Government in Sunshine Act; implementation,

[Federal Register: November 26, 1999 (Volume 64, Number 227)]

[Rules and Regulations]

[Page 66402-66405]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr26no99-20]

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Part 2505

RIN 3045-AA21

Rules Implementing the Government in the Sunshine Act

AGENCY: Corporation for National and Community Service.

ACTION: Final rule.

SUMMARY: These rules implement provisions of the Government in the Sunshine Act (Sunshine Act), which applies to meetings of the Board of Directors of the Corporation for National and Community Service (the Corporation).

DATES: The final rules are effective December 27, 1999.

FOR FURTHER INFORMATION CONTACT: Frank Trinity, Associate General Counsel, Corporation for National and Community Service, (202) 606- 5000, ext. 256. T.D.D. (202) 565-2799. This rule may be requested in an alternative format for persons with visual impairments.

SUPPLEMENTARY INFORMATION: On May 11, 1999 (64 FR 25260), we published a proposed rule to implement provisions of the Sunshine Act, soliciting comments from the public for 60 days, ending July 12, 1999. We did not receive any comments. The information we provided in the proposed rule document still provides the basis for this final rule. Therefore, based on the rationale explained in the proposed rule document, we are adopting the provisions of the proposed rule as a final rule with no changes.

Executive Order 12866

The Corporation has determined that this regulatory action is not a ``significant'' rule within the meaning of Executive Order 12866 because it is not likely to result in: (1) an annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities; (2) the creation of a serious inconsistency or interference with an action taken or planned by another agency; (3) a material alteration in the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) the raising of novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.

Regulatory Flexibility Act

The Corporation has determined that this regulatory action will not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, the Corporation has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) for major rules that are expected to have such results.

Other Impact Analyses

Because this regulatory action does not authorize any information collection activity it is not subject to review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3500 et seq.).

For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any federal mandate that may result in increased expenditures in either Federal, State, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.

This regulatory action does not establish requirements that will adversely affect the Year 2000 readiness of organizations supported under the national service laws.

List of Subjects in 45 CFR Part 2505

Sunshine Act.

[[Page 66403]]

Accordingly, the Corporation for National and Community Service amends 45 CFR chapter XXV by adding part 2505 to read as follows:

PART 2505--RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT

Sec. 2505.1 Applicability. 2505.2 Definitions. 2505.3 To what extent are meetings of the Board open to the public? 2505.4 On what grounds may the Board close a meeting or withhold information? 2505.5 What are the procedures for closing a meeting, withholding information, and responding to requests by affected persons to close a meeting? 2505.6 What are the procedures for making a public announcement of a meeting? 2505.7 What are the procedures for changing the time or place of a meeting following the public announcement?

Authority: 5 U.S.C. 552b; 42 U.S.C. 12651c(c).

Sec. 2505.1 Applicability.

(a) This part implements the provisions of section 3(a) of the Government in the Sunshine Act (5 U.S.C. 552b). These procedures apply to meetings of the Corporation's Board of Directors, or to any subdivision of the Board that is authorized to act on its behalf. The Board of Directors may waive the provisions of this part to the extent authorized by law.

(b) Nothing in this part expands or limits the present rights of any person under the Freedom of Information Act (5 U.S.C. 552), except that the exemptions set forth in Sec. 2505.4 shall govern in the case of any request made pursuant to the Freedom of Information Act to copy or inspect the transcript, recording, or minutes described in Sec. 2505.5.

(c) Nothing is this part authorizes the Corporation to withhold from any individual any record, including transcripts, recordings, or minutes required by this part, which is otherwise accessible to such individual under the Privacy Act (5 U.S.C. 552a).

Sec. 2505.2 Definitions.

As used in this part:

(a) Board means the Board of Directors established pursuant to 42 U.S.C. 12651a, or any subdivision of the Board that is authorized to act on its behalf.

(b) Chairperson means the Member elected by the Board to serve as Chairperson.

