ML20216D724

Discusses Sunshine Act Practices.Ogc Could Prepare Notice & Final Rule in 30 to 60 Days

ML20216D724
Person / Time
Issue date:	11/27/1998
From:	Cyr K NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Diaz N, Dicus G, Shirley Ann Jackson, Mcgaffigan E, Merrifield J, The Chairman NRC COMMISSION (OCM)
Shared Package
ML20216D691	List: ML20216D685 ML20216D699 ML20216D724 ML20216D758
References
FRN-64FR24936, RULE-PR-9 NUDOCS 9907300082
Download: ML20216D724 (10)

Text

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ATTACHMENT 2

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• UNITED STATES NUCt. EAR REGULATORY COMMISSION wasuneorow, o.c. zeses.eesi ,

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\...,,/ November 27, 1998 omesormE GENERAL counsel MEMORANDUM TO: Chairman Jackson Commissioner Dieus Commissioner Diaz Commissioner McGaffigan Commissioner Merrifield FROM: Karen Cyr N GeneralCo nsel

SUBJECT:

SUNSHINE ACT PRACTICES A question has been raised regarding whether the Commission has the flexibility to have three or more Commissioners (a quorum) attend, for example, routine staff briefings without violating -

the Sunshine Act. It appears that most such gatherings of this nature are permissible under the Act and under NRC's currently effective " interim" implementing regulations, but as i explain below, we believe it would be prudent for the Commission to first publish a final rule on the matter.

In 1985 the Commission amended its Sunshine Act regulation,10 CFR 9.100 et seg, to align its definition of meetings subject to the Act with the U.S. Supreme Court's guidance provided in FCC v. ITT World Communications,466 U.S. 463 (1984). It promulgated an interim rule, made immediately effective, which changed the definition of " meeting" to exclude additional gatherings of Commissioners from the requirements of these regulations. (Attachment 1) This more limited definition of what constitutes a meeting is the one currently codified in 10 CFR 9.101(c).

Prior to that amendment, the term " meeting" had been defined as follows:

' Meeting" means the deliberations of at ! east a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official business, but does not include deliberations required or permitted by SS 9.105, 9.106, or 9.108(c),' gatherings of a social or ceremonial nature, or briefings of the Commission by representatives of other agencies or departments of the United States govemment, or representatives of foreign govemments or intemational bodies where such briefings or discussions are informational in nature and are

'These three sections refer to procedures for implementing the Sunshine Act itself, and have no bearing on the Commission's conduct of its everyday duties under the Atomic Energy Act, Energy Reorganization Act, and other statutes.

9907300082 990719 FDR PR 9 C4FR24936 PDR 4

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W not conducted with specsfic reference to any particular matter then pending before the Commission. ,

in the ITT case, the Supreme Court shed light on the type of meetings which fall within the statutory definition of' deliberations [that] determine or result in the joint conduct or disposition of official agericy busmess." 5 U.S.C. 6 552b(a)(2). The Court stated:

This statutory language contemplates discussions that ' effectively predetermine official actions " See S. Rep. No'.95-354, at 19; accord id., at 18. Such themanians must be "sufficiently focused on discrete proposals or issues as to cause or be hkely to cause the individual participating member to form reasonably firm positions regarding matters pending or likely to arise before the agency." R.

Berg and S. Klitzman, An interpretive Guide to the Govemment in the Sunshine

- Act 9 [1978][ hereinafter Interpretive Guide].

The 1985 Commission rule incorporated vert >atim the Supreme Court's language in the iTT decision. The exceptions for " social and ceremonial" gatherings and for informational briefings by other agencies or intemational organizations were dropped, since under the amended rule they would be redundant. . The Commission reasoned that the change would have beneficial

effects and would improve its ability to do the public's business. ,

The ability to hold informal preliminary briefings can help assure that Commissioners are well informed about subject areas well before any

- particularized proposal reaches them for consideration. The ability to hold free-f' wing discussions of a variety of problems likely to face the agency, or to get together for brainstorming sessions, can foster both collegiality and sound management. It is through such generalized background discussions that Commissioners can decide what topics should become the subject of more particularized proposals, discussions of which would fall within the Act's defc.. ,on of " meeting."

50 Fed. Reg. 20890 (May 21,1985). The Commission perceived that under the amended rules, Commission " gatherings" involving such things as a general background briefing by the NRC staff on a technical issue common to a number of plants; informal discussion of problems likely

.to face the agency in the coming year, a discussion of the effectiveness of a particular office in meethg the Commission's needs, and a discussion of the state of relations between the Commission and its oversight committees or with other govemment agencies could be held without applyng the Sunshine Act.

