ML20206S299

Final Rule 10CFR9, Notice of Intent to Implement Currently Effective Rule & Request for Comments

ML20206S299
Person / Time
Issue date:	05/04/1999
From:	Vietticook A NRC OFFICE OF THE SECRETARY (SECY)
To:
References
FRN-64FR24936, FRN-64FR39393, RULE-PR-9 AB94-2-006, NUDOCS 9905210092
Download: ML20206S299 (24)

Text

s DOCKET NUMBER

, PROPOSED RULE.II 9 r/mD (I,4FRafr36) U g go;o3.p NUCLEAR REGULATORY COMMISSION 10 CFR Part 9 '99 t1AY -6 P2 :25 RIN 3150-AB94

~

GOVERNMENT IN THE SUNSHINE ACT REGULATIONS -

A_

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule: Notice of intent to implement currently effective rule and request for comments.

SUMMARY

The Nuclear Regulatory Commission (Commission) is announcing its intent to I l

implement a final rule, published and made effective in 1985, that amended its regulations applying the Government in the Sunshine Act. The Commission is taking this action to provide an opportunity for public comment on its intent because of the time that has passed since the Commission last addressed this issue. This action is necessary to complete resolution of this issue.

DATES: The May 21,1985, interim rule became effective May 21,1985. Submit comments by (00 d;9,; ;f.;; w th; 9, / 999 f::: Of ~d4rrt!rn). Unless the Commission takes further action, non-

/> / 9 9 9 Sunshine Act discussions may be held beginning (21 ;dr' ;..;;;he uvom v, i um vunnowiu 4;;.udT -

ADDRESSES: Submit written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. L p -, 9 f Vicik x i

[

l 9905210092 990504

}Y PDR PR 9 64FR24936 PDR hMd M 6//of99 i t  ;

P 2

FOR FURTHER INFORMATION CONTACT: Trip Rothschild, Assistant General Counsel, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, (301)415-1607.

SUPPLEMENTARY INFORMATION:

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 regulatioi. applying the Government in the Sunshine Act. Because of the years that have elapsed, the Commission 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 i l

implement. .

l The purpose of the rule is to bring the NRC's Sunshine Act regulations, and the way they l 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 business 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 discustions," 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.

l ,

l S

3

- In response to the Supreme Court's clarification of the law, the Commission in 1985 l

issued an immediately effective rule that revised the definition of " meeting" in the NRC'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 1

opportunity to comment orily 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 was the rule itself implemented, and the issue remained pending from 1985 on.

The Commission believes that it is time to bring the issue of the NRC'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.

I. Background.

On April 30,1984, the United States Supreme Court issued its first decision interpreting the Govemment 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 opportunity to offer guidance on what leading commentators have described as "one of the most troublesome problems in interpreting the Sunshine Act"; the definition of " meeting" as that term is used in the Act. R. Berg and

i l

4 i

S. Klitzman, An Interpretive Guide to the Govemment in the Sunshine Act (1978), at 3. The l

Court rejected the broad view of the term " meeting" that the U.S. Court of Appeals for the District of Columbia Circuit had taken. It declared that the statutory definition of a " meeting" l

contemplated " discussions that ' effectively predetermine official actions.'" The Court went on: )

i 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

)

l 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." Id. at 471, n.7. I 1

The Court explained Congress's reasons for limiting the reach of the Sunshine Act:

Congress in drafting the Act's definition of " meeting" recognized that the administrative process cannot be conducted entirely in the public 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 i 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 ITTdecision, the Nuclear Regulatory Commission had for almost eight years applied the Government in the Sunshine Act as though it required every discussion 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 (OGC) advised the Commissioners in May 1984 that the decision seemed significant: the decision was unanimous and it was the first time that the Supreme Court had addressed the Act. OGC suggested that revisions in the NRC's regulations might be appropriate to bring the NRC into line with Congressional intent.

s .

s 5

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 Govemment 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 revised. 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 decided 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.

