Rules of Practice and Procedure

Issuing agencies

Abstract

The United States Sentencing Commission is considering promulgating amendments to its Rules of Practice and Procedure. This notice sets forth the proposed amendment to the Commission's Rules and synopsis of the issues addressed by the proposed amendment. This notice also sets forth several issues for comment together with the proposed amendment.

Full Text

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<title>Federal Register, Volume 91 Issue 170 (Thursday, September 3, 2026)</title>
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[Federal Register Volume 91, Number 170 (Thursday, September 3, 2026)]
[Notices]
[Pages 56724-56731]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-17994]


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UNITED STATES SENTENCING COMMISSION


Rules of Practice and Procedure

AGENCY: United States Sentencing Commission.

ACTION: Notice and request for public comment.

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SUMMARY: The United States Sentencing Commission is considering 
promulgating amendments to its Rules of Practice and Procedure. This 
notice sets forth the proposed amendment to the Commission's Rules and 
synopsis of the issues addressed by the proposed amendment. This notice 
also sets forth several issues for comment together with the proposed 
amendment.

DATES: Written public comment regarding the proposed amendment and 
issues for comment set forth in this notice should be received by the 
Commission not later than October 26, 2026. Public comment regarding 
the proposed amendment received after the close of the comment period 
may not be considered.

ADDRESSES: There are two methods for submitting public comment.
    Electronic Submission of Comments. Comments may be submitted 
electronically via the Commission's Public Comment Submission Portal at 
<a href="https://comment.ussc.gov">https://comment.ussc.gov</a>. Follow the online instructions for submitting 
comments.
    Submission of Comments by Mail. Comments may be submitted by mail 
to the following address: United States Sentencing Commission, One 
Columbus Circle, NE, Suite 2-500, Washington, DC 20002-8002, Attention: 
Public Affairs--Rules of Practice and Procedure.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs 
Specialist, (202) 502-4597.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day

[[Page 56725]]

of May each year pursuant to 28 U.S.C. 994(p).
    Section 995(a)(1) of title 28, United States Code, authorizes the 
Commission to establish general policies and promulgate rules and 
regulations as necessary for the Commission to carry out the purposes 
of the Sentencing Reform Act of 1984. The Commission originally adopted 
the Rules of Practice and Procedure in July 1997 and amended the Rules 
in 2001, 2007, and 2016. The Commission is considering promulgating 
amendments to these rules. In accordance with Rule 1.2 of its Rules of 
Practice and Procedure, the Commission hereby invites the public to 
provide comment on the proposed amendment set forth in this notice.
    Bracketed text within the proposed amendment indicates a heightened 
interest on the Commission's part in comment and suggestions on whether 
the proposed provision is appropriate. Additionally, the Commission has 
highlighted certain issues for comment and invites suggestions on how 
the Commission should respond to those issues.
    The text of the proposed amendment and related issues for comment 
are set forth below. Additional information pertaining to the proposed 
amendment and issues for comment described in this notice may be 
accessed through the Commission's website at <a href="http://www.ussc.gov">www.ussc.gov</a>.
    Authority: 28 U.S.C. 995(a)(1); USSC Rules of Practice and 
Procedure, Rule 1.2.

Carlton W. Reeves,
Chair.

1. Rules of Practice and Procedure

    Synopsis of Proposed Amendment: This proposed amendment revises the 
Commission's Rules of Practice and Procedure. The Rules were issued in 
1997 ``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.'' See Rule 1.1 of the 
Commission's Rules of Practice and Procedure. The Commission is 
undertaking a comprehensive review of its Rules to determine whether 
any amendments are appropriate to further the Commission's statutory 
purposes and enhance public engagement with and understanding of the 
Commission's work. As part of the review, the Commission is examining 
current practices and considering possible changes to the Rules 
regarding: (a) what Commission work is conducted in public; (b) what 
Commission policymaking materials should be made public; (c) how 
stakeholder and public involvement is structured, including through 
rules about ex parte communications; and (d) what analyses supporting 
agency policymaking are conducted and released publicly.
    The Commission is publishing this proposed amendment to inform that 
review. The proposed amendment contains eight parts (Parts A through 
H). The Commission is considering whether to promulgate any or all of 
these parts, as they are not mutually exclusive.
    Part A of the proposed amendment would make changes to the 
introduction (``About the Commission'') of the Rules to closely track 
the statutory purposes of the Commission set forth in 28 U.S.C. 991(b).
    Part B of the proposed amendment would revise Rule 2.2 (Voting 
Rules for Action by the Commission) to provide that the decision to 
make an amendment available for retroactive application shall require 
the affirmative vote of at least five members at a public meeting. It 
brackets the possibility of adding a provision stating that if there 
are only four members serving on the Commission, the affirmative vote 
of four members at a public meeting shall suffice to authorize such 
action. An issue for comment is also provided.
    Part C of the proposed amendment would amend Rules 3.1 (Meetings) 
and 3.4 (Public Hearings) to allow a representative of the Committee on 
Criminal Law of the Judicial Conference of the United States and a 
representative of the Federal Public and Community Defenders to 
participate in meetings and public hearings of the Commission.
    Part D of the proposed amendment sets forth three options for 
revising the provision of Rule 4.3 (Notice and Comment on Proposed 
Amendments) that addresses ex parte communications. Issues for comment 
are also provided.
    Part E of the proposed amendment would amend Rule 5.2 (Notice of 
Priorities) to make the procedure for setting the Commission's 
policymaking agenda every year more participatory and transparent.
    Part F of the proposed amendment would amend Rule 5.3 (Information 
Relevant to the Amendment Process) to require the public disclosure of 
(1) meeting materials generated for or given to the commissioners in 
preparation for a public or nonpublic meeting; (2) written minutes of 
any public or nonpublic meeting held by the Commission; and (3) any 
document approved for public release by a majority of members of the 
Commission. Issues for comment are also provided.
    Part G of the proposed amendment would make technical and clerical 
changes to Rules 3.2 (Public Meetings), 3.3 (Nonpublic Meetings), and 
5.4 (Advisory Groups).
    Part H of the proposed amendment provides an issue for comment on 
possible further revisions to the Rules.

