ML20137J906
| ML20137J906 | |
| Person / Time | |
|---|---|
| Issue date: | 01/17/1986 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8601230288 | |
| Download: ML20137J906 (73) | |
Text
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0MQlt4AL UNITED STATES OF AMERICA I.-
NUCLEAR REGULATORY COMMISSION In the matter of:
COMMISSION MEETING Discussion of Revisions to NRC Sunshine Act Regulations (Public Meeting)
Docket No.
Location: Washington, D. C.
Date: Fridav, January 17, 198g Pages:
1 - 69 8601230288 860117 PDR 10CFR PT9.7 PDR ANN RILEY & ASSOCIATES Court Reporters k
1625 I St., N.W.
Suite 921 Washington, D.C. 20006 (202) 293-3950
O e 1
D I SCLA I M ER 2
3 4
5 6
This is an unofficial transcript of a meeting of the 7
United States Nuclear Regulatory Commission held on 3
1/17/86 in the Commission's office at 1717 H Street, 9
N.W.,
Washington, D.C.
The meeting was open to public 10 attendance and observation.
This transcript has not been 11 reviewed, corrected, or edited, and it may contain 1
12 inaccuracies.
13 The transcript is intended solely for general 14 informational purposes.
As provided by 10 CFR 9.105, it is 15 not part of the formal or informal record of decision of the l
16 matters discussed.
Expressions of cpinion in this transcript i
17 do not necessarily reflect final determination or beliefs.
No 18 pleading or other paper may be filed with the Commission in 19 any proceeding as the result of or addressed to any stafement 20 or argument contained herein, except as the Commission may 21 authortre.
22 I
23 24 25 1
e
' o 1
1 UNITED STATES OF AMERICA 2
NUCLEAR HEGULATORY COMMISSION 3
4 DISCUSSION OF REVISIONS TO NRC 5
SUNSHINE ACT REGULATIONS 6
7 PUBLIC MEETING 8
9 Nuclear Regulatory Commission 10 Moom 1130 11 1717 "H"
- Street, N.W.
12 Washington, D.C.
13 14 Friday, January 17, 1986 15 16 The Commission met in open session, pursuant to 17 notice, at 10:15 o' clock p.m.,
NUNZIO J.
PALLADINO, Chairman 18 of the Commission, presiding.
19 COMMISSIONERS PRESENT:
20 NUNZIO J.
PALLADINO, Chairman of the Commission 21 THOMAS M.
ROBERTS, Member of the Commission 22 JAMES X.
ASSELSTINE, Member of the Commission l
23 FREDERICK M.
BERNTHAL, Member of the Commission 24 LANDO W.
- ZECH, JR.,
Member of the Commission 25
T a
2 1
STAFF AND PHESENTERS SEATED AT COMMISSION TABLE:
2 3.
CHILK 3
H.
PLAINE 4
P.
CHANE 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
3 1
P M OC E ED I NG S 2
CHAIRMAN PALLADINO:
Good morning, ladies and 3
gentlemen.
The purpose of this morning's meeting is to 4
discuss the Commission *s draft final rule on the subject of 5
non-Sunshine Act meetings.
6 By way of background, on May 21, 1985 the NHC issued 7
new rules under the government in the Sunshine Act which among 8
other things conformed the definition of meetings with 9
guidance provided in a Supreme Court decision.
10 The Commission's new rules were made immediately 11 effective together with a request for public comment.
A 12 number of comments were received and the draft final rule 13 before us reflects consideration of thoce comments.
14 My hope is that today's meeting among other things 15 will help to clarity the Commission's objective underlying 16 this draft final rule.
17 I would like to quote from page 22 of the drait 18 final rule in this regard and I quote, "The Commission further 19 wishes to make clear that the rule is not intended to permit a 20 quorum of Commissioners to engage in non-Sunshine Act 21 discussions of the licensing of any specific plant, whether in 22 a formal adjudicatory context or otherwise.
Such discussions 23 will only be held in Sunshine Act ' meetings.'
In our view, 24 whenever Commissioners hold any discussion as particularized 25 as is the discussion of whether a specific plant should J
m 4
1 receive a license, or of how a particular nuclear plant 2
adjudication should be decided, the Sunshine Act's ' meeting' 3
requirements come into play."
End of quote.
4 I also believe that today's discussion can cover 5
what the Commission believes it will accomplish in the dratt e
final rule.
In this regard I suggest we spend more time 7
discussing examples of matters or topics that might be dealt B
with in non-Sunshine Act discussion under the rule.
9 I believe that Commissioners have the questions that 10 1 circulated before the meeting as issues to be addressed.
In 11 briet they were, one, what types of matters can we consider 12 under the rule; two, what is the status of the activities of 13 the American Bar Association to review Sunshine Act issues and 14 could the Commission benefit by postponing final action on the 15 rule until the ABA has completed its report; and three, what 16 procedures would govern the conduct of non-Sunshine Act 17 discussions.
18 With regard to this last item, the Commission made 19 several points in its response of June 6,
1985 to Congressman 20 Dingell's letter dated June 3,
1985 and co-signed by 21 Congressmen Markey, Broyhill and Moorhead.
Let me quote two 22 paragraphs from that letter.
23 "Your letter asked that we provide the committee 24 with the Commission's written procedures for implementing the 25 new rule.
The Commission has not yet finalized any
3 1
implementing procedures.
No non-Sunshine Act gatherings have 2
been held.
Our staff is developing procedures for Commission 3
review and we will be pleased to provide them to you as soon 4
as they have been agreed upon."
5 Continuing, "The Commission will maintain a record 6
of all informal gatherings not subject to Sunshine Act 7
requirements and will keep the Congress and the public 8
informed on a monthly basis of the nature of such gatherings 9
as you requested.
Consistent with that policy, the date, 10 participants and subject of such gathering including a list of 11 any documents that were the subject of the discussion will be 12 recorded and made available to the oversight committees of the 13 Congress.
A monthly listing will also be made available to 14 the public."
That is the end of the quote from that letter.
15 We should discuss why some of these thoughts should 16 not be included in the policy.
I would also like to discuss 17 the desirability of going out for further comments before 18 making this draft rule final 19 I would also note that I do not intend to ask for a 20 vote of the draft final rule at today's meeting but nothing 21 would preclude it.
I would like to now turn the meeting over 22 to representatives of the Office of General Counsel to lead 23 our discussions.
24 First, let me ask it other Commissioners have 25 opening remarks.
6 1
COMMISSIONER ASSELSTINE:
I might just make a briet 2
comment, Joe.
1 think a lot of the things that you have 3
highlighted are useful things for us to discuss this morning.
4 I would agree with you that this proposal is an improvement 5
over the final rule that the Commission adopted on an interim 6
basis in at least it is clear that adjudications, any aspect 7
of licensing a particular plant and the briefings on safety 8
matters would be considered meetings in all cases.
9 But I think that you are right, that the heart of 10 the issue really comes down to a couple of questions and that 11 is, what is the real benefit that we are going to gain from 12 this?
What are the types of issues and items that the 13 Commission wants this authority in order to be able to do its 14 job more ettectively and given the restrictions on the very 15 preliminary nature of any such discussion, whether there is 16 really going to be any tangible benefit from using this 17 suthority?
18 I also have a question of the procedures that should 19 apply and the safeguards to prevent abuse and provide some 20 remedy for problems.
Those are some of the areas that I would 21 agree with you we should discuss.
23 CHAIRMAN PALLADINO:
All right.
Any other comments?
23 COMMISSIONER ZECH:
Yes.
I would like to make a 24 comment, I guess.
25 First of all, of course, the purpose of our endeavor
7 I
1 is to try to turn this collegial body into a collegial body 2
which it is not in my judgment now except in name only.
We 3
act individually.
We don't really " college."
The Sunshine 4
Act is law.
We should go by the law.
I believe in upholding 5
the law and certainly the Sunshine Act.
6 However, the purpose of what we are trying to do is 7
to better serve the public and I believe that our 8
interpretation of the Sunshine Act, the NRC interpretation, is 9
what we are really talking about and our interpretation at 10 least in my judgment is excessively rigid.
11 We constrain ourselves I believe in my judgment much 12 more fully than Congress intended but the main purpose is 13 simply to try to better serve the public and turn this 14 collegial body into something that can be more productive and 15 more useful to the citizens of our country.
16 Thank you, Mr. Chairman.
11 CHAIRMAN PALLADINO:
All right.
Thank you.
Any 18 other comments?
19 CNo response.3 20 CHAIRMAN PALLADINO:
It not, then let me turn the 21 meeting over to General Counsel 22 MR. PLAINE:
Thank you, Mr.
Chairman.
I have a few 23 opening remarks that I think will shed a little perspective on 24 where we are at.
25 In an ultimate sense, this meeting had its origin in
c g
1 a Supreme Court decision on April 30, 1984 by a unanimous 2
court.
That case, Federal Communications Commission against 3
ITT World Communications, was the first time that the Court 4
had offered its interpretation of the government in the 5
Sunshine Act.
6 In the decision the Court provided its definition of 7
the word " meeting" as used in the Sunshine Act.
Several weeks 8
later when I sent copies of the decision to the Commissioners 9
along with a briet memorandum, we advised that our preliminary 10 review of the decision suggested revision of the NRC's 11 Sunshine Act regulations might be appropriate to conform 12 to the Court's guidance.
13 We said at the time that we would be forwarding a 14 turther memorandum to the Commission after studying the 15 decision in greater detail.
Our review of the decision and 16 its application to the NHC's regulations turned up some 17 interesting facts.
18 One was that the NHC's Sunshine Act regulations 19 adopted in 1977 went considerably further than the law itselt 20 required in restricting the Commissioner's ability to have 21 informal discussions of agency business.
22 Another was that our regulations appeared to be more 23 restrictive than those perhaps of any other agency of the 24 government.
To the extent that there had been doubt back in 25 1977 as to the proper interpretation of the Sunshine Act, the
9 1
Supreme Court *s decision had resolved that doubt.
2 The paper which I forwarded to the Commission in 3
February of 1985 therefore recommended that the Commission 4
amend its Sunshine Act rules.
The rule change was not 5
designed to place the Commission under fewer restrictions than 6
applied to other agencies.
?
Rather, it was designed to correct a situation under 8
which the Commission was under more restrictions than applied 9
to other agencies.
10 To assure that the Commission did not overstep the 11 guidelines established by the Supreme Court, we proposed 12 incorporating into the Commission's rule the language of the 13 Supreme Court decision.
