ML20209D938

Responds to Request That NRC Look Into Concerns Raised by M Nelson

ML20209D938
Person / Time
Issue date:	06/29/1999
From:	Rathbun D NRC OFFICE OF CONGRESSIONAL AFFAIRS (OCA)
To:	Helms J SENATE
References
FRN-64FR24936, RULE-PR-9 NUDOCS 9907140091
Download: ML20209D938 (13)

Text

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UNITED STATES j[

j NUCLEAR REGULATORY COMMISSION Of

([3 WASHINGTON. D.C. 2008H001

+.

June 29, 1999

.co g DOCKET NUMBER o^r PROPOSED RULE.I! 9 AD (WRM9%)

The Honorable Jesse Helms United Statas Senate Washington, D.C. 20510

Dear Senator Helms:

I am pleased to respond to your request that the U.S. Nuclear Regulatory Commission (NRC) look into concerns raised by Mayor Michael R. Nelson'of Carrboro.

Mayor Nelson's letter was written before the NRC issued its recent (May 10,1999) Federal Register notice regarding the Sunshine Act, and its characterization of the NRC's action is not altogether accurate. According to his letter, the NRC " seeks exemption from the Sunshine Act."

In reality, the NRC seeks nothing of the sort. As the enclosed Federal Register notice makes clear, the NRC's action starts from the premise that the Sunshine Act fully applies to the NRC.

The question, rather, is of the definition of a " meeting" under the Act.

The Supreme Court explained in a unanimous 1984 decision that in enacting the Sunshine Act, Congrass did not provide that everydiscussion of agency business should be t eated as a

" meeting," because it understood that this would impede the kind of informal, p,eliminary discussions that are an important part of a government agency's work. Unfortunately, the NRC initially interpreted the Act as though every discussion should be considered a " meeting," in part i

on the basis of erroneous legal advice from the Justice Department in 1977. After the Supreme i

Court's clarification of the law in 1984, the NRC changed its regulations to reflect the Court's guidance, but in the face of sharp criticism of _its action, the NRC never implemented the rule

/j change, and continued its earlier practice of treating all discussions of agency business as

/

'I

" meetings." The NRC's recent action is intended to ensure that the NRC's practice and regulations conform to the Supreme Court's guidance.

Implementation of the rule change will permit the NRC Commissioners to hold certain kinds of discussions, unrelated to any specific issue; to hold informal and preliminary discussions of agency-related business; and to receive status or informational briefings related to staff activities. The kinds of issues that Mayor Nelson identifies in his letter as being of concern to the citizens of Carrboro -- for example, a pending specific application for license authorization to expand nuclear waste storage capacity at the Shearon Harris plant -- are of sufficient specificity that a quorum of Commissioners could not discuss discuss and formulate positions on the application except in " meetings," just as is the case today.

9907140091 990629 PDR PR 9 64FR24936 PDR 99/0

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Mayor Nelson's letter speaks of the need to maintain "an open deliberation and decision process at the Nuclear Regulatory Commission." The Commission's recent action is fully consistent with Congress' intent that the Sunshine Act's procedural requirements shall apply whenever discussions are, in the words of the Supreme Court, "sufficiently focused on discrete l

proposals or issues as to cause or be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency "

in short, this decision is not intended to produce, nor should it produce, any reduction in the l

openness of the deliberative and decisional process at the NRC.

I trust that this letter is responsive to Mayor Nelson's concerns. His letter will be included in the public comments to the Federal Reaister notice.

l Sincerely, i

JM j

Dennis K. Rathbun, Director i

' Office of Congressional Affairs

Enclosure:

As stated 1

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Federd Register / Vel. 64, No i,J/M:nday, May to,1999/ Rules and Regulations 34s36 f

(2)Toenhas the ble cwt (not to condition for arising underb NUCLAAR RESULATORY seceed as. coo ewt milk marketed appucation, or bpart, and if any mana'am0N j

osamerelally during the bene period refund of a paysant to CXX:shall 10 CPR Port 3

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i tem aH a applications; and obrwise beoonne due in connection

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Is) Divi the amount available for with the application, or this subpert, all gust 3tseases i

Dairy Mar s AssistanceProgram payments made under this sub Government in the Sunshine Act lI to by the total eligible cwt submitted and any dairy operation shall be mded to t.

eyment CCC together with intenst as Requiettens b'

apgroved fogr detenmined in accordance with acessev: Nuclear Regulatory I

i sted h I ns th Peregraph (c) of this section and late-Co m aluion.

be e

)(3) of this secuan by the kry payment charges as provided for in part agmose: Final rule: Nottee of intent to E

l yment rete determ!

in agraph

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Im of his chapter.

implement currently eSective rule and 5"

i op(eration's eligible prodaction.c) ha the event that op,,roval of all (b) All persons listed on a dairy request for m===ta.

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eligible applications would result in operation's plication shall be }ointly ausstaany:The Nuclear story g

i arpenditures in excess of the amount and severall hable for any refund, Commission (Commission is available. CCC shall nduce the payment including re sted charges,which is announcing its latent to implement a rete is such manner as CCC,in its sole determined to be due for any ruson Anal rule, puWahl and made oNective discretion, Ands fair and reasonable.

under the terms and conditions of the h

ePplication or this subpart.

pp) th Gov t

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stase.sor ame. w

-. ens e home (c)laterest shall be applicable to Sunshine Act.The m==laaion is r

(a) A dairy operatjan shall be nfunds required of b dairy operation taking this action to provide an er devese.

int!Jgible to receive assistance under if CCC determinn that paymunts o' opportunity for public comment on its this program if it is determined by the other assistance won provided to the intent because of the time that has State committee or the county producer was not ehgible for such pused since b Conunission last committee to have:

assistance. Such interat shall be addroned this issue. This action is j

til Adopted any scheme or device charged at the rete of interest which the necouary to complete swolution of this which tends to defeat the purpose of United States Treasury charges CCC for (mue.

un s. as of the das ma6 d oatss:The May 21,1945,inwrim mle r

l this fMade any fraudulent benents available. Such internt shall became efective May 21,1985. Submit rogram; l

(2 accrue fmm the date such benents won comments by June 9,1999. Unleu the j

1$ste reker ted any fact affecting e made available to the date of repayment Commission taku further action. non-l or the date interest increases as Sunshine Act discussions may be held l

pYb$am determination.Any funds disbursed punuant to determined in accordexe with Wina June 1,1999 this part to a dairy operation engaged in applicable regulet2ons. CCC may waive Aponesess: Submit written comments a misrepresentstion, scheme, or device, b accrual ofinterest if CCC determines to: Secretary, U.S. Nuclear Regulatory er to any other person as a rwult of b that b cause of the erroneous Commission Wu on. DC 20555-

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dairy operation's actions, shall be determination was not due to any action 000), A'!TN: Rulem and refunded with interest togeht with such obr sums as snay becoma due.

of the dairy operation.