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[ c The rule was made effective on an interim basis in order to l

improve the conduct of Commission business in the interim by facilitating the flow of information to the, Commission and fostering ,::ollegiality, but will also enable the Commission to gain some limited experience with the rule change before l making any decision on the final rule.

l -L l 50 Fed. Reg. 20891 (May 21,1985).The interim rule met with a storm of criticism from Congress and the media. (Attachments 2 & 3) The initial agency response was a modest retreat

[ - the Commission promised the Congress by letter that it would maintain a record of all informal gathenngs and keep the Congress informed on a monthly basis of the nature of such  !

gatherings. (Attachment 4) Subsequent to this commitment, however, Representative Dennis i

Eckert of Ohio offered an amendment to an NRC authonzation bill that would have barred the l l Commission from using appropriated funds to implement the rules. Although the legislation was

_ not adopted, the Commission itself decided to defer implementation of the interim rules until it considered public comments and the results of a planned ABA study on the impacts of the Sunshine Act. The Commission informed the Congress ofits decision to defed >lementation in numerous Annual Reports on the agency's Sunshine Act implementation tha + are issued

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from 1986 through 1992. (Attachment 5)

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A brief review of the Sunshine Act regulations fer Other agencies has identified sixteen j agencies,2 for which the definition of a meeting does not go beyond that of the statutele.,

deliberations of a quorum of members "where such deliberations determine or result in the joint  ;

conduct or disposition of official agency business." Four agencies, the National Transportation Safety Board, the Occupational Safety and Health Review Commission the Federal Election ,

. Commission and the Defense Nuclear Facilities Safety Board, have included some additional  !

criteria to exclude certain gathenngs from the definition of a meeting. (Attachment 6)  !

The agency's interim rules on the Sunshine Act are currently effective and could be  ;

implemented by the Commission at this time. However, in view of the Commission's previous  !

repeated representations to Congress, that it was deferring implementation of the interim rules,  !

we believe it would be prudent for the Commission to proceed to consider the' ABA's study results and the public comments on the interim rule and to publish final rules before implementation. For this purpose, OGC couid prepare a notice and final rule package in 30 to 4

i

' Equal Employment Opportunity Commission, Tennessee Valley Authority, Federal i Energy Regulatory Commission, Securities and Exchange Commission, Commodity Futures  ;

. Trading Commission, Consumer Product Safety Commission, National Credit Union j

' Administration, Export-import Bank, Federal Retirement Thrift investment Board, Legal Services i Corporation, Marine Mammal Commission, Federal Housing Finance Board, Foreign Claims  !

Settlement Commission, National Commission on Libraries and Information Science, Federal Communications Commission and Federal Trade Commission. '

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• 4 9 60 days. That final rule package could provide a short period for additional public comments before the Commission would implement the final rules.

Attachments: 1. Statements of Consideration for Rule

2. Ltr dtd 6/3/85 fm Committee on Energy and Commerce to Chrm Palladino

3. Lir did 6/6/85 fm Congressman Eckart to Chrm Palladino

4. Ltr dtd 6/6/85 fm Chrm Palladino to Hon. J. Dingell

5. Ltr dtd 4/21/92 fm Chrm Selin to Hon. J. Danforth Quayle

6. Miscellaneous Regulatory Provisions cc w/ attachments: EDO SECY OCAA CIO CFO l

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ATTACHMENT 1 l

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E PART 9 e STATEMENTS OF CONSIDERATION g

' ar.Plantsede yg amey3,g unanimous 19e4 deciolon of the United States Supreme Court in Fedeml e analrale would revise the fee 5 55a(s)(4XA)regelree the NRC, se a Conununicottons Commission v.177 dele set forth in10 CFR S.14(a) to agency,lopecmalgete WorldCommunlcations.-U.S.

re6 g thenewprices for the copying of -- - ". . . ,

NR' - " that have resulted fmm the sc d

. In-s- of fees applica=h.e toa aB unform 104 S.Ct.1936. He Commission believe's that this change would serve to sh"of the new contract for the consti units or each agency."

