ML20205P639
| ML20205P639 | |
| Person / Time | |
|---|---|
| Issue date: | 03/03/1999 |
| 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) |
| References | |
| NUDOCS 9904200257 | |
| Download: ML20205P639 (27) | |
Text
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b REUEST HPLY BY ~347M-UNITED STATES
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- NUCLEAR REGULATORY COMMISSION COMSECY-99-006
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ornCE oF THE : RELEASED TOTHE PDR GENERAL COUNSEL e MEMORANDUM TO: Chairman Jackson e
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Commissioner Dieus initialO Commissioner Diaz ********************ees' Commissioner McGaffigan Commissioner Mer ifield m
FROM: Karen D. Cyr GA** d h General Couns . ')
SUBJECT:
DRAFT FEDERAL REGISTER NOTICE ANNOUNCING INTENT TO IMPLEMENT SUNSHINE ACT RULES In a Staff Requirements Memorandum dated February 24,1999, the Secretary advised me of the Commission's decision to move toward a practice consistent with its 1985 Sunshine Act rules, and requested that I prepare a notice of that decision. The attached notice (Attachment 1) responds to that request. In add: tion, the Commission requested that I prepare letters to Congress that include concrete examples of the types of non-Sunshine Act discussions that the Commission contemplates holding and describe the record-keeping procedures approved for the initial six-month implementation period. Such letters appear as
/..iachment 2.
Attachments: 1. Draft Federal Register notice
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CORRESPONDENCE PDR
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4' NUCLEAR REGULATORY COMMISSION 10 CFR Pat 19' GOVERNMENT IN THE SUNSHINE ACT REGULATIONS AGENCY: Nuclear Regulatory Commission ACTION: Notice of intent to implement Currently Effective Rule and Request for Comments.
SUMMARY
- The Commission, through this notice of the Commission's intent to implement a rule published and made effective in 1985, seeks to bring closure to a rulemaking that amended the NRC's regulations applying the Government in the Sunshine Act. Because of the years that have elapsed, the Cor, mission is providing this notice of its intent to implement this rule and is providing an opportunity for additional public comment on the Commission's proposal to implement.
The purpose of the rule is to bring the NRC's Sunshine Act regulations, and the way they are applied by NRC, into closer conformity with Congressional intent, as set forth in the legislative history of the Sunshine Act and as clarified in a unanimous Supreme Court decision, FCC v. ITT World Communications, 466 U.S. 463 (1984). The NRC's original Sunshine Act regulations, adopted in 1977, treated every discussion of agency busines3 by three or more Commissioners, no matter how informal or preliminary it might be, as a " meeting" for Sunshine Act purposes. As the 1984 Supreme Court decision made clear, however," meetings," to which the Act's procedural requirements apply, were never intended to include casual, general, informational, or preliminary discussions, so long as the discussions do not effectively predetermine final agency action. These kinds of "non-Sunshine Act discussions," which can be an important part of the work of a multi-member agency, had been foreclosed at NRC since 1977 by the agency's unduly restrictive interpretation of the Sunshine Act.
. . . . = - - - - . . -
j.
2i L in response to the Supreme Court's clarification of the law, the NRC in 1985 issued an immediately effective rule that revised the definition of " meeting"in the agency's Sunshine Act regulations. To ensure strict conformity with the law, the new NRC rule incorporated verbatim the Supreme Court's definition of " meeting." The rule change drew criticism, however, much of it directed at the fact that it was made immediately effective, with an opportunity to comment only after the fact. To address some of the concerns raised the NRC informed the Congress that it would not implement the rule until procedures were in place to monitor and keep minutes of all non-Sunshine Act discussions among three or more Commissioners. No such procedures were ever adopted, however, nor the rule itself implemented, and the issue remained pending -
from 1985 on.
The Commission believ9s that it is time to bring the issue of the agency's Sunshine Act rules to a resolution. As noted, because of the many years that have passed since the Commission last addressed this issue, the NRC is providing this notice of its intent finally to implement and use the 1985 rule, and providing 30 days for public comment on the Commission's proposal to implement. The Commission will not modify its current practices, under which no non-Sunshine Act discussions take place, until it has had the opportunity to consider any comments received.
FOR FURTHER INFORMATION CONTACT: Trip Rothschild, Office of the General Counsel,' .
U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, (301) 415-1740.
SUPPLEMENTARY INFORMATION:
1. Background
r 3
On April 30,1984, the United States Supreme Court issued its first decision interpreting the Government in the Sunshine Act, Federal Communications Commission v. ITT World Communications,466 U.S. 463. Though the case could have been decided on narrow, fact-specific grounds, the Court used the opportunits to offer guidance on what leading commentators have described as "one of the most troublesome problems in .nterpreting the Sunshine Act": the definition of " meeting" as that term is used in the Act. R. Berg and S. Klitzman, An Interpretive Guide to the Governmentin the Sunshine Act(1978), at 3. T'1e Court rejected the broad view of the term " meeting" that the U.S. Court of Appeals for .J District of Columbia Circuit had taken, it declared that the statutory definition of a " meeting" contemplated " discussions that ' effectively predetermine official actions.'" The Court went on:
Such discussions must be "sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency." 466 U.S. at 471.
The Court reviewed the legislative history, demonstrating how in the process of revising the original bill, Congress had narrowed the Act's scope. In the Court's words, "the intent of the revision clearly was to permit preliminary discussion among agency members." /d. at 471, n.7.