Adjudicatione Staff.

Any dairy operation or person agaged (d)Intwat deurmined in accordance pon punfiesa esponstatioes cos# TACT: Trip in ects prohibited by this section and with paragraph (c) of this section may Rothschild, Assistant General Counsel, any dairy operation or person receiving be waived by CCC with respect to Of5ce of the Genere1 Counsel, U.S.

payment under this subpart shallbe afunds required of b dairy operation Nuclear Regulatory Commission, jointly and severally liable for any because of unintentional misection on Washington, D.C. 20S55, (301) 415-1607.

refund due under this section and for b part of b dairy opwetion, as related charges. The mmedies provided determined by CCC.

suppi.sasservany esponesAfloN:The Comminion, through this nouco of b in this subpart shall be in addiuon to Wu pa mawt shau be ethw civil, criminal, or administradve suused on brefunds in accordance Comminion's intent to implement a rule published and made efective in needies which may apply.

with the provisions of. and subject to 1985, seeks to bring closure tc, a l1430.50s IAsintaining reeeres.

the rates presalbed in 7 CFR part 1403.

Dairy perations making application (f) Dairy operations must refund to ppl s

t in for bene is under this program must CCC any excess payments made by CCC [ Sunshine Act.Because of the years maintain accurate records and accounts with respect to such application.

that have ela

, the Commission is (3)In b event that a benefit under providing tice ofits intent to hg'ibI pounds ofmilk this subpart was provided as b ruult implement this rule and is providing an a

ts i

is of erroneous informauon provided by opportunity for additional public subpart an marketed commercially during &

any penon,the benent must be npaid comment on the Commission's proposal fourth quarter of 10:s and b bue with any applicable interest.

to implement.

D* purpose of the rule is to bring the period. Such records and accounts must Signed at Weahington, D C.,on Apr0 30.

NRC,s Sunshine Act regulations, and De retained for at least three years aher the date of the cash payment to dairy tese.

the way they an applied by NRC. into cperations under this program.

Ketth Kell '

closer conformity with Congressional 7

Execuuve Mee President. Coriunodtry Oedit intent, as set forta in the legislative l ta30.500 netwnee; joint end several history of the Sunshine Act and as Corpompon.

8*Ulsty.

In Doc e9-M5e6 Fded S-7-ee, a;45 arn) clarified in a unanimous Supreme Court (a)In the event there is a failure to decision, FCC v. ITT World comply with any term, requirement, or sua.o coot me.ew

Federal Register /Vol. 64. No. 89/ Monday May 10.1999/ Rules and Regulations 24937 Communications 466 U.S. 463 (1984).

Communicofions. 466 U S. 463. Though to bring the NRC in*o line with The NRC's original Sunshine Act the case could have been decided on Congressionalintent.

regulatioris, adopted in 1977, treated narrow, fact specific grounds, the Court Soon after that,in August 1984, the

(.very discussion of agency business by used the opportunity to offer guidance Administrative Conference of the three or more Commissioners, no matter on what leading commentators have United States (a body, since abolished.

how informal or preliminary it might be. described as "one of the most to which the Sunshine Act assigned a as a " meeting" for Sunshine Act troublesome problems in interpreting special role in the implementation of purposes. As the 1984 Supreme Court the Sunshine Act": the de$nition of the Act by federal agencies) issued decision made clear. however.

" meeting" as that term is used in the Recommendation 84-3 based upon an

" meet.ngs." to which the Act's Act. R. Berg and S. Klitzman. An extensive study of the Sunshine Act.

procedural requirements apply. were Interpretive Guide to the Government in The Administrative Conference was never intended to include casual.

the Sunshine Act (1978), at 3. The Court troubled by what it saw as one harmful g:neral, informational. or preliminary rejected the broad view of the term effect of the Act on the functioning of discussions, so long as the discussions

" meeting" that the U.S. Court of the multi member agencies.

do not effectivelv predetermine final Appeals for the District of Columbia Commenting that "one of the clearest agency action. These kinds of"non-Circuit had taken. It declared that the and most significant results of.he Sunshine Act discussions."which can statutory definition of a " meeting" Government in the Sunshine Act is to be an important part of the work of a contemplated " discussions that diminish the collegial character of the multi member agency, had been effectively predetermine official agency decision making process." the foreclosed at NRC since 1977 by the actions.'" The Court went on:

Administrative Conference agency's unduly restrictive recommended that Congress consider Such discussions must be "sufficiently interpretation of the Sunshine Act.

focused on discrete proposals or issues as to whether the Act should be revised. The in response to the Supreme Court.s cause or be likely to cause the individual Conference observed:

clarification of the law. the Commission articipating members to form reasonably h the legislative history indicates in 1985 issued an immediatel) effective firm positions regarding matters pending or Althoublieved that. efter the initial penod Conbstinent. Sunshine would not have a u

rule that revised the definition of likely to arise before the agency." 466 IJ.S.

ofa "rneeting"in the NRC's Sunshine Act at 47L significant inhibiting effect on collegial TIgulations. To ensure strict conformity The Court reviewed the legislative exchang s. unfortunately this has not been with the law the new NRC rule history, demonstrating how in the the can.

incorporated verbatim the Supreme process of revising the original bill.

If Congress decided that revisions Court's definition of "rneeting." The Congress had narrowed the Act's scope. were in' order. the Conference said, it rule change drew criticism. however.

In the Court's words. "the intent of the recommended that agency members be much ofit directed at the fact that it was revision clearly was to permit permitted to discuss "the broad outlines made immediately effectis e. with an preliminary discussion among agency of agency policies and priorities"in opportuntiv to comment only after the members." Id. at 471, n.7. The Court closed meetings. rhe Administrative fact.To address wme of the ' oncerns explained Congress's reasons for Conference did not address the c

raised, the NRC informed the Congress limiting the reach of the Sunshine Act:

distinction between " meetings" and at o d otim e

mle

.Congrus in drafting the Act's definition of those discussions that are outside the d

monitor and keep minutes of all non-

" meeting" reco ized that the administrative scope of the Act.

I" th' Sunshine Act discussions among three fub5c"e e" (linfo na II. The NRC's 1985 Rule e grou or more Commissioners No such discussions (thatl clanfy issues and expose On May 21.1985 (50 FR 20889), the procedures were ever adopted. however, varying views" are a necusary part of an Nuclear Regulatory Commission issued nor was the rule itself implemented. and agencyi work. [ Citation omitted 1 The Act's new regulations implementing the tha issue remained pending from 1985 procedural requirements effectively would.