(em ha added).%erefore,no effectuate the Congressionalintent that

. r of records at the PDR.In background bdefings and generalized

$ 8.14(a)(5)of the finalrule sie any differen6alimpactson discussions of agency business not be foranyfuture changesin en ala secusary, considered" meetings"forSunshine Act charges to become immediately Paperwerk Act Statement purposes, and that adherence to

'for thelatedm period pending standards willbel assum osaple of the r'=ntasion's %1s anal contains no information statutogerintention for collocuen ments and therefore la bothi e to establish the howfee Commissioners and greater co!!egiality This provision wG1 ensure that not subject to erequirementsof the Paperwork Re on Act of1980(44 in their performance of their duties.no the full action cost willbe borne rule change willbe applied on an by the son requesting the records', U.Sc 3501 at ).

interim basis, pending submission and and 4 require the NRCto  ! Jet of Subjects 8 CFR Part s evaluation of comments and publication ambaldisel costs dudag the Preedom ofinf of a finalrule.

tion Penalty, latede po' Pdvacy Reporting d recordkeeping errscriva oATE ne rule change will be he Sqal sie willalso delete those requirements, e Ad. effective on an intedm bests on May 21, provistens a 'i S.14(a) that do not For the reasons set utin the 1965. Comments on whether the interim pertain O th price to be charged for the preamble and under authorityof the rule change should be made final must copying of Accordingly, the Atomic Energy Act of1 as amended. be received on or before June 20.1985.

name and ad ress of the current Comments contractorin 9.14(a)(3X11) and the the as = y=M and 5 U.S.Reorganlaati

3. the NRC Act of1974. received after this date will be considered if it is practical to do so.

billinginforms}ionin 6 9.14(a)(1Xv)and is adopting the following endments to but assurance of consideration cannot i 5.14(:X3XII) . vs been deleted.In the 10 CFR Part 9. be glven except as to comments future, this inf ation willroutinely be received on or before this date.

ava!!able from aPDR. AcoRessts: Interested persons are y' In addition to e above revisions, all '48 F R 31259 Invited to send written comments or of which were p posedin the rederal Published 8/6/84 suggestions to the Secretary of the '

ResisterNWice June 21.1984, the NRC Effective 8/6/84 Commission. U.S. Nuclear Regulatory Staff has recomm nded that the charge Comm! slen, Washington, D.C. 20555, specilled in i 9.14 Attentioru Docketing and Service of records atloca ms)other than theXI forthecopying 10 CFR Part 9 Branch. Comments may also be PDR confonn to th new charge delivered to Room 1121.1717 H Street.

laI 4 1 forthe copying Charges for.the Productiori of Recorde , ", "f f, 6pecC! din these tp sec6on ve Correcflon documents received may be examined traditlocally been th ! samein order to at the NRC Pub!!c Document Room.1717 afford equitable tres to those In FR Doc. 8440177,beginning on H Street.NW., Washington, DC 20555.

pomons whh accus b PDR ad page 30457. In the issue of Tuesday, July FOR PURTHER INFORMATION CONTACT:

those who do not har access to the 31.1964, on page 30458 g the first . peter Crane, O!!!ce of General Counsel.

PDR.In order to main iln this policy, the column. in Paragraph "1. . la the United States Nuclear Regulatory l Saal rule has revised 9.14(bX1) to authority for Subpart A,in the second Commission ' Washington. DC 20555. .

specify c charge of sev4 cents per page. line."21 U.SA 9710" should tead "21 telephone: 202-634-1455.

%e finalrild willbe stely UE "I

• effective upon publica n.ne 'I .

l Commdssion believes th griod cause FR 20889 sUPPLEMENTARv INFORMATl08C The l suists under 5 U.Sc 553 )(3) to walve PubHshed 6/21/85 NRC's current Sunshine Act regulations the usualso day delayin effcetive EHativ""a lat** (10 CFR l 9.100-109), define a " meeting" date ofc finalrale. Users the PDR buis on 5/21/85 as follows, at to CFR i 9.101(c):

were nottfled onMay22, that a %eting" means the deliberations of et new contractwas being a ed and 10 CFR Part 9 leest a quorurn of Comunissioners whers sur.h were notlSed on June 8,1 of thenew delibersuons dstermine or ruult in the lotat-contract pdcoa.%erefore, ofthe Governmentin the Sunshine Act conduct or disposition of official business.

PDRhad a reasonable ty to Regulations but dou not include delibersoons required or prepare for the revised e permitted by li s.1os, s.104. or s.10s(c).'

