ML20236X021
| ML20236X021 | |
| Person / Time | |
|---|---|
| Issue date: | 11/20/1987 |
| From: | Zech L NRC COMMISSION (OCM) |
| To: | Gejdenson S HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| References | |
| NUDOCS 8712080375 | |
| Download: ML20236X021 (9) | |
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NUCLEAR REGULATORY COMMISSION-g t
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WASHINGTON, D. C. 20555 b,
November 20, 1987
' CHAIRMAN z
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The. Honorable Sam Gejdenson, Chairman i
Subcommittee on General Oversight and Investigations
'Comittee-on. Interior and Insular. Affairs United States House of Representatives Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your October 22, 1987 letter in which you requested information about the timing of.the disclosure of Commissioner.
voting positions in the context of the rulemaking. process. As a general rule,.the timing.of the public disclosure of an-individual. Commissioner's position on a rulemaking proposal is left to each Commissioner's discreti;on.
The Commission currently. has no procedures concerning the timing of
-disclosure of Commissioner positions prior to a final vote on a rulemaking, and we do not-contemplate the creation of such procedures.
As an enclosure to this letter you will find a detailed answer to-each of your five. specific questions on this subject.
Sincerely, k,
Lando W.'Zech, r.
Enclosure:
.i As stated cc: Rep. Denny Smith a
8712080375 871120 PDR COMMS NRCC CORRESPONDENCE PDR
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QUESTION 1.
Are' the Commissioners' voting' positions available to the l
public prior to the conclusion of the vote? Please explain
.the rationale for the. Commission's approach.
ANSWER..
Whether a! Commissioner's potential voting position'is available prior to -
formal action by.the full Comission in a rulemaking proceeding would depend on whether the Commissioner chose to make his or her voting position available. Such a-decision is a matter that is left'to the discretion of the individual Commissioner.' under section 201(a) of the Energy Reorganization Act of 1974, 42 U.S.C. 9 5481(a), each Commissioner has." equal responsibility and authority in all decisions and actions of the Commission... and shall have one vote." Because the' substance of a Commissioner vote on a proposed or final rule is, obviously, a matter solely within the discretion of that individual, it has been the Comission's policy that the timing of the release of a Commissioner's vote position on'a rulemaking likewise is a matter solely within the Commissioner's discretion.
-In furtherance of the Commission's activities as a collegial body, the
.Comission prefers that the voting positions of individual members of the i
Comission be made public at the time the Comission's decision on the l
l rulemaking becomes a matter of public record.,
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QUESTION 2.
Is it inappropriate for the Commissioners' voting positions to be disclosed prior to the conclusion of a vote? At what point in the process is it appropriate for Commissioners' voting positions to be disclosed?
ANSWER.
The Commission is not aware of any legal restriction that governs the timing of. the disclosure of a Commissioner's voting position in a rulemaking proceeding. As was indicated in the response to Question 1, the Commission prefers that the voting positions of individual Commissioners be made public at the time the Commission's decision on the rulemaking becomes public.
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.i QUESTION 3.
Is there anything in the 'NRC's regulations or other procedures which prohibits or otherwise restricts the disclosure of voting positions prior to the conclusion of a vote? If so, please provide all relevant citations.
ANSWER.
Depending upon the circumstances, a disclosure of a Commissioner's voting
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position on a rulemaking by an NRC employee to a private party without the knowledge that the same information would be made available upon request Eto the public generally may violate the provisions of 10 C.F.R. 6 0.735-41.
That regulation states that no employee for the purpose of furthering a private interest may use or allow the use of official information that has not been made available to the general public.
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- p QUESTIONS-4 & 5.
Are there any circumstances in which it is inappropriate for a Commissioner to meet with individuals from outside the NRC regarding a Commission vote on rulemaking? If so, please define the circumstances..Are those circum-stances defined in the Commission's regulations or other procedures?
ANSWER.
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In testimony before the Subcommittee on Nuclear Regulation of.the Senate Committee on Environment and Public Works on.0ctober 20, 1987, NRC General Counsel William C. Parler described the Commission's. policy and practice concerning contacts with persons outside the agency in"the course of a rulemaking' proceeding. A copy of Mr. Parler's prepared testimony is attached.
