ML20136J532
| ML20136J532 | |
| Person / Time | |
|---|---|
| Issue date: | 12/06/1985 |
| From: | Plaine H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| TASK-RIA, TASK-SE SECY-85-067A, SECY-85-67A, NUDOCS 8601130565 | |
| Download: ML20136J532 (56) | |
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4 RULEMAKING ISSUE December 6, 1985 SECY-85-67-A For:
The Comminaioners From:
Herzel !!. E. Plaine General Counsel
Subject:
SUU3 HINE ACT flULE S urm:t ry :
000 forwards its analysis of the commenta cubmitted on the Connincion's May 21, 1035, Sun:: hine Act rule, and proponen a final rule that reaffirms in part, l
1 and modifico in part, the May 21 rule.
Au modified, briefinco on technical caroty in::ueo will be treated I
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as " meetings" for Sunshine Act purponen.
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Diacuacion:
Thirty-four commento were received on the Commianion's k
i Sunchine Act rulo chango, publinhed May 21, 1985.
In addition, letteru were recnivod from members of I
l C0ndre30, and llepreSentatiVo i'Ulvkey h'io.taked the C0mmidulon to take into account the Dtatement3 made
' y p!!:'t ic ipant 3 if t the M"ty 21, 19'i5, hna r in, before I
hin aubcommittee, fia well aJ 118 neW3 P tt po r G l', J ri a l d.
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With a f"w oxceptionn (".c... the Atomic Induntrial i
Forum and Baltim we daa & Eloetric), thn publin l
comment a on tho May 21 rule waro un f avo r"ib le.
The I
"rttidiam3 W"re directed bot h 'it tho a ut: s t rinc e of th" foII505(,5 #1 r,1,.,,a tn., a.,ciaton em na.,
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ff.,e t.,e on an it)t al'i h i-in1j.
Tho ll" L'1 f, ! Y " C M r ' n
- i t " 'il " d i o f1l k e C0 fit ud t !
l'o t o r C I" int., OP TW > t' ma r': 0 f i h" f 011d W I fl'*4 pulllIA!
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1.
The Commission's rule is a distortion of the Supreme i-Court's opinion in FCC v. ITT World Communications, which was limited to a narrow factual context, involving a meeting held in a foreign country and attended by fewer than a quorum of FCC t
l Commissioners.
2.
In addition to misreading the Supreme Court's decision l
in the ITT case, the commission has disregarded decisions of the U.S. Courts of Appeals which have read the Sunshine Act broadly.
l 3.
The Commission must have something to hide or it would not be making this change.
t 4.
The rule change is a result of the Commission's i
l discomfiture over the release of the Diablo Canyon transcripts.
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5.
The Commission's action is a reficction of its hostil-l i
ity to the rights of the public generally and to the Sunshine Act l
in particular.
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The NRC's rule could not legally be promulgated without l
prior notice and comment, in view of its offect on the rights of 1
the public.
7.
The Comminnion han failed to nhow that thin rule would be beneficial to public health and safety in any way.
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8.
The Commission's new standards require predictive and subjective judgments, the correctness of which will be unreview-able because of the absence of a transcript.
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The Commission has failed to articulate what types of meetings it intends to close, and why.
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The editorials furnished by Chairman Markey come from a variety l
l of newspapers around the country.
Thoir titles give a fairly l
good idea of their contents:
for example, "NRC is Stupid to l
Close Meetings" (The Wichita Eagle-Beacon, Wichita, Kansas); "NRC i
Tricky Maneuver" (The Star Beacon, Ashtabula, Ohio); " Neat Little
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Gatherings" (The St. Louis Pont-Dispatch, St. Louis, Missouri);
and "Oh, Come On" (The Birmingham News, Birmingham, Alabama).
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r The question that faces the Commission, as it decides whether to proceed with the rulo as originally promulgated, to adopt a modi-I fled rule, or to rescind the rule altogether in favor of the f
preexisting rule, in thus one not only of law and policy, but
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t also of public perception.
The commenta made at the Congres-i sional hearing on May 21, as well as the commento filed in the rulemaking and the editorials supplied by Chairman Markey, make it clear that -- initially at leant -- t' majority of those who felt strongly enough about the issue to exprono themnolves about it believed that the rule change is undenirablo an a matter of policy.
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The initial reaction may be somewhat misleading, however.
Some I
of the early press coverage reported inaccurately that the Commission's May 21 rule was a response by the Commission to the unauthorized release of the Diablo Canyon transcripts.
Of i
i course, as the Commission is well aware, the Office of General I
counsel informed the Commissioners only a few weeks after the i
Supreme Court's April 1984 decision in the ITT caso that the j
decision suggestod that changes in the NRC's Sunshino Act requia-
'tions might be appropriate.
The discussions of Diablo Canyon that were the subject of the released transcripts did not take place until several months later, and the release of the tran-l l
scripts occurred in January, 1985.
Even more to the point, the May 21 rule would not have altered the legal status of the Diablo 1
discussions one iota:
they were " meetings" both under the old rule and under the new rule.
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In addition, tho NRC's May 21 rule -- and, indeed, the Sunshino
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Act generally -- have recently been considered by tho l
Adminintrative Law section of the American Bar Association.
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William E. Murano, Chairman of that Section, commentad in tho Pall 1985 innuo of the Administrativo Law Review on tho
" thoughtful analysis" undorlying the Administrativo Conforenco's L
i conclusion that tho Sunshino Act had dimininhed the collogiality j
of administrativo ayoncles' decision making.
Ito tStod that the r
subject of th-Sunnhino Act aparkod an "omotional rouponso," and pointed to the " storm of protant which has grootud tho interim rule proponod in May 19115, by the Nuclear Rogulatory Comminnion
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l which modestly restricts the definition of ' meetings' for i
Sunshine Act purposes in language taken directly from the Supreme l
Court's unanimous decision in FCC v. ITT World Communications, i
I 104 S.Ct. 1936 (1984)."
Mr. Murane commented that "the NRC has a point," for the Sunshino Act han " deprived both the agencies j
and the public which they serve of the benefit of true collegial l
I decision making."
!!o stated that the Administrative Law Section 4
had " accepted the challonoo" of attempting to determino whether by amending the Act it could be mado possible for agencios to function collegia 11y, at times behind closed doors, while preserv-ing an adequate level of public accountability *ar agency actions."
l Of course, the Commission should not hositate to adopt the courso l
of action it believes to be the soundest in law and policy.
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i suggest, however, that whatevor course of action the Commission l
adopts should take into account and addross, through a full l
explanation of its decision, the extensive public criticism that l
the May 21 rule ongendorod.
Accordingly, the draft Federal Register notice attached to this popor includos a moro extensive than usual discussion of applicablo law and policy l
l considorationn.
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i With that as introduction, wo shall procuod to analyzo :he l
l comments.
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6 1.
Was the Commission's reading of the law a distortion of the Supreme Court opinion, other Sunshino Act case law, and the legislative history of the Sunshine Act?
It was not.
Most of the critics of the Commission's action acknowledged as much, urging that the May 21 rulo represented bad policy rather than bad law.
It will be recalled that at the May 21 Congressional hearing, few persons attempted to argue that the Commission was legally barred from doing what the rule proposed.
Although Ralph Nader was willing to stato flatly that the Supremo Court's ITT decision offered no support whatever for the Commission'c action, Ellyn Weiss of the Union of Concerned Scientists was far moro cautious, stating that "it is not entirely clear that this decision can bo stretched to authorize what NRC wants."
Chairman Markey, in his opening statomont, pointed out that the NRC, in its criainal Sunshino Act rulemaking in 1976, consciouuly wont beyond the requirements of tho Sunshino Act in adopting ospecially stringont standards of opennons.
Chaitman Markoy said:
"At most, tho Supremo Court caso moroly romindad tho Commisalon that it wan probably correct when it naid in 1976 that it war going beyond tho roquiromontn of tho Sunnhino Act."
l A number of commontorn mado the point that the ITT caso 1
involvod a uniquo factual nituations a muoting hold in Europo, attended by only throo of tho novon TCC Comminnlonorn, in which thono Comminnlanorn woro not do11borating upon mattorn purnuant i
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l to a formal delegation of authority from the full Commission.
As such, they argued, the decision had no relevance to the situation confronting the NRC.
l The answer to this point is that while the case arose in l
a factual context unlikely ever to repeat itself before the NRC, i
the Supreme Court decided the case on two grounds, finding that l
the sessions attended by the FCC Commissioners were neither i
a " meeting" within the meaning of the Sunshine Act nor a meeting "of the agency" within the meaning of the Act.
Although the l
Court did not nood to reach the issue of the definition of "me,eting," it elected to do so.
Its discussion of the point is part of the holding of the case, and cannot be dismissed as "more dicta."
l Even if the Court's discussion of " meeting" were dicta, however, the Commission would be well justified in bringing its regulations into stop with the Court's view of the Act.
Our view in that when the Supreme Court makes its thinking about the proper interpretation of a statuto plain, it in folly to ignore it -- all the more when the Court npenko unanimously -- whether or not the Court'n exposition in broader than wan abnolutely necennary to decide the case.
Cont.rary to the views of nome of the commentorn, the Supreme Court in ITT did much more than give licenne to three or fewer l'CC Commit 4nionors to take part in foreign conferencou.
It used
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8 the opportunity presented by the case to define a " meeting" under the Act; to condemn the " expansive approach" taken by the Court of Appeals toward the Sunshine Act; to endorse the Interpretive Guide to the Government in the Sunshine Act in its approach to the definition of a " meeting"; and to make clear its view that the effective running of an agency requires that some types of discussions not be considered " meetings" for Sunshine Act I
l purposes.
It is worth stressing that last point.