(A) Changes to the Introduction to the Rules

    Synopsis of Proposed Amendment: The introduction to the Rules was 
added in 2016 and intended to provide general background concerning the 
Commission. The current text of this introduction builds upon previous 
editions of the Commission's Annual Report, each of which includes at 
the beginning a chapter that provides an overview of the Commission 
(including its purposes and organization). Part A of the proposed 
amendment would amend the introduction to the Rules to closely track 
the statutory purposes of the Commission set forth in 28 U.S.C. 991(b).
Proposed Amendment
    The undesignated section of the Rules of Practice and Procedure 
captioned ``About the Commission'' is amended by striking the 
following:
    ``The United States Sentencing Commission is an independent agency 
in the judicial branch of government. Its principal purposes are:
    (1) to establish sentencing policies and practices for the federal 
courts, including guidelines to be consulted regarding the appropriate 
form and severity of punishment for offenders convicted of federal 
crimes;
    (2) to advise and assist Congress and the executive branch in the 
development of effective and efficient crime policy; and
    (3) to collect, analyze, research, and distribute a broad array of 
information on federal crime and sentencing issues, serving as an 
information resource for Congress, the executive branch, the courts, 
criminal justice practitioners, the academic community, and the 
public.'';

and inserting the following:

    ``The United States Sentencing Commission is an independent agency 
in the judicial branch of government. Its purposes, as set forth by 
Congress in 28 U.S.C. 991(b), are to:
    (1) establish sentencing policies and practices for the Federal 
criminal justice system that--
    (A) assure the meeting of the purposes of sentencing as set forth 
in section 3553(a)(2) of title 18, United States Code;
    (B) provide certainty and fairness in meeting the purposes of 
sentencing, avoiding unwarranted sentencing disparities among 
defendants with

[[Page 56726]]

similar records who have been found guilty of similar criminal conduct 
while maintaining sufficient flexibility to permit individualized 
sentences when warranted by mitigating or aggravating factors not taken 
into account in the establishment of general sentencing practices; and
    (C) reflect, to the extent practicable, advancement in knowledge of 
human behavior as it relates to the criminal justice process; and
    (2) develop means of measuring the degree to which the sentencing, 
penal, and correctional practices are effective in meeting the purposes 
of sentencing as set forth in section 3553(a)(2) of title 18, United 
States Code.''.

