

authorization by the Commission, the Communications Office shall make

the data and reports available to the public by customary means, as

soon as practicable.

Rule 6.4 Advisory Groups

Upon authorization of the Commission, the Staff Director may

facilitate the creation, membership, and periodic meeting at the

Commission offices and elsewhere, of advisory groups of defense

attorneys, academics, probation officers, judges, prosecutors, and

others, to facilitate formal and informal input to the Commission. Two

types of advisory groups are authorized: standing and ad hoc.

The following groups are the standing advisory groups: the

Practitioners' Advisory Group and the Probation Officers' Advisory

Group. The Commission may create additional standing advisory groups.

The Commission also may create ad hoc advisory groups as needed.

In addition, the Commission expects to receive and, from time to

time, solicit input from outside groups representing the federal

judiciary, prosecutors, defense attorneys, crime victims, and other

interested groups.

Rule 6.5 Advisory Group Meetings and Reports

Subject to such limitations as the Commission may deem necessary,

each advisory group shall establish appropriate policies regarding the

conduct of their meetings.

Except as otherwise authorized by the Commission, final reports of

ad hoc advisory groups, if any, shall be provided to the Commission

and, after necessary time for Commission review, shall be made

available for public inspection.

[FR Doc. 96-19113 Filed 7-26-96; 8:45 am]

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