[Federal Register Volume 80, Number 49 (Friday, March 13, 2015)]
[Rules and Regulations]
[Pages 13223-13225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05689]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 375

[Docket No. RM15-15-000; Order No. 806]


Disruptive Conduct at Commission Open Meetings

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Commission is amending the CFR regulations which specify 
the roles available to the public at the Commission's open meetings. 
This rule utilizes language from the Federal Communication Commission's 
(FCC) open meeting regulation, and the Rural Telephone Bank's open 
meeting regulation, to clarify that the term ``observe'' does not 
include disruptive behavior. The rule also uses language from the FCC's 
open meeting regulation to clarify that communications made or 
presented by unscheduled presenters will not be considered by the 
Commission. Finally, the rule uses language similar to the Consumer 
Product Safety Commission's open meeting regulation, to clarify that 
members of the public may use electronic audio and visual equipment to 
record open meetings in a non-disruptive manner. The rule imposes no 
new obligations on the public.

DATES: This rule will become effective April 13, 2015.

FOR FURTHER INFORMATION CONTACT:
Mark Hershfield, Office of the General Counsel, 888 First Street NE., 
Washington, DC 20426, (202) 502-8597, [email protected].
Nathaniel Higgins, Office of the General Counsel, 888 First Street NE., 
Washington, DC 20426, (202) 502-6110, [email protected].

SUPPLEMENTARY INFORMATION:

Order No. 806
Final Rule

Table of Contents

 
                                                               Paragraph
                                                                numbers
 
I. Introduction.............................................          1.
II. Background..............................................          2.
III. Discussion.............................................          6.
IV. Information Collection Statement........................         10.
V. Environmental Analysis...................................         11.
VI. Regulatory Flexibility Act..............................         12.
VII. Document Availability..................................         13.
VIII. Effective Date........................................         16.
 

I. Introduction

    1. By this final rule, the Federal Energy Regulatory Commission 
(Commission) is amending 18 CFR 375.203(b), which specifies the roles 
available to the public at the Commission's open meetings. This rule 
utilizes language from the Federal Communication Commission's (FCC) 
open meeting regulation, 47 CFR 0.602, and the Rural Telephone Bank's 
open meeting regulation, 7 CFR 1600.3, to clarify that the term 
``observe'' does not include disruptive behavior. The rule also 
utilizes language from the FCC's open meeting regulation to clarify 
that communications made or presented by unscheduled presenters will 
not be considered by the Commission. Finally, the rule uses language 
similar to the Consumer Product Safety Commission's open meeting 
regulation, 16 CFR 1013.4, to clarify that members of the public may 
record open meetings in a non-disruptive manner. The rule imposes no 
new obligations on the public.

II. Background

    2. The Commission has recently experienced multiple disruptions to 
its open meetings from individual protesters. The disruptions have 
consisted of members of the public making unscheduled statements, 
standing up repeatedly, walking about the room, and displaying signs.
    3. The Commission's regulations outline the roles available to the 
public at the Commission's open meetings. Specifically, 18 CFR 
375.203(b) states that ``[m]embers of the public are invited to listen 
and observe at open meetings.''
    4. Like the Commission, other Federal agencies limit the conduct of 
the public at open meetings.\1\ Several other agencies have regulations 
on open meetings that expressly address

[[Page 13224]]

