ML20209H716
| ML20209H716 | |
| Person / Time | |
|---|---|
| Issue date: | 07/12/1999 |
| From: | Dicus G NRC COMMISSION (OCM) |
| To: | Cyr K NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| NUDOCS 9907210051 | |
| Download: ML20209H716 (3) | |
Text
spa 4r REQllEST REPLY BtN/9 .
UNITED STATES
- u9'o, NUCLEAR REGULATORY COMMISSION
[ ,, WASHINGTON, D.C. 20665-0001 D E COMSEGY-99-UZZ OFFICE oF THE GENERAL COUNSEL Approvedsubjecttoa ched edits
~
$w st e s c%
MEMORANDUM FOR: Chairman Dicus Commissioner Diaz
%hb 7/12/99 Commissioner McGaffigan ,.....................o.{
Commissioner Merrifield
- RELEASEDTOTHE PDR !l FROM: Karen D. Cy General Counsel f /) h [ 9 Q k g f
. d510" initia!3 s
SUBJECT:
SUNSHINE ACT COMMENT RESOLUTIO' N '******************** {
We have prepared the attached Federal Register Notice for use by the Commission in responding to the comments received on the May 10,1999, Federal Register notice declaring its intent to begin implementing changes made in 1985 to the Government in the Sunshine Act regulations. The analysis of comments in the proposed Notice is essentially identical to that provided earlier by this office in SECY 99-166, but the analysis has been put in a question and answer format similar to the approach used in the May 10th notice.
Attachment:
As stated cc: SECY EDO ;
' l l
l l
l 9907210051 990712 /
PDR COMMS IWtCC /
CORRESPONDENCE PDR 210001 y P3 O
q 1 ; p7 cl (> > V c '] / '
j
- l. -I l c
3-are too trivial to warrant changing a rule that has served well for 20 years; (d) the Commission failed to follow the recommendations of the American Bar Association with respect to record keeping; (e) no harm could come to the Commission's processes if general. background briefings were held in open session; (f) theWRC's role as regulator of a technically complex i
industry calls for maximum openness; and (g) nothing in the rule prevents the Commission from holding off-the-record discussions with representatives of the regulated industry.
pi uN ~ 4 in the interest of clarity, we will address the comments in a comment-and-answer format.
Some comments were dealt with in sufficient detailin the May 10 notice that it would serve no useful purpose to repeat here the Commission's position with regard to them.
l A. Comment:
One of the critical commenters quoted at length from the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Philadelphia Newspapers v. NRC,727 F.2d 1195 (1984), l 1
in which the court declared that " Government should conduct the public's business in public." i l
l t Q cor d r yetpined that Congress undoubtedly intended that the Government in the Sunshine Act "would guarantee public accountability" on the safety of nuclear power.
Response
Undeniably, the Philadelphia Newspapers decision represented an expansive view of the Sunshine Act on the part of that panel of the D.C. Circuit. Only a few months later, however, the Supreme Court provided sharply different guidance in the first (and to date only)
Government in the Sunshine Act case to reach the Court: FCC v. ITT World Communications, it.i d 466 U.S. 463 (1984). ITT World Communications resembled Philadelphia Newspapers in that it /
also involved an expansive interpretation of the Sunshine Act by the D.C. Circuit.
.- .I
.g. -
federal agency personnel, with limited exceptions for persons (e.g. representatives of the regulatory body of a foreign nation, or a state regulator) who would not be regulated entities or i
who could not be considered interested parties to Commission adjudicatory or rulemaking {
t I
proceedings. The Commission is committed to implementing this intent; the non-Sunshine Act i discussions will not include discussions with representatives of licensees or of organizations ,
who could be considered to be interested parties to NRC adjudicatory or rulemaking proceedings.
- 1. Comment:
The NRC's standards for determining when a discussion can be held as a non-Sunshine Act discussion is impermissibly vague, requiring " divination" on the part of the participants.
Response: The standards for determining what is a non-Sunshine Act discussion were taken verbatim from the decision of a unanimous Supreme Court. The NCO b r,ct aMuiiu oevec.J- l g"= the Sup,ume Cvuii as iv umn lugl edeywovy.- Mmeover3Eis not correct to say that the l
standard requires " divination" of what will happen in a discussion. Rather, what the rule l envisions is that if a discussion begins to evolve from the preliminary exchange of views that the Commission contemplated into something so particularized that it may " effectively predetermine" agency action if it continues, the Commission will cease the discussion.2 2 Every Commissioner who meets one-on-one with an interested party to a matter before the Commission has to be prepared to cut off discussions that threaten to stray into impermissible areas, as provided, for example, by the NRC's exparte rules. There seems no reason why Commissioners could not equally well halt discussions among themselves that seem likely to cross the line separating non-Sunshine Act discussions from " meetings."