ML23156A091

PR-009 - 64FR24936 - Government in the Sunshine Act Regulations

ML23156A091
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Issue date:	05/10/1999
From:	Annette Vietti-Cook NRC/SECY
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PR-009, 64FR24936
Download: ML23156A091 (1)

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ADAMS Template: SECY-067 DOCUMENT DATE: 05/10/1999 TITLE: PR-009 - 64FR24936 - GOVERNMENT IN THE SUNSHINE ACT REGULATIONS CASE

REFERENCE:

PR-009 64FR24936 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

DOCKET NO. PR-009 (64FR24936)

In the Matter of GOVERNMENT IN THE SUNSHINE ACT REGULATIONS DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 05/06/99 05/04/99 FEDERAL REGISTER NOTICE - FINAL RULE: NOTICE OF INTENT TO IMPLEMENT CURRENTLY EFFECTIVE RULE AND REQUEST FOR COMMENTS 05/12/99 05/12/99 COMMENT OF UNION OF CONCERNED SCIENTISTS (DAVID A. LOCHBAUM) ( 1) 05/20/99 05/18/99 COMMENT OF NUCLEAR INFORMATION AND RESOURCE SERVICE (PAUL GUNTER, DIRECTOR) ( 2) 06/03/99 05/26/99 COMMENT OF PAUL GOETTLICH ( 3) 06/08/99 05/27/99 COMMENT OF MARVIN I. LEWIS ( 4) 06/09/99 06/09/99 COMMENT OF NUCLEAR ENERGY INSTITUTE (ROBERT W. BISHOP, VP & GEN. COUNSEL) ( 5)

.06/11/99 06/09/99 COMMENT OF LOUIS A. ZELLER ( 6) 06/14/99 06/08/99 COMMENT OF PUBLIC CITIZEN (JAMES P. RICCIO, ESQ.) ( 7) 06/15/99 03/22/99 COMMENT OF CARRBORO, NORTH CAROLINA (THE HONORABLE MICHAEL R. NELSON) ( 8) 06/15/99 06/14/99 COMMENT OF NATURAL RESOURCES DEFENSE COUNCIL (DAVIDE. ADELMAN, ESQ.) ( 9) 07/13/99 06/29/99 LTR FM DENNIS K. RATHBUN TO SENATOR JESSE HELMS RESPONDING TO HIS 4/19/99 LTR TMTG LTR FM MAYOR MICHAEL R. NELSON (COMMENT NO. 8) 07/13/99 06/30/99 LTR FM DENNIS K. RATHBUN TO SENATOR JOHN EDWARDS RESPONDING TO HIS STAFF'S 5/11/99 CORRESPONDENCE TMTG MAYOR MICHAEL R. NELSON'S LTR (COMMENT NO. 8) 07/27/99 07/16/99 FEDERAL REGISTER NOTICE - FINAL RULE: NOTICE OF INTENT TO IMPLEMENT CURRENTLY EFFECTIVE RULE; RESPONSE TO COMMENTS

DOCKET NO. PR-009 (64FR24936)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 07/29/99 07/19/99 LTR FM CHAIRMAN DICUS TO REP. EDWARD J. MARKEY RESPONDING TO HIS 6/1/99 LTR EXPRESSING HIS CONCERNS RE SUNSHINE ACT REGULATIONS 07/29/99 07/28/99 LTR FM CHAIRMAN DICUS TO REP. DAVID PRICE RESPONDING TO HIS 5/13/99 LTR TRANSMITTING LTR FM MAYOR MICHAEL R. NELSON (COMMENT NO. 8) 09/03/99 01/01/84 RECOMMENDATION 84-3: IMPROVEMENTS IN THE 11 ADMINISTRATION OF THE GOVERNMENT IN THE SUNSHINE ACT", CONTAINED IN THE ACUS ANNUAL REPORT FOR 1984

• 09/03/99 10/10/85 REPORT OF ACUS ENTITLED REFORM OF THE GOVERNMENT 11 IN THE SUNSHINE ACT. REPORT CONTAINS ADVICE 11 LETTERS FROM INDEPENDENT REGULATORY AGENCIES.

09/03/99 11/08/85 ABA CHAIRMAN'S MESSAGE CONTAINED IN ADMINISTRATIVE LAW REVIEW, VOL. 37, NUMBER 4 (FALL 1985) 09/03/99 02/01/87 REPORT TO THE ABA HOUSE OF DELEGATES BY EDWARD J.

GRENIER, JR., CHAIRMAN, ADMIN. LAW SECTION OF THE AMERICAN BAR ASSOCIATION

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• 99 ~r- -3 P4 :39 OF f-,_;

AOul AMERICAN BAR ASSOCIATION SECTION OF ADMINISTRATIVE LAW REPORT TO THE HOUSE OF DELEGATES RECOMMENDATIONS

• BE IT RESOLVED that the American Bar Association offers the following guidelines to Federal agencies and courts with respect to the interpretation of the term "meeting" as used in 1

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the Government in the Sunshine Act: 4

1. So long as discussions are not "sufficiently focused on 5 discrete proposals or issues as to cause or be likely to 6 cause the individual participating [agency) members to form 7 reasonably firm positions regarding matters pending or 8 likely to arise before the agency, "the definition of 9 meeting" does not include: l.O (a) Spontaneous casual discussions among agency members of 11 a subject of common interest. 12 (b) Briefings of agency members by staff or outsiders. A 13 key element would be that the agency members be 14 primarily receptors of information or views and only 15 incidentally exchange views with one another. 16

JOO 17 (c) General discussions of subjects which are relevant to 18 an agency's responsibilities but which do not pose 19 specific problems for agency resolution.

20 (d) Exploratory discussions, so long as they are 21 preliminary in nature, there are no pending proposals 22 for agency action, and the merits of any proposed 23 agency action would be open to full consideration at a 2--1 later time.

25 2. If agencies intend to hold discussions described in subsection (b), (c), and (d), appropriate mechanisms, such as monitoring by general counsel or other agency representatives, 28 should be undertaken to ensure that such discussions do not 29 proceed to the point of becoming "meetings." In addition, 30 agencies should memorialize such discussions through notes, 31 minutes or recording as assurance to the public of compliance 32 with the Act.

100 REPORT The Government in the Sunshine Act, 5 U.S.C. §552b, was enacted in September 1976, to take effect on March 12, 1977. The Act, one of several statutes enacted in the 1970 1 s to provide greater "openness" in government~ requires in generat that meetings of the members of collegial agencies be open to the public unless the meeting has been formally closed because the matters to be discussed fall within one of the statutorY.

exemptions.

• In September, 1985, the Administrative Law Section formed a Steering Committee (Task Force on Government in the Sunshine) to conduct a review of current issues under the Sunshine Aci and to report back to the Council. This examination

• was undertaken primarily in response to three events in the past two years which have drawn attention to the Sunshine Act and certain problems which have arisen in its administration.

First, the Administrative Conference of the United States concluded, after a comprehensive study of experience with the Act, 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 decisionmaking process. The open meeting requirement has generated reluctance to discuss certain important matters; and discussions, when they occur may not contribute to achieving a consensus position. In some agencies the pattern of decisionmaking has shifted from collegial exc~anges to one-on-one encounters, transmission of views through staff, and exchanges of memoranda or notation procedure. The

• inhibition of collegial exchanges * *

• tends to weaken the role of the collegium vis-a-vis that of the staff and the agency chairman." In a carefully restrained recommendation, however, the Conference did not call directly for relaxation of the Act's open meeting requirements, but urged Congress to consider whether the Act's restrictions are advisable and if not how they migtit best be revised without undercutting the basic principle of the public's access to the fullest practicable information about the government's decisionmaking process. The Conference further suggested that there might be some relaxation in the requirement for open meetings** 11 when the discussions are preliminary in nature or pertain to matters, such as budget or legislative proposals, which are to be considered in a public forum prior to final action."l Second, in April 1984 the Supreme Court in Federal Communications Commission v. ITT World Communications Inc., 466 1 Administrative Conference Recommendation 84-3, 1 C.F.R.

§305.84-3 (adopted June, 1984).

U.S. 463, adopted a narrower*definition of the t~rm "meeting" for purposes of the open meeting requirement than had been employed by the Court of Appeals for the D.C. Circuit and urged by proponents of a broad interpretation of the Act. At issue .i.n the

!!! case was the participation of three members of the Federal Communications Commission in a series of conferences with their European counterparts "intended to facilitate joint planning of telecommunications facilities through an exchange of.information on regulatory policies," 466 U.S. at 465. The three members were not a quorum of the full Commission, and the statutory definition of "meeting" requires the presence of a quorum, but they were a quorum of a subdivision of the Commission, the ~elecommunications Committee. On this basis the Court of Appeals for the D.C.

Circuit had concluded that the discussion of telecommunications policy by a quorum of a subdivision of the Commission' with their foreign counterparts was a covered meeting. The Supreme Court disagreed, and set forth a narrower test of a "meeting" *

• [The] statutory language contemplates discussions that "effectively predetermine official actions." [citation omitted] 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 a~ency." R. Berg & S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act 9 (1978) . . * . ITT alleged neither that the [Telecommunications] Committee formally acted upon applications for certification at the Consultative Proc~ss sessions nor that those sessions resulted in

• firm positions on particular matters pending or likely to arise before the Committee. Rather, the sessions provided general background information to the Commissioners and permitted them to engage with their foreign counterparts in an exchange of views by which decisions already reached by the Commission could be implemented. As we have noted, Congress did not intend the Sunshine Act to encompass such discussion.

[466 U.S. at 471-72.]

Third, the Nuclear Regulatory Commission, in response to the Supreme Court's ITT decision, acted to revise the definition of "meeting" in its Sunshine Act regulation to incorporate the key language from the Supreme Court's opinion, and in so doing served notice that it read that case to permit "informal preliminary briefings" and "generalized background discuss.ions {in which] Commissioners can decide what topics

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100 should become the subject of more particularized proposals," 50 F.R. at 20890 (May 21, 1985). The NRC action inspired considerable unfavorable comment in the news media and in Congress, and although the rule change was effected on an interim basis, ~he NRC has not, so far as we know, used the more libera) provisions.

While these events have served both as background and as catalysts, the Steering Committee was given a broad charge to consider the experience under the Sunshine Act and, in particular, what the American Bar Association might usefully recommend to the agencies and to Congress on the basis of that

&xperience. In pursuing this task we hav~ not engaged in much original research but have relied primarily on the report to the Administrative Conference by Professors Welborn, Lyons and Thomas, and the reported cases, particularly F.C.C. v. ITT World Communications. We have, in addition, solicited written comments from agencies and other interested groups, and met once with a group of agency general counsels and their representatives and once with a group of public interest group and media representatives.

We have broken down our inquiry into four parts:

First, an examination of the ITT World Communications case and its impact, actual and potential, on agency practices. Second, a look at whether a statutory exemption should be created under the Sunshine Act for agency deliberations on proposed legislation, budgets and the like.

Finally, general consideration of whether the Sunshine Act as a whole should be reevaluated after ten years of operation.

I. ITT.World Communications and Its Implications for Administration of the Sunshine Act

• The Nuclear Regulatory Commission's revision of its Sunshine regulation to conform to or, perhaps, to test the limits of what is permitted by the .Supreme Court's ITT decision raises the initial question -- Will ITT make a significant change in the administration of the Act? In fairness to NRC it must be emphasized that while most agencies have from the beginning simply tacked the statutory definition of "meeting" in their regulations, the NRC in 1977 had defined "meeting" i~ terms which appeared to go beyond the general understanding of the meaning of the Act even before the ITT decision.2 It is understandable that 2 The definition had excluded "gatherings of a social or c~remonial nature" amd briefings by representatives of other given the context in which the NRC operates and the broad public interest in its deliberations, the amendment of its rules would provoke interest and controversy. It does not follow, however, that the ,m op1ilion has broad implications for all agencies _

administering the Sunshine Act (or even for the NRC), and this question was the first we sought to address.

It is important to note that whether a given "gathering" of agency members is a "meeting" has significant consequences for administration of the Act. Although there are a variety of grounds upon which a meeting may be legally closed, somewhat elaborate procedures must be followed to close a meeting,3 and even then a transcript or, in some cases, detailed minutes must be maintained,4 and the circumstances under which such materials must later be made available to the.public are by no means clear.S Furthermore, even if a meeting is not closed to the public, some formalities m~st be followed, including public announcement, ordinarily, at least a week in advance, and notice in the Federal Register.6 On the other hand, if a "gathering" is not a "meeting," no announcement or procedures are required because the Act has no application.

The Sunshine Act defines a "meeting" as "the deliberations of at least the number* of individual agency members required to take action o~ behalf of the agency where such deliberations determine or result in the joint conduct or discosition of official agency business . . . * " (Emphasis added). The first part of the definition is simple enough; it is the passage we have underlined which has presented problems or, from the agencies' point of view, opportunities.

The Supreme Court's language quoted earlier in this report constitutes a gloss on the underlined passage of the definition. It draws on the language of the Administrative agencies or departments or representatives of foreign governments or international bodies "where such briefings or discussions are informational in nature ~nd are not conducted with specific reference to any particular matter then pending before the Commission." See 50 F.R. 20889. The language, therefore, impliedly included staff briefings within the definition of meeting although a number of other agencies excluded them. See note 12 infra.

3 5 U.S.C. §SS2b(d).

4 5 U.S.C. §SS2b(f)

• 5 See Clark-Cowlitz Joint Operating Agency v. FERC, 775 F.2d 359 (D.C. Cir. 1985), petition for rehearing granted.