The Court explained Congress's reasons for limiting the reach of the Sunshine Act:
Congress in draf ting the Act's definition of " meeting" recognized that the administrative process cannot be conducted entirely in the pu'alic eye. "[l]nformal background discussions [that] clarify issues and expose varying views" are a necessary part of an agency's work. [ Citation omitted.) The Act's procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit.
Section 552b(a)(2) therefore limits the Act's application....
Id. at 469-70.
At the time the Supreme Court handed down the 17Tdecision, the Nuclear Regulate.iry Commission had for almost eight years applied the Government in the Sunshine Act as though
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it required everydiscussion of agency business to be conducted as a " meeting." Recognizing that the Supreme Court's guidance indicated that the NRC's interpretation of " meeting" had been unduly broad, the NRC's Office of the General Counsel advised the Commissio ters in May 1984 that the decision seemed significant: it was unanimous, it was the first time that the Supreme Court had addressed the Act, and it suggested that revisions in the NRC's regulations might be appropriate to bring the NRC into line with Congressional intent.
Soon after that, in August 1984, the Administrative Conference of the United States (a body, since abolished, to which the Sunshine Act assigned a special role in the implementation of the Act by federal agencies) issued Recommendation 84-3, based upon an extensive study of the Sunshine Act. The Administrative Conference was troubled by what it saw as one harmful effect of the Act on the functioning of the multi-member agencies. Commenting that "one of the clearest and most significant results of the Government in the Sunshine Act is to diminish the collegial character of the agency decision making process," the Administrative Conference recommended that Congress consider whether the Act should be resised. The Conference observed:
Although the legislative history indicates Congress believed that, after the initial period of adjustment, Sunshine would not have a significant inhibiting effect on collegial exchanges, unfortunately this has not been the case.
if Congress deciced that revisions were in order, the Conference said, it recommended that agency members be permitted to discuss "the broad outlines of agency policies and priorities"in closed meetings. The Administrative Conference did not address the distinction between " meetings" and those discussions that are outside the scope of the Act.
II. The NRC's 1985 Rule
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On May 21,1985, the Nuclear Regulatory Commission issued new regulations implementing the Government in the Sunshine Act. 50 Fed. Reg. 20889. As a legal matter, the NRC could have continued to use the language of its existing regulations, and reinterpreted them in accordance with the Supreme Court's decision. However, the agency decided that in the interest of openness,it should declare explicitly that its view of the Act's requirements had changed in light of the Court's ruling.
The revised rule conforms the definition of " meeting" in the Commission's rules to the guidance provided by the Supreme Court by incorporating the very language of the Court's decision into its revised definition. Specifically, it provides, at 10 CFR 9.100(c):
Meeting means the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of officia. Oommission business, that is, where discussions are so?iciently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by 9.105. 9.106, or 9.108(c) do not constitute " meetings" within this definition.
Under the rule, which was adopted as an immediately effective " interim" rule (it was characterized as " interim" to reflect the fact that it was being made effective before any comments were received and addrAssed), with an opportunity for public comment, briefings woro excluded from the category of " meetings." In the NRC's pre-1985 regulations, by contrast, briefings were treated as meetings, as a matter of policy.
The NRC's 1985 rule proved controversial. In response to Congressional criticism, much of it directed at the Commission's decision to make the rule immediately effective, the Commission assured the Congress that it would conduct no non-Sunshine Act discussions until procedures were in place to govern such discussions, in December 1985, the NRC's Office of the General Counsel forwarded a final rulemaking 1
paper in which comments on the interim rule were analyzed and responded to, however, by J i
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the time that the Commission'was briefed on the comments, the American Bar Association had:
announced its intention to address Sunshine Act issues, including matters directly related to the NRC's rulemaking. The Commission therefore decided to' withhold action on the matter and to; defer actualimplementation and use of the 1985 rule pending receipt of the ABA's views.
Ill.The American Bar Association Acts in the fall of 1985, William Murane, Chairman of the Administrative Law Section of the American Bar Association, announced that the Council of the Administrative Law Section had
' decided to involve itself in the controversy over the Sunshine Act and its effect on the collegial character of agency decision making. Administrative Law Review, Fall 1985, Vol. 37, No. 4, at -
- p. v. The Task Force established by the Administrative Law Section ultimately focused on a single issue: the definition of " meeting" under the Sunshine Act. Its report and recommendations were accepted by the Administrative Law Section in April 1986 and by the full American Bar Association in February 1987.
The ABA's recommendation and report confirmed that the Commission's readit g of the Sunshine Act, as interpreted by the Supreme Court in the ITTdecision, was legally..orrect.
Moreover, the legal standard set forth in the ABA recommendation inco.rporated the identical language from the Supreme Court opinion which the NRC had included in its 1985 rule: i.e., the provision stating that for a discussion to be exempt frorn the defindion of " meeting," it must be
"[not] sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual participating { agency) members to form reasonably firm pot'tions regarding matters pending or likely to arise before the agency." Subject to that qualification, the ABA guidelines.
provide that the definition of " meeting" does not include:
(a) Spontaneous casual discussions among agency members of a subject of common interest; (b) Briefings of agcncy marrbers by staff or outsiders. A key
7 element would be that the agency members be primarily receptors of information or views and only incidentally exchange views with one another; (c) General discussions of subjects which are relevant to an agency's responsibilities but which do not pose specific problems for agency resolution; and (d) Exploratory discussions, so long as they are preliminary in nature, there are no pending proposals for agency action, and the merits of any proposed agency action would be open to full consideration at a later tirne.'
