would require that ail business discussions between any two members be treated as a meeting under the Act. Announcements would nave to be made and sent to the rederal Register, votes taken, and if the "meeting" is to be closed a General Counsel's certification, list of attendees, and transcripts would also have to be provided. It would often be very difficult to assemble all of the staff necessary to carry out these requirements every time two of our directors wish to discuss an agency matter. where a consensus is reached, or where a decision is predetermined or finalized, the Act should, of course, apply. In question, however, are preliminary, exploratory discussions. Treating these as meetings under the Act could create an unmanageable burden in three-member agencies. The FDIC has not reached this point as yet because a third director nas not yet been confirmed, and the Comptroller of the Currency, an ex-officio member of the Board, is not directly involved in the day-to-day operation of FDIC business. when a third director is confirmed, however, ne will occupy an office in close proximity to Chairman LeMaistre and they should be permitted to converse frequently. Consequently, difficult administrative problems would arise if the broad interpretation of "meeting" were followed. rnere are also problems in staff briefings of two directors if the broader interpretation is followed. The recording of the proceedings that would be required by the Act could well stifle free and open staff discussion of issues related to sensitive matters, since portions of the transcript could in time become available to the public. Fortunately another reading of the definition of "meeting" is supported by the legislative history of this Act. The Senate Report states tnat: "It is not the intent of the bill to prevent any two In an Interpretive Guide to the Act, staff members of the Administrative Conference (the agency cnarged with overseeing agencies' implementing regulations) explain the definition of "meeting" in a way that would permit two directors of the FDIC to have preliminary discussions without triggering the Act's requirements. we believe this is the correct construction of "meeting" under the Act and recommend that your subcommittee consider clarifying the definition of "meeting" in a way that takes into account the special problems of three-member agencies under the Act. Let me emphasize that these comments should not be taken as opposition to the Act's primary purpose. fne roic supported enactment of this legislation and intends to continue its efforts to increase public awareness of agency decision-making, consistent with our bank regulatory functions. 1/ 1/ See p. 18 of Government in the Sunshine Act An Interpretive 35-867 79-6 FEDERAL ENERGY REGULATORY COMMISSION Senator CHILES. Our next witness will be the Honorable Charles Curtis, Chairman of the Federal Energy Regulatory Commission, and previously the Federal Power Commission. Mr. Curtis was recently confirmed by the Senate on October 20, 1977, so I am especially pleased to have him here to tell us about the leadership he will he providing for the agency in carrying out the spirit and letter of the Sunshine Act. Mr. Curtis, if you would briefly summarize your remarks we will insert your statement in full in the record. TESTIMONY OF CHARLES B. CURTIS, CHAIRMAN, FEDERAL ENERGY REGULATORY COMMISSION Mr. CURTIS. Thank you, Senator. As you indicated in your remarks I am newly confirmed in the Office of Chairman of the Federal Energy Regulatory Commission. This is an agency which came into existence under the terms of the Department of Energy Organization Act. It was activated on Octo ber 1. Necessarily, therefore, my comments before you today will relate to the experience at the Federal Power Commission, on which I had the privilege to serve as its last Chairman, before the termination of that agency coincident with the activation of the Department of Energy. As you may know, the Federal Power Commission opened its meetings to public observation, prior to the enactment of the Sunshine Act, on April 1, 1976. The first Federal Power Commission open meeting took place on April 21, or approximately 5 months before the act was adopted, and approximately 11 months before it became effective. A total of 71 Commission meetings were held during that period and all but 5 of them were open to the public. The Federal Power Commission implemented by Order No. 562 the provisions of the Sunshine Act on March 11, 1977, and between that date and October 1, 1977, the Federal Power Commission held 46 meetings or approximately 8 meetings per month. Of the 46 meetings only 4 were closed to public observation. One of the closed meetings concerned the Alaska natural gas pipeline system, then the subject of an on-the-record proceeding in connection with formulating the FPC recommendation to the President under the terms of the Alaska Natural Gas Transportation Act. The other three meetings involved a number of pending on-the-record proceedings, civil litigation, or internal personnel matters, all properly closed to the public. Since the activation of the Federal Energy Regulatory Commission the Commission has held 13 meetings. Of this number only two have been closed in part to public observation. Those sessions were closed in order to discuss pending civil litigation involving the Commission. In both cases that involved actions which the Commission may take with respect to pending applications for certiorari to the Supreme Court. At the time the implementing regulations of the Sunshine Act were adopted, the Federal Power Commission recognized that a majority of its meetings could properly be closed to the public pursuant to exceptions provided in 4, 8, 9(A), or 10 of the act, thus qualifying the Commission to adopt simplified procedures for closing Commission meetings under subsection (d) (4) of section 3 of that act. The Federal Power Commission determined not to adopt such procedures. This