On May 21,1985 (50 FR 20889), the Nuclear Regulatory Commission issued new regulations implementing the Govemment in the Sunshine Act. As a legal matter, the NRC could have continued to use the language of its existing regulations, and reinterpreted them in j l

accordance with the Supreme Court's decision. However, the NRC decided that in the interest of openness, it should declare explicitly that its view of the Act's requirements had changed in l light of the Court's ruling.

r 6

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 9.101(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 l official Commission business, that is, where discussions are sufficiently focused l on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding mr.tters

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.

l 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 l comments were received and addressed), with an opportunity for public comment, briefings l

were 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 l paper in which comments on the interim rule were analyzed and responded to. However, by 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 I l defer actualimplementation and use of the 1985 rule pending receipt of the ABA's views.

I m

('

l 7

IIL The American Bar Association Acts.

l l In the fall of 1985, William Murane, Chairman of the Administrative Law Section of the I l

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 l 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 reading of the Sunshine Act, as interpreted by the Supreme Court in the !TT decision, was legally correct.

Moreover, the legal standard set forth in the ABA recommendation incorporated 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 from the definition 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 positions 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 mcmbers of a subject of common interest; (b) Briefings of agency members by staff or outsiders. A key 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 1

s 8

proposals for agency action, and the merits of any proposed agency action would be open to full consideration at a later time.'

1 The ABA report disposed of the suggestion, advanced by some critics of the NRC's l 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:

l [l]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 Sunshine 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 I

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 I

clearly 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 l they are to do so, they must attempt to set out in advance, whether by regulation or l 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.

'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.

l l l l

l I

l l

9 The ABA report's conclusion was a measured endorsement of the value of non-Sunshine i Act discussions. After 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 ht 7 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 ITTcase 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 Report concluded 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. l 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 j of legal obligation. (The report noted at one point that if a discussion "is 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 <

requirements of the law, to assure their familiarity with the restrictions on non-Sunshine Act t

l f

l 10 l

discussions, and that non-Sunshine Act discussions (other than " spontaneous casual 1

discussions of a subject of common interest") be monitored, either by the General Counsel or l other agency representatives, and memorialized through notes, minutes, or recordings.

1 IV. Further Developments.

On August 5,1987, an amendment was offered to the NRC authorization bill to bar the '

Commission from using any funds in fiscal year 1988 or 1989 "to hold any Nuclear Regulatory Commission meeting in accordance with the interim [ Sunshine Act] rule (published in) the l

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. In the meantime, some other agencies adopted and implemented rules that permit informal discussions that clarify issues and expose varying views but do not effectively predetermine official actions, discussions of the sort that the Court's ITT decision said are a "necessary part of an agency's work." 466 U.S. Et 469-70. See, 2The text of the amendment and the colloquy surrcunding its adoption by the House of Representatives are also reprinted in full in SECY-88-25.

l l

l 11 for example, the Occupational Safety and Health Review Commission's (OSHRC) and Defense l

Nuclear Facility Safety Board's (DNFSB) definitions of " meeting", at 29 CFR 2203.2(d) (50 FR 51679; 1985) and 10 CFR 1704.2(d)(5) (56 FR 9609; 1991), respectively, i in February 1995, Commissioner Steven M. H. Wallman of the Securities and Exchange I

Commission, joined by twelve other Commissioners or former Commissioners of four j l

independent regulatory agencies (the Securities and Exchange Commission, Federal l Communications Commission, Commodity Futures Trading Commission, Federal Trade  !

I Commission), wrote 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 i I

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 collegial decision making where the~ collective thought process of a number of tenured, independent appointees would be better than one.

Unfortunately, the Act often turns 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,

l

• 12 as a matter of general policy, against any conversation among a quorum of agency members, 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.

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 number 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 /TT case; Recommendation 84-3 of the Administrative Conference of the United States; the findings of the American Bar Association; actual practice at other federal agencies, including the DNFSB and OSHRC; 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 openness and fostering public understanding of how the multi-l

l , .