The ABA report disposed of the suggestion, advanced by some critics of the NRC's interim rule, "that the Supreme Court's opinion should be limited to the facts before the Court."
While it recognized that the case could have been decided on fact-specific grounds, the report observed that:
[1]t cannot be assumed that the Supreme Court got carried away or that it was unaware that the definition of " meeting" was controversial and "one of the most troublesome problems in interpreting the Sunshino Act." [ Interpretive Guide 3.]
We concluded therefore, that the Supreme Court meant what it said in ITT World Communications, and that it intended to provide guidance to agencies and the courts in applying the definition of " meeting." Report at 7.
The ABA report also rejected the argument that because of the " difficulty of specifying in advance those characteristics of a particular discussion which will cause it to fall short of becoming a meeting," the Supreme Court's view of the Act should not become part of agency practice. [ Emphasis in the original.} The logic of this argument, said the ABA report, would permit no discussion whatever of agency business except in " meetings," a result which "seems clear!y to us not to have been intended by Congress." Report at 8. The report noted that this argument in essence was a claim that agencies should apply a different standard from the one specified by Congress for distinguishing " meetings" from discussions that are not " meetings."
The ABA explained:
... Congress can hardly have gone to such pains to articulate a narrower standard had it not expected the agencies to use the leeway such a standard provides, and if they are to do so, they must attempt to set out in advance, whether by regulation
'A fuller description of the types of discussions fitting in these four categories may be found at pages 9 to 11 of the ABA report.
8 or internal guidelines, the elements or characteristics of a discussion which will cause it to fall short of being a meeting. Report at 8, fn. 9.
The ABA report's conclusion was a measured endorsement of the value of non-Sunshine Act discussions. Af ter stressing that its purpose was not to urge agencies to close discussions now held in open session, the report made clear that its focus, rather, was on the discussions which, because of the Sunshine Act, are neverinitiatedin the first place. It said:
But the fact is that the Sunshine Act has had an inhibiting effect on the initiation of discussions among agency members. This is the conclusion of the Welborn report
[to the Administrative Conference], and it is confirmed by our meeting with agency general counsels.... [T]he Act has made difficult if not impossible the maintenance of close day-to-day working relationships in [five-member and three-member) agencies.. We believe that a sensible and sensitive application of the principles announced in the /TTcase can ease the somewhat stilted relationships that exist in some agencies. Report at 11-12. [ Emphasis in the original.]
The ABA report made clear that it did not regard the opportunity for non-Sunshine Act discussions as a panacea for the Sunshine-caused loss of collegiality which the Administrative Conference had identified, and which the ABA's own inquiry had confirmed. The Repo-t ccncluded that the impact of loosened restrictions was likely to be " slight," though it saw "some tendency to increase collegiality ... to the extent that it would contribute to more normal interpersonal relationships among agency members." Report at 12. The Report also observed that collegiality is most important in group decision-making sessions, where the Act's " meeting" requirements clearly apply.
The ABA report recommended that agencies follow procedures for the monitoring and memorialization of non-Sunshine Act discussions to give assurance to the public that they are staying within the law. The ABA made clear that this was a policy recommendation, not a matter of legal obligation. (The report noted at one point that if a discussion "i.s not a ' meeting,'
no announcement or procedures are required because the Act has no application." Report at 6.) The ABA recommended that General Counsels brief agency members in advance on the
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requirements of .the law, to assure their familiarity with the restrictions on non-Sunshine Act-discussions, and that non-Sunshine Act discussions (other than " spontaneous casual discussions of a subject of common interest") be monhored, either by the General Counsel'or .
other agency representatives, and memorialized through notes, minutes, or rceordings.
IV. Further Developments On August 5,1987, an amendment was offered to the NRC authorization bill t'o bar the
'. Commission from using any funds in fiscal year 1988 or 1989 "to hold any Nuclear Regulatory t
Commission meeting in accordance with the interim (Sunshine Act) rule [ published in] the -
Federal Register on May 21,1985." 133 Cong. Rec. H7178 (Aug. 5.1987).2 As Chairman Philip Sharp of the Subcommittee on Energy and Power of the House Committee on Energy and Commerce explained, the amendment " simply neutralizes a rule change." The amendment, passed by a voice vote, was not passed by the Senate and thus was not enacted into law.
The Commission took no further action regarding the Sunshine Act after 1985, and the issue was allowed to become dormant. While the " interim" rule of 1985 has remained in effect and on the books, at 10 Code of Federal Regulations Part 9, the Commission has continued to apply its pre-1985 rules. Accordingly, all discussions of business by three or more Commissioners have continued to be treated as " meetings," whether formal or informal, deliberative or informational, decision-oriented or preliminary, planned or spontaneous. No non-Sunshine Act discussions of any kind have been held.