14 The Commission issued the rule on May 21, 1985 as an 13 interim rule with a period for public comment.
Thirty-four 16 persons or groups submitted comments during this interim 17 period for submission and study of the comments, The 18 Commission has held no non-Sunshine Act discussions under the 19 new definition.
20 We have given careful consideration to the comments 21 which were filed and have accepted a number of their 22 criticisms and suggestions.
23 For example, we agree with the suggestion of a 24 number of commentors that briefings on issues of nuclear 25 safety should be treated as " meetings" for Sunshine Act
10 1
purposes regardless of the law's requirements because of a 2
strong public interest in knowing about nuclear safety issues.
3 Several commentors pointed out that the May 21 rule 4
was ambiguous on whether adjudicatory matters would be held in 5
non-Sunshine Act discussions.
That is a valid criticism and 6
we made crystal clear that the adjudicatory deliberations are 7
" meetings" for Sunshine Act purposes as a matter of law under 8
either the old definition or the new one.
9 We continue to believe that informal background 10 discussions of a brainstorming nature do not tall within the 11 reach of the Sunshine Act, nor do informal background 12 discussions where no particularized proposal is involved.
13 We think that is clear from the legislative history 14 as we have set torth in the paper and from the unanimous 15 Supreme Court decision which fortifies our view.
16 That legal issue aside, there remains as we see it 17 purely the policy issue of whether such a rule change woulo be 18 beneficial In this regard, we think it is very significant 19 that the administrative conference of the United States, a 20 body which has by statute a special role in the interpretation 21 and implementation of the Sunshine Act, has gone on role as 22 saying that the Sunshine Act has diminished the collegiality 23 of administrative agencies.
24 It has recommended that Congress consider 25 re-striking the balance.shich the Sunshine Act establishes
11 1
between openness and an agency *s ability to function and of 2
course, the administrative conference of the United States is 3
talking about the agencies which unlike NEC use the latitude 4
now allowed them by the statute.
5 Moreover, the administrative law section of the 6
American Bar Association has undertaken to review the Sunshine
?
Act and its implementation by federal agencies to see whether 8
legislative changes should be recommended.
9 The chairman of the administrative law section of 10 the American Bar Association, Bill Mursne of Denver, a good 11 lawyer, a good friend, recently praised the thoughtful 1
12 analysis by the administrative conference and observed that 13 both the public and' the agencies were deprived of the benefit 14 of c o l l e g i'a l decision making through the diminution of 15 collegiality which has been one of the effects of the Sunshine 16 Act.
17 In that context, we will be seeing that what the NHC 18 rule seeks to do, that is to take advantage of the latitude 19 offered by the existing law, is modest indeed.
It is not an 20 attack on the Sunshine Act nor on public participation nor on 21 accountability.
Rather, it is a belated ettort to bring our 22 regulations into line with what other agencies have been doing 23 for some nine years and with the original intent of the 24 Congress.
25 As such, it is as the chairman of the administrative
12 1
law section pointed out, a very modest rule.
It still places 2
greater restrictions on the NRC than the law requires and in 3
recognition of the great public interest and issues 4
surrounding nuclear power.
5 With that briet introduction, Mr. Chairman, I would o
like to ask Mr. Crane who has done the yeoman work on the 7
paper to discuss the paper in greater detail if you are ready 8
for that.
9 CHAIRMAN PALLADINO:
Pine.
Thank you.
Do we have 10 any idea when the ABA, the section of administrative law of 11 the ABA, when they might be completing their work?
12 MR. PLAINE:
We know what they are doing.
They have 13 a committee which is aptly named the Task Force or Steering 14 Committee Task Force on Government in the Sunshine.
That 15 group is going to be meeting very soon to come up with 16 recommendations for its governing body, the Council of the 17 Administrative Law Section, which will hold a meeting in the 18 spring.
19 They should at that point deal with the subject 20 matter as a section of the American Bar and they may very 21 possibly want to pass their work on to the governing body of 22 the whole ABA, the House of Delegates, which meets in July.
23 But I would think we might know by spring what the 24 administrative law section which has the real grip on this 1
25 thing feels about it.
l i
13 1
CHAIRMAN PALLADINO:
I had had some feedback and I 2
am not sure where I got it that toward the end of April, the 3
committee would have something to recommend to the full body.
4 MR. CHANE:
Yes, Mr. Chairman.
They have an interim S
report scheduled for the 8th and 9th of February and they are 6
planning on making a final report to the administrative law
?
section at their meeting on April 26th and 27th.
8 As we plan to discuss a little later on, they have 9
quite a specific agenda to look at including the Supreme 10 Court *s decision, the NHC's rule, how one tells a non-Sunshine 11 Act meeting from a Sunshine Act meeting, how the agencies are 12 interpreting the Act now, how they feel that they need greater 13 1.a t i t u d e and so forth.
14 COMMISSIONER ASSELSTINE:
Peter, you and I attended 15 a meeting of the administrative law section a few months ago 16 where this matter was discussed and I guess I would agree, 17 Herzel, with your characterization that there were many people 18 there that were supportive of the general proposition.
19 But there did seem to be a sense among the members 20 of the administrative law section that there was a potential 21 problem here in how you apply this standard.
22 In fact, I remember Dick Berg who is the general 23 counsel of the administrative conference and who is the 24 acknowledged author of this standard that the Supreme Court 25 adopted, he was basically asked at the meeting, " Explain what
14 1
this means."
2 He got up and said, "Well, I can't do any better 3
than what is there.
That is about it.
I can't really explain 4
what this standard means any further than this broad 5
language."
6 I got the sense that there was a view among many 7
members and indeed the proposal was put forward well, perhaps 8
what we can try to do is see it there is any way to establish 9
some kind of a line, put some kinds of bounds and that there 10 was a recognition that there was a significant potential for 11 abuse with this standard given the lack of clarity and lack of 12 precision in defining that guideline.
13 Do you agree that is an accurate reflection of the 14 discussion that took place?
15 MR.
CHANE:
I think that is correct.
I think there 16 is an understanding that it is as we said in the paper a 17 thorny issue.
It doesn't lend itself to the establishment of 18 bright lines.
19 The ABA recently sent a memorandum to interested 20 general counsels which we circulated to your offices yesterday 21 in which they provided the text of the Supreme Court opinion 22 and they provided the text of the NHC's rule and they pointed 23 out that neither one makes for a clear bright line and asked 24 the participants in the task force to think about what 25 definition or vTether greater definition was possible and what
15 1
sort of definition might be in order.
2 COMMISSIONER ASSELSTINE:
Yes.
3 MR. CHANE:
To jump ahead again, you asked what 4
benefit there might be in waiting to hear from the ABA, I 5
think that probably is the most ditticult of the issues 6
presented and that is something on which we might get either 7
clarification from them or a statement that no clarification B
is possible and this is something to be decided in good faith 9
by conscientious public servants.
10 It I may briefly, as briefly as I can, discuss --
11 CHAIRMAN PALLADINO:
Don't you think the ABA might 12 shed some light on some of the benefits and costs of various 13 approaches?
14 MM. CRANE:
They might indeed.
I think our position 15 is that irrespective of the ABA, you have enough before you 16 today to make a decision up or down on this rule.
That is not 17 to say that you might not gain something by waiting to hear 18 what the ABA has to say.
These are some of the best minds 19 around in administrative law and the Sunshine Act and they 20 might have something beneticial to add to your deliberations.
21 They will, in fact, be looking at the very rule that 22 was put out on May 21st.
23 Now that this SECY paper is a public document, they 24 have copies of that also to look at and they may well have 25 something to add.
But is really a policy decision for you.
10 1
As a legal matter, there is nothing to stop you from acting at 2
any time.
3 COMMISSIONER BERNTHAL:
I would just suggest that 4
the area that the ABA might be helpful to us in would be that 5
of procedures.
6 One of the things I would like to ask Peter to do 7
since there has been so much loose talk and so little actual B
reading of what the NRC's regulation is and comparing that 9
regulation with the regulations in the same area of other 10 government agencies.
11 I would like Peter to do that for the record here so 12 that our friends in the media and elsewhere understand that 13 what we are doing is bringing this agency into line with the 14 more conservative of the other Sunshine Act regulations and 15 Feter, I would like you to do that.
16 Back to the point on the ABA, Joe, I see no reason 17 not to seek the advice of the ABA on procedures.
As far as 18 the rule itself is concerned, I am prepared to vote'at any 19 time on that because our rule simply reflects the language 20 virtually verbatim I guess of the Supreme Court decision in 21 this matter and I am certainly confident that this rule 22 conforms with the intent ci the law and the interpretation of 23 the Supreme Court.
24 I think we may learn something about the application 25 of the rule from the ABA and seekiah the advice of these
17 1
individuals who are obviously expert in these matters where 2
none of us are might be worthwhile.
3 If I can ask Peter for the record really, I would 4
like you to if you will and I don *t know how well prepared you 5
are to do this and maybe I should have warned you in advance, 6
but I think it might be worthwhile to simply select some
?
excerpts from the regulations of other government agencies and 8
read them in the light of our own proposed rule here.
9 I guess it is more than proposed.
It is a rule that 10 has already been issued so it is clear that this agency is 11 completely in step with the directive interpretation of the 12 Supreme Court, the mandate of the Congress and the law.
13 I think the record needs to be straight on that.
14 MR. CHANE:
Very well, Commissioner.
11 1 could do 15 that in the context of putting us, flashing back to 1977, it 16 is quite related to the question of where NHC's legal 17 authority is.
18 Part of it is that the original Sunshine Act as 19 tavored by Senator Chiles would have applied the Act really to 20 any discussion of agency business and there was language at 21 one point that said any discussion by a quorum of 22 Commissioners that concerns agency business could not have 23 been broader.
24 When this got to the House, there were some voices 25 on the other side.
Pete McCloskey of California was one.
18 1
Congressman Horton was another.
McCloskey said that this is 2
unmanageable.
Agencies are not going to work.
He said that 3
if I were a Commissioner, I don't know 11 I would want the job 4
11 I had to live with that restrictive a standard.
5 What he proposed was a standard under which it was 6
only meetings in which decision-making took place.
7 At any rate, his amendment passed narrowly in the 8
House.
When it went to conference between a very broad Senate 9
bill and a more restrictive House bill, the outcome was a bit 10 ambiguous.
They melded them together into a standard that 11 said, " Deliberations would have to determine or result in the 12 Joint conduct or disposition of agency business rather than 13 merely concern such activities."
