As Chairman of the Commission, for example, I have

felt an increasing need to meet regularly but informally with the other members of the Commission to exchange general information concerning matters affecting the agency, and to discuss general problems concerning the Commission's operation.

For

the most part, I would have no hesitation about opening such informal sessions to public observation

although in all

candor I expect that the effectiveness of this kind of meeting would be somewhat reduced if it were exposed to the public. The problem has been one of notice. The Act requires one week's advance notice of the subject matter of each meeting.

Yet, the kind of informal session I have in mind does not lend itself to

a defined agenda. I am advised that, if the discussion at such sessions were kept tentative and exploratory, the sessions could be held without attempting to formulate an agenda.

Regardless of whether such sessions may properly be regarded as outside the Act's scope, I am inclined to think we can adequately comply with the Act's spirit by publicly announcing at least one week in advance that we propose to hold such an informal session possibly in my personal office over that the session will be open to the public, and that the subject matter of the meeting will be general matters of common concern to the members of the Commission but will not

coffee

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include discussion of any specific pending proceeding or formal agency action.

One recent session, highlighted in the recent Common Cause study of Sunshine Act compliance, also warrants the Subcommittee's attention. It illustrates the extent to which reasonable persons may disagree over the meaning of the word "meeting." The National Industrial Traffic League, one of

the leading representatives of the Nation's consumers of transthe shipping public invited the members

portation services

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of the Commission to attend a working conference and luncheon sponsored by the League's officers to permit an informal exchange of views on general developments in transportation regulation.

Before accepting the invitation, I consulted with the Commission's General Counsel at some length concerning whether attendance by a majority of the Commissioners at such a conference would contravene the Sunshine Act's provisions. We ultimately concluded that the Act would not apply because the conference would not be a meeting within the Act's definition that is, it would not involve deliberations by members of the Commission that would determine or result in the joint conduct or disposition of official agency business.

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to be general and informational, with no discussion of any

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matter likely to be pending before the Commission, we concluded that the session was not within the Sunshine

Act's coverage.

Common Cause strongly disagrees with that

legal conclusion, although its study does not reflect the I am satisfied that

analytical basis of its disagreement.

the Commission's attendance at the League's conference did not violate the provisions of the Sunshine Act.

In sum, in spite of a few problems, I believe the Commission has properly balanced the right of public access against individual rights and the necessity for efficient and effective government performance of its responsibilities. So far I have been talking about the open meeting requirements of the Sunshine Act, which I believe are probably of foremost concern to this Subcommittee. I would now

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like to make brief mention of the second major provision of the Act the section regarding ex parte communications. This section amends the Administrative Procedure Act by expressly prohibiting any ex parte contact between agency members or decisional employees and persons outside the agency regarding the merits of any formal Commission proceeding. This same prohibition, as you may know, has long been a part of the Interstate Commerce Commission's Rules of Practice and its Canons of Conduct (for Commission personnel), and thus as far as this agency is concerned, the Act has made little if any substantive change.

Finally, I would like to mention that a thorough

review and re-evaluation of our sunshine regulations will take place on or about the anniversary date of the regulations. Included in this re-evaluation will be consideration of the recommendations recently made by Common Cause, some of which may have merit. As one example, Common Cause has suggested that minutes be kept of open meetings, which is a matter we will likely consider in our re-evaluation of the regulations.

Thank you for this opportunity to comment on the Sunshine Act, and I will be glad to respond to any questions you may have.

Senator CHILES. Our next witness will be Mr. Fred Favor of the Local and Short Haul Carriers National Conference.

Mr. Favor, to use your own words, your association is mostly comprised of the "Mom and Pop" family businesses who are involved in teh local hauling and pickup and delivery services. That is correct, is it not?

Mr. FAVOR. Yes, sir.

Senator CHILES. So your members are mostly small businessmen and women. I appreciate the care and concern that went into your opening statement. We will insert it in the record in full.

I want to ask you to condense your presentation to us, if you will, in our interest of time.

Perhaps if you start on page 3, since you outline there the frustrations that you were having in meeting with the ICC, and the apparent treatment that others seemed to enjoy. Then I think by the time you get to page 6 you will have outlined your case or our interest in your case clearly.

Mr. FAVOR Mr. Chairman, we do have a 212- to 3-page statement which does exactly what you stated.

Senator CHILES. Fine.

TESTIMONY OF FRED G. FAVOR, EXECUTIVE DIRECTOR, LOCAL AND SHORT HAUL CARRIERS NATIONAL CONFERENCE, ACCOMPANIED BY EVERETT HUTCHINSON, ATTORNEY

Mr. FAVOR. May I introduce on my right Mr. Everett Hutchinson of the law firm in Washington of Fulbright & Jaworski, which represents the conference on some matters. Mr. Hutchinson is a former Commissioner at the ICC, from 1955 to 1965. He served as Chairman in 1965, and was Deputy Under Secretary of Transportation in 1967 under President Johnson.

His firm has been working for us over 2 years now, on some of these matters. On my left with the law firm also, is David Sutherlund.

Our experience with the Interstate Commerce Commission the last few years has raised fears that this agency is seeking to abandon its congressionally mandated role.

We believe the agency is in part misusing the Sunshine Act to accomplish administratively what Congress has not sanctioned. It is now nearly impossible to obtain two-way communication at the Commission. We believe that this is contrary to the intent, if not the letter, of the Sunshine Act.

This subcommittee is aware of the conference's efforts to meet face to face with the ICC in an honest effort to discuss the philosophies behind the regulatory changes. We requested this by letter dated August 1, 1977, and on August 16, 1977, the ICC Chairman by letter declined to grant the forum request, suggesting that we testify instead at one of the six regional hearings on a limited subject.

On August 17, 1 day after an ICC ethics debate, six of the eight Commissioners held a private meeting and a luncheon with the officers of a major shippers association in a Washington hotel. While the Commission may or may not have intended to violate the Sunshine Act, the fact that the Chairman granted that private meeting while refusing the small business truckers an open meeting was discriminatory.