[Federal Register Volume 60, Number 122 (Monday, June 26, 1995)]
[Proposed Rules]
[Pages 32930-32932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15514]



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ASSASSINATION RECORDS REVIEW BOARD

36 CFR Ch. 14


Rules Implementing the Government in the Sunshine Act

AGENCY: Assassination Records Review Board.

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: The Assassination Records Review Board (Review Board) was 
established by the President John F. Kennedy Assassination Records 
Collection Act of 1992 (JFK Act). This NPRM will constitute the Review 
Board's second rulemaking. All of the Review Board's regulations will 
eventually be codified at 36 CFR Part 1400 et seq. This rulemaking is 
undertaken in response to the Government in the Sunshine Act (Sunshine 
Act). The Sunshine Act relates to meetings of agencies of the United 
States government that are headed by collegial bodies composed of two 
or more members, a majority of whom are appointed by the President with 
the advice and consent of the Senate. The Act provides that meetings, 
as defined in the Sunshine Act, shall be held in public except where 
stated exemptions apply. The Review Board invites comments from 
interested groups and members of the public on these proposed rules 
implementing the Sunshine Act.

DATES: To be considered, comments must be mailed or delivered to the 
address listed below by 5 p.m. on July 26, 1995.

ADDRESSES: Comments on these proposed regulations should be mailed, 
faxed, or delivered to the Assassination Records Review Board, 600 E 
Street, N.W., 2nd Floor, Washington, D.C. 20530 (Attention: Sunshine 
Act NPRM). All comments will be placed in the Review Board's public 
files and will be available for inspection between 8:30 a.m. and 4:30 
p.m., Monday through Friday, in the Review Board's Public Reading Room 
at the same address. Comments should state prominently that they are 
being filed in response to the Review Board's Sunshine Act NPRM.

FOR FURTHER INFORMATION CONTACT:
T. Jeremy Gunn, Acting General Counsel, Assassination Records Review 
Board, 600 E Street, N.W., 2nd Floor, Washington, D.C. 20530, (202) 
724-0088.

SUPPLEMENTARY INFORMATION: To discharge its responsibilities, the 
Review Board gathers as a collegial body at its Washington, D.C., 
office and at other locations as appropriate. Since the Review Board, 
including its staff, is a small agency, Review Board Members work both 
personally and collectively in the discharge of the Review Board's 
responsibilities. Review Board activities include such matters as: 
reviewing classified and restricted government records relating to the 
assassination of President Kennedy; determining whether such classified 
and restricted records should be opened and made available to the 
public; identifying additional assassination records in the possession 
of governments and individuals; holding public hearings related to 
assassination records; and ensuring government office compliance with 
the JFK Act.
    The Sunshine Act defines meetings and sets certain requirements for 
advance public notice of such meetings (5 U.S.C. Sec. 552b(e)) and 
permits agencies to close meetings to public attendance and to withhold 
information regarding meetings where an agency finds that any of ten 
exemptions enumerated in the Sunshine Act applies, 5 U.S.C. 
Sec. 552b(c). The Act further sets forth the procedures that must be 
followed by agencies in invoking one of these exemptions, 5 U.S.C. 
Sec. 552b(d),(f). The Review Board is required to adopt, after 
opportunity for public comment, regulations to implement the Sunshine 
Act, 5 U.S.C. Sec. 552b(g).
    Consistent with the requirement of 5 U.S.C. Sec. 552b(g), the 
proposed regulations implement the provisions of 5 U.S.C. Sec. 552b(b)-
(f). This NPRM has been made following a review of the Sunshine Act, 
regulations promulgated and implemented by other collegial bodies under 
the Sunshine Act, and the opinion of the Supreme Court of the United 
States in FCC v. ITT World Communications, Inc., 466 U.S. 463 (1984). 
The proposed regulations are intended to follow the exemptions set 
forth in the Sunshine Act and to implement fully the Sunshine Act's 
procedural requirements regarding public notice of meetings, 
availability of transcripts or other records of meetings, and closure 
of meetings.

