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not vote on the change of meeting time or place. Conf. Rept., 18.

The question of the cancellation of a meeting is not considered in the Act or its legislative history. If a cancellation is viewed as a change in the time or place, rather than the subject matter, of a meeting, it would not require a recorded vote of the agency but would necessitate an announcement of the cancellation "at the earliest practicable time." Similarly, if an agency passes over an already scheduled and announced agenda item, the rescheduling of the item may most practically be considered a change in the time or place of the meeting portion and need only be announced "at the earliest practicable time."

Changing the Subject Matter or Decision to Open or Close; Addition, Deletion or Carry-Over of Agenda Items. The second sentence of subsection (e)(2) permits an agency, after it has scheduled and announced a meeting, to change the subject matter, or the decision to open or close the meeting. The agency may make such changes "only if (A) a majority of the entire membership of the agency determines by a recorded vote that agency business so requires and that no earlier announcement of the change was possible, and (B) the agency publicly announces such change and the vote of each member upon such change at the earliest practicable time." The Senate Report elaborates on this provision:

"This procedure anticipates cases when agency business requires that a matter be added to the agenda on a few days or even a few hours notice. For example, a motor carrier may apply for an emergency temporary operating license in order to provide fuel, food, clothing or the like to those who need it immediately. Agency action within days or hours may be necessary. In such a case, the matter could be added to the already announced agenda of the meeting, or the agency could call a separate

"The Interstate Commerce Commission originally proposed that "[i]n the absence of objection by another Commissioner, an item may be removed from a Conference agenda, or a conference cancelled, at the request of the Commissioner at whose request the item was listed or the conference called." 41 F.R. 56344 (emphasis added). A public commenter maintained that this provision conflicts with the recorded majority vote requirement of subsection (e)(2)(A). Although the ICC had included the provision "only for the purpose of expediting otherwise perfunctory determinations," the Commission agreed that the provision was inconsistent with subsection (e)(2)(A) and deleted it from its final regulations. 49 C.F.R. §1012.3(f), 42 F.R. 13797, 13799. See Appendix F for sample agency notices of a change in time, place, or subject matter, as well as the standard (e) (3) notice.

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meeting to consider the matter. The decision to close a meeting previously open to the public might also occur on short notice, or even at the meeting itself, when a new subject or new facts arise. The provision is designed to provide the flexibility necessary to insure expeditious agency action." S. Rept., 30.8

The question has arisen whether agencies may add, delete, or carry over agenda items without complying with the voting and notice requirements of subsections (e) (2) and (e)(3).

Additions of agenda items should comply with the voting and notice requirements of subsections (e)(2) and (e)(3). That (e) (2) was intended to be used for such last-minute additions is clear from the legislative history quoted above and consistent with the basic purpose that notice serves. Deletion and carry-over of agenda items raise more difficult questions of interpretation. On the one hand, it might be regarded as unfair and inconvenient to the public planning to attend a meeting because of the announced discussion of a specific item not to be provided advance notice that the item will not be discussed. Furthermore, a concern about agencies issuing "dummy" agendas and notices and then changing them at will without providing adequate public notice would argue for compliance with the voting and notice requirements of subsection (e)(2) and (e)(3) when deleting as well as adding agenda items.

On the other hand, practical considerations of conducting agency business appear to require some flexibility for agencies to delete agenda items without voting or providing notice as required in subsection (e)(2). A collegial vote on each decision to delete or postpone an agenda item seems a needlessly complicated procedure, especially since in many, if not most, agencies the agenda is not set initially by collegial action. It can be argued that a decision to postpone an item, either to a date certain or date to be determined, is a change in time and not a change in subject matter, and consequently need not be made by the collegium. 10 Such an interpretation of subsection (e)(2) might yield practical advantages both to the agency and to the public since it would permit prompt

See also Conf. Rept., 18.

"In his study of the respective roles of chairmen and members at seven major regulatory commissions, Prof. David M. Welborn pointed to the chairman's responsibility for organizing the meeting agenda as a significant source of his authority. Welborn, Governance of Federal Regulatory Agencies, University of Tennessee Press, 1977, pp. 120-21.

10See regulation of the Board of Governors, Federal Reserve System, 12 C.F.R. §261b.9, 42 F.R. 13299.

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notice of agenda changes, whereas requiring collegial action is likely to result in pro forma approval of postponements by the collegium in the course of the meeting itself.

Whether deletion of an agenda item is viewed as a change in subject matter or a change in time, the language of subsection (e)(2) appears to require public notice as soon as practicable after the decision to delete is made. Providing such notice would, of course, always be of value in the case of open meetings. With regard to closed meetings, however, the deletion of agenda items without prior notice would not inconvenience members of the public, who would not be attending in any case, and it may be that the test of practicability can take this into account. This is, in essence, the position of both the Securities and Exchange Commission and the United States Parole Commission. The regulation of the Parole Commission permits the deletion of agenda items without notice only with respect to closed meetings." The SEC's deletion provision states that notwithstanding the requirements of subsection (e)(2), "matters which have been announced for Commission consideration may be deleted, or continued in whole or in part to the next scheduled Commission meeting, without notice."12 In the preamble to its rules, however, the SEC limits this deletion provision as follows:

"***the Commission does not intend that this provision will be invoked as to items previously announced for consideration at a meeting open to the public except in extraordinary circumstances. The Commission recognizes that members of the public may arrange to attend particular open meetings, and will make every effort to afford reasonable notice of any alterations in previously noticed open meetings should such alterations be necessary. In the case, however, of closed meetings the Commission believes it important that it retain a measure of flexibility to respond to contingencies requiring the omission or rescheduling of agenda items. Since the public would not, in any event, be in attendance at such meetings, the Commission does not believe that [the deletion provision] will inconvenience interested persons.

