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Comments Invited on Proposed Rules for Future Emergencies

The bench, bar, and public have been asked to provide comments on a series of proposed rules that would, if approved, guide the Judiciary in responding to future declared emergencies that impair federal court operations. The proposals include amendments to Appellate Rules 2 and 4, and new emergency Bankruptcy, Civil, and Criminal Rules.

The comment period runs from Aug. 6, 2021 to Feb. 16, 2022. Read the proposals as well as instructions for submitting comments and requests to testify at a series of planned public hearings.

The CARES Act addressed the use of remote procedures in criminal proceedings during the current COVID-19 pandemic. In addition to addressing criminal procedure issues for purposes of the current emergency, the Act also assigned a broader project to the Judicial Conference of the United States and the Supreme Court: consideration of rules amendments for future declared emergencies within the deliberative Rules Enabling Act framework.

The resulting proposed emergency rules would allow the Judicial Conference to activate some or all of a predetermined set of emergency rules, including provisions governing the use of remote procedures to conduct court proceedings and to ensure public access to public court proceedings, when a public emergency is declared by the Judicial Conference.

“The scope of the project is not limited to pandemics, but extends to other possible types of emergencies that might affect the courts,” said a June 1 memorandum summarizing the coordinated project. “The advisory committees have invested hundreds of hours of work on this project.”

A key feature of the proposals is that they are uniform to the extent possible and would bring significant uniformity in the procedures for declaring and terminating rules emergencies in the courts of appeal, bankruptcy courts, and district courts.

According to the memorandum, written on behalf of the Judiciary’s advisory committees on Appellate, Bankruptcy, Civil, and Criminal Rules, the proposals are uniform in the following key ways:

  1. The Judicial Conference has the sole authority to declare an emergency.
  2. The definition of a rules emergency. “A rules emergency is found when: extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, substantially impair the court’s ability to perform its functions in compliance with these rules.”
  3. An emergency declaration ends when the rules emergency conditions no longer exist. The termination of an emergency order is discretionary, meaning that the Judicial Conference can simply allow the declaration to expire.

The emergency rules would take effect in December 2023, if they are approved at each stage of the Enabling Act process and if Congress takes no action.

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