ML20216D685
| ML20216D685 | |
| Person / Time | |
|---|---|
| Issue date: | 07/19/1999 |
| From: | Dicus G, The Chairman NRC COMMISSION (OCM) |
| To: | Markey E HOUSE OF REP. |
| Shared Package | |
| ML20216D691 | List: |
| References | |
| FRN-64FR24936, RULE-PR-9 NUDOCS 9907300055 | |
| Download: ML20216D685 (11) | |
Text
,[
[
p, b,g UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, o.C. 20555-0001
~
g 00W UD o, (JSQg g...../ July 19, 1999 CHAmMAN
'99 JUL 29 P2 :09 Cc hr /
The Honorable Edward J. Markey ADJ r United States House of Representatives Washington, D.C. 20515-2107 DOCKET NUMBER
Dear Congressman Markey:
PROPOSED RULE PR 9 --
WIFRM9%)
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 Govemment in the Sunshine Act. We have placed your letter in the docket, and have considered it along with other comments from the public, in addition to providing you with this response. On July 16,1999, the Commission approved for publication in the fe deral Reaister its responses to comments received on its decision to implement the 1985 rule changes. A copy is enclosed for your information. As indicated in the enclosed Federal Reaister notice, during the period of the Commission's review of the comments, no non-Sunshine Act discussions were held and the Commission will not hold any such discussion until 30 days after the publication of the Federal Reaister notice.
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 r4RC's rpplication of the Sunshine Act. You quote 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 dec'7 red that "Govemment should conduct the public's business in public," and opined that Congress undoubtedly intended that the Govemment in the Sunshine Act "would ,.e guarantee public accountability" on the safety of nuclear power.
Undeniably, that dscision 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) Govemment in the Sunshine Act case to reach the Court: FCC v. ITT Wodd Communications, 466 U.S. 463 (1984).
ITT World Communications resemb! sd Philadelphia Newspapers in that it also involved an cxpansive interpretation of the Sunshine Act by the D.C. Circuit. 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:
I Congress in drafting the Act's definition of " meeting" recognized l that the administrative pre, cess cannot be conducted entirely in the public eye. "[l]nformal background discussions [that) clarify issues and expose varying views" arc 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..
3000M 9907300055 990719 PDR PR 9 64FR24936 PDR q)
/
h
I af .r
^
/ g id. at 469-70.
Your letter does not directly mention the Supreme Court's interpretation of the Sunshine Act, but l instead refers obliquely to the possibility that the NRC's rule "may be consistent with some 1 judicialinterpretations of the Sunshine Act." This comment fails to give adequate recognition to l l the ironclad legal basis for the Commission's action. The reality is that the Commission's l 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 Amencan Bar Association confirmed that the NRC's approach was consistent with Congressional intent and the Supreme Court's interpretabon.
Your letter could be read to imply that the NRC should follow the approach of the Court of Appeals and derogard the contrary guidance of the Supreme Court. Even if we 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 govem 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 Regator 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 l l the first t;me that the NRC has offered such examples, it has done so repeatedly, beginning in !
' 1985. Indeed, the American Bar Association task force that studied the Sunshine Act quoted, j
'Though your letter describes the NRC's 1985 rule as "NRC's -sponse" to the -
Ph#adWphia Newspapers case, it was in reality the agency's response to the ITT case. ;
8 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. ,
i 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 i instead included types of discussions not intended by Congress to fall within the statutory scope, the agency had written an "impermissibly t, road" definition which could not legally be sustained. l The court said:
Indood, we are unable to discem any reason for the breadth of the agency's !
definition of "meetmg" - apart from shoddy draftsmanship, perhaps. While we recognize that an agency generally is free to shoulder burdens more onerous L 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.
i
-9
- 4. L ,
O ss Twith approval and at considerable length, the examples of possible non-Sunshine Act h=iaris 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 discussens 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 Commisson voted to authorize non-Sunshine Act discussions without knowing what sort of discussions it had in mind is thus incorrect.
You further state that "no detailed analysis or specific example has been provided of problems with the current rule or of the nood for changes." 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 diminishire collegiality at multi-member agencies and shifting power from the collegium to the Chairman and staff. Analyses by the NRC, the American Bar Associabon, and the Administrative Conference all provide factual support for the proposition that there are problems associated with the Act. This topic was covered in detail in the Commission's May 10 Federal Regisfer notice, and again briefly in the July 19 Federal Reaister notice.