Government in the Sunshine Act. As a en.

Prevent such discussions and thereby impair legal matter, the NRC could have The Commission believes that it is normal agene operations without achievin continued to use the lan e of its ap2 existing regulations, and einterpreted

'8,"dC'"g'g,ijbe tS on j

time to bring the issue of the NRC's Sunshine Act rules to a resolution. As them in accordance with the Supreme futed.because of the many years that Id. at 469.-70.

gg.: decision. However, the NRC havs passed since the Commission last At the time the Supreme Court decided that in the interest of openness, addressed this issue, the NRC is handed down the ITT decision, the it should declare explicitl that its view providing this notice of its intent finally Nuclear Regulatory Commission had for of 6 Act's irements ad changed to implement and use the 1985 rule, and almost eight years applied the 6 ligM of m 's W providing 30 days for public comment Government in the Sunshine Act as The revised rule conforms the en the Commission's proposal to though it required every discussion of definition of" meeting"in the implement. The Commission will not agency business to be conducted as a Commission's rules to the guidance modify its current practices, under

,' meeting. Recogmzing that the provided by the Supreme Court by which no non Sunshine Act discussions Supreme Court s guidtnce indicated incorporating the very language of the take place. until it has had the that the NRC s interpretation of Court's decision into its revised cpportunity to consider any comments

" meeting

• had been undu broad,the definition. Specifically,it provides, at received NRC s Office of the Gener Counsel to CFR 9'101(c)'

(OGC) advised the Commissioners in M ting means the deliberations of at least I. Background May 1984 that the decision seemed

• g", rum

"'"

• h r e $

On April 30.1984, the United States significant: the decision was unanimous ons rmi e or e u n the oint Supreme Court issued its first decision and it was the first time that the conduct or disposition of omcial int:rpreting the Government in the Supreme Court had addressed the Act.

Commission business. that is, where Sunshine Act. Federol Communications OGC suggested that revisions in the discussions are sufficiently focused on Conunission v. ITT World NRC's regulations might be appropriate discrete proposais or issues as to cause or to

l 34938 Feder:1 Register /Vcl. 64. No. 89/M:nday, May 10,1999/ Rules and Regulations Moreover, the legal standard est forth in Report at 8. The report noted that this be likely to cause the individual participating the ABA recommendation incorporated argument in essence was a claim that memben to form reasonably firm position

• ding matters pending or likely to arisc theidenticall age from the Supreme agencies should apply a different standard from the one speciBed by be ore the esencyEeliberations required or Court opinion ch the NRC had it$n th includedinits 1985 rule: 1.e., the Congrus for distinguishing " meetings" I

ituIe i ss from discussions that are not

{rovision stating that for a discussion to " meetings " The ABA explained:

.. meeting,,from the definition ofitmustbe (not)sufficiently

. *

• Congrus can hardly hm gone to definition.

• • • mPt Under the rule, which was adopted as an immediately effective " interim" rule i cused on discrete proposals or issum such pains to articulate a narrower standard (it was characterized as " interim" to as to cause or belikely to cause the had it not expected the agencies to use the ncy]

leeway such a standard provides, and if they reflect the fact that it was being made individual participating (b y firm are to do so, they must ettempt to set oot in effective before any comments were seembers to form reasona edvance, whether by regulation or internal ositions regarding mattws pending or Id'Ii" 'h* 'I'**" Ch*C'i

I, received and addressedJ.with an fikel to arise before th' 88',"b ABA 8"discuulo'n which will cause it to fall short Y

4" cpptrtunity for public comment.

e cu et qudMon of being a muting. Report at s in. 9.

briefings were excluded from the category of "meetin8s." In the NRC's gui elines provide that the definition of The ABA report,s conclum.on was a re-1985 regulations. by contrast.

" meeting ** don not include measured endorsement of the value of iefings were treated as meetings, as a

(*) S ontueous caual discuulone among non Sunshine Act discussions. After P

matter of polier.

agency members of a subject of common strusing that its purpose was not to The NRC's l'985 rule proved I

't b) B riss of e en c:ntroversial. In response to

,"[',,

udbe urge agencies to close discussions now held in open session, the report made

,{

A,

. n Congressional criticism. rauch of it that the seency members be primarily clear that its focus, rather, was on the directed at the Commission's decision to receptors of in' formation or views and only make_the rule immediately effective, the incidentally exchange views with one discussions which,because of the Cornmission assured the Congress that jt another;(c) General discussions of subjects Sunshine Act, are never initiated in the which are nlevant to an g ncy's first place. It said:

would conduct no non Sunshine Act I

But the fact is that the Sunshine Act has

'",Pgib ities but pefency r s$1Ution:andhad an inhibiting effect on the initiation of discussions until procedures were in

,, to place to govern such discussions.

f g,p;,p

. discussions. so long as they discuulons among agency members.This is 3

in December 1985.the NRC s Office of are preliminary in natun, then an no the conclusion of the welborn report ito the the General Counsel forwarded a final pending proposals for agency action, and th, Administrative confenneel. and it is rulemaking paper in which comments merits of any proposed esency action would confirmed by our meeting with agency on the interim rule were analyzed and be open to full consideration et a later tune. ' generalcounuts * *

• ITlhe Act has made,

rssponded to However, by th'e time that The ABA report disposed of he dimcult if not impoulble the mainanance o.

t the Commission was brieled on the suggestion. advanced by some critics of k,'[.d*Y d d 8

p' the NRC's interim rule. "that the me nc s comments, the American Bar Association had announced its intention Supreme Court's opmion should be

• *

• We believe that a sensible and i

limited to the facts before the Court."

unsitive appit ation of the principles to address Sunshine Act issues, including matters directly related to the While it recognized that the cr.se could announced in tH r!T cue can use the NRC's rulemaking The Commission have been decided on fact specific somewhat stilted relationships that exist in some agenciu. Report at it-12. (Ertpbuis in therzfore decided to withhold action on grounds, the report observed that:

the origmall the matter and to defer actual Illt cannot be assumed that the Supreme The ABA report made clear that it did implementation and use of the 1985 rule Court got carried away or that it was unaware not regard the opportunity for non-that the definition o'" meeting" wu pending receipt of the ABA's views.

controvenial and "one of the most Sunshine Act discussions as a fanacea for the Sunshine-caund loss o IIL The American Bar Anociation Acts troublesome problems in mterpreting the.

