ML20211Q547

Forwards Documents of Central Relevance to Recent Rulemaking That Implemented NRC Currently Effective Regulations on Government in Sunshine Act.Index of Documents Encl

ML20211Q547
Person / Time
Issue date:	09/13/1999
From:	Rothschild T NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Mendiola D NRC (Affiliation Not Assigned)
Shared Package
ML20211Q552	List: ML20211Q547 ML20211Q611
References
FRN-64FR39393, RULE-PR-9 AB94-2-001, NUDOCS 9909150091
Download: ML20211Q547 (3)

Text

UNITED STATES

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OFFICE of THE GENERAL counsel September 13,1999 i

MEMORANDUM TO: Doris)dendiola, RDBIDAS/ADM FROM: Trih ild Assistant General Counsel

SUBJECT:

REGULATORY HISTORY DOCUMENTATION - GOVERNMENT IN THE SUNSHINE ACT (10 CFR PART 9) s Attached are the documents of central relevance to the recent rulemaking that implemented the NRC's currently effective regulations on the Government in the Sunshine Act. Also attached is l an index of these same documents. There were two notices published in the Federal Register as a part of this rulemaking. The first notice was published on May 10,1999 and was titled Final Rule: Notice OfIntent To Implement Currently Effective Rule And Request For Comments, 64 l Fed. Reg 24936 (to be codified at 10 CFR Part 9). The second notice was published on July 22,1999 and was titled Final Rule: Notice OfIntent To Implement Currently Effective Rule; Response To Comments,64 Fed. Reg. 39393 (to be codified at 10 CFR Part 9).

l If you have any questions, you may contact me at 415-1611.

l Attachments: As stated

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1 AB94-2 PDR INDEX OF RULEMAKING DOCUMENTS THAT IMPLEMENT THE NRC'S CURRENT SUNSHINE ACT REGULATIONS Drto of Document Title or Description of Document 12/15/98 Memo From Cm McGaffigan and Cm Merrifield To John C. Hoyle, SEC re NRC's Sunshine Act Practices

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02/24/99 Memo From Annette L. Vietti-Cook, SEC To Karen D. Cyr, OGC - Staff Requirements Memo - Sunshine Act Practices 02/24/99 Memo From Annette L. Vietti-Cook, SEC To Cm McGaffigan and Cm Merrifield re NRC' intent to implement Sunshine Act Practices rulemaking 03/03/99 Memo From Karen D. Cyr, OGC To Chairman Jackson, Cm Dicus, Cm Diaz, Cm McGaffigan and Cm Merrifield re Draft Federal Register Notice Announcing Intent to implement Sunshine Act Rules 04/16/99 Memo From Annette L. Vietti-Cook, SEC To Karen D, Cyr, OGC - Staff Requirements Memo - Draft Federal Register Notice Announcing intent to implement Sunshine Act Rules 05/06/99 Federal Register Notice - Final Rule: Notice of Intent to implement Currently Effective Rule and Request For Comments (64 Federal Register 24936, published on May 10,1999 - to be codified at 10 CFR Part 9) 05/12/99 Comment of Union of Concerned Scientists (David A. Lochbaum) 05/18/99 Comment of Nuclear Information and Resource Service (Paul A. Gunter, Director) 05/26/99 Comment of Paul Goettlich 05/27/99 Comment of Marvin I. Lewis 06/09/99 Comment of Nuclear Energy Institute (Robert W. Bishop, VP and General Counsel) 06/09/99 Comment of Louis A. Zeller (Environmental Defense League) 06/08/99 Comment of Public Citizen (James P. Riccio, Esq.)

03/22/99 Comment of Town of Carrboro (The Honorable Michael R. Nelson)

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AB94-2 PDR Date of Document Title or Description of Document 06/14/99 Comment of Natural Resources Defense Council (David E. Adelman, Esq.)

07/16/99 Memo From Annette L. Vietti-Cook, SEC To Karen D. Cyr, OGC - Staff Requirements Memo re Sunshine Act Comment Resolution 06/29/99 Memo From Karen D. Cyr, OGC To The Commission re Comments on NRC's Sunshine Act Notice 07/02/99 Memo From Karen D. Cyr, OGC To Chairman Dicus, Cm Diaz, Cm McGaffigan and Cm Merrifield re Sunshine Act Comment Resolution 07/22/99 Federal Register Notice - Final Rule: Notice of Intent to implement

Currently Effective Rule; Response to Comments (64 Federal Register 39393, published on July 22,1999 - to be codified at 10 CFR Part 9)

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{ f WASHINGTON. D.C. 20585 k***!** i couuisslONER .COMEXM-98-006 COMJSM-98-001 December 15. 1998 MEMORANDUM FOR: John C. Hoyle. Secretary FROM: Edward McGoffigen. Jr. b' ,

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Jeffrey S. Merritlei *

SUBJECT:

SUNSHINE ACT PRACTICES ,

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On November 27. 1998, the General Counsel sent the Commission a memorandum that describes past NRC policy and practice in interpreting the Sunshine Act's-limitations on circumstances in which the full Commission can meet in private.

The memorandum usefully describes the agency's attempt several years ago to interpret the Act in a way more consistent both with the law -- most particularly the Supreme Court's unanimous reading of the law -- and with reasonable administrative practice, including practice at several other agencies (see Attachment 6 to the General Counsel's memorandum: OSHA's and the Defense Board's rules seem to me the best models). As the Court said.

" Congress ... recognized that the admittistrative process cannot be anducted  ;

entirely in the public eye." The agency's Federal Register notice announcing  !

an interim rule that set forth our reading of the Act was a model of reasoned  !

and readable analysis. Nonetheless, the agency's attempt met with strong criticism from some quarters in Congress and a threat of legislation to undo the rule (see Attachment 3 to the General Counsel's memorandum). The agency, decided not to implement the change (see Attachment 5 to the General Counsel's memorandum). '

The time is ripe for reconsideration of that agency decision. Now more than i

ever the agency would benefit from a more reasonable approach to the Act. As  !

our Federal Register notice said in 1985. "The ability to hold free-flowing discussions of a variety of problems likely to face the agency, or to get together for ' brainstorming sessions.' can foster both collegiality and sound management." In NRC's efforts to make itself both more efficient and more effective, we need that ability. Moreover, we are less likely to face strong 990$0AOIj$ -

2 opposition now. Since the storm in 1985. an American Bar Association study has confirmed the legal soundness of NRC's reading of the Sunshine Act's requirements. Moreover, the main Congressional opponent of the 1985 interim rule is no longer in Congress. Even in 1985, the Congressional response was not uniformly in opposition to our interim rule (see Attachment 2 to the General Counsel's memorandum).

We therefore propose that we move toward practice consistent with the 1985 Federal Register notice and the rules, 10 CFR 9.101(c) in particular, that embody the analysis in that notice. Because of the controversy surrounding the 1985 change, and because we have consistently told Congress since then that we were deferring implementation of the interim rule, the General Counsel recommends that, if the Comission wants to take full advantage of the flexibility afforded by the Act, "it would be prudent for the Comission to proceed to consider the ABA*r, study results and the public comments on the interim rule and to publish final rules before implementation." We agree.

The General Counsel says that 0GC could prepare a notice and final rule package in 30 to 60 days, and that the final rule package could provide a short period for additional public coments before implementation of the final rule. We would direct OGC to prepare such a final rule packege. We would also make clear to Congress, before the final rules go out, that the agency will provide Congress with written implementation procedures that explain, with concrete examples, what kinds of gatherings now held by the Comission will no longer be treated as " meetings" under the new rules, and that the agency will maintain a record of the date and subject of, and participants in, all non-Sunshine Act informal gatherings of a quorum of the Comission.

cc: Chairman Jackson Comissioner Dicus Comissioner Diaz -

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[n'A May o UNITED STATES f , NUCLEAR REGULATORY COMMISSION S l WASHINGTON. D.C. 20555-0001 February 24, 1999 CFFICE oF THE SECRETARY MEMORANDUM FOR: Karen D. Cyr. .

General Counsel .

FROM: Annette L. Vietti-Cook, Secretary , %g , mi- b@'

SUBJECT:

STAFF REQUIREMENTS - COMEXM-98-006/COMJSM-98-001 -

SUNSHINE ACT PRACTICES The Commission has considered your memorandum on November 27,1998, SUNSHINE ACT PRACTICES, and has agreed to move toward a practice consistent with the 1985 Federal Register notice and the rules,10 CFR 9.101(c) in particular, that embody the analysis in that notice.

Therefore, consistent with your recommendation, the Commission requests tha't you prepare, no later than 30 days after issuance of this SRM, a notice of the Commission's intent to implement the Sunshine Act rule which was issued and made effective in 1985. The notice should consider and discuss the American Bar Association study results and the public comments on the 1985 i rule and should provide a short period (e.g.,30 days) for additional public comrnents before the Commission vvould implement the rule.

(OGC) (SECY Suspense: 3/26/99)

In addition, the staff should preoare letters to Conoress to be sent before the CommissLon implements the rule. The letters to Congress should include the notice of the Commission's intent to implement the rule that is proposed to be issued for public comment and should explain, with concrete examples, the kinds of non-Sunshine Act discussions that will be held by the Commission when it implements the rule. The letters should also state that, for the first six month period in which the Commission implements the rule, the agency w!!! maintain a record of the date and subject of, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend. After the six-month period, the Commission will revisit the usefulness of the record keeping practice.

It is not the Commission's intention to treat any public meetings currently being held under the Internal Commission Procedures as non-Sunshine Act discussions. Examples of the types of discussions sought to be held include, but are not limited to, generalized " big picture" discussions; preliminary, exploratory discussions that generate ideas (these ideas, if followed up with specific proposals, would become the subject of later " meetings" within the meaning of the Sunshine Act); spontaneous, casual discussions of matters of mutualinterest; briefings in which the Commissioners are provided information but do not themselves deliberate on any proposal for action; discussions of business-related matters not linked to any particular proposal for Commission action; and discussions to enhance the effectiveness of intercommunications between and among Commissioners and their offices.

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February 24, 1999 oFflCE of THE StCRETARY MEMORANDUM TO: Commissioner McGaffigan ,

Commissioner Merrifield FROM: Annette L. Vietti-Cook f 7 _- /. A u -f v i

SUBJECT:

COMEXM 98-006/COMJSM 98-001 - SUNSHINE ACT PRACTICES

. 4, This memorandum is to inform you that the Commission has agreed to your proposal to move toward practice consistent with the 1985 Federal Register notice and the rules,10 CFR 9,101(c) l' in particular, that embody the analysis in that notice, and has requested the General Counsel to prepare a notice of the Commission's intent to implement the rule which considers thp American Bar Association study results and the public comments on the rule. See memorandum attached.

This cornpletes action on COMEXM-98-006/CDMJSM 98-001.

Attachment:

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%*****# March 3, 1999 OFFICE oF THE GENERAL COUNSEL MEMORANDUM TO: Chairman Jackson Commissioner Dicus Commissioner Diaz Commissioner McGaffigan Commissioner Mer ifield FROM: Karen D. Cyr h . 4/

General Couns 1

SUBJECT:

DRAFT FEDERAL REGISTER NOTICE ANNOUNCING INTENT TO IMPLEMENT SUNSHINE ACT RULES In a Staff Requirements Memorandum dated February 24,1999, the Secretary advised me of the Commission's decision to move toward a practice consistent with its 1985 Sunshine Act rules, and requested that I prepare a notice of that decision. The attached notice (Attachment 1) responds to that request. In addition, the Commission requested that I prepare letters to Congress that include concrete examples of the types of non-Sunshine Act l discussions that the Commission contemplates holding and describe the record-keeping  !

i procedures approved for the initial six-month implementation period. Such letters appear as Attachment 2.

Attachments: 1. Draft Federal Register notice

2. Congressionalletiers cc: w/ attachments: SECY EDO OCA OPA CIO CFO ptib\\00D$$'

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NUCLEAR REGULATORY COMMISSION l

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GOVERNMENT IN THE SUNSHINE ACT REGULATIONS l 1 AGENCY

Nuclear Regulatory Commission ACTION: . Notice of Intent to implement Currently Effective Rule and Request for Comments.

SUMMARY

The Commission, through this notice of the Commission's intent to implement a rule published and made effective in 1985, seeks to bring closure to a rulemaking l that amended the NRC's regulations applying the Govemment in the Sunshine Act. Because of l

the years that have elapsed, the Commission is providing this notice of its intent to implement this rule and is providing an opportunity for additional public comment on the Commission's proposal to implement.

I The purpose of the rule is to bring the NRC's Sunshine Act regulations, and the way l they are applied by NRC, into closer conformity with Congressional intent, as set forth in the

! ' legislative history of the Sunshine Act and as clarified in a unanimous Supreme Court decision,

! FCC v. /TT World Communications, 466 U.S. 463 (1984). The NRC's original Sunshine Act i

! regulations, adopted in 1977, treated every discussion of agency business by three or more l _ Commissioners, no matter how informal or preliminary it might be, as a " meeting" for Sunshine Act purposes. As the 1984 Supreme Court decision made clear, however," meetings," to which the Act's procedural requirements apply, were never intended to include casual, general, Informational, or preliminary discussions, so long as the discussions do not effectively predetermine final agency action. These kinds of "non-Sunshine Act discussions," which can )

be an important part of the work of a multi-member agency, had been foreclosed at NRC since 1977 by the agency's unduly restrictive interpretation of the Sunshine Act.

