Federal Rulemaking Process
FEDERAL RULES OF PRACTICE AND PROCEDURE
OFFICE OF THE U.S. COURTS
RALPH MECHAM, DIRECTOR
rules govern procedure, practice, and evidence in the federal
courts. They set forth the procedures for the conduct of court
proceedings and serve as a pattern for the procedural rules adopted
by many state court systems.
has authorized the federal judiciary to prescribe the rules of
practice, procedure, and evidence for the federal courts, subject
to the ultimate legislative right of the Congress to reject, modify,
or defer any of the rules. The authority and procedures for promulgating
rules are set forth in the Rules Enabling Act. 28 U.S.C. §§
Conference of the United States is also required by statute to
"carry on a continuous study of the operation and effect of the
general rules of practice and procedure." 28 U.S.C. § 331.
As part of this continuing obligation, the Conference is authorized
to recommend amendments and additions to the rules to promote
- the just
determination of litigation, and
- the elimination
of unjustifiable expense and delay.
Conference's responsibilities as to rules are coordinated by its
Committee on Rules of Practice and Procedure, commonly referred
to as the "Standing Committee." 28 U.S.C. § 2073(b).
The Judicial Conference has authorized the appointment of five
advisory committees to assist the Standing Committee, dealing
respectively with the appellate, bankruptcy, civil, criminal,
and evidence rules. 28 U.S.C. § 2073(a)(2). The Standing
Committee reviews and coordinates the recommendations of the five
advisory committees, and it recommends to the Judicial Conference
proposed rules changes "as may be necessary to maintain consistency
and otherwise promote the interests of justice." 28 U.S.C. §
Committee and the advisory committees are composed of federal
judges, practicing lawyers, law professors, state chief justices,
and representatives of the Department of Justice. Each committee
has a reporter, a prominent law professor, who is responsible
for coordinating the committee's agenda and drafting appropriate
amendments to the rules and explanatory committee notes.
Director for Judges Programs of the Administrative Office of the
United States Courts currently serves as secretary to the Standing
Committee, coordinates the operational aspects of the rules process,
and maintains the records of the committees. The Rules Committees
Support Office of the Administrative Office provides the day to
day administrative and legal support for the secretary and the
Meetings and Records
of the rules committees are open to the public and are widely
announced. All records of the committees, including minutes of
committee meetings, suggestions and comments submitted by the
public, statements of witnesses, transcripts of public hearings,
and memoranda prepared by the reporters, are public and are maintained
by the secretary. Copies of the rules and proposed amendments
are available from the Rules Committees Support Office. The proposed
amendments are also published on the Judiciary's website <http:\\www.uscourts.gov>.
THE RULES ARE AMENDED
and substantial impact of the rules on the practice of law in
the federal courts demands exacting and meticulous care in drafting
rule changes. The rulemaking process is time-consuming and involves
a minimum of seven stages of formal comment and review. From beginning
to end, it usually takes two to three years for a suggestion to
be enacted as a rule.
however, may be expedited when there is an urgent need to amend
individuals and organizations are provided an opportunity to comment
on proposed rules amendments and to recommend alternative proposals.
The comments received from this extensive and thorough public
examination are studied very carefully by the committees and generally
improve the amendments. The committees actively encourage the
submission of comments, both positive and negative, to ensure
that proposed amendments have been considered by a broad segment
of the bench and bar.
1. INITIAL CONSIDERATION BY THE ADVISORY COMMITTEE
suggestions for changes
changes in the rules are suggested by judges, clerks of court,
lawyers, professors, government agencies, or other individuals
and organizations. They are considered in the first instance by
appropriate advisory committees (appellate, bankruptcy, civil,
criminal, or evidence). Suggestions for changes, additions, or
deletions must be submitted in writing to the secretary, who acknowledges
each letter and distributes it to the chair of the Standing Committee
and the chair and reporter of the advisory committee.
normally analyzes the suggestions and makes appropriate recommendations
to the advisory committee. The suggestions from the public and
the recommendations of the reporter are placed on the advisory
committee's agenda and are normally discussed at its next meeting.
The advisory committees usually meet twice a year in the spring
and fall, and they also conduct business by telephone and correspondence.
a suggestion for a change in the rules, the advisory committee
may take several courses of action, including:
the suggestion, either completely or with modifications or limitations;
action on the suggestion or seeking additional information regarding
its operation and impact;
a suggestion because it does not have merit or would be inconsistent
with other rules or a statute; or
a suggestion because, although it may be meritorious, it simply
is not necessary or important enough to warrant the significant
step of an amendment to the federal rules.
is required, to the extent feasible, to advise the person making
a suggestion of the action taken on it by the advisory committee.
advisory committee decides initially that a particular change
in the rules would be appropriate, it normally asks its reporter
to prepare a draft amendment to the rules and an explanatory committee
note. The draft amendment and committee note are discussed and
voted upon at a committee meeting.
