Text

Forwards Comment Ltr Related to Final Rule Re Government in Sunshine Act Regulations for Docketing
	ML20211Q611
Person / Time
Issue date:	06/10/1999
From:	Carol Gallagher; NRC
To:	Julian E; NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20211Q552	List: ML20211Q547; ML20211Q611;
References
	FRN-64FR39393, RULE-PR-9 AB94-2-013, NUDOCS 9909150104
	Download: ML20211Q611 (1)
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'.. j June 10,1999 NOTE TO: Emile Julian -

Chief, Docketing and Services Branch FROM:

Carol Gallagher #

ADM, DAS

SUBJECT:

DOCKETING OF COMMENT ON FINAL - GOVERNMENT IN THE SUNSHINE ACT REGULATIONS Attached for docketing is a comment letter related to the subject final rule. This comment was received via e-mail on June 10,1999. The submitter's name is Louis A. Zeller, Blue Ridge Environmental Defense League, P.O. Box 88, Glendale Springs, NC 28629. Please send a copy i

J of the docketed comment to Trip Rothschild (mail stop 015-B-18) for his records.

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'99 JUN 14 P3 :14 fluyers Up . Congress Watch . Critical Mass . Global Trade Watch . Health Research Group . Litiration Group Joan Claybrook, President g.

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ADe June 8,1999 DOCKET NUMBER S"*'Y' PROPOSED RULE 59 U.S. Nuclear Regulatory Commission, (btlFRA %3D/

Washington, DC 20555-0001 Attn: Rulemakings and Adjudications Staff

( COMMENTS OF PUBLIC CITIZEN'S CRITICAL MASS ENERGY PROJECT ON THE NUCLEAR REGULATORY COMMISSION'S IMPLEMENTATION OF 10 CFR PART 9: GOVERNMENT IN THE SUNSHINE ACT REGULATIONS The Nuclear Regulatory Commission has announced its intent to implement a final rule, published and made effective in1985, that amended its regulations applying the Government in the Sunshine Act. Essentially, the NRC will obviate the requirements of the Sunshine Act and allow a quorum of the NRC Commissioners to exclude the public from merely viewing their meetings. The Commission claims that it 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. However, the NRC's decision to implement the rule on June 1, prior to the closure of the comment period on June 9, F betrays the Commission's bias.

lt Public Citizen vigorously opposes the NRC's wrong-minded attempts to close meetings to public scrutiny. The NRC's attempts to close certain meetings between three or more NRC Commissioners is based upon a selective interpretation of a fifteen year old court case. Given that it has taken the NRC fifteen years to get around to implementing its misinterpretation of the Sunshine Act, waiting until the end of the comment period j would have at least provided the public with the illusion that our comments would be taken into consideration.

While the NRC acknowledges that FCC v. ITT World Communications,466 U.S.

463 (1984) is not directly on point, the Commission is none-the-less willing to circumscribe the public's ability to merely view Commission deliberations based upon an overly broad interpretation of a fifteen year old court case. The decision in FCC v. ITT World Communications, states that a quorum of the FCC is an agency is subject to the !

Sunshine Act but only in regard to " matters that are within that subdivision's formally delegated authority to take official action for the agency.'YFCC v. ITT World Communications. 466 U.S. 463,465-465 (1984). The court also found that deliberations Ralph Nader, Founder 215 Pennsylvania Ave SE. Washington, DC 20003. (202) 546 4996. www. citizen.org -o- O r== = asevem em.'

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r of a quorum of an agency subdivision upon matters outside that subdivision's formally delegated authority are not " meetings" subject to the Sunshine Act. (FCC v. ITT World Communications,466 U.S. at 473.

l The NRC does not claim that these "non-sunshine act meetings" are conceming issues outside of the Couunissioners formally delegated authority to take official action for the agency. Nor do I believe that they could sustain such an argument. Furthermore, the premise that the Nuclear Regulatory Commission can best serve the public by excluding them from viewing the Commissioners deliberations is absurd!

1 Rather than relying upon its overly broad interpretation of FCC v. ITT World Communications, NRC's Office of General Counsel should have reviewed and relied {

j upon the legislative history of the Sunshine act. The Senate Report explains that:

The definition of meetings includes the conduct, as well as the disposition, of official agency matters. It is not sufficient for the purposes of open government

( to merely have the public witness final agency votes. The meetings opened by Section 201(a) are not intended to be merely reruns staged for the public after agency members have discussed the issue in private and predetermined their views. The whole decision making process, not merely its results, must he exposed to public scrutiny.

(Government-in-the-Sunshine Source Book: Legislative History, Texts, and other Documents, Committees on Government Operations, U.S. Senate and House of Representatives,94* Cong.,2d Sess. (1976) S. Rep. No. 354 at p. I 8, Reprinted in Sunshine Source Book at 214. Emphasis Added.)

g Similarly the House report states that meetings " include not only sessions at which formal action is taken, but also those at which a quorum of members deliberates

{k regarding the conduct or disposition of agency business." (H.R. Rep. 880 (part 1) at p. 3.,

reprinted in 1976 U.S. Code Cong. & Admin. News at p. 2185.) ,

l The Commission claims that "The Act's procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit."(64 Fed. Reg. 24937.) However, the Commission has failed to identify a single instance where its previous interpretation of the Sunshine Act " impaired normal agency operations." Furthermore, the NRC claims that it "could have continued to use the language ofits 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." (Id. at p. 24937.)

I hope the absurdity of the previous statement is not lost on the Commission. The NRC, in the interest of openness, is going to explicitly declare its intent to close

=s certain meetings to the public. Is it any wonder that this agency and the industry it purports to regulate have forever lost the trust of the American public? Are the Commissioners so afraid that the public will find fault with their deliberations that they must hide behind closed doors? I If the NRC Commissioners can not stand in the sunshine and conduct their i deliberations openly, they should make no pretense about seeking public participation or bemoaning the fact that they and the nuclear industry have lost the public's confidence.

If this interpretation of the Sunshine Act is implemented, meetings that the NRC j Commissioners deign to open to the public will be little more than a charade where the Commissioners merely rerun decisions made behind closed doors. As Abraham Lincoln once wrote, "When it comes to this, I shall prefer emigrating to some country where they make no pretense ofloving liberty - to Russia, for instance where despotism can be taken pure and with out the base alloy of hypocrisy."(Abraham Lincoln, Letter to Joshua F.

Speed, August 24,1855) k Respectfully Submitted,

,es P. Riccio Staff Attorney i Public Citizen's Critical Mass Energy Project l

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' i March 22,1999 Senator JohnEdwards l

Hart SenateBuil&ng Washmgton,D.C. 20510

Dear SenatorEdwards:

It has come to the attention of the Town of Canboro that the U.S. Nuclear Regulatory

- Commission (NRC) seeks exemption from the Sunshme Act and proposes to facilitate policy makmg out of the view of the public to which it is responsible. We believe this '

proposed policy change is unwise, wish to express our opposition to it, and request your assistancein opposingit.

On March 1,1999 the NRC announced that it would propose a final rule which allows three of five NRC comrmasioners to meet in private, Currect mies allow no more than

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two commissioners ta meet to discuss business. Asjustification for the change, the Commission cited a 1984 Supreme Court ruling v%h opened the way for this re-interpretation of the Sunshme Act of 1976. We, understand the NRC has directed its General Counsel to prepare the rule to be pablished in the Federal Register witlin 30 days.

Notwithstandmg assurances by the Commission that policy decisions would not be made at such closodaloor nwetings, we believe this rule change would undermine public confidence in the agency at a critical time.

The importance of this proposed change should not be underestimated. Policyissues now under discussion include such 6=d==at=1 questions about nuclear energy as decommissioning of nudear power plants, plutomum fuel reprocessing, nuclear non-proliferanon, and nuclear waste disposal. We also believe that it runs counter to recent administranon decisions, which have brought past practices into the light of day.

Our concerns are WM because Cantoro is located only some twenty miles from the site of Carolina Power & Light Comp.a' y's ShenronHarris nuclear plant. CP&L currently has applied to the NRC to expand its high level nuclear waste storage capacity at the plant. Significant technical and policy questions remain unanswered about the risks, l wiklom, and attematives of this proposal. If granted, more high level wute could be stored at Shearon Hams than at any other plant in the country

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Ed22,1999 It is in the Imerests of:be residents of Carrboro and others around the country, that deliberations and decisions be made in the open, in the " sunshine". We do not beheve that discussions of nuclear regulatory matters by a majority of the commission should take place in secret. As a legislative body, the Carrboro Bottd of Aldermen is subject to, and willmsly agree to, broad open meetings requirements to the long-range benefit of good govermnant. We believe the NRC should be held to a similar standard, k 'Ihank you very much for your attention to this matter. We appreciate any assistance you may be able to give in maintaining an open deliberation and decision process at the Nuclear Regulatory Commission. We would apptwate hearing of any action or krJ.,, r.s on this matter Sincerely, N\ l meaneison Mayor l

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

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. ummesmo AnumasonsWF June 14,1999 8e M 640 V Secretary,.U.S. Nuclear 6 Regulatory Commission Washington, D.C. 20555-0001- DOCKET NUMBER RH Attention: Rulemakings and Adjudications Staff PROPOSED RUI.ETR 9 m hfRD4934)

Re: 'NRC's Proposed Amendment to Its Government in the Sunshine Act Regulations

Dear Sir or Madame:

Please find the enclosed comments on behalf of the Natural Resources Defense Council ("NRDC") Inc., concerning the Nuclear Regulatory Commission's proposed amendment to its Government in the Sunshine Act regulations. I apologize for submitting these comments after the close of the comment period. However, I spoke with

.a staff person in NRC's Office of General Counsel who stated that it was NRC's policy to consider all comments to the extent practicable. I trust that you will have the opportunity to review NRDC's comments given that the comment period closed less than a week ago. .

Thank you for your consideration of these comments. If you have any questions,' ,

please feel free to call me. -

. Sincerely, .

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. David E. Adelman Project Attorney, Nuclear Program 4

JUR 22 Illi kM _ _me 1200NewWrk Aw.,N.W. 71 Stevenson Street , 6310 San Vicente Ibulevard 40 West 20th Street Suite 400 Suite 1825 ,

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, CoUFCIL COMMENTS OF TifE NUCLEAR REGULATORY COMMISSION'S AMENDMENT TO ITS GOVERNMENT IN THE SUNSHINE ACT REGULATIONS June 14,1999 .

On behalf of the Natural Resources Defense Council ("NRDC") Inc., I submit the following comments on the Nuclear Regulatory Commission's proposed amendment redefining the term " meeting" for purposes of the Government in the Sunshine Act, published at 64 Fed. Iteg. 24936 (May 10,1999).

( Currently, the Sunshine Act regulations of the Nuclear Regulatory Commission

("NRC") define " meeting" as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint con' duct or disposition of official I

business." 10 C.F.R. { 9.101. This definition is consistent with the language of the Sunshine Act. The proposed amendment would, however, substantially qualify this definition to include only meetings "where discussions are sufficiently focused on .

fk discrete proposals or issues'as to cause or to be likely to cause the individual participating l

members to form reasonably firm positions regarding matters pending or likely to arise

. before the agency." Under this definition, other meetings or " gatherings" would not be .

subject to the public notice, attendance, or recording requirements of the Sunshine Act.

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NRDC urges the Commission to reconsider 6: proposed amendment to its Sunshine Act regulations,just as it did when the amendment was first considered in May .

1985. The same issues exist today that resulted in the rejection of the. original 4

amendment: First, the proposed amendment is inconsistent with the Government in the 1200NewYork Ave N.%. ,15:cwnson Street 63105an Vicente Boulevard 40 West 20th Start Suite 400 Suite 1825 Suite 250 New York;NY 10011 WashinFton.DC 20005 San Francisco,CA 94105 ins Angeles.CA 90048 . 212 727-2700 202 289-6868 ' 415 777-0220 ,

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Sunshine Act's underlying policy of openness. Second, the criteria established by the rule are too vague and undefined to provide a workable means for Conimissioners to b

Judge when a " meeting" shculd not be subject to the Sunshine Act's requirements. Third, because the Commission does not plan to make records of meetings it determines are not

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subject to the Sunshine Act, meaningfuljudicial review of the Commission's decision to l

hold closed meetings will be precluded. Fourth, the Commission has provided no .