(B) Voting Rules for Commission Action

    Synopsis of Proposed Amendment: Rule 2.2 (Voting Rules for Action 
by the Commission) sets forth the voting rules for action by the 
Commission. Rule 2.2(a) states that ``[e]xcept 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.'' Consistent with 28 U.S.C. 995(d), Rule 
2.2(a) further provides that ``[a] quorum shall consist of a majority 
of the members then serving.''
    Rule 2.2(b) sets forth more stringent vote requirements for actions 
related to the promulgation of amendments to the guidelines, policy 
statements, and official commentary. Consistent with 28 U.S.C. 994(a), 
Rule 2.2(b) provides that ``[p]romulgation of guidelines, policy 
statements, official commentary and amendments thereto shall require 
the affirmative vote of at least four members at a public meeting.'' In 
addition, Rule 2.2(b) provides that ``[p]ublication 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.''
    Rule 2.2(b) also provides that approval of a notice of priorities 
and the adoption or revision of the minutes of a public meeting ``shall 
require the affirmative vote, at a public meeting, of a majority of the 
members then serving.''
    Rule 2.2(c) provides that ``[a]ction on other matters may be taken 
(1) at a nonpublic meeting; or (2) without a meeting by written or oral 
communication (e.g., by `notation voting'), and shall be based on the 
affirmative vote of a majority of the members then serving.''
    Rule 2.2(d) sets forth the requirements for the reconsideration of 
any Commission action. It states that ``[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.'' It also requires that ``[f]our votes are 
necessary to reconsider a Commission vote on any question on which a 
four-vote majority is required.''
    The Commission is considering whether the voting threshold should 
be increased for certain Commission actions of heightened significance. 
Part B of the proposed amendment would amend Rule 2.2(b) to provide 
that the decision to make an amendment available for retroactive 
application shall require the affirmative vote of at least five members 
at a public meeting. It brackets the possibility of adding a provision 
stating that if there are only four members serving on the Commission, 
the affirmative vote of four members at a public meeting shall suffice 
to authorize such action. Part B of the proposed amendment would also 
make conforming changes to Rule 2.2(d) relating to the votes necessary 
for the reconsideration of Commission actions.
    An issue for comment is also provided.
Proposed Amendment
    Rule 2.2(b) is amended by inserting after the paragraph that begins 
``Promulgation of guidelines, policy statements, official commentary, 
and amendments thereto'' the following new paragraph:
    ``Action to make an amendment available for retroactive application 
to previously sentenced, imprisoned defendants (see 28 U.S.C. 994(u); 
18 U.S.C. 3582(c)(2)) shall require the affirmative vote of at least 
five members at a public meeting. [Provided, however, that if there are 
only four members serving on the Commission, the affirmative vote of 
four members at a public meeting shall suffice to authorize such 
action.]''.
    Rule 2.2(d) is amended by striking ``Four votes are necessary to 
reconsider a Commission vote on any question on which a four-vote 
majority is required'' and inserting ``If the underlying action 
requires the affirmative vote of more than a majority of the members 
then serving, a motion to reconsider the Commission vote on that 
specific action shall require the same minimum voting threshold''.
Issue for Comment
    1. Part B of the proposed amendment would amend Rule 2.2(b) to 
provide that the decision to make an amendment available for 
retroactive application shall require the affirmative vote of at least 
five members at a public meeting. The Commission seeks comment on 
whether it should increase the voting threshold for any other 
Commission action. If so, what Commission actions should require an 
elevated voting threshold, such as a supermajority requirement? What 
should the voting threshold be for such Commission actions and why? For 
example, should the Commission require the affirmative vote of at least 
five members at a public meeting for amendments to the Guidelines 
Manual (or the affirmative vote of four members if there are only four 
members serving on the Commission) that may result in increasing a term 
of imprisonment recommended in the guidelines? Should the Commission 
instead amend the Rules to provide that promulgation of any guideline, 
policy statement, official commentary, and amendments thereto shall 
require the affirmative vote of at least five members at a public 
meeting (or the affirmative vote of four members if there are only four 
members serving on the Commission)?

(C) Participation in Meetings and Hearings of Representatives From the 
Committee on Criminal Law and the Federal Public and Community 
Defenders

    Synopsis of Proposed Amendment: Rule 3.1 (Meetings) provides that 
the ``Chair shall call and preside at Commission meetings.'' It also 
provides for participation in meetings of commissioners from remote 
locations. Rule 3.4 (Public Hearings) sets forth provisions relating to 
how the Commission may convene a public hearing on any matter involving 
the promulgation of guidelines or any other matter affecting the 
Commission's business.
    The Commission is evaluating whether to expand the involvement of 
specific judicial branch stakeholders in its meetings and hearings. 
Part C of the proposed amendment would amend the Rules to allow a 
representative of the Committee on Criminal Law of the Judicial 
Conference of the United States and a representative of the Federal 
Public and Community Defenders to participate in meetings and public 
hearings of the Commission. Specifically, it would amend Rule 3.1 
(Meetings) to allow the attendance of representatives of such 
institutions in [public meetings and nonpublic briefing sessions of the 
Commission][all Commission meetings at which Commission staff is 
present], except for those parts of meetings in which matters not 
related to policymaking or data are addressed. These representatives 
would

[[Page 56727]]

have access to the same materials relating to policymaking provided to 
commissioners in preparation for meetings. Additionally, Part C of the 
proposed amendment would amend Rule 3.4 (Public Hearings) to allow 
these representatives to participate in public hearings alongside 
commissioners and, as necessary, ask questions to witnesses.
Proposed Amendment
    Rule 3.1 is amended by striking the following:
    ``The Chair shall call and preside at Commission meetings. See 28 
U.S.C. 993(a). In the absence of the Chair, the Chair will designate a 
Vice Chair to preside.
    Members may participate in meetings from remote locations by 
electronic means, including telephone, satellite, and video conference 
devices.'';

and inserting the following:

    ``(a) The Chair shall call and preside at Commission meetings. See 
28 U.S.C. 993(a). In the absence of the Chair, the Chair will designate 
a Vice Chair to preside.
    (b) Members may participate in meetings from remote locations by 
electronic means, including telephone, satellite, and video conference 
devices.
    (c) One representative designated by the Committee on Criminal Law 
of the Judicial Conference of the United States, and one representative 
designated by the Federal Public and Community Defenders, shall be 
permitted to attend [public meetings and nonpublic briefing sessions of 
the Commission][all Commission meetings at which Commission staff is 
present]. These designated representatives may participate in such 
meetings by engaging in deliberations with commissioners and other 
meeting participants, requesting information and documents, and 
presenting relevant information to the Commission. The representatives 
designated under this paragraph shall not attend any portion of a 
meeting dedicated to non-policy, non-data, or internal administrative 
matters (such as approval of budget requests, administrative and 
personnel issues, decisions on contracts and cooperative agreements, 
and decisions on litigation and administrative proceedings involving 
the Commission) or in which the Commission will receive or share 
information that is inappropriate for public disclosure. In addition, 
the representatives designated under this paragraph may not vote or 
make or second motions at meetings.
    To facilitate informed participation, the designated 
representatives shall receive the same meeting materials distributed to 
commissioners. However, the meeting materials distributed to the 
designated representatives shall not include, or shall be redacted to 
prevent disclosure of, information that is not related to policymaking 
or data, or is inappropriate for public disclosure, including 
confidential or sensitive information regarding budgetary allocations 
or appropriations, personnel and staffing matters, and procurement and 
contract actions. Each designated representative may be accompanied at 
Commission meetings by one staff member from their respective 
organization to provide necessary technical, administrative, or 
advisory support.''.
    Rule 3.4 is amended by inserting after the paragraph that begins 
``The Commission may specify the format'' the following new paragraph:
    ``The representatives of the Committee on Criminal Law of the 
Judicial Conference of the United States and the Federal Public and 
Community Defenders, as designated under Rule 3.1(c), shall be 
permitted to actively participate in such a hearing alongside 
commissioners and are authorized, as necessary and relevant to the 
proceeding, to pose questions to any witness called to testify during 
the hearing. To facilitate informed participation, the designated 
representatives shall be provided with all written testimony submitted 
as soon as practicable prior to the commencement of the proceeding.''.

(D) Ex Parte Communications

    Synopsis of Proposed Amendment: Rule 4.3 (Notice and Comment on 
Proposed Amendments) contains a provision relating to ex parte 
communications. It provides that ``[t]he Commission does not intend to 
solicit ex parte communications (i.e., communications outside the 
public comment process) on the merits of a proposed amendment from 
outside parties.'' The Commission is considering whether to change how 
the Rules address ex parte communications on the merits of a proposed 
amendment, during the pendency of the proposed amendment, from outside 
parties. Three options are provided.
    Option 1 would delete the ex parte communications provision 
currently contained in Rule 4.3. The absence of a formal policy 
governing ex parte communications in the Rules implies that such 
communications--whether actively solicited or passively received--are 
permissible during the pendency of a proposed amendment and exempt from 
any mandatory disclosure requirements. The absence of a mandatory 
disclosure requirement would not impede the Commission from voluntarily 
disclosing any ex parte communications received during the pendency of 
a proposed amendment.
    Option 2 would amend the ex parte communications provision set 
forth in Rule 4.3 to permit all forms of ex parte communications, 
including both solicited and unsolicited communications, while 
requiring public disclosure only of those communications that satisfy a 
specified standard. It brackets two alternatives for the standard. 
Option 2 would require that ``[a]ny ex parte communications [that 
provides significant, material information addressing the merits of a 
pending proposed amendment][that is of substantial significance and 
clearly intended to affect the ultimate decision on a pending proposed 
amendment] be treated as public comment and disclosed accordingly.'' 
Option 2 would define the term ``ex parte communication'' as ``any 
written or oral communication by an outside party to an individual 
member of the Commission, or to the members collectively, concerning 
the substance of a proposed amendment to the guidelines, policy 
statements, or commentary that is not transmitted through the formal 
public comment process.'' Option 2 also brackets the possibility of 
adding a provision excluding from the definition of ex parte 
communications ``any communication with: (1) members of Congress, 
congressional staff, and legislative branch agencies; (2) members of 
the Federal Judiciary (including the Judicial Conference of the United 
States and its committees); (3) United States Probation Officers; (4) 
the Federal Bureau of Prisons; (5) the Criminal Division of the United 
States Department of Justice; and (6) representatives of the Federal 
Public and Community Defenders.''
    Option 3 would amend the ex parte communications provision set 
forth in Rule 4.3 to permit all forms of ex parte communications, 
including both solicited and unsolicited communications, while 
requiring public disclosure of all such communications. It would 
provide the same definition of ``ex parte communication'' as Option 2. 
In addition, like Option 2, Option 3 brackets the possibility of adding 
a provision excluding from the definition of ex parte communications 
``any communication with: (1) members of Congress, congressional staff, 
and legislative branch agencies; (2) members of the Federal Judiciary 
(including the Judicial Conference of the United States and its 
committees); (3) United States Probation Officers; (4) the Federal

[[Page 56728]]

Bureau of Prisons; (5) the Criminal Division of the United States 
Department of Justice; and (6) representatives of the Federal Public 
and Community Defenders.''
    Issues for comment are also provided.
Proposed Amendment
[Option 1 (No Provision Addressing Ex Parte Communications)
    Rule 3.4 is amended by striking ``The Commission does not intend to 
solicit ex parte communications (i.e., communications outside the 
public comment process) on the merits of a proposed amendment from 
outside parties.''.]
[Option 2 (Permitting Ex Parte Communications But Subject to Certain 
Disclosure Requirements Based on a Standard)
    Rule 3.4 is amended by striking the following:
    ``The Commission does not intend to solicit ex parte communications 
(i.e., communications outside the public comment process) on the merits 
of a proposed amendment from outside parties.'';

and inserting the following:

    ``Any ex parte communication [that provides significant, material 
information addressing the merits of a pending proposed amendment][that 
is of substantial significance and clearly intended to affect the 
ultimate decision on a pending proposed amendment] shall be treated as 
public comment and its contents (including a record of the date and the 
substance of the communication) shall be disclosed accordingly as soon 
as practicable after the communication. For purposes of this provision, 
an `ex parte communication' means any written or oral communication by 
an outside party to an individual member of the Commission, or to the 
members collectively, concerning the substance of a proposed amendment 
to the guidelines, policy statements, or commentary that is not 
transmitted through the formal public comment process. [This definition 
does not include any communication with: (1) members of Congress, 
congressional staff, and legislative branch agencies; (2) members of 
the Federal Judiciary (including the Judicial Conference of the United 
States and its committees); (3) United States Probation Officers; (4) 
the Federal Bureau of Prisons; (5) the Criminal Division of the United 
States Department of Justice; and (6) representatives of the Federal 
Public and Community Defenders.]''.]
[Option 3 (Permitting Ex Parte Communications But Subject to 
Disclosure)
    Rule 3.4 is amended by striking the following:
    ``The Commission does not intend to solicit ex parte communications 
(i.e., communications outside the public comment process) on the merits 
of a proposed amendment from outside parties.'';

and inserting the following:

    ``All ex parte communications shall be treated as public comment 
and their contents (including a record of the date and the substance of 
any such communication) shall be disclosed accordingly as soon as 
practicable after the communication. For purposes of this provision, an 
`ex parte communication' means any written or oral communication by an 
outside party to an individual member of the Commission, or to the 
members collectively, concerning the substance of a proposed amendment 
to the guidelines, policy statements, or commentary that is not 
transmitted through the formal public comment process. [This definition 
does not include any communication with: (1) members of Congress, 
congressional staff, and legislative branch agencies; (2) members of 
the Federal Judiciary (including the Judicial Conference of the United 
States and its committees); (3) United States Probation Officers; (4) 
the Federal Bureau of Prisons; (5) the Criminal Division of the United 
States Department of Justice; and (6) representatives of the Federal 
Public and Community Defenders.]''.]
Issues for Comment
    1. Part D of the proposed amendment provides options for amending 
Rule 4.3 (Notice and Comment on Proposed Amendments) to address ex 
parte communications on the merits of a proposed amendment to the 
Guidelines Manual, during the pendency of the proposed amendment, from 
outside parties. The Commission seeks comment on whether it should 
adopt a provision relating to ex parte communications that applies more 
broadly to other Commission actions that require a notice-and-comment 
rulemaking procedure, such as proposed priorities and amendments to the 
Rules of Practice and Procedure.
    2. Option 2 would amend the ex parte communications provision set 
forth in Rule 4.3 to permit all forms of ex parte communications, 
including both solicited and unsolicited communications, while 
requiring public disclosure only of those communications that satisfy a 
specified standard. It brackets two alternatives for the standard. 
Option 2 would require that any ex parte communications [that provides 
significant, material information addressing the merits of a pending 
proposed amendment][that is of substantial significance and clearly 
intended to affect the ultimate decision on a pending proposed 
amendment] be treated as public comment and disclosed accordingly. The 
Commission seeks comment on which, if any, of the bracketed 
alternatives for the standard should the Commission provide to require 
public disclosure of ex parte communication. Should the Commission 
provide a different standard? If so, what standard should the 
Commission provide, and why?
    3. Both Options 2 and 3 would require public disclosure of some or 
all ex parte communications. Both options would require that such 
communications shall be treated as public comment and their contents 
(including a record of the date and the substance of any such 
communication) shall be disclosed accordingly as soon as practicable 
after the communication. The Commission invites comment regarding the 
specific elements and substantive content that should be included in 
the disclosure of ex parte communications.
    4. Rulemaking decisions at the Commission are made solely by the 
voting members of the Commission. Consequently, both Options 2 and 3 
would define ex parte communications strictly in relation to individual 
voting members of the Commission or such members collectively. 
Communications directed to Commission staff are excluded from this 
classification. The Commission seeks comment on whether the definition 
of ex parte communications should also apply to communications directed 
to Commission staff.

(E) Increasing Transparency and Participation in the Commission's Work 
Agenda-Setting

    Synopsis of Proposed Amendment: The Sentencing Reform Act of 1984 
states that guideline amendments may be submitted to Congress during a 
window that opens once each year. See 28 U.S.C. 994(p). Accordingly, 
Rule 5.2 (Notice of Priorities) establishes a three-step procedure for 
setting the Commission's policymaking agenda on an annual basis. First, 
the Commission publishes for comment a set of ``proposed priorities'' 
for future Commission inquiry and possible action, including areas for 
possible amendments to guidelines, policy statements, and commentary. 
Second,