This is Representative 14 Fascell who was the House sponsor of the Sunshine Act and who 15 had favored the broad approach.
16 So this was not someone who had a vested interest in 17 describing the approach as unduly narrow.
He had favored the 18 Chiles version of the Act.
So he said, "This language is 19 intended to permit casual discussions between agency members 20 that might invoke the Bill's requirements under the less 21 formal concern standard."
22 The upshot is that you have a legislative history 23 that includes some pretty broad hortatory language about the 24 maximum teasible openness coupled with rather specific l
25 language here on the meaning of the meeting and it is one of
19 1
those compromises that present certain tensions, 2
So the law provided that the agencies should work in 3
consultation with the administrative conference in developing 4
their implementing regulations.
Most agencies and I will read 5
you instances of them simply regurgitated the statutory 6
standard and left it to the future to determine precisely'what l
7 that meant.
l 8
Now a few agencies, the Federal Deposit Insurance 9
Corporation is one of them, this is the standard approach, the 10 approach taken by the FCC for example.
The term " meeting" 11 means the deliberations among a quorum of the Commission, a 12 Board of Commissioners or a quorum of a committee of 13 Commissioners where such deliberations determine or result in 14 the joint conduct or disposition of otticial agency business 15 except that the term does not include deliberations to decide l
10 whether a meeting should be open or closed.
17 In fact, it says, in the joint conduct of 18 disposition of official agency business.
I think there was a 1
19 typo somewhere in the statute and the agencies dutifully 20 copied this typo into their regulations.
21
[ Laughter.]
I 22 COMMISSIONER BERNTHAL:
So the point is though that 23 there is a substantial number of agencies that simply take the 24 legislative language directly and have incorporated it into 25 their regulations.
20 1
1 MR. CRANE:
That's right.
2 COMMISSIONER BERNTHAL:
Then I believe some i
3 agencies, however, have attempted to reflect the legislative 4
history, the language of the Congress in conference and on 5
either side, if you could summarize some of those.
6 MR. CRANE:
That*s right.
Federal Home Loan Bank 7
Board says in its regulations at 12 CFR 50$[b][23 that a 8
" meeting" does not include among other things informal 9
background discussions among board members and staff which 10 clarity issues and expose varying views.
11 If that is offensive to the Congressional intent, it 12 has been out there on the books for --
13 COMMISSIONER BERNTHAL:
Nine years.
14 MR. CRANE:
-- nine years.
The FDIC, the Federal 1
15 Deposit Insurance Corporation, 12 CFR 311, " Meetings do not 16 include ' informal background ciscussions among board members 17 and staff which clarity issues and expose varying views.'"
18 Then unique among the agencies, there is the NRC.
19 The NRC went off in the other direction and 11 the Sunshine 20 Act creates a cage around the agencies, the NRC created a cage 21 within a cage.
22 COMMISSIONER ASSELSTINE:
Why did it do that, 23 Peter?
Why did the Commission adopt the rule?
24 COMMISSIONER BERNTHAL:
Lack of foresight.
25 MR. CRANE:
I have some surmises and I was here at
21 1
the time.
2 CHAIRMAN PALLADINO:
You say you weren't here?
3 MM. CHANE:
I was here at the time.
4 CHAIRMAN PALLADINO:
Oh, you were here.
5 MR. CRANE:
Yes.
I think for one thing there was a 6
new administration in office and the new administration had 7
let it be known that they wanted a very broad view taken of 8
the Sunshine Act.
9 They sent out a memorandum, a memorandum from 10 Harbara Babcock, the Assistant Attorney General, which urged 11 agencies to take an extremely broad view and said that the 12 Justice Department would not defend any law suits that were 13 occasioned by agencies taking a narrow view.
14 The Sunshine Act is a matter on which the agencies 15 are dependent on the Justice Department.
16 That was coupled a while later with a directive from 17 the President himself saying that he had directed the attorney 18 general not to defend suits, I think I have this correct, 19 unless it could be shown 11 a determination had been made that 20 opening of the particular meeting or release of the particular 21 transcript was not in the public interest.
22 COMMISSIONER BERNTHAL:
What year was all this?
23 MR. CHANE:
This was 19?? and 1978.
24 COMMISSIONER BERNTHAL:
So this was President Carter
- J s that we are talking about here.
22 1
MR. CHANE:
That*s right.
2 COMMISSIONER ASSELSTINE:
So the Federal Register 3
Notice when the Commission issued its regulation said that the 4
reason we are doing this is that the Justice Department has 5
told us this is what we are supposed to do and the 6
Administration has told us this is what we are supposed to do.
?
CHAIRMAN PALLADINO:
Are you asking him that?
8 COMMISSIONER ASSELSTINE:
And that is the reason we 9
are doing this.
10 CHAIRMAN PALLADINO:
Are you asking that as a 11 question?
12 COMMISSIONER ASSELSTINE:
Yes.
13 MR. CRANE:
No.
The Federal Register Notice and I 14 was speaking at this point in rather general terms but on some 15 specific issues --
16 COMMISSIONER ASSELSTINE:
I guess what I am 17 wondering is was there any contem'poraneous explanation by the 18 agency--
19 MR. CHANE:
Yes.
20 COMMISSIONER ASSELSTINE:
--as to why this was 21 being done?
22 MR. CRANE:
Yes.
There was a discussion of the 23 handling of briefings in which the Commission said so much of 24 our work revolves around our technical briefings by the 25 technical statt that as a matter of discretion even though we l
23 1
think we have the legal freedom to do otherwise, we are making 2
a policy decision to treat these as " meetings" for Sunshine 3
Act purposes.
4 The rule you have before you today essentially 5
reiterates that position.
6 COMMISSIONER ASSELSTINE:
Although the rule in 7
effect now does not.
8 MR. CRANE:
That is correct.
9 COMMISSIONER ASSELSTINE:
The interim final rule 10 overturned that aspect of the Commission's previous policy.
11 MR. CRANE:
That is correct.
12 COMMISSIONER ASSELSTINE:
That safety briefings 13 should be held in the open.
14 MR. CRANE:
That is correct.
15 COMMISSIONER ASSELSTINE:
All right.
16 COMMISSIONER BERNTHAL:
Let me just point out that 17 of all of the list of agencies that you summarized, Peter, one 18 that perhaps bears a closer analog to this agency because its 19 function and objectives and responsibilities include safety 20 matters is the National Transportation Safety Board.
21 It is worth noting or it is noteworthy, I should 22 say, to read their regulation which is considerably broader 23 than that of the NRC*s proposed new regulation.
24 It reads as follows:
"An internal session attended 25 by three or more members for which the sole purpose is to have
24 1
the staff brief the Board concerning an accident, incident or 2
safety problem is not defined as a meeting."
3 I just note that here is another agency that 4
arguably has very important safety responsibilities that for 5
years has had on the books a regulation and interpretation of 6
the Sunshine Act that goes substantially beyond what this 7
agency is proposing.
8 MR. CRANE:
That is correct.-
9 COMMISSIONER ASSELSTINE:
Fred, I will accept the 10 proposition for the moment that other agencies have done this 11 but it does appear to me as I think the OGC paper acknowledges 12 that there are three kinds of questions here.
13 One is the question of legal authority.
Is there a 14 sufficient legal basis to do what this rule would do.
The 15 second one is a policy basis.
From a policy standpoint does 16 this make sense, is there a tangible benefit to be gained from 17 it and the third is the public perception aspect of the issue.
18 It seems to me that we ought to have a better reason 19 for doing this than simply to say that other agencies have 20 done it and therefore, we think we ought to do it, too.
21 I do think that we ought to try and articulate and 22 particularly those who have been strong proponents of this 23 move, try and articulate what it is we intend to accomplish by 24 this and how we intend to use it and what kinds of subjects 25 and topics the Commission is really interested in treating in
l 25 1
these gatherings.
2 I know Commissioner Zech mentioned at the outset 3
that we don't " college" and that we ought to " college" more.
4 Well, today is an opportunity to " college" on this issue and 5
to try and identity those elements, those topics, those items 6
that members of the Commission really are interested in 7
exploring in these gatherings and what tangible benefit we 8
think can be achieved by those kinds of discussions given the 9
boundaries and restrictions that I think OGC has outlined in 10 the proposed Federal Register Notice and that the ABA and the 11 administrative conference have long recognized and that are 12 grounded in the legislative history putting aside for the 13 moment the question of whether there is an adequate legal 14 basis to do this.
15 MR.
CRANE:
Commissioner, it is certainly my hope as 16 we go through this to address just those issues and we think 17 there are some powerful things to be said.
It is not simply a 18 matter of our subjective judgments as an agency.
There are 19 judgments which have been made by the administrative 20 conference on the overall ettect of the Sunshine Act.
21 There are the views of Mr. Murane of the ABA.
But I 22 sort of think we owe it to the people who tiled comments and 23 raised questions about the legality that we do explore the 24 question of the legalities so as to satisty, either satisfy 25 their concerns or at least satisfy them that we have studied
2G 1
1 1
their concerns.
2 COMMISSIONER ASSELSTINE:
Yes.
3 COMMISSIONER BERNTHAL:
I think the long and short 4
of the legality question as I hope has been made clear and maybe Jim is right, we don't need to beat that horse to death 6
here, is that it what this agency is proposing to do is 7
illegal, then every other agency in the government or a 8
substantial number at least have been carrying on and carrying 9
forward with a regulation that is illegal for nine years.
10 It that point is understood and made clear, then we 11 can get on the point as Jim suggests of the policy matter and 12 whether it serves the interest of the public and serves the 13 interest of good government for this agency to be out of step 14 rather than in step with other governmental agencies.
15 COMMISSIONER ZECH:
If I may interject just for a 16 moment, you see the fundamental difference that Commissioner 17 Asselstine and I have is he thinks this is "colleging."
I de 18 not.
That is very fundamental 19 "Colleging" in my view is not a public meeting where 20 we are in an open session.
To me, "colleging" has quite a 21 different connotation.
22 I think that it is important that we are able to 23 speak openly, treely on interests of public safety and we 24 should meet in public for any discussion like that.
I have no 25 problem with that at all but "colleging" to me is a much more
27 1
informal way of looking at it and so I submit that this public 2
meeting is not what I would at least term "colleging."
3 CHAIRMAN PALLADINO:
May I ask you a question, 4
Peter?
When is the right time to raise questions with regard 5
to specific examples?
