ML20138P206
| ML20138P206 | |
| Person / Time | |
|---|---|
| Issue date: | 12/13/1985 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Chiles L, Durenberger D SENATE, GOVERNMENTAL AFFAIRS |
| Shared Package | |
| ML20138P209 | List: |
| References | |
| NUDOCS 8512240383 | |
| Download: ML20138P206 (10) | |
Text
\\
orng g
k UNITED STATES 8
3 NUCLEAR REGULATORY COMMISSION
\\
h WASHINGTON, D. C. 20555
%,..... yY CHAIRMAN December 13, 1985 The Honorable David Durenberger Chairman Subcommittee on Intergovernmental Relations Committee on Governmental Af f airs United States Senate Washington, D.
C.
20510
Dear Mr. Chairman:
Our General Counsel on November 22, 1985, forwarded to you the annual reports requested by you in which the Nuclear Regulatory Commission reported on its implementation of the' Government in the Sunshine Act for the years 1983 and 1984.
Your letter also included guidelines for future Sunshine Act annual reports, and asked for our comments and general views regarding our experience in implementing the Government in the Sunshine Act.
Those comments follow.
The Administrative Conference of the United States (ACUS), is the body to which the Sunshine Act itself assigns special responsibilities for interpreting and implementing the statute.
On June 28, 1985, the Administrative Conference adopted Recommendation 84-3, " Improvements in the Administration of the Government in the Sunshine Act".
That recommendation included the blunt observation that "one of the clearest and most significant results of the Government in the Sunshine Act is to diminish the collegial character of the agency decision making process."
The ACUS recommendation continued:
The open meeting requirement has generated reluctance to discuss certain important matters; and discussions, when they occur, may not contribute to achieving a consensus position.
In some agencies the pattern of decision making has shifted from collegial exchanges to one-on-one encounters, transmission cf views through staff, and exchanges of memoranda or notation procedure.
The inhibition of collegial exchanges, in turn, impedes the members in the collective exercise of their responsibilities, and tends to weaken the role of the collegium vis-a-vis that of the staff and the agency chairman.
C The Administrative Conference recommendation therefore concluded:
85122403B3 851213 I
PDR COMMS NRCC CORRESPONDENCE PDR
s s Under the Government in the Sunshine Act the degree of collegiality in the multi-member agencies has diminished.
Congress should consider whether the present restrictions on closing agency meetings are advisable, and, if not, how they might best be revised without undercutting the basic principle of the Act that "the public is entitled to the fullest practicable information regarding the decision making processes of the Federal Government."
If a new balance is to be struck between the values of collegiality and openness, the Administrative Conference suggests that agency members be permitted some opportunity to discuss the broad outlines of agency policies and priorities (including enforcement priorities) in closed meetings, when the discussions are preliminary in nature or pertain to matters, such as budget or legislative proposals, which are to be considered in a public forum prior to final action.
The Commission notes as well the comments of William E. Murane, Chairman of the Administrative Law Section of the American Bar Association, who commended the Administrative Conference for its
" thoughtful analysis" of the Sunshine Act's effects on agency collegiality, and commented that the Act has " deprived both the agencies and the public which they serve of th~e benefit of true collegial decision making."
37 Ad.L.Rev. vi (Fall 1985)
The Commission believes that both the Administrative Conference and Mr. Murane are correct in concluding that the Sunshine Act has diminished the collegiality of multi-member agencies, and agrees with the Conference that Congress should consider revising the Act in order to address this serious problem.
The Commission believes that the ability of Commissioners to confer and exchange information and ideas in a collegial manner is the very reason for creating administrative agencies in the first place; to impair seriously the collegiality of an aClinistrative agency is thus to impair its ability to perform the responsibilities to the public which Congress assigned it.
The Commission has found that a particularly unfortunate effect of the Sunshine Act as applied at NRC under its original 1976 Sunshine Act regulations has been the barrier it has created to informal preliminary discussions.
Such discussions, especially those of a " brainstorming" nature, can help determine which ideas and preliminary suggestions warrant development into proposals for consideration in a more formal decisionmaking context.
