02-23484. Sunshine Act

AGENCY:

The Broadcasting Board of Governors.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

This regulation proposes to establish rules for implementing open meetings under the Sunshine Act for the Broadcasting Board of Governors (BBG or Agency).

DATES:

Comments must be submitted on or before October 2, 2002.

ADDRESSES:

Send comments concerning the proposed rule to Carol M. Booker, Legal Counsel, Broadcasting Board of Governors, 330 Independence Avenue, SW., Washington, DC 20237.

FOR FURTHER INFORMATION CONTACT:

Carol M. Booker, Legal Counsel, at [phone].

SUPPLEMENTARY INFORMATION:

Pub. L. 103-236, the United States Broadcasting Act of 1994, created the BBG within the United States Information Agency (USIA). By law, the bipartisan board consisted of nine members—eight members who were appointed by the President, by and with the advice and consent of the Senate, and the USIA Director.

On October 21, 1998, President Clinton signed Pub. L. 105-277, the Omnibus Consolidated Emergency Supplemental Appropriations Act for Fiscal Year 1999. Contained as Division G of this legislation was the Foreign Affairs Reform and Restructuring Act of 1998, which reorganized the foreign affairs agencies of the U.S. Government. Under this reorganization, the Broadcasting Board of Governors became an independent Federal entity on October 1, 1999. Under the reorganization of the foreign affairs agencies, the responsibilities of the Board remained intact, and the membership of the Board remained the same, except that the USIA Director was replaced by the Secretary of State.

The BBG has responsibility for oversight of all United States sponsored, non-military broadcasting to foreign countries. The BBG oversees the operations of the International Broadcasting Bureau (IBB), which includes the worldwide broadcasting services of the Voice of America (VOA), WORLDNET, the Office of Cuba Broadcasting (OCB), Engineering and Technical Operations. The BBG also oversees two grantee organizations, Radio Free Europe/Radio Liberty (RFE/RL) and Radio Free Asia (RFA). The Board members also serve as the members of the Board of Directors of both RFE/RL and RFA.

The Board's authorities include, among others:

• To review and evaluate the mission and operation of, and assess the quality, effectiveness, and professional integrity of, all such activities within the broad foreign policy objectives of the United States;
• To make and supervise grants for broadcasting and related activities of RFE/RL and RFA;
• To review, evaluate and determine, at least annually, the addition or deletion of language services; and
• To allocate funds appropriated for international broadcasting activities among the various elements of the IBB and grantees, subject to reprogramming notification.

In total, the BBG broadcasting entities transmit more than 2,000 hours of weekly programming in 61 languages to more than 100 million weekly listeners worldwide.

The Sunshine Act (5 U.S.C. 552b) is a Federal Law that requires meetings of Federal Agencies to remain public and in most cases the time, place and subject matter of the meeting should be announced prior to its occurrence.

In accordance with 5 U.S.C. 605(b), the BBG certifies that the rules do not have a significant adverse economic impact on a substantial number of small entities. This rule is not considered significant regulatory action within the meaning of section 3(f) of Executive Order 12866, nor does this rule have Federalism implications warranting the preparation of a Federalism Assessment in accordance with Executive Order 12612.

Dated: August 23, 2002.

Carol M. Booker,

Legal Counsel, Broadcasting Board of Governors.

List of Subjects in 22 CFR 507

• Sunshine Act

Accordingly, 22 CFR part 507 is proposed to be added to read as set forth below:

PART 507—RULES FOR IMPLEMENTING OPEN MEETINGS UNDER THE SUNSHINE ACT FOR THE BROADCASTING BOARD OF GOVERNORS

507.1

General Policies.

507.2

Definitions.

507.3

Requirement for open meetings.

507.4

Grounds on which meetings may be closed.

507.5

Procedures for announcing meetings.

507.6

Procedures for closing meetings.

507.7

Reconsideration of opening or closing a meeting.

507.8

Recording keeping of closed meetings.

Authority: Pub. L. 93-129, 87 Stat. 956, 5 U.S.C. 552b.

§ 507.1

General policies.

The Broadcasting Board of Governors will provide the public with the fullest practical information regarding its decision making process while protecting the rights of individuals and its abilities to carry out its responsibilities.

§ 507.2

Definitions.

The following definitions apply:

(a) The term agency includes any establishment in the executive branch of the government 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 Broadcasting Board of Governors is a government agency headed by a nine-member board, eight of whom are appointed by the President with the advice and consent of the Senate, and the ninth being the Secretary of State. Therefore, the Broadcasting Board of Governors is an “agency” under these terms.

(b) The term meeting means the deliberation of this Board where such deliberations determine or result in the joint conduct or disposition of official Board business.

(c) The term member means an individual who belongs to the Board who has been appointed by the President and confirmed by the Senate or is the Secretary of State.

§ 507.3

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 § 507.4 every portion of every meeting of the agency shall be open to public observation.

§ 507.4

Grounds on which meetings may be closed.

The Board shall open every portion of every meeting of the agency for public observation except where the agency determines that such portion or portions of the 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 leave no discretion on the issue, or

(2) Established 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 on 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 source,

(5) Disclose investigative techniques and procedures, or

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

(h) 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 Board has already disclosed to the public the content or the nature of its proposed action, or where the Board is required by law to make such disclosures on its own initiative prior to taking final Board action on such proposal; or

(i) Specifically concern the Board's issuance of a subpoena, or the Board'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 Board of a particular case of formal agency adjudication, or otherwise involving a determination on the record after opportunity for a hearing.

§ 507.5

Procedures for announcing meetings.

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

(b) Immediately following the public announcement, the Board will publish it in the Federal Register.

§ 507.6

Procedures for closing meetings.

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

(1) A majority of the membership of the Board votes to take such action. A separate vote of the Board members shall be taken with respect to each Board meeting, a portion or portions of which are proposed to be closed to the public pursuant to § 507.4, or with respect to any information which is proposed to be withheld under § 507.4. 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 not 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 interest may be directly affected by a portion of the meeting requests that the Board close such a portion to the public for any of the reasons referred to in § 507.4 (e), (f) or (g), the Board, upon request of any 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, the Board 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 all persons expected to attend the meeting and their affiliation.

(c) The Board shall announce the time, place and subject matter of the meeting at least eight (8) days before the meeting.

(d) For every closed meeting, the Board's Legal Counsel shall publicly certify 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 Board.

§ 507.7

Reconsideration of opening or closing a meeting.

The time or place of a Board meeting may be changed following the public announcement only if the Board publicly announces 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 a portion of a meeting, to the public, may be changed following the public announcement only if a majority of the Board members determines by a recorded vote that Board business so requires and that no earlier announcement of the change was possible, and the Board publicly announces such change and the vote of each member upon such change at the earliest practicable time.

§ 507.8

Recording keeping of closed meetings.

(a) The Board shall maintain an electronic recording of the proceedings of each meeting, or portion of a meeting, closed to the public.

(b) The Board, after review by the Chairman, shall make promptly available to the public in a place easily accessible to the public, a complete transcript or electronic record of the discussion of any item on the agenda, or any item of testimony of any witness received at the Board meeting, except for such item or items of such discussion or testimony as the Board determines to contain information which may be withheld under § 507.4. Copies of such record, disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication. The Board shall maintain a complete transcript or electronic copy 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 of any Board proceeding with respect to which the meeting or portion was held, whichever occurs later.