Federal judiciary seeks public comment on proposed changes to emergency rules

How can the judiciary better respond to future declared emergencies that impair federal court operations? That’s a question the U.S. Courts are hoping members of the public are willing to offer their opinions on.

Members of the federal judiciary are inviting comment on proposed rule changes to Appellate Rules 2 and 4, as well as new emergency bankruptcy, civil and criminal rules. Changes are proposed for the following:

• Appellate Rules 2 and 4.
• Bankruptcy restyled rules for the 3000 to 6000 Series; Rules 3002.1, 3011 and 8003; new Rule 9038; official bankruptcy forms 101, 309E1, 309E2 and 417A; and new official forms 410C13-1N, 410C13-1R, 410C13-10C, 410C13-10NC and 410C13-10R.
• Civil Rules 15, 72 and new Rule 87.
• New Criminal Rule 62.
• Evidence Rules 106, 615 and 702.

The proposed emergency rules would allow for the activation of some or all of a predetermined set of emergency rules when the Judicial Conference declares a public emergency, the Monday announcement said.

That includes provisions governing the use of remote procedures to conduct court proceedings and to ensure public access to public court proceedings.

The scope of the project isn’t limited solely to pandemics, the announcement noted. Rather, it extends to other possible types of emergencies that might affect the courts.

A key feature of the proposals would be their uniformity in the procedures for declaring and terminating rules emergencies in the courts of appeal, bankruptcy courts and district courts, the U.S. Courts said.

Specifically, the proposals would bring uniformity to the definition of a rules emergency in three ways:

• Determining the Judicial Conference has the sole authority to declare an emergency.
• Defining a rules emergency as 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.”
• Concluding that an emergency declaration ends when the rules emergency conditions no longer exist, allowing the Judicial Conference to simply allow the declaration to expire.

The bench, bar and public can comment on the proposed rules through Feb. 16, 2022. Comments and supporting files must be submitted electronically using the regulations.gov portal.

Public hearings will be conducted virtually via Microsoft Teams beginning in November. The schedule is as follows:

• Appellate Rules: Jan. 14 and. 28, 2022
• Bankruptcy Rules: Jan. 7 and 28, 2022
• Civil Rules: Jan. 6 and Feb. 4, 2022
• Criminal Rules: Nov. 8, 2021, and Jan. 11, 2022
• Evidence Rules: Jan. 21, 2022

Transcripts from the series of public hearings will be available here. 

Those who wish to appear and present testimony regarding a proposed amendment or new rule or form must notify the office of rules committee staff at least 30 days before the scheduled hearing by emailing [email protected].

If approved and Congress takes no action, the rule changes will take effect Dec. 1, 2023.