AstNev: Nuclear Regulatory contalad to tids Baalrule. addlum Commisslon.

thwinsa of a sodal or ceremonial nature or j 6e NRC has been es b erings of the Commission by gggerenos la cost between fee ACTIO#c Interim rule with request for pie tv no ale, comments,

Ladata and the new fee or repreuntauves 'of foretsa governments or Pending the effecure data of naal internationalbodies where such briefings or svuuARY:ne Nuclear Regulatory rule. As t==anHate effective will Commission is making an interim rule discussions are informationalla nature and l

eliminate the Manecessary cos '

d Change to conformits definition of a through this continued subeldy, d will " meeting" under the Govemmentin the Pl ace fullreproduction costsen '""'""

Person requesting the records. Sunshine Act (5 U.SC 552b) to the ""

statutory intent, as clarified in the CNae$u."*"*" &senebd*"'d" '" '"

ofits everyday deuse seder the Atonde Energy Act.

FJoerg) Reorganisation A*A and other statutes.

ATTACHMENT 1

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PART 9 o STATEMENTS OF CONSIDERATION

' me est esadesud with spesas suseroma te wrhien by) sues powell. reversed the eny & Courtmeted abad!Thadnot

""pesander

'" " mener has pameng before she D.C. Clreulfs boldlag. Its disonesios 'of ausged abet theConferemos sessions the mesalas of"meeung"under the included fesma! estica en applications it wtB et oncebenoused that Ibe only Sunshine Act is worth quoting et some type of brieAng wbh6 is explicitly before the FCC,mer that the sessions length.

eneaged from the dennitica of *msuhed la fina positions en particular "meellag"is a briefing by a coegpeule drdung se Acre dannidon g mattom pending erlikely to artes besme representative of another egency or "mudag"r aar=a ad that the = Maw stive the Comedites. Rather, the conferemos process cannot be conducted entirely in the sessions "provided general background department or a foreign or internstional public eye. "lIlnformal becayeround body.!Jhewise, the only type of inforination to the Comunissioners and discussions lib,etl clarify issues and expose "gethering" of f%==taaloners whichle wylng vism en a sucenery part M en permitted thest to espge with their empressly exempted from the definition egnacy's wwk. Su 8. RepEeJ444. em foreign coasterparts m an exchange of is one of a " social or ceremonial I4 ** ^* P"**d"'*I "9"'""" views by which decisions already nature."hs under the NRC's ',"j" "" ' ***"'" reached by theca==la=3aa could be nemistions, the types of Implemented."he Court added:"As we meetings would au be lect to the winest D *" h D uone beve acted. Congress did not latend the signincas secues seabteX thentwoliedte the Act's t.

8h==h6 Act's meeting requirements: a - S'=ahw Act to encompass such application to meetings "wiwre et lent a disn'a-ha "

seneral back brieGag b querem of the agency's staff an a lealIsees an==y the KitC memben ; . . soodnet er dispow of official no Court observed that the DC an to a aumber of plants: Infonnel dianniastaa of "8'"*y h=a=== " 8. Rep. No.96-464. el 2. Circuit had not found that the FCC rs problems likely to face the agency in the in a footnote, the Court reviewed the lamaaa=s at the conference were coming year:a discussion of the actually deliberating on anatters within pertinentlegislative history: their fonnally delegated authority:

discuvenus of a pardcularoffice in meeting the Comadasion's needs; acd a ne evolutlee of the statutory Innauc6, rather, the lower court had inferred an discussion of the state of relations reflects the congressionslintent precisely to authority, shot formally del ated. to define thelimited scope of the statute's engage in nis--saan on between the Cornmission and its of the requiremente. See genersuy. HJt. Rep. No.

oversight committees.or with other 96-eso, part 2. at 14 (1970). For exemple, the f%==lanlan Thelowercourt "then government agencies.lt la the concluded that these discussions were Senate substituted the tena "delitierstions" Commission's view that the Supreme dellberations that resulted in the Courrs 1984 decisioninICCv 177 forgtheonely

• • proposed term *-

8'88"ultannus communia uont conduct of o!!icial agency businen, as WorldCommunications.-U.S.

104 S.Ct.1930. strongly suggests that 1

,, f 2d Cong8'"ie 8

I so1[el its7s)-in order to " exclude many the discussions 'playled] an integral rolc In the fM==lasion's policy-making g nine of these toples necessarily falls Processes?[ citation omitted]" -

within the class of discussions that discussions which are informal la nature? S. He Court categorically rejected the Rep.94-354. at m see id at 18. Similarly. Court of Appesis' reasoning:

triggers the" meeting" requirement of the Senshine Act, artier versions of the Act had applied to any esency discunions that " concern (l tlw joint we view the set diger,atly. * *