6 5 u.s.c. §552b(e).

I OU.

Conference'.s Int~rpretive Guide, but it must be borne in mind that the controlling question is what the Court-meant and not what the authors of the Guide meant by this language.

It has been sug. gested that the Supreme Court's opinion should be limited to the facts before the Court. Concededly, when the Supreme Court construed "official agency business" in the context of the case as measured by the subject matter

• formally delegated to the Telecommunications Committee (thus rejecting the D.C. Circuit's essentially circular definition that it meant anything the members were expressly or impliedly authorized to do in the course of their official duties), it was relatively easy to conclude that whatever else the Consultative Process was, it was not part of the decisionmaking process of-the Telecommunications Committee. But it_ 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 ~nd applying the Sunshine Act. 117 We conclude, therefore, that the Supreme Court meant what

• it said in ITT World Communications, and that it intended to provide guidance to th~ agencies and the courts in applying t~e definition of "meeting."

There are, nevertheless, obstacles to translating the opinion into guidelines for determining when a given gathering is a "meeting. First, the definition of what is not a meeting is negative. Whether stated in terms of the statutory language,*

i.e., any discussions that do not "determine or result in the joint conduct of official agency business," or in terms of the Supreme Court's gloss, any discussions not "sufficiently focused on discrete proposals," etc., it will cover a multitude of different situations which are beyond the periphery of the definition of what is a meeting .

• The problem is compounded by the fact that there are a number of variables exceedingly difficult to state in the abstract, for example, the range of circumstances surrounding the discussion and the relationship of the subject matter of the discussion to anticipated or possible agency action.

But undoubtedly most frustrating to efforts to state firm guidelines is the fact that any description of hypothetical gatherings is likely to be stated in conclusory terms which do not really resolve practical problems. For example, there is genera 1 agreement, even among strong advocates of open m*eetings, that "casual" conversations are not covered. Indeed, the Conference Report explained the final revision of the definition of meeting as "intended to permit casual discussions between agency members." But "casual" is not a very precise term. It*s dictionary meanings include "produced as a result of chance,"

7 Interpretive Guide 3.

7

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• 1' "occurring ~ithout specific motivation," "occasional,"

"informal," "without significance," etc. Chance and infrequency are not meaningful qualifications with respect to members of a collegium who presumably see each other nearly every day, so that the*essential element of a casual discussion would appear to be its informality or lack of significance. "Informal" is another word frequently called upon to explain what kinds of discussion are not covered, as in "informal background discussions [that]

clarify issues and expose varying views."8 Yet informality, with its reference to the form of the discussion, seems an

• inappropriate ~est, given that the Act's legislative history indicates ~he test of a meeting is what actually happens rather than the members' purpose in coming together. Other terms that have been used to limn the statutory distinction, such as "preliminary,_" "exploratory,"'and "tentative," may provide somewhat more guidance, but they are likewise largely conclusory and their applicability to a particular discussion is more easily

• determined in retrospect than at the time the discussion commences.

The difficulty of specifying iri advance those .

characteristics of a particular discussion which will cause it to fall short of becoming a meeting has'been urged by opponents of the NRC rule as a reason for not importing the Supreme Court's view of the,Act into agency rules. Even if that view is correct, they ~rgue, the test can only be applied retrospectively and is not a reliable basis for deciding whether to hold a gathering which is n6t to be treated as a meeting. This argument seems to us to prove too much for its logic points to permitting !!2 discussion of agency business among the requisite number of agency members without treating it as a meeting. Yet this result seems to us clearly not to have been intended by Congress,9 and it would have a serious impact on the ability of agencies to conduct day-to-day business. ,

8 FCC v. ITT World Communications, 466 U.S. at 469, guoting from the Senate Committee Report.

9 The argument, on analysis, seems to be saying that although Congress, after much deliberation, wrote a higher threshold test, "deliberations [which] determine or result in the joint conduct or disposition of official agency business," agencies should apply the statute as if it read "discussions which are about official agency business," lest a given discussion unintentionally drift over the line. But Congress can hardly have gone to such pains to articulate a narrower st~ndard 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 or internal guidelines, the elements or characteristics of a discussion which will cause it to fall short of b~ing a meeting.

100

. Therefore, without minimizing the difficulties *in the task, we believe it is worthwhile to attempt to set forth in some detail those types of gathering 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 Intl. 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. 10 11 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 th~ 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 iri 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 ihe 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.11 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 10 Interpretive Guide 9n.

11 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.

1 O*O with specific reference to any particular matter then pending before the Commission." Several other agencies have long excluded briefings from the definition of meeting.12 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 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:

al 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 t~e International Trade Commission would be permissible if the Commission acts only with re~ect 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.

b) 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 do woul~ 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 12 See 12 C.F.R. §S0Sb.2 (FHLBB); .49 C.F.R. §804.3 (Natl.

Transportation Safety ~card); .12 C.F.R. §311.2(b) (FDIC).

1_00 may be sufficiently dis~rete to come within the statutory definition. In short, the status of "preliminary" or "exploratdry" 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,13 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."

• Summary Thus, we may conclude that agencies are free to treat certain discussions of agency business, certainly, casual discussions and briefings, *nd probably, "general" and "exploratory" discussions, as not covered by the Sunshine Act.

Should they do so? We must emphasize that it is not our purpose to urge agencies to close any discussions now open. Open

• meetings serve valuable fu~ctions. Furthermore, while this study has not focused on the adequacy of the available grounds for closing meetings, we believe that, putting aside the problems of legislative and budget discussions, discussed later in this report, the exemptions in the Act a%e sufficient to protect information for which there is a legitimate need for confidentiality.

But the fact is that the Sunshine Act"has had an inhibiting effect on the initiation of discussionsamong agency members. This is the conclusion of the Welborn report, and it is confirmed by our meeting with agency general counsels. Quite apart from the evident preference of many members for closed meetings, the sheer logistical difficulties in invoking the machinery of the Act has made difficult if not impossible the maintenance of close day-to-day working relationships in those agencies, by far the majority, where three or even two members constitute a guorum.14 13 "A discussion which si~nificantly furthers the decisional process by*narrowing issues, discarding alternatives, etc.,

should be treated as a meeting even though it does not and is not expected to achieve a complete resolution. On the other hand, those exchanges of views which are not of a nature to foreclc;>se or narrow discussion at subsequent collegial gatherings might be*

treated as outside the definition without loss to the ~alues the Sunshine Act seeks to achieve." Interpretive Guide 10n

• 14 One agency general counsel reported the* agency members were very concerne~ about domplying with the Act. As a result three members, a quorum, did not even go to lunch together. The.

We believe that a sensible and sensitive application of the principles announced in the ITT case can ease the somewhat stilted relationships that exist in some agencies. However, it is important to establish procedures which provide, insofar as possible, credibility for the agency process and assurance to the public that these principles are not being abused. The first sentence of section 552b(b) enjoins agency members .£2! to "jointly conduct or dispose of agency business other than in accordance with" the requirements of the Act, and if this prohibition is to an extent redundant, it is a reminder ~o the members that when they are in a gathering which is not being treated as a meeting, they have a duty to conduct themselves

.accordingly.

Therefore, we believe it is the obligation of each agency, and particularly its general counsel's office, to brief

• the members on the requirements of the Aci and to provide guidance on what kinds of discussion are permissible outside the meeting context.

It was suggested in our meetings that if agencies are to use the added flexibility that the ITT decision provides, there should be policing mechanisms designated to provide a record of what was discussed so as to assure the*public .that the discussions did not rise to the threshold of a meeting."

Obviously, there are problems in proceduralizing "non-meeting meetings." For example, casual discussions would cease to be casual if each one was to be attended by a representative of the general counsel or extensively memorialized. Briefings and general discussions present somewhat less of a problem in this respect. Certainly, they could be monitored by the general

• counsel or his representative and notes taken.

It remains to be considered whether a broad reading of the ITT case would check the loss of collegiality which the Administrative Conference pointed to and which has been confirmed by our discussions with agency counsels. It was the well nigh unanimous view of those to whom we spoke, both proponents and critics of sunshine, that the impact of the case on collegiality is likely to be slight. It is true that to the extent it would contribute to more normal interpersonal relationships among agency members, it would have some tendency to increase collegiality. But since the line between "preliminary" or "general" discussions and "meetings" is likely to remain hazy, conscientious agency members are likely to feel inhibited.

whenever such discussions move to address agency choices.

Ultimately, it is those exchanges of views which are part of the members were reluctant to discuss among themselves even housekeeping matters. The result has been to increase staff power, because it is at the staff level that discussions may occur.

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' ., l II process of reaching a group decision where collegiality is most important, and those discussions are cl~arly m~etings under*the Act. .

II. Possible Statutory Exemption for Agency Deliberations on Proposed Legislation, Budgets and the Like In Common C~use v. Nuclear Regulatory Commission';*, 674 F.2d 921 (D.C. Cir. 1982), the Court ruled that none of the Sunshine Act's exemptions provides a blanket exemption for discussions at any stage of the budget preparation process. The Court specifically refused to apply Exemption 9(Bl (protection of premature disclosure), Exemption 2 (matters relating solely to internal personnel rules and practices), and Exemption 6 (protection of personal privacy).

. Absent future consideration of this basic issue by the Supreme Court, it appears likely that an agency's consideration of budget proposals generally will not be exempt from the Sunshine Act. The same general approach would seem to apply to

• an agency's consideration of legislative proposals. Under these circumstances, the Tas_k Force solicited written and oral comments from a number of agencies as well as public interest and media organizations. No clear consensus emerged from the oral and written comments received. In some instances, agencies closed meetings to discuss. budget proposals where they would impact upon law enforcement policies (Exemption 7). Other agencies indicated that they did not consider the budget and legislative area to.be of particular sensitivity. P~blic interest groups and media organizations, on the other hand, felt that the public had a compelling interest in access to information on budget discussions. For example, because the decrease in the size of an enforcement or oversight office could dramatically affect an

• • agency's performance, such groups felt the public should be a party to that process. In addition, faced with the fiscal

• constraints of Gra~m-Rudman, such groups believed that the allocation of limited monies will become all the more critical.

Accordingly, strong opposition was voiced to any change in the law that would alter the public's access to information on

• budgetary matters. Similar, although less vocal, opposition was expressed toward exempting legislative discussions.

We understand the reluctance of some agencies to hold candid budget discussions in open meetings, and we realize that the alternative to closed meetings on the budget may be no meetings at all. Yet this argument appears to prove too much, for there is ample evidence that Sunshine requirements have discouraged the holding of meetings on a broad range of subjects and inhibited the freedom of expression at such meetings as are held. We do believe that there are few, if any,_subjects of more moment to the agency than how it plans to allocate its resources

and prioritize its tasks. While it is true, as the Welborn report points out, that the agency's decision on its proposed budget is preliminary in the sense that the proposal must firat be passed upon by 0MB and then by the Appropriations Committees of Congress, nevertheless, it is doubtful that these reviews are, in effect, d e ~ - As a practical-matter the agency decision sets parameters to the subsequent reviews. Consequently, unless the entire Sunshine principle is to be reconsidered, we cannot recommend a special exemption for budget discussions.

We reach a similar conciusion with respect to discussion of legislative propos~ls, recognizing that the elements of the equation are somewhat different. On the one hand, the formulation of the agency position is likely to be more preliminary to the ultimate legislative decision than in the case of the budget, simply because the Congressional examination is likely to be more thorough and more open. But for this very reason we do not see ~hy the agency members cannot candidly consider the pros and cons of a legislative proposal, as they would of a proposed rule. In short, we do not believe the case has been made for a special exemption.

III. Reevaluation of the Sunshine Act In our discussion with agency general counsels and their representatives, it became obvious that the provision of gciidelines on what constitutes a "meeting" (see Part I above) wouid not address the broader question of the impact the Sunshine Act has had upon collegiality in multi-member agencies. For that reason, the Task Force was urged to reevaluate the Sunshine Act as a whole, particularly in view of the fact that the Act is about to have its 10th anniversary

• The Task Force has carefully considered whether it sh~uld ~rge a general reevaluation of the Sunshine Act. In so doing, ~t.has e~amined in detail the Welborn Report prepared for the Administrative Conference as well as the resulting Recommendation 84-3, adopted on June 28, 1984.

The examination undertaken by the Administrative Con~erence ~as extremely thorough and spanned a considerable peri~d of time: Drafters of the Welborn Report submitted detail 7d questionnaires to affected agencies in an attempt to determine the Sunshine Act's impact on those agencies. Although the Task Fo~ce has ~et with agency general counsels and repr~sen~ati!es of interested groups, it has n6t had the time nor the inclination for the type of comprehensive examination

~ndertaken_by th 7 Administrative Conference. Based on the informal ~iscussions the Task Force has had with interested persons, it has concluded that it has little to add to the thorough analyses undertaken by the Administrative conference and that no clear consensus has emerged on whether the Act is in need of any significant revision. Under the circumstances, the Ta*sk Force believes the most meaningful contribution the Section of Administrative Law can make is to provide guidance, within the constraints of existing law, on what types of informal gath~rings and discussions are permi t_ted without bringing into play the requirements of the Sunshine Act. To go beyond that point and to attempt to strike a balance between the public's need for access to information and the need for collegiality among agency members is an extremely difficult.and delicate question and one which the Task Force finds itself unable to resolve. Accordingly, the Task Force does not urge that the Sunshine Act be reevaluated at the present time.