- rational for severely limiting public access to its meetings. ',

I. .NRC's Prooosed Amendment Violates The Sunshine Act.

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. The Sunshine Act is predicated on the principle that "the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal A

, Government." Section 2. Congress' intent was to " increase the public's faith in the .

integrity of government, enable the public to better understand the decisions reached by the government, and better acquaint the public with the process by which agency

decisions are reached." Senate Report at' l. Congress also sought "to ensure that those in

.g overnment do not forget that they are above all accountable to the' people of this nation."

Philadelp_hla Newspapers, Inc. v. Nuclear Regulatory Commission, 727 F.2d 1195,1203 (D.C. Cir.1984).

To this end, the Sunshine Act sets forth comprehensive notice and recording

. requirements for agencies to follow, and limits the bases upon which meetings may be .

1 closed. 5 U.S.C. Q 552b(d). The definition of" meetings" that am subject to the Sunshine -

Act is therefore defined broadly to provide the public with the ' "ful' est l practical" access to government deliberations. Congress did not intend that the public have access only to

. meeting at .which agency officials' actu'a lly adopt final decisions, i.e., "merely reruns .

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t stated for the public after agency members have discussed the, issue in private and . l predetermined their views." Senate Report at 18. Rather, Congress mandated that the "whole decisionmaking process, not merely the results, must be e' xposed to public scrutiny." Id. Accordingly, the open meeting requirement of the Act includes "not just the formal decisionmaking or voting, but g11 discussion relating to the business of'the

- agenc'y." House Report at 8.

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. NRC's proposed definition of " meeting" is antithetical to the letter and intent of- l the Sunshine Act. Under the proposed amendment, NRC'has identified a host of. '

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deliberative meetings that will no longer be subject to any of the Sunshine Act's requirements, including, at minimum, discussion of problems likely to face the agency in the coming year; discussion of the effectiveness of a particular ofTice in meeting the !

Commission's needs; and discussion of the state of relations between the Commission and its oversight committees, or with other government agencies. All of these topics are of critical concem to the public and therefore should be subject to the Sunshine Act.

~ NRC improperly relies on the Supreme Court's decision in FCC v.177 World- .

Communications,466 U.S. 463 (1984). The ITT decision involved unique circumstances that are completely inapplicable to NRC meetings. The Supreme Court held that FCC members attending meetings in Europe, with their European and Canadian counterparts, was not authorized to take official action for the FCC, anci ruled further that the meetings were not " meetings of an agency" subject to the Sunshine Act.' Meetings. regularly i I

. I conducted by the NRC do not raise any of these issues, and the ITT holding _therefore j does no't support the NRC's proposed rule.

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11. - NRC's Proposed Amendment Establishes An Unworkably Vague Standard.

The proposed amendment provides no guidance, other than those specifically listed, as to the types of meetings that may be excluded from compliance with the

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Sunshine Act. Because the proposed language is extraordinarily vague lit can be easily manipulated by the agency to avoid public discussion of all matters that are controversial or embarrassing. Further, even if the agency is acting in good faith, preliminary -

discussions will naturally and rapidly lead to formulation ofpositions by Commissioners

' on particular issues of public impon. Indeed, past Commission meetings demonstrate k that individual Commissioners can and do adopt firm positions during even the earliest stages of" background discussions."

This problem was acknowledged in 1985 by. Commissioner Asseltine, who commented that predicting whether a panicular proceeding will not be subject to the Sunshine Act "will require nothing short of divination." 50 Fed Reg. 20892. 'The -

American Bar Association Taskforce also recognized the problem:

[T]he status of" preliminary" or " exploratory" discussions of a problem (t ,

within an 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, the difficulties of application are intimidating. ' Yet inasmuch as whether a particular discussion is exploratory or decision-oriented depends on the total, factual context, it is likely to be more difficult to resolve a hypothetical situation than a real'one. In other words one may say of a meeting, as Justice Stewan said of obscenity,"I know it when I see it."

Recommendations and Repon to the House of Delegates, at 16-17, ABA Taskforce on Government in the Sunshirie. Accordingly, the notion that Commissioners will be capable of recognizing the precise point at which Commissioners are staning to formulate ,

firm positions on an issue, and will immediately halt gatherings at that point, strains 4

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. credulity. The proposed rule will inexorably lead to precisely the type ofclosed-door decisionmaking that Congress sought to prevent through passage of the Sunshine Act.

III. NRC's Prooosed Amendment Precludes Meanineful Judicial Review.

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NRC will not maintain recb ds of closed, non-Sunshine Act rnectings. Instead, it has only committed to maintaining the most general information on closed meetings, and 4

l then only for the first six months following implementation of the rule. The absence of details about such gatherings denics the public any means'by which it could challenge the NRC's convening of a " gathering" to discuss a particular issue. Further, without notice it is unlikely that a reporter or a' member of the public will leam of the, gathering. And without a record of the gathering, court review of NRC's compliance with the Sunshine Act will be seriously compromised.

The ABA Taskforce also~ appreciated this problem and recommended that procedural safeguards be required for meetings that are not covered by the new definition of meeting proposed in the amendm'ent. The ABA Taskforce was particularly concemed about (1) brief'mgs of agency members by staff or outsiders; (2) general discussioris of

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subjects relevant to the Commission's responsibilities but that do not present specific problents for agency resolution; and (3) exploratory discussions. For such gatherings, the ABA Taskforce recommended that minutes or recordings of such meetings be maintained -

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by the Commission to assure that public of compliance with the Sunshine Act. In failing to meet even these minimal requirements, the NRC's proposed rule clearl'y violates the

. basic elements 6f the Government in the Sunshine Act and circumvents meaningful ;

judicial review IfNRC chooses to finalize this rule it will be essential that it maintain

' proper records of these gatherings.

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L IV. Public Policy Favors The Existinn Definition of Meetine.

The Commission's arguments for limiting the public's access to its meetings are without merit. While the Commission claims that the rule will promote " collegiality" in l . the agency, it conspicuously fails to point to any lack of collegiality or, more importantly, to any adverse effects on agency decisionmaking caused by having open meetings..

Indeed, it is impossible to imagine how general background briefings - a central focus of-the proposed amendment - could be hindered if open to the public. This suggests'that either there is no policy supporting the rule or that it is intended to apply to far more I controversial subjects than the Commission has acknowledged. In either case, the rule should be abandoned.

While the Commission has failed to identify any sound bases for adopting the proposed' amendment, there are many compelling reasons to retain the current definition of meeting under the Act. As the regulator of the nuclear industry, NRC oversees perhaps the most technically complex industrial sector in the United States, and one that .

continues to receive close public attention. Because of the unique risks associated with nuclear power and the degree of public concem, NRC's decisionmaking process should remain open to the public to the maximum extent feasible. The proposed mie represents a significant step away from this principle and from the mandate of the Sunshine Act, which is further heightened by the long-standing public concern about NRC's openness to public scrutiny. NRC should therefore retain the existing definition of" meeting" under the~ Sunshine Act.

Should NRC decide to implement the proposed amendment, it must, at the very least, adopt procedural measures to ensure that the public can monitor how the 6

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Commission is applying the new rule. As stated above, it is essential that proper records

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are made of all non-Sunshine Act gatherings. In addition, NRC should provide advance notice in the Federal Register of all such gatherings. The notice should include a description of the matters to be discussed end a detailed explanation for the

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- Commission's finding that the meeting is not subject to the Sunshine Act. Such a 1

procedure is analogous to that employed when the government is seeking exemption from the req'u irements of the Freedom ofInformation Act. This advance notice will ensure that the public is informed of the Commission's activities and how it is applying its new

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f definition ofmeeting, but will involve only a nominal cost to the Commission..

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David E. Adelman . - I Project Attorney, Nuclear Program .

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POLICY ISSUE June 29. 1994 S E CY- % ~. r t FOR: The Comm:ssion FROM Karen D. Cyr Genera! Ccunse!

SUBJECT:

COMMENTS ON NRC'S SUNSHINE ACT NOTICE PURPOSE:

To provide tne Comm:ssion v.ath an analys:s of the comments rece:ved on the NRC's Ma,10 1999 Federal Reg:ste notice regaro.ng the agency's Sunshine Act practices.

DISCUSSION:

The oppo tunity for pubhc comment on the NRC's Sunshine Act notice resulted in only nine comments. all but one of wh:cn expressed a;sapproval of the NRC's action (The lone exception was the NJclear Energy Institute. V.hlCn said that it endorsed the NRC's action fc' tre reasons stated in tre Federai Register notice ) The negative comtnents were for the most paq along the knes that V c had expected. and had therefore tried to anticipate in tne May 10 Federal Register notice. The Comments were both on legal and policy grounds. The pnmaruy legal arguments included the following: (a) the legislative history of the Sunshine Act makes clear Congress's intent that there should be openness to the maximum extent practicable. (b) the Commission's action is thus antithetical to the letter and spirit of the Act; (c) the Supreme Court's decision in FCC v. /TT Wonc Communications. 466 U.S. 463 (1984), involved unque circumstances and is not relevant to the issue before the NRC; (d) the Commission disregaroed such court decisions as that of the U S. Court of Appeals for the D.C. Circuit in Philace/phia Newspapers v. NRC. 727 F.2d 1195 (1984); (e) the criteria adopted by the Commission are too vague to be workable, inasmuch as they require the Commission to predict the course that discussions will take; and (f) the Commission's action, by providing for minimal recordkeep:ng possibly to be discontinued af ter six months, will preclude meaningful judicial review.

Policy arguments included these. (a) even if the rule can be justified legally, it represents a retreat from openness and will diminish public confidence in the Commission: (b) the NRC nas f ailed to show that collegiahty has been impaired oy the Sunshine Act; (c) the examples of

Contact:

Peter Crane, OGC 301 415-1622 QO[M@bg-d4

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%.....J POLICY ISSUE June 29, 1999 SECY-99-lM FOR: The Comm:ssion FROM. Karen D. Cyr General Counsel

SUBJECT:

COMMENTS ON NRC'S SUNSHINE ACT NOTICE PURPOSE:

To provide the Commission with an analysts of the comments received on the NRC's May 10.

1999, Federal Register notice regarding the agency's Sunshine Act practices.

DISCUSSION:

The opportunity for pubbc comment on the NRC s Sunshine Act notice resulted in only nine comments, all but one of which expressed disapproval of the NRC's action. (The lone exception was the Nuclear Energy Institute, whlCh said that it endorsed the NRC's action for the reasons stated in tne Federal Register notice.) The negative comments were for the most paq along the lines that we had expected, and had therefore tried to anticipate in the May 10 Federal Register notice. The comments were both on legal and policy grounds. The primanly legal arguments included the following: (a) the legislative history of the Sunshine Act makes clear Congress's intent that there should be openness to the maximum extent practicable; (b) the Commission's action is thus antithetical to the letter and spirit of the Act; (c) the Supreme Court's decision in FCC v. /T7 Wor /a Communications,466 U.S. 463 (1984), involved unique circumstances and is r,at relevant to the issue before the NRC; (d) the Commission disregarded such court decisions as that of the U.S. Coun of Appeals for the D.C. Circuit in Philadelphia Newspapers v. NRC,727 F.2d 1195 (1984); (e) the criteria adopted by the Commission are too vague to be workable, inasmuch as they require the Commission to predict the course that discussions will take; and (f) the Commission's action, by providing for minimal recordkeeping. ,.

possibly to be discontinued after six months, will preclude meaningful judicial review.

Policy arguments included these: (a) even if the rule can be justified legally, it represents a retreat from openness and will diminish public confidence in the Commission; (b) the NRC has failed to show that collegiality has been impaired by the Sunshine Act; (c) the examples of

Contact:

Peter Crane OGC 301 415-1622

2-topics that the Corr. mission has cited as examples of possible non Sunshine Act discussions are too trivial to warrant changing a rule that has served well for 20 years; (d) the Commission failed to follow the recommendations of the American Bar Association with respect to recordkeeping; (e) no harm could come to the Commission's processes if general background briefings were held in open session; (f) the NRC's role as regulator of a technically complex industry calls for maximum openness; and (g) nothing in the rule prevents the Commission from holding off-the-record discussions with representatives of the regulated industry.

Of the critical comments received, the rnost detailed came from Representative Edward J.

