39968____ Federal Register / Vol, 50, No. 190 / Tuesday, October i, 1985 / Rules and Regulations

FEDERAL ELECTION COMMISSION 

11CFR Parts 2 and 3 

[Notice 1985-11]

Sunshine Act Regulations Scope and 

Definitions; Meetings

a g e n c y : Federal Election Commission.

a c t i o n : Final rule.

s u m m a r y : The Federal Election 

Commission has revised its regulations 

implementing the Government in the 

Sunshine A ct 5 U.S.C. 552b. The 

revisions are based on the Commission’s 

experience in working with the Sunshine 

Act and on public comments received in 

response to the two Notices of Proposed 

Rulemaking published by the 

Commission. The revisions consolidate 

the Sunshine Act regulations into 11 

CFR Part 2 and reserve 11 CFR Part 3 for 

future use. The amended rules also 

provide a more complete statement of 

exemptions from the open meeting 

requirement and clarify the procedures 

for closing meetings. Finally, the revised 

regulations provide new procedures for 

processing requests for transcripts or 

electronic recordings of closed meetings 

when the exemptions no longer apply. 

Further information on these revisions is 

provided in the supplementary 

information which follows. 

e f f e c t i v e D A TE : October 31,1985.

FOR FURTHER INFORM ATION C O N TA C T:

Ms. Susan E. Propper, Assistant General 

Counsel, 1325 K Street, NW., 

Washington, D.C. 20463, (202) 523-4143 

or (800) 424-9530.

SUPPLEMENTARY INFORM ATION: On 

December 19,1984 the Commission 

published a Notice of Proposed 

Rulemaking to revise the Sunshine Act 

regulations at 11 CFR Parts 2 and 3.49 

FR 49306. Ten comments were received 

in response to the Notice. Several of the 

comments suggested that the 

Commission hold a hearing regarding 

the proposed rules. The Commission 

redrafted portions of the proposed rules 

based on the public comments and the 

Commission’s public discussion of the 

regulations. The Commission published 

a Second Notice of Proposed 

Rulemaking on March 13,1985 to solicit 

additional public comment 50 FR 10066. 

The Second Notice also announced that 

a public hearing would be held on April

24,1985 and invited requests to testify. 

The hearing was subsequently cancelled 

because no requests to testify were 

received. One comment was received in 

response to the Second Notice.

Having considered the comments 

made on both versions of the proposed 

rules, the Commission is now publishing

the final rules together with a statement 

explaining their basis and purpose in 

accordance with the Administrative 

Procedure Act, 5 U.S.C. 553(c). The final 

rules are the same as the draft rules 

published in the Second Notice except 

that 11 CFR 2.6(b)(2) has been modified 

to indicate that transcripts will be made 

available to the public through the 

Commission’s Public Records Office. In 

addition, a statutory reference in 11 CFR 

2.8(d) has been clarified.

Basis and Purpose of the Sunshine Act 

Regulations, 11 CFR Part 2

The rules implementing the 

Government in the Sunshine Act have 

been substantially revised and 

reorganized. The Sunshine Act 

regulations in 11 CFR Parts 2 and 3 have 

been consolidated into Part 2, and Part 3 

have been set aside for future use. This 

is intended to remove any confusion 

regarding the relationship between these 

two Parts.

Section 2.1 Scope.

A technical amendment has been 

made in § 2.1 to make clear that 11 CFR 

Part 2 implements Section 3 of the 

Government in the Sunshine Act.

Section 2.2 Definitions.

This section consolidates the 

definitions currently in 11 CFR 2.2, 2.3,

2.4 and 2.5. Paragraph 2.2(a) generally 

follows current § 2.2. Paragraph 2.2(b) 

generally follows current § 2.3, but a 

technical amendment has been made to 

correct the statutory citation. The 

definition of “person” in § 2.2(c) 

generally follows current § 2.4, but has 

been slightly revised to specifically 

include employees of the Commission. 

This change is intended to clarify that 

Commission employees may invoke the 

procedures of new § 2.5(e) if 

appropriate.

The definition of meeting in § 2.2(d) is 

based on current § 2.5, but has been 

significantly revised and reorganized. 

Paragraph (d)(1) clarifies that “joint 

conduct of official Commission 

business” does not include situations in 

which a quorum is physically present 

but is not conducting agency business as 

a body. This is intended to exclude 

situations where, for example, a member 

of the Commission gives a speech 

concerning agency business while other 

members are present in the audience. 

This example is taken from the 

legislative history of the Sunshine Act. 

H.R. Rep. No. 94-880, 94th Cong., 2d 

Sess. 8 (1976); S. Rep. No. 94-354,94th 

Cong., 1st Sess. 18 (1975).

Paragraph (d)(2) explains that the 

term “meeting” does not include the 

process of notation voting by circulated

memorandum for the purpose of 

expediting consideration of routine 

matters. One comment suggested that 

the exclusion of notation voting is not 

consistent with the spirit of the Sunshine 

Act. The Commission notes that the 

practice of notation voting is provided 

for in the legislative history, and has 

been specifically approved by the U.S. 

Court of Appeals for the D.C. Circuit 

H.R. Rep. No. 94-1441,94th Cong., 2d 

Sess. 11 (1976); Common Cause v. 

N uclear Regulatory Commission, 674

F.2d 921,935 n. 42 (D.C Cir. 1982); 

Committee to E lect Lyndon La Rouche

v. F ederal Election Commission, 613

F.2d 834, 847 n. 22 (D.C. Cir. 1979), cert

denied, 444 U.S. 1074 (1980); 

Communications System Inc. v. F ederal

Communications Commission, 595 F.2d 

797, 800 (D.C. Cir. 1978).

Section 2.9 G eneral Rules.

Paragraphs 2.3 (a) and (b) generally 

follow current § 3.1. Paragraph 2.3(c) has 

been added to explain that Commission 

meetings are not part of the formal or 

informal record of decision of the 

matters discussed therein. Statements 

made by Commissioners or FEC 

employees at meetings are not intended 

to represent final determinations or 

beliefs and should not be construed as 

such. Paragraph (c) represents a 

continuation of past policy in this area.

