150 FERC ¶ 61,178

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Part 375

[Docket No. RM15-15-000; Order No. 806]

Disruptive Conduct at Commission Open Meetings

(Issued March 9, 2015)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

SUMMARY: The Commission is amending the CFRs which specify the roles available 

to the public at the Commission’s open meetings. This rule utilizes language from the 

Federal Communication Commission’s (FCC) open meeting regulation, and the Rural 

Telephone Bank’s open meeting regulation, to clarify that the term “observe” does not 

include disruptive behavior. The rule also uses language from the FCC’s open meeting 

regulation to clarify that communications made or presented by unscheduled presenters 

will not be considered by the Commission. Finally, the rule uses language similar to the 

Consumer Product Safety Commission’s open meeting regulation, to clarify that 

members of the public may use electronic audio and visual equipment to record open 

meetings in a non-disruptive manner. The rule imposes no new obligations on the public.

DATE: This rule will become effective [Insert_Date 30 days after publication in the 

FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT:
Docket No. RM15

-15-000- 2 -

Mark Hershfield

Office of the General Counsel

888 First Street, NE

Washington, DC 20426

(202) 502-8597

mark.hershfield@ferc.gov

Nathaniel Higgins

Office of the General Counsel

888 First Street, NE

Washington, DC 20426

(202) 502-6110

nathaniel.higgins@ferc.gov

SUPPLEMENTARY INFORMATION:
UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Disruptive Conduct at Commission 

 Open Meetings

 Docket No. RM15-15-000

ORDER NO. 806

FINAL RULE 

(Issued March 9, 2015)

TABLE OF CONTENTS

Paragraph Numbers

I. Introduction ........................................................................ 1.

II. Background ........................................................................ 2.

III. Discussion ......................................................................... 6.

IV. Information Collection Statement............................................... 10.

V. Environmental Analysis........................................................ 11.

VI. Regulatory Flexibility Act..................................................... 12.

VII. Document Availability .........................................................13.

VIII. Effective Date ...................................................................16.
150 FERC ¶ 61,178

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Cheryl A. LaFleur, Chairman;

 Philip D. Moeller, Tony Clark,

Norman C. Bay, and Colette D. Honorable.

Disruptive Conduct at Commission 

 Open Meetings

Docket No. RM15-15-000

(Issued March 9, 2015)

ORDER NO. 806

FINAL RULE

I. Introduction

1. By this final rule, the Federal Energy Regulatory Commission (Commission) is 

amending 18 CFR § 375.203(b), which specifies the roles available to the public at the 

Commission’s open meetings. This rule utilizes language from the Federal 

Communication Commission’s (FCC) open meeting regulation, 47 CFR § 0.602, and the 

Rural Telephone Bank’s open meeting regulation, 7 CFR § 1600.3, to clarify that the 

term “observe” does not include disruptive behavior. The rule also utilizes language 

from the FCC’s open meeting regulation to clarify that communications made or 

presented by unscheduled presenters will not be considered by the Commission. Finally,

the rule uses language similar to the Consumer Product Safety Commission’s open 

meeting regulation, 16 CFR § 1013.4, to clarify that members of the public may record 

open meetings in a non-disruptive manner. The rule imposes no new obligations on the 

public.
Docket No. RM15-15-000 - 2 -

II. Background

2. The Commission has recently experienced multiple disruptions to its open 

meetings from individual protesters. The disruptions have consisted of members of the 

public making unscheduled statements, standing up repeatedly, walking about the room, 

and displaying signs.

3. The Commission’s regulations outline the roles available to the public at the 

Commission’s open meetings. Specifically, 18 CFR § 375.203(b) states that “[m]embers 

of the public are invited to listen and observe at open meetings.” 

4. Like the Commission, other Federal agencies limit the conduct of the public at 

open meetings.1 Several other agencies have regulations on open meetings that expressly 

address disruptive conduct by members of the public and their removal for such conduct.

2

 1

 See, e.g., 12 CFR 311.2, 10 CFR 9.103, and 16 CFR 4.15 (Regulations of the 

Federal Deposit Insurance Corporation, Nuclear Regulatory Commission, and Federal 

Trade Commission limiting the participation of the public to observing open meetings).