- Your observation that *[t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions" is correct, for that is the way that Congress enacted the statute. (The May 10 Federal Register notice quoted the legaljudgment of the ADA repmt that if a discussion "is not a 'miseting,' no announcement or procedures are required becre e tne Ac' has no l . application.") As a matter of policy discretion, however, the NRC has &Med to maintain a l record of the date and subject of, and participants in any scheduled non-Sunshine Act discussion that three or more Commissioners attend for the initial six-month period of implementing the rule. This will assist the Commission in determining whether thereafter, rec,viG-Wng should be maintained, increased, or eliminated. The Commission will not
. discontmue this practice in the absence of notice to the public. No final decision has been made at this time.
Our responses to your specific questions are enclosed.
! Sincerely, k
. hh treta y s
Enclosures:
As stated 1
h_ ~ _ _ _
i .
c; .,
}.
l with approval and at considerable length, the examples of possible non-Sunshine 4ct r discuselons 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 further state that "no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes." 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 j power from the collegium to the Chairman and staff. Analyses by the NRC, the American Bar Association, and the Administrative Conference all provide factual support for the proposition that there are problems associated with the Act. This topic was covered in detail in the
, Commission's May 10 Federal Register notice, and again briefly in the July 19 Federal Reaister notice.
Your observation that "[t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions" is 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 the date and subject of, and participants in any scheduled non-SunsHne Act disemsion that three or more Commissioners amend for the initial six-month period of implementing the rule. This will assist the Commission in determining whether thereafter, recoimping should be maintained, increased, or eliminated. The Commission will not discontinue this practice in the absence of notice to the public. No final decision has been made at this time.
Our responses to your specific questions are enclosed.
Sincerely,
/s/ Original signed by. Greta Joy Dicus Greta Joy Dicus
Enclosure:
As stated l Originating Office: OGC GJD - Approved w/ edits Ref: CR-99-126 NJD - Approved w/cmt.
Commission Correspondence EXM - Approved w/ edits JSM - Approved i 1
OFC SECd OCA OCM/GJD NAME EdMs dh- A .,M DATE- [Mb ' h[ I ?l OFFICIAL RECORD COPY O
'.5. .
. ENCLOSURE 1
[7590-01 P] 3 NUCLEAR REGULATORY COMMISSION 10 CFR Part 9 RIN 3150 -AB94 Government in the Sunshine Act Regulations AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule: Notice of intent to implement currently effective rule; response to comments.
SUMMARY
- The Nuclear Regulatory Commission, having considered the comments received on the May 10,1999, document declaring its intent to begin implementing a final rule published and made effective in 1985, has decideo to proceed with implementation of the rule, l l
30 days from the date of publication of this documen't.
DATES: The May 21,1985, interim rule became effective May 21,1985. The Commission will begin hcl ding non-Sunshine Act discussions no sooner than 30 days from the date of publication of this notice.
1 1
FOR FURTHER INFORMATION CONTACT- Peter Crane, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, (301) 415-1622.
4 SUPPLEMENTARY INFORMATION:
On May 10,1999 (64 FR 29436), the Nuclear Regulatory Commission noticed 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 i l kD-7-271HRf Ih'n i
m 2- t comment, ending June 9,1999, and stated that no non Sunshine Act discussions would be held before July 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 document that responds to the issues raised by the commenters.
During the period of its review of the comments, the Commission has not held any non-Sunshine Act discussions and has decided not to hold any such discussions until, at the earliest,30 days from the date of publication of this document.
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 the May 10,1999, document.) Of the entical comments received, the most detailed came from a Member of the United States House of Representatives, Edward J.
Markey, and from two public 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 its detailed document of May 10.
The comments were both on legal and policy grounds. The prim'arily 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. ITT World Communications,466 U.S. 463 (1984), involved unique circumstances and is not 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 enteria 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, i l
i Policy arguments included these:
(a) Even if the ru!e can be justified legal'. !! 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 are too trivial to warrant changing a rule that has served well for 20 years; (d) The Commission failed to follow the recommendations of the American Bar Association with respect to record keeping; l
(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 l
openness; and (g) Nothing in the rule prevents the Commission from holding off-the-record discussions with representatives of the regulated industry.
L
', +
~-
t in the interest of clarity, we will address the comments in a comment-and response format. Some comments were dealt with in sufficient detailin the May 10,1999, socument that it would serve no 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." The commenter opined that Congress undoubtedly intended that the Government in the Sunshine Act "would guarantee public accountability" on the safety of nuclear power.
l Resoonse: Undeniably, the Philadelphia Newspapers decision represented an l expansive view of the Sunshine Act on the part of that panel of the D.C. Circuit. Only a few 1
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 l Coinmunications,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 decision, the Supreme Court overturned the D.C.
