ML20209E001

Responds to Request That NRC Look Into Concerns Raised by MR Nelson Re Sunshine Act

ML20209E001
Person / Time
Issue date:	06/30/1999
From:	Rathbun D NRC OFFICE OF CONGRESSIONAL AFFAIRS (OCA)
To:	Edwards J SENATE
References
FRN-64FR24936, RULE-PR-9 NUDOCS 9907140115
Download: ML20209E001 (13)

Text

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NUCLEAR HEGULATORY COMMISSION h WASHINGTON. D.C. 20665-4001

\ ,8 June 30, 1999 W J113 P3 :32 DOCKE1 NUMBER S PROPOSED RULE b 9 AD$

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The Honorable John Edwards United States Senate Washington, D.C. 20510

Dear Senator Edwards:

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 Sunehine 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, Congress did not provide that every discussion of agency business should be treated as a /

" meeting," because it ..dcstood that this would impede the kind of inforr.;al, preliminary /

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

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

" 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 ,

l 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.

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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  !

. proposals or issues as to cause or be likely to cause the individual participating members to l form reasonably fi.m positions regarding matters pending or likely to arise before the agency." I in short, this decision is not intended to produce, nor should it produce, any reduction in the open yss of the deliberative and decisional process at the NRC.

l I t...m that this letter is responsive to Mayor Nelson's concerns. His letter will be included in the I public comments to the Federal Reaister notice. I Sincerely, 1

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Dennis K. Rathbun, Director I Office of Congressional Affairs i

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Enclosure:

As stated j j

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g Federal Register /Vcl. 64, No, so/Minday, May 1c.1999/ Rules at Angulatiens  ;

..s34936 condition for payment arising under4e IRACLEAR RE0iALATOM [

(2)Tesahng the eligible cwt (not to sweemmeanna appucation,or this subpart, and if any esosed 2s. coo cwt} of milk marketed essassercially during the base period refund of a payment to CCC shall 10 CPR Port 0 g .

tem all a roved and applicationsInble 6 amount ava1 for otherwtas become due la connection with the application, er this subpart, all supestes.a.es j

(3) Divi to Dairy Mar e Assistance program payments made under this su e any dairy opwation shall be to Goverrwnent in the Saanehine Act by the total eligible cwt submitted and Roguesteens I roved fo CCC together with interest as -

m dei.rmiaod i. .ccorda.ca with a , ,,,,: Nuclea, ,e ,ulato,y apgJ,g.gr

,, eyment.,g Pagagraph yment rate determine in nasagrap

=Pg,- h section and late-(c) of this ,w,,s ,, ,

r Payment charga as pavided for la part agnose: Final rule: Notice of intent to

)(3) of this section by the dairy 1403 of this chapter. y ,g ,,,,,,ggy or,.:tive rule and *j g,p request ,,,for enaments.  ?

op(eration's eligible production.c)la the (b) event et approval All persons listed on aof all dair7 &- ,

opwstion's licattaa shall be jointly tory eligible applications would swult in euestsafrr:The Nvelear g arpenditures in excess of the amount and wverall able for any reAand, ed charges, which is Commission (Comanission is Evallable CCC shall reduce & payment including ammouncing its ta'. set to implement a sets ta such naanmer as CCC. in its sole determined to be due for any reason Anal mle.puhudned and made e5ective discretion. Ands fair and reasonabla. under the terms and conditions of the tr. sesa, that sananded its regulations i

ePpheadon or thie subpet. a pplyingthe Government in the g e1ase.sor ane w . . ;enssesseme (c)Interwt shall be epoliera to r er dovene. haaWas Act.The "haaionis (e) A dairy operation abs)) k nfunds required of b dairy sym6 tadr.g this action to povide an if CCC determines that payments or oppersa.ity for public cosamord on its

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insligible to receive assistance undw l this program if it is determined by the other assistance were provided to th* tatent because of the tiane that has  !

State committee or t'ne county producw was not aligiTie for such pueed since b Comminion last committee to have: assistance. Such interat shall be addromd this issue. This action is (t) Adopted any scheme or device charged et the rete ofinternt which the necuury to complete twolution of this which tends to defeat the purpose of United States Treasury charges CCC for issue, this program . funds, as of the date CCC made such satss:The May 21,1985, interim rule t (2) Made any fraudulent bene!!ts available. Such interest shall became efective May 21 1985. Submit cc'u' *a= '* ***"ach 6 a a ~= e =me=ts by tu=e 9. 2 .. unie.s the 1 "E"s'r'e?,te" ed any faci affecting a made available to the date of repayment Commission takes further action, non-detuminauon Sunshine Act dieeussions may be bid I or the date interest increases as

'My funds disbursed punuant to determined in accordence wah bestamag June 1.1999.

this part to a dairy opwetion engaged in applicable ugulations. CCC may walve agongssts: Submit written comments a misrepresentation, scheme, or device, & accrual ofinterest if CCC determines to: Secastary, U.S. Nuclear Reguletory er to any other person as a rwult of the Commission,was on, DC 20555-that the t:ause of b erroneous dairy operation's acNns, shall be detumination was not due to any action cool, A' TN: Rulam aand mfunded with interest togebt with Adjudications C.aff.

such other sums as may becoma due. of the dairy opmtion. j Any dairy opwation or person engagad (d)Intmat determined in accordance POR PURNER 5470Res4 DON C0erfACT: Trip j Rothschild, Anistant General Counsel, in octs prohibited by this section and with paragraph (c) of th!s section may OfBee of the General Counsel, U.S. j any dairy operation or person receiving be waived by CCC with nopect to Nuclear Regulatoey Commission, q payment under this subpart shall be nfunds requind of b dairy operation Washington, D.C. 20S$5,(301) 415-jointly at d severally liable for any because of unintentional misaction on 1607, refund due under this section and for b part of b dairy opwetion, as supptsassw;Any seronesanok:The J

n1sted charges.The remedies provided deturmined by CCC.