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in response to the Supreme Court's clarification of the law, the NRC in 1985 issued an immediately effective rule that revised the definition of " meeting"in the agency's Sunshine Act regulations. To ensure strict conformity with the law, the new NRC rule incorporated verbatim the Supreme Court's definition of " meeting." The rule change drew criticism, however, much of it directed at the fact that it was made immediately effective, with an opportunity to comment only after the fact. To address some of the concerns raised the NRC informed the Congress that it would not implement the rule until procedures were in place to monitor and keep minutes of all non-Sunshine Act discussions among three or more Commissioners. No such procedures were ever adopted, however, nor the rule itself implemented, and the issue remained pending from 1985 on.

The Commission believes that it is time to bring the issue of the agency's Sunshine Act rules to a resolution. As noted, because of the many years that have passed since the Commission last addressed this issue, the NRC is providing this notice of its intent finally to implement and use the 1985 rule, and providing 30 days for public comment on the Commission's proposal to implement. The Commission will not modify its current practices, under which no non-Sunshine Act discussions take place, untilit has had the opportunity to consider any comments received.

FOR FURTHER INFORMATION CONTACT: Trip Rothschild, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, (301) 415-1740.

SUPPLEMENTARY INFORMATION:

1. Background

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3 On April 30,1984, the United States Supreme Court issued its first decision interpreting the Government in the Sunshine Act, Federal Communications Commission v. ITT World Communications,466 U S. 463. Though the case could have been decided on narrow, fact-specific grounds, the Court used the opportunity to offer guidance on what leading commentators have described as "one of the most troublesome problems in interpreting the Sunshine Act": the definition of " meeting" as that term is used in the Act. R. Berg and S. Klitzman, An Interpretive Guide to the Governmentin the Sunshine Act(1978), at 3. The Court rejected the broad view of the term " meeting" that the U.S. Court of Appeals for the District of Columbia Circuit had taken. It declared that the statutory definition of a " meeting"

. contemplated " discussions that ' effectively predetermine official actions.'" The Court went on:

Such discussions must be "sufficiently focused on discrete 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." 466 U.S. at 471.

The Court reviewed the legislative history, demonstrating how in the process of revising the original bill, Congress had narrowed the Act's scope. In the Court's words, "the intent of the revision clearly was to permit preliminary discussion among agency members." /d. at 471, n.7.

The Court explained Congress's reasons for limiting the reach of the Sunshine Act:

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Congress in drafting the Act's definition of " meeting" recognized that the administrative process cannot be conducted entirely in the public eye. "[ljnformal background discussions [that] clarify issues and expose varying views" are a necessary part of an agency's work. [ Citation omitted.] The Act's procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit.

Section 552b(a)(2) therefore limits the Act's application....

Id. at 469-70.

. At the time the Supreme Court handed down the ITTdecision, the Nuclear Regulatory Commission had for almost eight years applied the Government in the Sunshine Act as though

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it required everydiscussion of agency business to be conducted as a " meeting." Recognizing that the Supreme Court's guidance indicated that the NRC's interpretation of " meeting" had been unduly broad, the NRC's Office of the General Counsel advised the Commissioners in May 1984 that the decision seemed significant: it was unanimous, it was the first time that the Supreme Court had addressed the Act, and it suggested that revisions in the NRC's regulations might be appropriate to bring the NRC into line with Congressional intent.

Soon after that, in August 1984, the Administrative Conference of the Unitt.d States (a body, since abolished, to which the Sunshine Act assigned a special role in the h1plementation of the Act by federal agencies) issued Recommendation 84-3, based upon an extensive study of the Sunshine Act. The Administrative Conference was troubled by what it saw as one harmful effect of the Act on the functioning of the multi-member agencies. Commenting that "one of the clearest and most significant results of the Government in the Sunshine Act is to diminish the collegial character of the agency decision making process," the Administrative Conference recommended that Congress consider whether the Act should be revised. The Conference observed:

Although the legislative history indicates Congress believed that, after the initial period of adjustment, Sunshine would not have a significant inhibiting effect on collegial exchanges, unfortunately this has not been the case, if Congress decided that revisions were in urrier, the Conference said, it recommended that agency members be permitted to discuss "the broad outlines of agency policies and priorities"in closed meetings. The Administrative Conference did not address the distinction between " meetings" and those discussions that are outside the scope of the Act, 11.The NRC's !985 Rule -

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On May 21,1985, the Nuclear Regulatory Commission issued new regulations

! implementing the Govemment in the Sunshine Act. 50 Fed. Reg. 20889. As a legal matter, the NRC could have continued to use the language of its existing regulations, and reinterpreted them in accordance with the Supreme Court's decision. However, the agency decided that in the interest of openness, it should declare explicitly that its view of the Act's requirements had changed in light of the Court's ruling.

The revised rule conforms the definition of " meeting" in the Commission's rules to the guidance provided by the Supreme Court by incorporating the very language of the Court's decision into its revised definition. Specifically, it provides, at 10 CFR 9 9.100(c):

Meet /ng means the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by 69 9.105. 9.106, or 9.108(c) do not constitute " meetings" within this definition.

Under the rule, which was adopted as an immediately effective " interim" rule (it was characterized as " interim" to reflect the fact that it was being made effective before any comments were received and addressed), with an opportunity for public comment, briefings were excluded from the category of " meetings." In the NRC's pre-1985 regulatio'n s, by contrast, briefings were treated as meetings, as a matter of policy.

l The NRC's 1985 rule proved controversial. In response to Congressional criticism, much of it directed at the Commission's decision to make the rule immediately effective, the 1

Commission assured the Congress that it would conduct no non-Sunshine Act discussions until  ;

l procedures were in place to govern such discussions.

In December 11,85, th's NRC's Office of the General Counsel forwarded a final rulemaking I

paper in which comments on the jnterim rule were analyzed and responded to. However, by l i

6 the time that the Commission was briefed on the comments, the American Bar Association had announced its intention to address Sunshine Act issues, including matters directly related to the NRC's rulemaking. The Commission therefore decided to withhold action on the matter and to defer actualimplementation and use of the 1985 rule pending receipt of the ABA's views.

Ill.The American Bar Association Acts in the fall of 1985, William Murane, Chairman of the Administrative Law Section of the American Bar Association, announced that the Council of the Administrative Law Section had 1

decided to involve itself in the controversy over the Sunshine Act and its effect on the collegial character of agency decision making. Administrative Law Review, Fall 1985, Vol. 37, No. 4, at

p. v. The Task Force established by the Administrative Law Section ultimately focused on a single issue: the definition of " meeting" under the Sunshine Act. Its report and recommendations were accepted by the Administrative Law Section in April 1986 and by the full American Bar Association in February 1987.

The ABA's recommendation and report confirmed that the Commission's reading of the l Sunshine Act, as interpreted by the Supreme Court in the ITTdecision, was legally correct.

I Moreover, the legal standard set forth in the ABA recommendation incorporated the identical language from the Supreme Court opinion which the NRC had included in its 1985 rule: l.e., the provision stating that for a discussion to be exempt from the definition of " meeting," it must be l

"[not) sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual participating [ agency) members to form reasonably firm positions regarding matters pending or likely to arise before the agency." Subject to that qualification, the ABA guidelines provide that the definition of " meeting" does not include:

(a) Spontaneous casual discussions among agency members of a subject of common interest; (b) Briefings of agency members by staff or outsiders. A key

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element would be that the agency members be primarily receptors of information or views and only incidentally exchange views with one another; (c) General discussions of subjects which are relevant to an agency's responsibilities but which do not pose specific problems for agency resolution; and (d) Exploratory discussions, so long as they are preliminary in nature, there are no pending proposals for agency action, and the merits of any proposed agency action would be open to full consideration at a later time.'

The ABA report disposed of the suggestion, advanced by some critics of the NRC's interim rule, "that the Supreme Court's opinion should be limited to the facts before the Court."

While it recognized that the case could have been decided on fact-specific grounds, the report observed that:

[l]t cannot be assumed that the Supreme Court got carried away or that it was l unaware that the definition of " meeting" was controversial and "one of the most troublesome problems in interpreting the Sunshine Act."[ Interpretive Guide 3.]

l We concluded therefore, that the Supreme Court meant what it said in ITT World

Communications, and that it intended to provide guidance to agencies and the l courts in applying the definition of " meeting." Report at 7.

l The ABA report aisc rejected the argument that because of the " difficulty of specifying in 1

, advance those characteristics of a particular discussion which will cause it to fall short of l becoming a meeting," the Supreme Court's view of the Act should not become part of agency l

practice. [ Emphasis in the original.) The logic of this argument, said the ABA report, would i permit no discussion whatever of agency business except in " meetings," a result which "seems clearly to us not to have been intended by Congress." Report at 8. The report noted that this argument in essence was a claim that agencies should apply a different standard from the one J

specified by Congress for distinguishing " meetings" from discussions that are not " meetings."

The ABA explained:

... Congress can hardly have gone to such pains to articulate a narrower standard had it not expected the agencies to use the leeway such a standard provides, and i if they are to do so, they must attempt to set out in advance, whether by regulation

'A fuller description of the types of discussions fitting in these four categories may be found at pages 9 to 11 of the ABA report.

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or internal guidelines, the elements or characteristics of a discussion which will cause it to fall short of being a meeting. Report at 8 fn. 9.

The ABA report's conclusion was a measured endorsement of the value of non-Sunshine  ;

Act discussions. After stressing that its purpose was not to urge agencies to close discussions now held in open session, the report made clear that its focus, rather, was on the discussions which, because of the Sunshine Act, are never/nitiatedin the firstplace. It said:

. But the fact is that the Sunshine Act has had an inhibiting effect on the initiation of discussions among agency members. This is the conclusion of the Welborn report

[to the Administrative Conference), and it is confirmed by our meeting with agency general counsels.... [T]he Act has made difficult if not impossible the maintenance '

of close day-to-day working relationships in (five-member and three-member]

agencies.... We believe that a sensible and sensitive application of the principles announced in the ITTcase can ease the somewhat stilted relationships that exist in some agencies. Report at 11-12. [ Emphasis in the original.)

The ABA report made clear that it did not regard the opportunity for non-Sunshine Act discussions as a panacea for the Sunshine-caused loss of collegiality which the Administrative Conference had identified, and which the ABA's own inquiry had confirmed. The Report concluded that the impact of ioosened restrictions was likely to be " slight," though it saw "some tendency to increase collegiality ... to the extent that it would contribute to more normal i

interpersonal relationships among agency members." Report at 12. The Report also observed j that collegiality is most important in group decision-making sessions, where the Act's " meeting" requirements clearly apply.

The ABA report recommended that agencies follow procedures for the monitoring and memorialization of non-Sunshine Act discussions to give assurance to the public that they are staying within the law. The ABA made clear that this was a policy recommendation, not a matter of legal obligation. (The report rioted at one point that if a discussion "is not a ' meeting,'

no announcement or procedures are raquired because the Act has no application." Report at 6.) The ABA recommended that Gereral Counsels brief agency members in advance on the l

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requirements of the law, to assure their familiarity with the restrictions on non-Sunshine Act discussions, and that non-Sunshine Act discussions (other than " spontaneous casual discussions of a subject of common interest") be monitored, either by the General Counsel or other agency representatives, and memorialized through notes, minutes, or recordings.

IV. Further Developments On August 5,1987, an amendment was offered to the NRC authorization bill to bar the Commission from using any funds in fiscal year 1988 or 1989 "to hold any Nuclear Regulatory Commission meeting in accordance with the interim [ Sunshine Act) rule [ published in) the Federal Register on May 21,1985." 133 Cong. Rec. H7178 (Aug. 5.1987).8 As Chairman Philip Sharp of the Subcommittee on Energy and Power of the House Committee on Energy and Commerce explained, the amendment " simply neutralizes a rule change." The amendment, passed by a voice vote, was not passed by the Senate and thus was not enacted into law.

The Commission took no further action regarding the Sunshine Act after 1985, and the issue was allowed to become dormant. While the " interim" rule of 1985 has remained in effect and on the books, at 10 Code of Federal Regulations Part 9, the Commission has continued to apply its pre-1985 rules. Accordingly, all discussions of business by three or more Commissioners have continued to be treated as " meetings," whether formal or informal, deliberative or informational, decision-oriented or preliminary, planned or spontaneous. No non-Sunshine Act discussions of any kind have been held.

"The text of the amendment and the colloquy surrounding its adoption by the House of Representatives are also reprinted in full in SECY-88-25.

10 In February,1995, Commissioner Steven M. H. Wallman of the Securities and Exchange  ;

l Commission, joined by twelve other Commissioners or former Commissioners of four independent regulatory agencies (the Securities and Exchange Commission Federal ,

Communications Commission, Commodity Futures Trading Commission, Federal Tr de Commission), wrote to the Administrative Conference of the United States to urge a reevaluation of the Sunshine Act. The group expressed strong support for the Act's objective of ensuring greater public access to agency decision-making, but questioned whether the Act, as currently structured and interpreted, was achieving those goals. The group said that the Act I

has a " chilling effect on the willingness and ability of agency members to engage in an open i and creative discussion of issues." It continued:

In almost all cases, agency members operating under the Act come to a conclusion about a matter ... without the benefit of any collective deliberations.