Markey, the Natural Resources Defense Council, and Public Citizen. So many of the legal and policy arguments were raised in the letter from Rep. Markey, and addressed in OGC's proposed reply to him, that we have appended the incoming letter, as Attachment A and the proposed response, as Attachment B.

As the proposed reply to Rep. Markey indicates, the legal arguments against the Commission's rule can be disposed of in fairly short order. The central point in everything that the Commission has said on the subject of the Sunshine Act since 1984 is that its purpose has been to bring itself into conformity with a unanimous Supreme Court decision that interpreted the Act and that went out of its way to provide clear guidance as to the meaning of the statutory term " meeting."(The NRC's original Sunshine Act regulations had been based in part on Justice Department guidance that proved to be erroneous.) There could be no stronger legal underpinning for a Commission action. Much of the quarrel of the critics seems to be less with what the Commission has done, but with the statute itself, as passed by the Congress and interpreted by the Supreme Court.'

The argument that the NRC should ignore the Supreme Court interpretation of " meeting,"in favor of the expansive interpretation applied by the D.C. Circuit in cases decided before the Supreme Court ruled,is legally untenable. There is no way to rationalize the Supreme Court's decision out of existence; the efforts to do so (e.g., by arguing that the decision should be limited to its facts, or that because it was not necessary for the Court to go into such detail l about the definition of " meeting," that portion of the opinion can be ignored) were thoroughly and firmly squelched by the American Bar Association in its report. The bottom line is that the NRC does not have the liberty to disregard Supreme Court decisions.

What the Supreme Court explained in detail is that the definition of " meeting" was an issue to which Congress paid extremely close attention, with changes introduced late in the legislative l

process. The bill in its final form therefore differed significantly from what some of its supporters (including its chief sponsor, the late Senator Lawton Chiles) desired. As a result, Committee reports describing earlier, more expansive versions of the legislation are of slight significance compared to the Supreme Court's parsing of the statute that Congress actually ;

i passed. Most of the commenters are in effect asking the NRC to join in rewriting history so that the narrowing of the scope of " meetings"-- proposed by Representative Pete McCloskey, j

'For instance, Public Citizen writes in its comments: "The Commission claims that 'The !

i Act's procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit.'" The sentence attributed l to the Commission is in fact a quotation from the Supreme Court's opinion. FCC v. ITT World ;

J Communications,466 U.S. 463,469-70. !

I I

3-enacted over the opposition of Senator Chiles and others, and elucidated by the Supreme Court

--is made to disappear from the record. This the NRC cannot do.

Contrary to the views of some of the commenters, the Sunshine Act did not decree openness to the maximum extent practicable. Instead, it struck a balance between the public's right to know and the agencies' need to function efficiently in order to get the public's business done. To the concern that the standards for determining what is a non Sunshine Act discussion are too vague, we can only reply that the Supreme Court thought otherwise, for the standard came directly from the Court's opinion. Nor is it correct to say that the standard requires "divina! ion" of what will happen in a discussion; what the rule contemplates is that if a discussion begins to evolve from the preliminary exchange of views that the Commission contemplated into !

something so particularized that it may " effectively predetermine" agency action if it continues, the Commission will cease the discussion.2 ,

On the issues of policy, we agree that an argument can be made that because of the special sensitivity and public interest in issues of nuclear safety, the NRC should continue to apply the law more stringently than is required. But that argument cuts both ways. It could equally well be argued that the special sensitivity and public interest in issues of nuclear safety make efficiency and collegiality particularly important, in order to maximize the quality of Commission decisionmaking, and that the Congressional balance between openness and efficiency should therefore be adhered to strictly.

On the question of whether the NRC's action will diminish public confidence in the Commission, this possibility cannot be ruled out, although to date, the adverse reaction has been comparatively mild. The Commission was of course aware, at the time it issued the May 10 notice, that negative public reaction was a possible consequence. It is also possible that the i potential enhancement of collegiality and the potentialimprovement in Commission decision-making that could result from non-Sunshine Act discussions will ultimately increase the public's confidence in the Commission's actions. At this point, the Commission needs to consider I 1

whether the potential negative impact on public perception is so serious as to outweigh the expected benefits in collegiality and efficiency. This is the Commission's call to make; for its part, OGC does not see reason to change course on this account. l It is true that the Commission did not follow the American Bar Association's recommendations l with respect to record-keeping. However, those recommendations were prudential, not based ;

on legal requirements. The ABA recognized that as a legal matter, if a discussion is not a

" meeting " no procedural requirements apply at all. The Commission's May 10 notice reflected a judgment that Congress would not have given agencies latitude to hold this type of discussion free of elaborate and burdensome procedures if it had not viewed such procedures as undesirable.

2 Every Commissioner who meets one-on-one with agency stakeholders has to be prepared to cut off discussions that threaten to stray into impermissible areas, such as those covered by the Commission's ex parte regulations. There seems no reason why Commissioners could not equally well halt discussions among themselves that seem likely to cross the line separating non-Sunshine Act discussions from " meetings."

4 On the question of whether any harm could rasult from holding briefings in public session, arguments can go either way. At the time that the Commission first put its Sunshine Act rules into place, it acknowledged that briefings might be exempt from the Sunshine Act's scope, but said that the Commission did so much of its important work in briefings that as a policy matter, it believed these should be open to the public. This argument could still be made today. On the other hand, the counter argument can be made that two decades of implementing the Sunshine Act, with its procedural burdens and its tendency to inhibit the free flow of discussion, have )

persuaded the Commission that Congress's original judgment was well founded, and that the !

Act should not be applied beyond the bounds set by Congress. In addition, as noted in the proposed reply to Representative Markey, there is one court decision holding that an agency exceeded its legal authority when it adopted a definition of " meeting" broader than what Congress had legislated. WATCH v. FCC,665 F.2d 1664 (D.C. Cir.1981).

Finally, there is one point, noted by Representative Markey in his letter, on which the Commission's Federal Register notice was not clear: whether there is anything in the rule to prevent the Commission from meeting in non Sunshine Act discussions with a representative of the Nuclear Energy Institute. We believe that the proper response is that the Commission's contemplation throughout has been that non Sunshine Act discussions generally would be limited to NRC or other federal agency personnel, with limited exceptions, such as the representative of a foreign regulatory body or a state regulator, who would not be regulated entities or who could not be considered interested parties to Commission adjudicatory or rulemaking proceedings.

CONCLUSION:

OGC believes, based on its review of the comments received on the May 10 Federal Register notice, that none of them indicates a need to rev:Se the approach taken by the Commission.

The Commission may pioceed to implement its Sunshine Act rules as it proposed in the May 10 Notice. If the Commission wishes to formally respond to the comments beyond what will be done in response to Congressman Markey's letter, we could prepare an apptopriate document quickly.

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Karen D. Cyr General Counsel Attachments:

1. Letter from Representative Edward J. Markey, June 1,1999

2. OGC's proposed reply to Representative Markey DISTRIBUTION:

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Shirley Ann Jackson

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Dear Ms. Jackson:

Public trust in the Nuclear Regulatory Commission's (NRC's) oversight of nuclear facilities depends on the fairness and openness of the process. For this reason I am disturbed that the Commission recendy voted (without your participation) to revive a 1985 proposed rule change that would allow secret Commission meetings. In 1985 the proposed rule was dropped in the face of strong public and Congressional opposition.

The 1976 Government in the Sunnhine Act required most meetings of government agencies like the NRC to be open to the public. Since that time the Commission's policy has been to open all meetings of a madority of Commission members at which official business is discussed with several exceptions based on speciSc content. Nonetheless, in 1984 in the Philadelphia Newspqpen, Inc. v. NRC case, it was found that meetings on reopening the Three Mile Island l

nuclear plant were improperly closed. The appeals court decision stated:

A decade ago revelations of secret abuse of ofHeial power shocked this Nation and scared in our minds a lesson vital to the health of a democratic polity:

- Government should conduct the public's business in public. In the Sunshine Act Congress moved to ensure that those in government do not forget that they are above all accountable to the' people of this Nation. ... Without a doubt, Congress intended that the Sunshine Act would guarantee public accountability on what is l one of the most sensitive and difficult issues of our time: The safety of nuclear l power.

NRC's response was to propose a nov rule in 1985, temporarily made effective without the benefit of any public comment, that limited application of the Sunshine Act to gatherings "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." In effect the rule said the Commission can best "do the public's business" out of the public eye. Faced with Congressional legislation that would ,

have repealed the new rule (which I cosponsored) and an outpouring of adverse public opinion, l NRC at the time never implemented the rule change. However, the Commission has no- l N

decided, without a public meeting, to implement the 1985 rule. u 6 ..

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2 Even if a legal case can be made that the new rule may be consistent with some judicial '

interpretations of the Sunshine Act, an increase in secret Commission moedngs seems likely to decrease public confidence in the NRC as an indq,eedent regulatory agency and could lead to further " secret abuse of official power." Senator Lawton Chiles, the author of the Sunshine Act, said in 1985, "As the public is so importantly affected by nuclear decisions, there should be a correspondmg ability of the public to view fully the decisionmaking processes of the agency.

The Sunshine Act gives that right to the public and we must be vigilant in protecting it." Despite more than twenty years of experience under the current rule, no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes.

The 1985 rule leaves much room for abuse due to the above vague and probabilistic definition of"M " subject to Suaahi=> rules. A February 24,1999 memorandum from Commission Secretary Annette L. Vietti-Cook to General Counsel Karen D. Cyr promises to provide " concrete examples" of"non-Sunshine Act discussions," but only in letters to Congress.

Any problems or abuse under the new rule may never be known. There is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions, and the May 10, i 1999 Federal Register Notice announcing the intent to implement the 1985 rule promises to

" maintain a record of the date and subject of, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend" only for the first six months of the revised rule. Thus there will be no way to know what meetings took place, and no way to find out in retrospect whether Commission members formed reasonably firm opinions regarding any matters that later arose before the agency.

To shed some sunlight on this " Sunset Rule," I resocctfully request your assistance in answering the following questions and information requests:

1. In a May 21,1985 hearing before the House Subcommittee on Energy Conservation and Power it was testified that more than one third of Commission meetings were closed under exemptions to the S=hia* Act. For each of the last five years, what percentage of meetings of a majority of the Comnussion were not open to the public? How many meetings were closed under each exception?

2. The recent Commission vote on implementing the rule was based on a November 27, 1998 memorandum fonn the General Counsel to the Commission. NRC staffinformed my staff that this memo itselfis secret at the request of the General Counsel. Please provide us with copies of this memo (including all attachments) as well as copies of any written request by the General Counsel for not making it public. If any of this material is not public, please justify why a justification of secrecy itself needs to be secret, and please explain how Congress and the public can evaluate the Commission's decision l without knowing the basis and justification for its actions. l

3. The May 10,1999 Federal Register Notice states that "the Commission is not proposing to close any meetings currently held as open public meetings." However, the 1985 rule seems to redefine some gathenngs as not being " meetings." Furthermore, the December 15,1998 memorandum from Commissioners Edward McGaffisan, Jr. and Jeffrey S.

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Merrifield to John C. Hoyle, which the Commission's vote approved, states an intent to explain "what kinds of gatherings now held by the Commission will no longer be treated as ' meetings' under the new rules." What is the basis for the Federal Register statement about current public meetings? What Commission meetings over the past three years could have been excluded from the 1985 mie's definition of a " meeting"?

4. The memo on which the Commission voted stated 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 Commission." h May 10 Federal Register Notice applies this only to scheduled discussions and only for the first six months. N NRC press release No.

99 39 delete: " scheduled," but does include the six month limit. Please state clearly what ;

records will be maintained of non-Sunnhine Act discussions, andjustify any difference {

1 from the Commission's votes. If the record keeping will indeed be evaluated after six months, on what basis will "the usefulness of the record keeping practice" be decided?

5. The memo on which the Commission voted cites as a reason for the timelincu of the rule change that "the main Congressional opponent of the 1985 interim rule is no longer in Congren." Does the memo's apparent reference to the d pw e of our former colleague, Representative Dennis Eckart, suggest that the decision to revive this long dormant proposed rule was essentially political in natum and not based upon a compelling evidentiary record indicating the need for such a change in NRC procedures? What other NRC rule changes since 1985 have been based in whole or in part on the then current membership of Congress?