• Under in 1984. the Supreene Court provided . conduct er disposition of esency busineu " the rusening d the Cowt d Appuls, any its first guidance on the haahia. Act. . HJt.11sse saqpm. I 552b(eX2).no Act now group dmembas orbe excbamse views or FCCv.177 WorMCpoemaralcotlans. * * *" gatedldermeuse os agency buslaen

- U.S. t condect assid be viewed as a "embdivision

.104 b.Ct.1936 was ***a decided by a ====3=ana Court on April businme?Deinunt dthe revielenEy to act sabehalf of the was to penmit preliminary maa-aia= emons '8"'F# *** h *" "P"I" 30.1996.%e case arose when three agency -h==e. See 122 vint of he tem N' ** "adophd by

. Rec. 30474 anesabers of the PCC. constituting a . (1878)(somerks of Rep.Fe the quenan of the agency's ). would regelm pebile

%e Court then explained that tliough Tslecomununications Comunittee (a the FCC's Telecommunications conventiene dde type congrew subdivision to whidi decisionmaking understeed te be amassear power had been delegated) traveled to Committee was subject to the Sunshine conduct of agency wa===y for the ettectin Eurrpe to take part in an laternational Act (since it could act on behalf of the a .under a delegauen of authority helatMim ruleinowporates conference of telecesununications fro regulatorseAst American company. Commission as a whole). It did wheusi ne Supmme Courre language cware that the PCC Commissioners not appear that the Committee had,by y he177desiolos.%e exapum fw participating in the international social and eermanalat" ge&arings and to use the conference to argue orincreased com conference, engaged in " deliberations fwlafonneuenal by o&er prownsion of *=6 petition in the [thell detennine or ruult in the loint asmales erlaternau organisaum

===awtlons services. Aled salt in District Court, conduct er die ition of official 8 are dropped, since under the proposed charging among other things that the - business."ne Court offered a danniun rule they would be r=laad==* De presence of a enfRaiaaf number of of thisbynomeansself-explanatory =laalan behnes. based on almost r%- a aa==s to deshie agency languge, eight years of operation under the I

DI current rules, that a doulelen to conform business rendered the international

'.%, .D,'i# ,', I'di', **

r m its regelssons le the Bleral requirements conference a %==aa.6 "meetins" of the statute as laterpreted by the under the Ses. June Act.and that the damsel @t. et iss sedi disennione meet be"sw meeting was required to be heldin the asserdA Supreme Courts.wiuRep No.88 leprove 854.at its ability to m

• esehdently feemsed on discrete proposale or do the public's buelnese.%e abuity to

- open.De District Cost ruled for the leones as to essee se he likely 2 onese em compear.as did the DE Circuit Court lad 6vidual partialpedes member hold Informal preliminary briefings can of la a decialen written by" help soeure that Comadeeleners are well

) andon. '***'eebly are passmene 1 auttere p" *to form informed aboutsublest areas web

• asacr? befom anyperseelertsed proposal supreme Comt. in a twidecision P"='Mkg",,'"";N"s'"no"h"r e Act I

.cDre s'hoseme i=1nereinertennier,reii cuider.

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[~'~ PART 9 o STATEMENTS OF CONSIDERATION

. to ertoest togetherlet in addition,in theinterest of the sessions."een fester delimities of seestles to pensit private edgesent use etresomess, the

_ het asund Commisslan dieseselens in esty brieange Commission is amending its rules to

--r-~ is such einify that Sunshim Aci =contiaps. _ or other Commiselse sessione devoted to lattialnoensing comes or the discussises that transcripts. sei adnetes of closed een decide what topics 1 restart case.la thle lateria shouldbeoenethesubjectofmars ~ r-ta=&a= meetings wul be reviewed periodialtiallicenslag and nel-1 particularised preposalsAa-.tana Of for "cloaability" only when a request is restart wGL as matterof policy, be received.De Cornmission agrees with governed by the "old" expensive which would fab within the Act's dellelties of"seesting? ' the position taken in this regard by the deAnition of"sneeting".

