ML20154M325
| ML20154M325 | |
| Person / Time | |
|---|---|
| Issue date: | 05/23/1988 |
| From: | Murley T Office of Nuclear Reactor Regulation |
| To: | Office of Nuclear Reactor Regulation |
| References | |
| NRRL-703, NUDOCS 8806010250 | |
| Download: ML20154M325 (6) | |
Text
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MAY 2 31988 WASHING TON, D. C. 20555 s
MEMORANDUM FOR: All NRR Employees FROM:
Thomas E. Murley, Director Office of Nuclear Reactor Regulation
SUBJECT:
NRR OFFICE LETTER NO. 703 - INTERFACES AND MEETINGS WITH INDUSTRY GROUPS (FEDERAL ADVISORY COMMITTEE ACT REQUIREMENTS) 9 PURPOSE This office letter provides guidance regarding the Federal Advisory Committee Act (FACA) requirements in conjunction with NRR's interfaces and meetings with industry groups.
The guidance stated in this office letter encompasses the staff's involvement with the Institute of Nuclear Power Operations (INPO), the Nuclear Management and Resources Council (NUMARC), and other industry groups.
BACKGROUND The General Services Administration (GSA), implementing its authority to administer the FACA, published a final rule in the Federal Register on December 2, 1987 (52 FR 45926) that is intended to improve the management and use of Federal Advisory Committees and provides administrative and interpretive guidelines to assure compliance with the FACA.
FACA requirements are discussed in memoranda dated February 18, 1988 and October 7,1986 from the Office of General Counsel (OGC) to the Office of the Executive Director for Operations (ED0).
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RESPONSIBILITIES AND AUTHORITIES Section Chiefs, Branch Chiefs, Project Directors, and Division Directors 1.
Recognize the types of situations that could implicate FACA requirements.
2.
Consult with the Assistant General Counsel for Adjudications and Opinions, OGC, or the designated attorney, (x21607 or x21634) during preliminary l
consideration of FACA requirements.
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All NRR Employees 2
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Ensure that meetings between INP0 and NRC staff are limited to information exchanges and status reports regarding the activities and projects of NRC and INPO, are not for the purpose of obtaining INP0's advice or recommendations on NRC policy and regulatory issues, and follow normal procedures for meetings.
Ensure that meeting notices, detailed meeting minutes or summaries are issued (not verbatim minutes or summaries) and placed in Central Files and the NRC Public Document Room.
4 Recognize that chartering of a group or committee is required in order for NRC to seek or receive advice or recommendations.
When meetings are held at NRC or the industry group's office for the purpose of obtaining advice or recommendations on NRC policy or issues, ensure full compliance with FACA.
Full compliance includes ensuring that the committee or group is chartered, and that the meetings are noticed ard open to the public.
Full compliance also ensures that detailed (not verbatim) minutes or summaries are taken and sent to Central Files and the NRC Public Document Room.
5.
Ensure that staff members who deal regularly with INPO are specifically advised of the importance of adhering to FACA and the NRC's "Settlement Agreement," transmitted from OGC to ED0 by memorandum dated October 7,1986.
The issues agreed to in that agreement are stated in Items 5.a - 5.c on page 4 of this office letter.
6.
Ensure that staff's involvement with INP0, NUMARC, and other industry groups is consistent with the requirements stated in this office letter.
l All NRR Staff l
1.
Follow the procedures stated in this office letter.
l 2.
Request that the cognizant manager consult with the Counsel for Adjudica-tion and Opinions, OGC, or the designated attorney, when he or she thinks l
that FACA requirements could apply.
3.
Contact OGC immediately when the issue is urgent to the extent that l
involving the supervisor is not practical at that time.
However, the supervisor should be informed as soon as possible after contact has been made with OGC.
BASIC REQUIREMENTS A.
GENERAL l
FACA requirements are to be fully complied with.
This means that all connittees or groups that we plan to meet with, at any location, to seek l
advice or recommendations have to be chartered;)the meetings must be noticed and open to the public.
Detailed (not verbatim meeting minutes or sumaries must be issued and sent to Central Files and the NRC Public Document Room.
l The meeting summary must include a list of participants and the agenda items discussed at the meeting. Questions pertaining to chartering should be referred to the Assistant General Counsel for Adjudications and Opinions, 0GC, or the designated attorney (x21607 or x21634).
Procedures for issuing meeting notices and summaries are delineated in NRR Office Letter No. 903.
All NRR Employees 3
M23M B.
INP0 1.
The Supplementary Information section of the final rule pertaining to FACArequirements}aspublishedintheFederalRegisteronDecember2, 1987 (52 FR 45926 states:
Agencies are, in effect, cautioned that the FACA would apply when an agency accepts the deliberations of a group as a source of consensus ad/ ice, when heretofore the agency had been obtaining the advice of attendees on an individual basis only. Also, when an agency recurrently uses a group at the group's request, as a source of advice on a preferential basis, exclusion of coverage under the FACA may become questionable even if the group continues only to express its own views without further solicitations from Federal officials.
It is apparent that this cautionary comment could have serious implications for NRC relationships with INPO, NUliARC and other groups.