~
'The text of the amendment and the colloquy surrounding its adoption by the House of Representatives are also reprinted in full in SECY-88-25.
w
10 In February,1995, Commissioner Steven M. H. Waliman of the Securities and Exchange Commission, joined by twelve other Commissioners or former Commissioners of four independent regulatory agencies (the Securities and Exchange Commission, Federal Communications Commission, Commodity Futures Trading Commission, Federal Trade Commission), vrote to the Administrative Conference of the United States to urge a reevaluation of the Sunshine Act. The group expressed strong support for the Act's objective of ensuring greater public access to agency decision-making, but questioned whether the Act, as -
' currently structured and interpreted, was achieving those goals. The' group said that the Act has a " chilling effect on the willingness and ability of agency members to engage in an open and creative discussion of issues." It continued:
in almost all cases, agency members operating under the Act come to a conclusion about a matter ... without the benefit of any collective deliberations.
[ Footnote omitted.) This is directly in conflict with the free exchange of views that we believe is necessary to enable an agency member to fulfill adequately his or her delegated duties, and to be held accountable for his or her actions.
We are also of the view that the Act is at odds with the underlying principles of multi-headed agencies. These agencies were created to provide a number of benefits, including cop.egial decision making where the collective thought process of a number of tenured, independent appointees would be better than one.
Unfortunately, the Act often tums that goal on its head, resulting in greater miscommunication and poorer decision making by precluding, as a matter of fact, the members from engaging in decision making in a collegial way. As a result, the Act inadvertently transforms multi-headed agencies into bodies headed by a number of individually acting members. [ Footnote omitted.)
The group identified as one problem the issue confronted by the NRC's 1985 rulemaking:
that "many agencies" avoided the problem of distinguishing between " preliminary conversations, which are outside of the Act, and deliberations, which trigger the Act," by a blanket prohibition, as a matter of general policy, against any conversation among a quorum of agency rnembers, except in " meetings" under the Sunshine Act. While such bright-line policies were easy to apply and effective, the letter said, they were often over-inclusive, barring discussion of even the most -
preliminary views and often impeding the process of agency decision-making.
I1 The Administrative Conference, then soon to be abolished, took up the group's challenge, assembled a special committee to study the Sunshine Act, and convened a meeting _
in September,1995, to discuss the Act,its problems, and possible remedies. The Conference-appeared to be looking for some compromise, acceptable both to the Federal agencies and to representatives of the media, that would acknowledge the Act's impairment of the collegial process and try to remedy that by giving greater flexibility to agencies in applying the' Act. No consensus developed, however. The Administrative Conference, apparently recognizing that there would be no meeting of the minds between critics and defenders of the Sunshine Act, did not pursue its efforts to find common ground.
V. Conclusions The Commission has taken into account information from a nLmber of quarters, as well as its own experience in implementing the Sunshine Act, it has considered, among other things, the language of the statute and its legislative history; the Supreme Court's decision in the ITTcase; Recommendation 84-3 of the Administrative Conference of the United States; the findings of the American Bar Association; and the advice letter from numerous Commissioners and former Commissioners of four other independent regulatory agencies.
Based on all of these, the Commission believes that while the Sunshine Act's objectives, which include increasing agency openrs < : fostering public understanding of how the multi-member agencies do business, are laudable, it is important to recognize exactly what it was that Congress legislated. The legislative history, as the Supreme Court explained, shows that
._ Congress carefully weighed the competing considerations involved: the public's right of access to significant information, on the one hand, and the agencies' need to be able to function in an
12 efficient ancl collegial manner. Congress struck a balance: it did not legislate openness to the maximum extent possible, nor did it provide unfettered discretion to agencies to offer only as much public access as they chose. Rather, it crafted a system in whi:h the Sunshine Act would apply only to " meetings," a term carefully defined to exclude preliminary, informal, and informational discussions, and then provided a series of exemptions to permit closure of certain categories of " meetings." Unfortunately, in part because of advice from the Justice Department in 1977 that later proved to be erroneous, the Commission's original Sunshine Act regulations did not give due recognition to the balance contemplated by Congress. Rather, the regulations mistakenly took the approach that every discussion among three or more Commissioners, no matter how far removed from being "discussionz that 'effectu . / predetermine official actions,'"
in the Supreme Court's words, should be considered a " meeting." 466 U.S. at 471.
At the time that the Commission changed its Sunshine Act rules in 1985, many of its critics appeared to bel: eve that if the rule change were implemented, numerous discussions currently held in public session would instead be held behind closed doors. This was a misapprehension. Indeed, if there is one point that needs to be emphasized above any other, it is that the objective of the 1985 rule is not that discussiens heretofore held in public session should become non-Sunshine Act discussions; rather, the focus of the 1985 rule is on the discussions that currently do not take place at all. This was also the focus of the American Bar Association and the authors of the 1995 letter to the Administrative Conference.
The Commission believes that non-Sunshine Act discussions can benefit the agency and thereby benefit the oublic which the NRC serves. This view did not originate with the Commission by any means. On the contrary, as described above, the starting point of the Commission's analysis is Congress's recognition that "' informal background discussions [that]
clarify issues and expose varying views' are a necessary part of an agency's work," and that to
13 apply the Act's requirements to them would, in the words of the Supreme Court,fimpair normal agency operations without achieving'significant public benefit." 466 U.S. 463,469.
._ For convenience, the currently effective (but not implemented) 1985 rule is included in this notice and the Commission is providing 30 days for public comment on its stated intent to '
implement the 1985 rule. No non-Sunshine Act discussions will be held during the pe.iod for' public comment and Commission consideration of those comments. >
From previous comments, the following are possible questions about the 1985 rule, and the Commission's responses to those questions.