[[Page 56729]]

the Commission receives and considers comment from the public on the 
proposed priorities. Finally, the Commission selects and publishes a 
set of ``final priorities.''
    Part E of the proposed amendment would revise these steps to make 
agenda-setting at the Commission more participatory and transparent. 
Under revised Rule 5.2, the Commission would open its agenda-setting 
process by soliciting proposed priorities from the public, 
stakeholders, Commission staff, and commissioners themselves. After 
publishing all those proposals on its website, the Commission would 
open its annual planning session by soliciting further information 
about the proposals at a public hearing. Next, the Commission would--
during the nonpublic portion of the planning session--deliberate over 
(and, if necessary, refine) the proposed priorities to craft an agenda 
that best fulfills the Commission's statutory purposes as set forth at 
28 U.S.C. 991(b). Finally, the Commission would--during a public 
meeting at the end of the annual planning session--vote to adopt a list 
of final priorities as the Commission's policymaking agenda.
    Part E of the proposed amendment aims to achieve its stated goals 
in several ways. First, by having all groups (both internal and 
external to the Commission) propose and justify policymaking priorities 
in an open fashion, the revised Rule 5.2 would allow the public to 
better understand and shape the scope of the Commission's potential 
agenda. Second, by enumerating relevant statutory duties and powers, 
the revised Rule 5.2 would help the public grasp all the ways the 
Commission can make policy. Third, by requiring the Commission to use 
its statutory purposes as the criteria for selecting final priorities, 
the revised Rule 5.2 would allow the public to understand that the 
Commission determines its policymaking agenda by looking to 
Congressional intent for priorities for future Commission inquiry and 
possible action.
Proposed Amendment
    Rule 5.2(a) is amended by striking the following:
    ``The Commission shall publish annually in the Federal Register, 
and make available to the public, a notice of the proposed 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.
    Subsequent to the deadline for comment on the proposed priorities, 
the Commission shall publish in the Federal Register, and make 
available to the public for inspection, a notice of priorities for 
Commission inquiry and possible action.'';

and inserting the following:

    ``No later than [March][April][May] each year, the Commission shall 
publish a notice in the Federal Register requesting the public to 
submit proposed priorities to inform future Commission inquiries and 
potential policymaking actions. Submissions received pursuant to this 
notice may request the Commission to exercise any of its statutory 
duties or powers, including holding hearings or other events, 
collecting or publishing information, undertaking or funding research, 
issuing instructions to probation officers, conducting training 
programs for persons connected with the sentencing process, providing 
recommendations to Congress, and amending guidelines, policy 
statements, and commentary. See 28 U.S.C. 994-995. Proposed priorities 
may be submitted by individual commissioners, Commission staff, 
Commission advisory groups, stakeholders in the criminal justice 
system, and any member of the public. The period for submitting 
proposed priorities shall be at least [30][45][60] days. Within seven 
days after closing of the submission period, the Commission shall make 
available to the public all submitted proposed priorities on its 
website.''.
    Rules 5.2 is amended--

by redesignating paragraphs (b) through (d) as paragraphs (c) through 
(e), respectively;

and by inserting after paragraph (a) the following new paragraph (b):

    ``(b) No later than [June][July][August] each year, the Commission 
shall hold a planning session to, among other things, prepare an annual 
policymaking agenda. The planning session shall include: (1) a public 
hearing wherein commissioners, Commission staff, Commission advisory 
groups, the Department of Justice, the Federal Public and Community 
Defenders, the Committee on Criminal Law of the Judicial Conference of 
the United States, and others may present and discuss proposed 
priorities; (2) a nonpublic meeting wherein commissioners deliberate 
over and, if necessary, refine proposed priorities; and (3) a public 
meeting wherein members of the Commission vote to adopt a list of 
priorities as the Commission's policymaking agenda. In determining its 
final priorities, the Commission shall adopt those priorities that, 
viewed collectively, best further the Congressional purposes listed at 
28 U.S.C. 991(b).''.

(F) Information Relevant to the Amendment Process

    Synopsis of Proposed Amendment: Rule 5.3 (Information Relevant to 
the Amendment Process) provides that data, reports, and other 
information prepared by Commission staff to inform the Commission's 
fulfillment of priorities and consideration of potential amendments 
might be made publicly available. The Commission is considering whether 
it should make publicly available additional information relevant to 
the amendment process.
    For example, before every Commission meeting (public or nonpublic), 
commissioners receive a compilation of materials prepared by Commission 
staff addressing the topics on the agenda for that meeting. Meeting 
materials include data reports, memoranda discussing policy, legal 
opinions from the Office of the General Counsel, draft proposed 
amendments to the Guidelines Manual, contracts, requests for 
cooperative agreements, documents relating to litigation and 
administrative proceedings involving the Commission, budget requests, 
draft data reports, documents relating to Commission personnel, and 
documents relating to advisory groups. The Commission is considering 
whether some of these materials, as they relate to the Commission's 
priorities and amendment process, should be publicly disclosed.
    In addition, the Commission already publishes on its website the 
minutes of public meetings after their approval by the Commission at a 
public meeting. The Commission is considering whether a written record 
of nonpublic meetings should be also prepared and made publicly 
available.
    Part F of the proposed amendment would amend Rule 5.3 to require 
the public disclosure of (1) meeting materials generated for or given 
to the commissioners in preparation for a public or nonpublic meeting; 
(2) written minutes of any public or nonpublic meeting held by the 
Commission; and (3) any document approved for public release by a 
majority of members of the Commission. The revised rule would also 
provide that any document authorized for public release shall not 
include, or shall be redacted to prevent disclosure of, information 
that is inappropriate for public disclosure,