Edward J. Grenier, Jr.

Chairman, Section of.

February, 1987 Administrative Law General Information Form 1 C lJ To Be Appended to Reports with Recommendations No.

(Le_a_v_e_B_l_a_n..,.k_)_

Submitting Entity Section of Administrative Law Submitted By Edward J. Grenier, Jr., Chairman

1. Summary of Recommendation(s).

Provide guidelines on definition Df "meeting" in Government in the Sunshine Act.

2 * . Approval by Submitting Entity.

April 25, 1986; reviewed, no changes made, October 11, 1986

3. Background. (Previous submission to the House or relevant Association position.)

In August 1974, the American Bar Association adopted a resolution favoring enactment of the Government in the Sunshine Act with suggested amendments.

The ABA filed amicus brief in U.S. Supreme Court in FCC v. ITT, 466 U.S. 463, supporting result ultimately~ached by the Court, concerning the meaning of "meeting" in the Government in the Sunshine Act.

We first submitted this recommendation to the House for action at the Annual Meeting in August 1986. We withdrew it and agreed to defer action until the Mid-year 1987 Meeting at the request of the ABA-ANPA Task Force (Special Committee on Cooperation with the American Newspaper Publishers Association).

4. Need for Action at This Meeting.

To provide guidance to federal agencies and courts faced with quest.ions under the Governmen*t in the Sunshine Act.* *

5. *status of Legislation. (If applicable.)

N/A

6. Financial Information. (Estimate of funds required, if any.J N/A

7. Disclosure of Interest. (If applicable.)

None

• 8. Referrals.

A copy of the Resolution and Report was sent to all Section and.Division chairs in late June, 1986. A copy was recirculated to all Section and Division Chairs and to ABA affiliated entities in November 1986.

9. Contact Person. (Prior to meeting.)

Thomas M. Susman (202) 429-1600

10. Contact Person. (Who will present the report to the House.)

Richard H. Keatinge (213) 626-5241

DOCKETED USNPC I

• ADMINISTRATIVE LAW REVIEW CONTENTS

• 99 SEP -3 P4 :39\ Fall 1985, Volume 37, Number 4 I

Chairman's Message V Colloquium on Nonl;twyer J,rattice .

Before Federal Administrative Agencies Foreword 359 William R." Robie Prepared Papers Nonlawyer Practice Before Federal Administrative **

Agencies Should Be Encouraged 363 Jonathan Rose Nonlawyer Practice Before Federal Administrative Agencies Should Be Discouraged 375 Robert G. Heiserman Colloquy Introduction 383

• William R. Robie The Case Against Nonlawyer Practice 385 Robert G.*Heiserman The Case For Nonlawyer Practice 391 Jonathan Rose Open Discussion 397 Experiences of Three Federal Agencies Introduction 407 William R. Robie Nonlawyer Practice Before the Patent and Trademark Office . 409 Donald J. Quigg Nonlawyer Practice Before the Social Security Administration 413 Jacob M. Wolf

STATEMENT OF OWNERSHIP, MANAGEMENT AND CIRCULATION CHAIRMAN'S (Act of August 12, 1970; Section 3685, Title 39, United States Code)

1. Title of Publication: Administrative Law Review (ISSN: 0001-8368) 1b. Publication number: 956-320. 2. Date.ofFiling: _September 27, 1985.

3. Frequency ofIssue: Quarterly. 3a. No. ofIssues Pu.blf.shed Annually: 4. 3b.

Annual Subscription Price: $10.00. 4. Location of ltitBtvn office of Publica- <

tion: American Bar Association, 750 N. Lake Shd~e,Drive, Chicago, IL 60611. 5. Location of the Headquarters of the Pu~lfslaer: Americari liar G ov~rnm~nt in the sunshine is;~ phrase which, hke "c:onsumer protection" and .

"protection of the tnvironm~nt," :sparks an Association, 750 N. Lake Shore Drive, Chicago, 1'LJi06 l I. 6. Publisher:

American Bar Association. Editor: John H. Reese, University of Denver emotional response tendering dispassionate .

College of Law, 1900 Olive St., Denver, CO 80220. Managing Editor: analysis difficult. The legislative his'tory of the Susan L. Grant, University of Denver College of Law. 7. Owner: Amer- Government in the Sunshine Act (codified at 5 ican Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. U.S.C. § 552b) draws for the Act1s purpose B. Known bondholders, mortgagees, and other security holders: None. upon the words of Federalist No. 4.9 that "the people are the *only legitimate foundation of power" and then soars rhetorically' to the con-Extent and nature of circulation Average No; Actual No. W1u1AM E. MuRANE clusion

• t h at, "a bsent specia

' l circumstances, copies each copies of single there is no reason why the. public should not have the right to observe issue during issue published preceding nearest to the agency decision-making process first-hand."  :

twelve months filing date

• No one would contend that multi-member agencies shotdd operate entirely behind closed doors. It would appear, however, that the Sun-

a. Total No. of copies printed 8,145 8,000 shine Act in operation may well have diminished the collegial character

b. Paid circulation ' of agency decision making, created a reluctance of agency members I. Sales through dealers and even to discuss certain important agency matters, and shifted the carriers, street vendors decision-making process to one-on-one discussions between members, and counter sales 0 0 exchanging views at the staff level, and. exchanging views by written

2. Mail subscriptions 6,886 7,047 memoranda. The Administrative Conference of the United States,

c. Total paid circulation 6,886 7,047 after thoughtful analysis and in its Recommendation 84-3 (adopted

d. Free distribution June 28, 1984), concluded that under the Sunshine Act "the degree of (Samples, complimentary) 642 288 collegiality in the multi-member agencies has diminished." According-*

. e. Total distribution 7,528 7,335 ly, the Conference has recommended that Congress consider whether

f. Copies not distributed I. Office use "the present restrictions on clos~d agency meetings are advisable and, 617 665

2. Returns from news agents 0 0 if not, how they might best be revised without undercutting the basic

g. Total

• 8,145 ~.ooo principle of the Act that 'the public is entitled to the fullest practicable information regarding the decision-making processes of the Federal I certify that the statements made by me above are correct and complete. Government.'"

At its Fall Meeting in September 1985, the Council of the Adminis-RONALD F. KADLEC trative Law Section considered this matter, and accepted the challenge*

of attempting to determine whether it is feasible to adjust the statutory September 27, 1985 balance embodied in the Sunshine Act in such a manner that will V

vi CHAIRMAN'S MESSAGE

• permit agencies to function in a collegial manner, at times behind dosed doors, yet still preserve for the public an acceptable level of

• 357 accountability for the actions which the agencies take on behalf of the people. *-, _ COLLOQUIUM ON The task is not an easy one, witness the storni of protest which has greeted the inte:-im rule proposed in May 1985, by the Nuclear Regula-_ NONLAWYER .PRACTICE tory Commission which modestly restricts the definition of"meetings" for Sunshine Act purposes in language taken tfitectly from the Su-BEFORE FEDERAL preme Court's unanimous decision in FCC v. ]'ft, World Communica- ADMINISTRAT1\TE AGENCIES tions, 104 S. Ct. 1936 (1984). (See, for example, 1-i;lt 2743, 99th Cong.,

First Session, a bill to require the ~RC "to adhere tdtertain procedures in the conduct of its meetings/') Doubtless much ofthe criticism leveled at the NRC stems from the somewhat heavy-handed way in which the proposed rule was announced and put into plact ~h an interim bd1i11; Nevertheless, the NRC has a point. The Sunshine Act has, as a practical matter, driven soi:ne agency decision making underground and dep-rived both the agencies and the public which they serve of the benefit of true collegial decision making.

'- The year ahead promises to be an interesting one in additional ways.

The Administrative Law Section is dose to completion of its project to prepare a "restatement" of the law concerning judicial review of agency action. When published in a later issue of the Administrative Law Review, the restatement should prove to be a valuable analytical re-source for practitioners, agencies and appellate courts alike.

At our Spring meeting in Williamsburg;we will have a symposium in observance of the 40th Anniversary of the Administrative Procedure Act, which may well spawn renewed efforts to deal with the important hut elusive subject of regulatory reform.

I look forward with enthusiasm to the results of our undertakings and welcome the participation of any and all members of the Section in Sponsored by the our many activities.

• American Bar Association*:

Standing Committee on Lawyers' Responsibility for Client Protection Washington, D.C.