Comaalssion through this notice of the in this subpart shall be in addition to (e)1.ste payment interest shallbe Commission's intent to implement a other civil, criminal or administrative nuessed on all refunds in accordance nmedim which may upply. rule published e,nd made e5ective in with b provisions of, and subbet to 1965, seeks tobring closun to a

$1430308 IAsintaining recorte. the rates prucrbd in 7 CF'R part 1403. rulemaking that amended the NRC's Detry operations making application (f) Dairy operations must refund to ladons applying b Govunment in "

for benefits under this program must CCC any excus payinents made by CCC th Sunshine Act. Because of the years maintain accurate records and accounts with respect to such application. that have slapsed, the Commission is (g)In the event that a benefit under providing this notice of its intent to eigib re e ta spe i in is this subpart was provided as & ruult implement this rule and is providing an l subpart an sounds of milk of wroneous infunnauon provided by blic  ;

marketed commercially during the opportunity comment on forCommission the additional pu,a proposal l any person, b knefit must be repaid -

fourth quarter of 1998 and b base with any applicable interest. to implement.

rd. Such records and accounts must

,' jury e rule a to g gg s6 retained for at least three years after signed atwashtasten, D.C.,on Apru so.

ths date of b cash payment to dairy sees. tb way by an opp gby NRC,into sperations under this program. genh g,ii f' closw conformi with Congressional KaerwUwe %ce President, Comenodsry Credst intent, as set i in the legislative <

31aso. sos meNnes loint end severs history of the Sunshine Act and u l C*'Po'808" i 8eaf888Y.

(FR Doc 94-12 see hd 5-7-ee, a:45 arn! clarified in a unanimous Supreme Court (alin the event then is a failure to om,c cosa woea.e decision. FCC v. ITT World  ;

comply with any term, requirement, or l

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l Federal Regimer/Vol. 64, No. 89/ Monday. May 10,1999/ Rules and Regulations 24937 Communicationr 466 U.S. 463 (1984). Communications,446 U.S. 463. Though to bring the NRCintoline with The NRC's original Sunshine Act the case could have been decided on Congrwsionallatent.

regulations, adopted in 1977, treated narrow, fact specine grounds, the Court Soon aAer that,in August 1964, the every discussion of apncy busions by und the opportunity to o5er guidance Administrative Conference of the )

. three or more Commissioners, no matter on what leading commentators have United States (a body, since abolished.

h:w informal or preliminary it might be. described as "one of the most to which the Sunshine Act assigned a as a "nweting" for Sunshine Act troublesome problems in interpreting special role in the implementation of

purposes. As t> 9984 Supreme Court

• the Sunshine Act": the dennition of the Act by federal agencies) issued decision meds daar.however. " muting" as that term is used in the Recommendation 64-3. based upon an

" meetings."tc. 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 neverintended to include casual, the Sunshine Act (1978), at 3. The Court troubled by whatit saw as one harmful general. informational, or preliminary rejected the broad view of the term efect 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. lt declared that the and most signi5 cant results of the Surshine Act discussions," which can statutory deAnition 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 multemember agency, had been . effectively predetermine of5cial 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 3 Ch ' ." .

interpretation g,c,",,d o dis e e p o s to whether the Act should be revised. The in response toof the SurSushine Act. ,s or s the reme Court cause or be likely to cauw the indwidual Conference observed:

' clarification of the law, the Commission earticipating rnembers to form reasonably Althou the legislative historv indicates in 1985 issued an immediately effective hrm positions regarding matters pending or s lieved that, aber the initial period rule that revised the definition of - likel> to arise before the esency." 466 thS. Conbtment. Sunshine would not bne a

" meeting in the NRC's Sunshine Act at 4rt- of signa Scant inhibiting effect on collegal regulations. To ensure strict conformity. The Court aviewed the legislative exchanges. unfortunately this has not been with the law.the new NRC rule history, demonstrating how in the the case.

incorporated verbatim the Supreme process of revising the onginal bill, If Congress decided that revisions Ceurt's definition of " meeting." The Congress had narrowed the Act's scope. wm triorder,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 revis on clearly was to permit permitted to discuss "the broad outlines madeimmediate,y effective. with an preliminary discussion among agency of agency policies and priorities"in cpportunity to comment only ahtr the members." Id. at 471, n.7. The Court cloud r=etin's. The Administrative fact. To adi:lress some of the concems aplained Congren's reasons for Conference dii not address the raised, the NRC informed the Congress  ! miting the reach of the Sunshine Act: distinction between " meetings" and

'Congrm in draftm the Act's definition of those discussions that are outside the untilprocedu es e pc o iu that the administrative scope of the Act.

monitor and keep minutes of all non. in he Sunshine Act discussions among three "pr$1 u

muting" c e$ Itinfrect' a eks

$ e B.The NRC's 1985 Rule cr more Commissioners No such discu;sions Ithat] clanfv issues and expose On May 21,1985 (50 TR 20889), the procedures were ever adopted, however, varying views" are a ne' enary c part of an Nuclear Regulatory Commission issued cor was the rule 6tself implemented, and agency's work. (Citetion omitted 1The Act's new regulations implementing the the assue remained pending from 1985 procedural requirements effectinly would . Gcvernment 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 agency operations without achievmg continued to u, e ee 1anguage of its timito brinIthe issue of the NRC's signincant therefore public limits thebenent Section $$2b(a)(2)

Act's appbcation. *** nisting regula ons,and reinterpreted Sunshine Act rules to a resolution. As them in accordance with the Supreme noted.because of the many years that 14 at 489-70. Gust's decision. However, the NRC have pasud since the Commission last At & time the .iuprame Court decided that in the interest of openness, handed down the ITT decision, the addressed this issue the NRC is li that its view providing this notice of its intent finally Nt. clear Regulatory Commission had for gg g gpd to implement and use the 1985 rule, and almost eight years a plied the it should d.],eclareQ,cdit) g, g; ,g g.g,3j providing 30 days for public comment Government in the unshine Act as The revind rule conforms b cn the Commission's proposal to though it required every discussion of dMtion of" megin b implement. Tne Commission will not agency business to be conducted as a idance modify its current practices, under " meeting. Recognizing that the Commission's providd by b Supmme rulu to theburt by ,

which no non Sunshine Act discussions Supreme Court s guidance indicated incorporating b very language of the

