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of relatively equal merit, an agency may rule against a party who approached an agency head in an ex parte manner in an effort to win approval of his license.

The subsection specifies that an agency may rule against a party for making an ex parte communication only where the party made the illegal contact knowingly. An inadvertent ex parte contact must still he remedied by placing it on the public record. If the agency believes that such an unintentional ex parte contact has irrevocably tainted the proceeding, it may require the parties to make a new record. However, an agency should not definitively rule against a party simply because of an inadvertent violation.

COMMITTEE VOTE

On April 6, 1976, the Full Committee on the Judiciary approved the bill H.R. 11656 by voice vote.

CONCLSION

The Committee has concluded that the facts developed in the hearings on the bill and as outlined in this report demonstrate the need for legislative action with reference to meetings of the agencies covered by the provisions of the bill. It is recommended that the amended bill be considered favorably.

COST

(Rule XII(7) (a) (1) of the House Rules)

The bill does not provide for any specific new government programs. As has been outlined in the report, the bill concerns amendments to the law concerning administrative procedures and adds new language concerning ex parte communications in connection with adjudication and formal rule making. Other than outlined below and in the Budget Office estimate it is not contemplated that those procedural changes will add significant cost to government activity.

The ex parte provisions of the legislation should result in no additional costs.

Most of the costs incurred in connection with the open meeting provisions will be for the clerical and administrative work they require, and it is estimated that such costs will be minimal.

Under the bill, the agency meetings open to the public will not require transcripts or electronic recordings. In most instances, minutes are already taken at such meetings, so the only additional expense will be that of duplicating one or more sets of the minutes to be made available to the public. (As provided in the bill, a member of the public desiring his own set of the minutes will bear the expense of copying, unless the agency deems it is in the public interest to supply them without cost.) The only other cost of an open meeting under this legislation is that of the public announcement.

An agency closing a portion of a meeting will have to make a transcript or electronic recording thereof. There will be approximately 50 covered agencies and the cost should therefore be directly proportional to the number of closed meetings. This cost could be further reduced if an electronic recording device, rather than stenographic notation,

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is used. The cost of electronic recording equipment is estimated at a few thousand dollars per covered agency. The cost of transcription will be borne in large measure by members of the public requesting copies of transcripts.

STATEMENT UNDER CLAUSE 2(1) (3) and CLAUSE 2(1)(4) oF RULE XI OF THE RULES OF THE HOUSE OF REPRESENTATIVES

A. OVERSIGHT STATEMENT

This report embodies the findings and recommendations of the Subcommittee on Administrative Law and Governmental Relations pursuant to its oversight responsibility over administrative procedures of the Federal Government and its jurisdiction over the Administrative Procedure Act as codified in title 5, United States Code, pursuant to the procedures relating to oversight under Rule VI (b) of the Rules of the Committee on the Judiciary, and the committee has determined that legislation should be enacted as set forth in the amended bill.

B. BUDGET STATEMENT

As has been indicated in the committee statement as to cost made pursuant to Rule XIII(7) (a) (1) the bill concerns administrative procedure and requirements concerning meetings of the agencies covered by the bill. Other than as required by the items of expense referred to in the attached estimate of the Congressional Budget Office, the bill should not involve new budget authority or require appreciable new or increased tax expenditures as contemplated by Clause 2(1) (3) (B) of Rule XI.

C. ESTIMATE OF THE CONGRESSIONAL BUDGET OFFICE

The estimate or comparison was received from the Director of the Congressional Budget Office, as referred to in subdivision (C) of Clause 2(1)(3) of House Rule XI, by the Commission on Government Operations and is set forth below. Unless otherwise stated, all figures represent cumulative totals for the approximately 50 agencies covered by the open meeting provisions of the bill:

Cost Estimate

Any projections of the costs of the "Sunshine Act" has to be tentative since the number of recording devices it will be necessary to buy and the amount of clerical time involved is difficult to estimate. With this limitation, the costs of making the proceedings of closed meetings available to the public could be $30,000 for new recording equipment and $130,000 annually for additional clerical help. Assuming a starting date of July 1, 1977, the budget impact would be:

1 $30.000 for recording devices, 25 percent of $130,000 in personnel costs.

2 Salaries are tied to the changes in the CPI at a 5-percent real growth rate in GNP.

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Basis of Estimate

The cost of a conference recording device should be about $400. This analysis has assumed that half of the fifty or so agencies in question will purchase one new recording machine, and that the other half will require two.

As for hiring additional clerical help, the assumption here is that one-quarter of the fifty agencies will do so at an average salary of $10,000 annually. If Congressional expectations that there will be few closed meetings are realized, this estimate on personnel could be on the high side of the spectrum.

Estimate Comparison

Senate Report 94-354 estimates that the cost per agency will be a few thousand dollars. The CBO cost projections are also in that range.

D. OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE ON

GOVERNMENT OPERATIONS

No findings or recommendations of the Committee on Government Operations were received as referred to in subdivision (D) of clause 2(1)(3) of House Rule XI, however, the committee did have the advantage of the material contained in that Committee's legislative report, II. Rept. No. 94880, Part I, on this bill.

Inflationary Impact

In compliance with clause (1) (4) of House Rule XI it is stated that enactment of this legislation will have no inflationary impact on prices and costs in the operation of the national economy. The bill provides for the procedural matters referred to above. It does not provide for any new programs.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3 of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman):

502.

Administrative practice; Reserves and National Guardsmen.

503. Witness fees and allowances.

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551.

SUBCHAPTER II-ADMINISTRATIVE PROCEDURE

Definitions.

552. Public information; agency rules, opinions, orders, records and proceedings. 552a. Records about individuals.

556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.

557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record.

558. Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses.

(12) "agency proceedings" means an agency process as defined by paragraphs (5), (7), and (9) of this section; [and]

(13) "agency action" includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act[]; and

(14) "ex parte communication" means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given.

§ 552. Public information; agency rules, opinions, orders records, and proceedings

(b) This section does not apply to matters that are

(1)

***

[(3) specifically exempted from disclosure by statute:] (3) required or permitted to be withheld from the public by any statute establishing particular criteria or referring to particular types of information;

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§ 552b. Open Meetings

(a) For purposes of this section

(1) the term "agency" means the Federal Election Commission and any agency, as defined in section 552(e) of this title, 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 includes any subdivision thereof authorized to act on behalf of the agency;

(2) the term "meeting" means an assembly or simultaneous communication concerning the joint conduct or disposition of agency business by two or more, but at least the number of individual agency members required to take action on behalf of the agency, but does not include meetings required or permitted by subsection (d); and

(3) the term "member" means an individual who belongs to a collegial body heading an agency.

(b) (1) Members as described in subsection (a) (2) shall not jointly conduct or dispose of agency business without complying with subsections (b) through (g).

(2) Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation.

(c) Except in a case where the agency finds that the public interest requires otherwise, subsection (b) shall not apply to any portion of an agency meeting and the requirements of subsections (d) and (c) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to

(1) disclose matters (A) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order;

(2) relate solely to the internal personnel rules and practices of an agency;

(3) disclose information required or permitted to be withheld from the public by any statute establishing particular criteria or referring to particular types of information;

(4) disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) involve accusing any person of a crime, or formally censuring any person;

(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy:

(7) 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 (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) 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