6. Under the 1985 rule could the full Commission invite representauves of a licensee or of the Nuclear Energy Institute (NEI) for a general discussion about how easing government regulations could usist the nuclear power industry, and do so without public notice, without public participation, without transcript, tape, or minutes, and, if the meeting were next year, without any record that the meeting ever took place? If not, please explain what provision of the revised rule would prevent such a meeting. If unplanned discussion of specific proposals for changing NRC regulations took place at such a meeting, would it then violate the 1985 rule? Ifimproper negotiations about NRC regulations took place at l

such a meeting, how could the public ever find out?

l

7. On a related openness issue: a May 3,1999 letter from Alex Marion of the NEI to Ledyard B. Marsh of the NRC, recently released by Public Citizen, thanks the NRC for giving NEI the opportunity to comment on a draft NRC policy document, which has not been publicly released. Is it NRC policy to allow industry wpwestatives to help draft NRC documents that are not available for public comment? How many draft SECY papers or other draft NRC policy documents that were not publicly available were given to industry representatives in the last five years (other than documents that were secret for security reasons)?

9 4

Thank you for your assistance. If you have questions conceming this letter please feel free to contact Mr. Lowell Ungar or Mr. Jeffrey Duncan on the staff of Congressman Markey at (202)225 2836.

- Sincerely, f_A_ x. - _A_ _ _&k%. g

$y Edward J. Marke Member of Congress l

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Representative Edward J. Markey United States House of Representatives Washington, D.C. 20515-2107

Dear Congressman Markey:

Thank you for your letter of June 1,1999, commenting on the Commission's recent decision to implement its 1985 change in its rules regarding the Government in the Sunshine Act. We have l placed your letter in the docket, and will consider it along with other comments from the public, in addition to providing you with this response. Given that the Commission has allowed a period for public comment, the views expressed in this letter do not necessarily represent the Commission's final word on the issues involved. Nevertheless, we do not wish to delay replying to you on that account.

Before proceeding to the specific questions you asked, we wish to address the first portion of your letter, in which you stated your view of the law and the facts relating to the NRC's application of the Sunshine Act. As will be apparent, your perceptions and ours differ significantly.

First of all, you quote at length from the decision of the U.S. Court of Appeals for the District of Colur 'aia Circu:t in Philadelphia Newspapers v. NRC,727 F.2d 1195 (1984), i : which the court declared that " Government should conduct the public's business in public," and opined that Congress undoubtedly intended that the Government in the Sunshine Act "would guarantee

- public accountability" on the safety of nuclear power.

Undeniably, that decision represented an expansive view of the Sunshine Act on the part of that ,

panel of the D.C. Circuit. Cnly a few months later, however, the Supreme Court provided ]

sharply different guidance in the first (and to date only) Government in the Sunshine Act case to !

reach the Court: FCC v. ITT World Communications,466 U.S. 463 (1984).

ITT World Communications resembled Philadelphia Newspapers in that it also involved an expansive interpretation of the Sunshine Act by the D.C. Circuit. Resoundingly,in a unanimous i I

decision, the Supreme Court ovedurned the D.C. Circuit's ruling, and it used the opportunity to give guidance on the proper interVetation of the' Sunshine Act. It said, among other things:

Congress in drafting the Act s definition of " meeting" recognized ;

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

ATTACHMENT 2 l

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1 2-Section 552b(a)(2) therefore limits the Act's application..

Id. at 469-70.

Your letter does not directly mention the Supreme Court's interpretation of the Sunshine Act, but instead refers obliquely to the possibility that the NRC's rule "may be consistent with some judicialinterpretations of the Sunshine Act." This comment fails to give adequate recognition to the ironclad legal basis for the Commission's action. The reality is that the Commission's rulemaking has been grounded from the start in the Supreme Court's definitive guidance.' The rule itself includes a definition of " meeting" taken verbatim from the Court's opinion. The American Bar Association confirmed that the NRC's approach was consistent with Congressionalintent and the Supreme Court's interpretation.

Your let%r could be read to imply that the NRC should follow the approach of the Court of Appeak, and disregard the contrary guidance of the Supreme Court. Even if we believed as a matter r4 policy that such a course was desirable, the NRC is not at liberty to ignore Supreme Court decisions interpreting the statutes that govern its operations. 2 As for the assertion that the NRC has failed to offer examples of the types of "non-Sunshine Act discussions" that it contemplates holding, we refer you to the section of the NRC's May 10,1999 Federal Register notice on page 24942 that begins, "Some specific examples of the kinds of topics that might be the subject of non-Sunshine Act discussions would include,. " Nor is this the first time that the NRC has offered such examples. It has done so repeatedly, beginning in

'Though your letter describes the NRC's 1985 rule as "NRC's response" to the Philadelphia Newspapers case, it was in reality the agency's response to the ITT case.

2 It is worth noting that on the precise legal point in dispute here - the definition of a

" meeting" under the Sunshine Act - one D.C. Circuit decision held that an agency is legally prohibited from interpreting the law more restrictively than Congress provided. In WATCH v.

FCC,665 F.2d 1264 (D.C. Cir.1981), the court sharply chastised an agency which had adopted a definition of " meeting" that included types of discussions that Congress had not included within the statutory scope. The court declared that the agency was " supposed to track" the statutory definition when it defined a " meeting" in its regulations. Because it had fciled to do so, and instead included types of discussions not intended by Congress to fall within the statutory scope, the agency had written an "impermissibly broad" definition which could not legally be sustained.

The court said:

Indeed, we are unable to discern any reason for the breadth of the agency's definition of " meeting" -- apart from shoddy draftsmanship, perhaps. While we recognize that an agency generally is free to shoulder burdens more onerous than those specifically imposed by statute, the regulation at issue here is in excess of the Commission's rulemaking discretion under 47 U.S.C. @ 154(1)

(1976). Consequently, we set it aside to the extent that its definition of " meeting" is more inclusive than the one contained in the Sunshine Act.

665 F.2d 1264,1272.

l 1985. Indeed, the American Bar Association task force that studied the Sunshine Act quoted, with approval and at considerable length, the examples of possible non-Sunshine Act discussions included in a memorandum to the Commission from the then NRC General Counsel.

The February 24,1999, memorandum from NRC Secretary Annette Vietti-Cook to the General Counsel was not, as your letter characterizes it, a promise to provide examples of non-Sunshine Act discussions to the General Counsel; rather, it was a directive that letters to Congress drafted by the General Counsel.should include examples of such discussions. The implication that the Commission voted to authorize non-Sunshine Act discussions without knowing what sort of discussions it had in mind is thus incorrect.

You make the further comment that "no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes." We disagree. As long ago as 1984, the Administrative Conference of the United States, in Recommendation 84-3, was commenting that the Sunshine Act had the unintended effect of diminishing collegiality at multi-member agencies and shifting power from the collegium to the Chairman and staff. Analyses by the NRC, the American Bar Association, and the Administrative Conference all provide l factual support for the proposition that there are problems associated with the Act. Again, this topic was covered in detail in the Commission's May 10 Federal Register notice.

Your observation that *[t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions" is entirely correct, for that is the way that Congress enacted the statute. (The May 10 Federal Register notice quoted the legal judgment of the ABA report that if a discussion "is not a ' meeting,' no announcement or procedures are required because the Act has no application.") As a matter of policy discretion, however, the NRC has decided to maintain a record of such discussions for the initial six-month perict of implementing the rule. This will assist the Commission in deterniining whether thereafter, record-keeping should be maintained, increased, or eliminated. No final decision has been made at this time.

Our responses to your specific questions are attached.

Sincerely, Shirley A. Jackson l Chairman l

(

QUESTION 1. In a May 21,1985 hearing before the House Subcommittee on Energy Conservation and Power it was testified that more than one-thiro of Commission i meetings were closed under exemptions to the Sunshine Act. For each of the last five years, what percentage of meetings of a majority of the Commission were not open to the public? How many meetings were closed under each exception?

ANSWER The answer to this question depends in part on the method of tabulation used, since a single Commission meeting may include several agenda items, some of which are held in open session, while others are closed under one or more Sunshine Act exemptions. The clearest indication, therefore, of how frequently the NRC closes its discussions under the Sunshine Act is to tabulate each agenda item as a separate meeting. The data for the last five years follow. It will be noted that, in the interest of openness, the NRC continued to follow Sunshine Act procedures even at those times when vacancies had reduced the Commission's membership to two.

A. 1994: 92 meetings,72 open (78%),20 closed (22%). Of the 20 closed sessions, Exemption 1 was invoked three times; Exemption 9 twice; Exemptions 1 and 3 once; Exemptions 2 and 6 six times; Exemptions 2 and 9 once; Exemptions 5 and 7 four times; and Exemptions 2,6, and 9 three times.

B. 1995: 52 meetings,44 open (85%),8 closed (15%). Of the 8 closed sessions, Exemption 1 was invoked four times; Exemptions 2 and 6 twice; Exemptions 5 and 7 once, and Exemptions 2,6, and 9(b) once.

C.1996: 70 meetings,59 open (84%),11 closed (16%). Of the 11 closed sessions, Exemption 1 was invoked 6 times; Exemption 2 three times; Exemptions 2 and 6 once, and Exemption 9 once.

D.1997: 83 meetings,69 open (83%),14 closed (17%). Of the 14 closed sessions, Exemption 1 was invoked seven times; Exemption 2 twice; Exemptions 5 and 7 faur times; and l Exemption 9 once. ;

i E.1998: 62 meetings,49 open (79%),13 closed (21%). Of the 13 closed sessions, j Exemption 1 was invoked 6 times; Exemption 2 was invoked twice; Exemptions 5 and 7 four times; and Exemption 9 once.

F.1999 (January 1 through May 31): 49 meetings,37 open (76%),12 closed (24%). u' the 12 closed sessions, Exemption 1 was invoked thre6 times; Exemptions 1,4, and 9(b) once; Exemptions 2,5, and 7 twice; Exemptions 2 and 6 once; Exemptions 5 and 7 twice; and Exemption 9(b) three times.

In addition, the NRC's annual Sunshine Act reports to the Congress for 1994 through 1998 are attached.

QUESTION 2.The recent Cornmission vote on implementing the rule was based on a Novemiser 27,1998 memorandum from the General Counsel to the Commission.

NRC staffinformed my staff that this memo itself is secret at the request of the General Counsel. Please provide us with copies of this memo (including all attachments) as well as copies of any written request by the General Counsel for not making it public, If any of this materialis not public, please justify why a justification of secrecy itself needs to be secret, and please explain how Congress and the public can evaluate the Commission's decision without knowing the basis and justification for its actions.

ANSWER The General Counsel's memorandum to which you refer was never requested to be withheld. A copy is attached.

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QUESTION 3. The May 10,1999 Federal Register Notice states that "the Commission is not proposing to close any meetings currently held as open public meetings."

However, the 1985 rule seems to redefine some gatherings as not being

" meetings." Furthermore, the December 15,1998 memorandum from Commissioners Edward McGaffigan, Jr, and Jeffrey S. Merrifield to John C.

Hoyle, which the Commission's vote approved, states an intent to explain "what kinds of gatherings now held by the Commission will no longer be treated as

' meetings' under the new rules." What is the basis for the Federal Register statement about current public meetings? What Commission meetings over the past three years could have been excluded from the 1985 rule's definition of a

" meeting"? ,

ANSWER Although it was the December 15,1998 memorandum from Commissioners McGaffigan and Merrifield that initiated the Ccmmission's action, the documents that reflect the Commission's actual decision are the Staff Requirements Memorandum (SRM) and the Federal Register Notice based on that SRM. As is sometimes the case, the final Commission action differed in this instance from the proposal that set the action in motion. As the Federal Register notice made clear, the objective is not to turn discussions now held as " meetings" into non-Sunshine Act discussions, but rather to enable the Commission to hold, as non-Sunshine Act discussions, the kind of informal, preliminary, and " big picture" discussions that currently are not held at all.

We are unaware of any " meetings" during the past three years that would qualify as non-Sunshine Act discussions under the 1985 rule.

To make clear, the 1985 rule did indeed reclassify, as non meetings", types of discussions --

e.g., informal, preliminary discussions by three or more Commissioners -- that would previously have been considered " meetings under the Commission's restrictive and erroneous interpretation of " meeting" prior to the Supreme Court's decision inj,U " It did so, however, to l

make it possible for the Commission to begin holding such discussions, not because such discussions were already occurring as Sunshine Act meetings.