Sunshine Act."linterpretive Guide 3.1 We collegiality which the Administrative in the fall of 1985. William Mutane.

concluded therefore. that the Supreme Court Conference had identified, and which Chairman of the Administrative Law Section of the American Bar

,ti[,s anM*t hended to the ABA's own inquiry had confirmed.

i' *id I The Report concluded that the impact of Association. announced that the provide guidance to agencies and the courts loosened restrictions was likely to be Council of the Administrative Law in applying the definition of" meeting."

" slight," though it saw "some tendency Section had decided to involve itself in Report 'at 7.

• to the to increase collegiality * *bute to more tha controversy over the Sunshine Act The ABA re ort also re}ected the extent that it would contri and its effect on the co!!egial character argument that nun of the" difficulty nonnal interpersonal relationships cf agency decision making.

of specifying in advance those among agency members." Report at 12.

Administrative Law Review, Fall 1985, characteristics of a particular discussion The Report also observed that Vol 37. No. 4. at p. v. The Task Force which will cause it to fall short of collegiality is most important in group established by the Administrative Law becoming a meeting." the Supreme decision making sessions, where the Section ultimately focused on a single Court's view of the Act should not Act's " meeting" requirements clearly issue: the definition of " meeting" under become part of agency practice.

apply.

inal.] The logic of The ABA report recommended that (Emphasis in the orike ABA report, the Sunshine Act. Its report ana recommendations were accepted by the Administrative Law Section in April would permit no discussion whateser of agencies follow procedurel this argument, said t 1986 and by the full American Bar agency business except in " meetings " a Sunshine Act discussions to give Association in February 1987, result which "seems clearly to us not to assurance to the public that they are The ABA's recommendation and have been intended by Congress."

stayin within the law.The ABA made report confirmed that the Commission's char at h was a po%

reading of the Sunshine Act as

, a futier desenpiion of the types of discussion.

recommendation, not a matter of legal interpreted by the Supreme Court in the nmns in mese four ceiesones may be found ei obligation. (The report noted at one i

ITT decision.was legally correct.

poses e to :: of the Asa report I

i 1

2_

\\

i' Federal Register / Vel. 64.' ND. 89/M:nday. May'10,1999/Rults and Regulati:ns 24939 point that if a discussion "is not a '

51679;19es) and 1G CFR 1704.2(d)(5)

W Adainistrative Conference, then W

' testing / no announcement or (66 FR 9809;1991), respectively.

soon to be abolished, took up the procedures are required because h Act in February 1995. Commissioner group's challe' ige, assembled a t,w.11 bas no application." Report at 6.)The Steven M.H. Wallman of the Securities committee to s'udy the Sunahine ra.t.

' ABA recommended that General and Exchange Commission, joined by.

and convened a mestang in September.

Counsels brief agency members in twelve other Commissioners or former 1995,to discuss the Act,its problems, advance on the requirements of the law. Commissioners of fourindependent av. ponible remedies.The Conference to assure their familiarity with the regulatory agencies (b Securities and appeared to be loo'as for some eestrictions on non Sunshine Act Exchange Commission. Federal compromise, accep. ole both to the discussions and that non Sunshine Act Communications Commission.

Federal agencies and to representatives diserssions (other than *~ spontaneous Commodity Futures Tradhis of the media, that would acknowledge casual discussions of a subject of Commission. FederalTrade the Act's impairtnent of the collegial t ;nuson interest")be monitored either Commission), wrote to the procas and try to remedy that by giving Administrative Conference of the grestw flexibility to agencies in by the General Counsel or other agency United States to urge a reevaluation of applyingthe Act.Noconsensus represntatives. and memorialized. ~

' through nota, minutes, or recordings.

the Sunshine Act. The group expressed developed, however. The strong support for the Act e objective of Administrative Conference, apparently

IV.Further Developseents ensuring greater public access to agency recognizing that there would be no On August 5.1987, an amendment decision meking, but questioned meeting of the minds between critics was offered to the NRC authorization whether the Act, as currently structured and defenders of the Sunshine Act, did 1

bill to bar the Commission from using and intwpreted, was achieving those not pursue its efforts to find common any funds la fiscal voar 1988 or 1989 "to goals. The group said that the Act has ground.

hold any Nucint R'egulatory a " chilling effect on the willingness and y Cunmission meeting in accordance chility of agency members to engage in with the interim (Sunshine Act) rule an open and creative discussion of The Commission has taken into

- [ published ini the Federal Register on issues."It continued:

account information from a number of quanws, as well as its own experience May 21,1985." 133 Cong. Rec. H7178 In 31most all enn. agency members in implementing the Sunshine Act. It (Aug. 5.198713 As Chairman Philip derating under the Act come to a conclusion has considered, among other thmgs, the Sharp of the Subcommittee on Energy shout a matter * *

• without the benefit of and Power of the House Committee o'n anF collective deliberations. l Footnote language of the statute and its legislative omitted.) This is directl> in contlict with the history; the Supreme Court's decision m Energy and Commerce explained, the fru nebange of views that we beheve is the ITT case; Recommendation 84-3 of kmendment " simply net.tralizes a rule necusa m an a n v member to the Administrative Confwence of the dange." The amendment passed by a fulfili adequately his or fer delesated duties. United States;the findi."8s of the voice vote. was not passed Whe Senate and to be held sceountable for his or her American Bar Association; actual and thus was not enactd ant'o Ir.w.

actions Practice at ether federal agencies, The Commission Nok no furier We are also of the view that the Act is et action regarding the Sunshine Act after odds with the underlying principles of multj. including the DNFSB and OSHRC: and a

1985, and the issue was allowed to.

huded agencin Then asencin were the advice letter from numerous crated to provide a number of benefits.

Commissionws and former be d

\\\\'hil 6..

otlae

'8 n8 mmiu1 as of ufy r'al of19 5 h emained n feet and eo$8 th ugh a

o{

d on ail oYthese.tYe cies.

,3 t

Commission on the books. at 10 Code of Federal tenured. independent oppointus would b*

Ba Regulations.Part 9. the C0mmission has better than one. tJnfortunately.the Act often believH that while the Sunshine Act's continued to apply its pre 1985 rules.

turns thei goal on its hud.resulting in objectives, which include increasing Accordinglv.all discussions of business greater cuscommunicatic n sad poorer d i storingubl

~

d a matter og ncy o ess by three or more Commissi:mers have

,jsion n8p}Pfecluding decision making in a colle is way. As e agencies do business, are laudable, it is continued to be treated as meetings..

whether formal or triformal, deliberative result, the Act inadvertentfy transforms importAnt tu recognise exactly what it

. Er informational, decision oriented or muhi.haded agencies into bodies headeo by was that Congress legislated. The e mber ofindividually acting members.

legislative history, as the Supreme Court preliminary, planned or spontaneous.