[ Footnote omitted.] This is directly in conflict with the free exchange of views that we believe is necessary to enable an agency member to fulfill adequately his or her delegated duties, and to be held accountable for his or her actions.

We are also of the view that the Act is at odds with the underlying principles of multi-headed agencies. These agencies were created to provide a number of benefits, including collegial decision making where the collective thought process of a number of tenured, independent appointees would be better than one.

Unfortunately, the Act often turns that goal on its head, resulting in greater miscommunication and poorer decision making by precluding, as a matter of fact, the members from engaging in decision making in a collegial way. As a result, the Act inadvertently transforms multi headed agencies into bodies headed by a number of individually acting members. [ Footnote omitted.)

The group identified as one problem the issue confronted by the NRC's 1985 rulemaking:

that "many agencies" avoided the problem of distinguishing between " preliminary conversations, which are outside of the Act, and deliberations, which trigger the Act," by a blanket prohibition, as a matter of general policy, against any conversation among a quorum of agency members, except in " meetings" under the Sunshine Act. While such bright-line policies were easy to apply and effective, the letter said, they were often over-inclusive, barring discussion of even the most preliminary views and often impeding the process of agency decision-making.

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11 l

The Administrative Conference, then soon to be abolished, took up the group's j I

challenge, assembled a special committee to study the Sunshine Act, and convened a meeting i in September,1995, to discuss the Act, its problems, and possible remedies. The Conference appeared to be looking for some compromise, acceptable both to the Federal agencies and to representatives of the media, that would acknowledge the Act's impairment of the collegial process and try to remedy that by giving greater flexibility to agencies in applying the Act. No consensus developed, however. The Administrative Conference, apparently recognizing that there would be no meeting of the minds between critics and defenders of the Sunshine Act, did not pursue its efforts to find common ground. i I

V. Conclusions j The Commission has taken into account information from a number of quarters, as well as its own experience in implementing the Sunshine Act. It has considered, among other things, the language of the statute and its legislative history; the Supreme Court's decision in the ITTcase; Recommu..Jation 84-3 of the Administrative Conference of the United States; the ,

l

'indings of the American Bar Association; and the advice letter from numerous Commissioners and former Commissioners of four other independent regulatory agencies.

Based on all of these, the Commission believes that while the Sunshine Act's objectives, which include increasing agency openness and fostering public understanding of how the multi-member agencies do business, are laudable, it is important to recognize exactly what it was that Congress legislated. The legislative history, as the Supreme Court explained, shows that Congress carefully weighed the competing considerations involved: the public's right of access I

to significant information, on the one hand, and the agencies' need to be able to function in an

12 efficient and collegial manner. Congress struck a balance: it did not legislate openness to the maximum t.xtent possible, nor did it provide unfettered discretion to agencies to offer only as much public access as they chose. Rather, it crafted a system its which the Sunshine Act would apply only to " meetings," a term carefully defined to exclude preliminary, informal, and informational discussions, and then provided a series of exemptiona to permit closure of certain categories of " meetings." Unfortunately, in part because of advice from the Justice Department in 1977 that later proved to be erroneous, the Commission's original Sunshine Act regulations did not give due recognition to the balance contemplated by Congress. Rather, the regulations mistakenly took the approach that every discussion among three or more Commissioners, no matter how far removed from being " discussions that ' effectively predeterrr ine official actions,'"

in the Supreme Court's words, should be considered a " meeting." 466 U.S. at 471.

At the time that the Commission changed its Sunshine Act ru!ss in 1985. many of its critics appeared to believe that if the rule change were implemented, numerous discussions l currently held in public session would instead be held behind closed doors. This was a misapprehension. Indeed,if there is one point that needs to be emphasized above any other, it is that the objective of the 1985 rule is not that discussions heretofore held in public session should become non-Sunshine Act discussions; rather, the focus of the 1985 rule is on th,9 discussions that currently do not take place at all. This was also the focus of the American Bar Association and the authors of the 1995 letter to the Administrative Conference.

The Commission believes that non Sunshine Act discussions can benefit the agency and thereby benefit the public which the NRC serves. This view did not originate with the Commission by any means.- On the contrary, as described above, the starting point of the l Commission's analysis is Congress's recognition that "' informal background discussions [that]

clarify issues and expose varying views' are a necessary part of an agency's work," and that to l

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13 apply the Act's requirements to them would, in the words of the Supreme Court, " impair normal agency operations without achieving significant public benefit." 466 U.S. 463,469.

For convenience, the currently effective (but not implemented) 1985 rule is included in this notice and the Commission is providing 30 days for public comment on its stated intent to implement the 1985 rule. No non-Sunshine Act discussions will be held during the period for public comment and Commission consideration of those comments.

From previous comments, the following are possible questions about the 1985 rule, and the Commission's responses to those questions.

1. What types of discussions does the Commission have in mind, and what does it seek l

to accomplish with this rule?

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Answer: First and foremost, the Commission would like to be able to get together as a body with no fixed agenda other than to ask such questions as: "How is the Commission functioning as an agency? How has it performed over the past year? What have been its major successes and failures? What do we see coming in the next year? In the next five years, and ten years? How well are our components serving us? Are we getting our message to the industry we regulate and to the public? Are we working effectively with the Congress?"

This kind of " big picture" discussion can be invaluable. One of the regrettable effects of the Sunshine Act, as documented as long ago as 1984, in Administrative Conference Recommendation 84-3, has been the loss of collective responsibility at the agencies, and the shift of authority from Presidentially appointed and accountable agency members to the agencies' staffs. The Commission believes that " big picture" discussions served a valuable function in pre-Sunshine Act days at NRC and can do so again, helping to assure that the Commissioners serve the public with maximum effectiveness and accountability.

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d 14 The Commission believes that some kinds of general, exploratory discussions can be useful in generating ideas. Such ideas, if developed into more specific proposals, would become the subject of subsequent " meetings." The Commission recognizes that it would be

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i incumbent on the participants in such non-Sunshine Act discussions to assure that they  ;

remained preliminary and did not effectively predetermine final agency action. The Commission believes that the guidelines proposed by the American Bar Association are the most suitable q

criteria for assuring compliance with the Act's requirements.

The Commission also believes that spontaneous casual discussions of matters of mutual l interest -- for example, a recent news story relating to nuclear regulation -- can be beneficial, .

helping both to ensure that Commissioners are informed of matters relevant to their duties and 1

to promote sound working relationships among Comriilssioners.

2. Is it really clear that the law permits non-Sunshine Act discussions?

l Answer: Yes, beyond any reasonable doubt. Congress so provided, a unanimous i

l 1 Supreme Court has so found, the American Bar Association Task Force on the Sunshine Act l

l agreed, the Council of the Administrative Law Section of the American Bar Association adopted  !

the Task Force's views, and the full House of Delegates accepted the Administrative Law l Section's report and recommendation.

l 3. Didn't the ITTease involve a trip to Europe by less than a quorum of FCC members, I and couldn't the case be viewed as relating to those specific facts?

Answer: The case was resolved on two separate grounds. Although the Supreme Court i did not have to reach the issue of what constitutes a " meeting" under the Sunshine Act, it did

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so, in order (so the ABA report concluded) to provide guidance to agencies and the courts on a difficult aspect of Sunshine Act law. In addressing the ambiguity in the definition of " meeting" and thus the uncertainty as to the Act's scope, the Supreme Court was acting to resolve a I

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15 problem that had been apparent literally from the day of its enactment into law, as President l Ford's statement in signing the bill, on September 13,1976, makes clear. He wrote:

I wholeheartedly support the objective of government in the sunshine. I am concerned, however, that in a few instances unnecessarily ambiguous and perhaps harmful I provisions were included in S.5. ... The ambiguous definition of the meetings covered by  !

this act, the unnecessary rigidity of the act's procedures, and the potentially burdensome I requirement for the maintenance of transcripts are provisions which may require modification. Government in the Sunshine Act -- S.S (P.L.94-409), Source Book:

Legislative History, Text, and Other Documents (1976), at 832.

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4. On the meaning of " meeting" as used in the Sunshine Act, aren't the views of Congressional sponsors of the legislation entitled to consideration?

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l Answer: Yes, when they appear in the pre-enactment legislative history. In the present case, for example, the Supreme Court cited the remarks of the House sponsor of the Sunshine  ;

l Act, Representative Dante Fascell, who introduced the repod of the Conference Committee to l the House. He explained to his colleagues that the conferees had narrowed the Senate's definition of " meeting" in order "to permit casual discussions between agency members that I l  !

l might invoke the bill's requirements" under the Senate's approach.122 Cong. Rec. 28474 (1976), cited at 466 U.S. 463,470 n.7. Likewise, Senator Chiles, the Senate sponsor of the bill, described the definition of " meeting" in the final bill as a " compromise version." 122 Cong.

Rec. S15043 (Aug. 31,1976), reprinted in Govemmentin the Sunshine Act Source Book. In any case, however, once the Supreme Court has declared what the law requires, federal agencies are bound to follow its guidance.

5. Is there any basis in the legislative history for the notion that non-Sunshine Act discussions are not only permissible, but useful?

t i., c 16 I Answer: Yes. The point was made forcefully by Professor Jerre Williams (subsequently a judge on the Fifth Circuit Court of Appeals), presenting the views of the American Bar Association. He testified, in Congressional hearings on the bill:

One of the most critical facets of the American Bar Association view has to do with the definition of " meeting." The ABA firmly agrees that policy must not be determined by l info,rnal closed-door caucuses in advance of open meetings. On the other hand, however, the ABA believes it important that " chance encounters and informational or exploratory discussions" by agency members should not constitute meetings unless such discussions are "relatively formal" and " predetermine" agency action.  ;

it should be a matter of concern to all those interested in good government that agency members be allowed to engage in informal work sessions at which they may " brainstorm" and discuss various innovative proposals without public evaluation or censorship of their search for new and creative solutions in important policy areas.

All persons who have engaged in policymaking have participated in such informal sessions. Sometimes outlandish suggestions are advanced, hopefully humorous suggestions abound. But out of all this may come a new, creative, important idea. There is time enough to expose that idea to public scrutiny once it has been adequately evaluated as a viable altcinative which ought to be seriously considered. [ Emphasis added.) Hearings Before a Subcommittee of the Committee on Govemment Operations, House of Representatives,94th Cong., First Session (Nov. 6 and 12,1975), at 114-15.

6. Why is the NRC paying so much attention to the ITTease and ignoring the Philadelphia Newspapers case which dealt specifically with NRC7 Answer: First of all, the ITTcase dealt with the issue of what is a " meeting," whereas Philadelphia Newspapers, Inc. v. NRC,727 F.2d 1195 (D.C. Cir.1984), der.lt with an unrelated issue: whether a particular " meeting" could be closed under the Sunshine Act. Secondly, the 17 Tease was decided by the Supreme Court, and as such would be entitled to greater weight than the decision of one panel of a Court of Appeals, even if they were on the same issue.

Thirdly, the full D.C. Circuit, sitting en banc, has severely criticized the Philadelphia Newspapers decision for digressing from Congressional intent and thereby reaching an

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" untoward result." Clark-CowlitzJoint Operating Agency v. FERC,798 F.2d 499,503 n.5 (D.C.

Cir.1984).

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7. If it is so clear that non-Sunshine Act discussions are permissible, why did the NRC l interpret the Act difforently for so many years?

Answer: In part, the answer lies in the fact that the Justice Department, in the years 1977 to 1981, took an expansive view of the definition of " meeting." (See the letter from l Assistant Attorney General Barbara A. Babcock reprinted in the Interpretive Guide at p.120.)

in contrast, Berg and Klitzman, the authors of the Interpretive Guide, believed that Congress 1

had consciously narrowed the definition. (See the Interpretive Guide at 6-7.) Because the j l

Justice Department defends Sunshine Act suits in the courts, its view of the law's requirements I carried considerable weight. The Supreme Court's decision in the ITTease resolved the issue definitively.

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8. Didn't the NRC acknowledge in its 1977 rulemaking that it was going beyond the law's requirements in the interest of the Act's " presumption in favor of opening agency business to j public obscrvation"? Why isn't that rationale still applicable today? l Answer: There are at least three factors today that were not present in 1977: (1) the Supreme Court's 17Tdecision, which makes clear that Congress gave the agencies authority to hold such discussions because it thought they were an important part of doing the public's business;(2) the Administrative Conference recommendation stating that the Sunshine Act has had a much more deleterious effect on the collegial nature of agency decision making than had been foreseen; and (3) the American Bar Association report stating that Congress gave the

i .. o 18 agencies the latitude to hold non-Sunshine Act discussions in the expectation they would use it, and suggesting that the use of such discussions might help elleviate some of the problems caused by the Sunshine Act. Moreover, the Commission has had the benefit of its own and other agencies' experience under the Act. It should be emphasized that the Commission, by implementing this rule, is not implicitly or explicitly urging that the Sunshine Act be altered; rather, it is saying that the Sunshine Act should not be applied even more restrictively than Congress intended when it enacted the statute.

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9. Why does the NRC put such reliance on the ABA report, when the ABA made a point of saying that it was not urging the closing of any meetings now open?