. take place.untilit has had the that the NRC a inurpretation of Court's decision into its revind

.apportunity to consider any comments meeting had been undul broad,the definition. Specifically,it provides, at

. rec:ived. NRC s Office of b Gene Counsel to CFR 9'101(c)'

(OGC) advised the Commissioners in Meeting means the deliberations of at inst

!. Enkground May 1984 that the decision seemed f On April 30,1984,the United States significant: the decision was unanimous (gru; n,Cy,mmas on rs whe ejuf,

.,,,9 m, Supreme Court issued its first decision and it was the first time that the conduct or disposition of offical interpreting the Government in the Supreme Court had addressed & Act. Comminion business.thee is. where Sunshine Act.FederalCommunications OGC suggested that revisions in the discunions an sufficiendy focused on Commission v. TTT World NRC's regulations might be appropriate dacnte proposals or lesues as to cause or to

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. Federal Register /Vol 64, No. 89/ Monday, May so.1999/ Rules ano Regulations

[,34938 be likely to cause the individual participating Moseceer, the legal standard set forth in Report at a, The report noted th .

members to form reasonably firm posit 6on. the ABA:=====Intionincorporated assumentin essence was a claim that the identical language kom the Supreme agencies should apply a diferent gg**"*" @ lik'l g" Y Court opinion which the NRC had standard tem the one speci8ed by Congress for distinguishing " meetings" permitted bh10s. e.1os. or e los(c) doincluded in its 1935 rule:1.e.,the l

met constitute " meetings" within this vision stating that for a discussion to bom discussions that are not definition. " meetings % ABA explained

{mmPt,,hom se do,Anidos d Under the rule, which was adopted as ..mee as, it must be [notl suf5ciently . . . Congrees can bordly have gone to an immediately effective " interim" rule focu8 on 8Cr*te PMPosals or inues such pains to eniculate a narrower standard as to cause or belikely to cause the had it not expected the esencies to un the (it was characterised as " interim *? to leewey such a standard provides and if they reflect the fact that it was being made individual participatingi ency) are to do so, they must attempt to set out in Effective before any comments were - members to form reasonab y Srm advance, whether by regulauon or intwnal received and addressed),with an guidelines the elements or charactenstics of cpportunity for public comment, hositions regarding mutm o P*ading or e discueston which will cause it to fell short brunngs were excluded kom the *!'*"'5"befo"@*'8**g; Y

CY of being a muting Repon et e,in. e.

category of " meetings." In the NRC's 1985 regulstions. by contrast. ..

h'

,gg,,,, h not include.'

, hg,g g The ABA report's conclusion was a ~

messund endorsement of the value of enogs were treated as meetings, as a (a) Spontaneous coeuel discussions among non Sunshine Act discussions. Ahor matter of policy, agency smembes of a subject of common stressing that its purpose was not to The NRC's 1985 rule proved I

• I i' 8 urge agencies to close discussions now controversial. In response to ,",j",'r std rr A( e wu held in open session,the report made Congressional criticism, much ofit that the agency membe s be primarily clear that its focus, rether, was on the directed at the Commission's decision to receptors ofinformation or views and only discussions which,because of the make the rule immediately effective, the incidentally exchange views with one Sunshine Act, am never initiated in the Commission assured the Congress that it anothwdcl Genwel discunions of subjects '

which are relevant to an gency's Arst place. It said:

would conduct no non Sunshine Act Msp c '

discussions until procedurss were in fligelbu one tw 17t on;and But the fact is that the Sunshine Act has had an inhibiting effect on the initiation of place to govern such discussions. j[Explonm discuuions. so long as they members. This u In December 1985. the NRC s Office of are preliminary in natun, the are no discuuions among egene[bom report lto the the conclusion of the we the General Counsel forwarded a final pending proposals for agency action, and the Adminirtretive Conimncel, and it is rulemaking paper in which comments muits of any proposed egency action would confirmed by our meeting with agency on the interim rule were analyzed and be open to full conside+ ; at e later tune.

responded to However, by th'e time that suggestion,The ABA report dis genwalcounulsi * * * (Tibe Act has madeifhcu the Commission was brieled on the advanced bosed of they some critics 8" of '^

the NRC's interim rule,"that the h*[N*M,d d me: cies comments.the American Bar * *

• we believe ' hat a unsible and Association had announced its intention Supreme Court's opinion should be limited to the facts before the Court " sensitive application of the principles

~ to address Sunshine Act issues, announced in the ITT can can ease the including matters airectly related to the While it recognized that the case could somewhat stilted reistionships that exist in have been decided on fact specific NRC's rulemaking The Commission some agenclu. Repon et 11-12. IEmphms in therefore decided to withhold action on grounds, the report observed that: the original.)

the matter and to defer actual Illi cannot be assumed that the Supume The ABA nport made clear that it did implementation and use of the 1985 rule Court got carned away or that it was unswere not regard the opportanity for non-that the definition of" meeting" was pending receipt of the ABA's views. Sunshine Act discussions as a panacea controversial and "one of the most Ill.The American Bar Association Acts troubluome problems in interpreting the for the Sunshine-caused loss of Sunshine Act."!!ntepretive Guide 3.1 We collegiality which the Administrative in the fall of 1985. William Mutane, concluded thmfere. that the Supreme court Conference had identified, and which Chairman of the Administrative Law the ABA's own inquiry Md confirmed.

Ssetion of the American Bar ' . "l*"n 'j,' n db t nded to The Report concluded the the imract of

. Association, announced that the nrovide guidance to agenciu and the courts loosened restrictions was likely to be Council of the Administrative Law [n applying the definition of" meeting." " slight," thou it saw "some tendency Section had decided to involve itselfin" Report 'et 7 .

• to the the controversy over the Sunshine Act The ABA re ort also re(ected the to inemase co egiality * *bute to more esttent that it would contri and its effect cIn the collegial character argument that use of'the " difficulty normalinterpenonal nlationships af 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!? to fall abort of colles iality is most important in group established by the Administrative Law reme becoming a meeting." the Su7d not d* cision making sessions,where the Section ultimately focused on a s!.ngle Court's view of the Act abou Act's " meeting" requirements clearly iesue:the definition of"meetinf under become part of agency practice.