- 1. What types of discussions does the Commission have in mind, and what does it seek to accomplish with this rule?
Answer: First and foremost, the Commission would like to be able to get together as a body with no fixed agenda other than to ask such questions as: "How is the Commission functioning as an agency? How has it performed over the past year? What have been its major successes and failures? What do we see coming in the next year? In the next five years, and ten years? How well are our components serving us? Are we getting our mersage to the industry we regulate and to the public? Are we working effectively with the Congress?"
This kind of " big picture" discussion can be invaluable. One of the regrettable erfects of the Sunshine Act, as documented as long ago as 1984, in Administrative Conferen6s Recommendation 84-3, has been the loss of collective respcnsibility at the agencies, and the shift of authority from Presidentially appointed and accountable agency members to the agencies' staffs. The Commission believes that " big picture" discussions served a valuable function in pre-Sunshim Act days at NRC and can do so again, h< r .
. issure that the
- Commissioners serve the public with maximum effectiveness and accountability.
I, t
1
- ~ ~ . -
j 14 The Commission believes that some kinds of general, exploratory discussions can be useful in generating ideas. Such ideas, it developed into more specific proposals, would .
become the subject of subsequent " meetings." The Commission recognizes that.it would be incumbent on the participants in such non-Sunshine Act discussions to assure that they remained preliminary and did not effectively predetermine final agency action. The Commission believes that the guidelines proposed by the American Bar Association are the most suitable ,
criteria for assuring compliance with the Act's requirements.
The Cornmission also believes that spontaneous casual discussions of matters of mutual interest -- for example, a recent news story relating to nuclear regulation -- can be beneficial, helping both to ensure that Commissioners are informed of matters relevant to their duties and to promote sound working relationships among Commissioners.
2 is it really clear that the law permits non-Sunshine Act discussions?.
Answer: Yes, beyond any reasonable doubt. Congress so provided, a unanimous -
Supreme Court has so found, the American Bar Association Task Force on the Sunshine Act agreed, the Council of the Administrative Law Section of the American Bar Association adopted the Task Force's views, and the full House of Delegates accepted the Administrative Law -
Section's report and recommendation.
- 3. Didn't the ITTease involve a trip to Europe by less than a quorum of FCC members, and couldn't the case be viewed as relating to those specific facts?
Answer: The case was resolved on two separate grounds. Although the Supreme Court did not have to reach the issue of what constitutes a " meeting" under the Sunshine Act, it did so, in order (so the ABA report concluded) to provide guidance to agencies and the courts on a
- oifficult aspect of Sunshine Act law. ' in addressing the ambiguity in the definition of " meeting" and thus the uncertainty as to the Aci's scope, the Supreme Court was acting to resolve a l
15 problem that had been apparent literally from the day of its enactment into law, as President Ford's statement in signing the bill, on September 13,1976, makes clear. He wrote:
I wholeheartedly support the objective of government in the sunshine. I am concerned, however, that in a few instances unnecessarily ambiguous and perhaps harmful provisions were included in S.S. . The ambiguous definition of the meetings covered by this act, the unnecessary rigid;ty of the act's procedures, and the potentially burdensome requirement for the maintenance of transcripts are provisions which may require modification. Government in the Sunshine Act -- S.5 (P.L.94-409), Source Book:
Legislative History, Text, and Other Documents (1976), at 832.
- 4. On the meaning of " meeting" as used in the Sunshine Act, aren't the views of Congressional sponsors of the legislation entitled to consideration?
Answer: Yes, when they appear in the pre-enactment legislative history. In the present case, for example, the Supreme Court cited the remarks of the House sponsor of the Sunshine Act, Representative Dante Fascell, who in'.roduced the report of the Conference Committee to the House. He explained to his colleagues that the conferees had narrowed the Senate's definition of " meeting" in order "to permit casual discussions between agency members that might invoke the bill's requirements" under the Senate's approach.122 Cong. Rec. 28474 (1976), cited at 466 U.S. 463,470 n.7. Likewise, Senator Chiles, the Senate sponsor of the bill, described the definition of " meeting" in the final bill as a " compromise version." 122 Cong.
Rec. S15043 (Aug. 31,1976), reprinted in Government in the Sunshine Act Source Book. In any case, however, once the Supreme Court has declared what the %v re quires, federal agencies are bound to follow its guidance.
- 5. Is there any basis in the legislative history for the notion that non-Sunshine Act -
- discussions are not only permissible, but useful?
16 Answer: Yes. The point was made forcefully by Professor Jerre Williams (subsequently a judge on the Fifth Circuit Court of Appeals), presenting the views of the American Bar Association. He testified, in Congressional hearings on the bill:
One of the most critical facets of the American Bar Association view has to do with the definition of " meeting." The ABA firmly agrees that policy must not be determined by informal closed-door caucusesin advance of open meetings. On the other hand, however, the ABA believes it important that " chance encounters and informational or exploratory discussions" by agency members should not constitate meetings unless such discussions are "relatively formal" and " predetermine" agency action.
It should be a matter of concern to all those interested in good government that agency members be allowed to engage in informal work sessions at which they may " brainstorm" and discuss various innovative proposals without public evaluation or censorship of their ~
search for new and creative solutions in important policy areas.
