ML20137K159
| ML20137K159 | |
| Person / Time | |
|---|---|
| Issue date: | 05/01/1985 |
| From: | Asselstine J NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20137K152 | List:
|
| References | |
| FOIA-85-422, FOIA-85-536 NUDOCS 8601230501 | |
| Download: ML20137K159 (3) | |
Text
'
~~
R
, g\\,
f NUCLEAR RE2ULATSRY COMMIS$10N
{
t~ASHINGTON,O.C. 20508
\\.....
OPPICE OF THE CORAMOSIONER May 1, 1985 i
l MEMORANDUM T0:
Samuel J. Chilk, Secy FROM:
James K. Asselstine 7
SUBJECT:
SEPARATE VIEWS ON PROPOSED SUNSHINE RULE l
Attached are my separate views on the proposed rule to change the l
Comission's sunshine regulations.
Please send them to the Federal e
Register with the proposed rule.
cc:
Chairman Palladino Comissioner Roberts Comissioner Bernthal Comissioner Zech OGC OPE a
4 i
l 1
}
b I/
0601230501 051219 PDR FOIA DELLG5-536 PDR n3
r SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I approved publication of the proposed changes to our rule implementing the Sunshine Act only in order to obtain comment on those changes.
However, I have significant concerns about the difficulty of administering the proposed standard which make it impossible for me to endorse the proposed rule.
I particularly invite comment on the concerns expressed below.
The Sunshine Act is not an easy act to interpret or to apply.
This is the primary reason the Commission's present regulation was written as it was. The Commission's regulation sets up a bright line for determining what constitutes a meeting and what does not.
While the Commission may have given up some flexibility when it set up that bright line standard, it did so with a reason. A standard which provided more flexibility would, of necessity, have been less certain and would have created problems of interpretation. Adopting a more flexible standard would have made it easier for the Commission to misapply the Act inadvertently in a particular case.
The standard in the proposed rule suffers from just these problems.
Because the standard is vague and subjective, it will be much more difficult to administer than the present standard.
Predicting whether a particular meeting will consist of discussions "sufficiently focused on discrete proposals or issues as to cause or be likely to cause the
f individual participating members to form reasonably finn positions regarding matters pending or likely to arise before the agency" will require nothing short of divination. And, if the Comission guesses wrong, there is no remedy because if there is no " meeting" there will be no notice, no transcript, and no minutes.
If the Commission insists on going forward with the proposed rule, it should at least have made clear in the statement of considerations what change to present practice the rule is intended to effect. The Comission should have explained, with concrete examples, exactly what kind of meetings now held by the Commission will be treated as
" gatherings" under the proposed rule.
Or, if the intent is to create a new type of meeting not now held by the Comission, that should have been made clear, i'
I also cannot support the Comission's decision to make this rule imediately effective by applying it while the coment period runs. A rule changing the manner in which the Commission implements the Government in the Sunshine Act, an act the purpose of which was to provide the public with "the fullest practicable information regarding the decisionmaking processes of the Federal Government" (P.L. No.94-409 52), is clearly a rule in which the public has an interest.
The Comission should await public coment before putting the rule into effect.
The Commission has operated under its present rule for eight years without catastrophe. Waiting thirty more days for public coment hardly seems to be an onerous burden.
l
!