42 F.R. 14692.

In contrast, the Federal Energy Regulatory Commission is adhering to the policy expressed by its predecessor agency, the Federal Power Commission, of deleting individual agenda items without notice, 18 C.F.R. §1.3a(f)(2), 42 F.R. 14701.13

1128 C.F.R. §16.204 (c), 42 F.R. 14715.

1217 C.F.R. §200.403 (c)(2), 42 F.R. 14696. 13See Appendix B, note 1, infra.

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The FPC stated in the order adopting its Sunshine rules, "To eliminate flexibility with respect to deletions of agenda items would serve no useful purpose, while creating additional administrative burdens. The proposed procedure gives adequate notice to the public that a particular matter may be considered at a meeting. The agenda is subject to further check with the agency contact person designated in the notice. We therefore believe that retaining the proposed [deletion] procedure best serves the needs of the public." 42 F.R. 14698.

Concerning the continuation or carry-over of agenda items, legislative history is once again silent. If an agency votes to adjourn a meeting and put all unfinished business over to the next day or next meeting, it could announce and submit a notice to that effect to the Federal Register. Where the agendas of several meetings have been announced in advance, however, it would seem more efficient to allow matters listed for one agenda but not disposed of to be carried over automatically to the agenda of the next meeting. This automatic carry-over could be listed in each meeting notice and would be supplemented by the listing of an agency contact person for more information about the status of meeting agendas.14 If the agenda of the next meeting has not been announced at the time the decision to carry over items is made, these items should be listed in the subsequent announcement.

Finally, subsection (e) (2) allows an agency to reconsider and change its decision to open or close a meeting. Such a change might be made at the request of a "directly affected" person under subsection (d)(2), or at the instance of an agency member. In either case, the change in the status of the meeting can be made only if the agency members cast the required majority vote and the change and the vote are announced "at the earliest practicable time."

With regard to the majority vote requirement, the subsection requires a "majority of the entire membership of the agency" to vote to change the meeting subject matter or a decision to open or close the meeting. Just as under subsections (d)(1), (d)(2), (d)(4), and (e)(1), the vote of a simple majority of a quorum is not sufficient to take action.

Contents and Submission of Notice to

Federal Register

"(e) (3) Immediately following each public announcement required by this subsection, notice of the time, place and subject matter of a meeting, whether the meeting is open

14See, e.g., meeting notices of the Board of Governors, Federal Reserve System, 42 F.R. 16208; and the Foreign Claims Settlement Commission, 42 F.R. 17940.

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or closed, any change in one of the preceding, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting, shall also be submitted for publication in the Federal Register.'"

Subsection (e)(3) requires that, immediately after each public announcement required by subsections (e)(1) and (e)(2), the agency must submit for publication in the Federal Register, notice of the time, place, and subject matter of a meeting, whether the meeting is open or closed, change in any of these items, and the name and phone number of an agency person to contact for additional information. These seven items are the minimum contents of the meeting notice, to be published in the Federal Register whether the meeting is to be open or closed, unless the meeting is covered by the expediting procedures of subsection (d)(4).15 A few agencies include in their Federal Register notices information required to be made public by subsections (d)(3) and (f)(1), such as the votes of members on closings, explanations of closings, lists of expected attendees and the certifications of the General Counsel.16 Some agencies have also included in (e)(3) notices a paragraph informing the public of the procedure to request a closing under subsection (d)(2).17

These additional items of information are not required to be published in the Federal Register, nor are they included in the standardized format for Sunshine Act meeting notices announced by the Federal Register as a means of cutting the time lag between submission and publication of notices. This format includes only the minimum information required by subsection (e) (3). Under the trial program undertaken by the Office of the Federal Register, 18 Sunshine notices submitted in the standardized format may be transmitted to the Register via telecopy equipment and, whether or not so transmitted, will be published two working days after receipt rather than the usual three working days. Agencies

15 The provisions of subsection (e) are not applicable to meetings subject to subsection (d)(4) procedures, whether or not such meetings are actually closed.

16See, e.g., meeting notices of the Federal Communications Commission, 42 F.R. 13342; and the Securities and Exchange Commission, 42 F.R. 17580.

17See, e.g., meeting notices of the Commodity Futures Trading Commission, 42 F.R. 15359; and the United States International Trade Commission, 42 F.R. 18687.

18 The Office announced a 90-day trial program on March 22, 1977, 42 F.R. 15482-83, which was extended indefinitely on June 20, 42 F.R. 31205.