2 See, e.g., 47 CFR 0.602 (Federal Communication Commission defines 

“observation” as to not include “participation or disruptive conduct by observers, and 

persons engaging in such conduct will be removed from the meeting”); see also 7 CFR 

1600.3 (The Rural Telephone Bank defines “observation” as to not include “participation 

or disruptive conduct by observers, and persons engaging in such conduct will be 

removed from the meeting”); see also 29 CFR 1612.3 (The Equal Employment 

Opportunity Commission defines “public observation” as to “not include participation or 

disruptive conduct by observers” and “any attempted participation or disruptive conduct 

by observers shall be cause for removal of persons so engaged at the discretion of the 

presiding member of the agency); see also 17 CFR 200.410 (The Securities Exchange 

Commission permits the exclusion of “any person from attendance at any meeting 

(continued...)
Docket No. RM15-15-000 - 3 -

The language of the rules of the FCC, EEOC, and the Rural Telephone Bank are 

particularly useful in clarifying the term “observe” as it appears in the Commission’s 

regulations. The FCC, EEOC, and the Rural Telephone Bank define “observation” as not 

including disruptive conduct.

3

 Furthermore, the FCC’s regulation addresses documents 

that an unscheduled presenter might seek to deliver at an open meeting, prohibiting their 

entry into the FCC’s official record. In particular, the relevant provision states:

[t]he right of the public to observe open meetings does not alter those rules 

in this chapter which relate to the filing of motions, pleadings, or other 

documents. Unless such pleadings conform to the other procedural 

requirements of this chapter, pleadings based upon comments or 

discussions at open meetings, as a general rule, will not become part of the 

official record, will receive no consideration, and no further action by the 

Commission will be taken thereon.

5. Another related topic is possible disruption stemming from observers’ use of 

personal electronic recording devices at open meetings. The applicable provision of the 

Commission’s regulations, 18 CFR § 375.203(b), allows members of the public to record 

open meetings in a non-disruptive manner.

4

 Other agencies similarly permit the 

 

whenever necessary to preserve decorum, or where appropriate or necessary for health or 

safety reasons”) and 45 CFR 702.52 (The Commission on Civil Rights empowers the 

presiding Commissioner to “exclude persons from a meeting” and “take all steps 

necessary to preserve order and decorum”).

3 See 47 CFR 0.602, 29 CFR 1612.3, and 7 CFR 1600.3, respectively.

4 18 CFR 375.203(b)(2)(i)-(iv) states the following:

(i) Subject to the provisions of paragraphs (b)(2) (ii), (iii), and (iv) of this section, 

members of the public may record discussions at Commission meetings by means of 

electronic or other devices (including tape recorders, stenotype, stenomask, or shorthand). 

(continued...)
Docket No. RM15-15-000 - 4 -

recording of open meetings in a non-disruptive manner.5 The language adopted by the 

Consumer Product Safety Commission, stating that “[t]o the extent their use does not 

 

The photographing of Commission meetings by still or movie camera, or by video taping 

without lighting aids, is permitted.

(ii) Due to the limited space of the Commission meeting room, use of recording or 

photographic equipment which would require the user to move about the room during the 

meeting is not allowed. Recording and photographic equipment may be set up and used 

only in the public areas of the Commission meeting room as designated by the 

Commission.

(iii) Except for portable equipment which is used at an individual’s seat in the 

audience, equipment must be in place and ready to use prior to the start of the meeting or 

set up during a recess of the meeting. Such equipment may be removed only at the 

conclusion of the meeting or during a recess. A pre-arranged recess for the set up or 

removal of equipment may be requested through the Commission’s Director of the 

Division of Public Information.

(iv) No microphones may be placed on the tables used by the Commissioners and 

Staff.