Paragraph 2.3(d) has been added to 

provide a statement of Commission 

policy and practice regarding the use of 

electronic recording devices by 

members of the public attending 

Commission meetings, In response to 

several comments made on the first 

version of this provision, it was 

reworded to clarify that the use of 

cameras and large electronic recording 

equipment requires advance notice to 

and coordination with the Press Officer. 

One comment expressed concern as to 

the lack of a policy statement or 

standards as to how advance notice and 

coordination with the Press-Officer will 

work. Advance notice and coordination 

is necessary because there are 

limitations on the space available to 

accommodate the media and because 

there are limitations on the electrical 

circuits in the Commission’s meeting 

room. This requirement also gives 

sufficient notice to the Commission as to 

the type of coverage that can be 

expected. It is not meant to restrict press 

access to Commission meetings. When 

the space limitations of the 

Commission’s meeting room do not 

permit all members of the press to be 

accommodated, the Press Officer will 

try to work out a voluntary pooling 

arrangement. This is a continuation of
Federal Register / VoL 50, No. 190 / Tuesday, Qçtober 1, 1985 / Rulea and Regulations 39969

the Commission’s past policy of 

openness and access. Pooling 

arrangements have worked well 

informally in the past, and the space 

available for the Press can be expected 

to improve once the Commission moves 

to new, larger quarters. Hence, formal 

guidelines for the Press Officer are 

unnecessary and could prove to be 

overly restrictive.

Section 2.4 Exem pted M eetings

This section substantially revises and 

reorganizes current § 3.2. Section 2.4 

provides a more complete list of matters 

that may be considered in closed 

Commission meetings, and reorders the 

exemptions to conform to their 

placement in the Sunshine Act. The 

revision also clarifies the distinction 

between meetings required to be closed 

by statutes other than the Sunshine Act, 

and meetings which may be closed 

under one of the “discretionary” 

exemptions available under the 

Sunshine Act. This distinction is 

significant because the Commission may 

waive the discretionary exemptions and 

open up a discussion, whereas the 

Commission may not waive a statutory 

requirement of confidentiality. The 

exemption claimed also affects the 

manner in which transcripts or tapes of 

the discussion will be released once the 

matter loses its exemption. S ee 11 CFR 

2.6(b). However, the type of exemption 

does not affect the procedures to be 

used to close the matter to the public, as 

set out in 11 CFR 2.5.

Paragraph 2.4(a) exempts from public 

disclosure matters specifically required 

by statute to be closed. This includes the 

Federal Election Campaign Act of 1971, 

as amended (“FECA”), 2 U.S.C. 431 et

seq. as well as other statutes which may 

compel closure. The FECA exemption is - 

set out in § 2.4(a)(1). Under 2 U.S.C. 

437g(a)(12), the Commission is required 

to maintain confidentiality for any 

notification or investigation that a 

violation of the FECA has occurred. 

Therefore, the Commission must close 

discussions of enforcement matters. 

Paragraph 2.4(a)(2) explains the scope of 

the FECA exemption. It follows the 

definition of “notification or 

investigation” in current § 3.2(a)(2) by 

including section 437g determinations, 

issuance of subpoenas, discussions of 

referrals to the Department of Justice, 

and any other matters related to the 

Commission’s enforcement activity 

under 11 CFR Part 111. For example, 

discussions of audit reports are covered 

by this exemption whenever they are 

likely to lead to a compliance action. 

However, following the format of the 

Sunshine Act, discussions regarding

civil actions and adjudications are 

covered by new paragraph § 2.4(b)(7).

In some situations, several 

exemptions permit closure of a meeting. 

For example, discussions of enforcement 

matters that are exempt from disclosure 

under the § 2.4(a) FECA exemption will 

also be exempt under § 2.4(b) (1) and (5) 

whenever there is mention of internal 

investigative techniques, such as audit 

thresholds. A waiver of confidentiality 

by a respondent would not necessarily 

eliminate the application of § 2.4(a). For 

example, the presence of other 

respondents in the case or ambiguity as 

to the extent of the waiver could require 

a continued claim of exemption under 

§ 2.4(a). Even in cases where a waiver of 

confidentiality does appear to be 

complete, however, other exemptions 

may still compel closure.

The Commission received several 

comments that interpreted the first 

proposed draft of § 2.4(a) to mean that 

transcripts of enforcement matters 

would no longer be released. As it was 

never the intention of the Commission to 

change its policy of releasing 

transcripts, the language that created 

the misperception was deleted from the 

second draft of § 2.4(a), and from the 

final rule. Accordingly, transcripts of 

enforcement matters will continue to be 

made public on request once the 

investigation is closed and the matter is 

no longer entitled to exemption. See

§ 2.6(b)(3).

Paragraph 2.4(b) contains the 

remaining Sunshine exemptions thr.t are 

pertinent to the Commission’s activities. 

They have been reordered from the way 

they appear in current § 3.2(b) to 

conform to their placement in the 

Sunshine Act. In addition, one new 

exemption has been added and the 

scope of others has been clarified.

Paragraph 2.4(b)(1) generally follows 

current § 3.2(b)(l)(i) to exempt matters 

related solely to the Commission’s 

internal personnel decisions and 

internal rules and practices. However,

§ 2.4(b)(1) has been supplemented by 

examples to make clear how the 

exemptions may be applied. The 

examples are based on the legislative 

history of the Sunshine Act, and recent 

judicial interpretations of the Freedom 

of Information Act, which contains an 

identical exemption. The legislative 

history of the Sunshine Act indicates 

that Congress intended judicial 

interpretations of the FOIA to apply to 

the Sunshine exemption. H.R. Rep. No. 

94-1441, 94th Cong., 2d Sess. 15 (1976).