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Answer: The question misses the point of the ABA comment. In the context in which the comment appears in the ABA report, it is clear that the ABA was expressing its concern for the discussions that currently do not happen at all, either in open or in closed session, because the l 1

Sunshine Act inhibits the initiation of discussions. Its point was similar to that made by Professor Williams in the hearings on the bill in 1975, when he urged that agency members not be deprived of the opportunity to generate ideas in " brainstorming sessions" --ideas which may subsequently be the subject of " meetings" if they turn out to warrant formal consideration.

l 10. What are the criteria by which the Commission intends to differentiate between

" meetings" and non-Sunshine Act discussions?

Answer: The Commission intends to abide by the guidelines adopted by the American Bar Association. The relevant ABA guidance is as follows:

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19 Therefore, without rninimizing the difficulties in the task, we believe it is worthwhile to attempt to set forth in some detail those types of gatherings which are not meetings, as the Supreme Court has defined the term. We should recall that a meeting first of all consists of

" deliberations," and " deliberation" is defined as the act of weighing and examining reasons for and against a choice or measure; a discussion and consideration by a number nf persons of the reasons for and against a measure. (Webster's Third /ntl. Dictionary.) It is the elemnt of tb7 participants trying to reach a decision (whether or not they do so) which distinguishes deliberations from more " casual" or " informal" discussions. To quote the Interpretive Guide, "the question is whether the discussion is decision oriented." [ Citation omitted.)

This analysis certainly does not sweep away the difficulties, but at least it helps us to know what to look for. It seems to us that there are at least three paradigmatic situations which are clearly or arguably outside the definition of meeting: '

1. The casual, in the sense of spontaneous or unplanned, discussion among I colleagues of a subject of common interest. Examples are given in NRC Genera; Counsel Plaine's memorandum of December 6,1985:"I read an article in the other day about the nuclear industry and I wonder whether any of the rest of you read it and what you thought of it." "I just got back from visiting and I'd like to tell you my perceptions of how they run the regulatery program in that country, and some of their perceptions of how we do business, and discuss with you whether anything i learned suggests areas we ought to explore further in a more formal setting." A key element of this type of discussion is its spontaneity.

While it may include all the members of the agency it seems to us that with respect to this kind of gathering it is essential that there be no conscious policy of involving all the members, simply because such a requirement would be inconsistent with the casual nature of the discussion.

2. The briefing of agency members, whether by staff or by outsiders. [ Footnote:

While a briefing may be outside the " meeting" definition, we do not mean to suggest that limitations on ex parte communications would not be applicable.] Indeed, briefings have I long been fairly generally recognized as outside the scope of the term " meeting." The 1 original NRC regulation excluded " briefings of the Commission by representatives of other agencies . . . or representatives of foreign governments or international bodies where such briefings or discussions are informational in nature and are not conducted with specific reference to any particular matter then pending before the Commission."

Several other agencies have long excluded briefings from the definition of meeting.

[ Footnote citing regulations of Federal Home Loan Bank Board, National Transportation l Safety Board, and Federal Deposit Insurance Corporation.] The key elements here are that the members are primarily receptors of information or views and only incidentally exchanging views with each other. Obviously, a briefing can very easily turn into a serious exchange of views, particularly if the briefing relates to a discrete issue before the agency. Consequently, an important variable in this situation is the subject matter of the briefing and how directly it is related to possible agency action.

3. The serious " general" discussion among agency members. By hypothesis, i this discussion is not casual; it is likely to have been planned, perhaps with a writteri l agenda, and announced and scheduled to secure maximum member attendance. The I key element, therefore, is that it is not " focused on discrete proposals or issues."

Obviously, this kind of "non-meeting" presents the hardest case and the rationale for I

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20 recognition draws very heavily on the Supreme Court's decision. It is also extremely difficult to describe in hypothetical terms because the presence of the key element essentially depends on the relationship of the subject matter to what the agency is or might be doing about it. The category might be broken down into two subcategories:

The general discussion of a subject which is relevant to the agency's  !

responsibilities but does not pose specific problems for agency resolution. For l example, a discussion of general foreign trade or balance of payments problems by the l International Trade Commission would be permissible if the Commission acts only with respect to specific industries or products, whereas a general discussion by the members of the SEC of insider trading would be a more difficult case because it might be impossible to separate the subject of insider trading from the question of what the SEC should do about it.

Closest to the borderline is the " exploratory" discussion of a problem area. The key element here is that the discussion is preliminary in the sense that there are not hard proposals for action before the agency and consequently the merits of anything the agency decides to do would be open to full consideration at a later time. Thus, the discussion cannot " predetermine" agency action and the members are not deliberating in the sense of confronting and weighing choices. Yet in any such discussion there is always the possible resolution of deciding not to do anything, so that the " issue" of .

whether the agency ought to turn its attention and resources to the problem may be sufficiently discrete to come within the statutory definition. In short, the status of

" preliminary" or " exploratory" discussions of a problem within the agency's authority to address is the hardest case, for even if one accepts a particular verbal formulation, such as that set out in the interpretive Guide, (footnote omitted] the difficulties of application are intimidating. Yet inasmuch as whether a particular discussion is exploratory or decision-oriented depends on the total factuW context, it is likely to be more difficult to resolve a hypothetical situation than a rrJ & in other words, one may say of a meeting, as Justice Stewart said of obsceny. "I know it when I see it." Report at 9-11.

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11. What are some other specific examplet. af the kinds of topics that might be the subject of non-Sunshine discussions under this rule?

Answer: To elaborate on the answer to the previous question, generalized " big picture" discussions might include such topics as the following: "How wellis the agency functioning, what are our successes and failures, what do we see as major challenges in the next five and ten years, what is the state of our relations with the public, industry, Congress, the press?"

Preliminary, exploratory discussions that generate ideas might include, for example, "Is there more that we could be doing through the internet to inform the public and receive public input? How does our use of the Internet compare with what other agencies are doing?" Such

i 3 ,, s' 21 ideas, if followed up with specific proposals, would become the subject of later " meetings" within the meaning of the Sunshine Act Spontaneous, casual discussions of matters of mutual interest could include a recent news story relating to NRC-licensed activities, or a Commissioner's insights and personal impressions from a visit to a licensed facility or other travel. Under this heading, three Commissioners would be permitted to have a cup of coffee together and to talk informally about i

matters that include business-related topics. Under the Commission's pre-1985 rule, such informal get-togethers were precluded.

Briefings in which Commissioners are provided information but do not themselves deliberate on any proposal for action could include routine status updates from the staff.

Discussions of business-related matters not linked to any particular proposal for Commission action might include an upcoming Congressionai oversight hearing or a planned all-hands meeting for employees.

l 12. Apart from the issue of the definition of " meeting," are there other changes that the interested public should be aware of?

l Answer: Yes, one minor procedural point. The 1985 rule includes a provision stating that transcripts of closed Commission meetings will be reviewed for releasability only when there is a request from a member of the public for the transcript. Reviewing transcripts for l l releasability when no one is interested in reading them would be a waste of agency resources j and thus of the public's money.

l l 13. Will the Commission adopt any particular internal procedures for its non-Sunshine 1

Act discussions?

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22 Answer: For an initial 6-month period of non-Sunshine Act discussions, the Commission will maintain a record of the date and subject of, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend. After the six month period, the Commission will revisit the usefulness of the record-keeping practice.

RESTATEMENT OF CURRENTLY EFFECTIVE BUT NEVER IMPLEMENTED 1985 RULES:

@ 9.101 Definitions (c) Meeting means the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by @@ 9.105,9.106, or 9.108(c), gatherings of a social or ceremonial nature, or briefings of the Commission by representatives of other agencies or departments of the United States government, or representatives of foreign governments or international bodies, where such briefings or discussions are informational in nature and are not conducted with specific reference to any particular matter then pending before the Commission, do not constitute ,

" meetings" within this definition.

@ 9.108 Certification, transcripts, recordings and minutes (c) In the case of any meeting closed pursuant to @ 9.104, the Secretary of the Commission, upon the advice of the General Counsel and after consultation with the

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' Commission, shall determine which, if any, portions of the electronic recording, transcript or minutes and which, if any, items of information withheld pursuant to @ 9.105(c) contain information which should be withheld pursuant to 9 9.104, in the event that a request for the recording, transcript, or minutes is received within the period during which the recording, transcript, or minutes must be retained, under subsecticn (b) of this section.

l REQUEST FOR COMMENTS The Commission requests comments on its proposal to implement the Sunshine Act rules discussed above. Comments should be submitted in writing to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, within 30 days of the publication of this notice in the Federal Register.

Dated at Rockville, Maryland, this day of ,1999.

For the U.S. Nuclear Regulatory Commission l

Annette Vietti-Cook Secretary of the Commission

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. ) g): 'h DRAFT CONGRESSIONAL LETTERS - SUNSHINE ACT

Dear Chairman ,

The Nuclear Regulatory Commission wishes to advise you of its intent to implement, after long delay, a rule change designed to bring the Commission's Sunshine Act rules into closer conformity with statutory intent, as explicated in a unanimous Supreme Court decision. Before implementing the rule, however, it is soliciting public comment on the matter.

The lengthy history of the NRC's Sunshine Act rules is described in the attached Federal

- Register notice. In brief, the Commission initially, in 1977, adopted rules that applied an unduly f

restrictive interpretation of a " meeting," as defined in the Sunshine Act. In 1984, however, the {

l Supreme Court clarified in FCC v. ITT World Communications,466 U.S. 463, that the Sunshine J

Act's procedural requiroments were not intended to apply to casual, general, informational, or preliminary discussions, so long as those discussions "do not effectively predetermine" final agency action. The NRC issued, in 1985, an immediately effective rule that incorporated the very language of the Supreme Court's decision into its regulations. The Commission's intent was to reserve the Act's procedural requirements for those kinds of discussions that Congress intended to be treated as " meetings," while permitting other types of discussions, important for the exchange of information and the fostering of a collegial process, to take place outside the purview of the Act. The Commission's rule change was put on hold, however, after the American Bar Association declared that it would examine the issue. While the Bar Association endorsed the legality and the policy bases of the Commission's rule change, the Commission itself never took action to implement the rule. As a result, the agency for many years has followed its pre-1985 practices, although officially, the 1985 rule is effective.

The Commission's present action is intended to bring this long pending matter to a resolution; to end the disparity between the agency's rules and its practice; and most important,' to permit the kinds of informal, casual, preliminary, and informational discussions that are, as Congress

- and the Supreme Court recognized, extremely important to the functioning of a multi-member agency. Among the types of discussions the Commission contemplates holding are the following:

-- Generalized " big picture" discussions, e.g., "How well is the agency functioning, what are our successes and failures, what do we see as major challenges in the next five and ten years, what is the state of our relations with the public, industry, Congress, the press?"

-- Preliminary, exploratory discussions that generate ideas; these ideas, if followed up with specific proposals, would become the subject of later " meetings" within the meaning of the Sunshine Act.

-- Spontaneous, casual discussions of matters of mutualinterest, e.g. a recent news story relating to NRC-licensed activities, or a Commissioner's insights and personal impressions from a visit to a licensed facility.

-- Briefings in which Commissioners are provided information but do not themselves deliberate on any proposal for action, e.g., routine status updates from the staff.

-- Discussions of business-related matters not linked to any particular proposal for Commission action, e.g. an upcoming Congressional oversight hearing or all-hands meeting for employees.

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As the Commission emphasizes in the enclosed Federal Register notice, its intent is not that any discussions now being held as public meetings should instead become non-Sunshine Act discussions. Rather, the Commission is focusing - as did the Administrative Conference of the United States, when it examined the Sunshine Act in 1995 -- on the discussions that currently l do not take place at all, and that could add to the Commission's ability to do the public's business effectively.

Because of the years that have elapsed since the rule change was made effective, the Commission has decided to allow a 30-day period for public comment before it implements the rule. In addition, the Commission has decided that in the first six-month period in which it implements the rule, the agency will maintain a record of the date and subject of, as well as the participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners ,

attend. After that six-month period, the Commission will revisit the usefulness of the record-keeping practice, {

i Sincerely, Shirley Ann Jacksol Chairman 1

Attachment:

Federal Register notice ]

l cc: See attached list l l

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Identical letters to be sent to the following: i The Honorable James M. Inhofe, Chairman Subcommittee on Clean Air, Wetlands, Private 1

Property and Nuclear Safety Committee on Environment and Public Works l United States Senate Washington, D.C 20510 cc: Senator Bob Graham The Honorable Joe Barton, Chairman Subcommittee on Energy and Power Committee on Commerce United States House of Representatives Washington, D.C. 20515 cc: Representative Ralph M. Hall

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/ f2*o, UNITED STATES NUCLEAR REGULATORY COMMISSION k

"'% WASHINGTON, D.C. 20555-0001 h j i e

'+,, 0 0***

1. April 16, 1999 OFFICE OF THE ,

SECRETARY '

MEMORANDUM TO: Karen D. Cyr General Counsel FROM: Annette L. Vietti-Cook, Secretary h -

SUBJECT:

STAFF REQUIREMENTS - COMSECY-99-006 - DRAFT FEDERAL REGISTER NOTICE ANNOUNCING INTENT TO IMPLEMENT SUNSHINE ACT RULES The Commission has approved publication of the notice in the Federal Reaister (FRN) and dispatch of the letters to Congress. The changes provided in the attachment should be incorporated in the FRN prior to publication.