• ly-the Sunshine Act.Its report and (Emphasis in the ori inal.] The logic of . Pyhe ABA mport recommended that recommendations were secepted by the A,iministrative Law Sectson in April this argument, said t e ABA re ort,would wrmit no discussio 1986 and by the full American Ba' agency' business except in " meetings " a Sunshine Act discussions to ive Association in February 1987. result which "seems clearly to us not to assurance to the puWe that y an 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 poM reading of the Sunshine Act, as , A wei enenpuen of the typ of discussion, reewanendation, not a matter of lega -

intsrpreted by the Supreme Court in the n,ung in an, eu, c iesonn me> be found ., obligation. (The report noted at one ITT decision'was legally correct. p.an e io si etce AsA report

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24939 Federal Register /Vol. 64 No. 89/ Monday, May 10,1999/ Rules and Regulations S1679;1985) and to CFR 1704.2(d)(5) The Administrative Conference.then poi:t t!.st if a discussion "is not a soon to be abolished, took up the (56 FR 9609; 1991), roepectively.

' meeting.* no 6anouncement or group's challenge, assembled a special In February 1995 Commissioner procedures are requind because the Act Steven M.H. Wallman of the Securities committee to study the Sunshine Act.

has no application.** Report at 6.) The and convened a meeting in September, and Exchange Comminion, joined by ABA recommended that General 1995, to discuss the Act,its problems, Counsels brief agency members in twelve other Commissioners or former Commissioners of four independent and possible remedies. The Conference advance on the requirements of the law, appeand to be looking for some to assure their familiarity with the regulatory agencies (the Securities and J Exchange Commission Federal compromise, acceptable both to the restrictions on non Sunshine Act Federal agencies and to representatives discussions.andthatnon Sunshine Act Communications Commission, of the media, that would acknowledge discussions (other than " spontaneous Commodity Futures Trading the Act's impairment of the collegial casual discussions of a subject of Commission FederalTrade process and try to remedy that by giving common interest") be monitored, either Commission), wrote to the greater Dexibility to agencies in by the General Counsel or other agenev Administrative Conference of the United Stater to urge a reevaluation of applying the Act. No consensus representatives. and memorialized the Sunshine Act. The group expressed developed, however.The  :

thr: ugh notes minutes, or recordings. strong suppe.t for the Act's objective of Administrative Conference, afparently l IV, Further Developments ensuring greater public access to agency recognizing that there would e no decision-making, but questioned meeting of the minds between critics On August 5.1987, en amendment whether the Act,as currently structured and defenders of the Sunshine Act, did was effered to the NRC authorization and interpreted, wu achieving those not pursue its efforts to find common bill to bar the Commission from using ground. l any funds in fiscal year 1988 or 1t399 "to goals. The group said that the Act has a " chilling effect on the willingness and V. Conclusions bdd r.ny Nuclear R'egulatory ability of agency members to engage in C:mmission meeting ia accordance The Commission has taken into an open and creative discussion of with the interim ISunshine Act] rule account information from a number of issues."It continued: quarters, as well as its own experience (published in) h Federal Register on In almost all cases. agency members in implementing the Sunshme Act. It May 21,1985 " 133 Cong Rec. H7178 (Aug 5.198713 As Chairman Philip operating under the Act come to e conclusion has considered, among other things the about a matter * *

• witbaut the benefit of language of the statute and its legislative Sharp of the Subcom'.mttee on Energy any collemve delibustions. !rocusote and Power of the House Committee o'n history;the Supreme Court's decision in Energy and Commerce explained, the CS'nedl This is dinctly in conflict witn the the TIT case; Recommendation 84-3 of ange of vims that we believe is amendment " simply neutralizes a rule '

"t the Administrative Conference of the change " The amendment. assed by a [u'i[ii 7 ' "fh ' T b

• d duun. United States;the findings of the voice vote. was not passed y O Senate and to beTl countable for hs r he Armerican Bar Association; act,ual and thus was not enacted into law. actions Practice at other feders! agencies, we an also of the view t! at the Act is at including the DCSB and OSHRC; and Ths Commis...n took ne further odds with the undulying pnnciples of multy the advice leMer imm numnous action regarding the Sunshine Act after huded agecin Tbne agmcin wue ICP5. and the issue was allowed to Commissioners and former C"818d t Povide a number of benefits.

become dormant While the "intetim" including collegaal decision making wbue Commissioners of four other the collective thought pmcess of a numbu of latory encies.

rule of 1985 has remained in effect and independent tekthese, f.he Commission on the books. at 10 Code of Federal tenured. independent appointees would be Based on all o R:gulations. Part 9. the Commission has bettu than one. Unfonunately, the Act often helieves that while the Sunshine Act's ply its pre 1965 rules. turns that goal on its hud. resulting in objectives, which include increasing continued Accordingly,toa.ap1 discussions of business greater miscommunication and poorer agency openness and fosterin puMi"-

d'c25 ion making by paciuding. as a matter understanding of how the mu temember by three or more Commissioners have of fact.the members from engaging in o

continued to be treated as meetings.o ial wa). As a agencies do business, are laudable, it is decision making whether formal or infor.nal, deliberative result.the Act ir.edvertent in a collefy transforms important to recognize exactly what it multi huded agencies into bodies headed by was that Congress legislated. The or informational. decision oriented or a numbu ofindividually acting memb"' as the Supreme Court preliminary, planned or spontaneous. legislat axplained, weshows history, t hat Congress No non Sunshine Act discussions of any IFootnote omitted 1 The group identif.ed as one problem carefully weighed the competing kind have been held. In the meantime. considerations involved: the public's some other agencies adopted and the issue confronted by the NRC's 1985 right of access to significant implemented rules that permit informal rulemaking: that "many agencies" 'information, on the one hand, and the discussions that clarify mues and avoided the problem of distinguishing between " preliminary convsrsations, agencies' need to be able to function in expose varying views but do not an efficient and co!!egial manner on the cffectively predetnmine official actions- which are outside of the Act, and deliberations, which trigger the Act," by other. Congress struck a balance:it did discussions of the sort that the Court's not legislate openness to the maximum ITT decision said are a "necessary part a blanket prohibitien, as a matter of eian agencr's w ork." 466 U.S. at 469- general policy, against any conversation extentdiscration unfettered possible, to nor did ittoprovide agencies offer