As long ago as 1978, the authors of the " Interpretive Guide to the Government in the Sunshine Act," published by the Administrative Conference of the United States, concluded that the legislative history of the Sunshine Act demonstrated the intent of the Congress to permit informal background discussions
to take place without convening a " meeting" of the agency members.
In its unanimous 1984 decision in the case of FCC v.
ITT'World Communications, U.S.
104 S.Ct. 1936 (TVT4),
the Supreme Court agreed with the analysis of the Interpretive Guide and determined that Congress had indeed intended the Sunshine Act to permit " informal background discussions" among agency members outside of the formal " meetings" context.
Specifically, the Court concluded that such "' informal background discussions [that] clarify issues and expose varying views' are a necessary part of an agency's work," and were not intended by Congress to fall within the ambit of the Sunshine Act.
Subsequent to the Court's ruling, the Commission on May 21, 1985, published revised Sunshine Act regulations in the form of an interim rule with request for comment (50 Fed. Reg. 20889).
The purpose of these modifications was to remove the unusually restrictive interpretation of the term " meeting" which had been adopted by the Commission at the time the Sunshine Act was passed by Congress.
These rule changes were designed to allow the Commission the latitude for private collegial discussion permitted by the Act and its legislative history, as interpreted by the Supreme Court, while at the same time conforming with all legal requirements for openness in the government decisionmaking process.
The Commission stated that it would consider public comment on the new rule.
Thirty-four comments have been received, including those of Senator Chiles, and they are currently under consideration by the Commission.
The Commission has held no non-Sunshine Act discussions under the revised regulation during the period for the submission and consideration of the comments.
~
Additional views of Commissioner Zech:
I agree with the objectives of the Government in the Sunshine Act and certainly will abide by its requirements during my tenure as a Commissioner, which commenced on July 5, 1984.
It has been my experience and understanding that under the agency's procedural regulations which initially interpreted and implemented the Sunshine Act, three Commissioners cannot talk with each other for any type of informal discussion without first invoking the procedural requirements of the Sunshine Act.
Thus, there is no type of informal collegial discussion when more than two Commissioners are present.
I believe this result is just the opposite of what is needed to achieve the full benefits of the membership of a collegial body.
In my judgment, the limitation of informal collegi.al conversations has adversely affected the agency's collegial process.
I believe that the benefits of the membership of this collegial body would be enhanced by allowing more than two Commissioners to talk to each other informally without first invoking Sunshine Act procedures.
Agency business would continue to be conducted in accord with the Sunshine Act.
In my judgment this sensible interpretation and implementation of the Sunshine Act would be compatible with the public policy objectives of both the Sunshine Act and of the collegial process.
1 Separate views of Commissioner Asselstine:
I believe that the Sunshine Act as presently formulated strikes the appropriate balance between the public's right to know and an agency's interest in conducting certain meetings out of the public eye.
The Commission majority would have you believe, however, that the Sunshine Act has a deleterious effect on the collegiality of the agency's decisionmaking.
Although I agree that there has been a decline in the collegiality of the Commission in recent years, that is the fault of the Commission, not the fault of the Sunshine Act.
If a Commission is really interested in making the collegial process work, the Sunshine Act will not adversely affect its ability to do so.
However, this Commission does not seem to be interested in truly collegial deliberations on the issues.
This Commission seems to believe that there is little room for dissent, disagreement or compromise on nuclear issues.
Thus, there is seldom any real attempt to discuss the issues and to reach a consensus.
Whether the
. Commission meets in public or in private makes litt.le difference.
The Commission's dislike for any debate on the issues is intensified when that debate becomes public debate.
Because the Commission dislikes ^ debate, it will go to great lengths to avoid discussing issues in public.
The Commission would prefer to mee~t behind closed doors and merely announce the result, the bottom-line of the Commission's decision.
In fact, one Commissioner has indicated a preference not to tell the public the final vote of the Commissioners.