November 8-9, 1984

-- - ,, ., . \,*c ""i0f ;1 r:.r-1

~~~h.~:~:QSED RULE ~Ql] -~~2:'.~:-

{t"I F (l 21/ 9:1j2_ _______ _

• Refarm of the Government in the Sunshine Act Special Committee to Review the Government in the Sunshine Act

• October 10, 1995 This repon and recommendation was prepared by a Special Committee appointed by the Chair of the Administrative Conference of the United States. The views expressed arc those of the Committee as a group. The names of the members arc listed on the inside cover. The full membership of the Conference did not have ~ consider this rcpon before the agency *ceased operations.

REFORM OF THE GOVERNMENT IN THE SUNSHINE ACT Report and Recommendation by the Special- Committee to Review the Government in the Sunshine Act The Government in the Sunshine Act, enacted in 1976, requires federal agencies headed by a collegial body, a majority of whose members are appointed by the President and confirmed by the Senate, to open its meetings. About -50 federal agencies are subject to the Act,* including the major independent regulatory commissions such as the Securities and Exchange Commission, Federal Trade Commission, Federal Communications Commission and the National Labor Relations Board.

(Departments, and many agencies headed by a single individual, are not covered by the Act.) The

. Act's ten enumerated exemptions generally parallel those in the Freedom of Information Act (FOIA),

with one important exception. The Sunshine Act has no exemption _that parallels the fifth exemption in the FOIA for interagency and intra-agency "pre-decisional" 1

memoranda and letters. The Act also prescribes in detail the procedures that agencies must follow to invoke an exemption and to close a meeting. The Act's primary purposes are to provide the public with information regarding the decisionmaking processes of federal agencies, and to improve those processes; while protecting the rights of individuals and the ability of the government to carry out its responsibilities.

In a letter dated February 17, 1995, signed by over one dozen current and former commissioners of multi-member agencies and several private organizations, the Chair of the

• Administrative Conference of the United States (ACUS) was asked to review the effectiveness of the Government in the Sunshine Act. . The letter's signatories stated strong support for the Act's underlying goal of enhancing public understanding of agency decisionmaking, but expressed concern as to whether the Act is, in fact, meeting this goal as well as it might. They also suggested that the* Act has adversely affected the decisionmaking at multi-member agencies because of the Act's "chilling effect" on the willingness and ability of agency members to engage in collegial deliberations A copy of the February 17 letter is attached to this report as Exhibit 1.

In a letter to the ACUS Chair, dated May 11, 1995, the members of the Federal Trade Commission, referring to the February 17 letter, endorsed an examination of the effectiveness of the Act. The FTC Commissioners stated: "Notwithstanding the laudable goals of this legislation, having operated under the Act for more than fifteen years, questions may be raised whether it provides for the proper balance between public access and candor in agency deliberations and whether the purposes arguably served by the Act are not adequately addressed by other statutes such as the Administrative Procedure Act." A copy of the May 11 letter from the FTC is attached to this Report as Exlubit 2.

The Chair established the Special Committee to study .issues raised by these letters. The Committee, in a series of open meetings held from May to September, and at a public h~g held on

2 September 12, 1995, 1 heard from numerous agency officials and reviewed articles written for ACUS and others to the effect that public meetings under the Act often lack meaningful substantive exchange of ideas and real collective deliberation on issues being decided. Among the reasons given for the inhibiting effect of public meetings on collective *decisionmaking are the following: concern that providing initial deliberative views publicly, without sufficient thought and information, may ham, the public interest by irresponsibly introducing uncertainty or confusion to industry or the general public;* a desire on the part of members to speak with a uniform voice on matters of particular importance or to develop negotiating strategies which might be thwarted if debated publicly; reluctance of an agency member to embarrass another agency member, or to embarrass himself, .through inadvertent, argumentative, or exaggerated statements; concern that an agency member's statements may be used against the agency in subsequent litigation, or misinterpreted or misunderstood by the public or the press, as for example, when the agency member is testing a position by *'playing devil's advocate" or merely "thinking out loud"; and concerns that a member's statements may affect financial markets.

In addition, the Committee has received extensive and credible testimony that the restrictions

• imposed by the Act have had the effective of not only diminishing discussions on the merits of issues before agencies, but also preventing debate concerning agency priorities and the establishment of agency agendas, even though such discussions of a preliminary nature may not technically constitute a "meeting" otherwise required to be held in public under the Act.2 While it may be permissible pursuant to a literal interpretation of **meeting"3 for a quorum of agency members* to conduct preliminary discussions on an issue, as a practical matter it is extremely difficult for an agency member to make the distinction between actions that actually dispose of agency business and those that merely constitute preliminary discussions. Agency members, and agency general counsel who advise them, are understandably-and appropriately--concemed. about engaging in discussions with a quorum of agency members that could be perceived, even arguably, as crossing the line, even though the discussions may, in fact, not dispose of official agency business. And, of course, it is difficult, a priori, to know whether a conversation that is anticipated to be preliminary will tum into a conversation that takes on a more definitive cast.

Although there obviously are exceptions, and open meetings held under the current Act are valuable in that they allow an agency to explain publicly the results of its prior decisionmaking, the Committee believes that, generally, true collective decisionmaking does not occur at agency public meetings. Further, the Committee believes the Act also promotes inefficient practices within agencies which themselves contribute to the erosion .of collegial decisionmaking and, correspondingly, to a decline in the quality of agency decisions that the public receives. For example, in order to avoid ha,ing a meeting of a quorum, the Act has the effect of encouraging agencies to use one-on-one "rotating" meetings in order to reach consensus among the agency's members. This is obviously an inefficient way for a multi-member body to conduct business, just in terms of the additional time spent by agency members in cond~cting such meetings, compared to a group meeting at which all n:iembers could 1

A copy of. the Federal Register notice, dated August 8, 1995 (60 Fed. Reg. 40302) is attached to the *Report as Exhibit 3. The hearing transcript is attached as Exhibit 4.

A "meeting** means the "deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result iM the joint conduct or disposition of .

official agency business .... " 5 USC 552(a)(2).

' See FCC,*. 1TI World Communications, Inc., 466 US 463 (1984).

'f 3

deliberate together. More importantly, serial meetings of this type are no substitute for collective decisionmaking; the outcomes of such meetings may significantly vary from those that might have resulted from a free exchange of views among all the members of a multi-member agency. Another consequence of the Act has been that it encourages the deliberative process to be conducted by and through the staff of the agency members, enhancing the power of the intermediary staff members vis a J vis the agency members and, perhaps, reducing the accountability of appointed agency members.

The Committee is also aware of and is concerned about the tendency for agencies subject to the Sunshine Act to rely increasingly on notation voting (i.e., voting on an item by circulation based on a memorandum without discussion in a public meeting) when taking action on important substantive matters. The Sunshine Act does not prohibit notation voting, and notation voting was used to some extent prior to enactment of the Sunshine Act to deal with routine or emergency matters. Nevertheless, the routine use of this mode of decisionmaking, at least with regard to important substantive matters, does not further the Act's goal of openness and improved public access to agency decisionmaking.

Thus, to the extent that the Sunshine Act has increased this use of notation voting, it has diminished whatever opportunity for collective decisionmaking would have existed at a meeting attended by the agency members.

In light of the above, the Committee is concerned that the public is neither receiving the enhanced access to the governmental decisionmaking process that the Act envisioned, nor as discussed below, is it receiving the benefit of better agency decisions through collegial decisionmaking. It should be noted that the Committee also heard from represlntatives of several major press-related organizations who, while not disputing the view that agency members are generally reluctant to have substantive discussions in public meetings, expressed the view that such public officials should change their behavior and be admonished to do so. These representatives tended to believe that the Act itself was not the problem. The Committee was nevertheless persuaded that the Act does need to be adjusted, and it offers the following recommendations for changes in the Act (and in agency behavior) in the belief that these adjustments will increase collegial decisionmaking among the members of multi-member agencies, and at the same time improve, or at )east not diminish, the public's access to the

• agency's actual deliberative process.

The Committee notes that concerns with respect to the effectiveness of the Act and its impact on the collegiality of agency decisionmaking have been the subject of debate for some time. 4 Moreover,

• it must be remembered that the principal reason that Congress has established multi-member agencies in the first place is because Congress has made the judgment that, for the matters subject to the agency's jurisdiction, there is a benefit from a collegial decisionmaking process that brings to bear on the ultimate decisions the diverse viewpoints of agency members who have differing philosophies, experiences, and expertise. If the Act has had the effect, as a matter of fact, of diminishing, or in some cases negating, the collegial decisionmaking process that is the raison d'etre for a multi-member agency, without enhancing public understanding of the agency decisionmaking process, it is appropriate to consider alternative models that are consistent with achievement of the objectives of the Act.

"See ACUS Recommendation 84-3, "Improvements in the Administration of the Government in the Sunshine Act, 1 CFR 305.84-3, 49 Fed. Reg. 29942, (July 25, 1984).

4 Therefore, the Committee recommends that Congress establish a time-limited pilot program that would allow agencies more leeway to have private meetings, subject to appropriate memorialization, if they opt to make commitments to avoid undue use of notation voting and to hold regular open meetings. The Committee recommends five to seven years as the time period-enough time to allow an assessment of the pilot to see whether the approach encompassed in it achieves the twin purposes of increasing the availability of information to the public and increasing collegial decisionmaking in the agencies. If Congress finds that the pilot worked well, it could amend the Act accordingly, if the r assessment shows problems or bad faith on the part of agency decisionmakers in carrying it out, it could be terminated at that point.

More specifically, the pilot*program should authorize an agency subject to the Government in*

the Sunshine Act to allow its members to meet in private, without advance notice, provided that the agency requires such meetings to be memoriaUzed by "a detailed summary" of the meeting, made public no later that five working days after the meeting, that would indicate the date, time, participants, subject matters discussed, and a review of the nature of the discussion. Before such pilot program may go into effect, the participating agency also would have to agree (1) to conduct votes and take other official actions on important substantive matters (not covered by the Act's exemptions) in open public meetings and to refrain, to the extent practicable, from using notation voting procedures for such matters, and (2) to hold open public meetings, to the extent practicable at regular intervals, at which it would be in order for members to address issues discussed in private sessions or items disposed of by notation. This opportunity for discussion is not intended to imply that finality of matters previously voted on by notation would be affected by such discussions except to the extent that the agency acts consistently with its own procedures for reconsideration. The results of such a pilot program should be examined carefully by Congress and other appropriate entities before it is extended or made permanent.

The Committee recommends, in addition to the institution of the pilot program, that the Act be amended to require agencies to dev:elop and publish rules or policy statements outlining their procedure for notation voting and the types of issues for which it will normally be used. The Committee also recommends that agencies hold regularly scheduled open meetings at which it would be in order for members to discuss, among other things, items disposed of by notation.

The Committee was also convinced that there is a special problem caused by the Act with regard to agencies operating in an adjudicative capacity. The Act currently contains an exemption that permits closure of meetings involving the "initiation, conduct, or disposition by the agency of a*

particular case of formal adjudication pursuant to the procedures in section S54 of [the APA] or otherwise involving a determination on the record after opportunity for a hearing." Agencies such as the Federal Trade Commission and the Occupational Safety and Health Review Commission (OSHRC) frequently and properly close meetings to discuss the disposition of such cases. The problem occurs when, after such a meeting, the commissioners begin writing the opinions necessary in such cases.

Should they wish to discuss the wording of such an opinion, as would an appellate cou~ the members have* to notice, and vote to close, another "meeting" under the Act. Obviously, this inefficiency is heightened in the case of a three-member commission such as the OSHRC where no two members can ever discuss agency business in private because they would constitute a quorum. Therefore the Committee recommends that the Act be amended to make clear that, when an agency properly closes a meeting under exemption 10, any subsequent meeting to discuss the same sp~ific adjudicatory matter

s

-. I need .not be subject to the notice and closure pror.,edures under the Act. The Committee recognizes that this proposal should perhaps be extended to follow-up discussions to meetings closed under other exemptions as well ~:Jt it did not have enough time to study that question.

The Comr. i,rtee also heard testimony about special problems caused by the above-quoted wording of exemption IO at the United States International Trade Commission (ITC). The ITC has several types of adjudicative proceedings, some of which are governed by section 554 of the APA, and therefore *clearly fall within the terms of exemption I 0, and others of which would appear to fit the definition by "otherwise involving a detennination on the record after a opportunity for a hearing." I The ITC, perhaps due to an abundance of caution, has declined to invoke this exemption for any of its adjudications. The Administrative Conference has already urged the ITC to revisit this issue and seek a statutory clarification ifnecessary. 5

• Finally, th. ~ommittee believes that agencies could and should consider steps to make the open meetings more m,: .~d and to increase the flow of information to the public. The Committee reiterates the suggestions maae by ACUS in 19846 and adds a few more .

• In addition to the recommendations set forth below, the Committee considered several other ideas. The Committee rejected some of them, such as repealing the Act (which was not supported by any of the participants in the Committee meetings or public hearing), amending it to permit each agency to develop its own openness regulations, or amending it to cover only meetings of the full board or comnuss1on. Other proposals, beyond those recommended below, and including some of those contained in the August 8 Federal Register' notice, may be worthy of further consideration., in lieu of or even in conjunction with, the recommendations cointained herein

• s In Recommendation 91-10, "Administrative Procedures Used in Antidumping and Counten*ailing Duty Cases,"

Part D, ACUS made the following recommendation to the ITC:

"To encourage collegial decisionmaking, the IJ'C should exchange drafts, views and other information before entering into formal deliberations. The Commission should decide whether informal meetings to discuss the disposition of AD/CVD cases constitute meetings exempt from the Sunshine Act under exemption_ l 0. If the Commission detennines that such meetings are subject to the Sunshine Act, then Congress should consider amending the Tariff Act to provide that the Sunshine Act docs not apply to informal meetings held 10 discuss the disposition of AD/CVD cases." .

6 The Committee subscribes to the earlier ACUS recommendation made to the agencies in this regard in Recommendation 84-3 (1):

"Agencies should continually strive to reflect fully in their activities the basic purpose of the Government in the Sunshine Act, which is to enlarge public ,access to information about the operations of government.

Agencies are strongly encouraged to review perliodically their sunshine policies and practices in light of ex-perience and the spirit of the law for the purpose of making adjustments that would enlarge public access to meaningful infonnation, such as (a) in:voking the exemptions of the Act only where there is substantial reason to do so; and (b) making open meetings more useful through comprehensible discussion of agenda items and provision of background material and documentation pcnaining to the issues under consideration." .

7 See, e.g., the various proposals outlined in the Federal Register notice, supra note 1.

6

]Recommendation (l) Congress should establish a pilot program, to last for five to seven *years, that would authorize an agency subject to the Government in the Sunshine Act to allow its members to meet in private, without advance notice, provided that (a) the agency requires such meetings to be memorialized by "a detailed summary" of the meeting, made public no later than five working days after the meeting, that would indicate the date, time, participants, subject matters discussed, and a review of the nature of the discussion, and (b) that before such pilot program may go into effect, the participating agency also (i) agrees to conduct votes and take other official actions on important substantive matters (not covered by the Act's exemptions) in open public meetings and to refrain, to the extent practicable, from using notation voting procedures for such matters, and (ii) agrees to hold open public meetings, to the exterit practicable at regular intervals, at which it would be in order for members to address issues discussed in private sessions or items disposed of by nota.tion. This opportunity* for discussion is not intended to

• imply that finality of matters previously voted on by notation would be affected by such discussions except to the extent that the agency acts consistently with its own procedures for reconsideration. The results of such a pilot program should be examined carefully by Congress and other appropriate entities before it is extended or made permanent. *

(2) Congress should also amend the Sunshine Act in several particulars:

(a) to require agencies subject to the Act to develop and publish rules or policy statements outlining their procedure for notation voting and the types of issues for which it will normally be used.

(b) to make clear that when an agency properly closes a meeting under exemption 10, ariy subsequent meeting to discuss the *same matter need not be subject to the notice and closµre procedures under the Act ..

(3) Agencies subject to the Sunshine Act should develop regulations (or policies) that maximize the amount of information made available to the public before, during, and after agency meetings. For example, agencies should strive to publish meeting notices further in advance of the date for meetings where feasible; to provide more complete summaries of upcoming agenda items; to make available relevant non-privileged documents before or during meetings; offer closed circuit television coverage o( meetings where there is enough interest; and to release minutes,* summaries, and decisional opinions as soon as feasible after meetings.

(4) The United States International Trade Commission should foll9w ACUS Recommendation 91-108 and revisit the issue of whether its adjudications are covered by e,_cemption 10 of the Act.

11 See note 1, supra.

EXHIBIT 1

- UNITED STATES SECURITIES AND EXCHANGE COMMISSION

. 460 FIFTM STIWET, N.W.

WASHINGTON. IC>.C. 20549 STEVEN tLH. WALLMAN COMMISSIONER (202) 142-0100 FAX: (202) 14U553 February 17, 1995 Thomasina Rogers Chairperson Administrative Conference of the United States 2120 L Street, N.W.

Washington, D.C. 20037-1568 Re: Government in the Sunshine AJJt.

Dear Chairperson R.osers:

The undersigned members and fonner members of independent Federal regulatory agencies and the undersigned members er officers of various orgsni?Ations write to discuss several issues ro1atcd to the Government in the Sunshine Ari. We *strongly support the dual goals of the M. - enhanced public understanding of agency actions and improved agency dcoision making - and are ardent supporters of its. intent. However, we have concerns regarding whether the Act, as currently structured and interpreted., achieves these goals as well as it might The purpose of this letter is briefly to describe our concerns. and - in light of the experience gained by agencies and* the public over the approxm:iately 20 years since the Act's enactment - to encourage ACUS end others to reevaluate the effectiveness of'the Am in e.chicving its intended goals.

~ a preliminary matter, we oppose any dilution in the Act's primary underlying principle of ensuring greater public access t.o agency decision making. Instead. ow- hope is that this letter will help stimulate a candid dialogue about the Am and its effeot on agency decision making and the public's perception of the Federal govenunettt. In this context we would be willing to review possible changes to the Act that might better promote its soals. Accordingly. we have not attempted to arrive now at a consensus as to whether the Aot is. in fact. in need of significant revision or whether the Act is the optimal framework for ensuring public access to agenoy decision making.. We also have not attempted 1tO agree upon a collective recommendation as to

2

• specific alternatives that might improve the Act. J/ At a minimllffla however. we believe strongly that any alternatives to the current structure'of the Act that rriight be considered by ACUS must ensure that the public receives at least as much information regarding agency decision making es that currently afforded under the Am. 'JI *

Background

As you know, the Aot is f'ounded on tlle principle that.the *government should conduct the public's business in public.* ~ The stated purpose of the Ad is to make aveilable to the public the fullest practicable information reg1:Lrding the decision making process of'the Federal government, 'While protecting the* rights of individuals and the ability of the government to carry out its responsibilities.~/ Congress believed that achievement of this overriding purpose would have several ancilwy benefits including: inc:reas~g the public's confidence in government by pennitting firsthand observation of the respcml&ible manner in which agenoy members carry out their duties; promoting greater understanding of government decision making; and improving agency decision making. ~

1/ In fact. given the di:ficrcnt rcgulatocy ioouses of Federal regulatory agencies and wrying concerns of different interest groups, we recognize that any specific alternative may be more or less a~active to any particular agency or group. or may be better applied with respect to some matters as opposed to other&,, and that agencies or groups may wish to

• ';/

defer coming to any conclusion until.after ACUS baa proceeded 'With its review.

For example, consideration might be given to proposals that range from broad~g the current exemptive provisions o£ the Ad. to granting the public the right to make oral statements or presentations in connection with agency decision m!lking - as opposed to

• the oum:nt right of the public under the Aot merely to observe agency actions - in exchange for greater asenoy diaoretion to allow priwte deliberations among their members.

'JI

• S. Rep. No. 34S. 94th Cong.. 1st. Besa. l (1975). The Act may be viewed as an extension ofpreviously enacted legislation - inol.uding 1he Administrative Procedure Act (originally

_ enacted in 1946), ihe Freedom oflniannation Aat. (cnact<<':d in 1966) and the Federal Advisory Committee Art. (enanted in 1972)- dMigned to open 1he government's decision

• making process to the public.

!/ Pub. Law. No.94-409. Seotion2.

S. Rep. No. 354, 94th Cong.; 1st Sass. 4-6 (197S).

. The central provisions of the ADt provide that. subject to limited enumerated .

exceptions. §/ meetings in which a oollegial agency 1/ conducts business must be open to the public. It is clear that, in adopting the Act. Congress was aware of the tcmion between openness and c.olteg;al decision making and nevenheless chose to maximize openness. Howcvet, as ACUS

. has noted, Congress also believed that, after BIJ. initial period of adjustment. the Am would not have a significant inhibiting eff'eot on collegial m~clumges.1/ Ju discu~ below. there is some evidence to suggest that this has not been the case, and that the benefits to the public under the Act may be somewhat limited. Therefo~ notwithstanding the laudatory intent of Congress in adopting the* Ad, we believe it appropriate that a reexamination of the Act be undertaken u soon as practical to determine whether it meets its in.tended objectives, or is counterproductive.

Issues Related to the Effectiveness of the Act We have a number of' concerns regarding the efl'eet of the Act on both the quality of agency decision making and the public's understanding of the agency decision making process.

1. Effect on Agency Decision Making We have doubts as to whether the Aa achieves its goal of enhancing agency decision ma.king. Spec:mcally, as discussed further below, we believe 1hat ACUS should consider whether the restrictions imposed by the kt (1) infringe on the ability of agency members to deliberate, (2) edversely effect the cmblishment of an agci1cy's agenda, or (3) promote inefficient practices within agencies. *

• We believe the Act may significantly impede the ability or agency members to confer in private an~ reduce the willingness and ability of such members to deliberate in a full and appropriate manner. Notwithstanding the overriding goal of openness underlying the Act. we note that private discussions among agcnoy members help promote collegiality which, in tum, improves regulatozy decision mak:ins Under the Act, however. discussions among members that do not fall within one ofthe exemptions under the At;t must be held in the public light This has

~ The Ad. sets forth ten grounds on which agency meetings may be closed and infonnation regarding such meetings withheld from the public. The Act also provides specific procedures governing the closing ar agency meetings. includmg a vote of agency members., public announcement 1hat a m=ting will be closed, and guidelines with respect to memoriati~ns closed meetings.

1/ The Am does not apply to agencies headed by a single individual.

I/ See note 20 mfr& discussing ACUS Interpretation 84-3. 49 FR 29937 (July 25. 1984).

4.

.:

• I 4

• a chilling effecf on the willingnw and abilisey of agency member! to engage in an open end m-cative disoussion of issues. >J a result, mei:nbers are often isolated from one another. forced to deliberate, at best, one-on-one or rely heavily on staff to communicate their concerns to other members. In almost all cues, agency members operati.ag under the Act oomc to a conclusion about a matter before an open meeting and, therefore. without the benefit of any collective deliberations. 'z/ This is directly in conflict with the free exchange af'views tb;llt we believe is necessary to enable an agency member to fulfill adequately his or her delegated duties, and to be held acoountable for his or her actions. *

. We are also of the view that the A.et. iLs at odds with the underlying principles ofmulti-headed agencies. Th~ agenoies were created to provide a number of benefits. includmg collegial deei~ion mmng 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.

a.s a matter of fa.et. the members from engaging in decision making in a collegial way. At, a result, the Aot inadvertently transforms multi-headed agencies into bodies headed by a number of individually acting members. 10/ It seeriis incongruous and unlikely that Congress, had it knovm that this would be the effect of the Ad., would have decided to create agencies that would benefit from the co1lective decision making of a multimember body, and then enact a provision such as the Aet that has the effect of limiting collegial decisiOfl rnaking. ll/

Another consequence of the Act is _that it limits the ability of asency membcm properly t.o consider and establish an agc::ncys agenda. Because agency members may be reluctant to meet

• • privately to develop an agency agenda - out of fear that their discussions may evolve to the point where the ~ is impli~ as di~ussed below - agency heads are frequemly required to determine an agency's agenda without the benefit of the collcotive guidamoe of the members.

.Similarly, _in effectuating an agency's agenda, staff members may experience difficulty in

• ascertaining clearly the thinking of members and relating the views of one member to 1hose of Pl See Welborn, The Federal Government in the Sunshine Ad. and AgmeJ Decision Ma1cing, Administration and Society at 475 (February 1989) (noting 1hat, under the Act.

• most importmt agency decisions haw not emargod from authentic collegial discussions).

10/ "!his is somewhat ironic givon that agencies headed by a smgle administrator do not fall under tlie Act- regardless of 1he ~ of discussions 1hat 1he administrator may have with his or her advisors i1'1 reaehins a decision with respect to a particular matter.

l!/ ~ Tucker. Sunshine -The Dpbimu: New God, 32 Admin. L. Rev. 537, S41 (noting that the Sunshmc Ar:A. is inconsistent with. the theory underlying the creation and* operation of independent agencies).

s others. 11 121 In our view, this contributes to a decline in quality of coordinated policymaking ind, more importantly, a lack of individual member ac:oountability in agency di.,ciBions. Especially now, as government has grown in importance ar1d become more pervasive over the last two decades, it is imperative that agency members be 'held to the highest level of accountability for their agencies' actions.

1be restrictions on closed meetings under the Act often encourage agencies to engage in 1 practices and procedures designed to avoid triggering the Act. but which also frequently entail significant inefficiencies. These practices and procedures focus on avoiding instances in which agency members could be deemed to have 1 delibennod" or to have engaged in deliberations that 11 determine or result in the joint oonduct or disposition of official agency business ***" within the meaning of the Act. 13/ For example, because of the difficulty in distinguishing between preliminary conversations, which are outside of the Act- and deliberations. which trigger the Act

• - many agencies prohibit the gathering of a quorum of agency members as a matter of general policy. By adopting this approach, the issue of determining when agency members become engaged in deliberations or have disposed of ageiticy business bcoomes irrelevant. as the Act is not triggered in the absence of a quorum of agency members. li/ While such bright-line, prophylactic policies have the obvious benefiu. of being easy to apply and effective, in a mechanical sense, in preventing inadvertent violations of the Aa., they are often over-inclusive.

In many instances these policies prohibit discussion of even the most preliminary views among 12/ See Welborn, supra at 476.

.- 13/ The substantive and procedural restrictions of the Act me triggered only where there is a 11 meeting11 within the meaning of the Act. There are essentially four elements of a meeting for purposes of the Act: (1) a quorum of agency members. (2) acting jointly. (3) to*

conduct deliberations, (4) that result in 'the disposition of official agency business. 5 U.S.C. § S52b(a)(2)

As a practical matter, it i1 extremely difficult for an agency to malce the distinction between actions that dispose of agency business and those that represent prelimina.Iy discussions. Congress itself experienced a fair amount of difficulty in making this dctcmiination, ultimately substituting the language "deliberations that result in **

• 11 for the previously suggested language iri the proposed legislation that Teferred to "deliberation& that concern *** 11 in an attempt to exclude general disoussions that

• concerned" agency business, but did not determine or result in the adoption of firm positions. See Berg & Klitzman. An Intemretm Quide to the Ooyemment jn the Sunshine At:t at 7-8 (June 1978). 'Ibis judgment is particularly troublesome in that it must be mad~ a priori. In many instances, di1cussions initially anticipated to be preliminary in nature evolw into conversations of a more dmtive nmure that arguably determine (or affect) agency business.

6

. agency members and, in doing so. they le.av., litlie room for fiexibility in the exchange 0£ member views and often impede the process of agency decision making. W Because the Act on!y applies to asenc~ meetings, we also believe that it has resulted in an increased preference of agency members to use written memoranda to express their views to one another. Further. in order to avoid the notice and other procedural requirements of the Act, agencies are now more likely 1D vote on agency agenda matters by *notation" or *senanm* rather than in open meetmss. While the use of notatfonal voting may nevertheless be more appropriate than a vote at an open meeting in certain instances, this method of conducting agcnoy business is not effective in achieving the A.cf& goal of enhenoing the public1s understanding of ageney decision making, and precludes the benefits that obtain from agency member col~ective deliberation .