Attachment:

As stated cc: Chairman Jackson Commissioner Dieus Commissioner Diaz Commissioner McGaffigan Commissioner Merrifield OGC CIO CFO OCA OlG l

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Changes to the FRN

1. ,D6 gvo z, aoo urthe.and 2d twa~ .n uun p

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v meaun a r-eK

2. _ On page 9, under the heading, "Further Developments", add the following to the 2" paragraph:

"In the meantime, some other agencies adopted and implemented rules that permit informal discussions that clarify issues and expose varying views but do not effectively predetermine official actions, discussions of the sort that the Court's /TTdecision said are a "necessary part of an agency's work." 466 U.S. at 469-70. See, for example, the Occupational Safety and Health Review Commission's (OSHRC) and Defense Nuclear Facility Defense Board's (DNFSB) definitions of " meeting", at 29 CFR 2203.2(d) (50 Fed.

Reg. 51679,1985) and 10 CFR 1704.2(d)(5) (56 Fed. Reg. 9609,1991), respectively."

3. On page 11, paragraph 1 of the " Conclusions", after the semicolon on the 5th line, add

" actual practice at other federal agencies, including the DNFSB and OSHRC;".

4. On page 13, the last sentence of the first full paragraph should read: "No non-Sunshine Act discussions will be held during the period for public comment and for a 21 day period following close.of the: comment period to allow the Commission to consider the public comments; eenouierstmof thee; semmer,t; Absent further action by the Commission, nongunshine Mdiscussions may be held commencing 21; days after the close of the comment period "

5. On page 18, at the end of the answer to question 9, add a new sentence as follows: "As we have emphasized above, the Commission is not proposing to close any meetings currently held as open public meetings.

6. On page 18, change question 10 to read: "How does the Commission intend to differentiate between " meetings" and non-Sunshine Act discussions?"

7. On page 18, the response to Question 10 should be revised as follows:

The Commission intends to abide by the ;;dd;::c,;; ede%;d by the Amer lcer, Der A;;;;;;t er.. guidance provided by the Court in FCC v. ITT World Communications and contamed in our regulations;;in differentiating between " meetings". and.non-Sunshine _ Act discussions s. Applying.this. guidance, the, Commission may consider conducting a_ non-Sunshine Acta-Mwhen the discussion will _be_ casual l general, informational, Lor preliminarygsollong as thefscussiortwill not efisctively predetermine final agency actionCWhenever the, Commission anticipates that a discussion seems likely to be

[sufficiently focused on descreet proposals or issues,.as to cause the individual participating members to form reasonably, firm positions.regarding matters pending or likely;to arise before the agency," the: Commission _will treat those discussions as TmeetingsdjeghList 471?

furtherito ensure _thatwo appropdately, implement the Supreme Court guidance _in

J' er differentiating between.non-Sunshins;Act discussions land_ meetings, the. Commission will consider.the ABA's remarksion the set [ousness of this tssk2 For instance, the:ABA cautioned that a.non@unshine Act discussion "does .not _ pose specific proble.ms for agency resolutioniand a0ency

• members are not_ deliberating in the_ sense of confronting and _ weighing choices." Report at 9-1h The remainder of the response to question 10 should be deleted. The response to question 11 should be combined w th the new text in response to question 10. The lead in sentence should begin "Some specific. examples of the. kinds of. topics that'might be the, subject of non-Sunshine Act discussions.would include ;..;f The text of the response to question 11 should be slightly reworded.

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DOCKET NUMBER 8dR

, PROPOSEDRULE.PR 9 mm (4,4FR24936) U'7890;01.P NUCLEAR REGULATORY COMMISSION 10 CFR Part 9 ~0 RIN 3150-AB94 GOVERNMENT IN THE SUNSHINE ACT REGULATIONSR A'

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule: Notice of intent to implement currently effective rule and request for comments.

SUMMARY

The Nuclear Regulatory Commission (Commission) is announcing its intent to implement a final rule, published and made effective in 1985, that amended its regulations applying the Govemment in the Sunshine Act. The Commission is taking this action to provide an opportunity.for public comment on its intent because of the time that has passed since the Commission last addressed this issue. This action is necessary to complete resolution of this issue.

DATES: The May 21,1985, interim rule became effective May 21,1985. Submit comments by l fW st- th;}.cic of p"b!!::t!On). Unless the Commission takes further action, n (00 day;

/999 l

! Sunshine Act discussions may be held beginning (21 days after the close of the comment i

period).

ADDRESSES: Submit written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.

Mb Mn Sflof99 94sgs%bd

2 FOR FURTHER INFORMATION CONTACT: Trip Rothschild, Assistant General Counsel, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, (301) 415-1607. I j

SUPPLEMENTARY INFORMATION: i The Commission, through this notice of the Commission's intent to implement a rule {

published and made effective in 1985, seeks to bring closure to a rulemaking that amended the NRC's regulations applying the Government in the Sunshine Act. Because of the years that have elapsed, the Commission is providing this notice of its intent to implement this rule and is f

providing an opportunity for additional public comment on the Commission's proposal to implement.

The purpose of the rule is to bring the NRC's Sunshine Act regulations, and the way they are applied by NRC, into closer conformity with Congressional intent, as set forth in the i

legislative history of the Sunshine Act and as clarified in a unanimous Supreme Court decision, FCC v. ITT World Communications,466 U.S. 463 (1984). The NRC's original Sunshine Act regulations, adopted in 1977, treated every discussion of agency business by three or more Commissioners, no matter how informal or preliminary it might be, as a " meeting" for Sunshine Act purposes. As the 1984 Supreme Court decision made clear, however, " meetings," to which the Act's procedural requirements apply, were never intended to include casual, general, informational, or preliminary discussions, so long as the discussions do not effectively j predetermine final agency action. These kinds of "non-Sunshine Act discussions," which can be an important part of the work of a multi-member agency, had been foreclosed at NRC since 1977 by the agency's unduly restrictive interpretation of the Sunshine Act.

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. In response to the Supreme Court's clarification of the law, the Commission in 1985 issued an immediately effective rule that revised the definition of " meeting" in the NRC's Sunshine Act regulations. To ensure strict conformity with the law, the new NRC rule i

incorporated verbatim the Supreme Court's definition of "meeling." The rule change drew criticism, however, much of it directed at the fact that it was made immediately effective, with an opportunity to comment only after the fact. To address some of the concems raised, the NRC informed the bongress that it would not implement the rule until procedures were in place to monitor and keep minutes of all non-Sunshina Act discussions among three or more

- Commissioners.' .No such procedures were ever adopted, however, nor was the rule itself implemented, and the issue remained pending from 1985 on.

The_ Commission believes that it is time to bring the issue of the NRC's Sunshine Act rules to a resolution. As noted, because of the many years that have passed since the Commission last addressed this issue, the NRC is providing this notice of its intent finally to

' implement and use the 1985 rule, and providing 30 days for public comment on the

- Commission's' proposal to implement. The Commission will not modify its current practices, under which no non-Sunshine Act discussions take place, until it has had the opportunity to l consider any comments received.

l.- Background.

On April 30,1984, the United States Supreme Court issued its first decision interpreting the Govemment in the Sunshine Act, Federal Communications Commission v. ITT Wor 1d >

l Communications,466 U.S. 463. Though the case could have been decided on narrow, fact-i specific grounds, the Court used the opportunity to offer guidance on what leading commentators have described as "one of the most troublesome problems in interpreting the Sunshine Act"; the definition of " meeting" as that term is used in the Act. R. Berg and i l.

S 4

S. Klitzman, An Interpretive Guide to the Govemment in the Sunshine Act (1978), at 3. The Court rejected the broad view of the term " meeting" that the U.S. Court of Appeals for the District of Columbia Circuit had taken it declared that the statutory definition of a " meeting" contemplated " discussions that ' effectively predetermine official actions /" The Court went on:

Such discussions must be "sufficiently focused on discrete 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." 466 U.S. at 471.

The Court reviewed the legislative history, demonstrating how in the process of revising the original bill, Congress had narrowed the Act's scope. In the Court's words, "the intent of the revision clearly was to permit preliminary discussion among agency members." Id. at 471, n.7.

The Court explained Congress's reasons for limiting the reach of the Sunshine Act:

Congress in drafting the Act's definition of " meeting" recognized that the administrative process cannot be conducted entirely in the public eye. "[l]nformal background discussions [that] clarify issues and expose varying views" are a necessary part of an agency's work. [ Citation omitted.] The Act's procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit.

Section 552b(a)(2) therefore limits the Act's application..

Id. at 469-70.

At the time the Supreme Court handed down the 17T decision, the Nuclear Regulatory i

Commission had for almost eight years applied the Govemment in the Sunshine Act as though it i required every discussion of agency business to be conducted as a " meeting." Recognizing that the Supreme Court's guidance indicated that the NRC's interpretation of " meeting" had baen unduly broad, the NRC's Office of the General Counsel (OGC) advised the Commissioners in May 1984 that the decision seemed significant: the decision was unanimous and it was the first time that the Supreme Court had addressed the Act. OGC suggested that revisions in the NRC's regulations might be appropriate to bring the NRC into line with Congressional intent.

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1 i

5 i Soon after that, in August 1984, the Administrative Conference of the United States (a body, since abolished, to which the Sunshine Act assigned a special role in the implementation 1

of the Act by federal agencies) issued Recommendation 84-3, based upon an extensive study of the Sunshine Act. The Administrative Conference was troubled by what it saw as one harmful I

effect of the Act on the functioning of the multi-member agencies. Commenting that "one of the clearest and most significant results of the Government in the Sunshine Act is to diminish the collegial character of the agency decision making process," the Administrative Conference '

recomrnended that Congress consider whether the Act should be revised. The Conference observed: ,

1 Although the legislative history indicates Congress believed that, after the initial period of  ;

adjustment, Sunshine would not have a significant inhibiting effect on collegial exchanges,  !

unfortunately this has not been the case. j i

if Congress decided that revisions were in order, the Conference said, it recommended I that agency members be permitted to discuss "the broad outlines of agency policies and priorities" in closed meetings. The Administrative Conference did not address the distinction between " meetings" and those discussions that are outside the scope of the Act.

ii. The NRC's 1985 Rule.

On May 21,1985 (30 FR 20889), the Nuclear Regulatory Commission issued new regulations implementi6g the Government in the Sunshine Act. As a legal matter, the NRC could have continued to use the language of its existing regulations, and reinterpreted them in accordance with the Supreme Court's decision. However, the NRC decided that in the interest of openness, it should declare explicitly that its view of the Act's requirements had changed in light of the Court's ruling.

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-6 The revised rule conforms the definition of " meeting"in the Commission's rules to the

- guidance provided by the Supreme Court by incorporating the very language of the Court's

. decision into its revised definition. Specifically, it provides, at 10 CFR 9.101(c):

Meeting means the deliberations of at least a quorum of Commissioners -

..where such deliberations determine or result in the joint conduct or disposition of.

official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual

< participating members to form reasonably firm positions regarding matters -

pending or likely to arise before the agency.- Deliberations required or permitted by 99 9.105. 9.106, or 9.108(c) do not constitute " meetings" within this definition.

Under the rule, which was adopted as an immediately effective " interim" rule (it was

' characterized as " interim" to reflect the fact that it was being made effective before any comments were received and addressed), with an opportunity for public comment, briefings

. were excluded from the category of " meetings." In the NRC's pre-1985 regulations, by contrast,

' briefings were treated as meetings, as a matter of policy The NRC's 1985 rule proved controversial. In response to Congressional criticism, much of it directed at the Commission's decision to make the rule immediately effective, the Commission assured the Congress that it would conduct no non-Sunshine Act discussions until procedures were in place to govem such discussions.

In December 1985, the NRC's Office of the General Counsel forwarded a final rulemaking paper in which comments on the interim rule were analyzed and responded to. However, by the time that the Commission was briefed on the comments, the American Bar Association had announced its intention to address Sunshine Act issues, including matters directly related to the NRC's rulemaking. The Commission therefore decided to withhold action on the matter and to defer actualimplementation and use of the 1985 rule pending receipt of the ABA's views.

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l e 1 7 Ill.The American Bar Association Acts.

In the fall of 1985, William Murane, Chairman of the Administrative Law Section of the American Bar Association, announced that the Council of the Administrative Law Section had decided to involve itself in the controversy over the Sunshine Act and its effect on the collegial character of agency decision making. Administrative Law Review, Fall 1985, Vol. 37, No. 4, at i

p. v. The Task Force established by the Administrative Law Section ultimately focused on a )

l single issue: the definition of" meeting" under the Sunshine Act. Its report and I recommendations were accepted by the Administrative Law Section in April 1986 and by the full American Bar Association in February 1987.