The Court, recognizing that many Sunshine Act meetings are closable, never-theless believes that the proper functioning of agencies requires that many discussions among agency members not be considered l
" meetings" at all.
The criticisms of the " expansive approach" to i
the Act may well contain a hint that other Court of Appeals decisions on the Sunshino Act, in addition to the D.C. Circuit's i
ITT decision, may have been decided incorrectly.
If so, deci-sions would probably include Common Cause v. NRC, 674 F.2d 921 (D.C. Cir. 1982), if not also Philadelphia Newspapers v. NRC, 727 F.2d 1195 (D.C. Cir. 1984).
At leant one of the commenters suomo to take the position that the Supremo Court docinion on which the Comminnion rolled was itnolf a misinterpretation of Congrons' intent in panning the l
Sunshino Act.
In comments filed on bohalf of the Government Accountability Project and Trial Lawyorn for Public Justico, n11110 Pirnor cardo and Anthony 2. Hoisman observed that tho I
Gonato Hoport rolled on by the Court (for the proponition that
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" informal background discunnionn that clarify innuon and expono l
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9 varying views" are a necessary part of an agency's work) preceded in time other indicia of Congressional intent that suggest a broades definition of " meeting."1 The comments of Rep. Fascell, cited by the Court, really " carry little weight,"
according to Ms. Garde and Mr. Roisman.
Id. at 22.
The answer to Ms. Garde and Mr. Roisman is that the 1975 Senate Report did not represent an early version of the bill, later altered in the direction of greater openness, but rather 4
the high-water mark of the bill's emphasis on openness in government.
Later changes in the bill moved in the other direc-tion, as'the Congress, in the interest of allowing agencies to function, trimmed back the bill's broad definition of " meeting."
Those changes came in response to the proposals of such Congressmen as Pete McCloskey, of California, who told the House that the bill's definition of " meeting" as any " assembly or simultaneous communication concerning the joint conduct or disposition of agency business" would vitiate the FOIA's exemp-tion for intra-agency discussions.
He said:
Congress and the courts have long recognized the need for agency personnel to discuss, in private, regulatory matters and to freely explore all options that may be open -- without the fear that those discussions will one day be publicly revealed.
The heads of multimember agencies have this need as well as the members of their staffs.
1At p.
21; see also p.
41:
"The interim rule insults Congress and the courts by trying to follow the letter of
[ Footnote Continued]
10 I believe that the bill should apply whenever agency members convene in a formal meeting for the purpose of passing upon matters before the agency.
It should not apply if the agency members meet informally, not for the purpose of voting or deciding matters, but only for a preliminary discussion among themselves of the important' issues they will ultimately have to make an informed judgment upon.
Government in the Sunshine Act, Source Book:
Legislative History, Texts, and other Documents, Senate and House Committees on Government Operations, 94th Cong., 2d Sess. (1976), at 627.
Representative McCloskey went on:
I think we are searching here for balances so we can assure good operations in Government after we have h'ad several decades of abuse of power by Government....
We seek for a balance.
We are going to have to get good people to serve on the commissions and to govern this country ably.
Frankly, if I were asked to serve as a commissioner under these rules that exist in the bill today, I would ask myself twice whether in the ordinary course of conducting Government business I could comply with these provisicns of meetings and furnishing verbatim transcripts and still do my job honestly.
Id.
at 630.
Representative Horton of New York echoed McCloskey's s
comments, arguing that it was necessary to " strike a balance" "which will promote greater openness in Government at the same time that it is not unnecessarily burdensome and does not unnecessarily hinder public officials from carrying out their responsibilities."
Id. at 665.
He proposed an amendment, supported by McCloskey, to define a meeting as "a gathering to jointly conduct or dispose of agency business," in place of "an assembly or simultaneous communication concerning the joint
[ Footnote Continued]
a Suprene Court decision in an attempt to accomplish what would be illegitimate if the spirit of the law was followed."
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Id.
This amendment, Representative Horton urged, "would bring the definition of meeting in line with the realities 'of life."
Id.
The amendment passed, 208-180, with 48 not voting.
The conference report, cited by Ms. Garde, makes clear that the ultimate version of the bill represented a considerable narrowing of the bill's scope from the Senate version.
Thus Representative Abzug, introducing the conference report to the House, stated:
We adopted the Senate's basic definition of what constitutes a meeting, but clarified the definition as one applying to deliberations that " determine or result in" the conduct or disposition of agency business, rather than deliberations that " concern" agency business.
Id. at 816.
t Representative Fascell, urging adoption of the conference report, repeated the point just made by Ms. Abzug, adding:
"This language is intended to permit casual discussions between agency members that might invoke the bill's requirements under the less formal ' concern' standard."
Id. at 818.
Far from " carrying little weight," as Ms. Garde and Mr. Roisman claim, Rep. Fascell's comments, introducing the Conference Report, deserve great weight.
It is noteworthy that Rep. Fascell was the original House sponsor of the Sunshine Act (Icl. at 377), and had voted against Rep. Horton's amendment narrowing the definition of meeting.
Id. at 669.
He thus had no motivation to err on the
12 side of narrowness in describing the Conference Committee's compromise solution.
The foregoing discussion of the legislative history is also useful in evaluating the comments of Senator Lawton Chiles of Florida, the original sponsor of the Sunshine Act.
In comments filed joinely with Common Cause on the NRC's May 21 rule, he described the Commission's rule as " fundamentally subversive of the Sunshine Act in that it eliminates from the Act coverage of meetings which Congress clearly intended to be covered."
He took issue with the Commission's statement that to be a meeting for Sunshine Act purposes, a discussion must be "sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency."
This language had been taken from the Supreme Court's opinion, which in turn was quoting the Interpretive Guide to the Government in the Sunshine Act.
In fact, Senator Chiles' objection to that view of the Sunshine Act goes back some years.
In 1978, Senator Chiles held hearings on the implementation of the Sunshine Act at which he criticized Richard Berg, Executive Director of the Administrative Conference and a co-author of the Interpretive Guide, for what he viewed as an unduly restrictive view of the meaning of " meeting" under the Act.
Senator Chiles urged Mr. Berg to accept the much broader view taken by the Carter Administration Justice
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13 Department in an April 19, 1977-letter to the agencies from Assistant Attorney General Barbara Babcock.
Berg held his ground, stating that the Babcock letter did notatake adequate account of the extensive legislative history underlying the definition of meeting that appeared in the statute as finally enacted.
The colloquy between Senator Chiles and Mr. Berg is worth quoting at some length, since it presents the two alterna-tive interpretations of " meeting" under the Act:
Senator CHILES.
I note that the Administrative Conference has narrowly construed the definition of meeting.
I just wonder if there is a difference between the definition as set forth in the Administra-tive Conference's writings and the definition of meeting that Barbara Babcock, an Assistant Attorney General, sent a letter to the agencies on April 19, in which she wrote that several agencies define the term meeting in such a way as to limit the joint delibera-tions which are subject to the act.
She goes on to urge agencies to avoid ultimately fruitless litigation and take a broad view of what constitutes a meeting.
Thus she suggests that the term meeting is broadly defined.
It would appear that they are taking a more broad definition of what constitutes a meeting than your interpretation.
I was wondering if you agree with that.
I notice, for ex~ ample, the preliminary deliberations, briefings, all those items are pretty well covered within the definition of meeting.
Mr. BERG.
Senator, I am aware of the Department of Justice letter.
In fact, in fairness to all concerned, we have included it as an appendix in the final version of our guide, but I must say, I do disagree with it.
I think that it does not give adequate consideration to the lengthy and the tortuous legislative history that went into formulating the definition of meeting.
The term " meeting" is dcfined as " deliberations" of the required number of agency members, "where such deliberations determine or result in the joint conduct or disposition of official agency business."
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14 practically every word there was wrestled over in the course of the legislative history.
The proposition which I think is the alternative proposition, alternative to our definition, is the proposition that any discussion of agency business by a quorum is a meeting.
If that is what was meant, there was a lot easier way to say it.
But, in fact, the term " deliberations" is used, and in the legisla-tive history given some weight.
The term " joint conduct" is used and given some weight.
The terminol-ogy, " determine or result in," was substituted in conference for the term " concern," and the legislative history indicates that all these word choices were made in attempts to narrow somewhat the concept of
" meeting," with the idea, as I understand it, of focusing in on the exchanges which lead to the agency decisions, which are primarily directed to the agency decisions and part of the decisionmaking process.
It seems to me, therefore, that it is clear that there was some attempt to exclude very preliminary exchanges.
There is this passage in the Senate report (p. 19] which a previous witness referred to --
concededly referring to discussions between two members
-- which lends credit to the view that preliminary discussions are not within the meaning of,the defini-tion of meeting.
Senator CHILES.
Well, you state in the guide that your treatment of meetings has much to recommend it in terms of the practical problems of the day-to-day operations in agencies.
Mr. BERG.
That is true.
I certainly try to keep in mind the practical problems.
Senator CHILES.
Well, I do not think the purpose of the.act was really to take care of the dhy-to-day operations of the agencies.
I think the overall purpose of the act, the overriding purpose, is to open up Government.
If I would have issue with the defini-tion, it would be that you have gone further to accom-modate the day-to-day practical operations of the agencies, rather than to err on the side of openness.
Mr. BERG.
Well, the question of what they should do-when in doubt is one thing, and I would fully agree that when in doubt, the act encourages them to err on the side of openness, and this is true with respect to briefings and all these other categories.
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But before you can be in doubt, you have to have some idea of where the line is that you are in doubt about, and I think that before the agencies can focus in on these close questions of what is a meeting and what is not a meeting, you have to have some idea of a
where the line of demarcation is.
Otherwise, your doubts will keep proceeding further and further to the outer limits.