[[Page 56730]]

including commissioner deliberations, legal opinions, and any other 
confidential, privileged, or personal information.
    Part F of the proposed amendment also includes conforming changes 
to Rules 2.2 (Voting Rules for Action by the Commission), 3.5 (Live 
Webcasts and Written Records), and 6.2 (Availability of Materials for 
Public Inspection; Office of Legislative and Public Affairs).
    Issues for comment are also provided.
Proposed Amendment
    Rule 5.3 is amended by striking the following:

    ``To fulfill Commission priorities and inform consideration of 
potential amendments, the Staff Director shall direct the preparation 
of relevant data, reports, and other information for consideration by 
the Commission. Upon authorization by the Staff Director, the Office of 
Legislative and Public Affairs shall make the data, reports, and other 
information available to the public as soon as practicable.'';

and inserting the following:

    ``(a) To fulfill Commission priorities and inform consideration of 
potential amendments, the Staff Director shall direct the preparation 
of relevant data, reports, and other information for consideration by 
the Commission. Upon authorization by the Staff Director, the Office of 
Legislative and Public Affairs shall make the data, reports, and other 
information available to the public as soon as practicable.
    (b) To ensure transparency, facilitate public observation, and 
promote meaningful public engagement, the following documents shall be 
made available to the public and maintained on the Commission's website 
as provided below.
    (1) A public notice of any public or nonpublic meeting, the meeting 
agenda, and any document, briefing, or information relevant to 
Commission's priorities or the amendment process generated for or given 
to the commissioners in preparation for such a meeting shall be made 
available to the public [at least [seven days] prior to the scheduled 
date of the meeting][no later than [seven days] following the 
adjournment of the meeting].
    (2) The written minutes of any public or nonpublic meeting held by 
the Commission shall be made publicly available no later than [fourteen 
days] following the adjournment of the meeting. The minutes of each 
meeting shall contain a list of all participants in attendance, a 
summary of the topics discussed that are relevant to the Commission's 
priorities or the amendment process, and a record reflecting the final 
vote of each member on any action taken by the Commission.
    (3) Any other document approved for public release by the 
affirmative vote of a majority of the members then serving shall be 
made available to the public as soon as practicable.
    (c) Documents authorized for public release pursuant to this rule 
shall not include, or shall be redacted to prevent disclosure of, 
information that is inappropriate for public disclosure, including 
commissioner deliberations, legal opinions, and any other confidential, 
privileged, or personal information.''.
    Rule 2.2(b) is amended by striking ``Adoption or revision of the 
minutes of a public meeting shall require the affirmative vote, at a 
public meeting, of a majority of the members then serving.''.
    Rule 2.2(c) is amended by striking ``Such matters include the 
approval of budget requests, administrative and personnel issues, 
decisions on contracts and cooperative agreements, decisions on 
workshops and training programs, decisions on publishing reports and 
making recommendations to Congress, decisions to hold hearings and call 
witnesses, decisions on litigation and administrative proceedings 
involving the Commission, decisions relating to the formation and 
membership of advisory groups, the approval pursuant to 28 U.S.C. 
994(w) of a statement of reasons form, notices of proposed priorities, 
extensions of public comment periods, notices of proposed amendments to 
these rules, approval of technical and clerical amendments to these 
rules, and decisions to hold a nonpublic meeting'' and inserting: 
``Such matters include the adoption or revision of the minutes of 
public and nonpublic meetings, the approval of budget requests, 
administrative and personnel issues, decisions on contracts and 
cooperative agreements, decisions on workshops and training programs, 
decisions on publishing reports and making recommendations to Congress, 
decisions to hold hearings and call witnesses, decisions on litigation 
and administrative proceedings involving the Commission, decisions 
relating to the formation and membership of advisory groups, the 
approval pursuant to 28 U.S.C. 994(w) of a statement of reasons form, 
notices of proposed priorities, extensions of public comment periods, 
notices of proposed amendments to these rules, approval of technical 
and clerical amendments to these rules, and decisions to hold a 
nonpublic meeting''.
    Rule 3.5 is amended in the heading by striking ``Live Webcasts and 
Written Records'' and inserting ``Live Webcasts and Written Records of 
Public Meetings and Public Hearings''.
    Rule 6.2 is amended by striking ``approved minutes of Commission 
public meetings'' and inserting ``approved minutes of Commission public 
and nonpublic meetings''.
Issues for Comment
    1. Part F of the proposed amendment would add a new provision at 
Rule 5.3(b)(1) requiring the public release of ``[a] public notice of 
any public or nonpublic meeting, the meeting agenda, and any document, 
briefing, or information relevant to Commission's priorities or the 
amendment process generated for or given to the commissioners in 
preparation for such a meeting.'' Commission meeting materials 
sometimes include preliminary, working drafts of proposed amendments 
for commissioner discussion.
    The Commission seeks comment on what meeting materials relevant to 
the Commission's priorities or the amendment process should be publicly 
released. Should the Commission publicly release additional or 
different documents from the ones listed in Rule 5.3(b)(1)? Should the 
Commission make available to the public preliminary drafts of proposed 
amendments regardless of whether such working documents ultimately 
advance to the formal amendment process? What are the advantages and 
disadvantages of publicly releasing working drafts of potential 
proposed amendments?
    2. The current Rules of Practice and Procedure contain provisions 
relating to the preparation and public release of written minutes of 
public meetings. See Rules 2.2(b), 3.5, 6.2, and 6.3 of the 
Commission's Rules of Practice of Procedure. Part F of the proposed 
amendment would add a new provision at Rule 5.3(b)(2) requiring the 
preparation and public release of written minutes of nonpublic meetings 
held by the Commission that includes a summary of the topics discussed 
that are relevant to the Commission's priorities or the amendment 
process.
    The Commission invites comment on whether to establish a practice 
of preparing and disclosing to the public written records of its 
nonpublic meetings. If so, what should be the scope of such written 
records? Should their scope be strictly limited to disclosing 
information relevant to the Commission's priorities and the amendment 
process, as provided in the proposed amendment? Alternatively,