For example, we are now preparing 6
testimony for hearings and we are preparing questions and 7
answers by example so that we can prepare for the meeting.
8 As I understand the Sunshine Act, we can't get 9
together and discuss what is in our testimony.
We walk the 10 halls and we have assistants carrying messages back and forth, 11 but in the spirit of collegiality, it would be highly 12 desirable I believe to sit down and say, "Now, look, here is 13 the drait Aestimony.
I know you didn't like the way we said 14 that and you wanted to put this other point in" and we can 15 discuss the pros and cons of it.
16 That is something that is coming up right within the 17 next couple of weeks.
Would the new rule permit that?
18 MR. CHANE:
The new rule wouldn't really attect 19 that.
20 COMMISSIONER ASSELSTINE:
You still can't do it, 21 right?
22 CHAIRMAN PALLADINO:
You still can't do that.
23 COMMISSIONER ASSELSTINE:
If you had before you a 24 specific proposal, here is the draft testimony, and we wanted 25 to get together and say, "Well, look, we don't like this.
28 1
Here are some other options" and we go through the process of 2
screening out alternatives, narrowing down options, refining 3
and making a decision on here is what we want to say.
This 4
is our policy judgment and the testimony often involves making policy decisions on specific issues.
6 We can't do that under this proposal, can we?
?
MR. CRANE:
That is correct.
8 CHAIRMAN PALLADINO:
We don't always make policy 9
decisions in testimony.
Sometimes it is strategic ways of 10 approaching things.
I just wanted to raise it as a question 11 because I need to know where we might gain some benefit and I 12 only pick that one as one example because it is upon us.
13 MR. CHANE:
Let me give a tuller answer.
i 14 CHAIRMAN PALLADINO:
All right.
15 MR. CHANE:
That is an issue.
It is an open issue 16 as far as I am concerned.
17 CHAIRMAN PALLADINO:
All right.
18 MR. CRANE:
Whether the Commission can meet on 19 Congressional correspondence, on Congressional testimony, that 20 is a separate issue trom this rule.
'21 CHAIRMAN PALLADINO:
Some of the trustrations I see 22 the Commission facing include a number of things and I just 23 pick that one because it is imminent.
24 COMMISSIONEN ASSELSTINE:
But if you look at pages 25 11 and 12 of the final Federal Register Notice the proposal is w
29 1
to endorse this language.
2 Here is one statement.
"Certainly where 3
deliberation focused on a fairly specific proposal before the 4
agency achieves a consensus among the participants on the 5
agency's proper course of action, such a deliberation 6
determines the disposition of the business within the meaning 7
of the definition, notwithstanding that no formal action is 8
taken and that the members are tree to change their minds."
9 So if you have a specific proposal that you are 10 discussing, the authors indicate that that is really a 11
" meeting."
12 Second, next page, "Yet the process by which the 13 members reach their individual conclusions through exchange of 14 views with their colleagues appears to be within the drafters
- 15 contemplation of ' joint conduct
- of agency business."
16-So if you are exchanging views with the purpose of 17 reaching our own individual conclusions, that is conduc' ting 18 business.
19 Third, bottom of the page, "A
discussion which 20 significantly furthers the decisional process by narrowing 21 issues, discarding alternatives, et cetera, should be treated 22 as a meeting even though it does not and is not expected to 23 achieve a complete resolution."
So that is a " meeting."
24 It seems to me if you are talking about discussing 25 testimony, you are looking at alternatives, you are discarding x
4 s
30 1
alternatives and those are exactly the kinds of things that 2
this rule would cover.
3 CHAIRMAN PALLADINO:
Jim, I wasn't disputing your 4
answer.
I just was citing examples that might be or might not 5
be helped by the proposed rule.
If you want me to hold off, I 6
will wait.
7 MR. CHANE:
No, no.
There is a footnote that I want O
to add which is that the interpretative guide which has the 9
endorsement of the Supreme Court for its interpretation of the 10 Sunshine Act also says that there are certain instances in 11 which when the Chairman is acting in a chairman function and 12 is simply getting the advice of his colleagues that does not 13 constitute a meeting under the Sunshine Act.
14 That is a separate issue.
It is not addressed in 15 this paper.
Nothing in this paper would affect the way that 16 the Commission currently handles correspondence, testimony and 17 so forth but I am not sure that that is an entirely closed 18 issue from the standpoint of Sunshine Act law but it is not 19 before you today.
20 COMMISSIONER BERNTHAL:
That is exactly the point, 21 Peter.
The law says that the Chairman speaks on behalf of the 22 Commission to the Congress.
I think any Congressman that has 23 had to wait four months and many have for a response from this 24 Commission on the answer to a simple question would appreciate 25 11 the Chairman could sit down and gather these editorial
31 1
comments together and get something out of here in a timely 2
fashion.
3 Another example wnich comes to mind is the agonizing 4
process we go through on another item that is clearly 5
delegated to the Chairman and that is the budget process.
The 6
Chairman ultimately is responsible for preparing this agency's
?
budget and yet the extremely restrictive interpretation and 8
reading that this agency has had to make of that process 9
really means that the public gets cheated out of a discussion 10 of the issues, a full understanding of the issues and the 11 Chairman ends up as we have just recently ended up again 12 having to try to rush out the door with something that clearly 13 has not had the benefit of a collegial review.
14 CHAIRMAN PALLADINO:
Instead of walking the halls, I 15 could talk to you one-on-one but we never have the benefit of 16 interchange.
17 COMMISSIONER BERNTHAL:
I think it is easy to show 18 by mathematics that walking the halls is not the same as 19 having a group.;gether with an immediate exchange of views.
20 CHAIRMAN PALLADINO:
However, on the budget oh, I
21 am sorry.
22 COMMISSIONER EBRNTHAL:
The point that was never i
i 23 argued when this agency went to court on the budget matter is 24 whether that was a meeting or not, the Common Cause decision.
25 It is clear in my mind at least and you can give the legal
32 1
interpretation if you like that budget preparation is clearly 2
delegated to the Chairman under the law.
The chairman seeks 3
the advice of the Commission and then he prepares the budget.
4 That case was never argued when that issue went to 5
Court.
6 CHAIRMAN PALLADINO:
But the Court did say that we
?
can't have closed meetings on the budget.
8 COMMISSIONER ASSELSTINE:
Yes.
I think you have a 9
somewhat unique problem on the budget aspect.
If you guys 10 want to have a meeting on the budget, go ahead but I am not 11 going to test that one.
12
[ Laughter.3 13 COMMISSIONER ASSELSTINE:
I will visit you in jail.
14
[ Laughter.3 15 CHAIRMAN PALLADINO:
The Court has said that we just 16 can't have such meetings on the budget unless they are open.
17 COMMISSIONER ASSELSTINE:
That*s right, yes.
18 CHAIRMAN PALLADINO:
Our problem is, of course, that 19 the President wants to keep his budget in tact until he l
l 20 presents it as an integrated budget to the Congress.
21 Since the Court has spoken unless we want to go j
22 through some other litigation, I don't think we can touch l
l 23 budget.
24 COMMISSIONER BERNTHAL:
Joe, the point that I am 25 making is that the case that was argued by this agency was l
l L
33 1
never the case of whether or not that qualified as a " meeting" 2
under the Sunshine Act.
That was the key question.
This 3
agency never argued that question and it is not. surprising 4
that the decision came out the way it did.
5 MR.
CRANE:
Well, Commissioner, that is in part 6
because we were constrained by our own regulations.
7 COMMISSIONER BERNTHAL:
Our own regulations, that*s 8
right.
That is the point I am making here.
9 MR. CRANE:
This is not really the time and place 10 for a discussion of whether the Common Cause decision was 11 correctly decided or not.
12 COMMISSIONER BERNTHAL:
I didn*t say decided.
I 13 said argued by this agency in light of its own regulations.
I 14 think the Court decided exactly what it had to decide based on l
15 the argument we presented.
We never presented the question of 16 whether it is a " meeting" under the Sunshine Act.
17 MR. CRANE:
I will not debate that with you.
But 18 suffice it to say that the American Bar Association Task Force 19 on the Sunshine Act is studying the Common Cause case to see 20 whether legislative change in ettect to overturn that decision 21 is appropriate.
The administrative conference recommended 22 specifically 1 ta t Congress consider legislative changes in the 23 Sunshine Act to permit budget discussions to be closed.
24 CHAIRMAN PALLADINO:
If you think you want me to 23 hold off on asking questions on examples, I will hold off.
34 1
For example, would it be appropriate for the committee to 2
discuss this document control system and whether we should 3
have this approach to it or that approach to it, whether we 4
are spending too much money on it -- cops, money is budget 5
whether or not we are getting the best efficiency out of the 6
present system.
?
COMMISSIONER BERNTHAL:
I think you just proved the 8
point.
9 LLaughter.3 10 CHAIRMAN PALLADINO:
I understand.
Almost 11 everything we discuss relates in some way to the budget but 12 let me just keep with this.
It we want to honestly get 13 together and see what we ought 4e doing on the document 14 control system, for example, would that be allowable under the 15 rule under the Sunshine Act?
16 MR. CHANE:
As I see it if the Commissioners wanted 17 to sit down in an informal context and talk about how well are 18 we being served by "x,"
"y" or "z,"
whether that is the 19 document control system, whether it is a particular ottice of 20 the Commission, that sort of very preliminary discussion is 21 appropriate.
22 When it starts coming down to, for example, a Five 23 Year Plan that is "x"
pages of single spaced typed with 24 particular proposals, that is suiticiently particularized that 1
i 25 the Sunshine Act would apply.
35 1
CHAIRMAN PALLADINO:
I want to keep the Five Year 2
Plan as my next example.
3
[ Laughter.3 4
COMMISSIONER ASSELSTINE:
Going back if I could on 5
the document control system question, Peter, if the Commission 6
wanted to have a meeting to discuss how well is our document
?
control system managed, is it structured in a way that 8
satisfies our document control needs, is our organization for 9
handling document control an effective one, is it scattered 10 throughout the agency, do we need to pull together into a 11 single group with responsibility for managing document 12 control, how effectively are our contractors performing on 13 document control, do they fulfill their contracts or are wo 14 getting shoddy work from them, how well are our managers 15 performing in carrying out their responsibilities for managing 16 our document control system, aren*t all of those items 17 properly discussed in an internal management meeting and 18 closeable under the existing exemptions to the government in 19 the Sunshine Act?
20 MR. CRANE:
That is correct.