There are practical needs.
There are particularly practical needs in the case of the three-member agencies.
We had witnesses from a three-member agency here this morning.
There are many of these agencies.
I presume that you get two members talking to each other, and you do not want to encourage them to talk about something frivolous.
It would be nice if they spent their working day focusing in on working matters.
So how do you handle these things if you take the position that every discussion of agency business, however preliminary, is a meeting?
How do the agencies live with this?
I confess I do not know.
Senator CHILES.
Well, maybe that is what we are going to find out more about, if we ever get any litigation on this subject.
Oversight of the Government in the Sunshine Act, Public Law 94-409, Hearings before the Subcommittee on Federal Spending Practices and Open Government of the Committee on Governmental Affairs, United States Senate, 95th Cong., 1st and 2nd Sess.
(hereinafter oversight Hearings), at 204-205.
In one sense, Senator Chiles has been proved correct:
it did take litigation to resolve the problems of interpretation
. posed by the Sunshine Act.
But the resolution which the Supreme Court provided has emphatically endorsed Mr. Berg's interpreta-tion of the Act, to the extent of using his very words in their opinion, and has rejected the expansive view taken by Senator 9
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Circuit Court of Appeals.
2.
Is the definition of meeting enunciated in the Commission's May 21 rule so vague and imprecise as to be unworkable?
Not.if-it is applied conscientiously.
The rule adopts the language of the Supreme Court opinion to define a meeting as the deliberations of at least a quorum of Commissioners, where such deliberations determine or result in the joint conduct or dispo-sition of official Commission business, "6 hat is, where discus-sions are sufficiently focused on discrete proposals or issue as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency."
Use of this definition will require good faith judgment, and there will surely be some "close calls," but we do not consider the defini-tion unworkable.
Some commenters urged that the 'ise of this standard might be appropriate after the fact, to determine the propriety of an agency's determination of whether the Act applied, but was useless as a prospective standard.
They urged that it would be difficult to predict whether a discussion, however it might start out, would become focused on a discrete proposal and cause
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17 participating members to form reasonably firm positions on matters to be decided.
This very issue was discussed in some detail in the Interpretive Guide, at 8-10.
It makes the point that the Act does not merely call for a conscientious judgment, before the fact, of where the discussion is likely to lead.
In addition, the Act contemplates that if the decision is to treat the discussion as non-Sunshine Act, there is a responsibility to conduct the discussion accordingly.
Thus the NRC's rule likewise does not just rely on a predic-tion of the likely course of a discussion; it also provides guidance to the participants as to how they will conduct n
themselves.
The NRC rule contemplates that preliminary discus-sions can be used to identify alternatives which may later be the subject of more focused discussions to which the Sunshine Act would apply.
3.
Is the Commission's May 21 rule a response to the unauthorized disclosure of the'biablo Canyon transcripts?
Not at all.
The Supreme Court decided the ITT case on April 30, 1984.
Three weeks later, OGC notified the Commission-i 1
ers of the decision by memorandum ("Recent Supreme Court Decision on Sunshine Act," May 21, 1984), advising that the opinicn
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" suggests that changes in the NRC's regulations may be appropri-t o
ate to conform to the Court's guidance," and stating that a detailed analysis of the decision would follow.
This memoran-dum preceded by many months the unauthorized release of the Diablo Canyon transcripts.
Moreover, as we read the Sunshine Act, any adjudicatory session in which the Commission deliberated about how to decide a contested proceeding could only be consid-ered a " meeting" within the Sunshine Act:
closable under Exemption 10, but with the requirement for a tape, transcript, or minutes.
That legal requirement was in no way affected by the May 21 rule.
We must acknowledge, however, that commenters may legiti-mately have been confused by the language of the May 21 rule and its Statement of Considerations.
In explaining the decision to make the rule effective during the comment period, the Statement of Considerations said that the rule would not be used to permit any " gatherings" on initial licensing proceedings or the TMI-l restart case during the interim comment period.
That language could well lead readers to infer an intention on the part of the Commission to hold " gatherings" on adjudicatory matters after the end of the interim comment period.
The draft Federal Register notice makes clear that this was not the Commission's intent.
4.
Does the May 21 rule bespeak a hostility toward the Sunshine Act on the part of the Commission?
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19 Not in our view.
It must be borne in mind that, as Chairman Markey himself recognized, the Commission's original Sunshine Act rules went beyond the requirements of the law in defining
" meeting."
In our viev, that represented a deviation from the careful balance worked out by Congress in its definition of
" meeting."
The compromise worked out was one which, in the view of Congress, would best accommodate the goals of openness, on the one hand, with agency effectiveness, on the other.
At the time that* the Commission adopted its first Sunshine Act rules, the incoming Administration had made known its belief that the agencies should interpret the Act broadly, erring on the side of openness, to prevent litigation.
Implicitly warned that if they failed to take a broad view of the Act, the Justice Department would not defendjthem in court, agencies found that the Justice request, transmitted in the the Babcock letter cited above, was an offer not easily refused.
The broad view of the Act taken by DOJ at that time was reinforced by a 1978 memo from the Presidgnt to agency heads directing that "the Attorney General and the affected agencies must not defend the closing of any meeting unless they can demonstrate that harm would have resulted if an open meeting had been held."
Oversight Hearinas, p.
239.
Whether or not it was influenced by the new Administration's view of the Act, the Commission in 1977 adopted an extremely broad interpretation of the Act -- broader in its definition of
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" meeting" than any other agency of which we are aware -- and thereby departed from the course charted for the agencies by the Congress.
We see no basis for assuming, as do some of the critics of the Commission's May 21 rule, that the Sunshine Act merely established legal minima for the agencies, and that agencies whose regulations go far further than the law requires are demonstrating especially zealous fidelity to the Congress' intent; on the contrary, e::cessively broad regulaticns do not give recognition to Congress' intent to preserve the capacity for informal discussions of agency business.
What the Supreme Court has done is to reiterate the Congres-sional intent.
As the decision makes clear, the legislative history demonstrates conclusively that the scope of the law was narrowed in the interest of allowing agencies to, function effectively.
By conforming its regulations to the Sunshine Act as the Supreme Court interpreted it, the Commission is not undermining the Sunshine Act; rather, it is acting in fidelity to the statute that the Congress actually passed.
If critics of the Commission's action believe that the Supreme Court's unanimous decision in the ITT case misinterpreted the Sunshine Act -- or that though the Court correctly interpreted the Act, the version originally passed by the Senate represents better public policy
--orthattheBarbaraBabcockinterpretationof-thelawrephe-sents desirable public policy -- then their proper recourse is legislation to amend the Sunshine Act.
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21 Some of the critics of the Commission's May 21 rule have suggested that there is no factual basis for the Commission's assertion that the Sunshine Act has impaired collegiality and in some instances lowered the quality of decisionmaking at NRC.
In fact, direct confirmation of the Commission's view comes from the Administrative Conference of the United States, a body which the Sunshine Act itself entrusts with special responsibilities in interpreting and implementing the Act.
In Recommendation 84-3, adopted on June 28, 1984, the Administrative Conference observed that "one of the clearest and most significant results of the Government in the Sunshine Act is to diminish the collegial character of the agency decision making process."
It recommended as' follows:
Under the Government in the Sunshine Act the degree of collegiality in the multi-member agencies has diminished.
Congress should consider whether the present restrictions un closino agency meetings are advisable, and if not, how they might best be revised without undercutting the basic principle of the Act that "the public is entitled to the fullest practicable information regarding the decision making processes of the Federal Government."
If a new balance is to be struck between the values of collegiality and openness, the Administrative Conference suggests that agency members be permitted some opportunity to discuss the broad outlines of agency policies and priorities (including enforcement priorities) in closed meetings, when the discussions are preliminary in nature or pertain to matters, such as budget or legislative proposals, which are to be considered in a public forum prior to final action.
The Chairman of the Administrative Law Section of the American Bar Association, William E. Murane, commented in the Fall 1985 issue of the Administrative Law Review on what he
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22 described as the " thoughtful analysis" of the Sunshine Act's effects.
Describing the NRC's May 21 rule as one "which modestly restricts the definition of ' meeting' for Sunshine Act purposes in language taken directly from the Supreme Court's unanimous decision in FCC v.
ITT World Communications," Mr. Murane stated:
"[T]he NRC has a point.
The Sunshine Act has, as a practical matter, driven some agency decision making underground and deprived both the agencies and the public which they serve of the benefit of true collegial decision making."
37 Ad.L.Rev. vi (Fall 1985).
Taken as a whole, it hardly seems subversive of the Sunshine Act for the Commission to move in a direction delineated by the Supreme Court, long since practiced by other agencies, and by implication, recommended by the Administrative Conference. _
5.
Did the Commission delineate with sufficient precision the types of " gatherings" it might ho'1d under the new Sunshine Act rule?
Probably not.
As mentioned above, the Commission's refer-ence to its intention not to hold " gatherings" on initial licens-ing adjudications and the TMI-1 restart case during the comment period was viewed by many as indicating an intent to conduct such
" gatherings" once the interim period was over.
Another area that provoked widespread criticism was the " technical briefing on an issue common to a number of plants."
The rationale for that
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latter class of " gathering," in OGC's view, was that it would allow Commissioners to educate themselves on broad technical issues -- seismicity, for example -- well in advance of dealing with those issues in a particular adjudication.
The intent was to permit Commissioners, in an informal setting, to ask whatever questions occurred to them in order to "get smart" about a partic-ular issue.
We thought it unfortunate that Commissioners often do not have an opportunity to become educated about technical issues until those issues are presented to them for resolution in the context of a contested adjudication.
Many commenters, however, viewed this possible topic of
" gatherings" as a means of keeping the public in the dark about safety problems at nuclear power plants.
