Rules of Practice and Procedure

UNITED STATES SENTENCING COMMISSION

Rules of Practice and Procedure

AGENCY: United States Sentencing Commission.

ACTION: Notice of promulgation of rules of practice and procedure.

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

United States Code, the Sentencing Commission has established rules of

practice and procedure relating to the manner in which it conducts its

business. The Commission hereby gives notice of the adoption of these

rules.

EFFECTIVE DATE: These rules are effective as of their adoption by the

Commission on July 11, 1997.

ADDRESSES: Inquiries about any matter covered by the rules should be

sent to: United States Sentencing Commission, One Columbus Circle, NE.,

Suite 2-500, South Lobby, Washington, DC 20002-8002, Attention: Office

of Legislative and Public Affairs.

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 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. The rules

were published for comment on July 29 and October 8, 1996. 61 FR 39493-

96, 61 FR 52825-26. The Commission received public comment from a

number of persons and groups. The Commission also conducted an

informational hearing on June 4, 1997, at which time it received

additional comment. The adopted rules reflect a variety of changes

suggested by the public comment and hearing participants.

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

Richard P. Conaboy,

Chairman.

Rules of Practice and Procedure

Part I--Purpose of Rules; Rules Amendment Procedure

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. The Commission, an agency within the judicial

branch of government, is subject to only that provision of the

Administrative Procedure Act, section 553 of title 5, United States

Code, relating to publication in the Federal Register and a public

hearing procedure, with regard to proposed sentencing guidelines or

amendments thereto. See 28 U.S.C. 994(x). The Commission is not subject

to a variety of other statutes, such as the Federal Advisory Committee

Act, the Sunshine Act, and the Freedom of Information Act, typically

applicable to rulemaking agencies in the executive branch. 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 to otherwise

create any private right of action.

Rule 1.2 Rules Amendment Procedure

(a) Except as provided in subsection (b), amendment of these rules

shall require the affirmative vote in a public meeting of a majority

(and not less than three) of the voting members then serving. Any such

amendment shall be adopted only after notice and reasonable opportunity

for public comment.

(b) The Commission temporarily may suspend any rule contained

herein and/or adopt a supplemental or superseding rule by affirmative

vote in a public meeting of a majority of the voting members then

serving.

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 not

vote or make or second 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 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 for comment of proposed amendments to guidelines,

policy statements, or official commentary shall require the affirmative

vote of at least three members at a public meeting. 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, by written or oral communication, of a

majority of the

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members then serving. Such matters may include, 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 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.

Part III--Meetings and Hearings

Rule 3.1 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 3.2 Public Meetings

The Commission shall meet on at least two occasions in each

calendar quarter to conduct business.

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.

At the discretion of the Chair, members of the public may be

afforded an opportunity to comment on any issue on the agenda of a

public meeting.

Rule 3.3 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, e.g., discussion and resolution of personnel and budget

issues.

Rule 3.4 Briefing Sessions

The Commission may hold briefing sessions that are not open to the

public generally to receive in-depth information from staff and other

persons. The Office of Legislative and Public Affairs will make

available a list of issues upon which the Commission was briefed.

Rule 3.5 Public Hearings

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. A request for comment on a proposed matter

does not necessarily mean that a public hearing will be held on the

matter or that a public hearing, if scheduled, will pertain to all

issues raised in the request for comment.

Notice of a public hearing shall be given as soon as practicable.

The notice shall include, as applicable, information regarding a

procedure for requesting an opportunity to testify, and the

availability of documents or reports relevant to the subject of the

hearing.

The Commission may specify the format for public hearings, invite

witnesses, choose witnesses from among those who request the

opportunity to testify, and require that written testimony be submitted

in advance of the hearing.

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 3.6 Written Record of Meetings and Hearings

The Commission shall prepare and maintain written minutes of public

meetings and make them publicly available after their approval by the

Commission. The Commission shall tape record public meetings and make

the recordings publicly available after the approval of the minutes of

such meeting. No such recording shall be copied or removed from the

Commission's offices.

The Commission shall maintain a written transcription of public

hearings that shall be publicly available for inspection.

Part IV--Guideline Amendment Process

Rule 4.1 Promulgation of Amendments

The Commission may promulgate and submit to Congress amendments to

the guidelines after the beginning of a regular session of Congress and

not later than May 1 of that year. Amendments shall be accompanied by

an 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).

