E6-18073. Rules for Implementing Open Meetings Within the Inter-American Foundation

AGENCY:

Inter-American Foundation.

ACTION:

Final rule; clarifying amendments.

SUMMARY:

The Inter-American Foundation (IAF) is re-issuing and updating its rules for implementing open meetings, in accordance with 5 U.S.C. 552b. This rule promotes public understanding of the decisionmaking processes of the IAF, while protecting the rights of individuals and the ability of the agency to carry out its responsibilities. This action is technical and procedural in nature and is intended to provide accuracy and clarity to the agency's existing regulations.

DATES:

Effective Date: October 30, 2006.

FOR FURTHER INFORMATION CONTACT:

Rebecca Verreau, Office of the General Counsel, 901 N. Stuart St., 10th Floor, Arlington, VA 22203, [e-mail] or [phone].

SUPPLEMENTARY INFORMATION:

I. Background

The Inter-American Foundation (IAF) is updating its rules for implementing open meetings, in accordance with 5 U.S.C. 552b. This final rule amends and updates existing IAF regulations in conformance with 5 U.S.C. 552b.

II. Rulemaking Analyses and Notices

Because the amendments made by this document relate to management, organization, procedure, and practice, prior notice and opportunity for comment are unnecessary under 5 U.S.C. 553(b)(3)(A). In addition, prior notice and opportunity for comment are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B) because the process of amending and updating the sections is merely technical and procedural in nature and proposes no substantive changes to which public comment could be solicited.

This final rule is made effective upon publication in the Federal Register. The IAF finds that good cause exists for this final rule to be exempt from the 30-day delayed effective date requirement of 5 U.S.C. 553(d) because a delay in effective date is unnecessary and would not be in the public interest.

III. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review)

The IAF has determined this action does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866. Therefore, this rule has not been reviewed by the Office of Management and Budget (OMB). We anticipate the economic impact of this rulemaking will be so minimal that a full regulatory evaluation is unnecessary.

B. Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement and Fairness Act (Pub. L. 104-121), we have evaluated the effects of this rule on small entities. Based on this evaluation, the IAF hereby certifies this action will not have a significant economic impact on a substantial number of small entities. No substantive changes are being made to the regulations that would affect small entities.

C. Unfunded Mandates Reform Act of 1995

The IAF has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 1532) do not apply to this rulemaking.

D. Executive Order 12372 (Intergovernmental Review)

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

E. Executive Order 13132 (Federalism Assessment)

The IAF has analyzed this action in accordance with the principles and criteria contained in Executive Order 13132 published at 64 FR 43255 (Aug. 10, 1999). The regulations amended and updated by the IAF herein do not preempt State authority or jurisdiction, or establish any conflicts with existing State roles. The IAF has therefore determined this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

F. Executive Order 12630 (Taking of Private Property)

This rule will not effect a taking of private property or otherwise have takings implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

G. Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

H. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. This rule contains no collection of information requirements and was not reviewed by OMB.

I. National Environmental Policy Act

The IAF has analyzed this rule under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and determined that this rule has no environmental effects because it amends and updates regulations that are technical, editorial or procedural in nature and is therefore excluded further environmental documentation. In addition, the agency finds this action includes no extraordinary circumstances that would have any effect on the quality of the environment. Thus, the action does not require an environmental assessment or environmental impact statement.

List of Subjects in 22 CFR Part 1004

• Government in the Sunshine Act

Accordingly, 22 CFR part 1004 is revised to read as follows:

PART 1004—RULES FOR IMPLEMENTING OPEN MEETINGS WITHIN THE INTER-AMERICAN FOUNDATION

1004.1

General policies.

1004.2

Definitions.

1004.3

Requirement of open meetings.

1004.4

Grounds on which meetings may be closed.

1004.5

Procedures for announcing meetings.

1004.6

Procedures for closing meetings.

1004.7

Reconsideration of opening or closing of meeting.

1004.8

Transcripts, recording of closed meeting.

Authority: 5 U.S.C. 552b.

§ 1004.1

General policies.

The Inter-American Foundation (IAF) will, in accordance with the Government in the Sunshine Act, 5 U.S.C. 552b, provide the public with the fullest practical information regarding its decisionmaking processes while protecting the rights of individuals and its ability to carry out its responsibilities.

§ 1004.2

Definitions.

The following definitions apply:

(a) Agency includes any executive department, military department, government corporation, government controlled corporation other establishment in the executive branch of the government (including the Executive Office of the President) or any independent regulatory agency, and is headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency. The Inter-American Foundation is a government corporation headed by a nine-member Board of Directors, all of whom are appointed by the President with the advice and consent of the Senate, and is therefore an “agency” under these terms.