NRC's settlement with Critical Mass Energy Project (Critical Mass) v. NRC, lo. 84-1943, (D.D.C. September 26,1986), requires full compliance witt FACA in the event that NRC uses INPO as an advisory committee for advice anc recommendations on policy or regulatory issues. A violation could arguable put the agency in contempt of the court that approved the settlement.
2.
The Supplementary Information section emphasizes that all,equirements imposed on advisory committees, except those associated with separate chartering, also apply to subcommittees of those advisory comittees even when the subcomittees do not provide advice and recommendations directly to the agency head. This result is in our view not necessarily compelled by the statutory language or case precedent.
However, as the interpretation of the agency empowered to administer FACA, it will be given substantial weight. The principal effect of this change at NRC will likely be on notice requirements for ACRS subcomittee meetings. These meetings have been held in the open unless there was a reason for closing them, consistent with the Government in the Sunshine Act (Sunshine Act).
However, under our less restrictive reading of the statutory requirement, the subcommittee meetings have on occasion been somewhat more flexible with the timing of announcements.
Under the GSA rules as we understand them, it appears that ACRS subcommittee meetings will need to comply fully with the Sunshine Act l
requirements. An exception is available for small working groups that do such tasks as gather information for the committee or subcommittee.
It appears to be a very limited exception, and OGC will explore with GSA how and where the line is to be drawn.
One-time meetings must comply with FACA. GSA declined to allow agencies the flexibility to decide whether such meetings are covered by the FACA.
i The GSA states strongly its view that the FACA covers ad hoc groups. Thus, GSA declined to provide an exclusion for groups lacking formal organization structure, or continuing existence convened by an agency to obtain views on particular matters of imediate concern.
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N23W All NRR Employees 4
3.
Any agency use of a committee, panel, task force, group, organization, association or the like that is not comprised solely of full-time Federal employees should trigger preliminary consideration of FACA. Agency "use" must be read to include the significance given by the material quoted above to consensus and recurring advice. Examples of such use are requests to a preestablished association that speaks for all or part of a segment of the regulated industry to review the draf t of a proposed agency regulation to provide preliminary comment; to a blue-ribbon panel constituted by the agency for advice on how to handle a specific problem within the agency's regulatory orbit; to a committee of former employees for their views on handling certain personnel problems and the like. When the agency use constitutes obtaining the collective advice of such a group it is more likely that compliance with FACA is necessary. There are, however, differences in the factual setting (such as formality versus informality or single versus repeated meetings) that can make the call more complicated.
In any event, the FACA determination should be given preliminarily.
4.
Preliminary consideration of the FACA question is to include consultation with OGC.
Early consideration with OGC will have the advantage of legal analysis of the contemplated process which could lead to suggestions of other ways to achieve the desired goals without implicating FACA, or where establishment of an advisory committee seems the most productive course, it could lead to more expeditious initiation of the chartering process so that the advisory comittee effort will not be delayed.
5.
Consultation with OGC will also serve to keep the Solicitor informed of any FACA problems that could entail litigation or affect the agency's litigative posture.
In that regard, NRC settled a FACA claim which was one count of a complaint in Critical Mass.
In the Settlement Agreement, Critical Hass agreed to dismiss the FACA count in return for NRC's agreement to do the following:
a.
periodic coordination meetings between INP0 and NRC staff are limited to information exchanges and status reports regarding the activities and projects of NRC and INP0 (they are not for the purpose of obtaining INP0's advice or recomendations on NRC policy and regulatory issues);
b.
full compliance with FACA in the event that NRC uses INP0 as an advisory committee for advice and recommendations on policy or regulatory issues; and l
c.
making available to the public minutes of all future coordination meetings (not verbatim minutes but brief sumaries of discussions),
I subject to all applicable FOIA exemptions, with the exception of the deliberative process privilege of Exemption 5.
Meeting sumaries should also include a listing of participants and agenda items l
discussed at the meetings.
Because the settlement was filed with the court and is 3 part of the official record of the case, any violation of it could arguably put the agency in contempt.
Clearly, therefore, in any dealings with INP0, the staff should
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' All NRR Employees 6
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All NRR Employees 5
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NUMARC NUMARC maintains a general role of providing a unified industry approach to generic nuclear regulatory and technical issues and interacting with the NRC or other government agencies on these issues. The process of NRC's involvement with NUMARC must always be a matter of public record. Therefore, a meeting notice and summary should be issued pursuant to the guidance stated in Office Letter No. 903. These documents should be sent to Central Files and to the NRC Public. Document Room.
EFFECTIVE DATE This office letter is effective immediately.
Original cisned by; It20 mas E. Earley, Thomas E. Murley, Director Office of Nuclear Reactor Regulation cc: See next page Distribution
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'PDTSS Rdg CThomas FGillespie Tliurley JFitzgerald, 0GC SBlack HSmith NRC PDR 5520 Name:
(703)
H. Smith 5/9/86 deleted reference to 10/6 and 10/30/87 ED0 memos H. Smith 5/17/88 Rossi's fix put in Reviewed by Tech Ed and M. Nordlinger (OGC) on 3/22/88
- SEE PREVIOUS CONCURRENCE
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