• Finally we aclcnowledge the obvious view that many of these problems are supposedly 1

within the control of agency members, who could, itthey so chose, schedule open meetings every few days and deliberate fully at these meetings. We agi-ee that ifwc did this. many the concerns expressed here would be modified. We observe. however, that while so~ might be of comfortable in speaking in certain instances, recognizing concerns about making substantive statements that may come back to haunt after more information is known, as well as human .

nature generallya others would not Moreover, the impracticability of the oonoept would appear to make this solution unrealistic. In support of this. we note the faet that the problems discussed with respect to the Act are common to many asencies as good evidence both that the Ads goals

• ,ll/ 'Where there is a general policy of priecluding agency members from meeting in groups constituting a qu0n1m, members may 1bc forc.ed to resort to one-on-one conversetions on matteB of agency interest. These discussions are useful. but limited. in that in order to be most effective. there must be a series of such meetings so that the views of all agency members are known. Yet, suoh a smies of meetings - which one could argue certainly violates the spirit if not the letter of1the Act.- llil1 permits results that may not be fully reflective of what would have emerged from colleQtiw discussion.

Another manner in which agencies uy to awid triggering 1he Ad is by using intermediaries to disouss agency business. For example, the legal counsel of agency members may meet to discuss ismes that will require deeisiol'l m*king by their principals.

Becm,se these meetings do not mvol'Vle the aetul1 membets of an agency- as opposed to their respective representatives - the restrictive provisions of tho .Act governing open meetings are not implicated. Several oonierences 'among intermediaries frequently arc required with respect to even the roost minor decisions to be made. This is not en efficient mechanism and frequently results in comprehension and interpretation problems that hinder agency decision making.

7 are not being satisfied generally, and that if this modol of e.:clusivc open meeting deliberations worked well and appropriately, agencies ~uld luJ.VC moved towards it, not away from it

2. Effect on Public Understanding* of Agency A,ctions We also question whether the Act currently enhances the public1s understanding of agency decision making. .1§/ This oonoem is illustrated most olearly in the context of agency rulernaking proceedings. At. both 1he proposing and adopting stages of most agency rulemaking pro~ings, there is typically a meeting open to the public in which agency members discuss the.

recommendatlons at issue. frequently make statements on the mattcrn at hand,, and ask the staff for its views on various issues or concern. It is important to remember~ under the Act. the role ~f the public in these meetings is limited to one of observation. l1/

• We acknowledge thB1. on some oooe.ions, open meetings involving rulemaking proceedings involve substantive disoussions and deliberations that are enlightening to the public.

Notwithstanding appearances however, we believe that in general the benefit the public receives from such meetings is limited to observing final statements regarding agency decision making rather than the deliberations with respeot to the matt.er at issue. We note that many may argue that this is. in~ what the public ought to see and we do not suggest that this current benefit is net a real one or should be diminished. Rather, we believe that to the extent that the Act was meant to allow the public to see the process by which ,agency decisions arc made. a great number of agency meetings currently fall short of the mmk.

Meetings are typically short - in many instances lasting less than one hour for multiple matters -with little deliberation occurring. In addition. because of the fonnalistic nature of the

• open meetingQ, out of mutual respect and in the intnst or avoiding surprises, 'there is often a fair amount of'. coordination among agency members and st.aff with respect to open meetings. In many instances the opening statements and questions of agency members arc either prepared by or shared with the staff prior to the meeting to allow them to formulate appropriate responses. 18/

1§/ In comparison t.o the limited 800eSS of the public t.o agency decision making prior to the adoption of the Al:t,. the Ad. has clearly been successful in improving public understanding of agenoy aotiona.

11/ Public participation in the decision making process of Federal agencies is nonnally limited to providing comments on proposed agcnoy action purswmt to the notice and comment procedures for informal rulemi:lking contained in the APA S U.S.C. 553.

18/ Although such coordination ensures that: certain factors deemed important to an agency member are appropriately disclosed in ,~ public f ~ it also reduces the likelihood of (continued...)

8 To put it simply, at open meetings under the Aot there IS often Im than a spontaneous and thorough exchange of views. To tJ?.e extent an issue is disoussod at- an open meeting. it is frequently in a cursory manner that is for -the record, rather than to furthi:r the deliberative process. 19/ Again, we are not stating that this is inappropriate, merely that it is different from what some assert occura.

At a more basic level, and more import;antly. we question whether open meetings - with their fonnal structures, required advanoe notices, and media coverage - present the time. place or manner for in depth deliberation of the *type that would be fully beocfioial to the public.

Frequently, for example. additional infonruwon or additional persons must be contacted or consulted to obtain answers to detailed questions and, in order for deliberations actually to occur at these meetings, matters would have to be camed - with disjointed deliberations - through

• several meetings over an ex.1ended period before decisions could be made. As a result. members are practically precluded from engaging ir1 meetings involving collegial decision making.

Moreover. because of the impracticality of having an in depth conversation with each member separately on each issue, resolutions are obtained through the use of intermediaries* rather then even through exchanges of views among agency members in one-on-one oonversatiOI1$, as is otherwise permi~ by the Act

• Conclusion In summary, we believe that the Act's objectives of inspiring increased public awareness and participation in government as well as enhancing agency decision making ere commendable goals for which it is worth striving mightily.. As discussed above, there is some question as to

• whether the Act cummtly meets these goals as well as it could. Therefore, we believe it appropriate to initiate a review of the Act as soon as practical to ensure that these objectives arc

(...continued) the spontaneous exchange ofviews 1hat one might generally associate with a deliberative process.

19/ See Welbo~ mm at 471; see also ACUS R.coommendation 84-3, 49 Plt 29937 (July 25, 1984) (noting ibat discussion in q,en z,,eetings i110metimes inadequate to allow those in attendance to fully understand the proceedings); Tucker, mmm at S43 (noting that because *Federal decision making meetings represent merely the end result of what is often a very long process dealing with complex issues. opening 'BU0h meetings will be

r. generally not only unenlightening, but also boring to even a highly intelligent spectator.").

9 well met. Given AClJS' historical interest in thi.s matter, we would like to meet with you and

• discuss any thoughts or comments you may have. ~

• To the extent that you know of others who may also share the concerns described in this letter. please let us know so that we may gain the, benefits of their thoughts as well Very truly yours,

~r::&?-_

Steven M.H. Wallman

~ In Recommendation 84-3, the ACUS noted that one of the clearest and most significant results of the Act has been to dirniuish the collegial character or the.agency decision making process. The recommendation encouraged Congress to consider whether the present restrictions on closing agency meetings arc advisable and, if not, how they might be revised without undercutting the basic~ principle that "the public is entitled to the fullest practicable information regarding the decision making processes of the Federal government.* ACUS Recommendation ~3. 49 FR 29937 (July 25. 1984).

• -* *---~---*-****-. _-

_-----c 10-A The undersigned members and £armer members of independ~t Federal regulatory agencies agree that the matters desoribed in this letter and other issues arising under the Government in Sunshine Act since its adoption in 1976 merit review by the Administrative Conference of the United States.

Isl ReP-d B. Hundt {Bl Arthur Levitt Reed E. Hund~ Chairman Arthur Levi~ Chairman FedeI:'81 Communications Commission Securities and Exchange Commission

• /&!Sheila Bair Sheila Bair, Commissioner Commodity Futures Trading Commission Isl Andrew Barrett Andrew Barrett, Commissioner

• Federal Communications Commission

/s/ Rachelle Chong Isl Susan Ness Rachelle Chong. Commissioner Susan Ness, Commissioner Federal Communications Commission Federal Communications Cornrniss~on Isl James H. Ouello Is/ Richard Y, R.oberts James H. Quella, Commissioner Richard Y. Roberts, Commissioner Federal Communications Cnmmjssion Securities and Exchange Commission

/s/ Christine V amey Ls/Joseph Onmdfest Christine Varney, Commissioner Joseph Gnzndfest, Professor Federal Trade Commission Stanford Uniwrsity (Commissioner, SBC 1985-1990)

Isl Al Sommer Al Sommer. Esquire Morgan. Lewis & *Bockius (Commissioner. SBC 1973-1976) k

.:?

~*

~-

10*-B The undersigned members and fumier members of independent Federal regulatory_

agencies agree that the matters described in this letter and other issues arising under the Government u;i Sunshine Act since its adoption in 1976 merit review by the Administrative Conference of the United States.

J~ M '-~

B~se. Chairman ex Brown International (Commissioner, SEC 1992-1994)

!\I:

~

.11 The ':lndersigned orgenizatinns agree that the matters described in this letter and other*

ism~ arising under the Govemment in the Sunsltinc Adt. since its adoption in 1Sl76 merit review by the Administrative Conferanoe of the United States.

/s/ Laurence Gold Isl Alan Morrison Laurence Gold. General Counsel Alan Morrison, Esquire AFL-CIO Public Citizen

• ~'EXHIBIT 2

• I mmED STA11!S OF AMERICA FEDERAL TRAI>E COMMISSION WASHINGTON, D.C. lOSIO Office of the Secretary May 11, 1995 The Honorable Thomasina Rogers Administrative conference of the United States 2120 L Street, N.W .

• Washington, D.C. 20037-1568

Dear Chairman Rogers:

)

The Federal Trade Commission has received a copy of the letter to you from Commissioner Steven M.H. Wallman of the Securities and Exchange Commission, eleven other past and present high level government officials as well as representatives of the AFL-CIO and of Public Citizen concerning the Government in the Sunshine Act. They suggest that *the Administrative Conference examine whether the Act, as curre:ntly structured and interpreted, achieves the goals it was designed to reach in as effective a manner as possible.

Like the SEC, the FTC conducts its business under the .

Sunshine Act, and like the experi,ence of the SEC described 'in the

• letter from Commissioner Wallman ~t AJ.., we too have found that compliance with the Act has sometimes detracted from the Commission's ability .to conduct i*ts business effectively in the public interest. We recognize that the Act was intended to strike a balance between opening ,government deliberations to public scrutiny and permitting those deliberations to be held in closed session when necessary to avoid compromising ~ertain

• important government interests, such as the national security, the confidentiality of commercially sensitive or proprietary business information and the integrity of agency law enforcement and adjudicative processes. Notwithstanding the laudable go~ls of this legislation, having operated under the Act for more than fifteen years 6 questions may be raised whether it provides for the proper balance between public access and.candor in agency deliberations and whether the purposes arguably served by the Act are not adequately addressed by other statutes such as the Administrative Procedure Act.

The Honorable Thomasina Rogers Page 2 The FTC supports a reexamincltion of the sunshine Act, including both its effectiveness in encouraging open government and i~s possible adverse impact cm the efficient and effective operation of collegial agencies. We commend Commissione~ Wal~man for his interest in these issues and agree that many of the points raised in his recent letter merit a careful examination.

We would support a decision by the Conference to conduct, or take part in, such an exercise.

By direction of the Commission.

~~-~

Donald *S. Clark Secretary

• cc: The Hon. Steven M.H. Wallman The Hon. Sheila Bair The Hon. Andrew Barrett The Hon. Rachelle Chong The Hon. Reed E. Hundt The Hon. Arthur Levitt The Hon. Susan Ness The Hon. James H. Quello The Hon. Richard Y. Roberts The Hon. Christine Varney Al Sommer, Esq.

Joseph Grundfest, Esq.

Laurence Gold,. Esq.

Alan Morrison, Esq.

} 40342 EXHIBIT 3

... Notices 'Federal Register Vol. 60, No. 152 Tuesday, August-~* 1995 This section of the FEDERAL REGISTER and reviewed articles written for ACUS a quorum of agency members to discuss contains documents other 1han rules or and others to the effect that public any agency business, (i.e., without

• proposed rules that are applicable to the meetings under the Act often lack regard to whether they "determine" public. Notices of hearings and investigations, substantive exchange ofideas and agency business) while also (2) convnittee meetings, agency decisions and collective deliberation on issues being permitting any such meeting to be held rulings, delegations of authority, filing of petitions and applications and agency decided. *In addition, the Committee has in closed session if minutes or the statements of organization and functions are been infom!ed that the restrictions meeting were released to the public examples of documents appearing in tns imposed by the Act make spon~us shortly after the meeting. (However, 8edion. collegial discussions d_ifficult or

• decisions by the members of an agency impossible as a general matter, would either have to be voted on in

.adversely affecting the establishment of public meetings or pursuant to seri~tim ADMINISTRATIVE CONFERENCE OF agency agendas and promoting or notation voting.)

THE UNITED STATES inefficient practices within agencies. As (4) The Act could be amended to a result, the C.Ommitaee is concemed allow the closing or additional .

Special Committee to Review the that the public does not receive the categories of meetings without notice (or Govemm~nt In the Sunshine Act information or access to the with shorter notice), provided that

• ACTION: Notice or public hearing governmental decisionmaking process minutes or transaipts of closed arding tl!e Government in the that the Act was intended to provide. meetings are released soon thereafter.

,shine Act. The Committee has determined that a (5) The Act could be amended to

• public hearing is wa~ted to address include additional exemptions, such as MMARY: The ACUS Special Committee proposed suggestions for changes in the for agency consideration of legislative to Review the Government in the Act (or in agency behavior) that will and/or budgetary matters-or where the Sunshine Act will conduct afublic increase collegial decisionmaking qency certifies that such matters hearing to take testimony an . among the members of multi-member involve especially sensitive issues.

statements from agency officials and agencies, and at the same time improve (6) The Act could be amended so that members of the public concerning the the public's access to the agency's the open meeting requirements do not effectiveness or the Government in the deliberative process. apply to discussions of agency actions Sunshine Act, as it is now implemented Toward that end, the Special that will be later embodied in a by federal boards and commissions. Committee hereby provides notice of the published opinion and order or similar This notice is pursuant to the Federal public hearing and invites the form of agency determination in which Advisory Committee Act (Pub. L 92- participation of agency officials and the agen9 members set forth their 463). other interested persons. It would be individual votes and the rationale and DATES: September 12, 1995, 9 Lm. helpful if participants would be

• basis for their determination LOCATION: Washington, DC (venue to be prepared to discuss or suggest specific (collectively and/or individually to the announced). proposals for improving public acx:ess to extent that individual views may differ FOR FURTHER iNFORMATION: Jeffrey agency decisionmaking processes and from the collective determination).

bbers, (202) 254-7020. . the quality of agency*decisionmaking in (7) The Act could be amended to PPLEMEHTARY INFORMATION: The Cb.air agencies subject to the Sunshine Act. nmove from coverage any discussion of the Administrative Conference of the The following proposals are under ** proposed ru.111making proceeding so S (ACUS) was asked by lotter, signed preliminary consideration by the long as the discussion 00CW'S before the by over one dozen current and former C.Ommittee and are suggested for the publication of a notice of proposed

- commissioners of multi*member purpose of framing the discussion at the