Other commenters pointed out that at the time the Commission first proposed Sunshine Act rules, nine years ago, its Federal Register notice stated that though briefings might well not come within the Act's definition of " meeting," the Commission had determined to treat them as " meetings" because "the Commission believes such brief-ings of the Commission by the staff are a vital portion of the Commission's supervision of its staff and of Commission business in general, and because of the presumption in favor of opening agency business to public observation established by the Act."
41 Fed. Reg. 55880, (Dec. 23, 1976).
Though the Supreme Court's decision indicates that a simplistic approach of "the more open the better" was not the Act's intent, the policy reasons underly-ing the 1976 decision specifically to treat briefings as Sunshine
24 Act meetings are presumably no less valid today than they were then.
Unless the Commission has revised its view of the role of briefings in the Commission's functioning, or believes that the interest in collegiality and candor in such briefings outweighs the public interest in allowing access to such briefings, then the argument in favor of treating such briefings as Sunshine Act
" meetings" would appear to be strong.
The obvious question then arises:
if adjudications and briefings on safety issues are not to be the subject of non-meeting " gatherings," what types of subjects would be appropriate for such gatherings?
One such type of gathering, which was identified at the May 21 hearing as appropriate (or discussion, and which probably would not fall within any of the present exemptions to the Sunshine Act, isthe"bihpicture" discussion of where the agency is headed:
what its objectives are, where its major problem areas appear to lie, and what its major chal-
_lenges are likely to be in the coming years.
Early in 1975, in the first few months of the Commission's existence, William A.
Anders, the NRC's first Chairman, took his fellow Commissioners on a " retreat" to Airlie House in the Virginia countryside to spend a weekend in collegial discussions of just that sort.
Such meetings ideally serve both to address substantive questions and to create the atmosphere of common purpose and collegiality -- in a word, of teamwork -- in which administrative agencies can best serve the public.
l'
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25 similarly, a discussion among Commissioners on the subject of the Commission's relations with its Congressional oversight committees, or with the press, or with the nuclear industry, or i
with the anti-nuclear intervenor community, or with the public as
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a whole, might or might not be closable if treated as a meeting l
l under.the Sunshine Act, depending on whether the discussion was i
general or of a particular proposal.
l l
l Moreover, it is only reasonable to suppose that there are i
i matters involving agency business which a Commissioner might l
consider suitable for discussion in an informal setting but would i
l not be likely to propose as the subject of a formal meeting, even j
if there were a Sunshine Act exemption under which that meeting l
might be 416 sed.
Examples come to mind-
"I read an article in l
the other day about the nucicar industry and I wonder l
l l
whether any of the rest of you read it and what you thought of f
it."
"I just got back from visiting and I'd like to I
tell you my perceptions of how they run the regulatory program in I
t that country, and some of their perceptions of how we do busi-l ness, and discuss with you whether anything I learned suggests 1
l areas we ought to explore further in a more formal setting."
l l
"I had a conversation with Representative last week and i
i l
he had some thoughts and observations that I'd like to pass on to I
you."
I i
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As these examples suggest, a variety of topics might be l
appropriate for informal discussion.
What those precise topics t
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would be cannot be predicted at this time with any precision.
It l
would depend on events.
The point is that in the normal course of events, topics suitable for informal discussion are likely to arise. 'Although any of the topics cited above could of course be discussed one-on-one by walking the halls, that procedure is l
inadequate substantively:
when Commissioner A conducts serial briefings of Commissioners B, C,D, and E, Commissioner B does l
not have the benefit of any pertinent thoughts which Ccmmission-ers C, D,
and E may have on the subject.
Moreover, " walking the halls" is extraordinarily wasteful of time.
In our view, it disserves the public interest to ask Commissioners or staff officials with important health and safety responsibilities to the public to squander their time on serial briefings, rather than attending to substantive regulatory issues, when the law does not require it.
6.
What sort of procedures would be appropriate for the implementation of non-Sunshine discussions?
This is a thorny question, not easily answered.
One approach would be to adopt a variety of procedural safeguards, to assure that Commissioners do not abuse the greater latitude offered them by the new rule.
Such procedures could involve any or all of the following:
having meetings only when all Commissioners are present; requiring a representative of the General Counsel to be present to assure that the discussion stays within proper bounds; keeping a transcript; having
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a representative of the Secretary present to take notes; deciding j
upon the topic for discussion in advance; and notifying the I
Congress and/or the public either in advance or after the fact.
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Such an approach, in our view, would probably prevent any abuse of the rule, but at a substantial cost:
it would probably render the rule change useless, by depriving the commission of the very i
informality and flexibility which the rule change was intended to make possible.
Moreover, as one prominent authority on the Sunshine Act observed in a recent conversation, the more proce-dures the Commission attaches to its "non-meetings," the more i
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difficult it is to argue that they are not the sort of meetings i
to which Sunshine Act procedures should apply.
1 our recommendation would be to keep procedures to a minimum, t
l l
p in the interest of informality and collegiality, while using i
j other means to provide assurance that the oppor. unity Ior off-I the-record discussions will not be abused.
One such safeguard, suggested above, is to exclude all adjudicatory issues and all briefings on safety issues from the class of topics addressed in such discussions.
Another is to assure that all Commissioners are invited to all non-Sunshine discussions.
We recognize that
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Commissioners' travel plans may sometimes mean that all Commissioners are not able to attend every such meeting.
To limit such discussions to those days on which all five Commissioners are in Washington, however, would place great
}
obstacles in the way of such discussions.
We do not think it would be useful to adopt hard-and-fast rules for handling this i
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28 problem.
It may be reasonable for a Commissioner who will be absent for only a day or two to ask for a postponement of a non-Sunshine discussion; by the same token, it may be unreasonable for a Commissioner who is going on a three-week trip to ask that no such discussions take place in his absence.
We think that problems of this kind are best resolved by the Commissioners themselves, in an informal manner.
As far as having members of the General Counsel's office present to monitor discussions, our view is that although the Commissioners are certainly entitled to have a lawyer present if they so desire, they should also be able to dispense with a lawyer's services if they wish.
We do not believe that the Commissioners need chaperones.
The presence of an OGC attorney is likely, in our view, to inhibit Commissioners from speaking freely about matters touching OGC, and perhaps other subjects as well.
On the other hand, to dispense with all procedures for monitoring and keeping some sort of record of non-Sunshine discussions would doubtless be seen as a complete rejection of those comments, from the public and from Capitol Hill, which expressed concern to know what Commissioners might be discussing in these off-the-record discussions.
As such, it might invite a request from an oversight committee for regular reports on each such meeting -- thereby accomplishing through the oversight process what the Commission itself had intended to avoid.
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Our recommendation, therefore, would be procedures under which Commissioners would either have a member of the Secretary's f
office present, to take notes on each non-Sunshine discussion, I
j or, for those discussions which the Commissioners decide to hold j
without such a note-taker present, to have such a person avail-able to be briefed at the close of the discussion, so that a memorandum memorializing the topics of discussion can be prepared.
l 6.
Should the Commission consider giving the public an l
opportunity for prior comment on the revised rule?
l f
l We think the possibility is worth serious consideration, but I
make no recommenBation either way.. We see pros and cons on both sides.
Arguing in favor of an opportunity for public comment is the fact that many members of the public, as well as Members of Congress, saw the decision to make the rule immediately effective as a sign that the Commission believed that the public had nothing useful to offer on the subject of the Sunshine Act, and were offended by this.
To offer an opportunity for comment now l
would probably be seen as an acknowledgment that the decision to omit prior public comment was a mistake, which the Commission now seeks to rectify.
To some, the acknowledgment of a mistake may seem a sign of weakness; others -- ourselves included -- think i
that the ability to acknowledge a mistake is a sign of strength.
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From a litigation standpoint, allowing further public comment cannot harm the Commission; whether it can help the Commission -- beyond perhaps impressing a reviewing court with the coinmission's reasonableness -- is uncertain.
The Commis-sion's delay in implementing its rule has meant that no one can plausibly claim to have been hurt by the decision to make the rule immediately effective.
Moreover, a second opportunity for public comment is required, as a matter of law, only when the rule as revised has been so changed, in such fundamental ways, from what was first proposed, that the final rule bears little relation to the original version.
The rule suggested in this memorandum does not represent anything like that degree of change in the earlier rule.
1
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Arguing against a further opportunity for comment is the fact that the Commission has already received comment on the rule prior to its implementation.
It may well be that commenters would not have much to add to what they have already had to say.
l The more closely the revised rulo resembles the May 21 rule, the l
more that any further comments are likely merely to duplicate the comments filed on the May 21 rule.
1 We have drafted the Federal Register notice without a provision for further public comment, but could easily add such a provision if the Commission so decides.
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31 Recommendation:
Issuance of the attached draft Federal Register notice.
ll 6
lierz E. Plaine General Counsel
Attachment:
Draft Federal Regieter notice.
Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, December 20, 1985.
Cummission Staff Office comments, if any, should be submitted to the Commissioners NLT Monday, December 16, 1985, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
i Affirmation will be scheduled as soon as Commissioners' votes are received.
DISTRIBUTION:
Commissioners OGC OPE OI OCA OIA OPA EDO ELD ACRS ASLBP ASLAP l
SECY l
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NUCLEAR REGULATORY COMMISSION 10 CFR Part 9 GOVERNMENT IN THE SUNSHINE ACT REGULATIONS k
AGENCY:
Nuclear Regulatory Comission ACTION:
Final rule.
SUMMARY
- The Nuclear Regulatory Comission, having studied the comments submitted on its May 21, 1985 change in its rules implementing the Government i
in the Sunshine Act, 5 U.S.C. 6552(b), reaffirms the rule in' part and modi-fies it in part. The rule continues to provide that " meetings", for Sunshine Act purposes, do not encompass preliminary discussions, where those discus-i i
sions do not effectively prerietermine agency action.