At other times, pursuant to special statutory enactment, the

Commission may promulgate amendments to accomplish identified

congressional objectives.

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.

Generally, promulgated amendments will be 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 4.2 Prison Impact of Amendments

Prior to promulgating amendments to the guidelines, the Commission

shall consider the impact of any amendment on available penal and

correctional resources, and on other facilities and services and shall

make such information available to the public.

Rule 4.3 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 4.4 Federal Register Notice of Proposed Amendments

A vote to publish a proposed amendment to a guideline, policy

statement, or official commentary in the Federal Register 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

comment, it

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shall request public comment on whether to make any amendments

retroactive.

The notice of proposed amendments also shall provide, to the extent

appropriate and practicable, reasons for consideration of amendments

and a summary of or reference to publicly available information that is

relevant to the issue(s). 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, the

Commission shall allow, to the extent practicable, a minimum period of

public comment of at least 60 calendar days prior to final Commission

action on the proposed amendments.

Rule 4.5 Public Hearing on Proposed Amendments

In the case of ``emergency'' amendments issued pursuant to special

statutory authorization, the Commission ordinarily will not conduct a

public hearing on the proposed amendments but will afford such

opportunity for written comment as time allows.

In the case of other amendments to guidelines or policy statements

issued pursuant to 28 U.S.C. 994, the Commission shall conduct a public

hearing on the proposed amendments, unless the Commission determines

that time does not permit a hearing or that a hearing will not

substantially assist the amendment process. Notice of the hearing shall

be given in the Federal Register and by other means designed to inform

persons likely to be interested in participating in such a hearing.

Part V--Public Participation in Guideline Amendment Process

Rule 5.1 Public Comment File

The Office of Legislative and Public Affairs 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 5.2 Notice of Priorities

The Commission shall publish annually in the Federal Register and

make available to the public 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 5.3 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, the Office of Legislative and Public Affairs shall make

the data and reports available to the public as soon as practicable.

Rule 5.4 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 standing advisory groups: the Practitioners'

Advisory Group and the Probation Officers' Advisory Group.

Upon creating an advisory group, the Commission may prescribe such

policies regarding the conduct of meetings and operation of the group

as the Commission deems necessary or appropriate. The Commission also

may delegate to an advisory group the responsibility for developing

such policies.

In addition, the Commission expects to solicit input, from time to

time, from outside groups representing the federal judiciary,

prosecutors, defense attorneys, crime victims, and other interested

groups.

Part VI--Information About the Commission

Rule 6.1 Office(s)

The offices of the Commission are located in the Thurgood Marshall

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

Circle, NE., Washington, DC. 20002-8002.

The office can be reached by telephone 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 6.2 Office of Legislative and Public Affairs

The Office of Legislative and Public Affairs administers the

Commission's policy on Public Access to Sentencing Commission Documents

and Data. See 54 FR 51279 (1989). This office also maintains A Guide to

Publications & Resources that lists all publications and datasets

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

Generally, the Office of Legislative and Public Affairs will

maintain for public inspection by appointment official Commission

documents, meetings and hearing schedules and agendas, approved minutes

of Commission meetings and transcripts of public hearings, public

comment submissions, and other documents (or citations thereto) that

inform Commission decisions or actions.

Rule 6.3 Internet Site

The Commission maintains and updates information and documents on

an Internet web site. The web site is found at: http://www.ussc.gov.

This resource includes general information, such as background

information about the Commission and Commissioners, notices for

scheduled meetings and hearings, minutes of recent meetings,

transcripts of public hearings, listings of Commission priorities and

projects, outstanding public comment solicitations, recently

promulgated amendments, the text of numerous reports and resources

available from the Commission, and the text of the Guidelines Manual

and Commission reports.

Rule 6.4 Information at Federal Depository Libraries

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 Depository Library

system. The location of the nearest Federal Depository Library can be

determined in several ways: (1) By requesting 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) by asking at any local library for the address of the nearest

Federal Depository Library; or (3) by using the Internet at http://

www.access.gpo.gov/su__docs; ``Information Available for Free Public

Use in Federal Depository Libraries'' should be selected. The listing

may be searched by state or by area code.

Rule 6.5 Access to Commission Data Research Consortium

The Commission provides its various databases, excluding individual

identifiers, to the University of

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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, PO 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.

[FR Doc. 97-18959 Filed 7-17-97; 8:45 am]

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