I 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 drafting the Act's definition of " meeting" recognized that the administrative process cannot be conducted entirely in the public eye. "[ljnformal background discussions (that] clarify issues and expose varying views" are a necessary part of an agency's work. [ Citation omitted.] The Act's procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit.
Section 552b(a)(2) therefore limits the Act's application....
L ..
. +
4 Id. at 469-70.
, 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 the NRC's approach was consistent with Congressionalintent 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 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.'
B. Comment: The NRC's action, even if sume 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.
' 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 prohibitedfrom 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 l 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 l scope, the agency had written an "impermissibly broad" definition which could not legally be l 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..
r .
, l
. 1 y
Response: Congress made a deliberate decision to limit the applicability of the l
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 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 bills are of slight significance 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 " meetings"-- proposed by then 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.
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. j 1
I Response: The commenter is in er or as may be seen from the section of the NRC's May 10,1999, document 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 t
discussions included in a memorandum to the Commission from the NRC General Counsel. !
t t i
.. ,.i
.7 p 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 Conference of the United States, in Recommendation 84-3, was commenting that the Sunshine 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 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 10,1999, document. I E. Comment: One commenter observed that '{t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions."
Resoonse: This comment is correct, for that is the way that Congress enacted the statute. (The May 10,1999, document quoted the legal judgment 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 the date and subject . f, and participants in, any scheduled non Sunshine l
Act discussions that three or more Commissioners attend, for at least the initial six-month
. period of implAmenting the rule. This will assist the Commission in determining whether thereafter, recordkeeping should be maintained, increased, or eliminated. No final decision has been made at this time. The Commission will not discontinue its practice of keeping such r: cords without advance notice to the public, i
l l
L-.
9 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 proposalinitis d e the Commission's action seem to have contemplated transforming current " meetings"into non-Sunshine Act discussions, but the Commission's May 10,1999, document denies this intent.
Response: The May 10,1999, document 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
" big 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.
I G. Comment: The memorandum from two Commissioners that initiated the {
Commission's action said that one reason to act was that the primary opponent of the Commission's 1985 action was no longer in Congress. This suggests that the Commission's rction was motivated by political considerations, rather than actual need.
1 Response: The cited memorandum did indeed include an allusion to a former Representative. Read fairly and in its totaPy, it makes clear that the two Commissioners' l
l proposal was motivated by concerns of good government and legal correctness, not politics. At I
the same time, they offered their candid view that concem about the proposal might be less intense than it had been in 1985. There was nothing inappropriate about making this 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
m, y
1
.3.,
3,3
-9 t ensure that its procedures and practices are in conformity with current law, and to reach closure on outstanding items.
i I
i H. Comment: The May 10,1999, document 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.
I Resoonse: 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 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 interested parties to NRC adjudications, rulemakings, or development of guidance.
- l. Comment: The NRC's standards for determining when a discussion can be held as a non-Sunshine Act discussion is impermissiUy vague, requiring " divination" on the part of the participants, l
l i I i
Response: The standards for determining what is a non-Sunshine Act discussion were l
trken verbatim from the decision of a unanimous Supreme Court. Moreover, it is not correct to say that the standard requires " divination" of what will happen in a discussion. Rather, what the 1
rule envisions is that it a discussion begins to evolve from the preliminary exchange of views i-
M 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 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.
Resoonse: That asument 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.
K. Comment: Whether or not legally justifiable, the NRC's action will diminish public confiden,ce in the Commission.
Response
The Commission was aware of this possibility at the time it issued the May 10,1999, document, but it believes that the legal and policy reasons for its action -- compliance with the Supreme Court's guidance, and the expected benefits in collegiality and efficiency, make this a desirable course of action, even if -- despite the Commission's best efforts to cxplain its reasoning -- some persons misunderstand or disapprove of the Commission's action.
8 Every Commissioner who meets one-on-one with an interested party to a matter b; fore 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 r : son why Commissioners could not equally well halt discussions among themselves that s::m likely to cross the line separating non-Sunshine Act discussions from meetings."
- y. *' l 3 .
'i e
It is also possible that the potential enhancement of collegiality and the potentialimprovement in Commission decision-making that may result from non-Sunshine Act discussions will ultimately increase the public's confidence in the Commission's actions. .
i L. Comment: The NRC did not follow the recordkeeping recommendations of the American Bar Association.