No non Sunshine Act discussions of any sotnote omiued.)

explained, shows that Congress kind have been he'd. In the meantime-The group identif.ed as one problem carefully weighed the competing s:me other agencies adopted and the issue confronted by the NRC's 1965 considwations involved: the public's implemented rules that permit informal rulemaking: that "many agencies" right of access to significant discussions that clarifv issues and avoidei the problem of distinguishing information, on the one hand, and the expose varying views but do not between " preliminary conversations, agencies' need to be able to function in cffIctively predetermine official actions, which are outside of the Act, and --

an efficient and collegial manner on the discussions of the sort that the Court's deliberations, which trigge the Act."by other. Congress struck a balance it did

. ITT decision said are a necessary part 6 blanket prohibition, as a matter of not legislate openness to the maximum cf an agency's work." 466 U.S. at 469-general policy, against any convwsation extent possible, nor did it provide

70. See, for example, the Occupational among a quorum of agency members,-

unfettered discretion to agencies to offer J

~ Safety and Health Review Commission's except in " meetings" under the only as much public access as they l

(OSHRC) and Defense Nuclear Facility

. Sunshine Act. While such bright line might choose. Rather, it e. rafted a system Safety Board's (DNFSBl definitions of policies were easy to apply and in which the Sunshine Act would applv

" meeting", at 29 CFR 2203.2(d)(50 FR effective, the letter said, they were often only to " meetings," a term carefully ~

over inclusive, barring discussion of defined to exclude preliminary.

.Nu'n'd7n's [tNa'd rt en even the most preliminary views and informal, and infcrmational discussions, e Hou e o often impeding the process of agency and then provided a swies of uprewni tn n m aw, npnnied in futi m srcy, decision making.

exemptions to permit closure of certain es.:s Ll D

24940 Fed:r:I Register / Vel. 64, N3. 89/ Monday, May 10,1999/Ruhs vid Regulations i

t categories of " meetings." Unfortunately, Freen previous comments,the found the American Bar Asrociation in part because of advi:e from the following are possible questions about Task Form on the Sunshine Act agreed, Justice Department in 1977 that later the 1985 rule, and the Commission's the Council of the Administrative law i

pt:ved to be erroneous.the -

responses to those ouestions.

Section of the American Bar Association Ccmminion's original Sunshine Act

1. What types of discussions does the adopted the Task Force's views, and the regulations did not give due recognition Commission have in mind, and what ABA's full House of Delegates accepted in the balance contemplated by does it sak so accomplish with this the Administrative law Section's report Congress. Rather,the regulations rule?

and recommendation.

mistakenly took the approach that every Answer: First and foremost, the

3. Didn't the ITT case involve a trip discussion among three or more Commission would like to be able to get en Europe by less than a quorum of FCC j

Commissioners, no wtter how far together as a body with no fixed agenda ambers, and couldn't the case be removed from being "Ascussions that other than to ask such questions as:

viewed as relating to those specific cffectively predetermine official

" Haw is the Commission functioning as facts?

actions."in the Supreme Court's words, an agency? How has it performed over Answer:The case was resolved on two should be considered a " meeting." 466 the past year? What have been its major. separate grounds. Although the U.S. at 471.

succans and failures? What do we see Supre:ne Court did not have to ruch the At the time that the Commission

.oming in the next year? la the next five issue cf what constitutes a " meeting" changed its Sunshine Act rules in 1985, years, and ten years? How well are our under the Sunshine Act,it did so,in many ofits e.ritics appeared to believe components serving us? Are we getting order (so the ABA report concluded) to that if the rule change were m mesage to the industry we regulate provide guidance to agencies and the

- Implemented. nurnerous discussions and to the public? Are we working courts on a difficult aspect of Sunshine currently held in public session would effectively with the Congress?" This Act law. In addssssing the ambiguity in instssd be held behind closed doors.

kind of big picture" discussion can be the definition of" meeting" and thus the This was a misapprehension. Indeed,if invaluable. One of the regrettable effects uncertainty as to the Act's scopc, the of the Sunshine Act, as documented as Supreme Court was acting to resolve a there is one point that needs to be emphasized above any other,it is that long ag as 1984,in Administrative problem that had been apparent literally Conference Recommendation 84-3, has from the day of its enactment into law, l

the objective of the 1985 rule is not that

- discussions heretofore held in public been the loss of collective responsibility as President Ford's statement in signing i

1 srssion should become non. Sunshine at the agencies, and,the shift of the bill, on September 13,1976, makes Act discussions: rather, the focus of the sue rity fmm Pasidentially pointed clear. He wrote:

""d a eo 1e, a, gencv mem t'

1985 rule is on the discussions that

,.,,,,j 9 n I wh leheartedly support the objectise of currenth do not take place at all.This d,ieves en "bi im" discussions govemment in the sunshine. I am concerned.

was also'the focus of the American Bar bowever, that in a few instances semd a valuabl ction in pm-urmecessarily ambiguous and perhaps Association and the authors of the 1995 Sunshine Act days at NRC and can do s again, helping to assure that the h.ar.mful provisions were included in S 5.

1:tter to the Administrative Conference.

• The ambiguous definition of the h

Sunsbine A t discu si n ca Commissioners serve the public with meetin coved by this act, the unnecessag ene t maximum effectiveness and ril,idity the act's procedures, and the the agency and thereby benefit the pubhc which the NRC' serves. This view accountability.

potentially burdensome requirement for the The Commission believes that some maintenance of trar scripts are provisions did not onginate with the Commission kinds of general. exploratory which may require rnodification.

. by any means. On the contrary. as discussions can be useful in genersting Govemment in the Sunshine Act-S.5 (P.L described above the starting point of ideas' Such ideas,if develo d into

"" 8

"'C' 8 M*8I'd" **' 7' Ten, and other Documents 0976L et 832.

the Commission's analysis is Congress's mm specific r posals,wi become rzcognition that " informal background tne subject of subsequent " meetings."