Inseebenglagitsrules the " Federal Communications Commission. .

which likewise found that i , - . ,#.88'I'*I Com.d an wouid in - eense be . wasie of,ubuc funds io re wt would be a esoldes to evade the Sunshine Act'- transcripts in which no one has evinced ts.Rather.it would k givini: any laterest.Moreover, since the De asnendments amend the to the face- r==le=3a=*s rules relating to the Comadssion's present rules require the understead the Geogret.s and ' - '

Sunshine Act codified in 10 Cllt Part 9 poeElemed the Supreme C-.J s themselves to be and therefore meet the eligibiuty criteria

't consulted on these reviews, the present some types ofintennel A.-.s-a rule is an unnecessary burden on the for the cologorical exclusion set forth in necessary for sound agency functioning, toCFR 51.22(c)(1). Accordingly, do not belens within the purview of the time of the r==laalaaa s. As revised. pursuant to10 CFR 51.22(b).no the relevant subsection Sunshine Act. review will take place u,provides thatenvironmentalimpact requested the statement or R ,* wittiin the period during which the environmental assessment need be

• l preparedin connection with the l recording. transcript or minutes must be In one other respect, the Commission issuanceof theamendments.

retained.%e provision for review by placed on itself a metriction that other Peperwork Reduction Act Statement the Commissioners at the end of the did not see St to adopt.%e meeting itself is dropped from the rule.

a rules provide that when a as this provision is impracticable and is We rule contains no informstion meeting is closed, one of the following not currently used. collection requirements and therefore is

.twa titernatives must be adopted: While the Commission is seeking not subject to the requirements of the

, either. (1) %e r a-l==ian itseaf, as the Public comment on the rule change.it Paperwork Reduction Act of1980 (44 i' latt itern if business in the meeting U.S.C ll 35c1 et seq.). #

has decided to make the We effective

. reviews the course of the meet'ng and on put,lication on an interim basis 1.let of Subjectsin to CFR Part 9 "

decides which portions of the transcript pending submission and evaluatson of Freedom of information. Penalty.

' or recording can be withheld, or (2) the comments, and publication of a final Privscy. Reporting and recordkeeping Secretary. "upon the advice of the Office rule. it is authorized to do so because requirements. Sunshine Act. ]

of Cenatal Counsel and after consulting the change to 10 CFR i 9.101(c)is both with the Comunission, shall make such an laterpretstive rule and a rule of For tb reasons set out in the determdnations." them rules apply agency procedure. and the changes to 10 pr mble and ur.3er the authority of the

., whether er not anyone has evinced any CFR I 9.100(c)is a mie of agency Atomic Energy Act of 1954. as amended.

laterest la learning the nature of the Procedure.Such rule changa am the Energy Reorganisation Act of 1974.

r'a--i..ia *s discussions. as amended, and's U.S.C. 553, the NRC exempt from proposed rulemaking and Other agencies have taken the is adopung the following amendments to deferred effectiveness under 5 U.S.C.

common-sense view that they win 10 CFR part 9 on aninterim besis. As i 553 of the Administrative Procedure noted,public comment is solicited as to revi1w the transcripts if and when Act. %e change to 10 CFR l 9.10t(c)is whether they should be made final.

someone asks for them.ne Federal interpretauve because it merely Comunanicauons Commission. In specifies the Commission's Se promulgating its Sunshine Act to Statement of Chatrman interpretation of the term "mering"in Fa " - "

Act Rulemaking regulations in 1977.disadssed the the Sunshine Act.Botterton v. Marshall.

suggestion that transcript of every 648 F.2d 004 y05 (D.C.Cir.1900).%e a I fully support the roposal set forth in closed meeting s - be reviewed as a changes to 10 CFR 9.101(c) and 10 CFR this mouce dmleam o chnge th metter of course (and later re. reviewed 9.10e(c) are rules of agency procedure Comminion's Sunshine Act rules.

if portions continued to be becesse they govem how the However.1 disagree with the policy wi ).%e FCC said: decision to use the revised definition of Commission conducts its business and m ,,g,, g, ,g,,9 do not in any way alter the substantive a " meeting" during the interim period emneeript of sweens should b, during which public comments are rights or interests of persons effected by metewed to deswanne wtwther it received and a flaal rule is published.

Coounission action.Detterton v.

esa he madeav to the pubhc.no AforehoII.sapre at 707 I doubt the usefulness of such interim

. papesnien la ' r a *

• he n d application.If. on the one hand, the 8 "*" N Making th rule chnge effecHve on

',,",,d i ,$g M" M8 C'"*'**"y

((,"g*g an laterim basis will not only improve the conduct of Commission business in r a==laataa applies the new definition narrowly -that is,ifit exempts from the definition of" meeting " only the elearest

,,,ely be made en sub>cs of requems fa, the Interim by facilitating the flow of of cases-then it will not gain much of traarsetpte. A periodic revlow of such information to the Ceaunission and value from laterim applic.stion. lf, on the tressenpts would be a wome of time and fostering collegiality, but will also other hand, the Conuaission applies the peblic funds.Transer6 pts may be placed in enable the Comunission to gain some the pubhc file lud after the sneeting is held. new definition, broadly, then it risks but otherwise will be reviewed only when limited experience with the rule change potentially counter-productive roguests for copies are receis ed. s2 Fed. Ites.

before making any decision on the final consequences for its overall objective to

' 'D*'*h #' O rule. However. in this laterim period the conform its rules to the Sunshine Act.

