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 ( printed 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 www.ussc.gov.

Authority:28 U.S.C. 995(a)(1); USSC Rules of Practice and Procedure, Rule 1.2.

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 ( printed 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 ( see28 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 ( printed 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. See28 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. See28 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 ( printed 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. See28 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, ( printed 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. See28 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, ( printed 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, ( printed 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.

91 FR 56724