70. See, for example. the Occupational among a quorum of agency members, only as much public access as they Safety and Health Review Commission's except in " meetings" under the Sunshine Act. While such bright line might choose. Rather,it crafted a system (OSHRC) and Defense Nuclear Facilit[- in which the Sunshine Act would 'spply Safety Board s (DNFSB) definitions o policies were easy to apply and "m:eting", at 29 CTR 2203.2(d) (50 FR effective, the letter said, they were often only to "ceetings." a term carefully over inclusive, barring discussion of defined to exclude preliminary.

even the most preliminary views and informal, and informational dacussions.

erYiU,"HQ, (jH'N and then provided a series of sNu'n'd$sYtNe'dU.1.c nprwem,s u en repnnied in fa m srcy- often impeding decision making.

the process enmptions of agency to permit closure of certain sws

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.' 24MO , Federal Register / Val. 64, No. 39/ Monday, May 10.1999/ Rules and Regulations found, the Amwican Bar Anociation

\j categories of " meetings." Unfortunately, From psevious comasents, the in part because of advice from the following are Task Force on b Sunshine Act agreed, i Justice Department in 1977 that later the 1985 rule,possible and the M*lon's questionsthe aboutCouncil of the Administrative Law proved tobe erroneous.b raponsa to those ouestions. Section of the American Bar Anociation Commission'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 ta the balance contemplated by . does it seek to accomplish with this b Administrative Law Section's sport Congress. Rather, the mgulations rule? and mcommendation.

mistahenly took the approach that every Answer:First and foremost, the 3. Didn't b ITT case involve a trip Mscussion among thrw or more Commission would like to be able to get to Europe byless than a C mmissioners, no artter how far topthw as a body with no Axed agenda members, and couldn't & be can quorum of FCC rs aved irom being " discussions that otner than to ask such questions as: viewed as relating to thou specific cffa, "ely predetermine official "How is the Commission functioning as g,et,7 action. 'in the Supreme Court's words, an agency? How has it performed over Answer:The case was resolved on two y the past year? What heve been its major separate grounds. Although the j should s onsidered a " muting." 466 '

U.S. at 4h successes and failums? What do we see Supre:ne Court did not have to reach the At the tim hat the Commission coming in b next yw? In the next five issue of what constitutes a " meeting" changed its Su hine Act rules in 1985, years, and ten years? How well are our under b Sunshine Act,it did so,in many ofits critn appeared to believe components saving us? Are we getting order (so the ABA report concluded) to  ;

i that if the rule chs e were our message to the mdustry we mgulate - provida guidance to agencies and the implemented. nums is discussions and to the public? Am we working courts on a difficult aspect of Sunshine i effectively with the Congress?" This Act law. In addressing the ambiguity in 4 currentiv held in pub, session would kind of " big picture" discussion can be the definition of " meeting" and thui :he 1 instead be held behind sed doors.

This was a misapprehens Indeed,if invaluable. One of the regrettable effects uncatain n to the Act's scope, the of the Sunshine Act, as documented as Supreme ust was acting to resolve a I there is one point that nees i be long ago as 1984,in Administrative problem that had bun apparent literally emphasized above any other is that Conference Recommendation 64-3, has the objective of the 11i85 rule . ,t that from b day ofits enactment into law,

'ic been the loss of collective responsibility as Pasident Ford's statement in signing discussions heretofore held in > at the agencies, and,the shih of b bill on September 13.1976. makes s2ssion should become non Sunt ,

authonty from Pmsidentially pointed clear. He wrote:

Act discussions; rather the focus t. 9

" ' t he 1985 rule is on the discussions that ,

,", 'j,,'.

C The 8'"Cob m'$ ion I wholeheartedly support the objective of currently do not take place at all. Thh overnment in the sunshine. I am concerned.

was also'the focus of the American Bar dl " th*I E "# dI'C"I "" owever, that in a few instances erved a valuabl ction in p* unnecessarily ambiguous and perhaps Associatinn and the authors of the 1995 'nshine Act days at NRC and can do letter to the Administrative Conference. h.armfvl provisions were included in S 5.

' gain, helping to assure that the .

• The ambiguous definition of the 3ae Commission be)ieves that non- .g .nissioners serve the puHic with mutin~ cover i by this act,the unnecessar>

Sunshine Act discussions can benefit m. sum effectiveness and rigidity of the act's proceduin.nd the the agency and thereby benefit the ,ec . ability. Potentially burdensome requirement for the

. putlie which the NRC serves. This view Th. 'mmission believes that some maintenance of transcripts are provisions did not originate with the Commission kinds *nnal, exploratory which may require modification-by sny means On the contrary, as can be unfulin generating Govemment in the Sunshine Act-S 5 (P1 discuss I described above, the starting point of ideas.56 'deas. if develo d into 'W'I*and Tut, 8**'C' mher 8"'k; I'8i'u*ti's')E" oms p , et e32 'F'.

the Commission's analysis is Congress's more spes proposals, wi become recognition that "' informal background the subjecs 1bsequent " meetings." 4. On the meaning of" meeting" as discussions (that] clarify issues and i recognizes that it und in the Sunshine Act, aren't the The Commt 1 4xpose varying views' are a necessary would be inc ent on b participants views of Congressional spot. sors of the l part of an agency's work." and that to in such non S. ine Act discussions legislation entitled to consideration?

apply the Act's requirements to them to assure that it emain reliminary Answer: Yes, when they appear in the would,in the words of the Supreme and do not effee, v pro etermine pm-enectment legislative history, in the