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i QUESTION 4. The memo on which the Commission voted stated 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 Commission." The May 10 Federal Register Notice applies this only to scheduled discussions and for the first six months. The NRC press release No. 99-39 deletes " scheduled," but does include the six month limit. Please state clearly what records will be maintained of non-Sunshine Act discussions, and justify any difference from the Commission's votes. If the record-keeping willindeed by evaluated after six months, on what basis will"the usefulness of the record-keeping practice" be decided?

ANSWER The use of the word " scheduled" was intended to permit the occasional brief, spontaneous discussion -- e.g., three Commissioners riding the same elevator -- that does not rise to the level to justify memorialization.

With regard to your question as to the basis for the NRC's evaluation of record-keeping after six months, the Commission will consider the totality of the circumstances, including both its own perceptions and those of persons who follow the NRC's activities.

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QUESTION 5. The memo on which the Commission voted cites as a reason for the timeliness of the rule change that "the main Congressional opponent of the 1985 interim rule is no longer in Congress." Does the memo's apparent reference to the departure of our former colleague, Representative Dennis Eckart, suggest that the decision to revive this long dormant proposed rule was essentially political in nature and not based upon a compelling evidentiary record indicating the need for such a change in NRC procedures? What other NRC rule changes since 1985 have been based in whole or in part on the then current membership of Congress?

l ANSWER l The December 15,1998, memorandum from Commissioners McGaffigan and Merrifield did indeed include an incidental allusion to former Representative Eckart. That memorandum, read fairly and in its totality, makes clear that the two Commissioners' proposal was motivated by concerns of good government and legal correctness, not politics. At the same time, they offered their candid view that concern about the proposal might be less intense than it had been in 1985. There was nothing inappropriate about making such an observation.

The Commission's decision to take action with regard to the Sunshine Act was a reflection of its longstanding efforts to increase the collegiality of the Commission process, to ensure that its procedures and practices are in conformity with current law, and to reach closure on outstanding items in this case, implementation of a rule that had been on the books for more than 14 years.

We are aware of no NRC rule changes since 1985 that have been " based in whole or in part on the then current membership of Congress."

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QUESTION 6. Under the 1985 rule could the full Commission invite representatives of a licensee or of the Nuclear Energy Institute (NEI) for a general discussion about l how easing government regulations could assist the nuclear power industry, and l do so without public notice, without public participation, without transcript, tape, or minutes, and, if the meeting were next year, without any record that the meeting ever took place? If not, please explain what provision of the revised rule would prevent such a meeting. If unplanned discussion of specific proposals for '

changing NRC regulations took place at such a meeting, would it then violate the 1985 rule? If improper negotiations about NRC regulations took place at such a j meeting, how could the public ever find out?

ANSWER l

The point made in question 6 is well taken, in that the May 10,1999 notice is not clear as to whether discussions of the kind you posit --i.e., the full Commission meeting off the record with representatives of a licensee or the Nuclear Energy Institute -- could take place as non-Sunshine Act discussions.

~

The Commission's contemplation throughout has been that non-Sunshine Act discussions generally would be limited to NRC or other federal agency personnel, with limited exceptions for persons (e.g., representatives of the regulatory body of a foreign nation, or a state regulator) who would not be regulated entities or who could not be considered interested parties to Commission adjudicatory or rulemaking proceedings, in the case of the example you offer -- the Commission holding a non-Sunshine Act discussion with NEl-- it does not seem practicable to keep the discussion sufficiently removed from specific issues before the agency to make the non-Sunshine Act discussion format appropriate. The same would apply to a discussion with, for example, representatives of Public Citizen or NIRS.

i Discussions of such a kind should take place in an open forum, i.e., a " meeting."

l l

QUESTION 7. On a related openness issue: a May 3,1999 letter from Alex Marion of the NEl to Ledyard B. Marsh of the NRC, recently released by Public Citizen, thanks the NRC for giving NEl the opportunity to comment on a draft NRC policy document, which has not been publicly released. Is it NRC policy to allow industry representatives to help draft NRC documents that are not available for public comment? How many draft SECY papers or other draft NRC policy documents that were not publicly available were given to industry representatives in the last five years (other than documents that were secret for secunty reasons)? l ANSWER lt is not NRC policy to allow industry representatives to help draft NRC documents. We do, however, actively solicit feedback on our documents from the public. We are not aware of any draft SECY papers, which are NRC policy documents, that were given to industry representatives during the last five years that were not publicly available.

The letter that you cite makes specific reference to SECY-99-143, " Revisions to Generic l

Communications Program." The NRC held a public meeting on July 17,1998, to receive and ;

discuss stakeholder concerns in the Generic Communication, area. Following receipt of input from NEl after that meeting, the staff developed a draft of the SECY in question. This draft was initially discussed at a public meeting with the ACRS on April 7,1999.

In preparation for a subsequent public meeting on the generic communications process to be neld on April 22,1999, between the NRC and NEl, the staff forwarded a draft version of SECY-99-143 to NEl and also made the draft SECY paper available in the Public Document Room. The staff verified that the draft SECY document was in fact available in the Public Document Room on April 7,1999. At the April 22 meeting, the staff discussed the proposed improvements to the generic communications program, made copies of the draft SECY paper I available to all who attended, and solicited comments from those who attended.

While the document was being placed in the PDR at the same time that it was made available to NEl, we recognize that as a practical matter, few members of the public would have been aware of its existence until the April 22 meeting. To address that problem, we are adding new web pages to our website to ensure that the NRC gives public notice of the availability of documents as soon as they are placed in the PDR. It was not the intention of the NRC to give preferential treatment to NEl in this case; nevertheless, we can understand why members of the public who did not receive the document until April 22 might have gained that impression. With the creation of these new web pages, we believe that we can avoid similar problems in the future. (Our Office of Public Affairs will be issuing a press release to provide the public with web addresses for these pages.) The NRC will continue to ensure that no licensee, industry group, or any other specialinterest group will have a preferential opportunity to review and affect the contents of agency decision-making documents such as SECY papers.

The NRC will continue its practice of providing information to interested stakeholders, including both members of the public and members of the regulated industry, so that they can effectively participate in the regulatory processes. The NRC will continue to ensure that the broadest spectrum of individuals can obtain or have access to inform ~a tion that is the subject of regulatory reform, policy, or practice.

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/ 7** UNITED STATES NUCLEAR REGULATORY COMMISSION

{ $ WASHINGTON, D.C. 20555-0001

%,,,,,,[ July 16, 1999 SECRETARY MEMORANDUM TO: Karen D. Cyr General Counsel M

FROM: Annette L. Vietti-Cook, ecretary

SUBJECT:

STAFF REQUIREMENTS - COMSECY-99-022 - SUNSHINE ACT COMMENT RESOLUTION The Commission approves the draft Federal Register notice, subject to the attached changes and conforming changes, in responding to the comments received on the May 10,1999, Federal Register notice declaring the Commission's intent to begin implementing changes made in 1985 to the Government in the Sunshine Act regulations. Conforming changes should be made to the letter to Representative Markey (CR 99-126).

The Office of General Counsel should advise the Commission on appropriate approaches for codification or further confirmation of the clarification of the Commission's intent not to hold non-Sunshine Act discussions with outside interested parties through rulemaking or development of a policy statement.

(OGC) (SECY Suspense: 8 months after FRN date)

The Office of General Counsel and the Secretary should provide to the Commission an i

evaluation of the Commission's experience with the record-keeping procedures during the first l l six months ofimplementation.

l (OGC/SECY) (SECY Suspense: 8 months after FRN date)

Attachment:

Changes to FRN cc: Chairman Dieus Commissioner Diaz

, Commissioner McGaffigan Commissioner Merrifield EDO CIO CFO OCA OPA l OlG OGC 003112

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< Rules and Regulations rede+i-Vol. 64, No.140 t

k e Thursday, July 22, 1999 ~

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p NTNs section of the FEDERAL REGISTER on July 1. unless it took further action. Policy arguments included these:

contains regulatory documents having general . Finding that the comments do in fact [

applicability and legal effect, most of wNch '

to keyed to and codified in the Code of warrant discussion, the Commission provides this additional document that (a) Even if the rule can be justified legally,it represents a retreat from 7{

? " Federal Regulations, which is published under T88 Ponds to e issues ralsed b e ~ ' openness and will diminishP ublic N' o

50 trties pursuant to 44,U.S.C.1510..

commenters. During the peri ofits confidence in the Commission: f

-1. The Code of Federal Regulations is sold byreview of the comments, the (b)The NRC has failed to show that 2 ths Superintendent of Documents. Pnces of Commission has not held any nom collegiality has been impaired by the l

@' new books are listed in the first FEDERAL

~

Sunshine Act discussions and has- Sunshine Act: G REGISTER issue of each week. decided not to hold any such (c) The examples of topics that the j i

discussions until, at the earliest 30 days Commission has cited as examples of from the date of publication of this Possible non-Sunshine Act discussions L

- NUCt. EAR REGULATORY document. . are too trivial to warrant changing a rule

' COMMISSION h

" Nine comments were received on the that has served well for 20 years:

. May to notice, all but one of which 7 10 CFR Part 9 - (d) The Commission failed to follow i expressed disapproval of the NRC's the recommendations of the American- P U RIN 3150-AB94 action. (The lone exception was a comment from a nuclear industry group, keeping; Bar Association with respect to record i

, Government in the Sunshine Act-- the Nuclear Energy Institute, which said j y Regulations (e) No harm could come to the 1 that it endorsed the NRC's action for the- Commission's processes if neral p reasons stated in the May 10,1999, !

. AGENcn Nuclear Regulatory. background briefings were eld in open !

. , Conunissiom - document.) Of thecritical comments '

received, the most detailed came from a session: '

Final rule: Notice ofintent to Member of the United States House of (f) The NRC's role as regulator of a pf(rAcncN: implement currently effective rule: Representatives, Edward J. Markey, and ca comp x ustry caHs for g r response to comments. ,

L from two public interest organizations, Pe L the Natural Resources Defense Council (g) Nothing in the rule prevents the sumasARn The Nuclear Regulatory -

Q Commission,having considen d the and Public Citizen. The negative - Commission from holding off-the-record P comments received on the May 10; comments were mostly (but as will be discussions with representatives of the seen, not exclusively) along the lines regulated industry.

$ 1999, dgcument declaring its inteut to C begin implementing a final rule that the Commission had tried to In the interest of clarity, we will anticipate in its detailed document of R published and made effectivein 1985 May10. address the comments in a comment-f: has decided to proceed with and-response format. Some comments g- implementation of the rule,30 days The comments were both on le al and were dealt with in sufficient detail in !

policy grounds. The primarily I the May 10,1999, document that it p ' hom the &a of publication of this arguments included the following:

g occumem. would sezve no useful purpose to repeat l (a) The legislative history of the here the Commission's position with r M .I DATES:The May 21,1985, interim rule Sunshine Act makes clear Congress's . regard to them.

' h became effective May 21,1985. The ~ intent that there should be openness to l

.. Commission will begin holding non. the maximum extent practicable; A. Comment:One of the critical ;

(b) The Commusion s action is thus- commenters quoted at length from the gh.

Sunshine Act discussions no sooner

..than August 23,1999. antithetical to the letter and spirit of the the District of Columbia Circuit indecis !

FOR FURTHER INFORMATION CONTACT [

Peter Crane, Office of the General

c) The Supreme Court's decision in Philadelphia Newspopers v. NRC,727 F.2d 1195 (1984), in which the court

,, Counsel. U.S. Nuclear Regulatory . . a FCCv. ITT World Communications,466.' declared that "Covernment should Commission. Washington, DC 20555,m,. U.S. 463 (1984), involved unique A circumstances and is not relevant to the: c nduct the public's business in

.e 301)415-1622. . , , + issue before the NRC, public. The commenter opmed that P ' I(SUPPt.EMENTARY INFORMATION: ,e On May -

(d) The Commission disregarded such C n8ress undoubtedly intended that the 10,1999 (64 FR 24936), the Nuclear r I court decisions as that of the U.S. Court - Government in the Sunshine Act e

ReRulatory Commission noticed in the - of Appeals for the D.C. Circuit in - ' "w uld guarant Federal Register of its intention to begin Philadelphia Newspapers v. NRC,727 -. accountability on the safety of nuclear *,ee pu h , implementing its regulations,. ;. .