As Mr. Parler noted, the g parte restrictions on decisionmaker communications with parties outside the agency that are applied in adjudicatory proceedings do not apply to agency rulemakings...The agency, however, is subject to the requirement that its rulemaking efforts are supported by a public record that contains the factual basis for the agency's l
action. To this end, it has been OGC's legal position that substantive communications to the agency relating to the factual predicate for a proposed rule should be part of the public record concerning the rule. Any meeting with a Commissioner concerning a substantive ' matter at issue in a rulemaking would be subject to this interpretation.
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PREPARED TESTIMONY SUBMITTED Bi UNITED STATES NUCLEAR REGULATORY COMMISSION TO SUBCOMMITTEE ON NUCLEAR REGULATION SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS UNITED STATES SENATE CONCERNING NRC/ INDUSTRY REGULATORY INTERFACE PRESENTED BY WILLIAM C. PARLER GENERAL COUNSEL e
SUBMITTED: OCTOBER 20, 1987
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l'r. Chairman, ' Members of-the Subcommittee, I an pleased - to appear tiefere yru toc'ay to ' discuss,. as rec, sestea in ycur (ctchcr~ 10,1!C letter, tFe 4
tpplicaticn of the Consission':.ex parte rules te fortal cod infctr El rulc-i raking proceecirgs and the enfcrcenAnt ireplicaticos.cf using policy statements'rather than regul,atory requirements.
In the past, in accordance with the discretion' afforded by section 189a of
= the Atomic Energy Act and the Administrative Procedure Act, the NRC has used informal '.' notice-and corrment" rulemakir.g prccedures almcst exclusively.
Eecause such rulemakings involve pclicy.revisicts cf general applicability, under section 553 of the Idtinistrative Procedure Act'and the hFC's s
- implementing regulations in Subpart M of Pcrt C cf Title 10 cf the Code of Federal Regulations, rc cx parte restrictions have been applied to these informal rulemakings. The agency, however, is subject to the requi'rement that its informal rulemaking efforts must be supported by a public record that contains the factual basis for the agency's action. To this end, cur
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h5al position is and has been that substantive communications to the agency relating to the factual predicate for a proposed rule shculd be part of the public record concerning the rule.
The Consission has not convened a ferrral-t)fe rulen,aking prcceeding in recent years.
If a decision were made to convene a formal "on the record"
- rulemaking proceeding today, I would recommend that, with respect to communications between decisionmakers and persons cutside the agency, the Commission impose restrictions regarding ex parte ccrrrunications like these now contained in the existing Commission regulations. As I indicated in l
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testimony before this Subcommittee cn Vay 14,19P7, the Ccarission's existing ex parte rule requires that decisionrakers cre net to request or entertain any private evidence, explanation, analysis, or advice regarding any substantive matter at issue in a fermal prcceeding, the decision in which must be rendered on the basis of the evidentiary record.
In this regard, should the occasion arise in the future, I would recommend the limited use of formal "en the record" procedures in a rulemaking proceed-ing to resolve only those factual issues that relate to scientific or engineering mctters central to the proposed agency acticn and thct are the subject of a significant, unresc1ved dispute amcr.g recognized technical experts. Such procedures would not, however, be legally required.
With respect to policy statements, which the Administrative Procedure Act exempts from even its minimal notice and corrent requirements for infonnal rulemckings. the agency does not impose any ex parte restrictions. However, the basis for a policy statement, which would reflect at least indirectly any comments received during its formulation, is publicly set forth in the Federal Register.
On the subject of the enforcement implications of the use of policy statements, such statements do not themselves establish binaing norms which have the force of law. Therefore, they cannot independently be the basis for an enforcement action. They do serve, however, i.s a strong expression of a Commission preference for certain licensee conduct and, as such, coulu exert e
a positive regulatory effect upon licensees.
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pc In any event, the use of a policy statement in nc way limits NRC's authority or responsibility to concuct necessary inspections relative to the subject matter of the policy statement.
Nor does the use cf a policy statement to address a concern preclude the Commission from taking prompt and significant corrective action to protect the public health and safety.
Such authority, which is derived from the agency's statutory charter in the Atomic Energy Act of 1954, as amended, is not dependent on whether a subject matter is covered by a regulation or by c policy statement.
Corrective actions could include the issuance of an order or the imposition of a license ccndition that could require other remedial acticn or the issuance of an order suspending or revocating a license. I oreover, in the ever.t an order or license condition is issued requiring remedici actier e subsequent violation of that order or license condition could be the basis for enforcement action, including civil penalties, or suspension or revochtion of a license.
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