13 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 l

l Congress carefully weighed the competing considerations involved: the public's right of access to significant information, on the one hand, and tne agencies' need to be able to function in an efficient and collegial manner on the other. 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 might choose. Rather, it crafted a system in which 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 " discussions that ' effectively 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 believe that if the rule change were implemented, numerous discussions i currently held in public session would instead be held behind closed doors. This was a 1

l misapprehension. Indeed, if there is one point that needs to be emphasized above any other, it 1

is that the objective of the 1985 rule is not that discussions 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 Aiministrative Conference.

L -

f 1

1 14 l

l The Commission believes that non-Sunshine Act discussions can benefit the agency and i

thereby benefit the public 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 l 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 1

apply the Act's requirements to the i would, in the words of the Supreme Court, " impair normal agency operations without achievi.'ig 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 period for public comment and for a 21-day period following close of the comment period to allow the Commission to consider the public comments. Absent further action by the Commission, non-Sunshine Act discussions may be held commencing 21 days after the close of the comment period.

From previous comments, the following are possible questions about the 1985 rule, and the Commission's responses to those questions.

1. What types of discusrions 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 message to the industry we regulate and to the public? Are we workirg effectively with the Congress?" This

15 kind of" big picture" discussion can be invaluable. One of the regrettable effects of the Sunshine Act, as documented as long ago as 1984, in Administrative Conference Recommendation 84-3, has been the loss of collective responsibility at the agencies, and the shift of authority from i

l Presidentially appointed and accountable agency members to the agencies' staffs. The j 1

Commission believes that " big picture" discussions served a valuable function in pre-Sunshine l Act days at NRC and can do so again, helping to assure that the Commissioners serve the public with maximum effectiveness and accountability.

The Commission believes that some kinds of general, exploratory discussions can be useful in generating ideas. Such ideas, if developed into more specific proposals, will 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 remain preliminary l

and do 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 ccmpliance with the Act's requirements.

The Commission 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 ABA's full House of Delegates accepted the Administrative Law Section's report and recommendation.

• ~

l I

16

3. Didn't the /TT case involve a trip to Europe by less than a quorum of FCC members, I and couldn't the case be viewed as relating to those specific facts? I l

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 difficult aspect of Sunshine Act law. In addressing the ambiguity in the definition of " meeting" and thus the uncertainty as to the Act's scope, the Supreme Court was acting to resolve a 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 govemment in the sunshine. I am concemed, 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 rigidity of the act's procedures, and the potentially burdensome l requirement for the maintenance of transcripts are provisions which may require I modification. Government in the Sunshine Act - S.5 (P.L.94-409), Source Book:

Legislative History, Text, and Other Documents (1976), at 832.

l

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 introduced 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,

f 1 L*. , ,

17 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 law requires, federal agencies l

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?

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 i

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 caucuses in 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 constitute meetings unless such discussions are "relatively formal" and " predetermine" agency action.

It should be a matter of concern to all those interested in good govemment 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 i evaluated as a viable alternative which ought to be seriously considered. [ Emphasis added.} Hearings Before a Subcommittee of the Committee on Govemment 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 /TT case and ignoring the Philadelphia Newspapers case which dealt specifically with NRC7

I8 Answer: First of all, the ITT case 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 ITT case 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. i Thirdly, the full D.C. Circuit, sitting en banc, has severely criticized the Philadelphia Newspapers i

decision for digressing from Congressional intent and thereby reaching an " untoward result."

Clark-Cowlitz Joint Operating Agency v. FERC, 798 F.2d 499, 503 n.5 (D.C. Cir.1984). l

7. Ifit is so clear that non-Sunshine Act discussions are permissible, why did the NRC interpret the Act differently for so many years? j I

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 Attomey 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 ITT case 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?

p e

19 Answer: There are at least three factors today that were not present in 1977: (1) the Supreme Court's /TT decision, 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 agencies the latitude to hold non-Sunshine Act discussions in the expectation they would 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 I implementing this rule, is not implicitly or explicitly urging that the Sunshine Act be altered; I rather, it is saying that the Sunshine Act should not be applied even more restrictively than Congress intended when it enacted the statute. I l

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?

l Answer: The question misses the point of the ABA comment. In the context in which the 1

l comment appears in the ABA report, it is clear that the ABA was expressing its concem for the i

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 l Professor Williams in the hearings on the bill in 1975, when he urged that agency members not l

l be deprived of the opportunity to generate ideas in " brainstorming sessions"-ideas which may l'

subsequently be the subject of " meetings"if they turn out to warrant formal consideration. As

~

f l 20 we have emphasized above, the Commission is not proposing to close any meetings currently held as open pubhc meetings.