• Court. " impair normal agency final agency actio. he Commission present cue, for example, the Supreme tperations without achieving significant believes that the gt ' inn proposed by Court cited the remarks of the House public benefit." 466 U.S. 463,469. the American Bar A istion are the sponsor of the Sunshine Act, For convenience,the currently most suitable criteria sasuring R*Pruentative Dante Fascell, who 6ffective (but not implemented) 1985 compliance with the 4 requirements. introduced the report of the Conference rule is included in this notice and the The Commission alas leves that Committee to the House. He explained Cemmission is poviding 30 days for spontaneous casual disc. ons of to his colleagues that the conferees had public comment on its stated intent to matters of mutualinteres. $r eaample, narrowed.the Senate's definition of implement the 1985 rule. No non- a recent naws story relatin, nuclear " meeting"in order "to permit casual Sunshine Act discussions will be held regulation-can be benefica 'elping discussions between agency members

~ during the period for public comment both to ensun that Commiss itsam that might invoke the bill's and for a 21 day period following close informed of matters relevant s wir requirements" under the Senate's cf the comment period to allow the duties and to promote sound s -ing approach.122 Cong. Rec. 26474 (1976).

Commission to consider the public relationships among Commissis s cited at 466 U.S. 463. 470 n.7.1.ikewin, comments. Absent further action by the 2. ls it really clear that the law Senator Chiles,the Senate sponsor of Commission,non-Sunshine Act permits non Sunshine Act discus ss? the bill, ductibed the definition of discussions may be held commencing Answer; Yes, beyond any reasot 'e " meeting"in the final bill as a 21 days after tFe close of the comment doubt. Congress so provided, a " compromise version."122 Cong Rec.

, pwiod, unanimous Supreme Court has so S1SO43 (Aug. 31.1976), repnnled m l

1

.. 24941 Federal Register /Vol. 64. No. 89/ Monday, May 10,1999/ Rules and Regulations not urging the closing of any meetings Covernment in the Sunshine Act Source from Congrenionalintent and thereby now opent Book. In cny cass.however, once b reaching an "untowed ruult." Clark.

Cowlitz /oint Operating Agency v. FDC, . Answer:The question misses the Supeeme Court has declared what the Point of the ABA comment. in the law requires, federal agencies are bound 798 F.2d 499,503 n.$ (D.C. Cir.1964). context in which b comment appears t; foll:w its guidance. 7.lfit is so clear that non Sunshine in the ABA report, itis clear that b S.!: there any basis in the legislative Act discussions are permissible, wbvdid the NRC interpret the Act difere history f:r the notion that non Sunshine discussions that currently do not Act discussions are not only for so many years? happen at all. either in open or in closed permissible. but useful? Answer:In part, thq answer lin in the meton, because the Sunshine Act l fact that the Justice Department, in the j Answer: Yes. The point was made inhibits the initiation of discussions. Its forcefully by Professor Jerre Williams years 1977 to 1981, took an expansive view of the dannition of" meeting "(Sw Point was similar to on that made by (subsequently a judge on the FiAh rrofessor Williamsin the t Circuit Court of Appeals). presenting the the letter from Assistant Attorney the billin 1975, when he urged views cf the American Bar Association. General Barbara A. Babcock reprinted in agency members not be deprived of the the Interpretive Guide at p.120.lla j He testified, in Congressional hearings contrast. Berg and Klitzman, the authors Q, Portunity to generate ideas intorming ses on the bill:

of the Interpretive Guide, believed that may subq',uently be the subject of one of the most critical facets of the Congress had consciously narrowed the ' meetings if they turn out to warrant Amencan Bar Associstion new has to do dehnition. (See the Interpretive Guide at formal consideration. As we have trd the defitution of " meeting " The AB A firmly agrees that polict must not be 6 -7.) Because the Justice De artment *mPhastaed above,the Commission is detennmsd by informal c!) sed door caucuses defends Sanshine Ac* suits the not proposing to clow any mMags in advance of open mestar gs On the other courts,its view of the law's currenUy held as open public meetings, hand howeser the ABA teliesesit aqdmnts carried consid,mble 10. How does the Commission intend rtant that " chance encounters and imformanonal in or exploratory discussions" by weight The Supnmeto in b UT case msolved the issue differentiate Court s decisionbetween "mwtinfs" and "non Sunshhe Act dancussions' agericy mImbers should not constitute definitively. Answer:The Commission intends to swungs unless such discussions ar, 8. Didn't the NRC acknowledge in its abide by the guidance provided by the "mfauvely formal"and "pudetermme" 1977 rulemaking that it was going Court in FCC v.177 World agency aetion.

Communications and contained in our

, is shculd be a matter of concern interest to all those of the beyond the law'sinrequirenes Act's " pre:umption in thediferentiating between agulations,6 1

uterisied in good gosemment that agency i favor of open!ng agency business t "mutings" and non Sunshine Act Y[,",Dln*,",E'hi$ *thsas,e m infom!Public observation ? Why isn't that discussions. Applying this guidance, the "tramstorm" and dacuss ianous innes ative rationale still applicable today? Commission may consider conducting a proposals without public evaluation or Answer:There are at least three non Sunshine Act discussion when the censorship of their search for new and factors today that were not present in discussier vill be casual, general creauve solutions m . . penant pohc3 eas 1977:(1) the Supreme Court's 117 informational, or preliminary, so fong as All persons who have engaged in decision, which makes clear that the discussion willnot effectively polic)Tnakmg hase paractpated m such predetermine final agency action.

informal sessions Sometimes outlandish Congress gave the agenciss authority to Whenever the Commission anticipates suggestions are advanced. hopefully hold such discussions because it bimorous suggestions shound. But out of all thought they were an important part of that a discussion swms likely to be '

" ' P" doing the public's business;(2) the "suf5clently focused on discreet a The s tim [eE " "t pese[' Admuustrative Conference proposals or issues ett to cause the 193 to pobhc scrutiny once it has been recommendation stating that the Individual participating members to edequately evatusted as a viable attemative form reuonably firm positions Sunshine Act has had a much mon which ought to be senoush considered deleterious effect on the collegial nature regarding matters pending or hkely to (Emphasis added [ Heanng's Before a the of agency decision making than had arise before the agency," hose discussions Subermmittee of the Committee on been foreseen; and (3) the American Bar Commission will treat t Government Operations. House of Rept:sentatives. 94th Cong . First Session Association report stating that Congress as " meetings." Sw id, at 471.