(c) General Counsel means the Corporation's principal legal officer or other attorney acting at the designation of the Corporation's principal legal officer.

(d) Corporation means the Corporation for National and Community Service established pursuant to 42 U.S.C. 12651.

(e) Meeting means the deliberations of at least a quorum of the Corporation's Board of Directors where such deliberations determine or result in the joint conduct or disposition of official Corporation business. A meeting may be conducted under this part through telephone or similar communications equipment by means of which all participants may communicate with each other. The term meeting includes a portion thereof. The term meeting does not include:

(1) Notation voting or similar consideration of business, whether by circulation of material to the Members individually in writing or by a polling of the members individually by telephone.

(2) Action by a quorum of the Board to--

(i) Open or to close a meeting or to release or to withhold information pursuant to Sec. 2505.5;

(ii) Set an agenda for a proposed meeting;

(iii) Call a meeting on less than seven days' notice as permitted by Sec. 2505.6(b); or

(iv) Change the subject-matter or the determinations to open or to close a publicly announced meeting under Sec. 2505.7(b).

(3) A gathering for the purpose of receiving briefings from the Corporation's staff or expert consultants, provided that Members of the Board do not engage in deliberations at such sessions that determine or result in the joint conduct or disposition of official Corporation business on such matters.

(4) A gathering for the purpose of engaging in preliminary discussions or exchanges of views that do not effectively predetermine official Corporation action on a particular matter.

(f) Member means a current member of the Corporation's Board of Directors.

(g) Presiding Officer means the Chairperson or, in the absence of the Chairperson, the Vice Chairperson of the Board of Directors or other member authorized to act in this capacity by the Board.

(h) Quorum means the number of Members authorized to conduct Corporation business pursuant to the Board's bylaws.

Sec. 2505.3 To what extent are meetings of the Board open to the public?

The Board shall conduct meetings, as defined in Sec. 2505.2, in accordance with this part. Except as provided in Sec. 2505.4, the Board's meetings shall be open to the public. The public is invited to attend all meetings of the Board that are open to the public but may not participate in the Board's deliberations at such meetings or record any meeting by means of electronic, photographic, or other device.

Sec. 2505.4 On what grounds may the Board close a meeting or withhold information?

The Board may close a meeting or withhold information that otherwise would be required to be disclosed under Secs. 2505.5, 2505.6 and 2505.7 if it properly determines that an open meeting or disclosure is likely to--

(a) Disclose matters that are--

(1) Specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy; and

(2) In fact properly classified pursuant to such Executive order;

(b) Relate solely to the internal personnel rules and practices of the Corporation;

(c) Disclose matters specifically exempted from disclosure by statute (other than 5 U.S.C. 552), provided that such statute--

(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(d) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(e) Involve accusing any person of a crime, or formally censuring any person;

(f) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

(g) Disclose investigatory records compiled for law enforcement purposes, or information which, if written, would be contained in such records, but only to the extent that the production of such records or information would--

(1) Interfere with enforcement proceedings;

(2) Deprive a person of a right to a fair trial or an impartial adjudication;

(3) Constitute an unwarranted invasion of personal privacy;

(4) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential

[[Page 66404]]

information furnished only by the confidential source;

(5) Disclose investigative techniques and procedures; or

(6) Endanger the life or physical safety of law enforcement personnel;

(h) Disclose information contained in or related to examination, operating or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institution;

(i) Disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed action of the Corporation, except that this provision shall not apply in any instance where the Corporation has already disclosed to the public the content or nature of its proposed action, or where the Corporation is required by law to make such disclosure on its own initiative prior to taking final action; or

(j) Specifically concerning the Corporation's issuance of a subpoena or the Corporation's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the Corporation of a particular case of formal adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise involving a determination on the record after opportunity for a hearing.

Sec. 2505.5 What are the procedures for closing a meeting, withholding information, and responding to requests by affected persons to close a meeting?