Committee has a style subcommittee that works with the respective
advisory committees in reviewing proposed amendments to ensure
that the rules are written in clear and consistent language. In
addition, the reporter of the Standing Committee and the reporters
of the five advisory committees are encouraged to work together
to promote clarity and consistency among the various sets of federal
2. PUBLICATION AND PUBLIC COMMENT
advisory committee votes initially to recommend an amendment to
the rules, it must obtain the approval of the Standing Committee,
or its chair, to publish the proposed amendment for public comment.
In seeking publication, the advisory committee must explain to
the Standing Committee the reasons for its proposal, including
any minority or separate views.
is approved, the secretary arranges for printing and distribution
of the proposed amendment to the bench and bar, to publishers,
and to the general public. More than 10,000 persons and organizations
are on the mailing list, including
judges and other federal court officers,
federal government agencies and officials,
- law schools,
- bar associations,
lawyers, individuals, and organizations requesting distribution.
to promote public comment, the proposed amendments are sent to
points-of-contact that have been established with over 40 state
is normally given 6 months to comment in writing to the secretary
regarding the proposed amendment. In an emergency, a shorter time
period may be authorized by the Standing Committee.
6-month comment period, the advisory committee schedules one or
more public hearings on the proposed amendments. Persons who wish
to appear and testify at the hearings are required to contact
the secretary at least 30 days before the hearings.
3. CONSIDERATION OF THE PUBLIC COMMENTS AND FINAL APPROVAL
BY THE ADVISORY COMMITTEE
At the conclusion
of the public comment period, the reporter is required to prepare
a summary of the written comments received from the public and
the testimony presented at the hearings. The advisory committee
then takes a fresh look at the proposed rule changes in light
of the written comments and testimony.
If the advisory
committee decides to make a substantial change in its proposal,
it may provide a period for additional public notice and comment.
advisory committee decides to proceed in final form, it submits
the proposed amendment to the Standing Committee for approval.
Each proposed amendment must be accompanied by a separate report
summarizing the comments received from the public and explaining
any changes made by the advisory committee following the original
publication. The advisory committee's report must also include
minority views of any members who wish to have their separate
4. APPROVAL BY THE STANDING COMMITTEE
Committee considers the final recommendations of the advisory
committee and may accept, reject, or modify them. If the Standing
Committee approves a proposed rule change, it will transmit it
to the Judicial Conference with a recommendation for approval,
accompanied by the advisory committee's reports and the Standing
Committee's own report explaining any modifications it made. If
the Standing Committee makes a modification that constitutes a
substantial change from the recommendation of the advisory committee,
the proposal will normally be returned to the advisory committee
with appropriate instructions.
5. JUDICIAL CONFERENCE APPROVAL
Conference normally considers proposed amendments to the rules
at its September session each year. If approved by the Conference,
the amendments are transmitted promptly to the Supreme Court.
6. SUPREME COURT APPROVAL
Court has the authority to prescribe the federal rules, subject
to a statutory waiting period. 28 U.S.C. §§ 2072, 2075.
The Court must transmit proposed amendments to Congress by May
1 of the year in which the amendment is to take effect. 28 U.S.C.
§§ 2074, 2075.
7. CONGRESSIONAL REVIEW
has a statutory period of at least 7 months to act on any rules
prescribed by the Supreme Court. If the Congress does not enact
legislation to reject, modify, or defer the rules, they take effect
as a matter of law on December 1. 28 U.S.C. §§ 2074,
| STEP 1
- Suggestion for a change in the rules.
(Submitted in writing to the secretary.)
- Referred by the secretary to the appropriate
- Considered by the advisory committee.
at the next committee meeting.
- If approved, the advisory committee
seeks authority from the Standing Committee to circulate
to bench and bar for comment.
at the same meeting or the next committee meeting.
the public comment period.
- Advisory committee considers the amendment
afresh in light of public comments and testimony at
one or two months after the close of the comment period.
- Advisory committee approves amendment
in final form and transmits it to the Standing Committee.
one or two months after the close of the comment period.
- Standing Committee approves amendment,
with or without revisions, and recommends approval by
the Judicial Conference.
at its June meeting.
- Judicial Conference approves amendment
and transmits it to the Supreme Court.
at its September session.
- The Supreme Court prescribes the amendment.
- Congress has statutory time period
in which to enact legislation to reject, modify, or
defer the amendment.
- Absent Congressional action, the amendment