That would be 21 closeable as a management meeting.
22 COMMISSIONEH ASSELSTINE:
Then why wouldn't we want 23 to discuss those items in a management meeting rather than in 24 one of these unannounced, unrecorded gatherings?
If you can 25 already close it and discuss it perfectly comfortably in a
36 1
closed session, what is the benefit from this authority in 2
that particular case?
3 MR.
CRANE:
In that particular case, this would not 4
provide any benefit beyond that of a closed management meeting 5
but that is not true of the work of every aspect of the 6
Commission.
7 If you wanted to have a generalized discussion of 8
what are our relations like with our oversight committees, 9
what are our relations like with the press, what does the 10 public think of us and what can we do about that.
11 COMMISSIONER ROBERTS:
We don't need a meeting to 12 give you those answers.
13
[ Laughter.)
14 COMMISSIONER ASSELSTINE:
I agree with Commissioner 15 Roberts.
16
[ Laughter.]
- i 17 CHAIRMAN PALLADINO:
I wouldn't dismiss that because 18 we do talk about trying to improve the confidence of the 19 public in us and so discussing ways that might be done might 20 be apart of the discussion of how the press, how the public 21 sees us.
22 MR. CRANE:
I don't see how any of those topics 23 could be discussed in a closed management meeting.
I can't 24 think of any 25 CHAIRMAN PALLADINO:
Which topics?
l 37 1
MR. CRANE:
These generalized discussions, the 2
oversight committees, the press, the public, I don *t see any 3
exemption that would apply to close those.
4 COMMISSIONER ASSELSTINE:
All I can say is that we 5
did have several closed management meetings to discuss 6
specific problems in our relationships with Congress in terms 7
of how this agency deals with the Congress and reacts to j
B requests for documents.
That has been a fundamental problem.
9 CHAIRMAN PALLADINO:
Procedures, yes, 10 COMMISSIONER ASSELSTINE:
We had a lot of discussion 11 about that.
What do we need to do to establish a set of 12 procedures that satisfies the Congress' need for information, 13 our need to provide it, which was a very specific problem in i
14 terms of our relations with the Congress and OGC told us that 15 was properly closeable and we had those discussions.
16 MR. CRANE:
But as you say, it was a very specific 17 problem and the problem was as a management issue of who 18 responds to those requests.
19 COMMISSIONER BERNTHAL:
That's right.
20 COMMISSIONER ASSELSTINE:
And how are they handled 21 and what are the guidelines.
22 MR. CRANE:
Because it was a specific management 4
23 issue, we advised you that it was closeable.
If it had been a 4
24 generalized discussion of the kind that we have been talking 25 about, I don *t think it would have been closeable.
38 1
CHAIRMAN PALLADINO:
Not everything that is in the 2
form of our questions about the document control system can be 3
covered in a management meeting because that is the only 4
example that is so fresh in my mind that I can come up with 5
but there are aspects of the document control system that are 6
not necessarily management that have to do with whether we are 7
serving all the units of the agency appropriately and whether 8
it is compatible with some system that is being used to track 9
the high level waste program.
10 COMMISSIONER ASSELSTINE:
I think that is 11 legitimately closeable, Joe, 12 CHAIRMAN PALLADINO:
What is that, for management?
13 COMMISSIONER ASSELSTINE:
Yes.
If you have one 14 system in one part of the agency and other systems scattered 15 throughout the agency and the question is compatibility, have 16 we really got a system that makes sense, I think that is 17 discussable in a management meeting.
18 CHAIRMAN P A L L A D I,!O :
My question is, can this be 19 done under the non-Sunshine Act provision?
I will agree it 20 may fall under an exemption.
21 COMMISSIONER BERNTHAL:
Jim, I don't understand.
On 22 the one hand, you sound like you are saying that we are not 23 going to get enough benefit out of this and maybe therefore we 24 ought to bring our proposed regulation more in line with some 25 of those who would allow us to get more benefit out of it and l
39 1
yet at the same time you are ticking ott a long list of issues 1
2 that you think is just line for the Commission despite your 3
support of all things being in the open, it is just line for 4
us to sit down and talk about all these things in private, 5
[ Commissioner Roberts exits the meeting.]
6 COMMISSIONER DEENTHAL:
It is not clear to me 7
exactly where you are here.
11 it is okay to talk about all B
of these different things in private, it seems inconsistent.
9 Why don't we just open everything up including internal 10 management matters?
Why shouldn't the public and the press 11 have the right to sit down and hear all of that?
12 COMMISSIONER ASSELSTINE:
Let me make my position 13 clear since you seem to have some misimpression of what it 14 is.
15 My position is that the existing ten exemptions to 16 the government in the Sunshine Act already provide this agency 17 with all the authority it needs to conduct internal closed 18 discussions with appropriate protections and safeguards for 19 those matters that can and should be discussed confidentially, 20 COMMISSIONER BEMNTHAL:
Why should the public be 21 denied hearing anything that we discuss here?
22 COMMISSIONER ASSELSTINE:
I think that there is a 23 legitimate basis for holding closed meetings on those items 24 that are covered by the existing exemptions to the Sunshine 25 Act I think the Congress was right to adopt those
40 1
exemptions.
2 COMMISSIONER BERNTHAL:
But it wasn*t right in 3
adopting this broader view that allows us to get together and 4
discuss broad issues?
5 COMMISSIONER ASSELSTINE:
There are a couple of 6
differences.
One difference is when the Commission holds a 7
management meeting there is a notice to that effect.
The B
Commission has to make a determination that one of the 9
exemptions or more of the exemptions to the Act applies and 10 there is a record.
11 There is either a transcript or a tape of the 12 discussions of those meetings so that it it turns out the 13 Commission is wrong as we have been on occasion, we can then 14 make that portion of the discussion that in fact was not I
15 properly closeable available to the public and no one is i
16 harmed.
They at least get the opportunity to see that l
17 discussion that should have been held in the open.
i 18 There are basic differences to what is being 19 proposed here.
There is not going to be a notice.
There is l
20 not going to be a record.
21 COMMISSIONER BERNTHAL:
Wait a minute.
You are 22 talking about procedures that we haven't even decided on yet.
23 In fact, the indication is that we are going to wait and see 24 what the ABA among others might have to say.
The Commission 25 has talked about giving notice.
41 1
COMMISSIONER ASSELSTINE:
What I am speaking to is 2
what is in this proposal that is now pending before the 3
Commission and I don't think it provides for notice to the 4
public in advance that one of these gatherings is going to 5
occur.
In fact, it expressly rejects the notion of a keeping 6
a transcript, It says that that would be fundamentally at 7
odds with what people have in mind here.
8 CHAIRMAN PALLADINO:
Would you indulge me a little 9
bit?
I wanted to go through some examples.
10 COMMISSIONER ASSELSTINE:
Sure.
11 CHAIRMAN PALLADINO:
And briefly talk about the 12 examples.
I have to get a feel for myself where we are going 13 so I can at least feel comfortable when I vote.
14 COMMISSIONER ASSELSTINE:
All right.
15 COMMISSIONER BERNTHAL:
I don't think that there is 16 going to be a meeting of the minds on this.
There is a 17 fundamental--
18 CHAIRMAN PALLADINO:
Excuse me.
I am asking for a 19 "yes" or "no,"
does this come under or doesn't it.
I wasn't l
20 trying to argue whether it should or shouldn't, J
21 COMMISSIONER ASSELSTINE:
All right.
22 tCommissioner Roberts re-enters the meeting.]
23 CHAIRMAN PALLADINO:
Let me take up another 24 example.
We wanted to get together to day what ought to be in 25 a Five Year Plan, what ought to be covered in a Five Year
42 1
Plan, do we want to cover all personnel actions, do we want to 2
cover the type of safety improvements we want to make, do we 3
want to talk whether we should combine organizational units, 4
just what do we want out of the Five Year Plan.
5 We were told that we couldn't have that meeting 6
closed even in a management meeting.
That was beyond the 7
management meeting.
8 Does this help us?
I am not talking about here is a 9
prepared Five Year Plan, here are the "x"
number of mission 10 areas we are going to discuss and here are their titles, but 11 just what do we want on a Five Year Plan.
How do you go about 12 collecting the information?
13 We were told 'that it couldn*t be in a management 14 meeting.
It c'uldn't be in quote a non-Sunshine meeting, it o
15 had to be an open meeting and as a result I think most of the 16 activity has gone on by hall walking, staff work and 17 interactions one-on-one.
18 Could you just give us a little insight as to 19 whether that would fall under the new rule?
20 MR. CRANE:
I believe that it you are sitting down 21 not looking at a particular dratt document but simply 22 brainstorming about what are the sort of things we would like 23 to see in a Five Year Plan, that is entirely appropriate for a 24 non-Sunshine Act discussion.
25 CHAIRMAN PALLADINO:
We were told no.
1 l
l
43 1
COMMISSIONER ASSELSTINE:
For a non-Sunshine Act.
2 He is talking about for a gathering.
3 MR. CHANE:
That's right.
4 CHAIRMAN PALLADINO:
You say that it would be.
5 COMMISSIONER ASSELSTINE:
Yes.
6 MR. CHANE:
For a non-Sunshine ~Act discussion, that 7
would be appropriate.
8 CHAIRMAN PALLADINO:
We were told no.
9 COMMISSIONER ASSELSTINE:
No.
10 MR. CHANE:
The advice that you got had to do with 11 it we have a meeting on this, is there an exemption that will 12 permit us to close it.
13 COMMISSIONER ASSELSTINE:
That's right, and the 14 answer to that is no.
15 MR. CHANE:
Correct.
16 CHAIRMAN PALLADINO:
I am not sure of this but I was 17 told, I believe, that we couldn't even have it as a 18 non-Sunshine meeting.
19 MR. CHANE:
My recollection is that 20 CHAIRMAN PALLADINO:
All right.
You gave me the 21 "yes" answer except one thing you said was if there are no 22 documents before us.
Well, generally you come and we may have 23 OGC says, "You know you ought to think about these things that 24 are in the Five Year Plan" and Policy Evaluation may come in 25 and say, "Here are some things you ought to think about in a
44 1
Five Year Plan" and the staff may have some thoughts on the 2
Five Year Plan.
3
[ Commissioner Bernthal exits the meeting.]
4 CHAIRMAN PALLADINO:
They are not yet to the point 5
of being proposals but we might have papers before us.
Would 6
that change your answer 11 they were no farther than that?
?