Thus, the source of the Commission's dissatisfaction with the Sunshine Act is not really an adverse impact on the collegial process.
- Rather, it is with the fact that there has to be any public discussion of the issues at all.
What the Commission seems to have lost sight of, however, is that we are all accountable to the public.
As Judge White said in the Philadelphia Newspapers case:
"In the Sunshine Act, Congress moved to ensure that those in government do not forget that they are above all accountable'to the people of this nation...Without a doubt, Congress intended that the Sunshine Act would guarantee public accountability on what is one of the most sensitive and difficult issues of our time:
the safety of nuclear power."
One of the reasons Congress set up the NRC as a Commission was to ensure that a diversity of views were represented on the Commission itself.
The NRC considers important issues of public policy every day, and these issues are by no
s
-* means easy or noncontroversial.
The Congress wanted to provide a forum for public debate on these issues.
By trying to take the debate out of the public forum, the Commission frustrates a part of Congress' purpose in setting up the Commission in the first place, and certainly attempts to frustrate the purpose of the Congress in assuring public accountability on nuclear issues.
In response, the Commission (myself and Commissioners Roberts, Bern. thal and Zech) notes our dissenting colleague apparently disagrees with the Administrative Conference's finding that the Sunshine Act has impaired agency collegiality generally, and with the recent comments of Mr. Murane in the Administrative Law Review, endorsing that finding.
Since he mentions neither, we cannot tell the basis for his disagreement.
We reject altogether, however, his apparent view that to take a realistic view of the Act's effr. cts, as have the Administrative Conference and Mr. Murane, is to declare opposition to public discussion of important issues ar.J to public accountability.
Of course, it is nothing of the kind.
To stress the importance of collegiality in agency processes is not to denigrate the importance of assuring public participation in and observation of the administrative process.
The point is to ensure -- as Mr. Murane's comments stated well -- both agency collegiality and an acceptable level of openness and accountability, recognizing that the public and the agencies are harmed when collegiality suffers.
Finally, with-regard to our colleague's assertion that the Commission majority is not sincerely concerned with achieving and mainta-ining a collegial agency process, we can only assure him that he is mistaken, and invite him to join us in improving the level of collegiality at NRC.
Sincerely,
-)
Y
$$<ds x Nunzik J. Palladino l
1
t g1 k
UNITED STATES NUCLEAR REGULATORY COMMISSION
[
g WASHINGTON, D. C. 20555 l
%,
- s.,
- gh December 13, 1985 CHAIRMAN 1
The Honorable Lawton Chiles Ranking Minority Member Subcommittee on Intergovernmental Relations Committee on Governmental Affairs United States Senate Washington, D. C.
20510
Dear Senator Chiles:
Our General Counsel on November 22, 1985, forwarded to you the annual reports requested by you in which the Nuclear Regulatory Commission reported on its implementation of the Government in the Sunshine Act for the years 1983 and 1984.
Your letter also included guidelines for future Sunshine Act annual reports, and asked for our comments and general views regarding our experience in implementing the Government in the Sunshine Act.
Those comments follow.
The Administrative Conference of the United States (ACUS), is the body to which the Sunshine Act itself assigns special responsibilities for interpreting and implementing the statute.
On June 28, 1985, the Administrative Conference adopted Recommendation 84-3, " Improvements in the Administration of the Government in the Sunshine Act".
That recommendation included the blunt observation that "one of the clearest and most significant results of the Government in the Sunshine Act is to diminish the collegial character of the agency decision making process."
The ACUS recommendation continued:
The open meeting requirement has generated reluctance to discuss certain important matters; and discussions, when they occur, may not contribute to achieving a consensus position.
In some agencies the pattern of decision making has shifted from collegial exchanges to one-on-one encounters, transmission of views through staff, and exchanges of memoranda or notation procedure.
The inhibition of collegial exchanges, in turn, impedes the members in the collective exercise of their responsibilities, and tends to weaken the role of the collegium vis-a-vis that of the staff and the agency chairman.
