ML20134C089
| ML20134C089 | |
| Person / Time | |
|---|---|
| Issue date: | 07/26/1985 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-49FR43070, RULE-PRM-7-2 NUDOCS 8508160201 | |
| Download: ML20134C089 (5) | |
Text
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I ETITION RULE _ PRM Yl>
[49 ft 43Md) f;UCLEAR REGULATORY COMMISSION 10 CFR Part 7 EU (Docket No. PRM-7-2)
%3(c John L. Nantz; Cenial of Petition for Rulemaking
'85 JUL 29 P4:25 CFFICE 0 3EUiTAFY OCCKET.NG i. SERVlu AGENCY:
Nuclear Regulatory Comission.
ACTION:
Denial of petition for rulemaking.
SUNiARY:
The Nuclear Regulatory Comission is denying a petition for rulemaking submitted by John L. Nantz. The petitioner requested that the Comis-sion adopt regulations to establish a formal procedure for Comission review of decisions to close advisory committee meetings or portions of those meetings.
The petition is being denied on the grounds that current procedures are adequate to assure that advisory comittees' use of exemptions from the requirement for open meetings are adequately justified and because Comission review would be an inefficient and unwarranted use of the Comission's resources.
ADDRESSES:
Copies of correspondence and documents cited in this document are available for public inspection and copying for a fee at the NRC's Public Document Room at 1717 H Street, NW, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Marjorie S. Nordlinger, Office of the General Counsel, Telephone:
202-634-1493; or John C. Hoyle, Office of the Secretary, Telephone: 202-634-3255, U.S. Nuclear Regulatory Comis-sion, Washington, DC 20555. 'A 0508160201 950726 j;
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SUPPLEMENTARY INFORMATION:
l On October 26, 1984, the Comission published notice of receipt of a petition for rulemaking from John L. Nantz in which he requested that j
the Comission amend its regulations to establish a formal procedure to I
allow interested persons to petition the Comission for review of decisions to close advisory comittee meetings or portions of those meetings (49 FR 43070).
That notice fully explicated the petitioner's view on why a change was desirable and set forth the rule change that the petitioner had proposed.
In brief, the petitioner maintains that current Comission rules do not establish authority for ruling on appeals of closure determinations for meetings of advisory comittees made, pursuant to the Comission's delegation and with the advice of the General Counsel,1 by the Assistant Secretary as the Advisory Comittee Management Officer.
The Commission sought public coment on the petition during a two-month period.
1The petition also sug ests that such a dele ation may be improper, reasoningthatbecauseSecton8(b)oftheFedera Advisory Comittee Act (FACA) permits delegation of certain specific functions to the Advisory Comittee Management Officer (ACM0), it is implied that other functions may not be delegated; but the requirement of that section that the head of an agency " designate " not " delegate," an ACM0 to perform certain functions does not speak to, let alone answer, the question whether the function of deciding meeting closings may be delegated by the agency head to another.
In the absence of any prohibition, the Comission concludes that its delegation is a proper exercise of its authority pursuant to Section 161n 6f the Atomic Energy Act of 1954, as amended.
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The Comission received four coment letters en this proposal. Three comenters supported the petition in light of broad principles favoring open meetings and public participation; however, none of the three j
addressed specifically the appeal process proposed by the petitioner or any problems related specifically to any unwarranted closing of advisory i
comittee meetings, t
The remaining commenter, Yankee Atomic Electric Co., asserted that under current practice there are adequate procedures to assure that advisory I
committees' use of exemptions from the requirement for open meetings are t
adequately justified.
In particular, this comenter referred to the Federal Advisory Comittee Act's requirement that any determination to close an advisory comittee meeting "...shall be in writing and shall contain the reasons for such determination.
[5.U.S.C., Appendix 1 Section10(d)]". The commenter properly deduced that the written basis I
for closing must be sufficient for a reviewing court to determine j
(
whether the meeting was properly closed. See e.g., Nader v. Dunlop 370 F.Supp177(0.0.C.1973).
In sum, the commenter concluded that "it is not apparent that the petitioner's recommended procedures are a neces-i sary or preferred substitute for proper enforcement of current pro-visions in the Act."
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i The Comission agrees with Yankee Atomic Electric Co. that the current procedures are adequate for the reasons stated. tioreover, the practice whereby the Advisory Comittee Management Officer reconsiders his own f
i decisions on appeal parallels the procedure for appeal of closure of
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Comission meetings where it is the Commission itself that reconsiders its earlier decision.
In addition, the Comission notes that the proce-dure Mr. Nantz supports would be impractical and would diverge from a strong policy of the Comission to extricate itself from nonessential procedural matters in order to conserve its resources for health and safety matters and matters of common defense and security which are its paramount responsibilities.
The petitioner argued that because the Comission makes the ultimate decision with respect to its own meeting closures, it should be the final level of review for advisory committee closures as well.
This ignores the practical distinction that for its own meetings the Commis-sion is already thoroughly cognizant of what is expected to be discussed and the analysis underlying closure.
In order to rule on advisory comittee closures, the Comission would have to be thoroughly briefed on the specific purpose of the particular meeting in questien, what discussion was anticipated, and what analysis supported the closure decision.
In the Commission's view, the expenditure of its resources on this undertaking would be unwarranted. Absent any contrary statutory provision, the Comission believes that any necessary review would more reasonably be undertaken by its delegate, the Assistant Secretary, with the advice of the General Counsel. The Comission notes that the Assistant Secretary, in his capacity as Advisory Committee Management Officer, would be informed already of the anticipated meeting content ard could more efficiently and more expeditiously conduct any review or reconsideration.
Accordingly, the Comission determines that
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rulemaking is neither necessary nor desirable at this time and denies the petition.
DatedatWashington,DCthis8 day of 1985.
For the Nuclear Regulatory Comission.
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0-Samuel J Chilk
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Secretary of the Commission.
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