89soonse: It is true that the Commission did not follow the American Bar Association's recommendations with respect to recordkeeping. 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 10,1999, document reflected a judgment that Congress would not have given agencies latitude i
to hold this type of discussion free of elaborate and burdensome procedures if it had not viewed i such procedures as undesirable. Nonetheless, as described in the response to Comment E i
l above, the Commission has decided to maintain a record of the date, participants in, and i subject matter ci all non-Sunshine Act discussions for at least the first six months in which the rule is implemented, and it will not discontinue the practice thereafter without advance notice to
' the public, !
M. Comment: No harm could result from holding briefings in public session, and doing so would benefit public understanding.
Resoonse: 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 he cxempt from the Sunshine Act's scope, but said that the Commission did so much of its b
- . ; .7 .. ,
y?
important work in briefings that as a' policy matter, it believed these should be open to the public. This argument is not insubstantial. In part for that reason, th'e Commission affirms once again what it said in its May 10,1999, document and earlier in this present document, namely, that its objective is not to turn discussions now held as " meetings"into non Sunshine Ac'c
. discussions.- Rather, the intent is to ensure that the Commission is not categorically required to apply the Sunshine Act's procedural requirements to every briefing, including such things as routine status updates, where the benefit to the public would be small compared to the administrative burden and loss of efficiency in doing day-to-day business.
In sum, the NRC believes, based on its review of the comments received on the May 10,
- 1999, document, 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 10,1999, document, and as further clarified in the present document, 30 days from the date of this notice.
For the Nuclear Regulatory Commission bfA g % \j, A - Q' V Annette Vietti-Cook, Secretary of the Commission.
l w
Dated at Rockville,' Maryland, this l L day of July,1999.
l
} ; ENCLOSURE 2 QUESTION 1. In a May 21,1985 hepring before the House Subcommittee on Eneh Conservation and Power it was testified that more than one-third of Commission meetmgs 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 exhcahon, 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 four times; and Exemption 9 once.
E.1998: 62 meetings,49 open (79%),13 closed (21%). Of the 13 closed sessions, 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%). Of the 12 closed sessions, Exemption 1 was invoked three 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 (Attachment 1).
QUESTION 2. The recent Commission vote on implementing the rule was based og a November 27,1998 memorandum from 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 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 (Attachment 2).
I l
1 l
I l
l i
l QUESTION 3. The May 10,1999 Federal Register Notice states that 'the Commission is not ;
proposir.g to close any meetmgs currently held as open public meetMgs." l However, the 1985 rule seems to redefine some gathenngs 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 j statement about current public meetings? What Commission meetings over the l
past three years could have been excluded from the 1985 rule's definition of a .!
" meeting"? j i
ANSWER Although it was the December 15,1998 memorandum from Commissioners McGaffigan and Merrifield that initiated the Commission'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 msde clear, the objective is not to tum 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. l 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 - )
j
' ~
e.g., informal, preliminary discussions by three or more Commissioners - that would previously o
have been considered " meetings under the Commission's restrictive and erroneous l interpretshon of' meeting" prior to the Supreme Court's decision in_LU." It did so, however, to make it possible for the Commission to begin holding such discussions, not because such
, discussions were already occurring as Sunshine Act meetings.
I l
!. l i
i I
I i
l i
L'
l, ~
QUESTION 4.The memo on which the Commission voted stated that 'the agency will maintain a record of the date and subject of, and partopants in, all non-SunsSne Act informal gathenngs 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.
As stated in the May 10 Federal Reaister notice, the Commission will maintain a record of the date and subject of, and participants in, any scheduled non-Sunshine Act discussions that three l or more Commissioners attend.
With regard to your question as to the basis for the NRC's evaluation of record-keeping after six l months, the Commission will consider the totality of the circumstances, including both its own !
l perceptions and those of persons who follow the NRC's activities. The Commission committed j in the July Federal Reaister notice not to discontinue this record keeping in the absence of i advanced notice to the public.
i l
QUESTION 5.The memo on which the Commission voted cites as a reason for thgstimeliness 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 depa:ture 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?
ANSWER The December 15,1998, memorandum from Commissioners McGaffigan and Merrifield did indeed include an incidental allusion to former Representative Eckart. That memorandum, read in its totality, makes clear that the two Commissione9' proposal was motivated by concems of good govemment and legal correctness, not politics. At the same time, they offered their candid view that concem about the proposal might be less intense than it had been in 1985. There was nothing inappropriate about making such an observation.