Paragraph (b)(l)(i) provides that the 

internal personnel rules exemption 

applies to discussions of materials 

prepared predominately for internal use

where disclosure would risk 

circumvention of Commission 

regulations. This is based on a recent 

decision in which the U.S. Court of 

Appeals for the D.C. Circuit held that an 

agency’s training manual for law 

enforcement personnel was exempt from 

disclosure under FOIA because it would 

reveal internal investigatory techniques 

which, if generally known, would risk 

circumvention of agency regulations. 

C rooker v. Bureau o f A lcohol, Tobacco

& Firearms, 670 F.2d 1051,1073 (D.C. Cir. 

1981). The court relied on the intent of 

Congress to exempt from disclosure 

“operating rules, guidelines, and 

manuals of procedure for Government 

investigators. . . .” Id. at 1060, quoting

HR. Rep. No. 89-1497, 89th Cong., 2d 

Sess. 10 (1966). On the basis of this 

precedent, the U.S. District Court for the 

District of Columbia held that the FEC’s 

“threshold requirements for substantial 

compliance (with the FECA] are exempt 

from disclosure under FOIA.” Fund fo r a

Conservative M ajority v. F ederal

Election Commission, Civil Action No. 

84-1342, slip op. at 6 (D.D.C. Feb. 28, 

1985). The court reasoned that the 

thresholds for identifying potential audit 

subjects are predominately internal and 

disclosure “would enable unscrupulous 

political committees to tailor their 

reports to avoid being audited, and 

ignore statutory reporting requirements 

that are not central to the internal 

review procedures.” Id. at 4-5.

Therefore, Commission discussions of 

the audit-triggering thresholds, or of any 

documents revealing the thresholds, or 

similar materials produced for staff use 

in enforcement of the FECA 

requirements are exempt from public 

disclosure under the Sunshine Act and 

11 CFR 2.4(b)(1).

Paragraph 2.4(b)(l)(ii), following 

current § 3.2(b)(l)(i), explains that the 

internal personnel exemption does not 

apply to discussions or materials 

regarding employees’ dealings with the 

public, such as personnel manuals or 

Commission directives setting forth job 

functions or procedures. This provision 

is taken from the legislative history. H.R. 

Rep. No. 94-880, 94th Cong., 2d Sess. 9 

(1976).

Paragraph 2.4(b)(2) generally follows 

current § 3.2(b)(l)(iv) in restating the 

exemption provided by the Sunshine Act 

for financial or commercial information 

obtained from any person which is 

privileged or confidential.

Paragraph 2.4(b)(3) generally follows 

current § 3.2(b)(l)(ii), which contains the 

Sunshine exemption for matters 

involving formal proceedings against a 

specific person or formal censure of any 

person. The legislative history indicates
39970 Federal Register / Vol. 50, No. 190 / Tuesday, October 1, 1985 / Rules and Regulations

that this exemption covers discussions 

of crimes or misconduct before the 

agency. S. Rep. No. 94-354, 94th Cong., 

1st Sess. 22 (1975). This exemption also 

applies generally whenever "opening to 

the public agency discussions of such 

matters could irreparably harm the 

person’s reputation. If the agency 

decides not to accuse the person of a 

crime or not to censure him the harm 

done to the person’s reputation by the 

open meeting could be very unfair.” Id.

This exemption could be invoked, for 

example, if the Commission wishes to 

consider a possible ethical violation by 

a former Commission employee who 

subsequently represents the subject of 

an investigation in which the former 

employee participated. As indicated by 

this example, there may be situations in 

which exemption (b)(3) can be invoked 

in addition to exemptions (b)(4) and

(b)(5), concerning personal privacy and 

investigatory records.

Paragraph 2.4(b)(4) generally follows 

current § 3.2(b)(l)(iii) to provide an 

exemption for information of a personal 

nature where disclosure would 

constitute a clearly unwarranted 

invasion of personal privacy. This 

exemption protects the privacy interests 

of both members of the public and 

Commission employees. Hence, it 

overlaps with the personnel exemption 

to cover a discussion of particular job 

descriptions and the upgrading of 

positions if the discussion is likely to 

involve an identifiable employee in that 

position.

Paragraph 2.4(b)(5) has been added to 

incorporate exemption 7 of the Sunshine 

Act regarding investigatory records 

compiled for law enforcement purposes 

where disclosure of these records 

would, for example, interfere with 

enforcement proceedings or disclose 

investigative techniques and procedures. 

S ee 5 U.S.C. 552(c)(7). The Fund fo r a

Conservative M ajority case, discussed 

above, focused on whether the 

corresponding FOIA exemption protects 

internal memoranda that applied the 

FEC’s audit thresholds and review and 

referral policies in a particular 

investigation. Fund fo r a Conservative

M ajority v. Federal Election

Commission, Civil Action No. 84-1342, 

slip op. at 6-8 (D.D.C. Feb. 26,1985). The 

court held that the internal memoranda 

are protected by this exemption because 

they would reveal investigative 

techniques by showing which reporting 

requirements will be focused upon 

during the investigation. Id. Therefore, 

whenever a Commission discussion of a 

particular mattter is likely to reveal the 

thresholds or discuss their application,

the discussion may be closed to the 

public.

Paragraph 2.4(b)(6) generally follows 

current § 3.2(b)(l)(iv) to permit closure 

of meetings when the premature 

disclosure of information is likely to 

have a considerable adverse effect on 

the implementation of a proposed 

Commission action, so long as the 

Commission has not already disclosed 

the proposed action or is not required by 

law to disclose it prior to final action. 

For example, an adverse effect could be 

expected if discussions concerning 

contract negotiations were made public 

before final action was taken.

Paragraph 2.4(b)(7) follows Sunshine 

Act exemption 10 to permit closure of 

discussions concerning the 

Commission’s participation in a civil 

action or proceeding, or an arbitration, 

or involving a determination on the 

record after opportunity for a hearing. 

Paragraph 2.4(b)(7) replaces the 

litigation and adjudication exemptions 

in current § 3.2(a)(2). This revision is 

intended to clarify that discussions of 

both defensive and offensive litigation 

are included in the exemption.

