[Federal Register Volume 62, Number 138 (Friday, July 18, 1997)]
[Notices]
[Pages 38598-38601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18959]
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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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