The Commission is
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taking the opportunity to make clear that discussions of the licensing of any particular plant, including both adjudicatory and non-adjudicatory discus-siens, continue to constitute " meetings" for Sunshine Act purposes, where a quorum of Comissioners is present.
The Comission modifies the May 21
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l rule to provide that briefings on nuclear power plant safety issues will be j
treated as " meetings" for Sunshine Act purposes.
FOR FURTHER INFORMATION CQNTACT:
Peter Crane, Office of General Counsel, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555.
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2 SUPPLEMENTARY INFORMATION:
I.
Introduction On May 21, 1985, the Nuclear Regulatory Comission issued new rules implementing the Government in the Sunshine Act.
The most significant aspect of the rule change was that it conformed the defini-tion of " meeting" (for Sunshine Act purposes) with guidance provided by the Supreme Court in its unanimous 1984 decision interpreting the Sunshine Act, Federal Communications Comission v. ITT World Comunications, U.S.
104 S.Ct. 1936.
The Comission's rule change was made effective immediately.
However, the Commission stated that it was soliciting public coment on the rule change, and would consider and evaluate those comments before deciding whether the interim rule should be made final.
The Commission has now studied the coments, as well as the views presented at a hearing on the rule change which was conducted on May 21, 1985, by the Subcommittee on Energy Conservation and Power of the House Cemittee on Energy and Comr.erce.
Based on that review, the Comission has determined that the interim rule should be modified to provide that briefings of a Commission quorum on nuclear power plant safety issues will not be conductedinnon-SunshineActdiscussions("NSAD's"),notwithstandingthe fact that the Sunshine Act gives the Comission latitude to do so.
Based upon the coments received, the Comission believes that the strong interest of many members of the public in having access to technical information bearing on the safety of nuclear power plants outweighs the possible benefit I
to the Comission of being able to engage in informal give-and-take with the NRC technical staff in such briefings.
The Comission is also taking the opportunity to make clear that adjudicatory deliberations and discussions of c
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[7590-01]
the licensing of a particular plant, including reviews to detennine whether decisions of Atorric Safety and Licensing Boards should be made imediately effective, when conducted by a quorum of Commissioners, will be considered
" meetings" for Sunshine Act purposes.
The majority of the coments submitted on the May 21 rule were critical.
Most commenters who criticized the May 21 rule conceded its legality, while condemning it as a matter of policy judgment.
Some commenters attacked both the legality of the rule and its desirability as a matter of policy.
For clarity, we will discuss the legal issues and the policy issues separately.
!!. Legal Analysis The Comnission's Federal Register Notice of May 21, 1985, included a discussion of the Supreme Court's unanimous 1984 decision in FCC v. ITT World Communications, U.S.
, 104 S.Ct. 1936, in which the Court reversed the D.C. Circuit's holding that an international conference attended by several FCC Commissioners was a meeting of the agency for Sunshine Act purposes.
The Court made clear that the Court of Appeals below had committed a twofold error when it held that the discussions at issue in ITT fell within the purview of the Sunshine Act.
First, the sessions in which the FCC members took part were not discussions "sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual partici-pating members to form reasonably firm positions regarding matters pending or l
likely to arise before the agency." Rather, the Court said, the sessions "provided general background information to the Cormissioners and permitted them to engage with their foreign counterparts in an exchange of views by 1
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which decisions already reached by the Commission could be implemented." The Court added:
"As we have noted, Congress did not intend the Sunshine Act to encompass such discussions." Second, the FCC members, though they consti-tuted a quorum of the agency's Telecommunications Comittee, were not acting on matters delegated to that Committee for action.
In sum, as the Court stated plainly, "the participation by FCC members in these sessions constitutes neither a ' meeting' as defined by 1552b(a)(2) nor a meeting 'of the agency' as provided by 1552(b)(b)."
Despite the clarity with which the Court laid out the dual grounds for its reversal of the Court of Appeals below, scme commenters appeared to take the position that the Supreme Court's discussion of the meaning of " meeting" was irrelevant, and of no precedential effect, since the Court did not have to rt.ach the legal issue of the definition of meeting.
That position is incorrect. Whether or not the Supreme Court had to resolve the meaning of
" meeting" under the Act, it elected to do so; its discussion of the meaning of " meeting" is one of the two alternative bases for reversing the lower court; and it spoke unanimously. Under the circumstances, the Court's discussion of the meaning of " meeting" under the Sunshine Act, and its explication of the Act's legislative history, must be regarded as both definitive and binding.
The Supreme Court's discussion of the meaning of the word "eceting" is worth quoting at some length. The Court said:
Congress in drafting the Act's definition of " meeting" recog-nized that the administrative process cannot be conducted entirely in the public eye.
"(l]nformalbackgrounddiscussions[that]
clarify issues and expose varying views" are a necessary part of an agency's work. See S. Rep. No.94-354, at 19 (1975).
The Act's procedural requirements effectively would prevent such discussions
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L and thereby impair normal agency operations without achieving significant public benefit. Section552b(a)(2)thereforelimits the Act's application to meetings "where at least a quorum of the agency's members... conduct or dispose of official agency business."
S. Rep. No.94-354, at 2.
In a footnote, the Court reviewed the pertinent legislative history:
The evolution of the statutory language reflects the congres-sional intent precisely to define the limited scope of the statute's requirements.
See generally, H.R. Rep. No.94-880 Part 2, at 14 (1976).
For example, the Senate substituted the term
" deliberations" for the previously proposed terms - " assembly or simultaneous communication."
H.R. 11658, 94th Cong., 2d Sess.
l 552b(a)(2) or " gathering, S. 5, 94th Cong., 1st Sess. 5 201(a)
(1976) -- in order to " exclude many discussions which are informal in nature."
S. Rep.94-354, at 10; see id., at 18. Similarly, earlier versions of the Act had applied to any agency discussions l
that " concern [] the joint conduct or disposition of agency I
business," H.R.11656, supra, f 552b(a)(2). The Act now applies l
only to deliberations th'atdetermine or result in" the conduct of
" official agency business." The intent of the revision clearly was to permit preliminary discussion among agency members.
See 122 Cong. Rec. 28474(1976)(remarksofRep.Fascell).
L The Court found that the FCC Commissioners had not engaged in "delibera-tions [that] determine or result in the joint conduct or disposition of l
l official agency business," and it provided a definition of this far from self-explanatory language:
This statutory language contemplates discussiens that " effec-tively predetermine official actions." See S. Re;. No.95-354, at 19; accord id., at 18.
Such discussions must be "sufficiently focused on dTscrete proposals or issues as to cause or be likely to
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l cause the individual participating member to form reasonably firm positions regarding matters pending or likely to arise before the agency."
R. Berg and S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act 9 (1978).
l The Commission's May 21, 1985 rule adopted this language verbatim.
1 At least one of the comenters appeared to take the position that the Supreme Court decision on which the Commission relied was itself l
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t a misinterpretation of Congress' intent in passing the Sunshine Act. That commenter asserted that the Senate Report relied on by the Court (for the proposition that informal background discussions are a necessary part of an agency's work) preceded in time other indicia of Congressional intent that suggest a broader definition of meeting. Moreover, said this commenter, the remarks of Rep. Fascell, cited by the Court, " carry little weight." These comments accused the Comission of "trying to follow the letter of a Supreme Court decision in an attempt to accomplish what would be illegitimate if the spirit of the law was followed."
Even if the Commitsion were at liberty to engage in second-guessing the correctness of unanimous Supreme Court interpretations, there would be no basis for doing so in this case.
Contrary to the view expressed by this comenter, the bill did not evolve in the direction of mandating greater openness after the Senate Report was issued.
Rather, the Senate Report marked the high-water mark of the bill's openness requirements, for the House of Representatives was not willing to go as far as the Senate in mandating openncss requirements, and the final bill represented a compromise between the two versions. On the definition of " meeting," the House accepted an amendment offered by Representative Paul (Pete) McCloskey of California, who argued that the bill's definition of " meeting" would, unless amended, prevent the kinds of preliminary discussions that are vital to the effective func-tioning of administrative agencies. He told the House:
Congress and the courts have long recognized the need for agency personnel to discuss, in private, regulatory matters and to freely explore all options that may be open -- without the fear that those discussions will one day be publicly revealed.
The heads of l
multimember agencies have this need as well as the members of their l
staffs.
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I believe that the bill should apply whenever agency members convene in a formal meeting for the purpose of passing upon matters before the agency.
It should not apply if the agency members meet informally, not for the purpose of voting or deciding matters, but only for a preliminary discussion among themselves of the important issues they will ultimately have to make an informed judgment upon.
Government in the Sunshine Act, Source Book:
Legislative History, Texts, and other Documents, Senate and House Committees on Government Operations, 94th Cong., 2d Sess. (1976), at 627.
Representative Horton of New York echoed McCloskey's comments, arguing that it was necessary to " strike a balance" "which will promote greater openness in Government at the same time that it is not unnecessarily burden-some and does not unnecessarily hinder public officials from carrying out their responsibilities."
Id. at 665.
He proposed an amendment, supported by McCloskey, to define a meeting as "a gathering to jointly conduct or dispose of agency business," in place of "an assembly or simultaneous communication concerning the joint conduct or disposition of agency business."
_I d.
This amendment, Representative Horton urged, "would bring the definition of meeting in line with the realities of life."
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The amendment passed, 208-180, with 48 not voting.