4. On the meaning of " meeting" as

{

s.sscussions Jthat) clarify issues and The Comz Asion recognizes that it used in the Sunshine Act, aren't the 1'

expose varying views' are a necessary would be iacumbent on the participants views, of Congressional sponsors of the part of an agency's work " and that to in such non Sunshine Act discussions legislation entitled to consideration?

to assure that they remain [eterminereliminary Answer:Yes, when they appear in the app!v the Act's requirements to them would,in the words of the Supreme and do not effectively pre Pre enactment legislative history. In the Court " impair normal agency final agency action. The Commission Present case, for example, the Supreme eptrations without achieving significant believes that th. guidelines proposed by Court cited the remarks of the House public benefit." 466 U.S. 463,469.

the American Bu Association are the sponsor of the Sunshine Act, l

For couvenience, the currently most suitable criteria for assuring Representative Dante Fascell, who l

(ff2ctive (but not implemented) 1985 compliance with the Act's requirements, introduced the report of the Conference rule is included in this notice and the The Commission also believes that Committee tr 'he House. He explained i

Commissicn is providing 30 days for spontaneous casual discussions of to his colleagues that the conferees had 1

public comment on its stated intent to matters of mutualinterest-for example, narrowed.the Senate's definition of implement the 1985 rule. No non-a recent news story relating to nuclear

" meeting"in order "to permit casus!

Sunshine Act discussions will be held regulation-can be beneficial, helping discussions between agency members during the period for public comment both to ensure that Commissioners are that might invoke the bill's and for a 21 day period following close - informed of matters relevant to their requirements" under the Senate's cf the comment period to allow the duties and to promote sound working approach.122 Cong. Rec. 28474 (1976).

Commission to consider the public relationships among Commissioners.

cited at 466 U.S. 463,470 n,7.1.ikewise.

comments. Absent further action by the

2. Is it really clear that the law Senator Chiles, the Senate sponsor of Commission,non Sunshine Act permits non Sunshine Act discussions? the bill, described the definition of discussions may be held commencing Answer; Yes, beyond any reasonable

" meeting"in the final bill as a 21 days after th'e close of the comment doubt. Ceagress so provided, a

" compromise version."122 Cong Rec.

period.

unanimoas Supreme Court has so S15043 (Aug. 31.1976), reprinted in I

l

24941 Federal R-@er/Vol. 64 No. 89/ Monday, May to,1999/ Rules and Regulati ns Government in the Sunshine Act Source from Congressionalintent and themby not urging the closing of any meetings Book. In any case, however, once the

- reaching an " untoward result." Clark-now open?

Answer:The question misen the Supreme Court has declared what b Cowlitz foint Operating Agency v. ENIC, point of the ABA comment. In the law requires, federal agencies are bound 798 F.2d 499,503 n.S (D.C. Cir.1984).

context in which the coenment appears to f:ll:w its guidance.

7. Ifit is so clear that non Sunshine in the ABA wport.it is clear that the

5. ls bre any basis in the legislative Act discussions are pwmissible, why ABA was % 9its concern for the history for the notion that non Sunshine did the NRC intarpret b Act differently discussions that currently do not Act discussions an not only for so many yearst happen at all, either in open or in closed Answer:In put,thq answer lies in b session,because the Sunshine Act permissible,but useful?

Answer:Yes.The point was made fact that the Justice Department,in the inhibits the initiation d discussions. Its forcefully by Professor Jerre Williams years 1977 to 1981, took an expansive pint was almar to that made by (subs:quently a judge on the Fifth view of b definition of" meeting "(See rrofessor Williams in the hearings on Circuit Court of Appeals), presenting the the letter from Assistant Attorney the billin 1975,when be urged that views of the American Bar Association. General Barbara A. Babcock reprinted in agency membus not be deprind dthe l

He t2stified. in Cougressicsal hearings the Interpretive Guide at p.120.)In

,, Ponunity to generate ideas inorming seuio j

on the bill:

contrast, Swg and Klitaman, b authors of the Interpretive Guide, believed that may subesguen6y be the subject d Onicithe most critical facets of the Ammcan Bar Association view has to do Congress had consciously narrowed the

" meetings if theyturnouttowarrant with th2 dennition of" meeting "The ABA definition. (See the Intwpretive Guide at formal consideration. As we have firmly agrees that policy must not be 6-7.) Because the Justice Department

• mP asized abow,the Comunission is h

determined by informal closed. door caucuse defends Sunshine Act suits in the not proposing to c30se any meetings in advancs of open meetings. On the other courts,its view of the law's curmntly held as open public meetings, band, however.the AB A believes it "9ulrements carried considwable

10. How does the Commiulon intend important that " chance encounters and weight.The Supnme Court,s decirion to differentiate between "meetinfs" and informational or exploratory c,incussions" by in the ITT case resolved the issue "nomSMiw Ad discuMons*

Answer:The 'a =laalonintends to agtncy members should not constitute definitively.

r s:,eetings unless such discussions are

8. Didn't tue NRC acknowledge in its abide by the guidance provided by the

" relative', formal" and "predetermme' 1977 rulemaking that it was going Court in FCC v.17'TWorld

, It should be a matter of ecncern to all those beyond the law's requirements in the Communications and contained in our agincy action.

in differentiating between interest of the Act's " presumption in avgulations' sad non-Sunshine Act metrested in good government that agency Public observation.?ncy busin,ns to

'** I P'"I"E "8

" meetings" Sk Os ons aImhicN

? Why isu t that discussions. Applying this guidance, the w

ibrainstorm" and discuss s anous innovative rat 2onale still applicable today?

Commission may consider conducting a proposals without public evaluanon or Answer:There are at least three non. Sunshine Act discussion when the discussion willbe casual, general censorship of their search for new and factors today that were not present in crutive solutions in.;.portant policy areas.

1977:(1) the Supreme Court's ITT informational, or preHminary, so kong as All ptrions w ho have.. gaged in policymaking have paruerpated m such decision, which makes clear that the discussion will not effectively kredetermine final agency action.enever th informal sessions Sometimes outlandish Congress gave 9.e agencin authority to suggestions are advanced. hopefully hold such dbcussions because it

("i l3 lg, $'c",b u d. B '

thought they were an important of that a dixussion seems like'y to be f"U "sufficiently focused on discreet doing the public s business;(2)

,, m n i e

id:a There is time enough to expose that Administrative Conference proposals or issues as to cause the idea to public scrutiny once it has been recommendation stating that the individual participating members to adequately euluated as a viable alternative Sunshine Act has had a much me.te form reasonably firm itions which ought to be senousiv considered.

deleterious effect on the collegial nature regarding ma'ters pen ' orlikely to (Emphasis added i Heanng's Before a Subcommittee of t% Committee on of agency decis) tusking than had arise before b agency," hose discussions e

Commission will treet t Government Operations. House of been foreseen; M Q) the American Bar Representatives,94th Cong, First Session Association report stating that Congress as " meetings " See id. at 471.