5 See, e.g., 16 CFR 1013.4 (The Consumer Product Safety Commission provides 

that “[t]o the extent their use does not interfere with the conduct of open meetings, 

cameras and sound-recording equipment may be used at open Commission meetings”); 

see also 18 CFR 1301.43 (The Tennessee Valley Authority permits the public to “make 

reasonable use of electronic or other devices or cameras to record deliberations or actions 

at meetings so long as such use is not disruptive of the meetings”) and 39 CFR 3001.43 

(The Postal Rate Commission regulation states that “[m]embers of the public may not 

participate in open meetings. They may record the proceedings, provided they use 

battery-operated recording devices at their seats. Cameras may be used by observers to 

photograph proceedings, provided it is done from their seats and no flash or lighting 

equipment is used. Persons may electronically record or photograph a meeting, as long 

as such activity does not impede or disturb the members of the Commission in the 

performance of their duties, or members of the public attempting to observe, or to record 

or photograph, the Commission meeting”).
Docket No. RM15-15-000 - 5 -

interfere with the conduct of open meetings, cameras and sound-recording equipment 

may be used at open Commission meetings,” is particularly succinct in making this point.

III. Discussion

6. The Commission is concerned about the impact of public disruptions on its ability 

to conduct open meetings. To ensure compliance with the Government in the Sunshine 

Act,6 it is essential that the Commission’s open meetings focus on the items listed in the 

posted agenda. Members of the public do not have a right to disrupt open meetings or to 

raise extraneous issues.7

 

7. The Commission is issuing this Final Rule to clarify that the term “observe” used

in Section 375.203(b) of its regulation, has the same meaning as the term “observation”

in the regulations of the FCC and the Rural Telephone Bank.8 Thus, this rule merely 

clarifies that the term “observe” as used in Section 375.203(b) does not mean the right to 

 6 29 CFR 2701.

7 The First Amendment does not provide a right to disrupt a Commission open 

meeting. Cf. White v. City of Norwalk, 900 F.2d 1421, 1424–1426 (9th Cir.1990) 

(holding that a city ordinance allowing removal of persons who disrupt, disturb, or 

otherwise impede orderly conduct of council meetings is not overly broad and not a 

violation of First Amendment rights); Smith-Caronia v. United States, 714 A.2d 764, 765 

(D.C. Cir. 1998) (upholding the constitutionality of D.C. Code 9–112(b)(4), which 

prohibits disruptive conduct within any of the Capitol Buildings). Moreover, agencies do 

not violate the First Amendment when they “confine their meetings to specified subject 

matter.” Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 

167, 175 n.8 (1976). 

8 While the EEOC essentially interprets “observation” the same way, the 

Commission is specifically utilizing the regulatory language of the FCC and the Rural 

Telephone Bank.
Docket No. RM15-15-000 - 6 -

disrupt. 9 The rule gives the Commission no new authority, and it imposes no obligations 

on the public that do not currently exist. The public already has an obligation to avoid 

disruptive conduct at the Commission’s open meetings. 

8. The final rule also addresses the possibility that when disruptive conduct involves

the reading of unscheduled statements, those statements could trigger potential violations 

of the Government in the Sunshine Act notice provisions, the ex parte communications 

provisions of the Administrative Procedure Act, and the Commission’s ex parte 

communications rule, 18 CFR § 385.2201. Specifically, incorporating language from 

Section 0.602(c) of the FCC’s regulations into the Commission’s regulations clarifies that 

disruptive statements, oral or written, will not be included in the record or considered by 

the Commission. 

9. Finally, the Commission recognizes that its existing regulations concerning 

recording open meetings are unduly complex and out of date. The Commission is 

therefore amending its regulation to clarify that seated members of the public, or seated 

observers, may use electronic audio and visual recording equipment to record open 

meetings in a non-disruptive manner. In this regard, the Commission is utilizing 

language similar to that used by the Consumer Product Safety Commission. 

 9 The Commission has a comparable rule in 18 CFR 385.2102(b), which states 

that, “[c]ontumacious conduct in a hearing before the Commission or a presiding officer 

will be grounds for exclusion of any person from such hearing and for summary 

suspension for the duration of the hearing by the Commission or the presiding officer.” 
Docket No. RM15-15-000 - 7 -

IV. Information Collection Statement

10. Office of Management and Budget (OMB) regulations require OMB to approve 

certain information collection requirements imposed by agency rule.10 However, this 

instant Final Rule does not contain any information collection requirements. Therefore, 

compliance with OMB regulations is not required.