In conference, a compromise was adopted, as Representative Abzug explained to the House:
We adopted the Senate's basic definition of what constitutes a meeting, but clarified the definition as one applying to delib-erations that " determine or result in" the conduct or disposition
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of agency business, rather than deliberations that " concern" agency business.
Id. at 816.
Representative Fascell, whose remarks were cited by the Supreme Court, reiterated this point and elaborated on it, telling the House how and why the conferees had narrowed the Senate's definition of " meeting":
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[D]eliberations would have to " determine or result in" the joint conduct or disposition of agency business, rather than merely
" concern" such activities.
This language is intended to aermit casual discussions between agency members that might invoce the 4
bill's requirements under the less formal " concern" standard.
TEmphasisadded.)
The Conference Report was adopted by both houses of Congress. The Supreme Court's citation to Representative Fascell's remarks makes clear that it understood quite well the thinking of the Congress at the time the bill was enacted into law.
Representative Fascell was, moreover, the original House sponsor of the Act, and had himself favored the broad definition of meeting embodied in the Senate version of the bill.
The comenter's sugges-tion that Mr. Fascell's remarks " carry little weight" is thus not yalid.
In coments submitted jointly by a citizens' lobbying organization and a United States Senator, the Comission's May 21, 1985 rule was described as
" fundamentally subversive of the Sunshine Act in that it eliminates from the Act coverage of meetings that Congress clearly intended to be covered." The coments state:
The report of the House Government Operations Comittee, in discus-sing the definition of meeting, said, "[t]he conduct of agency business is intended to include not just the formal decisionmaking or voting, but all discussion relating to the business of the agency."
H. Rep. I, 8.
("The whole decisionmaking process, not merely its results, must be exposed to public scrutiny."
S. Rep.,
18.)
The date of the House Report from which the coments quote is March 8, 1976, and the description of the definition of " meeting" is an accurate reflection of the House bill as it stood on that date. However, the McCloskey amendment to the House bill, adopted July 28, 1976, substantially narrowed the definition of " meeting," as discussed earlier.
As a description
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of the bill which finally passed the House, therefore, the quoted language is thus not accurate. As Representative Fascell's comments make clear, the quoted language is also inaccurate as a description of the Sunshine Act as i
finally passed.
In fact, the debate about the meaning of " meeting" under the Sunshine Act has been going on almost since the bill was signed into law.
In April, 1977, at a time at which agencies were engaged in developing their Sunshine Act regulations, Barbara A. Sabcock, then Assistant Attorney General in charge of the Civil Division, wrote to all 47 agencies then covered by the Sunshine Act. Noting that several agencies defined " meeting" in such a way as "to limit the joint deliberations subject to the Act," she urged that agencies define a " briefing session" attended by a quorum of agency members as a " meeting" for purposes of the Act, "where members attending have an op,portunity to ask questions or seek clarification of matters of concern."
She stated that agencies which took a narrower view of-the statute would find their " proceedings subject to continuous attack," and urged that agencies i
" insure that the term ' meeting' is broadly defined in practice."
R. Berg &
S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act, 4
- p. 120.
In June, 1978, however, Richard Berg and Stephen Klitzman of the Administrative Conference of the United States (a body to which the Sunshine Act assigned the task of consulting with agencies on the preparation of Sunshine Act regulations) published An Interpretive Guide to the Government I
in the Sunshine Act.
The Interpretive Guide discussed the definition of
" meeting" at length, describing it as "one of the most troublesome problems in interpreting and applying the Sunshine Act." At p. 3.
The authors
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10 reviewed the legislative history in detail to analyze Congress' effort "to mark out a line of distinction between those casual and informal discussions of agency business wh'ich do not qualify as ' meetings' and those more ' formal' gatherings which do.... [T]he controlling distinction is between discussions which ' effectively predetermine official actions' and those which do not."
Id. at 6.
The authors pointed to the Senate Report, which stressed the need for agencies to "be careful not to cross over the line and engage in discussions which effectively predetermine official actions," and to keep their discus-sions " informal and preliminary to avoid the open meeting requirement."
I d,.
at 6-7.
The authors observed:
"It would follow that briefings ind explora-tory or tentative discussions would not fall within the definition of
' meeting.'"
(Emphasis added.) While recognizing that language in the report of the House Government Operations Comittee stated that the Act was intended to apply to "all discussion relating to the business of the agency," they noted that the Conference Report stated (at p. 11) that the basis for the final language was the definition of meeting "as explained in the Senate Report."
Interpretive Guide at 7.
Discussing the " narrowing and limiting" of the definition of " meeting" that took place in the Conference Comittee, as described by Representative Fascell, the authors of the Interpretive Guide stated that the effect of the change seemed:
most plausibly, to be to exclude from the definition, or to empha-size the previous exclusion of, those deliberations which " concern" agency business, yet are so general and tentative as not to " deter-mine or result in" the adoption of firm positions regarding future agency action by the participating members.
In this category might be placed briefings to and even exploratory talks among agency members.
Such treatment is consistent with the suggestion in the
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Senate Report that the test is whether the discussion "predeter-mine[s] official action," and obviously it has much to recomend it in terms of the practical problems of the day-to-day operations of Id at 8 (footnotes omitted, emphasis added).
d an agency.
In a footnote, the authors comented that the " practical need for exempting casual and tentative discussions" had been "well set forth" in testimony by Prof. Jerre Williams on behalf of the American Bar Association:
Obviously, one of the critical facets of this legislation, and what we have been talking about today, is the definition of meeting.
The ABA takes the position that there is a need for balance here.
- There is a need for exempting from the legislation chance encoun-ters and informational and exploratory discussions as long as they do not predetermine acency action.
The informal and casual work session is included.
Outlandish suggestions come out of those sessions. Hopefully, humorous suggestions come out of those sessions, but once in a while the brainstormina matters will lead to a new and creative and important idea.
The ABA takes the position that the open meetings requirement does not apply until the brainstorming gets to the point that ideas need to be adequately evaluated as a viable alternative which ought to be seriously considered.
House Government Operations Hearings, 102.
See also House Judiciary Oversight Hearing, 5-6. Id. at 8 fn. 14 (emphasis added).
The authors recognized the problem of determining whether a discussion "predetennines official action":
But assuming that the definition of meeting does not cover
" tentative" or " exploratory" discussions, we are faced with the need to devise an operational distinction between such discussions and those discussions which are so immediately related to the process of detennining agency action as to fall on the other side of the line. The test suggested in the Senate Report'is whether the discussion predetermines official action.
Certainly, where deliberation focused on a fairly specific proposal before the agency achieves a consensus among the participants on the agency's proper course of action, such a deliberation determines the dispo-sition of the business within the meaning of the definition, notwithstanding that no formal action is taken and that the members are free to change their minds. Where a consensus is not achieved
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because of the members' differing views, a harder case is presented. Since no agreement has been reached, it might be said that the discussion has not predetemined official action. Yet the process by which the members reach their individual conclusions through exchange of views with Aheir colleagues appears to be within the draf ters' contemplation of " joint conduct" of agency business. Accordingly, we believe the proper test is the nature of the discussion and not whether it achieves a specific extent of agreement. A discussion which is sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individ-ual participating members to form reasonably firm positions regard-ing matters pending or likely to arise before the agency is a meeting, w1ile, in our view, a discussion which is merely infor-mational or exploratory is not.
Id. at 8-9 (footnotes omitted, emphasis added).
In a footnote, the authors indicated their awareness that the Justice Department, in its April 19, 1977 letter to the agencies, took a broader view than they of the definition of " meeting." Nevertheless, the authors held to the view that whether a discussion of agency business constituted a " meeting" depended on whether it " predetermined official action." The authors saw this test as referring to the nature of the discussion rather than to the actual result.
That is to say, the question is whether the discussion is decision-oriented or whether the members are merely familiarizing themselves with the subject, exchanging preliminary observations, canvassing possibilities or brainstorming.
A number of factors may be relevant in assessing the nature of the discussion, e.g.,
its length, the circumstances in which it was initiated, whether all the members were present or had an opportun-ity to attend.
It is helpful to bear in mind that the purpose of the Sunshine Act is to open to the public those collegial exchanges which are a part of the decisionmaking process, in the interest of enhancing public awareness of that process and the accountability of the agency members.
S. Rept.,17-18.
A discussion which significantly furthers the decisional process by narrowing issues, discarding alternatives, etc., should be treated as a meeting even though it does not and is not expected to achieve a complete resolution. On the other hand, those exchanges of views which are not of a nature to foreclose or narrow discussion at subsequent collegial gatherings might be treated as outside the definition without loss to the values the Sunshine act seeks to achieve.
Id.
at 9-10, Fn.17 (emphasis added).
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The authors of the Interpretive Guide recognized the difficulty of knowing in advance whether any particular discussion will result in agency members' forming " reasonably firm positions." They recognized as well that the decision to treat a discussion as outside the Sunshine Act's porview would carry with it a responsibility to refrain from going beyond tentative and informal deliberations:
Whether given deliberations will achieve a consensus or even lead individual members to make up their minds is, of course, a question which may not be capable of an answer in advance.
Obviously, the more specific the subject under consideration and the more im W ' tate its relationship to prospective agency action the more difficult it will be to keep the discussion tentative and informal. The difficulties of defining " meeting" in terms of what actually happens instead of in terms of the purpose in calling it were much discussed in the House of Representatives, and at one point a " purpose" test was adopted. However, the language in the final version seems to make the test what actually happened.
In effect, this forces the agency to try to meet both tests.
It must treat as a meeting prospectively every gathering which is either intended to or likely to result in the members reaching firm decisions. Conversely, if a gathering has not been treated as a meeting because of the tentative and informal nature of the anticipated discussion, the agency members have a duty under subsection (b) to see that the discussion remains tentative and informal. This line of distinction is not only a fine one, but one that assumes a certain predictability about the course of such informal discussions.