MM. CHANE:
I wouldn't want to suggest that you have 8
to be searched for paper when you enter the room.
9
[ Laughter.)
10 MR. CHANE:
But I think a decision document, when 11 there is a decision document that is being looked at up or 12 down you are out of the class of 13 CHAIRMAN PALLADINO:
Well, we are deciding whether 14 we are going to include this matter or that matter 15 COMMISSIONER ASSELSTINE:
Screening alternatives.
16 CHAIRMAN PALLADINO:
in the Five Year Plan.
17 COMMISSIONEM ASSELSTINE:
You narrow alternatives.
18 CHAIRMAN PALLADINO:
Yes.
19 MR. CRANE:
If you have a bunch of talking points 20 that you are working from, I think some narrowing of 21 alternatives is permissible as long as you are in a 22 preliminary status.
23 COMMISSIONEH ASSELSTINE:
So you could have a set of 24 options and the Commission could go down well, do we want to 25 knock this one out, do we want to include this for further
45 1
study, do we want to focus on this one or two or three 2
elements and tell the statt, " Prepare us now a final package 3
with these kinds of elements in it."
That is permissible in 4
your interpretation?
That seems to fly straight in the front 5
of the language that you have included in the paper on pages 6
11 and 12.
7 COMMISSIONEN ZECH:
I think what he is talking about 8
if I understand it is the preliminary discussions not a 9
decision making forum but strictly preliminary background 10 discussions that would lead up to decisions at some later 11 date but listening to stati presentations on a preliminary 12 tirst time through basis, something like that, where decisions 13 are not going to be made.
Options may be presented but in my 14 view the options, none of them would be excluded at all.
It 15 would just be pros and cons perhaps of each option.
16 It would be strictly just a preliminary background 17 type meeting where no decisions would be made.
That is what I 18 was envisioning.
19 CHAIRMAN PALLADINO:
Except there is narrowing of 20 alternatives.
We may say, "Well, preliminarily, staff, why 21 don't you try to draft the Five Year Plan along these lines" 22 and we say include and we may give specific areas.
23 COMMISSIONER ASSELSTINE:
There is also reaching of 24 conclusions in our own individual minds.
We may not make a 25 consensus but face it, the kinds of meetings that we have had
40 1
like that in the past have been for the purpose of putting 2
alternatives on the table, throwing out the ones that we don't 3
want to pursue and each of us reaching in our own minds our 4
conclusions about which way we think we ought to do even 5
though the final vote is not taken.
6 CHAIRMAN PALLADINO:
Many of these conclusions are 7
not final either.
For example, we may say we think we ought 8
to discuss in here this mission area and that mission area and 9
say, "Go drait something.
We will come back and see how it 10 looks."
11 When it comes back and we see how it looks, we are 12 probably getting away from non-Sunshine meetings but at least 13 to go that far you think it would be okay.
14 MR. CHANE:
Yes.
To get back to this language on 15 page 12, the interpretive guide says 16 CHAIRMAN PALLADINO:
What part of page 12?
17 MR. CR'ANE :
This page 12 of the rule.
18 CHAIRMAN PALLADINO:
About how far down?
19 MR. CRANE:
The first small paragraph, halfway down 20 the page, the underlined portion.
21 CHAIRMAN PALLADINO:
All right.
22 MR. CHANE:
The question is whether the discussion 23 is decision oriented or whether the members are merely 24 familiarizing themselves with the subject, exchanging 25 preliminary observations, canvassing possibilities or
47 1
brainstorming.
2 To me, that implies that it somebody comes up 3
with an idea through brainstorming and somebody else says, t
4
" Hey, that sounds interesting, why don't we have the statt 5
draw up a paper that explores that," you can see that as a 6
narrowing of alternatives in that some other ideas aren't 7
taken up but that is inherent in the process of canvassing 8
possibilities and brainstorming.
9 COMMISSIONER ZECH:
And perhaps calling on our own 10 ditterent backgrounds which is getting the benefit from the 11 collegial process in a preliminary type way, preliminary to 12 any decisions.
13 MR. CRANE:
Correct.
Professor Williams of the ABA 14 who was then head of the administrative law section, the 15 position that Mr. Murano now holds and is now a judge on the 16 Fifth Circuit, talked about brainstorming in testimony that is 17 part of the legislative history of the Sunshine Act.
I think 18 we included that.
19 MR. PLAINE:
Yes, it is on page 11, right in the 20 mifdle of page 11 I
21 CHAIRMAN PALLADINO:
Page 11 of the Federal Register 22 Notice?
23 MR. PLAINE:
Of the same document, page 11, right 24 in the center, "The ABA takes the position.
25 CHAIHMAN PALLADINO:
Yes.
48 1
MR. PLAINE:
. that the open meetings requirement 2
does not apply until the brainstorming gets to the point that 3
ideas need to be adequately evaluat3ed as a viable alternative 4
which ought to be seriously considered."
5 COMMISSIONER ASSELSTINE:
With all due respect, that 6
is a very fuzzy line.
When you are talking about a 7
brainstorming session where you are just throwing things up in 8
the air or out on the table to the point where you are 9
beginning to say, " Gee, this is something that we really want 10 to seriously consider" or "we want to consider some options 11 and we don't want to consider others."
12 Part of my problem here is that there is not a clear 13 line at all about how you slip from one to the other but I 14 also have a more fundamental question, I think, on the Five 15 Year Plan.
16 MM. CRANE:
It is a fuzzy line but it is also the 17 fuzzy line that you see in Justice Powell's opinion where nine 18 Justices tell you that informal background discussions are an 19 essential part of an agency's work and Congress never intended I
20 to consider them meetings for Sunshine Act purposes and cites 21 to Representative Fascell's remarks.
22 COMMISSIONER ASSELSTINE:
I would be the first to 23 admit that whether I agree with it or disagree with it, the 24 Supreme Court decision is fuzzy.
25 Let me raise one broader question on the Five Year
i 49 1
Plan, Joe, though if I could.
l 2
CHAIRMAN PALLADINO:
Sure.
Go ahead.
3 COMMISSIONER ASSELSTINE:
Assuming for the moment 4
that legally you could do that, legally you could discuss in 5
at least to some degree --
6 CHAIRMAN PALLADINO:
What we want to put into it.
7 COMMISSIONER ASSELSTINE:
What you would want to put 8
in a Five Year Plan, what you wanted to address, It seems to 9
me that some of the kinds of issues that you would want to 10 discuss in the context of a Five Year Plan would be what do we 11 expect the industry to look like five years from now, do we 12 expect to see the resurgence of orders, do we expect to see 13 only to be worrying about operating reactors / what do we 14 think the state of safety should be'five years from now, 16 should we be continuing to see operational events of the type 16 that we have seen in the past few years, are we prepared to 17 accept another aooident within the next five years, do we need 18 to take affirmative steps to insure that there isn*t an i
19 accident within the next five years.
20 All of those seem to me to be among the universal of 21 issues that we would want to talk about on a Five Year Plan.
22 When I look at those issues, it seems to me that they are at i
23 great interest, in fact, among the most interest that I would 24 think both the industry and members of the public would have 25 about what our thinking is.
I can't imagine the industry not
50 1
wanting to know what our perception is of what the industry 2
should be.
3
[ Commissioner Bernthal reenters the meeting.]
4 CHAIRMAN PALLADINO:
I didn't bring that one up 5
because I was inclined to agree, that when you get to the 6
specifics of the safety issues and whether we should be 7
improving safety by reducing the probability of an event even 8
further, I say, "Okay, I can see that one.
That is safety."
9 But when you are trying to get something started, 10 the trustration of not being able to get together and even 11 talk about it seem to me unnecessary.
12 COMMISSIONER ASSELSTINE:
It seems to me that 11 t
13 those are the issues that you would want to be discussions and 14 I think those are all legitimate issues in the context of a 15 Five Year Plan, that they ought to be discussed in public even 16 it our thinking is very preliminary, even 11 what we are doing 17 is just putting ideas on the table or discussing them.
It is 18 the kind of thing that I think both the public and the 19 industry have a legitimate interest in and they ought to be 20 able to hear that kind of a discussion.
21 I guess I just don *t understand why shouldn't 22 discuss those things.
23 CHAIRMAN PALLADINO:
I agree that there is a fuzzy 24 point there.
If you get way over here I am with you.
25 COMMISSIONEM AS3ELSTINE:
Yes.
$1 1
CHAIRMAN PALLADINO:
But when I am just trying to 2
get starteu and don't even know what a Five Year Plan looks 3
like and what ought to be in it, I say, "By golly, you ought 4
to be able to get together and talk a little bit about it."
5 COMMISSIONER BERNTHAL:
Why shouldn*t they hear 6
about our management discussions?
Why shouldn*t they 7
understand --
8 CHAIRMAN PALLADINO:
Because there is an exemption.
9 COMMISSIONER BERNTHAL:
No.
As a matter of 10 principle, why shouldn*t they understand why it takes us so 11 long to get out a rule?
They might understand 11 the press 12 had access to our management discussions.
. 13 COMMISSIONER ASSELSTINE:
My answer is this.
I 14 think that if you are discussing internal performance of 15 individuals and groups within the agency, you want to have a 16 tull and trank discussion about those individuals and about 17 their performance and about what changes you might want to 18 make and I think it would be very harmful to those individuals 19 to have that kind of a discussion in public, 20 I think
'he Congress recognized that and that is why 21 the Congress provided an exemption to the Sunshine Act for 22 those kinds of discussions.
I would submit that they are very 23 different than a discussion of the kinds of issues that I 24 describe on a Five Year Plan where you have broad public 25 interest and where you don *t have a countervailing privacy
52 1
soncern on the part of individuals.
2 I think they are very ditterent.
I think there is a 3
perfectly legitimate reason why one ought to be in public and 4
the other ought to be in private.
5 COMMISSIONER ZECH:
But you don't see any difference 6
between making a final decision and having a preliminary 7
discussion apparently?
There is no preliminary discussion 8
that you feel that could be made by this body--
9 CHAIRMAN PALLADINO:
That is what I am having 10 problems with.
11 COMMISSIONEN ZECH:
--without having a decision 12 making process?
I have had plenty of preliminary discussions 13 that didn't lead at all to decisions They were just 14 informative in nature, were helpful to me, useful to my 15 colleagues I thought, and no decision was made.
It was just 16 an educational first step in a process.
They are very, very 17 useful.
18 Free exchanges are much more productive than a 19 public meeting such as this.
20 CHAIRMAN PALLADINO:
Can I go on with a few other 21 examples?
