Rule 9038. Bankruptcy Rules Emergency

11 U.S.C. § Rule 9038. Bankruptcy Rules Emergency

• Title: 11 — Bankruptcy
• Part: IX

Text

(a) Conditions for an Emergency. The Judicial Conference of the United States may declare a Bankruptcy Rules emergency if it determines that extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a bankruptcy court, substantially impair the court's ability to perform its functions in compliance with these rules.
(b) Declaring an Emergency.
(1) Content. The declaration must:
(A) designate the bankruptcy court or courts affected;
(B) state any restrictions on the authority granted in (c); and
(C) be limited to a stated period of no more than 90 days.
(2) Early Termination. The Judicial Conference may terminate a declaration for one or more bankruptcy courts before the termination date.
(3) Additional Declarations. The Judicial Conference may issue additional declarations under this rule.
(c) Tolling and Extending Time Limits.
(1) In an Entire District or Division. When an emergency is in effect for a bankruptcy court, the chief bankruptcy judge may, for all cases and proceedings in the district or in a division:
(A) order the extension or tolling of a Bankruptcy Rule, local rule, or order that requires or allows a court, a clerk, a party in interest, or the United States trustee, by a specified deadline, to commence a proceeding, file or send a document, hold or conclude a hearing, or take any other action, despite any other Bankruptcy Rule, local rule, or order; or
(B) order that, when a Bankruptcy Rule, local rule, or order requires that an action be taken "promptly," "forthwith," "immediately," or "without delay," it be taken as soon as is practicable or by a date set by the court in a specific case or proceeding.
(2) In a Specific Case or Proceeding. When an emergency is in effect for a bankruptcy court, a presiding judge may take the action described in (1) in a specific case or proceeding.
(3) When an Extension or Tolling Ends. A period extended or tolled under (1) or (2) terminates on the later of:
(A) the last day of the time period as extended or tolled or 30 days after the emergency declaration terminates, whichever is earlier; or
(B) the last day of the time period originally required, imposed, or allowed by the relevant Bankruptcy Rule, local rule, or order that was extended or tolled.
(4) Further Extensions or Shortenings. A presiding judge may lengthen or shorten an extension or tolling in a specific case or proceeding. The judge may do so only for good cause after notice and a hearing and only on the judge's own motion or on motion of a party in interest or the United States trustee.
(5) Exception. A time period imposed by statute may not be extended or tolled.
[The Official Forms prescribed pursuant to Rule 9009 may be found on the United States Courts website.]

History

(Added Apr. 24, 2023, eff. Dec. 1, 2023; amended Apr. 2, 2024, eff. Dec. 1, 2024.) (As added Apr. 26, 2018, eff. Dec. 1, 2018.)

Editorial Notes

Committee Notes on Rules—2023
The rule is new. It provides authority to extend or toll the time limits in these rules during times of major emergencies affecting the bankruptcy courts. The continuing operation of the bankruptcy courts during the COVID–19 pandemic showed that the existing rules are flexible enough to accommodate remote proceedings, service by mail, and electronic transmission of documents. Nevertheless, it appeared that greater flexibility than Rule 9006(b) provides might be needed to allow the extension of certain time periods in specific cases or any extension on a district-wide basis in response to an emergency.
Emergency rule provisions have also been added to the Civil, Criminal, and Appellate Rules. Along with the Bankruptcy Rule, these rules have been made as uniform as possible. But each set of rules serves distinctive purposes, shaped by different origins, traditions, functions, and needs. Different provisions were compelled by these different purposes.
Subdivision (a) specifies the limited circumstances under which the authority conferred by this rule may be exercised. The Judicial Conference of the United States has the exclusive authority to declare a Bankruptcy Rules emergency, and it may do so only under extraordinary circumstances. Those circumstances must relate to public health or safety or affect physical or electronic access to a bankruptcy court. And, importantly, the court's ability to operate in compliance with the Bankruptcy Rules must be substantially impaired.
Under subdivision (b)(1), a Bankruptcy Rules emergency declaration must specify the bankruptcy courts to which it applies because, instead of being nationwide, an emergency might be limited to one area of the country or even to a particular state. The declaration must also specify a termination date that is no later than 90 days from the declaration's issuance. Under subdivisions (b)(2) and (b)(3), however, that time period may be extended by the issuance of additional declarations or reduced by early termination if circumstances change. The declaration must also specify any limitations placed on the authority granted in subdivision (c) to modify time periods.
Subdivisions (c)(1) and (c)(2) grant the authority, during declared Bankruptcy Rules emergencies, to extend or toll deadlines to the chief bankruptcy judge of a district on a district- or division-wide basis or to the presiding judge in specific cases. Unless limited by the emergency declaration, this authority extends to all time periods in the rules that are not also imposed by statute. It also applies to directives to take quick action, such as rule provisions that require action to be taken "promptly," "forthwith," "immediately," or "without delay."
Subdivision (c)(3), which addresses the termination of extensions and tolling, provides a "soft landing" upon the termination of a Bankruptcy Rules emergency. It looks to three possible dates for a time period to expire. An extended or tolled time period will terminate either 30 days after the rules-emergency declaration terminates or when the original time period would have expired, whichever is later—unless the extension or tolling itself expires sooner than 30 days after the declaration's termination. In that case, the extended expiration date will apply.
Subdivision (c)(4) allows fine tuning in individual cases of extensions of time or tollings that have been granted.
Subdivision (c)(5) excepts from the authority to extend time periods any time provision imposed by statute. The Bankruptcy Rules Enabling Act, 28 U.S.C. §2075, does not authorize the Bankruptcy Rules to supersede conflicting laws. Accordingly, a time limit in a rule that is a restatement of a deadline imposed by statute or an incorporation by reference of such a deadline may not be extended under this rule. However, if a statute merely incorporates by reference a time period imposed by a rule, that period may be extended.

Committee Notes on Rules—2024 Amendment
The language of Rule 9038 has been amended as part of the general restyling of the Bankruptcy Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

References in Text
Bankruptcy Rules, referred to in subds. (a) and (c)(1)(A), (B), (3)(B), probably means the Federal Rules of Bankruptcy Procedure, which are set out in this Appendix.

Length Limits Stated in Part VIII of the Federal Rules of Bankruptcy Procedure
Appendix: Length Limits Stated in Part VIII of the Federal Rules of Bankruptcy Procedure can also be found in the order of the Supreme Court amending the Federal Rules of Bankruptcy Procedure, April 26, 2018, available at the Supreme Court website.