The ABA's recommendation and report confirmed that the Commission's reading of the  ;

i Sunshine Act, as interpreted by the Supreme Court in the !TT decision, was legally correct. l Moreover, the legal standard set forth in the ABA recommendation incorporated the identical I

language from the Supreme Court opinion which the NRC had included in its 1985 rule: l.e., the l i

provision stating that for a discussion to be exempt from the definition of " meeting,"it must be

"[not] sufficiently focused on discrete proposals or issues as to cause or be likely to cause the  ;

individual participating [ agency] members to form reasonably firm positions regarding matters pending or likely to arise before the agency." Subject to that qualification, the ABA guidelines provide that the definition of " meeting" does not include:

(a) Spontaneous casual discussions among agency members of a subject of  ;

common interest; (b) Briefings of agency members by staff or outsiders. A key element would be that the agency members be primarily receptors of information or views and only incidentally exchange views with one another; (c) General discussions of subjects which are relevant to an agency's responsibilities but which do not pose specific problems for agency resolution; and (d) Exploratory discussions, so long as they are preliminary in nature, there are no pending L

8 proposals for agency action, and the merits of any proposed agency action would be open to full consideration at a later time. i I

The ABA report disposed of the suggestion, advanced by some critics of the NRC's interim rule, "that the Supreme Court's opinion should be limited to the facts before the Court."

While it recognized that the case could have been decided on fact-specific grounds, the report

)

observed that:

l

[1]t cannot be assumed that the Supreme Court got carried away or that it was unaware that the definition of " meeting" was controversial and "one of the most troublesome problems in interpreting the Sunshine Act."[ Interpretive Guide 3.] We concluded therefore, that the Supreme Court meant what it said in ITT World Communications, and that it intended to provide guidance to agencies and the courts in applying the definition of " meeting." Report at 7.

The ABA report also rejecteo the argument that because of the " difficulty of specifying in advance those characteristics of a particular discussion which will cause it to fall short of f becoming a meeting," the Supreme Court's view of the Act should not become part of agency practice. [ Emphasis in the original.] The logic of this argument, said the ABA report, would permit no discussion whatever of agency business except in " meetings," a result which "seems clearly to us not to have been intended by Congress." Report at 8. The report noted that this argument in essence was a claim that agencies should apply a different standard from the one specified by Congress for distinguishing " meetings" from discussions that are not " meetings."

The ABA explained:

... Congress can hardly have gone to such pains to articulate a narrower standard had it not expected the agencies to use the leeway such a standard provides, and if they are to do so, they must attempt to set out in advance, whether by regulation or intemal guidelines, the elements or characteristics of a discussion which will cause it to fall short of being a meeting. Report at 8, fn. 9.

'A fuller description of the types of discussions fitting in these four categories may be j

found at pages 9 to 11 of the ABA report.

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7:

~9 The ABA report's conclusion was a measured endorsement of the value of non-Sunshine  !

Act discussions. After stressing that its purpose was not to urge agencies to close discussions now held in open session, the report made clear that its focus, rather, was on the discussions which, because of the Sunshine Act, are neverinitiatedin the first place. It said:

But the fact is that the Sunshine Act has had an inhibiting effect on the initiation of discussions among agency members. This is the conclusion of the Welborn report

[to the Administrative Conference), and it is confirmed by our meeting with agency general counsels.. . [T]he Act has made difficult if not impossible the maintenance of close day-to-day working relationships in [five-member and three-member]

agencies.. . We believe that a sensible and sensitive application of the principles announced in the ITTcase can ease the somewhat stilted relationships that exist in some agencies. Report at 11-12. [ Emphasis in the original.]

The ABA report made clear that it did not regard the opportunity for non-Sunshine Act discussions as a panacea for the Sunshine-caused loss of collegiality which the Administrative i

Conference had identified, and which the ABA's own inquiry had confirmed. The Report l

concluded that the impact of loosened restrictions was likely to be " slight," though it saw "some tendency to increase collegiality ... to ths extent that it would contribute to more normal interpersonal relationships among agency members." Report at 12. The Report also observed i

that collegiality is most important in group decision-making sessions, where the Act's " meeting" requirements clearly apply.

The ABA report recommended that agencies follow procedures for the monitoring and memorialization of non-Sunshine Act discussions to give assurance to the public that they are staying within the law. The ABA made clear that this was a policy recommendation, not a matter of legal obligation. (The report noted at one point that if a discussion "is not a ' meeting,' no announcement or procedures are required because the Act has no application." Report at 6.)

The ABA recommended that General Counsels brief agency members in advance on the requirements of the law, to assure their familiarity with the restrictions on non-Sunshine Act

10 discussions, and that non-Sunshine Act discussions (other than " spontaneous casual discussions of a subject of common interest") be monitored, either by the General Counsel or other agency representatives, and memorialized through notes, minutes, or recordings.

IV. Further Developments.

On August 5,1987, an amendment was offered to the NRC authorization bill to bar the Commission from using any funds in fiscal year 1988 or 1989 "to hold any Nuclear Regulatory Commission meeting in accordance with the interim (Sunshine Act] rule [ published in] the Federal Register on May 21,1985." 133 Cong. Rec. H7178 (Aug. 5 1987).2 As Chairman Philip Sharp of the Subcommittee on Energy and Power of the House Committee on Energy and Commerce explained, the amendment " simply neutralizes a rule change." The amendment, passed by a voice vote, was not passed by the Senate and thus was not enacted into law.

The Commission took no further action regarding the Sunshine Act after 1985, and the issue was allowed to become dormant. While the " interim" rule of 1985 has remained in effect and on the books, at 10 Code of Federal Regulations Part 9, the Commission has continued to apply its pre-1985 rules. Accordingly, all discussions of business by three or more Commissioners have continued to be treated as " meetings," whether formal or informal, deliberative or informational, decision-oriented or preliminary, planned or spontaneous. No non-Sunshine Act discussions of any kind have been held. In the meantime, some other agencies adopted and implemented rules that permit informal discussions that clarify issues and expose varying views but do not effectively predetermine official actions, discussions of the sort that the Court's ITT decision said are a "necessary part of an agency's work." 466 U.S. at 469-70. See, 2The text of the amendment and the colloquy surrounding its adoption by the House of Representatives are also reprinted in full in SECY-88-25.

11 for example, the Occupational Safety and Health Review Commission's (OSHRC) and Defense Nuclear Facility Safety Board's (DNFSB) definitions of " meeting", at 29 CFR 2203.2(d) (50 FR 51679; 1985) and 10 CFR 1704.2(d)(5) (56 FR 9609; 1991), respectively.

In February 1995, Commissinner Steven M. H. Wallman of the Securities and Exchange Commission, joined by twelve other Commissioners or former Commissioners of four i

independent regulatory agencias (the Securities and Exchange Commission, Federal l l

Communications Commission, Commodity Futures Trading Commission, Federal Trade Commission), wrote to the Administrative Conference of the United States to urge a reevaluation

{

i of the Sunshine Act. The group expressed strong support for the Act's objective of ensuring l greater public access to agency decision-making, but questioned whether the Act, as currently l structured and interpreted, was achieving those goals. The group said that the Act has a

" chilling effect on the willingness and ability of agency members to engage in an open and creative discussion of issues." It continued:

i In almost all cases, agency members operating under the Act come to a conclusion about a matter . . without the benefit of any collective deliberations.

[ Footnote omitted.) This is directly in conflict with the free exchange of views that we believe is necessary to enable an agency member to fulfill adequately his or her delegated duties, and to be held accountable for his or her actions.

We are also of the view that the Act is at odds with the underlying principles of multi-headed agencies. These agencies were created to provide a number of benefits, including collegial decision making where the collective thought process of a number of tenured, independent appointees would be better than one. I Unfortunately, the Act often tums that goal on its head, resulting in greater miscommunication and poorer decision making by precluding, as a matter of fact, the members from engaging in decision making in a collegial way. As a result, the Act inadvertently transforms multi-headed agencies into bodies headed by a number of individually acting members. [ Footnote omitted.)

The group identified as one problem the issue confronted by the NRC's 1985 rulemaking:

that "many agencies" avoided the problem of distinguishing between " preliminary conversations, which are outside of the Act, and deliberations, which trigger the Act," by a blanket prohibition, i

12 as a matter of general policy, against any conversation among a quorum of agency members, except in " meetings" under the Sunshine Act. While such bright-line policies were easy to apply and effective, the letter said, they were often over-inclusive, barring discussion of even the most preliminary views and often impeding the process of agency decision-making.

The Administrative Conference, then soon to be abolished, took up the group's challenge, assembled a special committee to study the Sunshine Act, and convened a meeting in September,1995, to discuss the Act, its problems, and possible remedies. The Conference appeared to be looking for some compromise, acceptable both to the Federal agencies and to representatives of the media, that would acknowledge the Act's impairment of the collegial process and try to remedy that by giving greater flexibility to agencies in applying the Act. No consensus developed, however. The Administrative Conference, apparently recognizing that there would be no meeting of the minds between critics and defenders of the Sunshine Act, did not pursue its efforts to find common ground.

V. Conclus!ons.

The Commission has taken into account information from a number of quarters, as well as its own experience in implementing the Sunshine Act. It has considered, among other things, the language of the statute and its legislative history; the Supreme Court's decision in the /TT case; Recommendation B&3 of the Administrative Conference of the United States; the findings of the American Bar Association, actual practice at other federal agencies, including the DNFSB and OSHRC; and the advice letter from numerous Commissioners and former Commissioners of four other independent regulatory agencies.

Based on all of these, the Commission believes that while the Sunshine Act's objectives, which include increasing agency openness and fostering public understanding of how the multi-s

4 13 member agencies do business, are laudable, it is important to recognize exactly what it was that Congress legislated. The legislative history, as the Supreme Court explained, shows that Congress carefully weighed the competing considerations involved: the public's right of access to significant irformation, on the one hand, and the agencies' need to be able to function in an efficient and collegial manner on the other. Congress struck a balance: it did not legislate openness to the maximum extent possible, nor did it provide unfettered discretion to agencies to offer only as much public access as they might choose. Rather, it crafted a system in which the Sunshine Act would apply only to " meetings," a term carefully defined to exclude preliminary, informal, and informational discussions, and then provided a series of exemptions to permit closure of certain categories of " meetings." Unfortunately, in part because of advice from the Justice Department in 1977 that later proved to be erroneous, the Commission's original Sunshine Act regulations did not give due recognition to the balance contemplated by Congress.

Rather, the regulations mistakenly took the approach that every discussion among three or more Commissioners, no matter how far removed from being " discussions that ' effectively predetermine official actions,'" in the Supreme Court's words, should be considered a "me6ing."

466 U.S. at 471.

At the time that the Commission changed its Sunsione Act rules in 1985, many of its critics appeared to believe that if the rule change were implemented, numerous discussions currently held in public session would instead be held behind closed doors. This was a misapprehension. Indeed, if there is one point that needs to be emphasized above any other, it is that the objective of the 1985 rule is not that discussions heretofore held in public session should become non-Sunshine Act discussions, rather, the focus of the 1985 rule is on the discussions that currently do not take place at all. This was also the focus of the American Bar Association and the authors of the 1995 letter to the A Jministrative Conference.

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14 The Commission believes that non-Sunshine Act discussions can benefit the agency and thereby benefit the public which the NRC serves. This view did not originate with the Commission by any means. On the contrary, as described above, the starting point of the Commission's analysis is Congress's recognition that '" informal background discussions [that]

clarify issues and expose varying views' are a necessary part of an agency's work," and that apply the Act's requirements to them would, in the words of the Supreme Court, " impa agency operations without achieving significant public benefit." 466 U.S. 463,469.

For convenience, the currently effective (but not implemented) 1985 rule is included in this notice and the Commission is providing 30 days for public comment on its stated intent to implement the 1985 rule. No non-Sunshine Act discussions will be held during the period public comment and for a 21-day period following close of the comment period to allow the Commission to consider the public comments. Absent further action by the Commission, non-Sunshine Act discussions may be held commencing 21 days after the close of the comment period.

From previous comments, the following are possible questions about the 1985 rule, and the Commission's responses to those questions.

1. What types of discussions does the Commission have in mind, and what does it seek to accomplish with this rule?

- Answer: First and foremost, the Commission would like to be able to get together as a

' body with no fixed agenda other than to ask such questions as: "How is the Commission functioning as an agency? How has it performed over the past year? What have been its majo successes and failures? What do we see coming in the next year? In the next five years, and ten years? How well are our components serving us? Are we getting our message to the industry we regulate and to the public? Are we working effectively with the Congress?" This ,

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15 I kind of " big picture" discussion can be invaluable. One of the regrettable effects of the Sunshine Act, as documented as long ago as 1984, in Administrative Conference Recommendation 84-3, has been the loss of collective responsibility at the agencies, and the shift of authority from Presidentially appointed and accountable agency members to the agencies' staffs. The l l

Commission believes that " big picture" discussions served a valuable function in pre-Sunshine Act days at NRC and can do so again, helping to assure that the Commissioners serve the public with maximum effectiveness and accountability.

The Commission believes that some kinds of general, exploratory discussions can be l

useful in generating ideas. Such ideas, if developed into more specific proposals, will become the subject of subsequent " meetings." The Commission recognizes that it would be incumbent on the participants in such non-Sunshine Act discussions to assure that they remain preliminary and do not effectively predetermine final agency action. The Commission believes that the guidelines proposed by the American Bar Association are the most suitable criteria for assuring compliance with the Act's requirements.

The Commission also believes that spontaneous casual discussions of matters of mutual interest - for example, a recent news story relating to nuclear regulation - can be beneficial, helping both to ensure that Commissioners are informed of matters relevant to their duties and to promote sound working relationships among Commissioners.