Commission willnot be using the new

PART 9

• STATEMENTS OF CONSIDERATION

. Sepasses Views of 8%==8=d==== to of w' inch was to ide the .

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Aandsnes wie"theluneet praat ble Iapprovedpublicationof the m_._. ""."88N proce of the Federal A*I F I"

,,,,,,g clearly a the b cl$asan ehestges. However. I have significant laterest.He Commission should await j esseems about to dilBculty of bile comment before putting the rule hto effect.no Commission has I c whichM h bW &Iparticululy W ' 8Perated under its present rule for eight years without estastrophe. Waiting g ,, g, thirty more days for public commen(

, m hardly seems to be en onerous burden.

no Senshine Actis not an easy act to j interpret er to apply nis is the primary resses the r%==la=8a='s present reguistion was written asit was.Se N*s tion sets up a bright .

line far what constitutes a meetlag'and what not.While the r%==laalaa may have given up some flexibility when it set up that bright line standard.it did so with a reason. A standard which provided more llenthiitty would, of necessity, have

.beenless certain and would have created problems of laterpretation.

A ting a more flexible standard

,w have ms.de it easier for the

.t. Commission to misapply the Act

. Inadvertentlyin a particular case.

, ne standard in the proposed rule s

1. Because suffers from lust these the standard problems.

is vague and

' subjective,it will be much more difficult to administer than the present standard.

predicting whether a particular meeting will consist of daeussions "sufBciently

. focused en siacrete proposals or issues

. as to cause er he likely to cause the

. . Indivkleal participating members to

. . . form reasonably the positions resarding

.smatters pending er likely to arise before the agency" wiu re' quire nothing short of divination. And,if the Commission ~

s wrong.there is no remedy if there is no " meeting" there will be no notice, no transcript, and no minutes.

If the Co==lantoninsists on going forwent with the proposed rule,it should a least have asade clearin the statesment of considerations what change to present practice the rule is

^ latended to ellect.De Conunission should have explained, with concrete esemples. what klad of meetings

. now held by the - ' " will be treated as * ^' ' --' under the

' proposed rule. Or.' lithe latent is to

' create a new type of meeting not now held by the Commiselon. that should .

have been made clear.

Ialso cannot the Commission's le make this rule .

, immediately effective by applying it

. while the comuneet period runs. A rule '

changing the seannerin which the Commission implements the Government in the Sunshine Act, an act

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D80M R COUN Honorable Nunzio J. Palladino l Chairman Nuclear Regulatory Commission 1717 H Street, N. W.

Washington, D. C. 20555

Dear Mr. Chairman:

At the May 21, 1985 hearing of the Subcommittee on Energy Conservation and Power, the Subcommittee examined the Nuclear Regulatory Commission's (NRC) action to amend its Sunshine Act regulations. Because of our continuing interest in these procedures, we request the Commission provide the Conr;ress and the public with additional informatinn as it in3'iates its new procedures.

At the May 21 hearing, the NRC testified that all Commis-sioners would be invited to all non-Sunshine Act " gatherings" and that the General Counsel or his qualified designee would also be in attendance Sunshine Act. to ensure that the discussions do not violate the Please provide us with the written implementation procedures that the NRC has drafted for applying and adhering to the new rule and to the Sunshine Act. If no such written proce-dures now exist, please indicate that and provide us with the procedures that will be used.

i We further request that the Commission issue a monthly I public listing of non-Sunshine Act " gatherings" of a quorum of the Commission, their dates and general subject matter.

Additionally, we request that the NRC provide the Committee i with a more specific monthly report of all non-Sunshine Act

" gatherings" of a quorum of the. Commission. The reports should include the date of all such " gatherings" that took place that month, the persons in attendance, a list of the documents discussed or provided at the " gathering," and a specific O description of the subject or subjects discussed. These reports will assist the Committee in fulfilling the oversight responsibilities entrusted to it under the Rules of the House of Representatives. y y ,

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We recognize, and appreciate, the concern expressed by several Commissioners at the May 21 hearing that the~dommission needs to conduct its manner. business in an effective and efficient  !