Paragraph 2.4(c) revises current 

§ 3.2(b)(2) regarding the Commission’s 

assessment of whether the public 

interest requires a meeting to be open. 

The new language more closely 

conforms to the statutory intent that a 

meeting must be open if the public 

interest so requires, regardless of 

whether it may be technically exempt 

from disclosure under one or more of the 

exemptions in § 2.4(b). However, 

considerations of public interest cannot 

be used to open meetings closed 

pursuant to § 2.4(a) because the FECA 

requires the Commission to maintain 

confidentiality with regard to 

enforcement activities.

Section 2.5 Procédure fo r Closing

M eetings.

Paragraph 2.5(a) generally follows 

current § 3.3(a) except that a new 

sentence has been added to reflect 

Congressional intent that each portion 

of a closed meeting must qualify 

separately for an exemption and must 

be considered separately. H.R. Rep. No. 

94-1441,94th Cong., 2d Sess. 17 (1976).

With regard to the General Counsel’s 

certification that the meeting may be 

closed, § 2.5(b) generally follows current 

§ 3.3(e), except that the certification 

need not be provided before the meeting 

is held. This permits the certification to 

be prepared after the meeting is held in 

cases where time does not permit its 

preparation earlier. This paragraph also 

clarifies that the certification is made 

with respect to each item on the agenda 

rather than to the meeting as a whole.

Paragraph 2.5(c) prescribes 

procedures for voting to close a meeting. 

This provision restates current §3.3, 

with several significant additions. 

Paragraph (c)(1) follows current § 3.3(c) 

in stating that a meeting need not be 

held to consider closing a meeting. A 

sentence has been added to clarify that 

the vote may be taken by means of the 

Commission’s notation vote procedures 

(presently set forth in FEC Directive No. 

52). Paragraph (c)(l)(i) has been added 

to clarify that a separate vote must be 

taken for each particular matter to be 

considered in a closed meeting. 

However, paragraph (c)(l)(ii), following 

current § 3.3(b), permits a single vote to 

be taken if a particular item will be 

discussed at a series of meetings that 

are held within a thirty-day period. As 

the legislative history indicates, this 

provision releases the Commission from 

voting repeatedly on whether to close 

the same discussion which stretches 

over more than one meeting. S. Rep. No. 

94-354, 94th Cong., 1st Sess. 27 (1975). 

Paragraph (c)(l)(iii) has been added to 

distinguish the practice of setting 

meeting dates from the procedures for 

voting to close particular agenda items. 

It clarifies that the voting procedures do 

not restrict the setting of meeting dates 

more than thirty days in advance.

Paragraph (c)(2) generally follows 

current § 3.3(c) regarding the 

recordation of the vote and the 

prohibition of proxies. The Sunshine Act 

prohibits a member of the Commission 

from voting by proxy for another 

Commissioner or from delegating his or 

her vote or decision-making authority to 

any other person such as a staff person. 

However, a Commissioner may 

authorize a staff person to sign the 

Commissioner’s name on a circulation 

vote sheet provided that the 

Commissioner has given instructions 

regarding the matter being acted on and 

the staff member is acting in accordance 

with those instructions. S ee FEC 

Directive No. 52.

Paragraph (c)(3) has been added to 

provide a procedure under which a 

Commissioner may object to the 

discussion of a particular matter in open 

or closed session. Such an objection will 

be discussed in the next closed meeting.

Paragraph 2.5(d) generally follows the 

procedures in current § 3.3(d) regarding 

the public announcement of a closed 

meeting. A sentence has been added to 

paragraph (d)(l)(iii) to provide a 

simplified method for indicating 

Commission personnel who will be 

attending the closed meeting. Under 

Paragraph (d)(l)(iv), the Commission 

Secretary signs the public statement 

rather than "the Commissioner who
Federal Register / Vol. 50, No. 190 / Tuesday, October 1, 1985 / Rules and Regulations 39971

presided at the meeting." Although no 

signature is expressly required by the 

Sunshine A ct the signature of the 

Secretary is appropriate because the 

Secretary records the vote and prepares 

the statement Under (d)(2), the original 

copy of the statement will be 

maintained by the Commission 

Secretary and a copy will be posted in 

the Public Records Office.

Paragraph 2.5(e) has been added to 

implement the provision of the Sunshine 

Act that grants members of the public an 

opportunity to request that a meeting be 

closed if their interests are directly 

‘affected by the discussion. Under 

paragraph (e) the request must be made 

in writing and must be directed to the 

Chairman of the Commission. The 

requester must specify the particular 

exemptions) in § 2.4 that permit the 

discussion to be closed. Under § 2.5(e), 

the requester may rely on any of the 

§ 2.4 exemptions, even though the 

Sunshine Act contemplates reliance on a 

more limited number of exemptions. A 

recorded vote on whether to close the 

meeting shall be taken. The request 

procedures do not give a person whose 

interests may be adversely affected by 

disclosure a right to compel closure. 

Rather, the Sunshine Act establishes 

these procedures to insure that agencies 

do not inadvertently overlook legitimate 

concerns of personal privacy and 

confidentiality. S. Rep. No. 94-354, 94th 

Cong., 1st Sess. 28 (1975). Thus, the 

request procedures do not grant any 

additional rights to participate in 

Commission proceedings, and the 

requester is not entitled to a hearing on 

the request.

Section 2.6 Transcripts and Recordings

Paragraph 2.6(a) generally follows 

current § 3.4(a) in providing that the 

Commission Secretary shall maintain 

transcripts or electronic recordings of 

closed meetings.

Paragraph 3.4(b), which permitted the 

Commission to maintain a detailed set 

of minutes in lieu of a complete 

transcript or electronic recording for 

certain closed meetings, has been 

deleted for several reasons. First, its 

application is limited to discussions of 

litigation and other matters exempted 

under 11 CFR 2.4(b)(7), Second, the 

minutes that would be kept are 

considerably more detailed than those 

currently prepared. Finally, the 

Commission routinely tapes discussions 

exempted under § 2.4(b)(7). The 

Commission has not made use of this 

provision in the past and is not likely to 

do so in the future. Deletion of this 

provision will have no effect on future 

Commission decisions to release any of 

the minutes it currently keeps.