All persons who have engaged in policymaking have participated in such informal sessions. Sometimes outlandish suggestions are advanced, hopefully humorous suggestions abound. But out of all this may come a new, creative, important idea. There is time enough to expose that idea to public scrutiny once it has been adequately evaluated as a viable alternative which ought to be seriously considered. [ Emphasis added.) Hearings Before a Subcommittee of the Committee on Government Operations, House of Representatives,94th Cong., First Session (Nov. 6 and 12,1975), at 114-15.
- 6. Why is the NRC paying so much attention to the ITTcase and ignoring the Philadelphia Newspapers case which dealt specifically with NRC7 Answer: First of all, the ITTcase dealt with the issue of what is a " meeting," whereas Philadelphia Newspapers, Inc. v. NRC,727 F.2d 1195 (D.C. Cir.1984), dealt with an unrelated issue: whether a particular " meeting" could be closed under the Sunshine Act. Secondly, the ITTease was decided by the Supreme Court, and as such would be entitled to greater weight than the decision of one panel of a Court of Appeals, even if they were on the same issue.
Thirdly, the full D.C. Circuit, sitting en banc, has severely criticized the Philadelphia Newspapers decision for digressing from Congressional intent and thereby reaching an
. y 17
" untoward result." Clark-Cowlitz Joint Operating Agency v. FERC,798 F.2d 499,503 n.5 (D.C.
(
Cir.1984).
- 7. If it is so clear that non-Sunshine Act discussions are permissible, why did the NRC interpret the Act differently for so many years?
Answer: In part, the answer lies in the fact that the Justice Department, in the years 1977 to 1981, took an expansive view of the definition of " meeting." (See the letter from Assistant Attorney General Barbara A. Babcock reprinted in the Interpretive Guide at p.120.)
in contrast, Berg and Klitzman, the authors of the Interpretive Guide, believed that Congress had consciously narrowed the definition. (See the Interpretive Guide at 6-7.) Because the Justice Department defends Sunshine Act suits in the courts, its view of the law's requirements carried considerable weight. The Supreme Court's decision in the ITTease resolved the issue definitively.
- 8. Didn't the NRC acknowledge in its 1977 rulemaking that it was going beyond the law's requirements in the interest of the Act's " presumption in favor of opening agency business to public observation"? Why isn't that rationale still applicable today?
Answer: There are at least three factors today that were not present in 1977: (1) the Supreme Court's ITTdecision, which makes clear that Congress gave the agencies authority to hold such discussions because it thought they were an important part of doing the public's business; (2) the Administrative Conference recommendation stating that the Sunshine Act has had a much more deleterious effect on the collegial nature of agency decision making than had been foreseen; and (3) the American Bar Association report stating that Congress gave the
18 agencies the latitude to hold non-Sunshine Act discussions in the expectation they woilld use it,'
and suggesting that the use of such discussions might help alleviate some of the problems caused by the Sunshine Act. Moreover, the Commission has had the benefit of its own and other agencies' experience under the Act. It should be emphasized that the Commission, by
)
implementing this rule, is not implicitly or explicitly urging that the Sunshine Act be altered; rather, it is saying that the Sunshine Act should not be applied even more restrictively than Congress intended when it enacted the statute.
- 9. Why does the NRC put such reliance on the ABA report, when the ABA made a point of saying that it was not urging the closing of any meetings now open?
Answer: The question misses the point of the ABA comment. In the cor, text in which the comment appears in the ABA report, it is clear that the ABA was expressing its concern for the discussions that currently do not happen at all, either in open or in closed session, because the Sunshine Act inhibits the initiation of discussions. Its point was similar to that made by Professor Williams in the hearings on the billin 1975, when he urged that agency members not be deprived of the opportunity to generate ideas in " brainstorming sessions," -- ideas which may subsequently be the subject of " meetings' if they turn out to warrant formal consideration.
- 10. What are the criteria by which the Commission intends to differentiate between
" meetings" and non-Sunshine Act discussions?
Answer: The Commission intends to abide by the guidelines adopted by the American Bar Association. The relevant ABA guidance is as follows:
I
. l 19 Therefore, without minimizing the difficulties in the task, we believe it is worthwhile to attempt to set forth in some detail those types of gatherings which are not meetings, as the Supreme Court has defined the term. We should recall that a meeting first of all consists of
" deliberations," and " deliberation" is defined as the act of weighing and examining reasons for and against a choice or measure; a discussion and consideration by a number of persons of the reasons for and against a measure. (Webster's Third /ntl. Dictionary.) It is the element of the participants trying to reach a decision (whether or not they do so) which distinguishes deliberations from more " casual" or " informal" discussions. To quote the Interpretive Guide, "the question is whether the discussion is decision oriented." [ Citation omitted.]
This analysis certainly does not sweep away the difficulties, but at least it helps us to know what to look for. It seems to us that there are at least three paradigmatic situations which are clearly or arguably outside the definition of meeting:
- 1. The casual, in the sense of spontaneous or unplanned, discussion among colleagues of a subject of common interest. Examples are given in NRC General Counsel Plaine's memorandum of December 6,1985: "I read an article in the other day about the nuclear industry and I wonder whether any of the rest of you read it and what you thought of it." "I just got back from visiting and I'd like to tell you my perceptions of how they run the regulatory program in that country, and some of their perceptions of how we do business, and discuss with you whether anything i learned suggests areas we ought to explore further in a more formal setting." A key element of this type of discussion is its spontaneity.