(b) Meeting means the deliberation of this Board of Directors where such deliberation determines or results in the joint conduct or disposition of official IAF business, but does not include deliberations required or permitted by subsection 1004.6 or 1004.7.

(c) Member means an individual who belongs to the IAF Board of Directors.

(d) Public Observation means attendance at any meeting but does not include participation, or attempted participation, in such meeting in any matter.

§ 1004.3

Requirement of open meetings.

Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in § 1004.4 every portion of every meeting of the agency shall be open to public observation.

§ 1004.4

Grounds on which meetings may be closed.

The IAF shall open every portion of every meeting of the agency for public observation. Except in a case where the agency finds that the public interest requires otherwise, this requirement does not apply where the agency determines that such portion or portions of its meeting or the disclosure of such information 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 practice of the agency;

(c) Disclose matters specifically exempted from disclosure by statute, provided that such statute:

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

(2) Establishes practical 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 of 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, information furnished by a 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 institutions;

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

(j) Specifically concern the IAF's issuance of subpoena, or the IAF'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 IAF of a particular case of formal agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing.

Note to § 1004.4:

The requirements of §§ 1004.5 and 1004.6 shall not apply to any information pertaining to those meetings exempted under this section.

§ 1004.5

Procedures for announcing meetings.

(a) In the case of each meeting, the IAF shall make public, at least one week before the meeting, of the time, place and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated by the IAF to respond to requests for information about the meeting. Such announcement shall be made unless a majority of the Board of Directors of the IAF determines by a recorded vote that the IAF requires that such a meeting be called at an earlier date, in which case the IAF shall make public announcement of the time, place and subject matter of such meeting and whether open or closed to the public, at the earliest practical time.

(b) Immediately following the public announcement, the IAF will submit notice for publication in the Federal Register.

(c) The IAF shall also make public the announcement by other reasonable means, accessible to the public.

§ 1004.6

Procedures for closing meetings.

(a) The closing of a meeting or a portion of a meeting shall occur only when:

(1) A majority of the membership of the IAF Board votes to take such action. That vote shall determine whether or not any portion or portions of a meeting or portions of a series of meetings may be closed to public observation for any of the reasons provided in § 1004.4 and whether or not the public interest nevertheless requires that portion of the meeting or meetings remain open. A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in such series. The vote of each Board member participating in such vote shall be recorded and no proxies shall be allowed.

(2) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the IAF close such portion to the public for any of the reasons referred to in § 1004.4 the IAF, upon request of any one of its Board members, shall take a recorded vote, whether to close such portion of the meeting.

(b) Within one day of any vote taken pursuant to this Section, the IAF shall make publicly available a written copy of such vote reflecting the vote of each member on the question and full written explanation of its action closing the entire or portion of the meeting together with a list of persons expecting to attend the meeting and their affiliation.

(c) The IAF shall, subject to change, announce the time, place and subject matter of the meeting at least 7 days before the meeting.

(d) For every closed meeting pursuant to § 1004.4, the General Counsel of the IAF shall publicly certify prior to a Board of Directors' vote on closing the meeting, that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, shall be retained by the IAF.

§ 1004.7

Reconsideration of opening or closing of meeting.

The time or place of a Board meeting may be changed, without vote, following public announcement. The IAF will announce any such change at the earliest practicable time. The subject matter of a meeting, or the determination of the agency to open or close a meeting, or portion of a meeting, to the public, may be changed only if a majority of the Board of Directors determines by a recorded vote that IAF business so requires and that no earlier announcement of the change was possible, and the IAF publicly announces such change and the vote of each member upon such change at the earliest practicable time.

§ 1004.8

Transcripts, recording of closed meetings.

(a) The IAF shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public, except that in the case of a meeting, or portion of a meeting, closed to the public pursuant to paragraph (d), (h), or (j) of § 1004.4, the IAF shall maintain either such a transcript or recording, or a set of minutes. Such records shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflecting the vote of each member on the question). All documents considered in connection with any action shall be identified in such records.

(b) The IAF, after review by the General Counsel shall make promptly available to the public, in a place easily accessible to the public, the transcript or electronic recording or minutes of the discussion of any time on the agenda, or any item of the testimony of any witness received at the Board meeting, except for such item or items of such discussion or testimony as the IAF determines to contain information which may be withheld under § 1004.4. Copies of such transcript, 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 IAF shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two years after such meeting, or until one year after the conclusion or any IAF proceedings with respect to which the meeting or portion was held, whichever occurs later.

Dated: October 13, 2006.

Jennifer R. Hodges,

General Counsel.