Furtha, to ensure that we (Nov. 6 and 12, t975), at tt4-15.

gave the agencies the latitude to hold apprcpriately implement the Supreme

6. Why is the NRC paying so much non Sunshine Act discussions in the att:ntion to the TIT case and ignoring expectation they would use it, and Court guidance in diffwentiating between non-Sunshine Act discussions suggesting that the use of such discussions might help alleviate some of and meetings, b rwt.aion will the Philadelphia Newspapers case which dealt specifically with NRC?

the problems caused by the Sunshine consider b ABA's remarks on the Answer:First of all,the TIT cue dealt Act. Morwver, b Commission has had swiousness of this task. For instance, with the issue of what is a " meeting."

the benefit of its own and othw the ABA cautioned that a non Sunshine wh:reas Philadelphio Newspapers,Inc. agencies' experience under the Act. It Act discussion "does not pose specific

v. NRC,727 F.2d 1195 (D.C. Cir.1984).

should be emphasized that the problems for agency resolution" and dealt with an unrelated issue whether Commission, by implementing this rule, agency "me:nbers are not deliberating in a particular " meeting" could be closed is not implicitly or explicitly urging that the sense of confronting and weighing under the Sunshine Act. Secondly,the the Sunshine Act be altered; rsbr,it is choica." Report at IM1.

Some specific examples of the kinds TIT case was decided by the Supreme saying that the Sunshine /.ct should not of topics that might be the subject of Court, and as such would be entitled to be applied even more twtrictively than non Sus. hine Act discussions would treatu weight than the decision of one uanal of a Court of Appeals,evenif they Congress intended when it enacted the include pnwelined " big picture" were on the same issue. Thirdly, the full statute.

discussiuns on such metters as the

9. Why does the NRC put such following:"How wellis the agency D.C Circuit, sitting en bone, has reliance on the ABA report, when the functioning, what are our successes and severely criticized the Philadelphia ABA made a point of saying that it was N:wsp.pers decision f* digressing

o l

24942 Federal Register /Vol. 64, ND. 89/ Monday, May 10,1999/ Rules and Regulations failums, what do we see as major List of SuWects in to CFR Part e Deted at Rockville. Maryland. this 4th day of M87,1999.

challenges in the next five and ten Criminal penaldes, Fnedom of For the Nuclear Regulatory Commission.

years, what is the state of our relations I"#*'*

P "8

d eats Sunb Annene wetti. cook, with the public, industry, Congress, the

,c, dk Secsstory of the comaussion.

Pl*ss Act' Preliminary, exploratory discussions (FR Doc. 99-11669 Filed 5-7-99; 8:45 aml that generate ideas ILight include, for The May 21,1985 (50 FR 20863), rule "8'8******"

cxample,"Is there more that we could is currently effective but has never been be doin through the Internet to inform implemented. For the convenience of the pu e and receive public input?

the reader, the Commission is DEPARTMENT OF COMMERCE H:w does our use of the Internet MPublishing the text of that rule.

compare with what cther agencies are PART 9-PUBUC RECORDS Sureau of the Census d:ing?" Such ideas, if followed.ip with specific posals, would become the 1.The authority citation for part 9 15 CFR Part 30 thin the continues to read as follows (Docket E 90041800&#009-01) ng of e n ine Authority: sec.1st, as stat. us, as g,, pay, Spontaneous. casual discussions of amended (42 U.S.C. 2201): sec. 201, as stat.

matters of mutual interest could include 12 2, as ame 2

8 New Canadian Province import Code discussions of a recent news story

31 U.S.C forTordtoryof Namevut relating to NRC-licensed ac*.ivities, or a 970 1 99-570. Subpart B is also Commissioner's insights and personal issued under 5 U.S.C. 552a Subpart C is also AOENCY: Bureau of the Census' impressions from a visit to a licensed issued under 5 U.S.C. 552b.

Commece.

facility or other travel. Under this

2. In $ 9.101, agraph (c)is ACTION: Final rule.

b: ddg.thne Ccmmissioners wuuld be republished for e convemence of the p:rmitted to has'e a eu of coffee

SUMMARY

The Bureau of the Census is reader as follows.

together and to talk in rmally about amending the Foreign Trade Statistics matters that include business related g e.101 Definitions.

Regulations (7TSR), to add a new Canadian Provincorrerntory code for topics. Under the Commission's pre-1985 rule. srh informal get togethers (c) Meeting means the deliberations of the Territory of Nunavut. This Canadian Territory code is being added to the

• • ",Preclu d ed' at least a Iuorum of Commissioners existing Canadian ProvincerTerritory C

sj us an where suc deliberations determine or pr id inf rm on b result in the loint conduct er disposition codes used for nporting Canadian

,Q el berate on of offic al Commission business,'that is, Province of Origin information on j

d r

where discussions are sufficiently Customs Entry Records.,

u ates from the staff.

f cused on discrete pro osals orissues EFFECTIVE DATE:The provisions of this iscussions of business.related as t cause r to be like y to cause the rule are effective Aprill,1999.

matters not linked to any particular individual articipating members to FOR FURTHER INFOMMATION CONTACT: C.

P pr osal for ommission action might i nn namnably firm ositions Harvey Monk, P, Chief Foreign Trade int de an upcoming Congressional regarding matters pen g or likely to Division Bureau of the Census, Room ovsrsight hearin or a planned all hands "#5".before the agency. Deliberations 2104, Federal Buildin 3, Washington.

meeting for emp ovees.

required or permitted by $$ 9.105,9.106, DC 20233-6700, by te ephoca on (301)

11. Apart from the issue of the r 9.108(c), do not constitute 457-2255, by fax on (301) 457-2645, or drfinition of " meeting." - there other "mntiags" within this definition.

by e-mail at ch:nges that the interested public c.h. monk.ir@ccmall. census. gov. For should be aware of' Answer: Yes, one minor procedural

3. In $ 9.108, paragraph (c) is information on the specific Customs point. The 1985 rule includes a republished for the convenience of the reporting requirements contact: Dave provision stating that transcripts of reader as follows:

Kahne. U.S. Customs Servke, Foom 5.2C,1300 Pennsylvania Ave.,.. NW, closed Commission meetings will be Comesh, vanades, Washington,DC 20229, by telephone on I

reviewed for releasability on] ' when 8'

• th:re is a request from s'mem er of the (202) 927-0159 or by fax on (202) 927-1096.

l public lor the transcript. Reviewing (c)1n the case of any meeting closed suPMMENTARY WFORMATION' l

transcripts for releasability when no one pursuant to $ 9.104, the Secretary of the is interested in reading them would be Commission, upon the advice of the Background Information a waste of agency resources and thus of General Counsel and after consultation On November 29,1996, the U.S.

tha ublic's money, with the Commission, shall determine Bureau of the Census (Census Bureau).