The Administrative Conference recommendation therefore concluded:
Under the Government in the Sunshine Act the degree of collegiality in the multi-member agencies has diminished.
Congress should consider whether the present restrictions on closing agency meetings are advisable, and, if not, how they might best be revised without undercutting the basic principle of the Act that "the public is entitled to the fullest practicable information regarding the decision making processes of the Federal Government."
If a new balance is to be struck between the values of collegiality and openness, the Administrative Conference suggests that agency members be permitted some opportunity to discuss the broad outlines of agency policies and priorities (including enforcement priorities) in closed meetings, when the discussions are preliminary in nature or pertain to matters, such as budget or legislative proposals, which are to be considered in a public forum prior to final action.
The Commission notes as well the comments of William E. Murane, Chairman of the Administrative Law Section of the American Bar Association, who commended the Administrative Conference for its
" thoughtful analysis" of the Sunshine Act's effects on agency collegiality, and commented that the Act has ". deprived both the agencies and the public which they serve of the benefit of true collegial decision making."
37 Ad.L._Rev. vi (Fall 1985)
The Commission believes that both the Administrative Conference and Mr. Murane are correct in conc 1'uding that the Sunshine Act has diminished the collegiality of multi-member agencies, and agrees with the Conference that Congress should consider revising the Act in order to address this serious problem.
The Commission believes that the ability of Commissioners to confer and exchange information and ideas in a collegial manner is the very reason for creating administrative agencies in the first place; to impair seriously the collegiality of an administrative agency is thus to impair its ability to perform the responsibilities to the public which Congress assigned it.
The Commission has found that a particularly unfortunate effect of the Sunshine Act as applied at NRC under its original 1976 Sunshine Act regulations has been the barrier it has created to informal preliminary discussions.
Such discussions, especially those of a " brainstorming" nature, can help determine which ideas and preliminary suggestions warrant development into proposals for consideration in a more formal decisionmaking context.
As long ago as 1978, the authors of the " Interpretive Guide to the Government in the Sunshine Act," published by the Administrative Conference of the United States, concluded that the legislative history of the Sunshine Act demonstrated the intent of the Congress to permit informal background discussions
to take place without convening a " meeting" of the agency members.
In its unanimous 1984 decision in the case of FCC v.
ITT World Communications, U.S.
, 104 S.Ct. 1936 (TVE4),
the Supreme Court agreed with the analysis of the Interpretive Guide and determined that Congress had indeed intended the Sunshine Act to permit " informal background discussions" among agency members outside of the formal " meetings" context.
Specifically, the Court concluded that such "' informal background discussions [that] clarify issues and expose varying views' are a necessary part of an agency's work," and were not intended by Congress to fall within the ambit of the Sunshine Act.
Subsequent to the Court's ruling, the Commission on May 21, 1985, published revised Sunshine Act regulations in the form of an interim rule with request for comment (50 Fed. Reg. 20889).
The purpose of these modifications was to remove the unusually restrictive interpretation of the term " meeting" which had been adopted by the Commission at the time the Sunshine Act was passed by Congress.
These rule changes were designed to allow the Commission the latitude for private collegial discussion permitted by the Act and its legislative history, as interpreted by the Supreme Court, while at the same time conforming with all legal requirements for openness in the government decisionmaking process.
The Commission stated that it would consider public comment on the new rule.
Thirty-four comments have been received, including your comments, and they are currently under consideration by.the Commission.
The Commission has held no non-Sunshine Act discussions under the revised regulation during the period for the submission and consideration of the comments.
Additional views of Commissioner Zech:
I agree with the objectives of the Government in the Sunshine Act and certainly will abide by its requirements during my tenure as a Commissioner, which commenced on July 5, 1984.
It has been my experience and understanding that under the agency's procedural regulations which initially interpreted and implemented the Sunshine Act, three Commissioners cannot talk with each other for any type of informal discussion without first invoking the procedural requirements of the Sunshine Act.
Thus, there is no type of informal collegial discussion when more than two Commissioners are present.
I believe this result is just the opposite of what is needed to achieve the full benefits of the membership of a collegial body.