New paragraph 2.6(b) has been added 

to more fully explain the Commission’s 

procedures for releasing transcripts or 

recordings of closed meetings once the 

relevant exemptions no longer apply. 

This paragraph was the subject of 

considerable public comment and has 

been revised to clarify when and how 

transcripts or tapes are made public. 

Paragraph 2.6(b) provides two different 

sets of procedures for releasing 

transcripts or tapes, depending on the 

exemption claimed for a particular 

matter. The first set of procedures* set 

out in § 2.6(b) (1) and (2), applies to 

items for which one of the discretionary 

exemptions in § 2.4(b) was claimed. 

Under § 2.6(b)(1), the Commission will 

determine at the end of the closed 

meeting whether the exemption still 

applies. Under § 2.6(b)(2), if the 

exemption can no longer be claimed, the 

transcript or tape will be reviewed for 

remaining exemptions and thereafter 

made available to the public through the 

Commission’s Public Records Office.

The other set of procedures, found in 

§ 2.6(b)(3), applies to materials for 

which a § 2.4(a) exemption was claimed. 

The § 2.4(a) exemption covers matters 

that are required by statutes other than 

the Sunshine Act to be kept confidential. 

Since the Federal Election Campaign 

Act of 1971, as amended, is one such 

statute, enforcement actions will be 

subject tq the § 2.6(b)(3) procedures. 

Thus, transcripts or tapes of these 

matters will be reviewed and made 

available on request when the relevant 

exemptions no longer apply. Several 

other Federal agencies have also chosen 

to review transcripts and release 

materials on request. The Commission 

has taken this approach because it 

would be a waste of resources to 

routinely review each transcript when 

no one is likely to evince any interest in 

most of them. The Commission notes 

that § 2.6(b) does not alter the 

Commission’s past policies regarding the 

release of transcripts or recordings on 

enforcement matters. If the subject of an 

investigation waives confidentiality, the 

Commission will consider whether the 

other Sunshine exemptions, the FOIA 

exemptions or other common law 

exemptions apply before making the 

material available.

Paragraph 2.6(b) provides that 

requests for transcripts or tapes shall be 

made and processed in accordance with 

11 CFR Part 5. Section 5.5 provides for 

requests to be made through the Public 

Disclosure Division. Section 5.6 contains 

the fee schedule for such materials. 

Several comments suggested that 

§ 2.6(b) should explicitly provide for the 

waiver or reduction of fees when it is in

the public interest to do so. The 

Commission has decided not to include 

such language because it would merely 

repeat the fee waiver provision in 

§ 5.6(d). That provision is made 

applicable to Sunshine materials 

through § 2.6(b)(2).

Several comments expressed concern 

that § 2.6(b) does not specifically permit 

access to transcripts or tapes to those 

who may wish to inspect them but do 

not desire to obtain a copy. The 

Commission agrees that requesters do, 

indeed, have this option. Another 

concern was that requesters may wish 

copies of tapes rather than transcripts 

for cost reasons. It is by no means clear 

whether edited tapes or transcripts will 

prove to be the less costly alternative. 

The Commission will continue to 

provide public access under a system 

that-is responsive to the needs of the 

public while taking into account the 

needs, capabilities, and resources of the 

Commission.

Paragraph 2.6(c) generally follows 

current § 3.4(d) regarding the length of 

time documents and recordings will be 

kept by the Commission. However, this 

paragraph has been slightly reworded to 

indicate that materials will be retained 

for a minimum of two years, or one year 

after the conclusion of the matter, 

whichever is later. Although this is the 

minimum amount of time required by the 

Sunshine Act, the Commission’s practice 

has been to maintain an institutional 

history by retaining such documentation 

indefinitely.

Section 2.7 Announcement o f M eetings

and Schedule Changes.

Section 2.7 generally follows current 

§ 3.5 concerning public announcement of 

Commission meetings and subsequent 

changes in the time, place or subject 

matter of the meeting. A sentence has 

been added to § 2.7(a)(1) to indicate that 

a copy of the public announcement will 

be posted in the Commission’s Public 

Records Office. Paragraph 2.7(d)(2) has 

been slightly revised to more closely 

conform to the language of the Sunshine 

Act regarding publication of meeting 

changes.

Section 2.8 Annual Report.

Section 2.8 generally follows current 

§ 3.6 except that it more clearly states 

that the annual report to Congress will 

reflect the Commission’s compliance 

with the Sunshine Act, and will describe 

litigation brought against the 

Commission under the Sunshine Act.

List of Subjects in 11 CFR Part 2

Administrative practice and 

procedure. Sunshine Act.
39972 Federal Register / Vol. 50, No. 190 / Tuesday, October 1, 1985 j Rules and Regulations

11 CFR Chapter I is amended as 

follows:

PART 3— [REMOVED]

1. Part 3 is removed.

2. Part 2 is revised to read as follows:

PART 2— SUNSHINE REGULATIONS; 

MEETINGS

Sec.

2.1 Scope.

2.2 Definitions.

2.3 General rules.

2.4 Exempted meetings.

2.5 Procedures for closing meetings.

2.6 Transcripts and recordings.

2.7 Announcement of meetings and

schedule changes.

2.8 Annual report.

Authority: Sec. 3(a), Pub. L. 94-409, 5 U.S.C.

552b.

§ 2.1 Scope.

These regulations are promulgated 

pursuant to the directive of 5 U.S.C. 

552b(g) which was added by section 3(a) 

of Pub. L. 94-409, the Government in the 

Sunshine Act, and specifically 

implement section 3 of that Act.

§2.2 Definitions.

(a) Commission. "Commission” means 

the Federal Election Commission, 1325 K 

Street, NW„ Washington, D.C. 20463.