The Commiss.on'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."
1
?, .
QUESTION $ Under the 1985 rule could the full Commission invite repre.ent.tivgof a licensee or of the Nuclear Energy institute (NEI) for a general discussion about how easing government regulations could assist the nuclear power industry, and do so wthout public notice, wdhout 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 meeting, how could the public ever find out?
ANSWER 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 excaptions, e.g., representatives of the regulatory body of a foreign nation, or a state regulator, in the July Federal Reaister notice, the Como ission committed not to hold any non-Sunshine discussions with representatives of licensees cr of organizations who could be considered interested parties to NRC adjudications, ruler,taking, or development of guidance.
t
g .
QUESTION 7.On a related openness issue: a May 3,1999 letter from Alex Mariogpf 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 security reasons)?
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 iEva-tetkes 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
' Communications Program." The NRC held a public meeting on July 17,1998, to receive and discuss stakeholder concems 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 held on April 22,1999, between the NRC and NEl, the staff fonwarded a draft version of
' SECY-99-143 to NEl and also made the draft SECY paper available in the Public Document Room (PDR). The staff verified that the draft SECY document was in fact available in the PDR on April 7,1999. At the April 22 meeting, the staff discussed the proposed improvements to the generL commur,ications program, made copies of the draft SECY paper availaLe to all who attended, and solicited comments from those who amended
~ 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 thz t 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 regu'ated industry, so that they can effectively participate in the regulatory processes. The NRC will continue to r,nsure that the broadest spectrum of individuals can obtain or have access to information that is the subject of regulatory reform, policy, or practice.
j
- b. .
' " .~ '
ATTACHMENT 1
.s UNITED STATES L, ,jE"" %,4 - NUCLEAR REGULATORY COMMISSION E o. WASHINGTON, D.C. N1 c s .
.e
\,*****/ March 5, 1999 CHAIRMAN The Honorable Albert Gore, Jr.
President of the United States Senate Washington, D.C. 20510
Dear Mr. President:
In accordance with Public Laws94-409 and 104-66 (5 U.S.C. 552b(j)), I am enclosing the U.S. Nuclear Regulatory Commission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1998.
Sincerely, d+
Enclosure:
As stated
}Y ff
1
'- l jd# "*% UNITED STATES p t NUCLEAR REGULATORY COMMISSION
<< E WASHINGTON, D.C. 20061L4001 5 ,g
.,,,, / March 5, 1999 l CHAMMAN l l
The Honorable J. Dennis Hastert Speaker of the United States House of Representatives Washington, D.C. 20515
Dear Mr. Speaker:
In accordance with Public Laws94-409 and 104-66 (5 U.S.C. 552b(j)), I am enclosing the U.S. Nuclear Regulatory Commission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1998. l Sincerely, j Shirley Ann Jackson
Enclosure:
As stated u
see ANNUAL REPORT GOVERNMENTIN THE SUNSHINE ACT
- 1. AGENCY NAME: U.S. Nuclear Regulatory Commission
- 2. CALENDAR YEAR: 1998
- 3. The NRC made no changes in its policies and procedures related to the Govemment in i the Sunshine Act during 1998.
)
- 4. MEETINGS: (See definitions in Appendix A)
(January 1,1998 through December 31,1998)
A. Total Number of 0 pen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 (79%)
B. Tota! Number of Closed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 (21 %)
C. Total Number of Partially Open/ Closed . . . . . . . . . . . . . . . . . . . . . . . 0(0%) !
Total Number of Meetings . . . . . . . . . . . . . . . . . . . . . . . . 62 The above meetings are counted by the number of separate agenda topics discussed as described in Appendix A. Appendix B contains a tabulation of open and closed meetings per month for CY 1998. Throughout this report, meeting numbers quoted are counts of individualitems.
l
- 5. EXEMPTIONS USED FOR CLOSING OR PARTIALLY CLOSING MEETINGS: )
(Number of Times Used)
( A. Exe m ption 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 l Exe m ption 5 & 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Exemption 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Exe m ption 9 . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 l
g Tot al . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 l l
b u
L ~
L . ._ ' . i
- 6. DESCRIPTION OF LITIGATION AND FORMAL COMPLAINTS:
i" l There were no Government _in the Sunshine Act cases involving NRC filed or otherwise in litigation during 1998. There were no formal complaints filed in 1998 related to closed Commission meetings and no requests to open a closed Commission meeting were received.