[[Page 56731]]

should the scope encompass other topics discussed at nonpublic 
meetings, provided that confidential, privileged, or personal 
information is strictly excluded from disclosure? If so, what topics of 
discussion should be included in such a public written record? Should 
the Commission rules require a comprehensive written record of all 
topics discussed in nonpublic meetings, while disclosing to the public 
only the sections pertinent to the Commission's priorities or amendment 
process?
    The Commission further invites comment concerning the specific 
format, structure, and level of detail that written records of 
nonpublic meetings should assume. What should be the content of such 
records? For example, should they only include a summary of topics 
discussed and record of final voting on actions taken by the 
Commission? Should they also include wide-raging items, such as other 
decisions made, tasks assigned, and follow-up actions agreed upon? To 
what extent should the written record of a nonpublic meeting differ 
from the conventional structure of the minutes of public meetings 
(i.e., documents containing list of participants attending, actions 
items, topics discussed, voting results, and actions taken)? For 
example, should the Commission only release to the public a summary of 
the meeting, a list of topics discussed, or a detailed agenda?
    3. The Commission requests comment on whether, rather than 
establishing a standard practice of preparing and publicly disclosing 
written records of all nonpublic meetings, it should limit public 
disclosure to records of specific action matters that may be taken at 
nonpublic meetings (such as decisions to publish reports or make 
recommendations to Congress) contingent upon an explicit request by a 
voting member of the Commission. Should the Commission instead amend 
the Rules to provide that the decisions on any such matter shall be 
made at a public meeting upon an explicit request by a voting member of 
the Commission?

(G) Clerical Changes

    Synopsis of Proposed Amendment: Part G of the proposed amendment 
would make several technical and clerical changes throughout the Rules. 
First, it would amend the general reference to Rule 3.3 (Nonpublic 
Meetings) in the first paragraph of Rule 3.2 (Public Meetings) to 
provide a more specific reference to the applicable provisions of Rule 
3.3 relating to meeting with outside parties. Second, it would amend 
subdivision (1) of Rule 3.3 relating to actions on matters that do not 
require a public meeting to clarify and reflect the longstanding 
practice of how Commission interacts with staff at nonpublic meetings. 
Finally, it would amend Rule 5.4 (Advisory Groups) to add the Sentence 
Impact Advisory Group to the list of the standing advisory groups and 
to reflect the change in name of the Victims' Rights Advisory Group.
Proposed Amendment
    Rule 3.2 is amended by striking ``Rule 3.3'' and inserting ``Rule 
3.3(3)-(5)''.
    Rule 3.3 is amended by striking ``To receive information from, and 
participate in discussions with, Commission staff or any person 
designated by an ex officio Commissioner as support staff for that 
Commissioner'' and inserting ``To meet with Commission staff or any 
person designated by an ex officio Commissioner as support staff for 
that Commissioner on any matter''.
    Rule 5.4 is amended by striking ``the Practitioners Advisory Group, 
the Probation Officers Advisory Group, the Tribal Issues Advisory 
Group, and the Victims Advisory Group'' and inserting ``the 
Practitioners Advisory Group, the Probation Officers Advisory Group, 
the Sentence Impact Advisory Group, the Tribal Issues Advisory Group, 
and the Victims' Rights Advisory Group''.

(H) Further Revisions to the Commission's Rules of Practice and 
Procedure

    Issue for Comment: The Commission is publishing this proposed 
amendment to inform its comprehensive review of the Rules of Practices 
and Procedure. The proposed amendment contains seven parts (Parts A 
through G) that would make specific changes throughout the Rules and 
provides issues for comment relating to those proposed changes.
    The Commission seeks comment on whether it should further revise 
its Rules of Practice and Procedure. In particular, the Commission 
invites the public to propose additional or different amendments to the 
Rules that are appropriate to advance the Commission's statutory 
purposes, foster public engagement with the Commission, augment public 
comprehension of the Commission's work, and improve the Commission's 
practices and processes. Commenters are encouraged to identify specific 
rules that should be amended, provide precise text of proposed 
amendments to the Rules, recommend overarching structural reforms to 
the Rules, and suggest actionable measures to improve the operational 
efficiency and transparency of the Commission's internal processes.

[FR Doc. 2026-17994 Filed 9-2-26; 8:45 am]
BILLING CODE 2210-40-P


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