(b) Com m issioner or M ember.

“Commissioner” or "Member” means an 

individual appointed to the Federal 

Election Commission pursuant to 2 

U.S.C. 437c and section 101(e) of Pub. L. 

94-283 and shall also include ex-officio 

non-voting Commissioners or Members, 

the Secretary of the Senate and the 

Clerk of the House, but does not include 

a proxy or other designated 

representative of a Commissioner.

(c) Person. “Person” means an 

individual, including employees of the 

Commission, partnership, corporation, 

association, or public or private 

organization, other than an agency of 

the United States Government.

(d) Meeting. (1) "Meeting” means the 

deliberation of at least four voting 

members of the Commission in collegia 

where such deliberations determine or 

result in the joint conduct or disposition 

of official Commission business. For the 

purpose of this section, “joint conduct” 

does not include, for example, situations 

where the requisite number of members 

is physically present in one place but 

not conducting agency business as a 

body (e.g., at a meeting at which one 

member is giving a speech while a 

number of other members are present in 

the audience). A deliberation conducted 

through telephone or similar 

communications equipment by means of 

which all persons participating can hear

each other will be considered a 

"meeting” under this section.

(2) The term "meeting” does not 

include the process of notation voting by 

circulated memorandum for the purpose 

of expediting consideration of routine 

matters. It also does not include 

deliberations to schedule a meeting, to 

take action to open or close a meeting, 

or to release or withhold information, or 

to change the subject matter of a 

meeting under 11 CFR 2.5, 2.6 and 2.7.

§ 2.3 General rules.

(a) Commissioners shall not jointly 

conduct, determine or dispose of 

Commission business other than in 

accordance with this Part.

(b) Except as provided in 11 CFR 2.4, 

every portion of every Commission 

meeting shall be open to public 

observation.

(c) No additional right to participate in 

Commission meetings is granted to any 

person by this Part. A meeting is not 

part of the formal or informal record of 

decision of the matters discussed therein 

except as otherwise required by law. 

Statements of views or expressions of 

opinions made by Commissioners or 

FEC employees at meetings are not 

intended to represent final 

determinations or beliefs.

(d) Members of the public attending 

open Commission meetings may use 

small electronic sound recorders to 

record the meeting, but the use of other 

electronic recording equipment and 

cameras requires advance notice to and 

coordination with the Commission’s 

Press Officer.

§ 2.4 Exempted meetings.

(a) M eetings R equired by Statute to

be Closed. Meetings concerning matters 

specifically exempted from disclosure 

by statutes which require public 

withholding in such a manner as to 

leave no discretion for the Commission 

on the issue, or which establish 

particular types of matters to be 

withheld, shall be closed to public 

observation in accordance with the 

procedures of 11 CFR 2.5.

(1) As required by 2 U.S.C. 437g(a)(12), 

all Commission meetings, or portions of 

meetings, pertaining to any notification 

or investigation that a violation of the 

Act has occurred, shall be closed to the 

public.

(2) For the purpose of this section,

"any notification or investigation that a 

violation of the Act has occurred” 

includes, but is not limited to, 

determinations pursuant to 2 U.S.C.

437g, the issuance of subpoenas, 

discussion of referrals to the 

Department of Justice, or consideration 

of any other matter related to the

Commission’s enforcement activity, as 

set forth in 11 CFR Part 111.

(b) M eetings C losed by Commission

Determination. Except as provided in 11 

CTR 2.4(c), the requirement of open 

meetings will not apply where the 

Commission finds, in accordance with 

11 CFR 2.5, that an open meeting or the 

release of information is likely to result 

in the disclosure of:

(1) Matters that relate solely to the 

Commission’s internal personnel 

decisions, or internal rules and 

practices.

(1) This provision includes, but is not 

limited to, matters relating to 

Commission policies on working 

conditions, or materials prepared 

predominantly f5r internal use, the 

disclosure of which would risk 

circumvention of Commission 

regulations; but

(ii) This provision does not include 

discussions or materials regarding 

employees’ dealings with the public, 

such as personnel manuals or 

Commission directives setting forth job 

functions or procedures;

(2) Financial or commercial 

information obtained from any person 

which is privileged or confidential;

(3) Matters which involve the 

consideration of a proceeding of a 

formal nature by the Commission 

against a specific person or the formal 

censure of any person;

(4) Information of a personal nature 

where disclosure would constitute a 

clearly unwarranted invasion of 

personal privacy;

(5) 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:

(i) Interfere with enforcement 

proceedings,

(ii) Deprive a person of a right to a fair 

trial or an impartial adjudication,

(iii) Constitute an unwarranted 

invasion of personal privacy,

(iv) Disclose the identity of a 

confidential source,

(v) Disclose investigative techniques 

and procedures, or

(vi) Endanger the life or physical 

safety of law enforcement personnel;

(6) Information the premature 

disclosure of which would be likely to 

have a considerable adverse effect on 

the implementation of a proposed 

Commission action, as long as the 

Commission has not already disclosed 

the content or nature of its proposed 

action, or is not required by law to 

disclose it prior to final action; or
Federal Register / Vol. 50, No. 190 / Tuesday, October 1, 1985 / Rules and Regulations 39973

(7) Matters that specifically concern 

the Commission’s participation in a civil 

action or proceeding, or an arbitration, 

or involving a determination on the 

record after opportunity for a hearing.

(c) Notwithstanding the applicability 

of any exemptions set forth in 11 CFR 

2.4(b), the Commission may determine 

that the public interest requires a 

meeting to be open.

§ 2.5 Procedures for closing meetings.

(a) General. No meeting or portion of 

a meeting may be closed to the public 

observation under this section unless a 

majority of the Commissioners (not 

including ex officio non-voting 

Commissioners) votes to take such 

action. The closing of one portion of a 

meeting shall not justify closing any 

other portion of a meeting.