While it may include all the members of the agency it seems to us that with respect to this kind of gathering it is essential that there be no conscious policy of involving all the members, simply because such a requirement would be inconsistent with the casual nature of the discussion.
- 2. The briefing of agency members, whether by staff or by outsiders. [ Footnote:
While a briefing may be outside the " meeting" definition, we do not mean to suggest that limitations on ex parte communications would not be applicable.] Indeed, briefings have long been fairly generally recognized as outside the scope of the term " meeting." The original NRC regulation excluded " briefings of the Commission by representatives of other agencies . . or representatives of foreign governments or international bodies where such briefings or discussions are informational in nature and are not conducted with specific reference to any particular matter then pending before the Commission."
Several other agencies have long excluded briefings from the definition of meeting.
[ Footnote citing regulations of Federal Home Loan Bank Board, National Transportation Safety Board, and Federal Deposit Insurance Corporation.] The key elements here are that the members are primarily receptors of information or views and only incidentally exchanging views with each other. Obviously, a briefing can very easily turn into a serious exchange of views, particularly if the briefing relates to a discrete issue before the agency. Consequently, an important variable in this situation is the subject matter of the briefing and how directly it is related to possible agency action.
- 3. The serious " general" discussion among agency members. By hypothesis, this discussion is not casual; it is likely to have been planned, perhaps with a written agenda, and announced and scheduled to secure maximum member attendance. The key element, therefore, is that it is not " focused on discrete proposals or issues."
Obviously, this kind of "non-meeting" presents the hardest case and the rationale for
. .r 20 recognition draws very heavily on the Supreme Court's decision. It is also extremely difficult to describe in hypothetical terms because the presence of the key element essentially depends on the relationship of the subject matter to what the _ agency is or might be doing about it. The category might be broken down into two subcategories:
The general discussion of a subject which is relevant to the agency's responsibilities but does not pose specific problems for agency resolution. For example, a discussion of general foreign trade or balance of payments problems by the International Trade Commission would be permissible if the Commission acts only with respect to specific industries or products, whereas a. general discussion by the members of the SEC of insider trading would be a more difficult case because it might be -
impossible to separate the subject of insider trading from the' question of what the SEC should do about it.
Closest to the borderline is the " exploratory" discussion of a problem area. The key element here is that the discussion is preliminary in the sense that there are not hard proposals for action before the agency and consequently the merits of anything the agency decides to & would be open to full consideration at a later time. Thus, the discussion cannot " predetermine" agency action and the members are not deliberating in the sense of confronting and weighing choices. Yet in any such discussion there is always the possible resolution of deciding not to do anything, so that the " issue" of whether the agency ought to turn its attention and resources to the problem may be
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sufficiently discrete to come within the statutory definition. In short, the status of
" preliminary" or " exploratory" discussions of a problem within the agency's authority to address is the hardest case, for even if one accepts a particular verbal formulation, such as that set out in the Interpretive Guide, [ footnote omitted] the difficulties of application are intimidating. Yet inasmuch as whether a particular discussion is exploratory or decision-oriented depends on the total factual context, it is likely to be more difficult to resolve a hypothetical situation than a real one. In other words, one may say of a meeting, as Justice Stewart said of obscenity, "I know it when I see it." Report at 9-11.
- 11. What are some other specific examples of the kinds of topics that might be the subject of non-Sunshine discussions under this rule?
Answer: To elaborate on the answer to the previous question, generalized " big picture" discussions might include such topics as the following: "How well is the agency functioning,-
what are our successes and failures, what do we see as major challenges in the next five and ten years, what is the state of our relations with the public, industry, Congress, the press?"
Preliminary, exploratory discussions that generate ideas might include, for example, "Is there more that we could be doing through the Internet to inform the public and receive public input? . How does our use of the Internet compare with what other agencies are doing?" Such l
21 ideas, if followed up with specific proposals, would become the subject of later " meetings" within the meaning of the Sunshine Act Spontaneous, casual discussions of matters of mutual interest could include a recent news story relating to NRC licensed activities, or a Commissioner's insights and personal impressions from a visit to a licensed facility or other travel. Under this heading, three Commissioners would be permitted to have a cup of coffee together and to talk informally about matters that include business-related topics. Under the Commission's pre-1985 rule, such inforrnal get-togethers were precluded.
Briefings in which Commissioners are provided information but do not themselves deliberate on any proposal for action could include routine status updates from the staff.
Discussions of business-related matters not linked to any particular proposal for Commission action might include an upcoming Congressional oversight hearing or a planned all-hands meeting for employees.
- 12. Apart from the issue of the definition of " meeting," are there other changes that the interested public should be aware of?
Answer: Yes, one minor procedural point. The 1985 rule includes a provision stating that transcripts of closed Commission meetings will be reviewed for releasability only when there is a request from a member of the public for the transcript. Revicwing transcripts for releasability when no one is interested in reading them would be a waste of agency resources and thus of the public's money.
- 13. Will the Commission adopt any particular internal procedures for its non-Sunshine Act discussions?
I 22 Answer: For an initial 6-month period of non-Sunshine Act discussions, the Commission will maintain a record of the date and subject of, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend. After the six-month period, the Commission will revisit the usefulness of the record-keeping practice.