• nilemalciDg (with or without release of agencies and several private public hearing. It should be noted that minutes or summaries soon thereafter}.

,organizations, to review the the order or the proposals is of no (8) The Act could be amended to effectiveness of the Government In the particular mgnificance. It may be*. allow closed meetings (if no votes are Sunshine Act. The signatories of the appropriate to consider some proposals taken) on pending nilemaldng -

letter stated strong nmderlying goal of e

":fl:rt for the Ad's in combination or partial combination . proceedings, so long as the discussions cing public with others, or to consider

• occur during the comment period, c:ir understanding of agency ncommending some or all or them on only up to some specified time before decisionmaking, but expressed concem *a pilot basis. . ' the proposed ~e is subject to a vote es_ to whether the Act is, in fact. meeting (1) The Ad. could be amended to (with or without release of minutes or this goal as well as it mighL They also cover only meetings or the full board or summaries soon thereafter].

suggested that *the Act may have a cornrnissinu. (9) The Act could be amended to

.detrimental effect on collegial (2) The Act could be amended to nquire that any~~ taken through

• deliberation among agency members, allow subgroups of the full membership notation ~qtmg. that would otherwise be thereby reducing-the overall quality of or the board or commission to discuss * . required to be taken at an open meeting, clecisionmaldng at multi-member . matters in closed session, provided that be subject to discussion, upon the agendes. The Chair established the these matters would later be the subject

• request of an agency member, in a Special Committee to study issues of open meetings. subsequentopen meeting. :

raised by the letter. * (3) T'ne Act ~uld be amended by (1) . (10) Agencies could be encouraged to' The Committee, in its open meetings,

• expanding the current definition of develop regulations (or policiesYthat has heard from some agency officials _ ~eeting" to Include all geHogethen of ma,cimi~ the amount or information

Federal Register / Vol. 60, No. 152 / Tuesday, August 8, 1995 / Notices 40343 provided before, during and after agehcy Administrative Conference of the meetings. Meeting notices could be United States.

published further in advance of the DATES: Wednesday, September 20, 1995, meetings where feasible; such notices 2:00PM.

could provide more complete LOCATION: Office of the Chairman, summaries of upcoming agenda items; Administrative Conference, 2120 L relevant non-privileged documents* Street, NW., Suite 500 (Library, 5th could be provided before or during Floor), Washington, DC.

• meetings; closed circuit television coverage of meetings could be provided; FOR FURTHER INFORMATION: Jeffrey S.

and minutes, summaries, and decisional Lubbers, Office c>f the Chairman, opinions could be provided as soon as Administrative Conference of the .

feasible after meetings. United States, 2'.l20 L Street, NW., Suite

. The above list of possible soo, Washington, DC 20037. Telephone:

recommendations is only tentative and (202) 254-7020.

your aeative ideas are encouraged. SUPPLEMEHTARYJNFORMATION:The lfyou are interested in participating Special Committee to Review the in this public hearing, please send your Government in the Sunshine Act will written request to Jeffrey Lubbers, meet to consideJ" the results of the ACUS, 2120 L Street NW., Suite 500, public hearing to be held on September Washington, DC 20037. You should 12, 1995.

indicate why you are interested, what Attendance at the meeting is open to organization, if any, you represent, and the interested public, but limited to the give a very brief swnmary of\he points space available. Persons wishing to to be covered in your testimony. Please attend should notify the Office of the also indicate whether you have any Chairman al least one day in advance.

• special needs. Requests should be The chairman of the committee, if he submitted by August 25, 1995. deems it appropriate, may permit ACUS reserves the right to limit me~bers of the public to present oral participation to a feasible number of statements at the meeting. Any member participants, to group participants on of the public may file a written panels, to ask participants with similar statement with the committee before, views to seled a group representative, du.ring, or after the meeting. Minutes of _

and to limit the tim~ for participation. the meeting will be available on request Generally, participants should expect to Dated: August 2, 1995.

limit their prepared remarks to no more Jeffrey S, Lubbers, than 10 minutes. Shortly after August Research Director.

25, ACUS will notify requesters of the (FR~ 95-19477 Filed &-7-95: 8:45 am]

proposed ~earing schedule and of the RUNG CODE lt1Mt..fl list of particif>ants.

Written submission from participants and others are welcomed. Unless it is a financial hardship, participants should provide 20 c;:opies of such submissirms to Jeffrey Lubbers at the above address

• by September 5, 1995. Others wishing to provide written comments should provide a single copy to Mr. Lubbers by September 12. Attendance at the public hearing is open to th~ public.

Dated: August 2. iesas.

Jeffrey s. Labbms, .

liaean:li Director.

IPR~ 11s-tM78 Filed: a-1-e~: 8:45 am)

KUNG CODE '111M11-W Special Committee to "Review the Government In the $Unshlne

..... Act ACTlON: Notice of public meeting.*

SUMMARY

Pursuant to the Federal

. Advisory Committee Act (Pub. I;..92-463), notice is hereby given of a meeting of the Special Committee lo Review the Government in the Sunshine-Act. of the

EXHIBIT 4 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES SPECIAL COMMITfEE TO REVIEW THE GOVERNMENT IN THE SUNSHINE ACT

• TRANSCRIPT OF PUBLIC HEARING TUESDAY, SEPTEMBER 12, 1995 STATEMENT OF THE HONORABLE STEVEN M.H. WALLMAN Commissioner, Securities & Eitchange Commission STATEMENT OF MR. SIMON LORNE General Counsel, Securities & Exchange Commission STATEMENT OF THE HONORABLE STUART E. WEISBERG Chairman, Occupational Safety & Health Review Commission STATEMENT OF MS. LUCY DALGLISH Chairwoman, Society of Professional Journalists, National Freedom of Information Committee ACCOMPANIED BY: MR. REGINALD STUART President, SPJ and WILLIAM B. KE1TER, President, American

-Society of Newspaper Editors _. _

STATEMENT OF MR. STEPHEN CALKINS .

General Counsel, Federal Trade Commission

'STATEMENT OF MR. PETER G. ~NE Special Counsel, Nuclear Regulatory Commission STATEMENT OF THE HONORABLE WILLIAM B. HATHAWAY

• 1 1 PROCEEDINGS 2 September 12, 1995 3

4 MR. MAY: Good morning, my name is Randy May. 1 would like to call this 5 hearing to order.

• 6 As you know, this is the AdminJstrative Conference Special Committee to Review 7 The Government In the Sunshine Act. All of you - I've been told that these 8 microphones are not actually amplification microphones so we11 try and speak up as 9 clearly and loudly as we can. But for those of you in the back, there are some seats up 10 front, and if you would like to, you're certainly welcome to move up and that would be 11 terrific with us if you would like to do that.

12 As you know, the purpose of this hearing is to take testimony and statements 13 concerning the effectiveness of the Sunshine Act, as it is now b~g implemented. I 14 know all of you or most of you have seen the August 8th Federal Register notice 15 announcing this hearing, and I don't want to go over all of that background infonnation 16 now. But, suffice it to say, today specifically what we want to do is examine proposed 17 suggestions which may increase the collegiality of multi-member agency decision making 18 and the quality of multi-member agency decision making, at the same time that we 19 improve the public's access to the decision making of multi-member agencies.

20 . In the Federal Register notice we listed 10 tentative - and my no means mutually 21 exclusive - suggestions and ideas fo:r possibly achieving those twin goals in order to 22 stimulate our thinking, and hopefully your thinking, on this subject. But I'm confident 23 that those persons testifying here today will have some very helpful views on our ideas, 24 and rm sure will present many helpful and constructive ideas of their own.

• 25 26 27 28 So I want to thank all of you for attending and for your participation today.

I would like to introduce thie other members of the ACUS special committee before we begin who are here with us today on the hearing panel. To my far right we have Dan Campbell, General Counsel of the National Transportation a Safety Board; 29 Paul Kamenar with the Washington Legal Foundation; Alan Morrison with the Public 30 Citizen Litigation Group, and Jeff. Lubbers who is the Research Director of the 31

• Administrative Conference.

32 So they will constitute your hearing panel this morning. We're particularly pleased 33 and privileged to have with us - at least at the beginning. I know that she has another 34 committee bur our Chair ofthe Administrative Conference, Tommy Rogers, is here with 35 us to provide us with special welcome, and we appreciate your being with us today.

36 Tommy would like to give us a special welcome.

37 MS. ROGERS: Thank you very much, Randy.

• 38 I must apologize at the outset. I know it's not good form to apologize at the 39 outset, but I will have to leave early. I hope to be able to stay around for at least some 40 of this morning's discussion, but I tho11ght that I could utilize best the time I have in just

Chairman, Federal Maritime Commission ACCOMPANIED BY: MR. TOM PANEBIANCO Deputy General Counsel, Federal Maritime Commission STATEMENT OF MS. GRACIA M. BERG Attorney, Steptoe & Johnson .

STATEMENT OF MR. ALAN C. CAMPBELL -

Attorney, Irwin, Campbell & Tannenwald

• • 2 1 describing to you what the Administrative Conference is and what our process is in 2 hopes of illuminating why this hearing is being held at the Administrative Conference -

3 in other words, why the Administrative Conference is an appropriate forum for this type 4 of discussion.

5 - What is the Administrative Conference? The Administrative Conference is an 6 independent non-partisan agency dedicated to reforming the administrative processes by 7 which the Federal Government carrie:s out its business. The basic responsibility that 8 Congress gave the Administrative Conference when it was created in 1964 was to study 9 the processes and procedures by which administrative agencies administer their 10 programs, and to ensure that the programs are administered effectively, efficiently and 11 fairly.

12 So you can see from just that description of why the Administrative Conference 13 would be an appropriate forum for the issues that have been raised initially by SEC 14 Commissioner Wallman's letter of February of this year.

15 The Conference operates by fulfilling its responsibility to bringing together experts 16 from the public sector and governmcmt officials, to research, to study, to debate, to 17 deliberate the types of issues that is presented today. And these are not just any experts.

18 The non-government members of the: Administrative Conference are approximately 40 19 individuals and members of leading academicians, administrative law, consumer and 20 public interest representatives, public administrators and members of the participating 21 bar. Two Supreme Court justices of late have had the opportunity to comment on the 22 functions of the Administrative Conference and have commended the Administrative 23 Conference for the type of work that it does in looking at process issues of this nature 24 that are not reviewed elsewhere in the Federal Government on the level that they are at 25 the Administrative Conference.

• • 26 27 28 29 30 The process by which the Administrative Conference looks at issues entails bringing together these experts in ,committees, of which this is one as a special

• committee, to look at issues and th1:m to bring them tQ the full membership of the

• A4ministrative Conference which oonstitutes 101 Federal representatives, Federal officials, and the private members I've just referred to and to debate in an open forum 31 these issues. This is what our intent is for this issue, and I think it will be well served.

32 We are looking forward this mc1rning to your participation and to your viewpoints 33 on these issues that we will then shap1e into recommendations as needed to Congress or 34 to agencies. I want to say at the outset as well that we've reached no conclusions as to 3S these issues. I think, though, it's fair tc, say that since the Sunshine Act was enacted there 36 was anticipated that there might be some adverse effects on collegiality, and* over the 37 years I think that has proven to be the case.

38 The purpose of these hearings is to both explore those problems, but also to 39 explore possible solutions, and I thank you very much for your time and effort in bringing 40 your viewpoints to bear on the resolution of these issues.

3 1 I would like to conclude by just on a personal note of why I think these hearings

• 2 are so important and this issues is important. Ive found the Administrative Conference 3 before coming here particularly attractive because it stood for me as a culmination of 4 career in Federal services - 20 years in Federal service for me largely at multi-member 5 agencies I have understood that these agencies r~y do exist to serve the public function 6 and to serve the public good, and realized that the agencies of that nature function best 7 when they do function collegially, but also when they are open to the public. I think 8 what we will attempt to do today is figure out whether the balance between the two is 9 appropriately struck, and with that I would like to tum this back over to Randy.

10 Thank you very much.

11 MR. MAY: Thank you very much, Madam Chair. I think that that certainly 12 helped us all frame in an excellent way what we're about today, so I think without any 13 further ado we ought to get started so that we can have as much time as we can to do the 14 work we're about. Again, thank you.

15 I will call the first witnesses, Commissioner Wallman and General Counsel Simon 16 Lome from the SEC, if you could come up to the witness table please.

17 Okay, now at the outset let me just lay down, if you will, a few ground rules. I 18 think everyone here should have an agenda or there are some at the back table if you 19 don't have one, and we have the ordler of witnesses and the times. In order to make sure 20 we get through everyone, we're going to have to be pretty strict about that because of 21 commitments that people have. What we are anticipating is that the witnesses will take 22 :five to seven minutes to make whatiever preliminary statements they would like to make, 23 and then we will, of course, have questions and answers.

24 So, :first off: we have the Honorable Steven Wallman, Commissioner of the 25 Security and Exchange Commission. Again, I should just say in starting that we're 26 indebted very much to Mr. Wallmar1 for helping us to begin this process and also for the 27 time that you've spent attending the committee meetings and working on this issue thus 28 far.

29 Thank you.

30 31 32

• 4 1

2 STATEMENT OF HON. STEVEN M.H. WALLMAN, COMMISSIONER, 3 SECURITIES AND EXCHANGE COMMISSION, WASHINGTON, D.C.

4 COMMISSIONER WALLMAN: Thank you and good morning. As a 5 preliminary matter, as I always start every statement that I make, I have to tell you that 6 these are my views individually. They're not the views of the Commission or other 7 commissioners or the staff.

8 I would like to thank each 1of the members of the Special Committee for the 9 opportunity today to present this testimony to you. I think openness in government is 10 essential not only to facilitating public understanding of how government operates, but 11 also to ensuring that the government maintains the public confidence necessary to 12 operate effectively and in the public interest. I think today's hearing recognizes the 13 obligation of those of us in government and also those of us in the private sector

• 14 15 16 17 18 periodically to reaccess existing laws and consider novel ideas designed to enhance government openness.

I also would like to commend you for the inclusive nature of.the review. I have been very pleased with the number of people who have attended the Special Committee's meetings in the past that have been open meetings, although there are obviously 19 significant differences and strongly held views among a number of the participants. I 20 think that there has been a great deal of diverse information provided, and I think that we 21 have all benefitted by exposure to dive:rse viewpoints. I've learned a great deal from my 22 friends in the press who I think have had an openness and a willingness to discuss this 23 issue, and I think it's been an excellent process throughout.

24 First, let me briefly outline some of my concerns with current operations under the 25 Act, outline also one possible solution among many, and then I'll tum the floor over to

• 26 27 28 29 30 Simon Lorne who will -

MR. MAY: Excuse me, Commissioner Wallman. These microphones don't amplify so we're all going to have to kind of speak up but - and, again, if some of you in the back - if there are some seats up front, you may want to move up, but I apologize.

Let's all speak up as much as we can so that everyone can hear in the back.

31 COMMISSIONER WALLMAN: First, I would like*to make it clear that I am an 32 ardent .supporter of the primary goal! . of public openness which underlies the Act.

33 Matters that can be conducted appropriately in the public eye should be conducted in the 34 public eye. Such public scrutiny I believe can enhance government and encourage 35 accountability. Consequently, I'm very strongly opposed to any effort to repeal the Act