- 7. ADDITIONAL INFORMATION:
This report was prepared in the Office of the Secretary, U.S. Nuclear Regulatory Commission. Comments or inquiries on this report or related matters should be addressed to:
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone inquiries can be made to the Office of the Secretary by dialing (301) 415-1968.
APPENDICES:
A. Definition of Meetings B. Tabulation of Open and Closed Meetings by Month C. Tabulation of Meetings by Days' Notice
- ATTACHMENT:
A. STAFF REQUIREMENTS - COMEXM-98-006/COMJSM-98-001 - SUNSHINE ACT PRACTICES l
1 ti I_
~'
APPENDlX A 4;
Definition of Meetina 1
NRC's Statutory Meetino Reauirement The Nuclear Regulatory Commission is a five-member independent regulatory commission )
established by the Energy Reorganization Act of 1974 (P.L.93-408). It is responsible for !
ensuring the protection of the public health and safety through the licensing and regulation of the uses of nuclear materials. Section 201(a)(1) of the Energy Reorganization Act,42 U.S.C. )
5841 (a)(1), provides that '{a]ction of the Commission shall be determined by a majority vote of the members present." in order to conduct meetings under the Government in the Sunshine Act, a quorum must be present.
Meetinos Defined by Sunshine Act Under NRC regulations, revised in 1985, a " meeting" is defined as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before I the agency. Deliberations required or permitted by @ 9.105,9.106, or 9.108(c) do not constitute ' meetings' within this definition." (10 CFR Section 9.101(c) of NRC's Sunshine Regulations) Although this definition would properly allow some discussions among three or more Commissioners to be held in a non-public setting, the Commission had not implemented this regulation through CY 1998. For CY 1999, the Commission has asked the NRC Office of General Counsel to prepare a notice of intent to implement this Sunshine Act rule which was issued and made effective in 1985. See Attachment A.
For the purpose of tabulating meetings in this report, NRC follows the practice of the l Commission for scheduling topics for Commission discussions. Generally one agenda item is )
scheduled for each discussion or briefing session. Accordingly, each session is counted as a i separate meeting under the NRC method of tabulating meetings in this report even if several discussions or briefings occur on the same day. Appendix B includes counts of meeting statistics reported using the above definition and methods.
j- -
APPENDlX B TABULATION OF OPEN AND CLOSED MEETINGS BY MONTH CY 1998 Open Closed Open/ Closed Total Jan 2 1 0 3 Feb 2 1 0 Mar 4 3 0 7 Apr 6 1 0 7 1
May 2 2 0 4 Jun 9 1 0 10 Jul 5 0 0 5 Aug 'S 1 0 6 Sep 7 '
i 0 9 Oct 1 0 0 1 ;
Nov 4 . 0 5 Dec 2 0 0 2 Year to Date 49 13 0 62 l
l l
I
T' APPENDIX C l t TABULATION OF MEETINGS l BY DAYS' NOTICE January 1,1998 - December 31,1998 DAYS' NOTICE OPEN CLOSED OPEN/ CLOSED TOTAL 12 or more 32 9 0 41 11 0 0 0 0 10 0 0 0 0 9 0 1 0 1 8 0 0 0 0 7 6 0 0 6 Subtotal 38 10 0 48 6 0 0 0 0 5 1 0 0 1 4 1 0 0 1 3 0 1 0 1 2 0 0 0 0 1 0 0 0 0 Less than 1 9 2 0 11 Subtotal 11 3 0 14 i
GRAND TOTAL 49 13 0 62 !
i I
l L
l l
I' - - Attachment A s cec-UNITED STATES I k7 NUCLEAR REGULATORY COMMISSION l
'n WAsHINGioN. D C 20555-0001 l g g p #
% 8 February 24 1999
' OFFICE OF THE -
SECRETARY !