It is no less iroortant that the Commission, as an agency entrusted tofor fully accountable protecc the public health and safety, be its actions. We expect that the Commission's compliance with our request for additional j accountability can be accomplished in'a manner consistent with  !

the other concerns expressed at the hearing.

{

1985. We would appreciate your response to this letter by June 5, Thank you for your cooperation in this matter.

Sincerely, JOHN D. DINGELI/

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' JnMITS 'T . BROYHIL Chairman nking Minority Mem r dL 'D%L / 4 d'

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EDWARD J. MA:h(EY CARLOS MOORHEAD /

Chain nan Ranking ority Member Subcommittee ,A Enery] Subcommi ee on Energy Conservation and Power Conservation and Power I

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• 57'7378 WASHINGTON, D.C. 20515 June 6, 1985 The' Honorable Nunzio J. Palladino Chai rman Nuclear Regulatory Commission 1717 "H" S tree t, N .W .

Washington, D.C. 20555

Dear Mr. Chairman:

I would like to reempha.,1ze my dismay, first expressed to you at the May 21, 1985 Energy Conservation & Power Subcommittee hearing, at the Commission's decision to amend its Sunshine Act <

regulations to allow more Commission meetings to be held in secret.

The Commission's new rule, distinguishing between closed

" gatherings" and open " meetings," violates both the spirit and the purpose of the' Sunshine Act.

policy.

It is, quite simply, ba<i public Institution of a practice of secrecy instead of a pre-sumption of openness .is in direct contravention of Congress' i

historical intention that, .to the maximum extent possible, agen-l

' cies doing the public business should seek to do that business in the open.

In the absence of public participation in the Commission

" gatherings," how are we to know whether the Commissioners have in fa ct crossed the line from " brainstorming" f nto decision-making?

At the May 21st hearing you were asked these cpestions, Mr. Chair-man, and your response w,as that we would "know by the outcome."

This is not acceptable. If we are to learn from the outcome that the Commission has made a decision adversely affecting the public i

interest, we will have learned too late.

Further, the Commission's decision to preclude public comment on the rule change until af ter the new rule is already in effect adds insult to injury. The record of the May 21 hearing shows e

that no Commissioner was able to explain to my satisfaction th' ~ reason for NRC's rush to implement the new rule prior to

. obtaining public comment. i Instead, Commissioner Zech expressed I the Commission's expectation that the public should hav,e some p trust 'and confidence in the Commission's decisions. Yet the Commission forced through this change in its regulations overnight, \

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reversing eight years of Commission policy, without giving that public whose trust it expects any chance to be heard.

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the Commission has created a definite _ impression .that it hasIn so doing, something 'tcL hide from the public it ' supposedly represents. This is' hardly an effective' way to inspire confidence. On the contrary, l 'it achieves precisely.the opposite effect., The Commission has succeeded in nothing but" fostering mistrust and suspicion'. i

. Even the Administrative < conference report so o'ften cited by- the Commission in support of. its actions strongly recommends that agencies comply:with long established notice and comment pro-cedures' unless it . finds that public notice and comment would be

" impracticable,' unnecessary, oor contrary to the public interest."

I' know of no such finding by the NRC,. and doubt .very much -if one could'be. fashioned as'a post-hoc rationalization. Uniess some satisfactory explanation is . forthcoming. I will continue to contraryyour bel.ieve to theactionswas at_best " impracticable, unnecessary, and public interest."

I am of course aware of the letter recently sent to the

-Commission by Chairman Dingell .. ' Chairman Markey, Mr. Broyhill and ,

Mr. Moorehead, requesting that the Commission provide informa-  !

tion on procedures it will follow in implementing the new rule, as.well as monthly public listings of the Commission's lon-  !'

Sunshine " gatherings" and a more detailed monthly report on those gatherings for the Congress.

I wish to make it clear that I view the' provision-of such information as the very least the Commission must rary measuredo for~.the time being, and is, in my opinion, only a tempo-Telling the public yo.u. have ~ met in secret after the fact is in effect no better than s. imply meeting in secret. The publi.c fact, made is best protected when decisions affecting them are, in.

in public. Erecting artificial barriers or creating after the fact protection for the public rationale forinterest.

decisions made in secret is scant I still intend to introduce. legislation which will rescind the_ Commission's new. closed meeting rule.

~

Only through full and ,

open debate will the public's fundamental right to protection of its interests be maintained.

~

.I 1ook' forward to your rep 1 Since t j ll l ,_ , 7 DENNIS E. E AR Member of C>ngress l