(b) Certification. Each time the 

Commission votes to close a meeting, 

the General Counsel shall publicly 

certify that, in his or her opinion, each 

item on the agenda may properly be 

closed to public observation. The 

certification shall state each relevant 

exemption provision. The original copy 

of the certification shall be attached to, 

and preserved with, the statement 

required by 11 CFR 2.5(d).

(c) Voting Procedures. (1) No meeting 

need be held to consider closing a 

meeting. The Commission may vote to 

close a meeting or any portion thereof 

by using its notation vote procedures.

(1) A separate vote shall be taken with 

respect to each item on an agenda 

proposed to be closed in whole or in 

part pursuant to 11 CFR 2.4, or with 

respect to any information proposed to 

be withheld under 11 CFR 2.4.

(ii) A single vote may be taken with 

respect to a particular matter to be 

discussed in a series of closed meetings, 

or with respect to any information 

concerning such series of meetings, so 

long as each meeting in the series is 

scheduled to be held no more than 30 

days after the initial meeting.

(iii) This section shall not affect the 

Commission’s practice of setting dates 

for closed meetings more than 30 days in 

advance of such meetings.

(2) The Commission Secretary shall 

record the vote of each Commissioner 

participating in the vote. No proxies, 

written or otherwise, shall be counted.

(3) (i) A Commissioner may object to a 

recommendation to close the discussion 

of a particular matter or may assert a 

claim of exemption for a matter 

scheduled to be discussed in an open 

meeting. Such objection or assertion will 

be discussed by the Commission at the 

next scheduled closed meeting, to 

determine whether the matter in

question should be discussed in a closed 

meeting.

(ii) An “objection for the record only” 

will not cause the objection to be placed 

on any agenda.

(d) Public Statem ent o f Vote. (1) If the 

Commission votes to close a meeting, or 

any portion thereof, under this section, it 

shall make publicly available within 24 

hours a written statement of the vote. 

The written statement shall contain:

(1) A citation to the provision(s) of 11 

CFR 2.4 under which the meeting was 

closed to public observation and an 

explanation of why the specific 

discussion comes within the cited 

exemption(s);

(ii) The vote of each Commissioner 

participating in the vote;

(iii) A list of the names of all persons 

expected to attend the closed meeting 

and their affiliation. For purposes of this 

section, affiliation means title or 

position, and name of employer, and in 

the case of a representative, the name of 

the person represented. In the case of 

Commission employees, the statement 

will reflect, through the use of titles 

rather than individual names, that the 

Commissioners, specified division heads 

and their staff will attend; and

(iv) The signature of the Commission 

Secretary.

(2) The original copy of the statement 

shall be maintained by the Commission 

Secretary. A copy shall be posted on a 

public bulletin board located in the 

Commission’s Public Records Office.

(e) Public R equest to C lose a M eeting.

A person whose interests may be 

directly affected by a portion of a 

meeting may request that the 

Commission close that portion to the 

public for any of the reasons referred to 

in 11 CFR 2.4. The following procedures 

shall apply to such requests:

(1) The request must be made in 

writing and shall be directed to the 

Chairman of the Commission.

(2) The request shall identify the 

provisions of 11 CFR 2.4 under which the 

requestor seeks to close all or a portion 

of the meeting.

(3) A recorded vote to close the 

meeting or a portion thereof shall be 

taken.

(4) Requests made under this sectin 

shall become part of the official record 

of the underlying matter and shall be 

disclosed in accordance with 11 CFR 2.0 

on completion of the matter.

(5) If the Commission decides to 

approve a request to close, the 

Commission will then follow the 

procedures for closing a meeting set 

forth in 11 CFR 2.5 (a) through (d).

§ 2.6 Transcripts and recordings.

(a) The Commission Secretary shall 

maintain a complete transcript or 

electronic recording adequate to record 

fully the proceedings of each meeting, or 

portion of a meeting, closed to public 

observation. An electronic recording of 

a meeting shall be coded, or other 

records shall be kept in a manner 

adequate to identify each speaker.

(b) (1) In the case of any meeting 

closed pursuant to 11 CFR 2.4(b), as the 

last item of business, the Commission 

will determine which, if any, portions of 

the electronic recording or transcript 

and which if any, items of information 

withheld under 11 CFR 2.5 contain 

information which should be withheld 

pursuant to 11 CFR 2.4.

(2) Portions of transcripts or 

recordings determined to be outside the 

scope of any exemptions u nd erll CFR 

2.6(b)(1) shall be promptly made 

available to the public through the 

Commission's Public Records Office at a 

cost sufficient to cover the 

Commission’s actual cost of duplication 

or transcription. Requests for such 

copies shall be made and processed in 

accordance with the provisions of 11 

CFR Part 5.

(3) Portions of transcripts or electronic 

recordings not made available 

immediately pursuant to 11 CFR 

2.6(b)(1), and portions of transcripts or 

recordings withheld pursuant to 11 CFR 

2.4(a), will be made available on request 

when the relevant exemptions no longer 

apply. Such materials shall be requested 

and processed under the provisions of 

11 CFR 2.6(b)(2).

(c) A complete verbatim copy of the 

transcript or a complete electronic 

recording of each meeting, or portion of 

a meeting, closed to the public, shall be 

maintained by the Commission 

Secretary in confidential files of the 

Commission, for a minimum of two 

years subsequent to such meeting, or a 

minimum of one year after the 

conclusion of any agency proceeding 

with respect to which the meeting, or 

portion of the meeting was held, 

whichever occurs later.

§ 2.7 Announcement of meetings and

schedule changes.

(a)(1) In the case of each meeting, the 

Commission shall publicly announce 

and shall submit such announcement for 

publication in the Federal Register at 

least seven days prior to the day on 

which the meeting is to be called to 

order. The Commission Secretary shall 

also forward a copy of such 

announcement for posting in the 

Commission’s Public Records Office.
39974 Federal Register / VoL 50>. No„ 190 / Tuesday, October 1^ 1985 / Rules and Regulations

(2) Announcements made under this 

section shall’ contain the following 

information:

(i) The date of the meeting;

(ii) The place of the meeting;

(iii) The subject matter of the meeting;

(iv) Whether the meeting is to be open 

or closed to the public; and

(v) The name and telephone number 

of the official designated by die agency 

to respond to requests for information 

about the meeting.