In my judgment, the limitation of informal collegial conversations has adversely affected the agency's collegial process.
I believe that the benefits of the membership of this collegial body would be enhanced by allowing more than two Commissioners to talk to each other informally without first invoking Sunshine Act procedures.
Agency business would continue to be conducted in accord with the Sunshine Act.
In my judgment this sensible interpretation and implementation of the Sunshine Act would be compatible with the public policy objectives of both the Sunshine Act and of the collegial process.
_4_
Separate views of Commissioner Asselstine:
I believe that the Sunshine Act as presently formulated strikes the appropriate balance between the public's right to know and an agency's interest in conducting certain meetings out of the public eye.
The Commission majority would have you believe, however, that the Sunshine Act has a deleterious effect on the collegiality of the agency's decisionmaking.
Although I agree that there has been a decline in the collegiality of the Commission in recent years, that is the fault of the Commission, not the fault of the Sunshine Act.
If a Commission is really interested in making the collegial process work, the Sunshine Act will not adversely affect its ability to do so.
However, this Commission does not seem to be interested in truly collegial deliberations on the issues.
This Commission seems to believe that there is little room for dissent, disagreement or compromise on nuclear issues.
Thus, there is seldom any real attempt to discuss the issues and to reach a consensus.
Whether the Commission meets in public or in private makes little difference.
The Commission's dislike for any debate on the issues is intensified when that debate becomes public debate.
Because the Commission dislikes' debate, it will go to great lengths to avoid discussing issues in public.
The Commission would prefer to mee't behind closed doors and merely announce the esult, the bottom-line of the Commission's decistor,.
In fact, one Commissioner has indicated a preference not to tell the public the final vote of the Commissioners.
Thus, the source of the Commission's dissatisfaction with the Sunshine Act is not eally an adverse impact on the collegial process.
- Rather, it is with the fact that there has to be any public d scussion of the issues at all.
What the Commission seems to have lost sight of, however, is that we are all accountable to the public.
As Judge White said in the philadelphia Newspapers case:
"In the Sunshine Act, Congress moved to ensure that those in government do not forget that they are above all accountable to the people of this nation...Without
~
a doubt, Congress intended that the Sur. shine Act would guarantee public accountability on what is one of the most sensitive and difficult issues of our tine:
the safety of nuclear power."
One of the reasons Congress set up the NRC as a Commission was to ensure that a diversity of views were represented on the Commission itself.
The NRC considers important issues of public policy every day, and these issues are by no
' means easy or noncontroversial.
The Congress wanted to provide a forum for public debate on these issues.
By trying to take the debate out of the public forum, the Commission frustrates a part of Congress' purpose in setting up the Commission in the first place, and certainly attempts to frustrate the purpose of the Congress in assuring public accountability on nuclear issues.
In response, the Commission (myself and Commissioners Roberts, Bernthal and Zech) notes our dissenting colleague apparently disagrees with the Administrative Conference's finding that the Sunshine Act has impaired agency collegiality generally, and with the recent comments of Mr. Murane in the Administrative Law Review, endorsing that finding.
Since he mentions neither, we cannot tell the basis for his disagreement.
We reject altogether, however, his apparent view that to take a realistic view of the Act's effects, as have the Administrative Conference and Mr. Murane, is to declare opposition to public discussion of important issues and to public accountability.
Of course, it is
. To stress the importance of collegiality nothing of the kind.
in agency processes is not to denigrate the importance of assuring public participation in and observation of the administrative process.
The point is to ensure -- as Mr. Murane's comments stated well -- both agency collegiality and an acceptable level of openness and accountability, recognizing that the public and the agencies are harmed when collegiality suffers.
Finally, with regard to our colleague's assertion that the Commission majority is not sincerely concerned with achieving and maintaining a collegial agency process, we can only assure him that he is mistaken, and invite him to join us in improving the level of collegiality at NRC.
Sincerely, f,Lu W ' 6 Wd-~
Nunzio J. Palladino
_.