I

1. Will the Cor' mission adopt any n

l particular internal procedures for its which,if any, portions of the electronic Department of Commerce, and the U.S.

l ntn-Sunshine Act discussions?

recordm, transcript or minutes and Custon.s Service (Customs), Department Answer:For an initial 6 month period which,i any, items ofinformation of the Tnasury, announced the of non Sunshine Act discussions, the withheld pursuant to $ 9.105(c) contain im lementation of the requirements for Commission will maintain a record of information which should be withheld co ecting Canadian Province of Origin th2 date and subject of, and articipants Pursuant to S 9.104,in the event that a information en Customs Entry Records in,any scheduled non Suns ine Act request for the recording, transcript, or in the Federal Register (61 FR 60531).

i discussions that three or more minutes is received within the period The Supplementary Information

{

Commissioners attend. After the six.

during which the recording. transcript.

contained in that notice fully recounts or minutes must be retained, under the development of the prog' ram for month period, the Commission will i

revisit the usefulness of the record.

Paragraph (b) of this section.

collecting Canadian Province of Origin i

keeping practice.

information on Customs import l

n 27041 Corrections r+ei w=

Vol. 64. No 95 Tuesday, May 18. 1999 This secbon of the FEDERAL REGISTER puagraph designation "(iiU" should NUCLEAR REGULATORY contains edironat corrections of previocoy read "(ii)"

published Presidential, Rule. Proposed Rule, COMMISSION and Notice documents. These corrections are IFR Doc. Co-22354 Filed 5-17-99; 8:45 am]

prepared by the Ofhce of the Federal awNo CODE M14 10 CFR Part 9 Register. Agency prepared corrections are issued as signed documents and appear in RIN 3150-AB94 the appropnate document categones DEPARTMENT OF ENERGY elsewhere in the issue.

Government in the Sunshine Act Federal Energy 3egulatory Commission Regulations CENTRALINTELLIGENCE AGENCY Notice of As Bullt Exhibit A, F, and G 32 CFR Part 1903 and Soilciting Comments, Motions to In rule document 99-11669 beginning Intervene, and Protests on page 24936 in the issue of Monday, Security orotective Service Correction ay 0, M9, mde 6e foHOMng CorTeClion:

Correction In notice document 99-11765, In rule document 98-22354, beghng on page 25316 ic the issue of On page 24936,in the third column.

beginning on page 44785 in the issue of Tuesday, May 11,1999, make the under DATES,in the last line " june 1.

8C 3999,'should read " July 1,1999" bha ke the g,2531 the second column, IFR D ic. C9-11669 Fded 5-17-99. 8 45 am) ollo ing cor ecti '

in paragraph b. Project No:, "5876-038" eitw coos isos-ci-o

$ 1903.4 [ Corrected]

should read "5867-038" On page 44786, in the third column, (FR Doc. C9-11765 Filed 5-17-99. 8.45 aml in 91903.4(a)(3)(ii), in the f;rst line, the awNo CODE 1s06-41-o w

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JESSE HELMS NORTH CARouNA tinited Starts 5cnatt WASHINGTON, DC 20510-3301 April 19,1999 Mr. Dennis K. Rathbun, Director Office of Congressional Affairs Nuclear Regulatory Commission Washington, DC 20555

Dear Mr. Rathbun:

-I have recently received the enclosed letter from Mr.

Michael R. Nelson. Mr. Nelson is concerned witn the Nuclear Regulator Commission's plans to seek exemption from the Sunslaine Act.

I would greatly appreciate your looking into this situation.

If you have any questions, please contact Mary Elizabeth Strum, a member of my staff. Thank you for your time and assistance.

Kindest regards.

Sincerely, JESSE HELMS:mes ti O

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g 9 9017 ^3/!

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TOWN OF CARRBORO NORTH CAROLINA l.i g.

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March 22,1999 Senator Jesse Helms 403 Dirkson Office Building Washington, D.C. 20510

Dear Senator Helms:

It has come to the attention of the Town of Carrboro that the U.S. Nuclear Regulatory Commission (NRC) seeks exemption from the Sunshine Act and proposes to facilitate i

policy making out of the view of the public to which it is responsible. We believe this proposed policy change is unwise, wish to express our opposition to it, and request your assistance in opposing it.

1 On Masch 1,1999 the NRC announced that it would propose a fmal rule which allows I

three of five NRC commissioners to meet in private. Current rules allow no more than two commissioners to meet to discuss business. Asjustification for the chang the l

Co.nmission cited a 1984 Supreme Court rulir.g which opened the way for iis re-l interpretation of the Sunshine Act of 1976. We understand the NRC has directed its j

General Counsel to prepare the rule to be publishe 1 in the Fe.kral Register witidn 30 days.

j Notwithstanding assurances by the Commission the.,licy decisions would not be made 1

at such closed-door meetings, we believe this rule change would undermine public confidence in the agency at a critical time.

The importtnce of this proposed change should not be underestimated. Policy issues now 4

I under discussion include mch fundamental questions about nuclear energy as decommissioning of nuclear power plants, plutonium fuel reprocessing, nuclear non-proliferation, and nuclear waste disposal. We also believe that it runs counter to recent administration decisions, which have brought past practices into th-light of day.

i l

Our concerns are heightened because Carrboro is located only some twenty miles from the j

site of Carolina Power & Light Company's Shearon Harris nuclear plant. CP&L currently has applied to the NRC to expand its high-level nuclear waste storage capacity at the plant.- Significant technical and policy questions remain unanswered about the risks, wisdora, and alternatives of this proposal If granted, more high level waste could be stored at Shearon Harris than at any other plant in the country.

301 WEST M AIN STREET. CARRSORO NC 2 7 510 * (919 9 4 2 8 5 41

• F AX 49193 9 6 8 77 37 e 70019196 968 77t7 AN EQU AL OPPORTUNITY EMPLOYER

.';l

-C'_

Page 2 March 22,1999 I

l

' It is in the interests of the residents of Carrboro and others around the country, that

}

deliberations and decisions be made in the open, in the " sunshine" We do not believe that 3

discussions of nuclear regulatory matters by a majority of the commission should take L

. place in secret. As a legislative body, the Carrboro Board of Aldermen is subject to, and j

willingly agree to, broad open meetings requirements to the long-range benefit of gwd l

government. We believe the NRC should be held to a similar standard.

Thank you very much for your attention to this matter. We appreciate any assistance you may be able to give in maintaining an open deliberation and decision process at the l

Nuclear Regulatory Commission. We would appreciate hearing of any actior. or I

developments on this matter.

Sincerely, 6

Lh Michael R. Nelson Mayor u

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