22 COMMISSIONER ASSELSTINE:
Yes.
23 CHAIRMAN PALLADINO:
I got a "yes" for that, didn't 24 I
I am just trying to see where we are going.
Now you came 25 up with some examples that involved a foreign trip and we have
53 1
had examples where somebody comes back and says, "You know, 2
they have tiltered vented containment over there but you know 3
I spoke to so-and-so and ne says that was a political 4
decision."
Well, that might be something you might feel tree 5
to say in a non-Sunshine Act meeting but you might be 6
constrained or feel constrained so as to maintain your open 7
communication with the other people from those countries to 8
tell you things.
9 I gather as long as it is safety related, we 10 couldn't even talk about what we learned in visits and 11 conversations that don't relate to specific designs in the 12 United States?
13 MR. CHANE:
The rule as drafted says that technical 14 briefings by the statt on issues of nuclear safety would be 15 exempt.
It seems to me that 11 you--
16 CHAIRMAN PALLADINO:
Would be exempt?
17 MR. CHANE:
I am sorry, would be treated as meetings 18 for Sunshine Act purposes.
It seems to me that if you come 19 back from travelling abroad and say to your colleagues, "I
20 have some impressions of the way they run their regulatory 21 program in such-and-such a country and let me just share with 22 you my impressions," I think that is a matter of legitimate 23 interest I think that could be held in a non-Sunshine Act l
24 discussion and would be beneticial 25 COMMISSIONEH ASSELSTINE:
The technical restriction,
54 i
1 the restriction on technical meetings, was a policy 2
restriction I take it in your proposal?
3 MR.
C1t ANE :
That*s right.
4 COMMISSIONER ASSELSTINE:
Legally in your view the 5
Commission could close all the technical briefings it wanted 6
to as long as they were of a preliminary nature and weren*t 7
reaching conclusions?
8 MR. CRANE:
It it is simply informational, I mean 9
the public interest in knowing what happened as Davis Bessie 10 may be extreme but the Sunshine Act doesn't say that when you 11 are simply being told by the stait what went on that you are 12 required to open the meeting.
It is a policy issue.
I 13 COMMISSIONER ASSELSTINE:
Yes.
14 CHAIRMAN PALLADINO:
But under the rule, we have 1$
said that the briefings by the staff are going to be meetings.
16 MR. CRANE:
That*s right.
17 CHAIRMAN PALLADINO:
But exchange of information 18 among ourselves without -- well, let me say, without involving 19 the statt would be okay?
20 MR. CRANE:
I think that 11 the Commission want*s to 21 sit down and talk in broad terms about what are we trying to 22 achieve in terms of safety, where do we see the agency, what 23 do we think its goals are, safety is implicit in everything 24 you do.
25 COMMISSIONER,BEHNTHAL:
It is quite extraordinary
55 1
that I suspect there are some Congressional stati people here 2
that are going to check that out, that the National 3
Transportation Safety Board whose sole job is to investigate 4
accidents and safety problems allows itself the luxury of 5
having a stati brief the board --quote -- "concerning an 6
acoident, incident or safety problems."
?
Now what we are proposing is far short of that, I 6
will tell you.
9 COMMISSIONER ASSELSTINE:
TVA does the same thing, 10 Fred, but I wouldn't hold them out as a model of our behavior 11
- either, 12 LLaughter.]
13 COMMISSIONER ASSELSTINE:
They hold closed 14 briefings.
They don't announce them.
They don't keep records 15 of them of what is going on in their program, the status of 16 their safety program.
I wouldn't advocate that either.
17 COMMISSIONER BERNTHAL:
The point is that these 18 agencies, as least arguably and it has never been challenged, 19 are acting within the law.
11 you are arguing that what we 20 are proposing to do is inadequate, then maybe you should 21 suggest that we do something more that will make this more 22 useful or on the other hand 11 you are arguing that everything 23 should be open, then why do we bother to close anything.
24 Congress doesn't force us to close a single 25 meeting.
Congress permits us to close certain meetings.
56 1
COMMISSIONER ASSELSTINE:
That*s right, I am not 2
advocating opening everything.
What I am saying is those 3
things that are legitimately closeable under the exemptions to 4
the Act, we ought to continue to do that just as we have done 5
ever since the Act was first enacted.
6 My problem is that if you accept the restrictions 7
that OGC has written in this paper the discussions, I think, 8
have to be so preliminary that I question whether they are 9
going to be of any real value or benefit I think we paying a 10 very high price in terms of public perception of what is going 11 on here 12 CHAIRMAN PALLADINO:
If the public perceived it 13 correctly because I think one of our problems is that we 14 haven't told them really what we are trying to do and I am 15 trying to get a feel for what is it that we can do so that we 16 can tell them what we plan to do.
Then they will be 17 suspicious but if they understand and 11 the Congress 18 understands perhaps we have a better change of surviving with 19 the rule.
20 For example, I wanted to talk more about 21 brainstorming.
What is brainstorming?
Chairman Anders took 22 the Commission out to the Airlie House and they spent a 23 weekend trying to discuss where they were going, what they saw 24 the problems.
25 It we had something like that and in truth it were t
57
)
to brainstorm where we want to go, is that permissible?
2 MR. CHANE:
Absolutely.
3 CHAIRMAN PALLADINO:
Even it we get into where the 4
industry is going, where we think the industry is going, what 5
we ought to be doing about a pos4 tion on advanced reactors, 6
looking to the future and we don't know what the advanced 7
reactor is going to be, whether or not we should be pushing 8
the standardization policy, whether there are problems in 9
pushing it.
10 You can try to stay within tne boundaries, but you r
11 still may want to cover significant points.
Would that all be 12 coverable under brainstorming recognizing that as soon as you 13 get down to specific issues, I mean specific ways you are 14 going to address an i s s tte, we say -- let me not say any more.
15 MR. CRANE:
I think so, Mr. Chairman.
I think that 16 kind of background broad discussion is not only permissible.
17 There is ample material in the legislative history to suggest 18 that that is a valuable part of collegial agency thinking.
19 One of the problems with the effect
- well, 20 Mr. Murane in his comments in the administrative law journal, 31 the head of the administrative law section, pointed out that 22 it is the agencies and the public which are deprived of the g
23 benefits of collegial decision making.
24 The result of your not being able to talk about what 25 do we want a Five Year Plan to look like is that you are
58 1
essentially a prisoner of the first piece of paper that is 2
handed to you because you don't really a role in shaping it in 3
the first place.
4 CHAIRMAN PALLADINO:
Yes, you do.
The piece of paper may include some of your preliminary thoughts.
I get 6
pieces of paper from my statt but I have often discussed it 7
with them and they have just tried to articulate some of the 8
points that we have discussed'.
9 COMMICSIONER ASSELSTINE:
Joe, why is it that you 10 aro uncomiertable or feel that it is so inhibited that you 11 can't discuss those kinds of questions here in a public 12 meeting?
13 CHAIEMAN PALLADINO:
Because we never seem to do it 14 that way.
15 COMMISSIONER ASSELSTINE:
there is no reason why we 16 can't do it in a public meeting, just sit down and talk about 17 these things right here at the table.
18 CHAIRMAN PALLADINO:
That might be one way to do it l
19 but then we may have, for example, we have three different 20 versions of a paragraph on advanced reactor policy.
21 COMMISSIONER ASSELSTINE:
We sit down and talk about 22 it.
23 CHAIRMAN PALLADINO:
All right, but in order to 24 discuss it you have to really give the public the whole 25 document but you haven't released the document, you haven't
59 1
finalized it.
You still want to talk about this one paragraph 2
and the implications that it has.
3 It is awfully hard to articulate everything in such 4
a way that you are willing to do it in public.
I sometimos 5
like to ask dumb questions because I have found out several 6
times when I ask what I thought were dumb questions, I learned 7
something and so did others but sometimes they are truly dumb 8
questions and I should have known better.
I say, "me" but 9
that could apply to everyone.
10 COMMISSIONER ASSELSTINE:
Nobody is infallible and 11 those things happen.
Those kinds of things, standardization, 12 what to do about advanced reactors, what to do about the level 13 of safety, what to do about a Five Year Plan, I am all for 14 having preliminary discussions or discussions on specific 15 points where there are differences of view.
16 I guess I just don't see why it is such an 17 impediment to having that in here, why that has to be done in 18 private.
I don't see the real benefit to be gained by doing 19 it in private.
20 MR. CHANE:
Commissioner, whether it has to be or 21 not, the administrative conference says that one of the most 22 distinct effects of the Sunshine Act has been to diminish the 23 collegial character of agency decision making, to suppress 24 this kind of discussion and I will cite you to the 25 administrative procedure
60 1
COMMISSIONER ASSELSTINE:
I know that is their view 2
but I think it is worth a try.
I think the reason why that 3
doesn't happen is because people just haven't decided that 4
that is the way they are going to try it.
5 CHAIRMAN PALLADINO:
You ought to go to the 6
underlying reason why did they do it.
?
COMMISSIONER ASSELSTINE:
WHy?
That is why I am 8
asking.
9 COMMISSIONER BERNTHAL:
How many laws do you think 10 could get past the Congress if they applied the Sunshine Act 11 to itself?
12 COMMISSIONER ASSELSTINE:
No.
The Congress I think 13 does apply the Sunshine Act to itself in many respects.
14 COMMISSIONER BERNTHAL:
I bet to differ.
You have 15 worked on the Hill long enough to know that that is not 16 remotely true.
17 COMMISSIONER ASSELSTINE:
A quorum, Fred, a quorum 18 of a committee getting together in private, how often does 19 that happen?
It doesn*t happen all that much largely because 20 it is impossible for that many to get together at one point 21 in time.
I would submit that when a quorum of a committee 22 gets together on the Hill, it is almost universally in a 1
23 public session and that is where they have their discussion 24 both preliminary and final j
25 COMMISSIONER BERNTHAL:
You really think that is
G1 1
where the final decision is made?
2 COMMISSIONER 2ECH:
I would like to make a 3
suggestion.
4 CHAIRMAN PALLADINO:
All right.
1 5
COMMISSIONER ZECH:
In view of the fact that the 6
American Bar Association is involved in this matter in 7
somewhat of a timely manner for us it, sounds like that in the 8
next few months they may provide us with something of benefit 9
that we do wait until we hear what they have to say, until 10 their work, at least their work in perhaps April is completed, 11 and at that time we review where we stand and decide where wo 12 want to go from there.