Paperwork Reduction Act Statement

    The proposed rule is not subject to the provisions of the Paperwork 
Reduction Act of 1980 (44 U.S.C. Sec. 3501, et seq.) because it does 
not contain any information collection requirements with the meaning of 
44 U.S.C. Sec. 3502(4).

Regulatory Flexibility Act Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
Sec. 601-12, the Review Board certifies that this rule, if adopted, 
will not have a significant economic impact upon a substantial number 
of small entities and that a regulatory flexibility analysis need not 
be prepared. 5 U.S.C. Sec. 605(b). The proposed rule would not impose 
any obligations, including any obligations on ``small entities,'' as 
set forth in 5 U.S.C. Sec. 601(3) of the Regulatory Flexibility Act, or 
within the definition of ``small business,'' as found in 15 U.S.C. 
Sec. 632, or within the Small Business Size Standards in regulations 
issued by the Small Business Administration and codified in 13 CFR part 
121. Since the impact of the proposed rule is confined to the Review 
Board, the proposed rule does not fall within the purview of the 
Regulatory Flexibility Act.

List of the Subjects in 36 CFR Part 1405

    Sunshine Act.

The Proposed Regulations

    Chapter XIV of Title 36 of the Code of Federal Regulations (as 
proposed to be established at 60 FR 7507, February 8, 1995), is 
proposed to be amended by adding part 1405 to read as 
follows: [[Page 32931]] 

CHAPTER 14--ASSASSINATION RECORDS REVIEW BOARD

PART 1405--RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT

Sec.
1405.1  Applicability.
1405.2  Definitions.
1405.3  Open meetings requirement.
1405.4  Grounds on which meetings may be closed or information be 
withheld.
1405.5  Procedures for closing meetings, or withholding information, 
and requests by affected persons to close a meeting.
1405.6  Procedures for public announcement of meetings.
1405.7  Changes affecting a meeting following the public 
announcement of a meeting.
1405.8  Availability and retention of transcripts, recordings, and 
minutes and applicable fees.
1405.9  Severability.

    Authority: 5 U.S.C. 552b; 44 U.S.C. 2107.


Sec. 1405.1  Applicability.

    (a) This part implements the provisions of the Government in the 
Sunshine Act (5 U.S.C. 552b). These procedures apply to meetings of the 
Review Board. The Review Board may waive the provisions set forth in 
this Part to the extent authorized by law.
    (b) Requests for all documents other than the transcripts, 
recordings, and minutes described in Sec. 1405.8 shall be governed by 
Review Board regulations pursuant to the Freedom of Information Act (5 
U.S.C. 552).


Sec. 1405.2  Definitions.

    As used in this part:
    Chairperson means the Member elected by the Board to serve in said 
position pursuant to 44 U.S.C. 2107.7(f).
    General Counsel means the Review Board's principal legal officer, 
or an attorney serving as Acting General Counsel.
    Government office means any office of the Federal Government that 
has possession or control of assassination records as set forth in 44 
U.S.C. 2107.3(5).
    Meeting means the deliberations of three or more Members where such 
deliberations determine or result in the joint conduct or disposition 
of official Review Board business. A meeting does not include:
    (1) Notation voting or similar consideration of business, whether 
by circulation of material to the Members individually in writing or by 
a polling of the Members individually by telephone.
    (2) Action by three or more Members to:
    (i) Open or to close a meeting or to release or to withhold 
information pursuant to Sec. 1405.5;
    (ii) Set an agenda for a proposed meeting;
    (iii) Call a meeting on less than seven days' notice as permitted 
by Sec. 1405.6(b); or
    (iv) Change the subject matter or the determinations to open or to 
close a publicly announced meeting under Sec. 1405.7(b).
    (3) A session attended by three or more Members for which the 
purpose is to receive briefings from the Review Board's staff or expert 
consultants, provided that members of the Review Board do not engage in 
deliberations at such sessions that determine or result in the joint 
conduct of disposition of official Review Board business on such 
matters.
    (4) A session attended by three or more Members for which the 
purpose is to receive informational briefings from representatives of 
government offices discussing classified or otherwise restricted 
information in accordance with the provisions of the JFK Act, provided 
that Members of the Review Board do not engage in deliberations at such 
sessions that determine or result in the joint conduct of disposition 
of official Review Board business on such matters.
    (5) A gathering of three or more Members for the purpose of holding 
informal preliminary discussions or exchanges of views, but that does 
not effectively predetermine official Review Board action.
    Member means a current member of the Review Board as provided by 
law.
    Presiding Officer means the Chairperson or any other Member 
authorized by the Review Board to preside at a meeting.
    Review Board means the Assassination Records Review Board created 
pursuant to 44 U.S.C. 2107.7.