RESTATEMENT OF CURRENTLY EFFECTIVE BUT NEVER IMPLEMENTED 1985 RULES:
@ 9.101 Definitions (c) Meeting means the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by G 9.105,9.106, or 9.108(c), gatherings of a social or ceremonial nature, or briefings of the Commission by representatives of other agencies or departments of the United States government, or representatives of foreign governments or international bodies, where such briefings or discussions are informational in nature and are not conducted with specific reference to any particular matter then pending before the Commission, do not constitute
meetings" within this definition.
9.108 Certification, transcripts, recordings and minutes (c) in the case of any meeting closed pursuant to @ 9.104, the Secretary of the Commission, upon the advice of the General Counsel and after consultation with the
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Commission, shall determine which,7 J1y, portions of the electronic recording, transcript or.
minutes and which, if any, items of information withheld pursuant to 9 9.105(c) contain information which should be withheld pursuant to @ 9.104, in the event that a request for the . 1 recording, transcript, or minutes is received within the period during,which the recording, transcript, or minutes must be retained, under subsection (b) of this section.
REQUEST FOR COMMENTS
. The Commission requests comments on its proposal to implement the Sunshine Act-rules discussed above. Comments should be submitted in writing to the Office of the Secretary,;
U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, within 30 days of the publication of this notice in the Federal Register.
Dated at Rockville, Maryland, this day of ,1999.'
For the U.S. Nuclear Regulatory Commission Annette Vietti-Cook Secretary of the Commission q
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DRAFT CONGRESSIONAL LETTERS'-- SUNSHINE ACT Dear Chairman The Nuclear Regulatory Commission wishes to advise you of its intent to implement, after long delay, a rule change designed to bring the Commission's Sunshine Act rules into closer conformity with statutory intent, as explicated in a unanimous Supreme Court decision. Before implementing the rule, however, it is soliciting public comment on the matter.
The lengthy history of se NRC's Sunshine Act rules is described in the attached Federal Register notice. In bemi, the Commission initially, in 1977, adopted rules that applied an unduly.
restrictive interpretation of a " meeting," as defined in the Sunshine Act. In 1984, however, the Supreme Court claritied in FCC v. ITT World Communications,466 U.S. 463, that the Sunshine -
Act's procedural requirements were not intended to apply to casual, general, informetional, or preliminary discussions, so long as those discussions 'do not effectively predeterm: w" final agency action. The NRC issued, in 1985, an immediately effective rule that incorporated the very language of the Supreme Court's decision into its regulations. The Commission's intent was to reserve the Act's procedural requirements for those kinds of discussions that Congress intended to be treated as " meetings," while permitting other types of discussions, important for the exchange of information and the fostering of a collegial process, to take place outside the purview of the Act. The Commission's rule change was put on hold, however, after the American Bar Association declared that it would examine the issue. While the Bar Association endorsed the legality and the policy bases of the Commission's rule change, the Commission itself never took action to implement the rule. As a result, the agency for many years has followed its pre-1985 practices, although officially, the 1985 rule is effective.
The Commission's present action is intended to bring this long pending matter to a resolution; to end the disparity between the agency's rules and its practice; and most important, to permit the kinds of informal, casual, preliminary, and informational discussions that are, as Congress and the Supreme Court recognized, extremely important to the functioning of a multi-member agency. Among the types of discussions the Commission contemplates holding are the following:
-- Generalized " big picture" discussions, e.g., "How well is the agency functioning, what are our successes and failures, what do we see as major challenges in the next five and ten years, what is the state of our relations with the public, industry, Congress, the press?"
-- Preliminary, exploratory discussions that generate ideas; these ideas, if followed up with specific proposals, would become the subject of later " meetings" within the meaning of the Sunshine Act.
- Spontaneous, casual discussions of matters of mutual interest, e.g. a recent news story relating to NRC-licensed activities, or a Commissioner's insights and personal impressions from a visit to a licensed facility.
-- Briefings in which Commissioners are provided information but do not themselves deliberate on any proposal for action, e.g., routine status updates -
frcm the staff.
- Discussions of business-related matters not linked to any particular proposal for Commission action, e.g. an upcoming Congressional oversight hearing or all-hands meeting for employees.
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As the Commission emphasizes in the enclosed Federal Register notice, its intent is not that
.any discussions now being held as public meetings should instead become non-Sunshine Act discussions. Rather, the Commission is focusing -- as did the Administrative Conference of the United States, when it examined the Sunshine Act in 1995 -- on the discussions that currently do not take place at all, and that could add to the Commission's ability to do the public's business effectively.
Because of the years that have elapsed since the rule change was made effective, the Commission has decided to allow a 30-day period for public comment before it implements the rule. In addition, the Commission has decided that in the first six-month period in which it implements the rule, the agency will maintain a record of the date and subject of, as well as the participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend. After that six-month period, the Commission will revisit the usefulness of the record-Nepuig r,actice.
f Sincerely, Shirley Ann Jackson Chairman
Attachment:
Federal Register notice cc: See attached list
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l identical letters to be sent to the following:
The Honorable James M. Inhofe, Chairman Subcommittee on Clean Air, Wetlands, Private Propert/ and Nuclear Safety.
Committee on Environment and Public Works United States Senate ,
Washiregton, D.C 20510 cc: Senator Bob Graham The Honorable Joe Barton. ,irman l' Subcommittee on Energy - Power Committee on Commerce r
United States House of Representatives Washington, D.C. 20515 j i
cc: Representative Ralph M. Hall l l
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