2. Is it really clear that the law permits non-Sunshine Act discussions?

Answer: Yes, beyond any reasonable doubt. Congress so provided, a unanimous Supreme Court has so found, the American Bar Association Task Force on the Sunshine Act agreed, the Council of the Administrative Law Section of the American Bar Association adopted the Task Force's views, and the ABA's full House of Delegates accepted the Administrative Law Section's report and recommendation.

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3. Didn't the ITTcase involve a trip to Europe by less than a quorum of FCC members, l

. and couldn't the case be viewed as relating to those specific facts?

Answer: The case was resolved on two separate grounds. Although the Supreme Court j did not have to reach the issue of what constitutes a " meeting" under the Sunshine Act, it did so, 1

in order (so the ABA report concluded) to provide guidance to agencies and the courts on a difficult aspect of Sunshine Act law. In addressing the ambiguity in the definition of" meeting" and thus the uncertainty as to the Act's scope, the Supreme Court was acting to resolve a problem that had been apparent literally from the day of its enactment into law, as President 1

Ford's statement in signing the bill, on September 13,1976, makes clear. He wrote:

1 I wholeheartedly support the objective of govemment in the sunshine. I am concemed, l j

however, that in a few instances unnecessarily ambiguous and perhaps harmful provisions were included in S.5. . The ambiguous definition of the meetings covered by this act, the unnecessary rigidity of the act's procedures, and the potentially burdensome requirement for the maintenance of transcripts are provisions which may require modification. Govemment in the Sunshine Act - S.5 (P.L.94-409), Source Book:

Legislative History, Text, and Other Documents (1976), at 832. l

4. On the meaning of " meeting" as used in the Sunshine Act, aren't the views of Congressional sponsors of the legislation entitled to consideration?

Answer. Yes, when they appear in the pre-enactment legislative history. In the present {

case, for example, the Supreme Court cited the remarks of the House sponsor of the Sunshine Act, Representative Dante Fascell, who introduced the report of the Conference Committee to the House. He explained to his colleagues that the conferees had narrowed the Senate's definition of " meeting" in order "to permit casual discussions between agency members that might invoke the bill's requirements" under the Senate's approach. 122 Cong. Rec. 28474 (1976), cited at 466 U.S. 463,470 n.7. Likewise Senator Chiles, the Senate sponsor of the bill, i

17 l

described the definition of " meeting" in the final bill as a " compromise version." 122 Cong. Rec.

S15043 (Aug. 31,1976), reprinted in Govemment in the Sunshine Act Source Book. In any case, however, once the Supreme Court has declared what t,he law requires, federal agencies are bound to follow its guidance.

5. Is there any basis in the legislative history for the notion that non-Sunshine Act discussions are not only permissible, but useful?

Answer: Yes. The point was made forcefully by Professor Jerre Williams (subsequently a judge on the Fifth Circuit Court of Appeals), presenting the views of the American Bar Association. He testified, in Congressional hearings on the bill:

One of the most critical facets of the American Bar Association view has to do with the definition of" meeting." The ABA firmly agrees that policy must not be determined by informal closed-door caucuses in advance of open meetings. On the other hand, however, the ABA believes it irnportant that " chance encounters and informational or exploratory discussions" by agency members should not constitute meetings unless such discussions are "relatively formal" and " predetermine" agency action.

It should be a matter of concem to all those interested in good government that agency members be allowed to engage in informal work sessions at which they may " brainstorm" and discuss various innovative proposals without public evaluation or censorship of their search for new and creative solutiens in important policy areas.

All persons who have engaged in policymaking have participated in such informal sessions. Sometimes outlandit h suggestions are advanced, hopefully humorous suggestions abound. But out of all this may come a new, creative, important idea.

There is time enough to expose that idea to public scrutiny once it has been adequately eva8uated as a viable attemative which ought to be seriously considered. [ Emphasis added.) Hearings Before a Subcommittee of the Committee on Govemment Operations, House of Representatives,94th Cong., First Session (Nov. 6 and 12,1975), at 114-15.

6. Why is the NRC paying so much attention to the /TTcase and ignoring the Philadelphia Newspapers case which dealt specifically with NRC7

18 Answer: First of all, the ITT case dealt with the issue of what is a " meeting." whereas Philadelphia Newspapers, Inc. v. NRC,727 F.2d 1195 (D.C. Cir.1984). dealt with an unrelated issue: whether a particular " meeting" could be closed under the Sunshine Act. Secondly, the

/TT case was decided by the Supreme Court. and as such would be entitled to greater weight than the decision of one panel of a Court of Appeals, even if they were on the same issue.

Thirdly, the full D.C. Circuit, sitting en banc, has severely criticized the Philadelphia Newspapers decision for digressing from Congressional intent and thereby reaching an " untoward result."

Clark-Cowlitz Joint Operating Agency v. FERC,798 F.2d 499,503 n.S (D.C. Cir.1984).

7. If it is so clear that non-Sunshine Act discussions are permissible, why did the NRC interpret the Act differently for so many years?

Answer: In part, the answer lies in the fact that the Justice Department, in the years 1977 to 1981, took an expansive view of the definition of " meeting." (See the letter from Assistant Attorney General Barbara A. Babcock reprinted in the Interpretive Guide at p.120.) in contrast, Berg and Klitzman, the authors of the Interpretive Guide, believed that Congress had consciously narrowed the definition. (See the interpretive Guide at 6-7.) Because the Justice Department defends Sunshine Act suits in the courts, its view of the law's requirements carried considerable weight. The Supreme Court's decision in the iTT case resolved the issue definitively.

8. Didn't the NRC acknowledge in its 1977 rulemaking that it was going beyond the law's requirements in the interest of the Act's " presumption in favor of opening agency business to public observation"? Why isn't that rationale still applicable today?

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19 Answer: There are at least three factors today that were not present in 1977: (1) the Supreme Court's /TTdecision, which makes clear that Congress gave the agencies authority to hold such discussions because it thought they.were an important part of doing the public's business; (2) the Administrative Conference recommendation stating that the Sunshine Act has had a much more deleterious effect on the collegial nature of agency' decision making than had been foreseen; and (3) the American Bar Association report stating that Congress gave the '

agencies the latitude to hold non-Sunshine Act discussions in the expectation they would use it, and suggesting that the use of such discussions might help alleviate some of the problems caused by the Sunshine Act. Moreover, the Commission has had the benefit of its own and other agencies' experience under the Act. It should be emphasized that the Commission, by l

implementing this rule, is not implicitly or explicitly urging that the Sunshine Act be altered,  ;

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rather, it is saying that the Sunshine Act should not be applied even more restrictively than l Congress intended when it enacted the statute.

9. Why does the NRC put such reliance on the ABA report,'when the ABA made a point of saying that it was not urging the closing of any meetings now open?

' Answer: The question misses the point of the ABA comment. In the context in which the

. comment appears in the ABA report, it is clear that the ABA was expressing its concem for the

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discussions that currently do not happen at all, either in open or in closed session, because the

' Sunshine Act inhibits the initiation of discussions. Its point was similar to that made by Professor Williams in the hearings on the bill in 1975, when he urged that agency members not be deprived of the opportunity to generate ideas in " brainstorming sessions"- ideas which may subsequently be the subject of " meetings"if they turn out to warrant formal consideration. As

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1 20 we have emphasized above, the Commission is not proposing to close any meetings currently held as open public meetings.

10. How does the Commission intend to differentiate between " meetings" and "non-Sunshine Act discussions"?

Answer: The Commission intends to abide by the guidance provided by the Court in FCC

v. /TT World Communications and contained in our regulations, in differentiating between

" meetings" and non-Sunshine Act discussions. Applying this guidance, the Commission may consider conducting a non-Sunshine Act discussion when the discussion will be casual, general, informational, or preliminary, so long as the discussion will not effectively predetermine final agency action. Whenever the Commission ar.ticipates that a discussion seems likely to be "sufficiently focused on discreet proposals or issues as to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency," the Commission will treat those discussions as " meetings." See id. at 471.

Further, to ensure that we appropriately implement the Supreme Court guidance in differentiating between non-Sunshine Act discussions and meetings, the Commission will consider the ABA's remarks on the seriousness of this task. For instance, the ABA cautioned that a non-Sunshine Act discussion "does not pose specific problems for agency resolution" and agency" _ members are not deliberating in the sense of confronting and weighing choices." Repor at 9-11.

Some specific examples of the kinds of topics that might be the subject of non-Sunshine l Act discussions would include generalized " big picture" discussions on such matters as the following: "How well is the agency functioning, what are our successes and failures, what do we

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9 21 see as major challenges in the next five and ten years, what is the state.of our relations with the public, industry, Congress, the press?"

Preliminary, exploratory discussions that generate ideas might include, for example, "Is there more that we could be doing through the internet to inform the public and receive public input? How does our use of the Intemet compare with what other agencies are doing?" Such ideas, if followed up with specific proposals, would become the subject of later " meetings" within the meaning of the Sunshine Act.

Spontaneous, casual discussions of matters of mutual interest could include discussions of a recent news story relating to NRC-licensed activities, or a Commissioner's insights and personal impressions from a visit to a licensed facility or other travel. Under this heading, three Commissioners would be permitted to have a cup of coffee together and to talk infomially about matters that include business-related topics. Under the Commission's pre-1985 rule, such informal get-togethers were precluded. I Briefings in which Commissioners are provided information but do not themselves dei.Mrate on any proposal for action could include routine status updates from the staff.

Deussions of business-related matters not linked to any particular proposal for Commission action might include an upcoming Congressional oversight hearing or a planned all-hands meeting for employees.

I

11. Apart from the issue of the definition of " meeting," are there other changes that the interested public should be aware of? l Answer Yes, one minor procedural point. The 1985 rule includes a provision stating that  !

transcripts of closed Commission meetings will be reviewed for releasability only when there is a request from a member of the public for the transcript. Reviewing transcripts for releasability l

22 f

when no one is interested in reading them would be a waste of agency resources and thus o the public's money.

12.' Will the Commission adopt any particular internal procedures for its non-Sunshine Act 1 discussions?

Answer: For an initial 6-month fieriod of non-Sunshine Act discussions, the Commission will maintain a record of the date and subject of, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend. After the six-month period the' Commission will revisit the usefulness of the record-keeping practice.

List of Subjects in 10 CFR Part 9

. Criminal penalties, Freedom of information, Privacy, Reporting and recordkeeping

~

requirements, Sunshine Act.

The May 21,1985 (50 FR 20863), rule is currently effective but has never been implemented. For the convenience of the reader, the Commission is republishing the text

' rule.'

PART 9 - PUBLIC RECORDS

1. The authority citation for Part 9 continues to read as follows:

AUTHORITY: Sec.161,68 Stat. 948, as amended (42 U.S.C. 2201); sec. 201, 88 Stat.

1242, as amended (42 U.S.C. 5841).

Subpart A is also issued 5 U.S.C. ; 31 U.S.C 9701; Pub. L.99-570. Subpart B is also issued under 5 U.S.C. 552a. Subpart C is also issued under 5 U.S.C. 552b.

2. In 99.101,' paragraph (c) is republished for the convenience of the reader as follows:

$ 9.101 Definitions.

j- .

23 (c) Meeting means the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by 9.105, 9.106, or 9.108(c), do not constitute " meetings" within this definition.

3. In 6 9.108, paragraph (c) is republished for the convenience of the reader as follows:

9.108 Certification, transcripts, recordings and minutes (c) In the case of any meeting closed pursuant to Q 9.104, the Secretary of the Commission,- upon the advice of the General Counsel and after consultation with the Commission, shall determine which, if any, portions of the electronic recording, transcript or i minutes and which, if any, items of information withheld pursuant to Q 9.105(c) contain

'information which should be withheld pursuant to 6 9.104, in the event that a request for the recording, transcript, or minutes is received within the period during which the recording, transcript, or minutes must be retained, under subsection (b) of this section.

Dated at Rockville, Maryland, this % day of May,1999 For the Nuclear Regulatory Commission.

/W~

Annette Vietti-Cook, Secretary of the Commission.

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Secretary -

United States Nuclear Regulatory Commission Washington, DC 20555-0001

SUBJECT:

COMMENTS ON NON-SUNSIllNE ACT DISCUSSIONS

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DOCKET NUMBER

Dear Ms. Vietti-Cook:

PROPOSED RULE.N Y (HFby13[]

The following comments are submitted in response to the May 10,1999, Federal Register notice (Vol.

64, No. 89) regarding the Nuclear Regulatory Commission's intent to implement a rule enacted in 1985 allowing three or more Commissioners to hold private discussions.

The Commission should not conduct non-Sunshine Act discussions. If the Commission persists in meeting privately, the agency must stop proclaiming that "public confidence"is one ofits key considerations. The two actions are contradictory. The Commission must decide whether it will sacrifice public confidence in order to gain some pmported convenience. J The FederalRegister notice stated that by now implementing a 14-year old rule, "The Commission believes that non Sunshine Act discussions can benefit the agency and thereby benefit the public which l the NRC serves." The Commission is clearly entitled to the beliefs ofits choice, as are we. We believe l that the public would be better served if the agency were to now enforce a 19-year old rule - namely, the fire protection regulations of Appendix R to 10 CFR Part 50. Continuing to virtually scoff at those public j safety regulations while implementing thLs rule allowing private meetings will do very little to boost public confidence. More importantly, it does nothing to protect public health and safety.