MEMORANDUM TO: Commissioner McGaffigan '
Commissioner Mernfield FROM: Annette L Vietti-Cook ,. g _ j p . a j u
SUBJECT:
COMEXM-98-006/COMJSM-98-001 - SUNSHINE ACT PRACTICES This memorandum is to inform you that the Commission has agreed to your proposal to move toward practice consistent with the 1985 Federal Register notice and the rules,10 CFR 9.101(c) ,
in particular, that embody the analysis in that notice, and has requested the General Counsel to l prepare a notice o' the Commission's intent to implement the rule which considers the American Bar Association study results and the public comments on the rule. See memorandum attached. ]
This completes action on COMEXM-98-006/COMJSM-98-001
Attachment:
! As stated l
l i cc: Chairman Jackson Commissioner Dieus l-Commissioner Diaz EDO ,
OGC-440 3 n r2+ /r _
' ^
- 40 UNITED STATES T *1 NUCLEAR REGULATORY COMMISSION i lj- j WAsmNGioN D C 20555-0001 e .e February 24 1999 oo ..* /
OFFICE oF THE sECRETAny MEMORANDUM FOR. Karen D. Cyr General Counsel FROM: Annette L. Vietti-Cook. Secretary n, -y , # ut. ~
SUBJECT:
STAFF REQUIREMENTS - COMEXM-98-006/COMJSM-98-001 -
SUNSHINE ACT PRACTICES
'The Commission has considered your memorandum on November 27,1998, SUNSHINE ACT PRACTICES, and has agreed to move toward a practice consistent with the 1985 Federal Register notice and the rules.10 CFR 9101(c) in particular, that embody the analysis in that notice.
Therefore, consistent with your recommendation, the Commission requests that you prepare, no later than 30 days after issuance of this SRM. a notre of the Commission's intent to implement the Sunshine Act rule wnich was issued and made effective in 1985. The notice should consider and discuss.the Amencan Bar Association study results and the public comments on the 1985 rule and should provide a short penod (e g 30 days) for additional public comments before the Commissinq would implement the rule (OGC) (SECY Suspense: 3/26/99)
In addition, the staff should prepare letters to Congress to be sent before the Commission 1 implements the rule. The letters to Congress should include the notice of the Commission's intent to implement the rule that is proposed to be issued for public comment and should explain, with concrete examples, the kinds of non-Sunshine Act discussions that will be held by the Commission when it implements the rule. The letters should also state that, for the first six .
month period in which the Commission implements the rule, the agency will maintain a record of l the date and subject of, and participants in any scheduled non-Sunshine Act discussions that three or more Commissioners attend After the six-month period, the Commission will revisit the usefulness of the record keeping practice.
It is not the Commission's intention to treat any public meetings currently being held under the internal Commission Procedures as non-Sunshine Act discussions. Examples of the types of discussions sought to be held include, but are not limited to, generalized " big picture" discussions; preliminary, exploratory discussions that generate ideas (these ideas, if followed up with specific proposals, would become the subject of later " meetings" within the meaning of the Sunshine Act); spcntaneous, casual discussions of matters of mutualinterest; briefings in which the Commissioners are provided information but do not themselves deliberate on any proposal ,
for action; discussions of business-related matters not linked to any particular proposal for Commission action; and discussions to enhance the effectiveness of intercommunications between and among Commissioners and their officei
~17Dl y" s
hf
, bi fI cc: Chairman Jackson Commissioner Dieus Commissioner Diaz Commissioner McGaffigan Commissioner Memfield EDO .
t l
l l
1 l
l I
1
4 .
m
. UNITED STATES
~~
NUCLEAR REGULATORY COMMISSION 1 WASHINGTON, D.C. 20000-4001
,, }
% February 25, 1998 5 The Honorable Albert Gore, Jr.
President of the United States Senate Washington, D.C. 20510
Dear Mr. President:
In accordance with Public Laws94-409 and 104-66 (5 U.S.C. 552b(j)), I am enclosing the Nuclear Regulatory Commission's Annual Report of the Administration of the Govemment in the Sunshine Act for Calendar Year 1997.
Sincerely, pt 1 .
Enclosure:
As stated 40W 3 f[
i
~
. 'N UNmED STATES p \ NUCLEAR REGULATORY COMMISSION
< WASHINGTON, D.C. 305E54001 S "
..... February 25, 1998 CHAfuWW The Honorable Newt Gingrich l Speaker of the United States ;
House of Representatives I Washington, D.C. 20515 1 Dear Mr. Speaker l l
In accordance with Public Laws94-409 and 104-66 (5 U.S.C. 552b(j)), I am l enclosing the Nuclear Regulatory Commission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1997.
Sincerely,
& !~
Enclosure:
As stated 1
I I
1 l
, i
3.' .
i
. ANNUAL REPORT W
GOVERNMENT IN.THE SUNSHINE ACT
- 1. AGENCY NAME: U.S. Nuclear Regulatory Commission
- 2. CALENDAR YEAR: 1997
- 3. The NRC made no. changes in its policies and procedures related to the Government in the Sunshine Act during 1997.