reflected a conscious policy to close meetings only on a case-by-case basis. Absent some future need to modify our procedures, which is unknown to me today, the Federal Energy Regulatory Commission will continue to follow the more restrictive practice previously adopted by the Federal Power Commission. We believe in maximizing the opportunity for public involvement in the decisionmaking process and it will continue to be the Commission's policy to close meetings or parts of meetings only on a selective and limited basis as the need arises. I have mentioned in my prepared remarks a number of problems with implementation of the Sunshine Act and one of those is a request for legislative clarification of the definition of "meeting." It would be helpful to provide further congressional guidance in this respect. The second area involves practical considerations that we have encountered in meeting the 7-year advance notice requirement through publication in the Federal Register, given the fact that this agency is required to take action within a statutory time period of 30 days with respect to a number of the most important aspects of the Commission's work and is also required to act for emergency purposes, in conjunction with the President, in dealing with the deepening natural gas supply shortage problem. I do not intend my summary remarks to repeat those contained in my prepared statement, but I would be happy to respond to any questions. A MEETING BY ANY OTHER NAME Senator CHILES. Thank you, sir. I notice that the definition of a meeting in your regulations, while basically tracking the statute, embellishes it somewhat. Specifically, you define meetings as face-to-face deliberations thus eliminating conference calls and, interestingly in order for a quorum to constitute a meeting, the Secretary or his designate must be present. Is there some reason for having the Secretary or his designate to have to be there to constitute a quorum? Mr. CURTIS. I don't know the history behind the Federal Power Commission's adopting that definition. It had been adopted before I got there. My personal view is that face-to-face deliberations are not prerequisite to a defined meeting under the Sunshine Act. Conference calls, as well, would necessitate compliance with the intent of the Sunshine Act. As to the Secretary's presence, I can only offer a guess, but we will be happy to supply an explanation of that. I assume that it is out of the caution for the legal requirement that there be a record of the meeting of the Commission, as required under the terms of the Sunshine Act. But, it is not intended to define out from the Sunshine Act require ments those meetings which may be for decisionmaking purposes simply because of the absence of the Secretary. I think it was directionally intended the other way. Senator CHILES. I note that on page 8 of the statement, you state that preliminary discussions can be excluded from the definition of a meeting. That interpretation would seem to be in plain disagreement with your own regulations defining a meeting. It would seem to me that the preliminary discussions of the Commission would be the very discussions when the public might be most interested in hearing the Commission's views. First, because they would like to know his or her instinctive reactions, and second, those reactions are going to determine what the agency's business is going to be at a later point. I am concerned as to how we can be sure beforehand that a preliminary discussion wouldn't in fact turn out to be something very final. Briefings from outside parties or agencies also interest me. Even if the Commissioners do nothing besides sit there and don't say a word while being briefed by outsiders, I think, as a member of the public, I would like to know what kind of information the Commissioners are being given. After all, it is on the basis of information of all sorts that you make your decisions. How do you currently treat such briefing sessions? Mr. CURTIS. Since I have been a member of the Federal Power Commission and also the Federal Energy Regulatory Commission there has not been any such meeting in which someone outside the agency briefed the Commission. This presents a problem. We have a new Commission, that is to say, new Commissioners who bring different levels of experience and familiarity to the task that they have undertaken to perform. We have attempted to go through an educational process by having staff briefings on the regulatory purposes behind the Federal Power Act, for example. The briefings considered its legislative history, what had been the Federal Power Commission's regulatory attitude and objectives in administering that act, where had the agency concluded a limit on its jurisdictional responsibilities, and where might there be opportunities to further that jurisdictional reach or to retreat from a reach that the agency had previously engaged in. Now, those types of briefings of the Commission, in my opinion, do not constitute a meeting within the purview of the Sunshine Act. If in the course of that meeting, however, the discussion becomes so focused that it would lead members of the Commission to formulate a decision with respect to a particular issue or matter which may be pending before the Commission, then I think at that point we step over the line. As you noted in the Senate report that accompanied the Sunshine Act, Senator, what constitutes a meeting is a matter which would have to be within the judgment of the members of a collegial body, keeping mindful that the presumption would be to stop the proceeding if that line is stepped over. But I suggest to you it is not a very bright line and any guidance you could give to us so that we may carry out the intent of the Congress properly would be helpful. As you know, the Administrative Conference has concluded an analysis of the Sunshine Act. In this particular regard they noted that there is difficulty in determining what is a meeting for purposes of the |