To administer it consistently with the spirit and even the letter of the Act will require vigilance on the part of officials who preside and restraint en the part of those who participate, to the end.that discussions do not move into an area properly reserved for meetings.
Indeed, it will no doubt frequently be desirable t'o conduct briefings and exploratory discussions under the procedures required for meetings so as to avoid the somewhat artificial restraints which the distinction appears to require.
I_d. at 10 (footnote omitted).
The Interpretive Guide soon came under criticism for its analysis of the meaning of " meeting."
In hearings held in 1978, Richard Berg, Executive Director of the Administrative Conference and one of the co-authors of the Interpretive Guide, was asked to explain the divergence between the Guide's interpretation of " meeting" and the position taken in the Justice Department
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-letter of April 19, 1977. Responding to the question of a Senator who noted that the Justice Department viewed " preliminary deliberations" and
" briefings"aswithinthedefinitionof" meeting,"Bergrepijed:
Senator, I am aware of the Department of Justice letter.
In fact, in fairness to all concerned, we have included it as an appendix in the final version of our guide, but I must say, I do disagree with it.
I think that it does not give adequate consider-ation to the lengthy and the tortuous legislative history that went l
into formulating the definition of meeting.
The term " meeting" is defined as " deliberations" of the required number of agency members, "where such deliberations determine or result in the joint conduct or disposition of official agency business." And practically every word was wrestled over in the course of the legislative history.
The proposition which I think is the alternative proposition, alternative to our definition, is the proposition that any discus-sion of agency business by a quorum is a meeting.
If that is what was meant, there was a lot easier way to say it. But, in fact, the term " deliberations" is used, and in the legislative history given some weight. The term " joint conduct" is used and given some weight. The terminology, " determine or result in," was substituted in conference for the term " concern," and the legislative history indicates that all these word choices were made in attempts to narrow somewhat the concept of " meeting," with the idea, as I understand it, of focusing in on the exchanges which lead to the agency decisions, which are primarily directed to the agency decisions and part of the decisionmaking process.
It seems to me, therefore, that it is clear that there was some There is this attempt to exclude very preliminary] exchanges.which a previous witness passage in the Senate report [p. 19 referred to -- concededly referring to discussions between two members -- which lends credit to the view that preliminary discus-sions are not within the meaning of the definition of meeting.
Oversight of the Government in the Sunshine Act, Public Law 94-409, Hearings before the Subcomittee on Federal Spending Practices and Open Government of the Committee on Governmental Affairs, United States Senate, 95th Cong.,1st and 2nd Sess., at 204-205.
The Supreme Court's decision in FCC v. ITT World Communications adopted the reasoning and much of the language of the Interpretive Guide.
It resolved definitively, in favor of the Interpretive Guide and its co-authors,
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the question of whether a broad or a limited reading of " meeting" had been intended by the Congress.
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Thus the Commission believes that it was in full compliance with the Sunshine Act, as interpreted by the Supreme Court, when it determined that preliminary discussions and informational briefings need not as a matter of i
law be considered " meetings" within the meaning of the Sunshine Act, so long as those deliberations did not effectively predetermine agency actions.
(As
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will be discussed below, however, the Commission, in light of the comments l
received, has decided as a matter of policy that briefings on safety issues will continue to be treated as " meetings.")
With respect to those commenters who criticized the language used by the Commission as excessively vague and indefinite, the answer is that the 4
Commission's language, taken from the Supreme Court opinion, is no more vague i
and indefinite than was the Supreme Court's.
Rather, the language reflects the fact that, as the Interpretive Guide cogently explained in the passages l
1 quoted above, deciding in advance whether a given deliberation is likely to predetermine Commission action is not a task that lends itself to mechanistic, " bright-line'! distinctions.
It implies a responsibility to use sensitivity, good judgment, and candor in deciding whether a particular discussion is likely to fall inside or outside the reach of the Sunshine Act; then, if the decision is to conduct the discussion in a non-Sunshine Act i
context, it requires conscientiousness to ensure that the discussion stays l
within appropriate bounds.
Some commenters took the position that all Commission discussions --
including non-Sunshine Act discussions -- should be transcribed, because only a transcript would make it possible to check whether a non-Sunshine Act 4
.,,-- --,..-_, ---.--.-- - - - - -..,. -.-...--... -., -.---, _ --- -..,- ~,,.-----,.
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discussion had strayed into a prohibited area.
To require transcripts of every non-Sunshine Act discussion among Commissioners would have the effect of preventing the informality that Congress intended to be possible in 4
discussions among agency members, so long as those discussions are prelimi-nary and do not have the effect of predetermining agency action.
A number of commenters asserted that the NRC's May 21, 1985 rule change was in violation of the Administrative Procedure Act because the rule was made effective on an interim basis without prior public comment. As a matter of law, this position is incorrect, according to the Interpretive Guide, which nevertheless saw policy reasons for going beyond the requirements of law:
The rulemaking procedures prescribed by subsection (g) apply in our view only to the initial promulgation of. rules and not to subsequent amendments. This conclusion is consistent with a lit-eral reading of the language of the subsection and is supported by practical considerations.
It cannot be assumed that the consulta-tion provision ~and a rigid requirement for a thirty-day period for notice and comment were intended to apply to every amendment, c
however insignificant, of an open meeting regulation.
Since amendments to these regulations are not governed by subsection (g),
the only statutory authority which might apply to the amendment process, absent special provision in the agency's organic legisla-tion, is the Administrative Procedure Act, 5 U.S.C. 9553.
- However, because these regulations are " rules of agency organization, procedure, or practice" within section 553(b)LA), the APA does not require the agencies to follow notice-and-comment procedures in amending them. Nevertheless, agencies should bear in mind that the Sunshine Act assumes a broad public interest in the openness of agency decisionmaking processes and in how the requirements of section 552b are implemented.
Consequently, we believe that agencies should comply voluntarily with the procedures for notice and comment set forth in section 553(b) and (c), except where the agency finds, pursuant to section 553(b)(B), that notice and public procedure are " impracticable, unnecessary, or contrary to the public interest."
(Footnote omitted, emphasis added.)
Interpretive Guide at 82.
In the present case, a majority of Commissioners, believing that the May 21, 1985 rule change served the public interest, believed that it would I
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likewise serve the public interest to make the rule effective on an interim iasis during the period allotted for public coasnent.
The Commission had not foreseen that the decision to make the rule effective immediately wculd be taken by some as indicative of a lack of concern for the views of the puM *e, rather than as an expression of a desire to make a useful rule effective as soon as possible. The Commission therefore decided, after the issuance of j
the May 21, 1985 rule, not to hold any non-Sunshine Act discussions of a quorum of Commissioners pending further action by the Ccmmission.
Nevertheless, as a strictly legal matter there was no infirmity in the Commission's decision to make the rule effective without prior public comment.
To sum up, the Commission believes that as a legal matter, its amplification of the definition of " meeting" in its Sunshine Act regulations is fully within the law, as enacted by the Congress, interpreted by the Interpretive Guide, and exclained definitively by a unanimous United States Supreme Court.
It should be pointed out that the Commission, in so doing, is breaking no new legal ground.
It is not unique among the Federal agencies.
Rather, it is adopting an interpretation.of the law that has been applied consistently, with full knowledge of the Congress, by such other agencies as theFederalDepositInsuranceCorporation(12CFR5311.1),andtheFederal Home Loan Bank Board (12 CFR 9505.b.1), since 1977.1 IThe 1977 letter from Assistant Attorney General Babcock noted that "several agencies" defined the term " meeting" as excluding certain types of deliberations, such as briefing sessions. At Sunshine Act oversight hearings held in 1977, the FDIC and the Federal Home Loan Bank Board came under criticism from one Senator for adopting that view of the definition of
" meeting," which followed the lead of the Interpretive Guide.
(Apreliminary
[ Footnote Continued]
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III. Policy Considerations l
In the previous section of this Notice, the Commission explained its l
determination that the decision to alter the definition of " meeting" to conform to the guidance provided by the Supreme Court in FCC v. ITT World l
Communications was supportable as a matter of law.
In this section, the Commission explains the policy considerations that have led it to conclude, first, that the decision to change its rules to permit informal preifminary discussions in a non-Sunshine Act context is sound and beneficial to the pubile, and second, that as a matter of discretion, briefings on issues concerning nuclear safety should be treated as " meetings" for Sunshine Act purposes, as under the 1977 rule.
l The effects of the Sunshine Act have been evaluated by the f
AdministrativeConferenceoftheUnitedStates,whichundersubsection(g)of l
the Sunshine Act is assigned special responsibilities for the interpretation and implementation of the Act. On June 28, 1985, the Administrative Conference adopted Reccmmendation 84-3, " Improvements in the Administration
[
of the Government in the Sunshine Act." That recommendation included the blunt observation that "one of the clearest and most significant results of l
the Government in the Sunshine Act is to diminish the collegial character of the agency decision making process." Federal Administrative Procedure l
Sourcebook (1985) at 667.
l l
[FootnoteContinued]
version of the Interpretive Guide was distributed in May, 1977.) Though that Senator criticized both the agencies involved and the Interpretive Guide, i
Congress took no steps to impose a different interpretation of the law on the l
agencies or the Administrative Conference.
See Oversight Hearings at 66-67; 77; 79-81; 228; 232.
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The ACUS recommendation continued:
The open meeting requirement has generated reluctance to discuss certain important matters; and discussions, when they occur, may not contribute to achieving a consensus position.
In some agencies the pattern of decision making has shifted from collegial exchanges to one-on-one encounters, transmission of views through staff, and exchanges of memoranda or notation procedure.