- F.2d 1195 (1984):-

i % pmmulgated in 1985, applying the . ~.J. '(e)The oiteria adopted by the

.. c ra Power.

E Response: Undeniably, the

. Government in the Sunshine Act. TheJ Commission are too vague to be . .a Philadelphia Newspapers decision- -

Commission provided a period for -/. workable, inasmuch as they require the ; represented an expansive view of the 2 2. , public comment, ending June 9,1999,; .; __

iCN and stated that no non-Sunshine Act N discussions will take; :and.Commhaion Mia of the D.C. Chcuit. to predict Only a fewthecourse months thata Sunshin N discussions would be held beforeJuly 1A (f) The Commluion's action, byt c later, however, the Supreme Court

'i 1999, to give the Commission an O , a . providing for mmimal recordkeeping,J provided sharply different guidance in - - -

- opportunity to consider the comments.i$ possibly to be discontinued alter sin the first (and to date only) Government TheCommission stated that non - W e months, willpreclude meaningfulo N in the Sunshine Act case to reach the- -

Smhin=Act discussions could beging judicial review w , -

' o;,v4 o Court: FCCv.177 World -

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J 39394 Fed:rd Register /V:1. 64, No.140/Thursd:y, July 22,1999/Ru'les tnd Regul tions '

1 Communications,466 U.S. 463 (1984).

B. Comment:The NRC's action, ev'e'n" O ResponseiThe Commission disagrees l 177 World Communications resembled if some legal arguments could be made with this comment. As long ago as 1984, Philodelphia Newspapers in that it also .. for it,is contrary to the Congress's the Administrative Conference of the involved an expansive interpretation of intent, documented in the legislative United States,in Recommendation 84 . 'j the Sunshine Act by the D.C. Circuit. . history, that Federal agencies were 3, was commenting that the Sunshine I Resoundingly, in a unanimous decision, intended to practice openness to the . Act had had the unintended effect of the Supreme Court overturned the D.C. maximum extent possible. . diminishing collegiality at multi- -

Circuit's ruling, and it used the Response: Congress made a deliberate member agencies and shifting power '

opportunity to give guidance on the decision to limit the applicability of the from the collegium to the Chairman and proper interpretation of the Sunshine Sunshine Act to " meetings." As the staff. Analyses by the NRC, the l Act. It said, among other things: Supreme Court explained in detail, the ' American Bar Association, and the l Congress in draftin the Act's definition of definition of " meeting" was an issue to Administra*ive Conference all provide

meeting" recognizef that the administrative which Congress paid extremely close factual support for the proposition that process cannot be conducted entirely in the attention, with changes introduced late there are problems associated with the public eye 0)nformal background in the process. The bill in its final form Act. Again, this topic was covered in discussions (that) clarify issues and expose therefore differed significantly from detail in the Commission's May to, varymg views are a ,necesrary part of an ,s what some ofits supporters (including 1999, document. l agency a work. (Citation omitted.) The Act its chief s >onsor, the late Senator 1 ' .- E. Comment: One commenter '

Lawton C tiles) desired. As a result, observed that "It]here is no apparent e t ch soaa re mpair normal agency operations without achieving Committee reports describmg earlier, requirement to keep any tape or ,

significant public benefit. Section 552b(a)(2) more expansive versions of the transcript of non-Sunshine Act therefore limits the Act's application. *** legislation bills are of slight significance discussions."

compared to the Supreme Court's Response: This cominent is correct, Id. at 469-70 The Commission's rulemaking has Parsing of the statute that Congress for that is the way that Congress enacted been grounded from the start in this actually passed. Some commenters are the statute. (The May 10,1999, definitive Supreme Court guidance. The in effect asking the NRC to join in document quoted the legal judgment rule itselfincludes a definition of -ewriting history so that the narrowing reflected irt the ABA report that if a

" meeting" taken verbatim from the f the scope of" meetings"-proposed discussion "is not a ' meeting,' no Court's opinion. The American Bar by then. Representative Pete McCloskey, announcement or procedures are Association confirmed that the NRC's enacted over the opposition of Senator required,because the Act has no approach was consistent with Chiles and others, and elucidated by the applicatwn.") As a matter of policy Supreme Court-is made to disappear discretion, however, the NRC has -

Congressional intent and the Supreme -

Court's interpretation. To the extent that imin ,the mcord. The reality, contrary to decided to maintain a record of the date the views of some commenters, is that and subject of, and participants in, any the commenter was urging the NRC to the Sunshine Act did not decree scheduled non-Sunshine Act follow the a proach of the Court of Penness to the maximum extent discussions that three or more Appeals an disregard the contrary Commissioners attend, for at least the guidance of the Supreme Court, the NRCtween {racticable. Instead, the public's right toit know struckand a balance nutial six-month period of, cannot agree. Even if the Commission ,

believed as a matter of policy that such the agencies' need to function efficiently unplementing the rule. This will assist a course was desirable, the NRC is not m order to get the public's business the Commission in determining whether done. thereafter, recordkeepmg should be ,

at liberty to ignore Supreme Court C. Comment: A commenter asserted maintained, increased, or eliminated. -

decisions interpreting the statutes &at that the NRC had failed to offer No final decision has been made at this govern its operations. !

examples of ths types of"non-Sunshine time. The Commission will not Act discussions" mat it contemplated discontinue its practice of keeping such g ut is worth noung enat on the precise legal point in dispute hero-lhe definition of a " meeting" holding. records without advance notice to the 4

under the Sunshne Act-one D.C. Circuit decision Re8Ponse:The commenter is in error, public. 3 held that an agency is legally prohibited from as may be soen from the section of the F. Comment:The NRC should make T, interpreting the law more restnctively than NRC's May 10,1999, document on page clear whether or not it intends that i

-24942 that begins, "Some specific discussions now held as " meetings" can 4 C. C 1a th co r y chasti an agency which had adopted a definition of examples of the kinds of topics that henceforth be held as non-Sunshme Act

" meeting" that included types of discussions that might be the subject of non-Sunshine discussions. The Commissioners whose Congress had not included within the statutory Act discussions would include. * * *" proposal initiated the Commission's y scope. The court declared that the agency was Nor was this the first time that the NRC action seem to have contemplated I it er e a m t

in it la c use had offered such examples. It has done transforming current " meetings" into j it had failed to do so, and instead included types so repeatedly, beginning in 1985. non-Sunshine Act discussions, but the y of discussions not intended by Congress to fall Indeed,the American Bar Association Commission's May 10,1999, document j within the statutory scope, the agency had wntten task force that studied the Sunshine Act denies this intent.

d quoted, with approval and at Response:The May 10,1999, n I a t he indeed. we are unable to discern any reascn for considerable length, the examples of document made clear that the objective ;

the breadth of the agency's definition of possible non Sunshine Act discussions is not to turn discussions now held as y

" neetmg"-apart from shoddy draftsmanslup. included in a memorandum to the " meetings"into non-Sunshine Act f perhaps. While we recognize that an agency Commission from the NRC General discussions, but rather to enable the g fhanh a cal y m se by ta ut the Counsel. Commission to hold, as non-Sunshine .j regulation at issue here is in excess of the D. Comment: A commenter asserted Act discussions, the kind ofinformal, s Commission's rulemaking discretion under 47 that "no detailed analysis or specific preliminary, and " big picture" U.S.C.154(1H1976). Consequently, we set it aside example has been provided of problems discussions that currently are not held

"' "' at all. As is sometimes th'e case, the final

$cIusIv"t an$Ine nNi hNu'2 tins with the current rule or of the need for Commission action differed in this

}W Act. ses F.2d 1264.1272 changes." j 4

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c i Federi Register /Vol. 64, No.140/Thursdty, July 22.1999/Ruhs and Reguhtions z 39395 instance imm the proposal that set the Response:The standards for If L. Comment:The NRC did not follow determining what is a non. Sunshine Act the recordkeeping recommendations of - '

4 . action in motion.

twoG.Commissioners Comment:The memorandum that initiated the from discussion were taken verbatim from the the American Bar Associatio

decision of a unanimous Supreme Response:lt is true that the Commission's action said that one Court. Moreover, it is not correct to say reason to act was that the primary Commission did 14ct follow.the .,

that the standard requires " divination"

?. opponent of the Commission's 1985 of what will happen in a discussion..

American Bar Association's :

'i action was no longer in Congress. This recommendations with respect to Rather, what the rule envisions is that recordkeeping. However, those W suggests that the Commission's action .

'~

was motivated by political if a discussion begins to evolve from the' recommendations were prudential, not preliminary exchange of views that the based on legal requirements. The ABA

.. ' considerations, rather than actual need. ' Commission contemplated into recognized that as a legal matter, if a W- Response:The cited memorandum something so particularized that it may ~ discussion is not a " meeting," no -

did indeed include an allusion to a " effectively predetermine" agency Procedural requirements apply at all.

' ' former Representative. Read fairly and action if it continues, the Commission The Commission's May 10,1999, S .in its totality, it makes clear that the two will cease the discussion.2 document reflected a judgment that E -' Commissioners' proposal was motivated . J. Coatment:Because of the special Congmss would not have given agencies by concerns of good government and x ' legal correctness, not politics. At the sensitivity and public Interest in issues - latitude to hold this type of discussion O same time, they offered their candid . of nuclear safety, the NRC should . ' free f elaborate and burdensome continue to apply the law mor, Procedures ifit had not viewed such .

h view that concern about the proposal strin8ently than is required. Procedures as undesirable. Nonetheless, might be less intense than it had been as described in the response to Re8Ponse'That arguent ng have 3 ininappropriate 1985. There was nothing about making this - s me token,it i rce, but it be cuts boththat ways.

Comment E above, the Commission has By the' decided to maintain a record of the date.

-) same can argued the observation. The Commission's decision part e to take action with regard to the 8Pecial sensitivity and public interest in nonicipants in, and subject matter of all 88 N Sunshine Act discussions for at W $ Sunshine Act was a reflection ofits - m3 88M4 7m essenda at the Conunission remove barries rule to least the first sixand months in which the -

L ~ longstanding efforts to increase the , is implemented, it will not

, .g : collegidity of the Commiuion process, efficiency and collegiality, so as to discontinue the practice thereafter -

maximize the quality of Commission 7.y to ensum that its procedures and ces are in conformity with current . decision-making, and that the without advance notice to the $ubli 4

jr hems.

w, and to reach closure on outstanding Congressional balance between openness and efficiency should from holdin8briefin and doing so wouldnefit bs in public session.

therefore be adhered to strictly. The public H. Comment:The May 10.1999 -

3get ; document is not clear as to whether NRC believes that the latter interest understandinbn.

Response: this point, arguments should predominate. can go either way. At the time that the y . there is anything in the rule that would

,. prevent th full Commission from K. Comment: Whether or not legally' Commission first put its Sunshine Act meeting off-the-record with justifiable,'the NRC's action will rules into place, it acknowledged that representatives of a licensee or the diminish publia confidence in the briefings might be exempt from the C M siog Sunshine Act's scope, but said that the p1 Nudear Energy Institute in non-Sunshine Act discussions. _ . .

Response:The Commission was Commission did so much ofits aware of this possibility at the time it im ortant work in briefings that as a (V Response:The commenter's well taken; the notice did not address point issued is cy matter,it believed these should

,1 ; ' this question. The Commission's intent the May 10,1999, document, but it believes that the legal and pohey fe,[open to the public. This ent is

, . bthat non-Sunshine Act discussions a reasons for its action-compliance with not insubstantial. In part for reason, would be limited to NRC or other ' the Supreme Court s guidance, and the the Commissiogaffirms once again what

- @L. v federal agency personnel, with limited - expected benefitsit in said collegiality in its May 10,1999, and document fx exceptions for persons (e.g, x ..mm efficsency;make this a desirable course-];

g' 'representatives of the regulatory. body of, of actim, even if-despite the " *. namely, thatand earlier inisthis its objective not present to turn document, Commission's best efforts to explain its discussions now held es " meetings"

%,; ,[, who c foreign would notnation, or a state be regulated entities regulator).

or. , . reaanine-sane persms nm - into non-Sunshine Act discussions.

h 4,: who could not be considered interested , misunderstand or disapprove Rather, the intent is to ensure that the of the MQ enmmission's action. It is also possible ... . Commission is not categorically gb@rulemaking parties to Commission-adjudicatory proceedings.The~ ; - i .; that the potential enhancement Commission is committed toO "ff q . collegiaMty and.the potential ory ,.of,.@, required to apply th.e Sunshine Act's r ;. g [riefing, including such ti,ings asrocedur y! i , Sunshine Act discussions will notic~ manng that implementing may result fromthis nonM intent, m the noip*G improvement in Commis .

h.2 include discussions withr: N m c@.j S"nshine Act discussions wilt ;;m :

i ublic would be small YW representatives oflicensees or oM Mu : ultimately increase the public's i v I comfoss benefit ared toto t the fe administrative bu i

Mg.s and of efficiency in doing day-to-

$platerested parties to NRC adjudicationsEi ' ' ' W& M UtOorganizations -

who could be considere In sum, the NRC believes,'besed on its.