(b) The public announcement and 

submission for publication shall be 

made when required by 11 CFR 2.7fa) in 

the case of every Commission meeting 

unless a majority of the Commissioners 

decide by recorded vote that 

Commission business requires that the 

meeting be called at an earlier date, in 

which case the Commission shall make 

at the earliest practicable time, the 

announcement required by this section 

and a concurrent submission for 

publication of that announcement in the 

Federal Register.

(c) The time or place of a meeting may 

be changed following the public 

announcement required by 11 CFR 2.7

(a) or (b) only if the Commission 

announces the change at the earliest 

practicable time.

(d) The subject matter of a meeting, or 

the determination of the Commission to 

open or close a meeting, or portions of a 

meeting,, to the public may be changed 

following the public announcement 

required by 11 CFR 2.7 (a) or (b) only if;

(1) A majority of the entire 

membership of the Commission 

determines by recorded vote that 

Commission business so requires and 

that no earlier announcement of the 

change was possible; and

(2) The Commission publicly 

announces the change and the vote of 

each member upon the .change at the 

earliest practicable time. Immediately 

following this announcement the 

Commission shall submit for publication 

in the Federal Register a notice 

containing the information required by 

11 CFR 2.7(a)(2), including a description 

of any change from the earlier published 

notice.

§ 2.8 Annua! report.

The Commission shall report annually 

to Congress regarding its compliance 

with the requirements of the 

Government in the Sunshine Act and of 

this Part, including:

(a) A tabulation of the total number of 

Commission meetings open to the 

public;

(b) The total number of such meetings 

closed to the public;

(c) The reasons for closing such 

meetings; and

[d) A description of any litigation 

brought against the Commission under * 

the Sunshine Act, including any costs 

assessed against the Commission in 

such litigation (whether or not paid by 

the Commission).

Dated: September 20,1985.

John Warren McGarry,

Chairman.

[FR Doc. 85-23388 Filed.9-30-85; 8:45 am]

BILLING CODE 6715-01-M

FEDERAL RESERVE SYSTEM

12 CFR Part 211

[Docket No. R-0520I

Regulation K; Internationa! Banking 

Operations

A Qe n c y : Board of Governors of the 

Federal Reserve System.

A CTIO N : Final rule.

SUMMARY: The Board has reviewed and 

revised its regulations governing the 

operations of Edge corporations. The 

revisions concern certain U.S. activities 

of Edge corporations, lending limits and 

investment and change in control 

procedures applicable to Edge 

corporations. Some proposals dealing 

with foreign banking organizations 

operating in the United States have also 

been adopted.

EFFECTIVE D A TE : October 24,1985, 

except in the use of the provisions in 

section 211.5(c), which are effective 

immediately.

FOR FURTHER INFORM ATION C O N TA C T; 

Frederick R. Dahl, Associate Director 

(202/452-2726); James S. Keller, 

Manager, International Banking 

Applications (202/452-2523), Division o f 

Banking Supervision and Regulation; 

Ricki Rhodarmer Tigert, Assistant 

General Counsel (202/452-3428); 

Kathleen M. O’Day, Senior Counsel 

(202/452-3786), Legal Division; or Joy W. 

O’Connell, Telecommunication Device 

for the Deaf (TDD), (202/452-3244), 

Board of Governors of the Federal 

Reserve System.

SUPPLEMENTARY INFORM ATION: In June 

1984, the Board published for comment 

proposed revisions to Regulation K. The 

proposals were made pursuant to the 

directive in the International Banking 

Act of 1978 (“IBA”) that the Board 

review and revise its regulations 

governing Edge corporations every five 

years in order to ensure that the 

purposes of the Edge Act are being 

served m light of prevailing economic 

conditions.

The Board proposed major revisions 

in four areas: (1) Activities of Edge

corporations in the United States;(21 

capitalization requirements and lending 

limits of Edge corporations; (3), 

procedures to permit Board review of a 

proposed change in control of Edge 

corporations, and (4) limits on 

investments in other organizations. In 

addition, various changes were 

proposed to other parts of the 

regulation.

The Board received 56 public 

comments on the proposal. The final 

revisions to the regulation and the 

reasons for the Board’s action are 

outlined below. Some of the proposed 

revisions did not receive substantial 

comment and were adopted as 

proposed. In addition to the revisions 

described below, a number of technical 

and clarifying changes were also made.

Activities of Edge Corporations in the 

United States

Edge corporations are international 

banking and financial vehicles through 

which U.S. banking organizations can 

offer international banking services and 

through which they may compete with 

similar foreign-owned institutions in the 

United States and abroad. An Edge 

corporation is limited by statute to 

engaging only in activities in the United 

States that are “incidental” to 

international or foreign business. The 

Board, however, has broad discretionary 

authority to determine what U.S. 

activities are incidental to international 

or foreign business of an Edge 

corporation. The Board has interpreted 

this provision to require that all deposits 

accepted by Edge corporations from 

domestic residents must be related to or 

for the purpose of carrying out 

intematioal transactions, and that all 

credit and other transactions with 

domestic residents must be related to 

identifiable international transactions. 

This approach, designed to assure the 

international character of Edge 

corporations and prevent their use to 

circumvent limitations on interstate 

banking, imposes fairly stringent 

constraints on the operations of Edge 

corporations in the United States.

In its 1984 proposal for comment, the 

Board suggested several possible 

modifications to this transaction-bytransaction approach. The Board 

requested comment on the feasibility of 

these proposals and whether they would 

maintain the necessary linkage with 

international or foreign business 

required by statute. The proposals were 

as follows:

1. Allow Edge corporations to provide 

full banking services (deposits, loans 

and other services) to a limited class of 

companies that are restricted charters or