The Federal Register notice stated that At the time that the Commission changed its Sunshine Act rule in 1985, many ofits critics y appeared to believe that if the rule change were implemented, numerous discussions currently j held in public session would instead be held behind closed doors. This was a misapprehension.

Indeed, if there is one point that needs to be emphasized above any other, it is that the objective h of the 1985 rule is not that discussions heretofore held in public session should become non-y Sunshine Act dieussions; rather, the focus of the 1985 rule is on the discussions that currently g do not take place at all.

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Our concern, which the staff cavalierly dismissed as a ' misapprehension,' is that the bulk of the 3 discussion on selected agency matters will be conducted by the Commissioners in private sessions,

, g thereby turning public meetings into mere theatrics, which by their very nature tend to erode public confidence.

Washington Office: 1616 P Street NW Suite 310 . Washington DC 20036-1495 e 202-332 0900 . FAX: 202 332 0905 Cambrktge Headquarters: Two Brattle Square . Cambridge MA 02238-9105 617-547-5552 . FAX: 617-864-9405 California Office: 2397 Shattuck Avenue Suite 203 . Berkeley CA 94704-1567 . 510-843-1872 . FAX: 510-843-3785

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May 12,1999 Page 2 of 2 The agency's evaluation, as presented in the Federal Register notice, failed to justify why non-Sunshine Act meetings were important. In numerous other forums, such as in testimony before the United States Senate and in the document (SECY 99-007A) supporting its new oversight program, the agency contends that the nuclear industry's overall safety performance has improved significantly over the past decade and suggests that its regulaton/ effectiveness is partially responsible for this improvement. If this contention is correct, the agency seemingly wants us to believe that this alleged regulatory effectiveness and safety improvement was obtained in spite of the Commission's inability to conduct non-Sunshine Act discussions.

I Setting aside beliefs, the truth is that the agency's existing " Noah's Ark" policy allows Commissioners to  !

privately gather as often as desired "two by two." Technically, this policy enables the Commission to l reach consensus on an issue before discussing it in a public meeting and to examine " big picture" issues. l This existing policy therefore prevents neither the predeterminations that we fear or the collegial raps j that the Commissioners desire - it merely complicates and inconveniences the process.

k Returning to beliefs, UCS believes that implementing this 1985 rule at this time will gain the Commission some convenience at the sake of eroded public confidence. During my tenure at UCS, I have only sought, and was granted, one private meeting with a member of the Commission.' Such private meetings would not be improper and would enhance the dialogue between UCS and the Commission on safety issues, but I have resisted them. Instead, I engage the Commission on safety issues via the very public forums of public meetings and publicly available correspondence. It is more inconvenient and perhaps less effective, but it is necessary to avoid even the perception of behind-the-scenes dealings.

The Commission has a choice - convenience or confidence. It may be very tempting to choose convenience. But, a simplified process which lacks public confidence is not really an attractive option.

UCS urges the Commission not to implement this 1985 rule and not to hold non-Sunshine Act discussions involving three or more Commissioners.

Sincerely, David A. Lochbaum Nuclear Safety Engineer

' The one exception involved a whistle-blower who was receiving death threats at the job site, but very little attention or interest from the NRC staff.

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(=1 i h. / 99 MY 20 P3 :45 Nuclear information and Resource Service 1424 ism st uw, sa. 4o4. womnaton. oc 20o38. 202-328-ooo25202-4s2-2ias. .-,nggeac., .y..org ora DOCKET NUMBER May 18,1999 PROPOSED RULEN i

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Secretary U.S. Nuclear Regulatory Commission g Washington, DC 20555-0001 A'ITN: Rulemakings and Adjudications Staff lL Regardmg Government in the Sunshine Act Regulations Final Rule:

Notice ofintent to implement currently effective rule and request for comments.

. Federal Register: May 10,1999 (Volume 64, Number 89) Page 24936-24942

Dear Ms. Vietti-Cook:

On behalf of Nuclear Information and Resource Service (NIRS), I am offering the l following comments on the Commission's final mie to implement non-Sunshine Act meetings.

NIRS opposes the implementation of this rule at this time.

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C As a publip interest stakeholder in the nuclear power issue, NIRS would hopefully interpret the Commission's intent of the rule to take the deliberative process out of a

" fishbowl" to allow for a more creative process to not only include our constituency but the regulated licensees as well.

However, given the history of the agency to date, NIRS must take a more cynical view.

It is our observation that NRC already and increasingly allows the industry a favored position to view and participate in the agency's deliberative and decision-makmg pmcess.

Placing the Commission's decision-making pmcess further behind the veil from public scrutiny is not a productive direction for the agency to be headed in establishing a more level playing field for all stakeholders. It is our current concern that the agency is already heavily biased in favor of economically shielding the industry from the consequences of the regulatory process. Public confidence is at an all time low with the agency's demonstrated inability to effectively regulate the industry,at arm's length, to hold industry to commitments to maintain reactors within their design bases, to resolve numerous safety issues within a timely fashion,to pmtect the anonymity of the safety-m 25 lill =~

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y_ o conscious workplace, to allocate agency resources to provide the public with reasonable precautionary and protectivr, action against accidental radioactive releases and to take effective enforcement action against repeated licensees safety violations.

Allowing the Commissioners to meet in a non-Sunshine Act format opens the proverbial bam door ofopponunity for additional abuse without checks and balances.

NIRS is panicularly concemed with potential Commission abuse through closed-door meetings with licensees and consultants or agents oflicensees. The current rule makes no provisions for preventing such abuse to occur.

Another specific concern involves opening the process to abuse by a majority of the commission meeting to the exclusion of the minority. The current mle makes no provision for preventing the development of majority-mle fiefdoms in the guise of discussion groups within the Commission.

The reason the Sunshine Act was originally implemented was because commissioners would meet 2-3 at a time, in door-to-door discussions about issues, and make their decisions. They would then " meet" formally and pretend to talk about the issues and vote on the basis of discussions not fully within the range of public access and understanding.

NIRS regrets that our objection to non-Sunshine Act meetings would preclude the commissioners from meeting " collegially," but the level of distmst is already so high that anything they cant say to each other in a publicly transcribed meeting probably shouldn't be said anyway. The Commission has on numerous occasions espoused its intent to make its process "more transparent"in order to regain public tmst. The move to non-Sunshine Act meetings contradicts the Commission's stated intent. Until such time that the public .

is willing and able to trust the Conunission's deliberative process, the Commission must  !

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I conduct its process in the light of day to the degree currently provided by the Sunshine Act.

Paul Gunter, Director Reactor Watchdog Pmject 4

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U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 m

" 3 -3 P2 :20 ATTN: Rulemakings and Adjudications Staff.

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OR Re: Sunshine Act Regulations dl(Tj WFF 26 May,1999

Dear Sirs,

I would like to comment on the subject of the Government in the Sunshine Act ,

Regulations, recently published in the Federal Registry. I

(- I am outraged that you would be so deceitful as to bar the public from your meetings.

Redefining the word meeting isn't much of a cover for what you are planning to do. It is understandable that you would want privacy for meetings of three or under, but when more meet it should and must be open to the public. The public should be able to attend all meetings, (I am using the Webster's definition not the court's definition), and be able ,

to witness all events taking place without restrictions. The public should also be able to make comment during all meetings.

It is imperative to a free and democratic society that the truth be known without restriction. Members should be accountable for gli actions and words.

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- By limiting public access the NRC is showing the public that it has something to hide, something that would be good for the few and not the many. Like little boys that want to

( do something dirty the NRC would conceal i,ts true self.

Remember one key issue. Without the public the NRC is nothing.

i Sincerely, i I k Y >L ,

Paul Goettlich P.O. Box 6854 ,

SouthBend IN 46660 (dow t @ tgcWd-Jgf-1Ill9 =-

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8 GE NE8 At COUNit t June 9,1999 AD- BY COURIER Ms. Annette L. Vietti-Cook DOCKET NUMBER Secretary PROPOSED RULE PR 9 U.S. Nuclear Regulatory Commission WDN Mail Stop O 16 G15 One White Flint North

( 11555 Rockville Pike Rockville, MD 20852 2738 ATTN: Rulemakings and Adjudications Staff

SUBJECT:

Government in the Sunshine Act Regulations (64 Fed. Reg. 24936 - May 10,1999)

Dear Secretary Vietti Cook:

The nuclear energy industry long has encouraged the Commission to revise its practices for conducting meetings in accordance with the Government in the F

( Sunshine Act (Public Law No.94-409). The Nuclear Energy Institute (NEI),1 on behalf of the nuclear energy industry, supports the Commission's action to adopt a more reasoned, rather than an unduly restrictive, interpretation of the Sunshine Act. l The May 10,1999, Federal Register notice provides a thorough exposition of the I underlying statutory requirements, its purpose and its limits, and provides a solid legal basis for the proposed agency action. As a result, there is no reason to separately examine the governing statutory and judicial foundation for the Commission's actions in these comments. Because of the extensive coverage in the Federal Register notice of the many policy considerations that led to the 1 NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEl's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect / engineering firms, fuel fabrication facilities, nuclear materials licensees, and other organizations and individuals involved in i the nuclear energy industry.

g 1776 0 $Tttif. NW $Ulti 400 W ASHINGTON. DC 20006-3708 PHONE 202 739 8139 FAX 202 785 4019 www riei.org

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Secretary Vietti Cook June 9,1999 Page 2 Commission's decision to modify its practices, we have not provided detailed comments on those matters either. However, if the Commission is interested in the industry's views on any of those issues, we would be pleased to provide our perspective.

We believe that implementation of the Commission's new initiative is a clearly justified step to improve the administration of the Commission's responsibilities in a manner consistent with the practices of other federal agencies. The deliberative process that the Commission has outlined will allow productive discussion between Commissioners on issues ofimportance to the agency. It will also foster the development of a productive collegial relationship among the Commissioners. It

( will not, however, jeopardize the Commission's responsibilities under the Sunshine Act.

The Commission should be commended for taking yet one more initiative to reform its administrative processes to enable it to be a more ef5cient and effective regulator. These actions will benefit all who are airected by the Commission's actions, whether NRC licensees, members of the general public, or others.

Sincerely, ,

1 I

Robert W. Bis l C l i

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From:

(VIFRM4%) DCCMETED BREDL <BREDL@ skybest.com> US!T.

To: TWFN_DO.twf4_po(CAG)

Date: Thu, Jun 10,199912:04 AM

Subject:

comments 10CFRpart9 '99 Jun 11 P 4 .c0 v

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE C1 '

PO Box 88 - Glendale Springs, North Carolina 28629 hU.

<www.bredl.org> Phone 336-982-2691 - Fax 336-982-2954 - Email AD,L r bredl@skybest.com June 9,1999 Secretary US Nuclear Regulatory Commission Washington, DC 20555-0001 Re: Government in the Sunshine Act Regulations 10 CFR Part 9

Dear Mr. Secretary:

I write in opposition to the notice of intent to impisment a final rule that amends the Government in the Sunshine Act with regard to the Nuclear Regulatory Commission. I have reviewed documents provided by the NRC Office of Public Affairs and the Federal Register pertaining to this matter.

The proposed action would change the way meetings are conducted within the NRC. Meetings could be held which would not be open to the public, and without effective public oversight. The 1985 rule contains a provision which states that transcripts of closed Commission meetings will be released only when there is a request from a member of the public. This is not a minor point. This provision creates a Catch 22 situation in which a member of the public would have to have reason to request a transcript about which he or she has little or no knowledge.

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(" The citation by the NRC of the 1984 Supreme Court decision (FCC v. ITT World Communications,466 US 463), the American Bar Association report, and the Administrative Conference of the United States Recommendation does not alter the fact that there is no consensus on this matter and that the Administrative Conference left the question open in 1995.

The NRC fails to identify solid evidence to back its assertion that meetings which are not held impair the collegial process. Furthermore, by providing examples of what might be considered non-Sunshine Act discussions, e.g. how is the Commission functioning as an agency? or, are we working effectively with Congress?, the NRC trivializes the nature of an amendment to a rule which has served the agency for over two decades. Examples of non-Sunshine discussions in the 4 May 1999 Q&A, Annette Vietti-Cook states,

• Spontaneous, casual discussions of matters of mutualinterest could include discussions of a recent news story l relating to NRC-licensed activities, or a Commissioners insights and personal impressions from a visit to a facility or other travel * (emphasis added) A

• bright line* definition of what constitutes a meeting, i.e. a quorum of commissioners, is precisely the public deserves and is what the Commission ought to adhere to.

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e' Finally, with regard to international projects and the free flow of information, the amendment may prevent the public from obtaining important information about companies based outside the United States. For example, the British firm BNFL is shielded by the Official Secrets Act in that country. Likewise, the French concern COGEMA is immune from our Freedom of Information Government in the Sunshine Act Regulations 10 CFR Part 9 Act. By closing meetings which are for

• presentation or exchange of information,* public access to information about these companies will be denied. Important national policy decisions will suffer as a result of the information blackout on foreign industries which will construct facilities and provide fuel to supply plutonium-fueled light water reactors to utilities in North Carolina, South Carolina, and Virginia.

Respectfully submitted,~

Louis A.Zeller Blue Ridge Environmental Defense League P.O. Box 88

-( Glendale Springs, NC 28629 l

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