The inhibition of collegial exchanges, in turn, impedes the members in the collective exercise of their responsibilities, and tends to weaken the role of the collegium vis-a-vis that of the staff and the agency chairman.
The Administrative Conference recomrrendation therefore concluded:
Under the Government in the Sunshine Act the degree of collegiality in the multi-member agencies has diminished.
Congress should consider whether the present restrictions on closing agency meet-ings are advisable, and, if not, how they might best be revised without undercutting the basic principle of the Act that "the public is entitled to the fullest practicable information regarding the decision making processes of the Federal Government."
If a new balance is to be struck between the values of collegiality and openness, the Administrative Conference suggests that agency members be permitted some opportunity to discuss the broad outlines of agency policies and priorities (including enforcement priori-ties) in closed meetings, when the discussions are preliminary in nature or pertain to matters, such as budget or legislative propos-als, which are to be considered in a public forum prior to final action.
The Commission believes that the Administrative Conference was correct in concluding that the Sunshine Act has had a deleterious effect on the collegiality of multi-member agencies.
The Commission believes that the ability of Comissioners to confer and exchange information and ideas in a collegial manner is the very reason for creating administrative agencies in the first place; to impair seriously the collegiality of an administrative agency is thus to impair its ability to perform the responsibilities to the public with which Congress entrusted it.
In this regard, the Commission notes the comments of William E. Murane, Chairman of the Administrative Law
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Section of the American Bar Association, who comended the Administrative Conference for its " thoughtful analysis" of the Sunshine Act's effects on agency collegiality, and coannented that the Act has " deprived both the agencies and the public which they serve of the benefit of true collegial decision meking." 37 Ad.L.Rev. vi (Fall 1985).
The Ccmission agrees, moreover, with the Interpretive Guide that "the practical need for exempting casual and tentative discussions was well set forth by Prof. Jerre Williams, testifying on behalf of the American Bar Association."
Interpretive Guide at 8, fn. 14 As noted above, in the hearings that preceded passage of the Sunshine Act, Professor Williams (now Judge Williams of the Fifth Circuit) stressed the value of " brainstorming" sessions as a source of "new and creative and important ideas." The Comission believes that the ABA was correct in taking the position that "the open meetings requirement does not apply until the brainstorming gets to the point that ideas need to be adequately evaluated as a viable alterna,tive which ought to be seriously considered."
!_d,.
Contrary to the views of those commenters who asserted that a change in Sunshine Act rules could be justified only upon a demonstration that the change would increase nuclear safety in some specific and tangible way, the Comission thinks it sufficient if the rule change results in an improvement in the way that the agency conducts its business.
Such improvements serve to benefit generally all aspects of the Comission's regulatory program, of which nuclear safety is the foremost element.
From the standpoint of policy, the Comission believes that conforming its definition of " meeting" to the standard articulated by the Supreme Court in its unanimous ITT decision has two principal benefits:
first, it permits
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preliminary discussions of agency business on a casual, informal basis, as the Congress intended; second, it allows the Commissioners to have " brain-storming" sessions out of which may evolve ideas for subsequent consideration in the context of formal agency decisionmaking.
The Commission believes that these types of discussions serve the cause of good government, and further the Comission's mission to the public.
Far from representing any disregard for the public interest, they reflect the Comissioners' intent to serve the public interest in the manner Congress intended when it crafted, through a series of changes in the proposed statutory language, the Act's definition of " meeting."
The Comission's May 21, 1985 notice stated that one of the types of discussions which the new rule would authorize is a briefing on a safety issue comon to a number of plants.
The Comission, having considered the coments from the public, has decided to modify that portion of the rule, to' provide that briefings on nuclear power plant safety issues will at all times be considered " meetings" within the meaning of the Sunshine Act if a quorum of Commissioners is present.
Though the intent of the earlier rule was to pemit Comissioners to educate themselves about generic issues in an infor-mal context, many comenters were concerned that such briefings might be a way to conceal from the public information reflecting adversely on the safety of nuclear power plants. Balancing the Comission's interest in obtaining infonnation in an infomal, collegial setting against the public interest in up-to-date factual information on nuclear safety, the Comission has concluded that the scale tips in favor of treating such briefings as
" meetings." Such meetings would be closable under the Sunshine Act only if one of the Act's ten exemptions apply; in practice, the NRC has rarely if
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22 ever closed a staff briefing on a technical issue of nuclear power plant safety.
The Commission further wishes to make clear that the rule is not intended to pennit a quorum of Commissioners to engage in non-Sunshine Act discussions of the licensing of any specific plant, whether in a formal adjudicatory context or otherwise.
Such discussions will only be held in Sunshine Act " meetings."
In our view, whenever Commissioners hold any discussion as particularized as is the discussion of whether a specific plant should receive a license, or of how a particular nuclear plant adjudication should be decided, the Sunshine Act's " meeting" requipements come into play.
A final word is in order on procedures for non-Sunshine Act discussions.
The Sunshine Act lays down a variety of procedural requirements for discus-sions which fall within the definition of " meeting" under the Act.
It establishes no procedural requirements for discussions which are not
" meetings" for Sunshine Act purposes. Clearly, if Congress had believed that special procedures were necessary for non-Sunshine Act discussions in order to monitor agency compliance with the Act, it could have mandated such procedures.
The fact that it did not do so suggests that Congress intended to preserve agencies' capability to hold informal discussions, free of any particular procedural strictures.
The question arises whether the Commission should, notwithstanding the lack of a requirement that it do so, institute procedures to govern such discussions. The Commission has concluded that the establishment of formal procedures, such as the maintenance of a transcript, would undercut the very informality which the rule sought to make possible in Comission discussions.
In such discussions, the Comission may wish to have a lawyer present, for advice on Sunshine Act compliance or any other issues; where no issues
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requiring legal advice are itkuly to arise, however, the Comission should not be required to have a lawyer present. Likewise, the Comission may wish to have a member of the Secretary's office present at some discussions, to take notes, or to call a member of the Secretary's office in near the close of a meeting to record a sumary of what transpired, but for some brainstorm-ing sessions or other types of discussions, it may wish to restrict the meeting to Comissioners only.
As a matter of policy, all non-Sunshine Act discussions by a quorum of Commissioners (that is, three or more Comissioners, except in the unlikely event that there is more than one vacancy on the Comission at the same time) will be for the participation of all Comissioners wishing to, attend. All Comissicners will be notified of each such non-Sunshine Act discussion; efforts will be made to accomodate the schedules of individual Comissicners in setting the times for such discussions. A record will be maintained of the date, time, and subject matter of each such non-Sunshine Act discussion.
Lastly, with regard to that portion of the May 21 rule under which the Comission stated its intent to review transcripts of closed Comission meetings only upon request, there was little public comment.
There appears to have been general recognition that it is a waste of pubite resources to review transcripts which ao one has expressed any interest in reading.
This portion of the rule therefore is retained without change.
5 9.101 Definitions i9.101(c) " Meeting" means the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct of disposition of official Comission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency.
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Notwithstanding any other provision of this definition, briefings on nuclear power plant safety issues constitute " meetings" within this definition.
Deliberations required or pennitted by il 9.105, j
9.106, or 9.108(c) do not constitute " meetings" within this l
definition.
i 6 9.108 Certification, transcripts, recordings and minutes l
(c)
In the case of any meeting closed pursuant to 6 9.104, the Secretary of the Commission, upon the advice of the General l
Counsel and after consultation with the Connission, shall determine l
which, if any, portions of the electronic recording, transcript or minutes and which, if any, items of information withheld pursuant to 6 9.105(c) contain information which should be withheld pursuant i
to 6 9.104, in the event that a request for the recording, tran-script, or minutes is received within the period during which the recording, transcript, or minutes must be retained, under subsec-tion (b) of this section.
ENVIRONMENTAL IMPACT - CATEGORICAL EXCLUSION The preposed amendments would amend the Commission's rules relating to the Sunshine Act codified in 10 CFR Part 9 end therefore meet the eligibility criteria for the categorical exclusion set forth in 10 CFR I 51.22(c){l).
Accordingly, pursuant to 10 CFR 1 Sl.22(b), no environmental impact statement l
l or environmental assessment need be prepared in connection with the issuance of the proposed amendments.
l PAPERWORK REDUCTION ACT STATEMENT The proposed rule is not subject to the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. il 3501, g seq.) because it does not i
contain any information collection requirements within the meaning of 93502(4) of that Act.
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e REGULATORY FLEXIBILITY ACT CERTTFICATION As required by the Regulatory Flexibility Act of 1980, S U.S.C. 605(b),
the Commission certifies that this rule, if adopted, will not have a signifi-cant economic impact upon a substantial number of small entities and that therefore a regulatory flexibility analysis need not be prepared.
Procedural in nature, the proposed amendments provide a mechanism for assuring closer conformity of NRC regulations with the Sunshine Act.
The proposed rule does not impose any obligations on entities regulated by the NRC, including any regulated entities that may fall within the definition of "small entities,"
as set forth in section 601(3) of the Regulatory Flexibility Act, or within the definition of "small business" as found in Section 3 of the Small Business Act, 15 U.S.C. 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 NRC, the proposed rule does not fall within the purview of the Regulatory Flexibility Act.
Dated at Washington, D.C.
this day of
, 1985.
For the U.S. Nuclear Regulatory Commission Samuel J. Chilk Secretary of the Commission
/ * ** **'*,g UNITED STATES NUCLEAR REGULATORY COMMISSION l
f' t
K~..j)
WAStdNGTON, D. C. 20555 i
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[b 1
OFFICE OF THE SECRETARY i
f NOTE FOR:
Document Control Desk
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FROM:
Correspondence & Records Branch i
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The enclosed document (s) are to be entered into the OCS.
An advanced has been sent to the Public Document Room.
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