Sec. 1405.3  Open meetings requirement.

    Any meetings of the Review Board, as defined in Sec. 1405.2, shall 
be conducted in accordance with this part. Except as provided in 
Sec. 1405.4, the Review Board's meetings, or portions thereof, shall be 
open to public observation.


Sec. 1405.4  Grounds on which meetings may be closed or information may 
be withheld.

    A meeting may be closed when the Review Board properly determines 
that an open meeting would disclose information that may be withheld 
under the criteria enumerated below. Similarly, information that 
otherwise would be required to be disclosed under Secs. 1405.5, 1405.6, 
and 1405.7 may also be withheld under these criteria. All records of 
closed meetings shall, however, be disclosed at a future date 
consistent with the terms and requirements of the JFK act. The criteria 
for closing meetings are whether information disclosed at such meetings 
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 practices of 
the Review Board;
    (c) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552), provided that such statute:
    (1) requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (2) establishes particular 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 is 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) Disclosure 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 or an impartial 
adjudication;
    (3) constitute an unwarranted invasion to 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 information 
furnished only by the confidential source;
    (5) disclose investigative techniques and procedures; or
    (6) endanger the life or physical safety of law enforcement 
personnel;
    (h) Specifically concern the Review Board's issuance of a subpoena, 
or the Review Board's participation in a civil action or proceeding, an 
action in a [[Page 32932]] foreign court or international tribunal, or 
an arbitration, or the initiation, conduct, or disposition by the 
Review Board of a particular case of formal agency adjudication 
pursuant to the procedures in 5 U.S.C. 554 or otherwise involving a 
determination on the record after opportunity for a hearing; or
    (i) Disclose other information for which the Sunshine Act provides 
an exemption to the open meeting requirements of the Act.
Sec. 1405.5  Procedures for closing meetings, or withholding 
information, and requests by affected persons to close a meeting.

    (a) A majority of all Members may vote to close a meeting or 
withhold information pertaining to that meeting. A separate vote shall 
be taken with respect to each action under Sec. 1405.4. A majority of 
the Review Board may act by taking a single vote 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 no 
more than thirty days after the initial meeting in such series. Each 
Member's vote under the paragraph shall be recorded and no proxies 
shall be permitted.
    (b) Any person whose interests may be directly affected if a 
portion of a meeting is open may request the Review Board to close the 
portion of the meeting on the grounds referred to in Sec. 1405.4(e), 
(f), or (g). Requests, with reasons in support thereof, should be 
submitted to the Office of the General counsel, Assassination Records 
Review Board, 600 E Street, NW., 2nd Floor, Washington, DC 20530. On 
the motion of any Member, the Review Board shall determine by recorded 
vote whether to grant the request.
    (c) Within one working day of any vote taken pursuant to this 
section, the Review Board shall make publicly available a written copy 
of such vote reflecting the vote of each Member on the question. If a 
portion of a meeting is to be closed to the public, the Review Board 
shall make available a full written explanation of its action closing 
the meeting (or portion thereof) and a list of all persons expected to 
attend the meeting and their affiliation.
    (d) For each closed meeting, the General 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 shall be available for public inspection.
    (e) For each closed meeting, the Presiding Officer shall issue a 
statement setting forth the time, place, and persons present. A copy of 
such statement shall be available for public inspection.
    (f) For each closed meeting, with the exception of a meeting closed 
pursuant to 1405.4(h), the Review Board shall maintain a complete 
transcript or electronic recording adequate to record fully the 
proceedings of each meeting. For meetings or portions thereof that are 
closed pursuant to Sec. 1405.4(h), the Review Board may maintain a set 
of minutes in lieu of such transcript or recording. Such minutes shall 
fully and clearly describe all matters discussed and shall provide a 
full and accurate summary of any actions taken, and the reasons 
therefor, including a description of each of the views expressed on any 
item and the record of any rollcall vote. The records of closed 
meetings, in addition to all other records of the Review Board, shall 
be included as permanent records in the JFK Collection at the National 
Archives as provided by the JFK Act.