Further, to ensure that we (Nov 6 and 12.19:Sh at 114 gave the agenctes se latitude to hold appropriately implement the Supreme

6. Why is the NRC paying so much .on Sunshine Act discussions in the Court guidance in diferentiating attenti n to the ITT case and ignoring expectation they would use it.and suggesting that the use of such between non Sunshine Act discussions the Philadelphia Newspapers case discussions might help alleviate some of and meetings,the Commission will which dealt specifically with NRC? consider the ABA's wmarks on the the problems caused by the Sunshine Answer:First of all,the ITT case dealt Act. Moreover, the Commisalon has had seriousnur of this task. For instance, with the issue of what is a "neeting," the ABA cautioned that a non Sunshine whmas Philadelphfo Newspapers, Inc. the benefit of !! own and other Act discussion "does not pose specific v NRC,727 F.2d 1195 (D.C. Cir.1984). agencies' experience under the Act,it should be emphasissd that the problems fot agency ruolution" and dealt with an unrelated issue: whether Commission,by implementing this rule. agency " members are not deliberating in .

o 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; rather,it is cholen " Report at S-11 TIT case was decided by the Supreme Some specific examples of the kinds Court and as such would be entitled to saying that the Sunshine Act should not of topics that might be the subject of be applied even mon astrictively than greater weight than the decision of one Congress intended when it enacted the non Sunshine Act discussions would panelof a Court of Appea!s,evenif they include generalized " big picture" were on the same issue. Thirdly, the full statute. discussions on such matters as the

9. Why does the NRC put such

- D.C Circuit, sitting en banc, has nlisece on 'he ABA report, when the following:"How wellin the agency severely rriticized the Philadelphia functioning. what an our successes and AB A made a point of asying that it was Newspapers decision for digressing

24942 Federal Register /Vol. 64 No. 89/ Monday. May 10,1999/ Rules and Regulations Dated at Rockville, Maryland. this ath day failures,what do we see as anajor IJet e(Subgects in 10 CFR Past 9 '

clMay,1ees.

challenges in the next Ave and ten Criminal penalties Fnedom of Foe the Nuclear Regulatory Commission.

years, what is the state of our relations I*I*'" ' 8 Annette viestM:eek, with public, industry, Congress, the ,,ordh uns press Secretary of the Cocunission.

Aet. D Doc. 99-U669 hjed 5-7-e9. 8 M ami Preliminary, exploratory discuulons that generate ideas might include, for The May 21,1985 (50 FR 20863), rule

'"'8'8 **** "'*#

example,"Is there more that we could is currently effective but has never been be doing through the Internet to inform implemented. For the convenience of the public and receive public input? the reader, the Commission is DEPARTMENT OF COMMERCE How does our use of the Internet republishing the text of that rule.

compare with what other agencies are PART S-PUBLIC RECORDS Bureau oN Censue doing?"Such iddas,if followed up with specific proposals, would become the 1.The authority citation for part g il CFR Part 30 subject oflater " meetings

• within the tinU" M*dssfoll 8; meaning of the Sunshine Act. (Deckadeo. N0416MS-tW64]

Spontaneous, casual discussions of Authority: Sec.161,68 Stat. 948. as M OH74 A32 amended (42 U.S.C. 2201h sec. 201, s8 Stat. l matters of mutual interest could include 12a2, as amended (42 U.S.C. 56411 New CaWlan Pmvhoe hport cow discussions of a recent news story . l relating to NRC licensed activities, or a e70 b. t 570 Sub fi al Mormon W Nunavut Commissioner's insights and personal issued under 5 U.S.C. 632a. Subpart C is also Actucv: Bureau of the Census

• l impressions from a visit to a licensed issued under 5 U.S.C. 552b. Commerce. l facility or other travel. Under this I

2. In 6 E101, paragraph (c)is Acnow: Final rule.

hradsg. three Commissioners would be ge convenience of the permitted to have a cup of coffee np[b)ishdf ,

l i

together and to talk informally about amending the Foreign Trade Statistics l

matters that include business related g 3.10t Definmona. Regulations (TTSR) to add a new topics. Under the Commission's pre- . . . . . Canadian Province / Territory code for I

1985 rule. such informal get togethers (c) Meeting means the deliberations of the Territory of Nunavut. This Canadian Territory code is being added to the l

• • ",Briprecluded.

fmgs in u hich Commissioners are at where least e \uorum determine suc deliberations of Commissioners or existing Canadian ProvincerTerritory i provided informition but do not result in the joint conduct or disposition codes used for reporting Canadian de e " f official Commission business, that is, Province of Origin information on f h$', o nclude o a where discussions are sufficiently Customs Entry Records.

updates from the staff. f cused on discrete proposals or issues EFFECnVE DATE:The provisions of this Discussions of business.related as to cause or to be hkely to cause the rule are effective Aprill,1999. a matters not linkeo to any particular individual participating members to Pom FuRTHan womuAnow CONTACT: C.  !

proposal for .ommission action might i rm reasonably firm positions Harvey Monk, Jr., Chief, Fonign Trade include an upcoming Congressionay Division, Bureau of the Census. Room regarding matters pending or like,1y to oversight hearing or a planned all bands arise before the agency. Deliberations 2104, Federal Building 3. Washington.  ;

mieting for emplovees re9uited of Permitted by $$ 9.105,9.106, DC 20233-4700, by telephone on (301) l

11. Apart from the issue of the or 9.108(c), do not constitute 457-2255,by fax on (301) 457-2645, or definition of " meeting." are there other changes that the interested public

" meetings" wiOin this definition. by e-mail at l

• * * *

• c,b monk.}recemail. census gov. For i should be aware of? information on the specific Customs  !