(a) The Board may vote to close a meeting or withhold information pertaining to a meeting. Such action may be taken only when a majority of the entire membership of the Board votes to take such action. A separate vote shall be taken with respect to each action under Sec. 2505.4. The Board may act by taking a single vote with respect to a series of meetings which are proposed to be closed to the public, or with respect to any information concerning a series of meetings, so long as each meeting in the series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in the series. Each Member's vote under this paragraph shall be recorded and no proxies shall be allowed.

(b) If your interests may be directly affected if a meeting is open you may request that the Board close the meeting on one of the grounds referred to in Sec. 2505.4(e), (f), or (g). You should submit your request to the Office of the General Counsel, Corporation for National and Community Service, 1201 New York Avenue NW, Washington, D.C. 20525. The Board shall, upon the request of any one of its members, determine by recorded vote whether to grant your request.

(c) Within one working day of any vote taken pursuant to this section, the Board shall make publicly available a written copy of such vote reflecting the vote of each Member on the question. If a meeting is to be closed to the public, the Board shall, within one working day, make available a full written explanation of its action closing the meeting and a list of all persons expected to attend the meeting and their affiliation.

(d) For each closed meeting, the General Counsel shall publicly certify that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemption relied upon. A copy of the certification shall be available for public inspection.

(e) For each closed meeting, the Board shall issue a statement setting forth the time, place, and persons present. A copy of such statement shall be available for public inspection.

(f)(1) For each closed meeting, with the exception of a meeting closed pursuant to Sec. 2505.4(h) or (j), the Board shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting.

(2) For meetings that are closed pursuant to Sec. 2505.4(h) or (j), the Board may maintain a set of minutes in lieu of a transcript or recording. Such minutes shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any vote. All documents considered in connection with any action shall be identified in such minutes.

(3) The Corporation shall make promptly available to the public, in a place easily accessible to the public, the transcript, electronic recording, or minutes of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the Corporation determines to contain information which may be properly withheld. Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription. The Corporation shall maintain the transcript, recording, or minutes for each closed meeting for at least two years or at least one year after the conclusion of any Corporation business acted upon at the meeting, whichever occurs later.

Sec. 2505.6 What are the procedures for making a public announcement of a meeting?

(a) For each meeting, the Board shall make a public announcement, at least one week before the meeting, of--

(1) The meeting's time and place;

(2) The matters to be considered;

(3) Whether the meeting is to be open or closed; and

(4) The name and business telephone number of the official designated by the Board to respond to requests for information about the meeting.

(b) The one week advance notice required by paragraph (a) of this section may be reduced only if--

(1) The Board determines by recorded vote that Board business requires that the meeting be scheduled in less than seven days; and

(2) The public announcement required by paragraph (a) of this section is made at the earliest practicable time and posted on the Corporation's home page.

(c) Immediately following a public announcement required by paragraph (a) of this section, the Corporation will submit for publication in the Federal Register a notice of the time, place, and subject matter of the meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting.

Sec. 2505.7 What are the procedures for changing the time or place of a meeting following the public announcement?

(a) After there has been a public announcement of a meeting, the time or place of the meeting may be changed only if the Board publicly announces the change at the earliest practicable time. Such a change need not be determined by recorded vote.

(b) After there has been a public announcement of a meeting, the subject-matter of the meeting, or the determination of the Board to open or to close a meeting may be changed only when--

(1) The Board determines, by recorded vote, that Board business so requires and that no earlier announcement of the change was possible; and

(2) The Board publicly announces the change and the vote of each Member at the earliest practicable time.

(c) The deletion of any subject-matter previously announced for a meeting is not a change requiring the approval of

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the Board under paragraph (b) of this section.

Dated: November 15, 1999. Thomasenia P. Duncan, General Counsel.

[FR Doc. 99-30539Filed11-24-99; 8:45 am]

BILLING CODE 6050-28-P