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. Proposed rules were

published on July 29, 1996 with comment due on November 1, 1996. 61 FR

39493-39496. Pursuant to the same authority, the Commission is

considering additional provisions to those rules that are set forth

below. The Commission invites comment on these proposed rules.

DATES: Written comment on the previously published draft rules and

these revised supplemental provisions should be submitted to Michael

Courlander, Public Information Specialist, no later than December 16,

1996. It should be noted that this deadline represents an extension of

time for comment on the draft rules published in July.

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.

The new provisions contained herein address moving to a two-year

cycle for guideline amendments, rules for decisions on retroactivity of

proposed amendments, and reconsideration of amendments. The entire set

of 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 represent a

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.

Revised Rules of Practice and Procedure

The following are the previously published draft rules that are

proposed to be modified. Changes are noted in italics.

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 to solicit

public comment shall require the affirmative vote of at least three

members at a public meeting. Similarly, the decision to instruct staff

to prepare a retroactivity impact analysis for a proposed amendment

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.

A motion to reconsider Commission action may be made only by a

Commissioner who was on the prevailing side of the vote for which

reconsideration is sought, or who did not vote on the matter. Four

votes are necessary to reconsider a Commission vote on any question on

which a four-vote majority is required.

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.

Except as necessary to implement enacted legislation or to address

other matters determined by the Commission to be urgent and compelling,

the Commission shall, after May 1, 1997, promulgate or amend the

guidelines no more frequently than biennially. No amendments shall be

issued in the annual amendment cycle beginning on May 2, 1997 except as

provided in this rule.

Generally, promulgated amendments will given prospective

application only. However, in those cases in which the Commission

considers an amendment for retroactive application to previously

sentenced, imprisoned defendants, it shall decide whether to make the

amendment retroactive at the same meeting at which it decides to

promulgate the amendment. Prior to final Commission action on the

retroactive application of an amendment, the Commission shall review

the retroactivity impact analysis prepared pursuant to Rule 2.2, supra.

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. At the same time the

Commission votes to publish proposed amendments for

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comment, it shall request public comment on whether to make any

amendments retroactive. As stated in Rule 5.1, supra, generally,

amendments will be given prospective application only.

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.

[FR Doc. 96-25366 Filed 10-2-96; 8:45 am]

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