- 4. MEETINGS: (See definitions in Appendix A)
(January 1, 1997 through December 31, 1997)
A. Total Number of Open .......................... 69 (83%)
B. Total Number of Closed ........................ 14 (17%)
C. Total Number of Partially Open/ Closed ......... 0 (0%)
Total Number of Meetings .................. 83 The above meetings are counted by the number of separate agenda topics d'iscussed as described in Appendix A. Appendix B contains a tabulation of open and closed meetings per month for CY 1997.
Throug!.out this report, meeting numtars quoted are counts of individual items.
- 5. EXEMPTIONS USED FOR CLOSING OR PARTIALLY CLOSING MEETINGS:
(Number of Times Used)
A. . Exemption 1 ....................................... 7 Exemption 5 & 7 ................................... 4 Exemption 2 ....................................... 2 Exemption 9 ....................................... 1 Total ........................................ 14 l
p
- .. i SS f 1
- 6. DESCRIPTION OF LITIGATION AND FORMAL COMPIAINTS:
There were no Government in the Sunshine Act cases involving NRC filed or otherwise in litigation during 3997. There were no formal j complaints filed in 1997 related to closed Commission meetings and no i requests to open a closed Commission meeting were received.
- 7. ADDITIONAL INFORMATION:
This report was prepared in the Office of the Secretary, U.S. Nuclear Regulatory Commission. Comments or inquiries on this report or related matters should be addressed to:
Office of the Secretary U.S. Nuclear Regulatory Commission Nashington, D.C. 20555 Telephone inquiries can be made to the office of the Secretary by dialing (301) 415-1968.
{
i i
APPENDICES:
A. Definition of Meetings B. T bulation of Open and Closed Meetings by Month C. Tabulation of Meetings by Days
- Notice 1
l l
I
. APPENDIX A 9
l s Definition of Meetina l
j MRC's Statuterv Meetine Reauirement The Nuclear Regulatory Comission is a five-member independent regulatory commission established by the Energy Reorganization Act of 1974 (P.L.93-408). It is responsible for ensuring the protection of the public health and safety.through the licensing and regulation of the uses of nuclear materials. Section 201(a) (1) of the Energy Reorganization Act, 42 U.S.C. 584 (a) (1), provides that " action of the Commission shall be taken by a majority vote of members present." In order to conduct meetings under the Government in the Sunshine Act, a quorum must be present.
Maatinas Deffned by Sunshina Act Under NRC regulations, revised in 1985, a " meeting" is defined as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in'the joint conduct or disposition of: official Comission business; that is, where discussions are
.sufficiently focused on discrete proposals or. issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by Secs.
9.105, 9.106, or 9.108 (c) do not constitute ' meetings' within this definition." (10 CFR Section '9.101(c) of NRC's Sunshine Regulations)
Although this definition would allow some deliberations to be held in a non-public setting,' the Comission has chosen to treat all discussions of agency business by a quorum of Commissioners as
" meetings" for Sunshine Act purposes'.
-For the purpose of tabulating meetings in this report, NRC follows the
. practice of the Comission for scheduling topics for. Comission discussions. Generally one agenda item is scheduled for each discussion or briefing session. Accordingly, each session is counted as a separate meeting under the NRC method of tabulating meetings in this report even if several discussions or briefings occur on the same day. Appendix B includes counts of meeting statistics reported using
<the above definition and methods.
APPENDIX B TABULATION OF OPEN AND CLOSED MEETINGS BY MONTH CY 1997 Qpr.n Closed Open/ Closed Total Jan 9 2 0 11 Feb 7 2 0 9
, 4 Mar 4 2 0 6 Apr 5 0 0 5 MaY 14 2 0 16 Jun 5 1 0 6 Jul 0 o o o Aug 5 2 0 7 Sep 5 0 0 5
.Oct 7 0 0 7 Nov 3 2- 0 5 Dec 5 1 0 6 l
l.
Year to Date 69 14 0 83
r-APPENDIX C yi l
TABULATION OF MEETINGS i BY DAYS' NOTICE l
January 1,1997 - December 31,1997 l
DAYS' NOTICE OPEN CLOSED OPEN/ CLOSED TOTAL 12 or more 52 8 0 60 11 0 0 0 0 10 0 1 0 1 9 0 0 0 0 8 0 0 0 0 7 1 1 A 2 Subtotal 58 10 0 f. T 6 1 2 0 3 5 2 0 0 2 4 0 1 0 1 3 1 0 0 1 2 0 0 0 0 1 0 0 0 0 Less than 1 2 1 A A Subtotal 11 4 0 15 I
GRAND TOTAL ga n g n !
I l
L ..