Sec. 1405.6  Procedures for public announcement of meetings.

    (a) For each meeting, the Review Board shall make public 
announcement, at least one week before the meeting, of the:
    (1) Time of the meeting;
    (2) Place of the meeting;
    (3) Subject matter of the meeting;
    (4) Whether the meeting is to be open or closed; and
    (5) The name and business telephone number of the official 
designated by the Review Board to respond to requests for information 
about the meeting.
    (b) The one week advance notice required by paragraph (a) of this 
section may be reduced only if:
    (1) A majority of all Members determines by recorded vote that 
Review Board business requires that such meeting be scheduled in less 
than seven days; and
    (2) The public announcement required by paragraph (a) of this 
section is made at the earliest practicable time.


Sec. 1405.7  Changes affecting a meeting following the public 
announcement of a meeting.

    (a) After there has been a public announcement of a meeting, the 
time or place of such meeting may be changed only if the Review Board 
publicly announces such change at the earliest practicable time. 
Members need not approve such change by recorded vote.
    (b) After there has been a public announcement of a meeting, the 
subject matter of such meeting, or the determination of the Review 
Board to open or to close a meeting or a portion thereof to the public 
may be changed only when:
    (1) A majority of all Members determines, by recorded vote, that 
Review Board business so requires and that no earlier announcement of 
the change was possible; and
    (2) The Review Board publicly announces such change and the vote of 
each Member thereof at the earliest practicable time.
    (c) The deletion of any subject matter announced for a meeting is 
not a change requiring the approval of the Review Board under paragraph 
(b) of this section.


Sec. 1405.8  Availability and retention of transcripts, recordings, and 
minutes, and applicable fees.

    In accordance with the provisions of the JFK Act, the Review Board 
shall retain the transcript, electronic recording, or minutes of the 
discussion of any item on the agenda or of any testimony received at a 
closed meeting for inclusion as a permanent record in the JFK 
Collection at the National Archives. the public shall have access to 
such records consistent with the terms of the JFK Act. Copies of any 
nonexempt transcript or minutes, or transaction of such recordings 
disclosing the identity of each speaker, shall be furnished to any 
person at the actual cost of transcription or duplication unless 
otherwise provided by the terms of the JFK Act. If at some later time 
the Review Board determines that there is no further justification for 
withholding a portion of a transcript, electronic recording, or minutes 
or other item of information from the public which had been previously 
withheld, such portion or information shall be made publicly available.


Sec. 1405.9  Severability.

    If any provision of this part or the application of such provision 
to any person or circumstance, is held invalid, the remainder of this 
part of the application of such provision to persons or circumstances 
other than those as to which it is held invalid, shall not be affected 
thereby.

    Dated: June 20, 1995.
David G. Marwell,
Executive Director.
[FR Doc. 95-15514 Filed 6-23-95; 8:45 am]
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