Qrulemakings, or development of uN

&pguidanceae m e, wS);ess[1*")'L'". f 7g13Ewy Nnnhe who mts ou+ econ % review o i

9h3 CommentrTlie NRC's standards WJ dismssions S Nr; general that threaten approach taken in suey by the. 'inese n L. . Syjj 'h%

h .q dotarminina when adiscussion can be se impennasible pmvia.4, annampsme byh Comminion in thatnotice remains a -

p%g heldas a no,n-Sunshine j g iInipermissiblyvague;r'equiringgf "nIdee Act discussion .' g Lths the NRC MCassputemles.hmm intends to implement its 1985 no mos gdivinatloc on the part of the: Ww$ cm. the une g; participanw 9 MQ iJpM dwa.aons nou.pmetag non-sanshio. Art., a - m Sunshine Act rules and to begin holding W% e W. Q.Ep non-Sunshina Act dacussions, subject. .

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l 39396 Federal Register /Vol.164.'No,340/ Thursday,-}uly'22,L1999/Rttl'es 'and Regulations 4

to the conditions outlined in the May . ADDRESSES: Sthmit comments in .d ' latended to adeqsatel address the ,u.y '

10,1999, document, and as further tri licate to thd Federal Aviation ' -

' identified unsafe con tion. e e i,

~

e clarified in the pmsent document. 30 + - A ministration (FAA), Transport d The LFV classilled this service -c, h days from the date of this notice. ', Airplane Directrate ANM-114, 9 4 ' bulletin as mandetory and inued . ii 7.F -

Dated at Rockville, Md., this 16th day of 1 ' Attention: Rule Docket No. 98-NM- Swedish airworth ess dimetive (SAD)

, . July,1999. -

- % 350-AD,1601 nd Avenue,SW., h., No.1-132, dated f i l

For the Nuclear Regulatory Commission. :Renton,W on 98055- 4056 4 h order to assure th continued ober 8,1998,in emq , g, ,

o' Annette Vietti Cook, +

j The ' service in 3rmation ' referenced in airw rthiness d se airplanesin e W Secretmyof the Commission.' * -

this AD may be ained from Saab -' Sweden. ._j,, , g ,- m9 ,

IFR Ikx:. 99-18724 Filed 7-21-49; 8:45 aml Aircraft AB, SAA 3 Aircraft Product ' 'd~~ ' -<

.ma coo, m, Support, S-581.8- l, link 5 ping, Sweden. This ', . FAA's Conclusions airplane moiel is manufactured' '

This information :nay be examined,at -

in Sweden and is type certificated for the FAA.Transpo t Airplane ~

operation in the Un ted States under the.

DEPARTMENT OF TRANSPORTATION Directorate,1601 Lind Avenue, SW., provisions d sech 2L29 of the Renton, Washhigton; or at the Office of Federal Aviation Re;ulations (14 CFR Federal Aviatloa Administration the Federal Regist er,800 North Capitol 21.19) and the applihble bilateral Street, NW., suite "00, Washington, DC. - airworthiness agreenent. Pursuant to 14 CFR Part 39 FOR FURTHER INF0FIMATION CONTACT: this bilateral airwortfdness agreement, fDocket No. 96-M-350-AD; Amendment Norman B. Martenson, Manager, the LFV has kept the FAA informed of ,

39-11232; AD 99-15-12] International Bran:h, ANM-116 FAA, the situation describod above. The FAA '

RIN 2120-AA64 4 Transport Airpland Directorate,1601 has examined the findings of the LFV, Lind Avenue, SW., Renton, Washington reviewed all availabl p information, and .

Airworthiness C irectives; Saab Model 98055-4056; telepaone (425) 227-2110; determined that AD dction is necessary SAAB 2000 Serios Airplanes fax (425) 227-1149. for products of this type design that are SUPPLEMENTARYINFORMATION: ficated for operat.on in the United AGENCY: Federal Aviation Administration, LOT, Discussion ACTION: Final rula; request for Explanation of Requi1ements of the comments' The Luftfartsverket (LFV), which is Rule the airworthiness iuthority for Sweden, S nce an unsafe conlition has been

SUMMARY

This ainendment adopts a notified the FAA 1 hat an unsafe new airworthinens directive (AD), condition may ex st on certain Saab identified that is likels to exist or develop on other airplnes of the same applicable to cerain Saab Model SAAB Model SAAB 2000 series airplanes.The type desi istered n the United 2000 series airpinnes. This action LFV advises that a failure of a bushing States,th AD is beintissued to requires repetitise detailed inspections of the flap suppoit fittmg occurred revent looseness or gap of the press fit to detect looseness or gap of the press dunn a fatigue tost. The bushing [ushing instaTlation ofthe actuator fit bushing installation of the actuator instal ation of the flap support fitting is fittings of the alloron t-im tabs.This AD fittmgs of the ailoron trim tabs, and similar to the bustung installation of the requires accomplishnunt of the actions eventual replace)nent of the bushings actuator fittings cf the a11eron trim taba. specified in the servic a bulletin with new, staked bushings. In the event of failure of the redundant Accomplishment of such replacement trim tab actuator, such a failure of the described reviously, except es terminates the re 3etitive inspections.

discussed below*

bushing could lend to trim tab flutter This action also provides for an o 'onal and consequent s tructural failure of the Differences Between 1his AD and temporary prevet tive action, whi , if trim tab and reducod controllability of Service Bulletin accomplished, would terminate the the airplane. '

repetitive inspections until the Operators should rote that, although f Explanation of Rolevant Service the service bulletin specifies that the terminatmg act2on is accomplished. manufacturer may be contacted for This amendment is prompted by Information disposition of a certa n repair condition, ,

issuance of manditory continuing Saab has issued Service Bulletin this AD requires the "epair of that airworthiness information by a foreign 2000-57-011, datad October 1,1998, condition to be acconiplished in i civil airworthiness authority. The which describes procedures for accordance with a mathod approved by !

actions specified (n this AD are repetitive visualinspections to detect the FAA, or the LFV (or its delegated

~

intended to prevent looseness or gap of looseness or ga o I the press fit bushing agent).

the bushings. In tie event of failure of installation of e actuation fittings of the redundant trini tab actuator, such the aileron trim taas. In addition, the Cost Impact

looseness or gap o the bushings could service bulletin describes procedures for None of the airplales affected by this lead to trim tab flu:ter and consequent eventual re~placemmt of existing action are on the U.S. Register. All d structural failure of the trim tab and bushings with new, staked bushings in airplanes included i2.the applicability ,

reduced controllatility of the airplane. the fittings. Such roplacement when of this rule currently are operated by 9 DATES: Effective August 6,1999. accomplished, elirninates the need for non-U.S. operators t nder foreign :

The incorporation by reference of the repetitive inspqctions. The service registry; therefore, tl ey are not directly j I' bulletin also describes procedures for an affected by this AD tction. However, the certain pablications listed in the ,j regulations is approved by the Director optional temporary preventive action FAA considers that <his rule is that involves the initallation of washers necessary to ensure ihat the unsafe of the Federal Regifer as of August 6, condition is address' .d in the event that 3999, on the bushings of tlie actuator fittings Comments for indlusion in the Rules of the alleron trim t tbs, any of these sublect tirplanes are imported and laced on the U.S.

Docket must be rect lived on or before Accomplishment of e actions

, August 23,1999. 8Pecified in the se ce bulletin is Registerin th future. g a

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- "S%,, UNITED STATES f 5 fi 'i e i f.,

g NUCLEAR REGULATORY COMMISSION WASHINGTON. D C. 20555-0001 5 o e

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oFF:cE OF THE ctNinAt covNsEL Jy]yg,1999 MEMORANDUM FOR: Chairman Dieus Commissioner Diaz Commissioner McGaffigan Commissioner Merrifield FROM: Karen D. Cy h -

General Counsel SUBJECT-SUNSHINE ACT COMMENT RESOLUTION We have prepared the attached Federal Register Notice for use by the Commission in responding to the comments received on the May 10,1999, Federal Register notice declaring its intent to begin implementing changes made in 1985 to the Government in the Sunshine Act regulations. The analysis of comments in the proposed Notice is essentially identical to that provided earlier by this office'in SECY 99-166, but the analysis has been put in a question and answer format similar to the approach used in the May 10th notice.

Attachment. As stated cc: SECY EDO-l

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NUCLEAR REGULATORY COMMISSION 10 CFR Part 9 GOVERNMENT IN THE SUNSHINE ACT REGULATIONS AGENCY: Nuclear Regulatory Commission f

ACTION: !

Response to Comments on Final Rule Giving Notice 1 of Intent to implement Currently Effective Rule.

SUMMARY

The Nuclear Regulatory Commission, having considered the comments received on the May 10,1999, Federal Register notice declaring its intent to begin implementing a final rule published and made effective in 1985, has decided to proceed with implementation of the rule.

FOR FURTHER INFORMATION CONTACT: Peter Crane, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, (301) 4151622.

SUPPLEMENTARY INFORMATION:

On May 10,1999, the Nuclear Regulatory Commission published notice in the Federal Register of its intention to begin implementing its regulations, promulgated in 1985, applying the Government in the Sunshine Act. The Commission provided a period for public comment, to end June 9,1999, and stated that no non-Sunshine Act discussions would be held before July i

1,1999, to give the Commission an opportunity to consider the comments. The Commission stated that non-Sunshine Act discussions could begin on July 1, unless it took further action.

Finding that the comments do in fact warrant discussion, the Commission provides this additional Federal Register notice responding to the issues raised by the commenters.

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2-Nine comments were received on the May 10 notice, all but one of which expressed disapproval of the NRC's action. (The lone exception was a comment from a nuclear industry group, the Nuclear Energy Institute, which said that it endorsed the NRC's action for the reasons stated in l the Federal Register notice.) Of the critical comments received, the most detailed came from a 1

l Member of the United States House of Representatives, Edward J. Markey, and from two public l interest organizations, the Natural Resources Defense Council and Public Citizen. The negative comments were mostly (but as will be seen, not exclusively) along the lines that the Commission had tried to anticipate in the detailed May 10 Federal Register notice.

The comments were both on legal and policy grounds. The primarily legal arguments included the following: (a) the legislative history of the Sunshine Act makes clear Congress's intent that there should be openness to the maximum extent practicable; (b) the Commission's action is thus antithetical to the letter and spirit of the Act; (c) the Supreme Court's decision in FCC v.

/TT World Communications, 466 U.S. 463 (1984), involved unique circumstances and is not i i

relevant to the issue before the NRC; (d) the Commission disregarded such court decisions as that of the U.S. Court of Appeals for the D.C. Circuit in Philadelphia Newspapers v. NRC,727 F.2d 1195 (1984); (e) the criteria adopted by the Commission are too vague tc be workable, inasmuch as they require the Commission to predict the course that discussions will take; and (f) the Commission's action, by providing for minimal record keeping, possibly to be discontinued af ter six months, will preclude meaningfuljudicial review.

l Policy arguments included these: (a) even if the rule can be justified legally, it represents a retreat from openness and will diminish public confidence in the Commission; (b) the NRC has failed to show that collegiality has been impaired by the Sunshine Act; (c) the examples of topics that the Commission has cited as examples of possible non Sunshine Act discussions l

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l are too trivial to warrant changing a rule that has served well for 20 years; (d) the Commission i

failed to follow the recommendations of the American Bar Association with respect to record keeping; (e) no harm could come to the Commission's processes if general background briefings were held in open session; (f) the NRC's role as regulator of a technically complex 1

industry calls for maximum openness; and (g) nothing in the rule prevents the Commission from -

holding off the-record discussions with representatives of the regulated industry.