Answer Yes. one minor procedural 3. In 6 9.108, paragraph (c) is republished for the convenience of the reporting requirements contact: Dave )

. point.The 1985 rule includes a Kalute, U.S. Customs Service, Room provision stating that transcripts of reader as follows:

5.2C,1300 Pennsylvania Avenue NW.

closed Commission meetings will be reviewed for releasability on! when IN C*"***"*"*******' Washington, DC 20229. by telephone on there is a nquest from s'membr of the',** $" ',#"', ,

(202) 927-0159 or by fax on (202) 927-  ;

1096.

public for the transcript. Reviewing (c)In the case of any meeting closed sumsutwfAny womuAnoN:  !

y 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 l a waste of agency resouten and thus of General Counsel and after consultation On November 29,1996, the U.S. I the public's money. with the Commission, shall determine Bureau of the Census (Census Bureau). l

12. Will the Corimission adopt any  ;

which. If any, portions of the electronic Department of Commerce, and the U.S.

particular internal procedures for its recording, transcript or minutes and Customs Service (Customs) Department  :

non Sunshine Act discussions? of the Treasury, announced the f Answer: For an initial 6sconth period which,if any, items ofinformation of non Sunshine Act discussions, the withheld pursuant to 5 9.105(c) contain implementation of the requirements for information which should be withheld collecting Canadian Province of Ongin i Ccmmission w'll maintain a record of information on Customs Entry Records the date And subject of, and participants pursuant to 5 9.104,in the event that a in, any scheduled non Sunshine Act request for the recording. transcript, or in the Federal Register (61 FR 60531). >

l minutes is received within the period The Supplementary Information discussions that three or more contained in that notice fuliy recounts Commissioners attend. After the six. during which the recording. transcript, l i or minutes must be retained, under the development of the progrsan for , i month period, the Commission wil) paragtsph (b) of this section. collecting Canadian Province of Origin 1 revisit the usefulness of the record. * * * *

• information on Customs import keeping practice. l  ;

l

"A a

• f .

27041 Corrections rd- i n e-Vol. 64, No. 95 Tuesday. May 18. 1999 This section of the FEDERAL REGISTER paragraph designation "(iiij" should HUCLEAR REGULATORY contains editonal corrections of previously read "(11)". COMMISSION published Presidential Rule Proposed Rule.

and Notice documents. These corrections are IFR Doc. C8-22354 Filed 5-17-99 8 45 am) preparW by the Ofhce of the Federal sumo coot mi4 10 CFR Part 9 Reg. ster Agency prepared corrections are issued as signed documents and appear en RIN 3t $0-AB94 the apprognate document categones DEPARTMENT OF ENERGY else*nere in the issue Government in the Sunshine Act Federal Energy Regulatory Regulations Commission CENTRALINTELUGENCE AGENCY Notice of As Bullt Exhibit A, F, and G and Soliciting Comments, Motions to In rule document 99-11669 beginning 32 CFR Part 1903 Intervene, and Protests on page 24936 in the issue of Monday.

Security Protective Service Correction ay 0,1999, make de fobng correction:

Correction In notice document 99-11765.

beganung on page 25316 in the issue of On page 24936,in the third column.

In rule document 98-22354, under DATES,in the last line " June 1.

beginning on page 44785.n the issue of Tuesday, May 11,1999, make the gggg., should lead " july 1,1990 I 8 '

fo#'gg*gln^g g e c0 n ge 2531 n the second *colurnn, (FR Doc. C4-11669 Filed 5-17-99. 8 45 aml in paragraph b. Project No:, "$876-038" an.uwa coot mi-o 91903.4 (CorrMted) should read "5867 ;;"

, On page 44 786,in the third column, (FR Doc C4-11765 Filed 5-17-9G. 8 45 am) in $ 1903.4f a)(3)(ii), in the first line, the sumo coot ismi-o G

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, ASHINGTON, DC 20510 Facsimile To: hukA hfh From: )k- ebF

, Date: l} kru $$

Regarding: [o r $Alf

'Ihis fax includes A pages, including the cover page. -

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• y Senator John Edwards 1

825 Hart Senate Office Building Washington, D.C. 20510 Phone (202)224-3154 Fax (202)228-1374

1h 01 CARRBORO NORTH CAROLINA 99MpR25 AM 9 20 I

I Much 22,1999

. .. ,i Senator JohnEdwards l

- Hart Senate Budding Washmgton, D.C. 20510 Dent SenatorEdwuds:

It has come to the attention of the Town of Ca:rboro that the U.S Nuclear Regulatory

- Commission (NRC) seeks exemption from the Sunshme Act and proposes to facilitate policy makmg 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 'a opposingit.

On March 1,1999 the NRC announced that it would propose a final pie which allows three of five NRC comrmsaioners to meet in private, Current rules allow no more.than two commssioners to meet to discuss business. As justi5 cation for the change, the Commission cited a 1984 Supreme Court ruling which opened the way for this re-

"' interpretation of the Sunshine Act of 1976. We understand the NRC has directed its General Counsel to prepare the rule to be published in the Federal Register within 30 days.

Notwithstandmg assurances by the Commission that policy decisions would not be made at such clohr meetings, we believe this rule change would undennine public l

con 6dence in the agency at a critical time.

The importance of this proposed change should not be underestimated. Policy issues now under discussion include such fundamental questions about nuclear energy as decommissioning of nuclear power plants, plutonium fuel reprocessing, ruclear non-proliferation, and nuclear waste disposal. We also beheve that it runs counter to recent M=iniention decisions, which have brought past practices into the light of day.

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

l site of Carolina Power & Light Company's SheatonIIstris 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, wisdom, and alternatives of this propoul. If granted, more high level waste could be stored at Shearon Furis than at any other plant in the country.

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Med11,1999 It is in the interesta of the residents of Carrixwo and others around the country, that deEberations and daciniaa* be made in the open,in the " sunshine". We do not be6 eve that dim ee of nuclear regulatory matters by a majority of the commission should take place in secret. As a legislative body, the Carrboro Bostd of Aldermen is subject to, and f

' wilkngly agree to, broad open meetings requirements to the long-range beneAt of good

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

s

(

Thank you very much for your attention to this matter. We appreciate any assistance you l

may be able to give in mahdaining an open dehteration and decision process at the Nuclear Regulatory Commission. We would appreciate heanna of any action or developments on this matter Sincerely, k\6 ,

,- MachaelR. Nelson i Mayor i

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