V. Environmental Analysis

11. The Commission is required to prepare an Environmental Assessment or an 

Environmental Impact Statement for any action that may have a significant adverse effect 

on the human environment.11 Issuance of this Final Rule does not represent a major 

federal action having a significant adverse effect on the human environment under the 

Commission’s regulations implementing the National Environmental Policy Act of 1969. 

Part 380 of the Commission’s regulations lists exemptions to the requirement to draft an 

Environmental Analysis or Environmental Impact Statement. Included is an exemption 

for procedural, ministerial, or internal administrative actions.12 This rulemaking is 

exempt under that provision. 

 10 5 CFR 1320.12.

11 Regulations Implementing the National Environmental Policy Act of 1969, 

Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987).

12 18 CFR 380.4(a)(1).
Docket No. RM15-15-000 - 8 -

VI. Regulatory Flexibility Act

12. The Regulatory Flexibility Act of 1980 (RFA)13 generally requires a description 

and analysis of final rules that will have significant economic impact on a substantial 

number of small entities. This Final Rule concerns an interpretation of current 

Commission regulations and practices. The Commission certifies that it will not have a 

significant economic impact upon participants in Commission proceedings. An analysis 

under the RFA is not required. 

VII. Document Availability

13. In addition to publishing the full text of this document in the Federal Register, the 

Commission provides all interested persons an opportunity to view and/or print the 

contents of this document via the Internet through the Commission’s Home Page 

(http://www.ferc.gov) and in the Commission’s Public Reference Room during normal 

business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, 

Washington, DC 20426.

14. From the Commission’s Home Page on the Internet, this information is available 

on eLibrary. The full text of this document is available on eLibrary in PDF and 

Microsoft Word format for viewing, printing, and/or downloading. To access this 

document in eLibrary, type the docket number excluding the last three digits of this 

document in the docket number field.

 13 5 U.S.C. 601-12.
Docket No. RM15-15-000 - 9 -

15. User assistance is available for eLibrary and the Commission’s website during 

normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-

208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at 

(202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at 

public.referenceroom@ferc.gov.

VIII. Effective Date

16. The Commission is issuing this rule as a Final Rule without a period for public 

comment. Under 5 U.S.C. 553(b)(3)(A), notice and comment procedures are unnecessary

for “interpretative rules, general statements of policy, or rules of agency organization, 

procedure, or practice . . . .” This rule merely provides the public with guidance 

concerning the existing regulation and reminds the general public of the roles available to 

the public at the Commission’s open meetings. The rule will not significantly affect 

regulated entities or the general public.

17. These regulations are effective [insert date 30 days after publication in the

Federal Register]. 

List of subjects in 18 CFR Part 375.203

Open Meetings

By the Commission.

( S E A L )

Kimberly D. Bose,

Secretary.
Docket No. RM15-15-000 - 10 -

In consideration of the foregoing, the Commission amends Part 375, Chapter 2, 

Title 18, Code of Federal Regulations, as follows:

PART 375 – THE COMMISSION

1. The authority citation for Part 375 continues to read as follows:

Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-825r, 

2601-2645; 42 U.S.C. 7101-7352

2. Section 375.203(b) is being revised to read as follows:

§ 375.203 Open Meetings.

* * * * *

(b) * * * 

(1) * * *

(i) “Observe” does not include participation or disruptive conduct, and persons engaging 

in such conduct will be removed from the meeting.

(ii) The right of the public to observe open meetings does not alter those rules which 

relate to the filing of motions, pleadings, or other documents. Unless such pleadings 

conform to the other procedural requirements, pleadings based upon comments or 

discussions at open meetings, as a general rule, will not become part of the official 

record, will receive no consideration, and no further action by the Commission will be 

taken thereon.

(2) To the extent their use does not interfere with the conduct of open meetings, 

electronic audio and visual recording equipment may be used by a seated observer at an 

open meeting.

* * * * *