13 I think using the benefit of that collective body 14 involved specifically in this Sunshine Act right now would be 15 appropriate for us to perhaps wait.
We have waited this long 16 anyway.
It seems to me that waiting a little while longer j
17 would probably be the proper thing to do so I suggest we do 18 that.
19 CHAIRMAN PALLADINO:
I was going to make a similar 20 observation after I had finished through my litany and I am 21 almost done because I think we could get quite a bit of 22 benefit and some of the reason for raising these specific l
23 topics is that it might be reflected in our transcript and l
24 might help them in some of the things that we have to i
.5 deliberate.
l l
I I
62 1
Unfortunately, as we go through the list we don't 2
find too many that have "yes's" or at least I haven't written 3
them down but I will review the transcript.
4 I think that is a very good suggestion.
I had said 5
that I did not plan to call for a vote but the Commission can 6
always, propose it.
I think that is a good step with getting
?
additional information.
I think it may also provide us some 8
real guidance on procedures which I think ought to be 9
addressed in the rule.
10 It go that rule, we don't have to settle on it at 11 this time.
I am open to Commission treatment of that question 12 if you would like to treat it.
13 COMMISSIONER BERNTHAL:
Treating what?
14 COMMISSIONER ASSELSTINE:
Deferring.
15 CHAIRMAN PALLADINO:
Deterring until the what is 16 it called, the administrative law section of the ABA.
17 COMMISSIONER ASSELSTINE:
Yes.
18 CHAIRMAN PALLADINO:
I think it is very important 19 frankly that we proceed.
I don't think that we are doing the 20 proper thing for the American citizens "colleging" like this 21 but I do feel that in view of the American Bar Association's 22 imminent assistance perhaps or benefit that we could gain that 23 we should wait but that we should eventually and as soon as 24 possible after that make a decision and move ahead to try to 25 do what we think is right.
03 1
COMMISSIONEN BERNTHAL:
Look, as I said at the 2
outset I agree with that in regard to procedures.
I am 3
prepared to vote today on the rule that is the language in the 4
Supreme Court.
I am confident that if the Supreme Court 5
decides it said the wrong thing, we can take up the issue 6
again.
7 The last half hour or 45 minutes of discussion here 8
indicates that we may learn something in regard to procedures 9
and the application of that rule from the ABA conference.
10 I would just comment again and then I won *t say any 11 more today that what you are seeing here today is the demise 12 of this Commission system and I find an irony in the fact that 13 the very people on Capital Hill who are opposing and I guess 14 at this table as well who are opposing single administrator 15 form are the people that have led the public to believe 16 erroneously that what we are doing here is something that 17 somehow violates the law and that it is inconsistent with what 18 other government agencies are doing.
19 I hope at least today we have made clear that that 20 is not the case but in my judgment, the forces are out there 21 already that are aimed at doing away with this Commission or 22 aimed at doing away generally with the Commission system at 23 least for any agency that has any responsibility for safety 24 matters, for matters that require rapid decision making.
25 I think that is unfortunate.
I have been a defender 1
64 1
of the Commission system since the time I joined this body.
I 2
believe the Commission system offers the public a unique 3
protection and I think you heard that unique protection here 4
provided and you very often hear it provided by Commissioner 5
Asselstine who treguently dissents with us and by some of the 6
rest of us who dissent from time to time.
7 Ths press knows about that dissent.
The public 8
learns of that dissent.
I would submit that if as appears to 9
be happening and the momentum is gathering, I think, that the 10 Commission system is going out the window because it simply 11 cannot function any more, that the public is going to end up 12 the loser here.
13 I think it is a good system it we let it work.
That 14 is the end of my speech.
15 COMMISSIONER ZECH:
One short comment on that, while 16 I favor the singla administrator because of the way that we do 17 business but until the law is changed, I am trying to make 18 this system work better.
I am doing the best I can and I 19 think this Sunshine Act that we are trying to do will help us 20 do our job better.
That is exactly what I am trying to do.
21 COMMISSIONER ASSELSTINE:
Joe, I would certainly say 22 that I would agree with deterring action on this.
It is no 2L secret that I have problems with this and deferral is better, 24 I think, than adoption of the rule at this point.
25 I have just a quick response to Fred's points.
I
65 1
have been pretty careful not to say that there is not a legal 2
basis for doing what you are doing.
I would be willing to 3
acknowledge that you can make a case that this is within the 4
bounds of what the Supreme Court did.
I am not saying that I 5
agree with what they did but I will give you that and I will 6
acknowledge that and I will also acknowledge that it is 7
probably not out of step with what some other agencies do.
8 I guess my fundamental problem is simply the one of 9
is there a real benefit to be achieved here.
Is there a list 10 of specific items where there is a clear and tangible benefit 11 of having this kind of private discussion where it really is 12 going to accomplish much of anything.
That is where I don't 13 see it.
14 I still think there is a need for procedures and at 15 least the one thing that I think may come out of the ABA 16 review is at least some review of the question of is there a 17 way to sharpen this line and prevent the potential for abuse t
i 18 and provide some remedy.
19 In the meantime, I would urge that we try to discuss 20 a few of these items in a public session and see how it goes 21 and see if there can't be some benefit in just having some 22 information preliminary exchanges among ourselves and with our l
23 senior stati members on a few of these items that are of 24 particular interest to members of the Commission and see how 25 it goes and see it we can't make that process work while we
00 1
wait for what the ABA comes back with, give it a try.
2 CHAIRMAN PALLADINO:
Is there a desire to vote on 3
the deferral now or is there objection to voting if that is 4
the answer?
5 COMMISSIONER ZECH:
I would suggest that we wait 6
until we hear from the American Bar Association.
7 CHAIRMAN PALLADINO:
To what?
8 COMMISSIONER ZECH:
I suggest we want until we hear 9
what they have to say.
You know how I voted.
10 CHAIRMAN PALLADINO:
Yes, I understand.
I am asking 11 do you want to vote on the question of deferring action or 12 would you r a + :.e r do it by notation vote?
13 COMMISSIONER BERNTHAL:
Deferring procedural action 14 is fine.
My vote is out also and I think there is only one 15 vote that isn*t at this point so it is immaterial to me 16 whether we finalize the vote today nor does it matter much it 17 seems to me if we aren*t going to implement until we get some 18 guidance on procedures and so fine, let*s let it sit until we 19 get some more guidance on procedures.
That is all right with 20 me.
21 CHAIRMAN PALLADINO:
My feeling is perhaps we ought 22 to reflect this in revised vote sheets so that it says that 23 you are willing to deter until the section on administrative 24 law of the ABA issues its report to the ABA.
25 MR. CRANE:
Something that ought to be made clear at
67 1
that point and can be done in the vote sheets is to indicated 2
that it would mean maintaining the status quo for the time 3
being.
4 COMMISSIONER ASSELSTINE:
Which is no gatherings 5
under the interim rule.
6 MR. CRANE:
The status quo is that we have --
7 CHAIRMAN PALLADINO:
We have an interim rule.
8 MR. CRANE:
We have an interim rule and we have made 9
commitments to the Congree.s by letter of June 6 as to what 10 will be done if and when such meetings are held.
11 COMMISSIONER ASSELSTINE:
All right.
12 CHAIRMAN PALLADINO:
I think during this period of 13 time while we are waiting, I think we ought to have further 14 examination of some of the implementing procedures but that 15 can be taken up separately while this is going on.
I might 16 wrote a memo on that.
17 Let me propose then that based on Commissioner 18 Zech's suggestion that you consider that suggestion and 19 indicate by vote sheet whether or not you support it and this 20 would represent a revision of your vote sheet if you have 21 already voted for something else.
22 COMMISSIONER ZECH:
Mr. Chairman, the way I look at 23 it to make sure there is not any misunderstanding is that all 24 I am suggesting is that we postpone really the effectiveness 25 of the final rule until we hear from the ABA.
08 1
CHAIRMAN PALLADINO:
Yes, I understand that.
2 COMMISSIONER ZECH:
I am not proposing to change my 3
mind at this time but I am proposing with due respect to the 4
ABA to see what they have to say in this matter.
I think that 5
is prudent for us to do.
6 CHAIRMAN PALLADINO:
I am going to make one other 7
point.
I agree.
I supported the rule.
However, I have come 8
to this.
If there is no discernable benefit that I can see by 9
going through some examples which I would like to continue 10 further, not necessarily at this meeting but perhaps in other 11 discussion, then I say, "It is worth the effort?"
12 I am hoping that some good would come out of this so 13 that it is worth the effort and I am willing to deter and I 14 will ask each of you to send in revised vote sheets even it it 15 is just confirming what you previously voted ot if you are 16 taking action on this deferral.
17 COMMISSIONER ASSELSTINE:
All right.
18 COMMISSIONER ZECH:
Fine.
19 CHAIRMAN PALLADINO:
Is there any more we should 20 discuss at this point?
21 COMMISSIONER ZECH:
No.
l l
22 COMMISSIONER ASSELSTINE:
No.
i l
23 COMMISSIONER BERNTHAL:
No.
24 COMMISSIONER ROBERTS:
No.
25 MR. FLAINE:
No.
69 1
CHAIRMAN PALLADINO:
Let me encourage you to do this 2
by Wednesday of next week.
Let*s see it we can do that.
3 COMMISSIONER ASSELSTINE:
Fine.
4 COMMISSIONER ZECH:
Fine.
5 CHAIRMAN PALLADINO:
All right.
Thank you very 6
much.
We have had a good discussion.
We stand adjourned.
7
[Whereupon, the Commission meeting was adjourned at 8
11: 45 o* clock a.m.,
to reconvene at the Call of the Chair.3 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 CERTIFICATE OF OFFICIAL REPORTER 2
3 4
5 This is to certify that the attached proceedings 6
before the United States Nuclear Regulatory Commission in the 7
matter of. COMMISSION MEETING e
9 Name of Proceeding: Discussion of Revisions to NRC Sunshine Act Reculations (Public Meeting) 10 11 Docket No.
12 Place: Washincton, D. C.
la cate: Friday. January 17, 1986 14 15 were held as herein appears and that this is the originai 16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission.
13 (Signature) j
%cmq (Typed Name of Rdporter)
Lynn Nations 20 21 22 23 Ann Riley & Associates, Ltd.
24 25
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9/35 TRANSMTITAL 'IO:
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ADVANCED COPY 'IO: /
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Meeting
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TRANSCRIPT 1
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