disruptive conduct by members of the public and their removal for such 
conduct.\2\ The language of the rules of the FCC, EEOC, and the Rural 
Telephone Bank are particularly useful in clarifying the term 
``observe'' as it appears in the Commission's regulations. The FCC, 
EEOC, and the Rural Telephone Bank define ``observation'' as not 
including disruptive conduct.\3\ Furthermore, the FCC's regulation 
addresses documents that an unscheduled presenter might seek to deliver 
at an open meeting, prohibiting their entry into the FCC's official 
record.
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    \1\ See, e.g., 12 CFR 311.2, 10 CFR 9.103, and 16 CFR 4.15 
(Regulations of the Federal Deposit Insurance Corporation, Nuclear 
Regulatory Commission, and Federal Trade Commission limiting the 
participation of the public to observing open meetings).
    \2\ See, e.g., 47 CFR 0.602 (Federal Communication Commission 
defines ``observation'' as to not include ``participation or 
disruptive conduct by observers, and persons engaging in such 
conduct will be removed from the meeting''); see also 7 CFR 1600.3 
(The Rural Telephone Bank defines ``observation'' as to not include 
``participation or disruptive conduct by observers, and persons 
engaging in such conduct will be removed from the meeting''); see 
also 29 CFR 1612.3 (The Equal Employment Opportunity Commission 
defines ``public observation'' as to ``not include participation or 
disruptive conduct by observers'' and ``any attempted participation 
or disruptive conduct by observers shall be cause for removal of 
persons so engaged at the discretion of the presiding member of the 
agency); see also 17 CFR 200.410 (The Securities Exchange Commission 
permits the exclusion of ``any person from attendance at any meeting 
whenever necessary to preserve decorum, or where appropriate or 
necessary for health or safety reasons'') and 45 CFR 702.52 (The 
Commission on Civil Rights empowers the presiding Commissioner to 
``exclude persons from a meeting'' and ``take all steps necessary to 
preserve order and decorum'').
    \3\ See 47 CFR 0.602, 29 CFR 1612.3, and 7 CFR 1600.3, 
respectively.
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    5. Another related topic is possible disruption stemming from 
observers' use of personal electronic recording devices at open 
meetings. The applicable provision of the Commission's regulations, 18 
CFR 375.203(b), allows members of the public to record open meetings in 
a non-disruptive manner.\4\ Other agencies similarly permit the 
recording of open meetings in a non-disruptive manner.\5\ The language 
adopted by the Consumer Product Safety Commission, stating that ``[t]o 
the extent their use does not interfere with the conduct of open 
meetings, cameras and sound-recording equipment may be used at open 
Commission meetings,'' is particularly succinct in making this point.
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    \4\ 18 CFR 375.203(b)(2)(i)-(iv) .
    \5\ See, e.g., 16 CFR 1013.4 (The Consumer Product Safety 
Commission provides that ``[t]o the extent their use does not 
interfere with the conduct of open meetings, cameras and sound-
recording equipment may be used at open Commission meetings''); see 
also 18 CFR 1301.43 (The Tennessee Valley Authority permits the 
public to ``make reasonable use of electronic or other devices or 
cameras to record deliberations or actions at meetings so long as 
such use is not disruptive of the meetings'') and 39 CFR 3001.43 
(The Postal Rate Commission regulation states that ``[m]embers of 
the public may not participate in open meetings. They may record the 
proceedings, provided they use battery-operated recording devices at 
their seats. Cameras may be used by observers to photograph 
proceedings, provided it is done from their seats and no flash or 
lighting equipment is used. Persons may electronically record or 
photograph a meeting, as long as such activity does not impede or 
disturb the members of the Commission in the performance of their 
duties, or members of the public attempting to observe, or to record 
or photograph, the Commission meeting'').
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III. Discussion

    6. The Commission is concerned about the impact of public 
disruptions on its ability to conduct open meetings. To ensure 
compliance with the Government in the Sunshine Act,\6\ it is essential 
that the Commission's open meetings focus on the items listed in the 
posted agenda. Members of the public do not have a right to disrupt 
open meetings or to raise extraneous issues.\7\
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    \6\ 29 CFR 2701.
    \7\ The First Amendment does not provide a right to disrupt a 
Commission open meeting. Cf. White v. City of Norwalk, 900 F.2d 
1421, 1424-1426 (9th Cir. 1990) (holding that a city ordinance 
allowing removal of persons who disrupt, disturb, or otherwise 
impede orderly conduct of council meetings is not overly broad and 
not a violation of First Amendment rights); Smith-Caronia v. United 
States, 714 A.2d 764, 765 (D.C. Cir. 1998) (upholding the 
constitutionality of DC Code 9-112(b)(4), which prohibits disruptive 
conduct within any of the Capitol Buildings). Moreover, agencies do 
not violate the First Amendment when they ``confine their meetings 
to specified subject matter.'' Madison School Dist. v. Wisconsin 
Employment Relations Comm'n, 429 U.S. 167, 175 n.8 (1976).
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    7. The Commission is issuing this Final Rule to clarify that the 
term ``observe'' used in Sec.  375.203(b) of its regulation, has the 
same meaning as the term ``observation'' in the regulations of the FCC 
and the Rural Telephone Bank.\8\ Thus, this rule merely clarifies that 
the term ``observe'' as used in Sec.  375.203(b) does not mean the 
right to disrupt.\9\ The rule gives the Commission no new authority, 
and it imposes no obligations on the public that do not currently 
exist. The public already has an obligation to avoid disruptive conduct 
at the Commission's open meetings.
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    \8\ While the EEOC essentially interprets ``observation'' the 
same way, the Commission is specifically utilizing the regulatory 
language of the FCC and the Rural Telephone Bank.
    \9\ The Commission has a comparable rule in 18 CFR 385.2102(b), 
which states that, ``[c]ontumacious conduct in a hearing before the 
Commission or a presiding officer will be grounds for exclusion of 
any person from such hearing and for summary suspension for the 
duration of the hearing by the Commission or the presiding 
officer.''
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    8. The final rule also addresses the possibility that when 
disruptive conduct involves the reading of unscheduled statements, 
those statements could trigger potential violations of the Government 
in the Sunshine Act notice provisions, the ex parte communications 
provisions of the Administrative Procedure Act, and the Commission's ex 
parte communications rule, 18 CFR 385.2201. Specifically, incorporating 
language from Section 0.602(c) of the FCC's regulations into the 
Commission's regulations clarifies that disruptive statements, oral or 
written, will not be included in the record or considered by the 
Commission.
    9. Finally, the Commission recognizes that its existing regulations 
concerning recording open meetings are unduly complex and out of date. 
The Commission is therefore amending its regulation to clarify that 
seated members of the public, or seated observers, may use electronic 
audio and visual recording equipment to record open meetings in a non-
disruptive manner. In this regard, the Commission is utilizing language 
similar to that used by the Consumer Product Safety Commission.