I l 10. How does the Commission intend to differentiate between " meetings" and "non- l l

l Sunshine Act discussions"?

l Answer: The Commission intends to abide by the guidance provided by the Court in FCC

v. ITT World Communications and contained in our regulations, in differentiating between

" meetings" and non-Sunshine Act discussions. Applying this guidance, the Commission may l consider conducting a non-Sunshine Act discussion when the discussion will be casual, general, informational, or preliminary, so long as the discussion will not effectively predetermine final l agency action. Whenever the Commission anticipates that a discussion seems likely to be "sufficiently focused on discreet proposals or issues as to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before l the agency," the Commission will treat those discussions as " meetings." See id. at 471.

Further, to ensure that we appropriately implement the Supreme Court guidance in differentiating between non-Sunshine Act discussions and meetings, the Commission will i

consider the ABA's remarks on the seriousness of this task. For instance, the ABA cautioned that a non-Sunshine Act discussion "does not pose specific problems for agency resolution" and l

l agency " members are not deliberating in the sense of confronting and weighing choices." Report at 9-11.

Some specific examples of the kinds of topics that might be the subject of non-Sunshine l

Act discussions would include generalized " big picture" discussions on such matters as the I

following: "How well is the agency functioning, what are our successes and failures, what do we

21 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 Intemet compare with what other agencies are doing?" Such 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 discussions of 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 informal 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 l

Commission action might include an upcoming Congressional oversight hearing or a planned all-hands meeting for employees.

11. 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. Reviewing transcripts : r releasability l

l

i 22 l

when no one is interested in reading them would be a waste of agency resources and thus of i the public's money. j

12. Will the Commission adopt any particular internal procedures for its non-Sunshine Act discussions?

l 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, I the Commission will revisit the usefulness of the record-keeping practice. l I

List of Subjects in 10 CFR Part 9 Criminal penalties, Freedom of information, Privacy, Reporting and recordkeeping requirements, Sunshine Act.

The May 21,1985 (50 FR 20863), rule is currently effective but has never been implemented. For the convenience of the reader, the Commission is republishing the text of that rule.

PART 9 - PUBLIC RECORDS

1. The authority citation for Part 9 continues to read as follows:

AUTHORITY: Sec.161,68 Stat. 948, as amended (42 U.S.C. 2201); sec. 201,88 Stat.

1242, as amended (42 U.S.C. 5841).

Subpart A is also issued 5 U.S.C. ; 31 U.S.C 9701; Pub. L.99-570. Subpart B is also issued under 5 U.S.C. 552a. Subpart C is also issued under 5 U.S.C. 552b.

2. In $9.101, paragraph (c) is republished for the convenience of the reader as follows:

@ 9.101 Definitions.

1 l

l 23 1

(c) Meeting means the deliberations of at least a quorum of Commissioners where such  !

i deliberations determine or result in the joint conduct or disposition of official Commission I business, that is, *:there 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 @ 9.105,9.106, or 9.108(c), do not constitute " meetings" within this definition.

3. In G 9.108, paragraph (c) is republished for the convenience of the reader as follows:

Q 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 Commission, shall determine which, if any, portions of the electronic recording, transcript or minutes and which, if any, items of information withheld pursuant to @ 9.105(c) contain information which should be withheld pursuant to 9.104, in the event that a request for the 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.

Dated at Rockville, Maryland, this 4th day of May,1999 For the Nuclear Regulatory Commission.

}d-Annette Vietti-Cook, Secretary of the Commission.

_