In the interest of clarity, we will address the comments in a comment and answer forrnat.

Some comments were dealt with in sufficient detail in the May 10 notice that it would serve no i

useful purpose to repeat here the Commission's position with regard to them.

A. Comment:

One of the critical commenters quoted at length from the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Philadelphia Newspapers v. NRC,727 F.2d 1195 (1984),

in which the court declared that " Government should conduct the public's business in public."

He opined that Congress undoubtedly intended that the Government in the Sunshine Act "would guarantee public accountability" on the safety of nuclear power.

Response

Undeniably, the Philadelphia Newspapers decision represented an expansive view of the Sunshine Act on the part of that panel of the D.C. Circuit. Only a few months later, however, the Supreme Court provided sharply different guidance in the first (and to date only)

Government in the Sunshine Act case to reach the Court: FCC v. ITT World Communications, 466 U.S. 463 ('1984). ITT World Communications resembled Philadelphia Newspapers in that it also involved an expansive interpretation of the Sunshine Act by the D.C. Circuit.

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l l Resoundingly, in a unanimous decision, the Supreme Court overturned the D.C. Circuit's ruling, and it used the opportunity to give guidance on the proper interpretation of the Sunshine Act. It said, among other things:

Congress in draf ting 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.... l Id. at 469-70.

4 The Commission's rulemaking has been grounded from the start in this definitive Supreme Court guidance. The rule itself includes a definition of " meeting" taken verbatim from the Court's opinion. The American Bar Association confirmed that tha NRC's approach was consistent with Congressional intent and the Supreme Court's interpretation. To the extent that the commenter was urging the NRC to follow the approach of the Court of Appeals and l

disregard the contrary guidance of the Supreme Court, the NRC cannot agree. Even if the Commission believed as a matter of policy that such a course was desirable, the NRC is not at liberty to ignore Supreme Court decisions interpreting the statutes that govern its operations.'

' It is worth noting that on the precise le0al point in dispute here -- the definition of a

" meeting" under the Sunshine Act -- one D.C. Circuit decision held that an agency is legally prohibited from interpreting the law more restrictively than Congress provided. In WATCH v.

FCC,665 F.2d 1264 (D.C. Cir.1981), the court sharply chastised an agency which had adopted a definition of " meeting" that included types of discussions that Congress had not included within the statutory scope. The court declared that the agency was " supposed to track" the statutory definition when it defined a " meeting" in its regulations. Because it had failed to do so, and instead included types of discussions not intended by Congress to fall within the statutory scope, the agency had written an "impermissibly broad" definition which could not legally be sustained. The court said:

Indeed, we are unable to discern any reason for the breadth of the agency's definition of " meeting"-- apart from shoddy draftsmanship, perhaps. While we recognize that an agency generally is free to shoulder burdens more onerous i

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t B. Comment:

The NRC's action, even if some legal arguments could be made for it, is contrary to the Congress's intent, documented in the legislative history, that federal agencies were intended to practice openness to the maximum extent possible.

Rasponse:

Congress made a deliberate decision to limit the applicability of the Sunshine Act to " meetings."

As the Supreme Court explained in detail, the definition of " meeting" was an issue to which Congress paid extremely close attention, with changes introduced late in the processc The bill in its final form therefore differed significantly from what some of its supporters (including its chief sponsor, the late Senator Lawton Chiles) desired. As a result, Committee reports describing earlier, more expansive versions of the legislation bills are of slight s'gnificance compared to the Supreme Court's parsing of the statute that Congress actually passed. Some commenters are in effect asking the NRC to join in rewriting history so that the narrowing of the scope of "rneetings"-- proposed by Representative Pete McCloskey, enacted over the opposition of Senator Chiles and others, and elucidated by the Supreme Court --is made to disappear from the record. The reality, contrary to the views of some commenters, is that the Sunshine Act did not decree openness to the maximum extent practicable, instead, it struck a balance between the public's right to know and the agencies' need to function efficiently in order to get the public's business done.

than those specifically imposed by statute, the regulation at issue here is in excess of the Commission's rulemaking discretion under 47 U.S.C. 154(1)

(1976). Consequently, we set it aside to the extent that its definition of " meeting" is more inclusive than the one contained in the Sunshine Act.

665 F.2d 1264,1272.

6 C. Comment:

A commenter asserted that the NRC had failed to offer examples of the types of "non-Sunshine Act discussions" that it contemplated holding.

Response

j The commenter is in error, as may be seen from the section of the NRC's May 10,1999 j Federal Register notice on page 24942 that begins,"Some specific examples of the kinds of topics that might be the subject of non-Sunshine Act discussions would include... " Nor was this l

the first time that the NRC had offered such examples. It has done so repeatedly, beginning in

{

1985. Indeed, the American Bar Association task force that studied the Sunshine Act quoted, with approval and at considerable length, the examples of possible non-Sunshine Act discussions included in a memorandum to the Commission from the NRC General Counsel.

D. Comment A commenter asserted that "no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes."

Response

The Commission disagrees with this comment. As long ago as 1984, the Administrative i

Conference of the United States,in Recommendation 84-3, was commenting that the Sunshine l

Act had had the unintended effect of diminishing collegiality at multi-member agencies and shifting power from the collegium to the Chairman and staff. Analyses by the NRC, the American Bar Association, and the Administrative Conference all provide 1 actual support for the proposition that there are problems associated with the Act. Again, this topic was covered in detailin the Commission's May 10 Federal Register notice.

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i E. Comment:

One commenter observed that "[t]here is no apparent requirement to keep any tape or I transcript of non-Sunshine Act discussions."

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Response

i This comment is correct, for that is the way that Congress enacted the statute. (The May 10 Federal Register notice quoted the legaljudgment reflected in the ABA report that if a discussion "is not a ' meeting,' no announcement or procedures are required because the Act has no application.") As a matter of policy discretion, however, the NRC has decided to maintain a record of such discussions for the initial six-month period of implementing the rule.

This will assist the Commission in determining whether thereafter, record-keeping should be maintained, increased, or eliminated. No final decision has been made at this time.

F. Comment:

' The NRC should make clear whether or not it intends that discussions now held as " meetings" can henceforth be held as non Sunshine Act discussions. The Commissioners whose proposal initiated the Commission's action seem to have contemplated transforming current " meetings" into non-Sunshine Act discussions, but the Commission's May 10 notice denies such an intent.

Response

The May 10 Federal Register notice made clear that the objective is not to turn discussions now held as " meetings" into non Sunshine Act discussions, but rather to enable the Commission to hold, as non-Sunshine Act discussions, the kind of informal, preliminary, and

'hig picture" discussions that currently are not held at all. As is sometimes the case, the final Commission action differed in this instance from the proposal that set the action in motion.

. 1 G. Comment:

The memorandum from two Commissioners that initiated the Commission's action said that one reason to act was that the primary opponent Qf the Commission's 1985 action was no longer in Congress. This suggests that the Commission's action was motivated by political considerations, rather than actual need.

Response

The cited memorandum did indeed include an allusion to a former Representative. Read fairly and in its totality, it makes clear that the two Commissioners' proposal was motivated by concerns of good government and legal correctness, not politics. At the same time, they offered their candid view that concern about the proposal might be less intense than it had been in 1985. There was nothing inappropriate about making such an observation. The Commission's decision to take action with regard to the Sunshine Act was a reflection of its longstanding efforts to increase the collegiality of the Commission process, to ensure that its procedures and practices are in conformity with current law, and to reach closure on outstanding items.

H. Comment:

The May 10,1999 notice is not clear as to whether there is anything in the rule that would prevent the full Commission from meeting off the record with representatives of a licensee or the Nuclear Energy Institute in non-Sunshine Act discussions.

Response

- The commenter's point is well taken; the notice did not address this question. The Commission's intent is that non Sunshine Act discussions would be limited to NRC or other i

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federal agency personnel, with limited exceptions for persons (e.g. representatives of the regulatory body of a foreign nation, or a state regulator) who would not be regulated entities or who could not be considered interested parties to Commission adjudicatory or rulemaking proceedings. The Commission is committed to implementing this intent; the non-Sunshine Act discussions will not include discussions with representatives of licensees or of organizations who could be considered to be interested parties to NRC adjudicatory or rulemaking proceedings.

1. Comment:

The NRC's standards for determining when a discussion can be held as a non-Sunshine Act j i

discussion is impermissibly vague, requiring " divination" on the part of the participants.

Response: The standards for determining what is a non-Sunshine Act discussion were taken verbatim from the decision of a unanimous Supreme Court. The NRC is not about to second-guess the Supreme Court as to their legal adequacy. Moreover, it is not correct to say that the standard requires " divination" of what will happen in a discussion. Rather, what the rule envisions is that if a discussion begins to evolve from the preliminary exchange of views that the Commission contemplated into something so particularized that it may " effectively predetermine" agency action if it continues, the Commission will cease the discussion.2 8

Every Commissioner who meets one-on-one with an interested party to a matter before the Commission has to be prepared to cut off discussions that threaten to stray into impermissible areas, as provided, for example, by the NRC's ex parte rules. There seems no reason why Commissioners could not equally well halt discussions among themselves that seem likely to cross the line separating non-Sunshine Act discussions from " meetings."

'J. Comment:

Because of the special sensitivity and public interest in issues of nuclear safety, the NRC.

should continue to apply the law more stringently than is required.

Response

That argument may have some force, but it cuts both ways. By the same token, it can be argued that the special sensitivity and public interest in issues of nuclear safety make it essential that the Commission remove barriers to efficiency and collegiality, so as to maximize the quality of Commission decision making, and that the Congressional balance between >

openness and efficiency should therefore be adhered to strictly. The NRC believes that the ;

latter interest should predominate.

1 K. Comment:

Whether or not legally justifiable, the NRC's action will diminish public confidence in the Commission.

Response

The Commission was aware of this possibility at the time it issued the May 10 notice, but it i

believed that the legal and policy reasons for its action -- compliance with the Supreme Court's !

guidance, and the expected benefits in collegiality and efficiency, made this a desirable course i

of action, even if -- despite the Commission's best efforts to explain its reasoning -- some persons should misunderstand or disapprove of the Commission's action. It is also possible I that the potential enhancement of collegiality and the potential improvement in Commission decision making that could result from non-Sunshine Act discussions will ultimately increase the

_ public's confidence in the Commission's actions.

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L. Comment:

The NRC did not follow the record-keeping recommendations of the American Bar Association.

Response

It is true that the Commission did not follow the American Bar Association's recommendations with respect to record-keeping. However, those recommendations were prudential, not based on legal requirements. The ABA recognized that as a legal matter, if a discussion is not a

" meeting," no procedural requirements apply at all. The Commission's May 10 notice reflected a judgment that Congress would not have given agencies latitude to hold this type of discussion free of elaborate and burdensome procedures if it had not viewed such procedures as undesirable.

M. Comment:

No harm could result from holding briefings in public session, and doing so would benefit public understanding.

Response

'On this point, arguments can go either way. At the time that the Commission first put its Sunshine Act rules into place, it acknowledged that briefings might be exempt from the Sunshine Act's scope, but said that the Commission did so much of its important work in briefings that as a policy matter, it believed these should be open to the public. This argument is not insubstantial. However, the Commission assigns greater weight to the counter a'rgument that two decades of implementing the Sunshine Act, with its procedural burdens and its tendency to inhibit the free flow of discussion, have persuaded the Commission that Congress's

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originaljudgment was well-founded, and that the Act should not be applied beyond the bounds set by Congress. In addition, there is one court decision holding that an agency exceeded its legal authority wh en it adopted a definition of " meeting" broader than what Congress had legislated. W A TCH v. FCC, 665 F.2d 1664 (D.C. Cir.1981).

In sum, the NRC believes, based on its review of the comments received on the May 10 Federal Register notice, that the general approach taken by the Commission in that notice remains a desirable course of action. Accordingly, the NRC intends to implement its 1985 Sunshine Act rules and to begin holding non-Sunshine Act discussions, subject to the conditions outlined in the May 10 notice, and as further clarified in this notice.

For the Commission l

Annette Vietti-Cook (

Secretary 1

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