IV. Information Collection Statement

    10. Office of Management and Budget (OMB) regulations require OMB 
to approve certain information collection requirements imposed by 
agency rule.\10\ However, this instant Final Rule does not contain any 
information collection requirements. Therefore, compliance with OMB 
regulations is not required.
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    \10\ 5 CFR 1320.12.
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V. Environmental Analysis

    11. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\11\ 
Issuance of this Final Rule does not represent a major federal action 
having a significant adverse effect on the human environment under the 
Commission's regulations implementing the National Environmental Policy 
Act of 1969. Part 380 of the Commission's regulations lists exemptions 
to the requirement to draft an Environmental Analysis or Environmental 
Impact Statement. Included is an exemption for procedural, ministerial, 
or internal administrative actions.\12\ This rulemaking is exempt under 
that provision.
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    \11\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. 
& Regs. ] 30,783 (1987).
    \12\ 18 CFR 380.4(a)(1).
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VI. Regulatory Flexibility Act

    12. The Regulatory Flexibility Act of 1980 (RFA) \13\ generally 
requires a

[[Page 13225]]

description and analysis of final rules that will have significant 
economic impact on a substantial number of small entities. This Final 
Rule concerns an interpretation of current Commission regulations and 
practices. The Commission certifies that it will not have a significant 
economic impact upon participants in Commission proceedings. An 
analysis under the RFA is not required.
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    \13\ 5 U.S.C. 601-12.
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VII. Document Availability

    13. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through the Commission's Home Page (http://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, 
Washington, DC 20426.
    14. From the Commission's Home Page on the Internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    15. User assistance is available for eLibrary and the Commission's 
Web site during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

VIII. Effective Date

    16. The Commission is issuing this rule as a Final Rule without a 
period for public comment. Under 5 U.S.C. 553(b)(3)(A), notice and 
comment procedures are unnecessary for ``interpretative rules, general 
statements of policy, or rules of agency organization, procedure, or 
practice. . . .'' This rule merely provides the public with guidance 
concerning the existing regulation and reminds the general public of 
the roles available to the public at the Commission's open meetings. 
The rule will not significantly affect regulated entities or the 
general public.
    17. These regulations are effective April 13, 2015.

List of Subjects in 18 CFR Part 375

    Open Meetings.

    Issued: March 9, 2015.

    By the Commission.
Kimberly D. Bose,
Secretary.

    In consideration of the foregoing, the Commission amends Part 375, 
Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 375--THE COMMISSION

0
1. The authority citation for Part 375 continues to read as follows:

    Authority:  5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352

0
2. Section 375.203 is amended by adding paragraphs (b)(1)(i) and (ii) 
and revising paragraph (b)(2) to read as follows:


Sec.  375.203  Open meetings.

* * * * *
    (b) * * *
    (1) * * *
    (i) ``Observe'' does not include participation or disruptive 
conduct, and persons engaging in such conduct will be removed from the 
meeting.
    (ii) The right of the public to observe open meetings does not 
alter those rules which relate to the filing of motions, pleadings, or 
other documents. Unless such pleadings conform to the other procedural 
requirements, pleadings based upon comments or discussions at open 
meetings, as a general rule, will not become part of the official 
record, will receive no consideration, and no further action by the 
Commission will be taken thereon.
    (2) To the extent their use does not interfere with the conduct of 
open meetings, electronic audio and visual recording equipment may be 
used by a seated observer at an open meeting.
* * * * *
[FR Doc. 2015-05689 Filed 3-12-15; 8:45 am]
 BILLING CODE 6717-01-P