~6 or reduce the benefits the public current receives under the Act. In fact, I initiated this 37 effort - contacting the press and requesting that ACUS review the Act - because of my 38 strong belief that the goals of the Ac:t were not being achieved and that not enough 39 attention was being devoted to this iss11Je, either by those ofus at Federal agencies or in 40 . the press. My hope is that through the mutual activities of this committee, of the press,

5 1 of the members of Federal agencies and others we can find a way to make the Act work 2 better.

3 That said,* and notwithstanding its exemplary motivations, I think there is little if 4 any support for the argument that tbe Act is currently achieving its primary goals as well 5 as it might, specifically enhancing public understanding of the decision making process of 6 Federal multi-headed agencies through the observation of agency deliberations. With 7 rare exceptions, going back almost 20 years and across many agencies, agency open I meetings under the Act are short, scripted, perfunctory events involving no deliberation 9 among agency officials. All or allmost all significant issues are resolved by agency 10 members in advance with the staff or through the use of intermediaries, written 11 memoranda or in permitted one-on-one dialogues with other agency members. As a 12 result, what the public views at open meetings today are generally statements explaining 13 the results of the decision making process. This is, in and of itseU: of course, very

• 14 15 16 17 18 valuable but it should not be mistake:n for joint deliberations.

Moreover, I believe the Act has had the unintended and adverse effect of substantially reducing the ability- some might say the willingness, a point I will return to in a moment - of agency members to deliberate jointly in a full and appropriate manner.

Because votes are taken at open meetings on complex and long-pending matters, it is 19 difficult for agency members to come to an open meeting without having made up their 20 mind, for they do so without the benefit of discussions with other agency members as a 21 group. This, ironically, turns the thf~ory of independent agencies on its head. One of the 22 primary underlying rationales for independent multi-headed agencies is to provide for 23 collegial decision making where the views of many are thought to be better than the 24 views of one. There can be little doubt then that the quality of decision making at 25 Federal multi-headed agencies under these circumstances cannot be at its highest level.

• 26 27 28 29 30 The most difficult question I've been asked over the past few months as *rve gone through this discussion is why don't agency official simply deliberate in public? The implication of the question is that. any problems that people are experiencing with openness results not from the *Act, but from an unwillingness of agency officials to deliberate jointly and publicly: I acknowledge that some of the problems noted earlier 31 within the control of agency members and that the A~ does work in limited 32 circumstances.

33 For example, I chair an Advisory Committee on Capital Fonnation at the SEC, 34 which holds all of its meetings in public and engages in meaningful deliberation at such 3S meetings. However, in this case we have a group that, one, has a limited agenda; two, is 36 staffed by experts of similar backgrc:>unds and levels of expertise who generally thought 37 long and hard about the specific issue before the Advisory Committee before coming to 38 the Committee itself or certainly before coming to the meeting; three, is working on only 39 one project that spans a long period; four, does not immediately affect in any material 40 adverse manner any particular group; five does not involve a negotiation of any nature; 41 cannot lead to confusion or cost being imposed in the market place or on market 42 participants, even when an ill-considered statement is made either through inadvertence

1 or irresponsibly; and is a proposal not for implementation but for consideration by 2 another body - namely, the Commission.

• __

3 The juxtaposition of the Commission and the Advisory Committee provides some 4 insights.

• Agency officials do not refrain from deliberating in public to flout the S underlying goals of the Act. To the contrary, in many instances agency officials may not

, believe - due to what has sometimes been called the various "human element" problems 7 - that public deliberation on a matter is in the public interest. For example, an agency I may believe that its attempt to arriving at an effective negotiating strategy with an 9 interested party or a position on a legislative matter would be significantly thwarted or 10 completely stymied if its meetings to discuss the matter occurred in public. Moreover, 11 agencies may believe that making iinitial deliberative views public without enough 12 thought or information would result, ,either through irresponsible or inadvertent actions, .

13 in uncertainty and confusion or otherwise impose substantial costs on an industry or the

• 14 15 16 17 18 general public and, in any event, be highly embarrassing.

In addition, the desire to speak with a uniform voice on matters of particular importance also impacts upon the determination of whether to deliberate in public under the Act. For better or worse then, there is simply a difference in public and private conversations.

19 The primary underlying purpose of the Act is to provide openness for the 20 deliberative process. As Congress recognized in enacting the Act, however, this goal ll must be consistent with the ability of government officials to carry out their mandated 22 responsibilities under each agencies' own establishing Act. In many instances, these goals l3 conflict and agency officials will - and appropriately so - focus on their primary 24 mandate of protecting the public interf:st, as statutorily delegated by Congress under their 25 agency's establishing Act .

• 26 27 28 29 30 Finally, there are logistical issues, such as the seven-day notice requirement, posed by the Act which serves as a disincentive to conducting meetings in public.

As I mentioned, I strongly support the goals of the Act and, therefore, would not

• be in favor of its repeal. Instead, I propose that the Special Committee consider some alternatives - for example, a modified Sunshine Act. In my view, this proposal, as I will 31 outline in a moment, would enhance the Act's underlying primary goal of increasing the 32 public's understanding of the deliberative process, while simultaneously encouraging 33 more collective decision making among agency officials. It would, therefore, also 34 provide the benefit of better agency decisions, A modified Sunshine Act is one way in 3S which the issues posed by the Act currently might be addressed in a generi~ fashion 36 across agencies. Clearly, there are other ideas, some that can be more specifically 37 tailored agency by agency, some of which have been suggested in AClJS' notice of this

- 38 hearing, which I think also merit consideration.

39 This proposal, for example, would involve the establishment of a Congressionally 40 enacted pilot program. Agencies would be permitted to elect whetl)er to be governed by 41 a modified Act or remain subject to the existing Act's provisions. Under the modified 42 Act, agencies would be exhorted to have as open meetings all deliberations that the

7

• 1 agency believed could be appropriately handled as open meetings. As mentioned before, 2 open meetings are the norm that ought to be viewed as the best. The definition of a 3 meeting subject to the modified Act would be expanded to include all meetings involving 4 a quorum of agency officials and th1~ discussion of agency business, and that would be an S extension in terms of the definition 1rom the current Act.

6 In contrast, however, to the current Act's provisions: members would be permitted 7 to meet in private where they would! otherwise have to meet publicly under the Act when 8 they believe the private meeting would further the public interest under their statutory 9 mandate, provided, in any event, that they document the meeting within two business 10 days. The documentation would be, I would suggest, in the form of minutes of thec.

11 meeting that would indicate the date, time, participants, subject matter of the meeting .

12 and other relevant factors. It would also contain a generic discussion of the meeting, but 13 it would not contain a transcript <>r verbatim recording of the meeting. In order to

• 14 15 16 17

• 18 ensure that the public is aware of the minutes and there was this kind of a review, agencies would be required to provide the minutes memorializing private meetings through a public medium, some kind of public file or electronic bulletin board.

The pilot program would be e:xtended for a limited period, such as two years, after which ACUS or some other agency could do a full review of how the Act - in terms of 19 its modified form - is working, could then make a recommendation to Congress as to

• 20 whether the current Act should be continued without any change, whether the current 21 Act should be amended to reflect the terms of the pilot, or whether some other 22 alternative should be pursued.

23 There are several obvious benefits to a modified Act of this nature. First, and 24 most simply, it resolves the logisti~~ problems - and I think you'll hear about that some 25 more later. More importantly, by broadening the scope of the current Act to include all

• 26 meetings involving a quorum of agency members or agency businesses discussed, the 27 proposal eliminates the vexing problem determining whether or not a meeting is subject 28 to the Act in the first place as a delilberation or a pre-deliberative matter. By broadening 29 the scope of the Act, I also think that we will have more information which will be made 30 available to the public and is curre11ttly available under the Act's provisions, as currently 31 interpreted.

32 As discussed above, almost no public joint deliberations occur. Because of an 33 aversion to triggering the .requirements of the Act, very few private pre-deliberative 34 meetings occur either. In any event, when such pre-deliberative meetings do occur, there 3S is no requirement under the Act that the meeting be disclosed to the public. Thus, under 36 the Act, the public currently receives little if any information regarding either the 37 important or the day-to-day deliberative activities of agency members.

38 By contrast, with this kind of a modified Act, private meetings among a quorum of 39 agency members would be publicly discussed without regard to whether the meetings 40 were preliminary or involved a deliberation. For the first time ever, members of the 41 public and press would have a comprehensive view of the issues occupying the time of 42 agency members. As a result, even in the absence of a verbatim transcript of the

,. ;8 I

1 meeting, the infonnation would be a valuable public resource and better enable interested 2 parties to direct their attention to agency priorities and ask appropriate follow-up 3 questions.

4

• Moreover, this modified Act would not alter what the public currently has the 5 opportunity to observe under the Act. Public announcement of all final action requiring 6 agency member approval, such as official votes on publication of rule proposals or 7 adoption of agency rules, would still under the modified Act be taken either at an open I meeting, which we would strongly encourage, or, as currently done, through notational 9 voting.

10 Ironically - and this is probably the more important part - the ability of agency 11 members to become familiar with the concerns of their respective colleagues in private 12 might well encourage more candid dialogue and debate among members in public. Part 13 of the refusal to deliberate publicly stems from a desire not to cause confusion, misstate

• 14 15 16 17 18 facts, create a misleading impression, be embarrassed in public, cause cost to be imposed on the public or similar matters. But after some private deliberation, fully informed public deliberation would, I sincerely believe, become much easier.

The modified approach also is more consistent with the underlying goal of multi-headed agencies. By facilitating collective deliberations among the members of an 19 agency, the proposal moves us closer to ensuring that the public receives the benefit of 20 the collective wisdom of a collegial body as opposed to the collective views of individual 21 commissioners.

22 Finally, recognition of the importance of the Act to public openness, testing the 23 efficacy of the proposal on a pilot basis, allows us to proceed cautiously and deliberately 24 and to decide whether or not in fact it is an improvement over the existing Act. If 25 necessary, I can also see the possibility of addressing some concerns that *people might

• 26 27 28 29 30 have by adding the requirement that private meetings under the modified Act be recorded or transcribed, and that such recordings or transcriptions be made available to the public after the lapse of some time after the meeting. To the extent the Special* Committee were to consider an overlay of this approach on the modified Act, one which I would submit has rather serious concerns as to whether or not overall it will serve the full purpose that 31 we would like to tenns of encouraging greater collegially deliberations, I would propose 32 that the verbatim record of privaie meetings be made available to the public no later than 33 the day that the agency takes *action with respect to a matter or 180 days after the 34 meeting. Even here, though, there would have to be exceptions for on going 35 negotiations, etcetera.  :..

36 In conclusion, let me just say th!Lt the Act is of vital importance to ensuring public 37 confidence in government. It is incumbent on all of us to ensure that the Act works as 38 efficiently as possible and is effective in achieving its underlying goals of enhancing 39 public understanding of agency decision making and providing the public with the benefit 40

• of better agency decisions. Although l[ am an ardent support of the goals of the Act, I 41 start with the reality that based on our experience over the last 19 years the Act achieves 42 neither of its goals as well as it might. There are any number of reasons for this, some of

9 .*

1 which may. be more acceptable to some of us than to others. The primary issue at this 2 time, however, is not why the Act is not functioning as well as we would like. Rather, 3 it's can we come up with a method for increasing the method of having the Act work 4 efficiently, effectively, provide more openness, more accountability for government and 5 better decision making.

6 We have to get away from the increasingly unrealistic, and unrealized and perhaps 7 misleading view that the Act is somehow providing the benefit of public openness *while 8 we're all at this time paying the cost of possible better information to the press and public 9 and better agency decision making. In my view, there is only one answer at this point: if 10 we are to take the position that regardless of the safeguards imposed, to protect the 11 public interest and openness under a modified Sunshine Act or similar approach and 12 allowing any private deliberations among officials at collegial agencies is unacceptable, 13 there is little we can do to address the current problems of the Act short of simply hoping

• 14 15 16 17 18 that something won't improve over the next 20 years in human nature.

However, ifwe focus more on what it is we are trying to achieve for the public -

namely, openness of the agency deliberative process and better agency decision making-we should be able to craft an approach or approaches that, at least for the purposes of a pilot program - are acceptable to us all.

• 19 Finally, I would like to just point out that this is not an issue that is at a crisis 20 stags. Neither agencies, the press nor the general public have noticeably suffered under 21 the Act. However, this should not imply that we should be content with the status quo.

• 22 Instead, we always should focus exactly on the primary issue before us today - namely, 23 enhancing the public interest in and better government.

24 Thank you have your attention, and I would like to now tum the floor over the Si 25 Lome.

26 27 28 29 30 31 32 33 STATEMENT OF MR. SIMON.LORNE, GENERAL COUNSEL, SECURITIES AND 34 EXCHANGE COMMISSION, WASHINGTON, D.C.

3S MR. LORNE: Let me recognize the Chair's admonition and just add a couple of 36 comments to those of Commissioner Wallman.

37 MR. MAY: Thank you very much.

10

• 1 MR. LORNE: First, I should emphasize that I speak for myself alone, not for the 2 Commission, and my viewr, are slightly different from those of Commissioner Wallman.

3 Having said that, I would note that the letter sent or initiated by Commissioner Wallman 4 in February was in fact signed by all of the then Commissioners ofmy agency, the SEC.

5 I *won't reiterate the problems we have with the Sunshine Act. I think everybody 6 has experience with those. I would note that not only does the operation of the Sunshine 7 Act today inhibit collegiality, but it also effects a transfer of power and authority away I from inembers of the agency and toward staff members. There are and will continue to 9 be legitimate reasons to avoid public discussion. The easiest way to do that is for 10 member to staff member, and from staff to other members of the agency, which 11 effectively moves a lot of authority from the presidentially appointed commissioners 12 responsible to the electorate to the staff. I think that's harmful to the process that we 13 should have. I recognize that is something of a declaration against interest, being a staff 14 member.

IS It seems to me clear that the Sunshine Act today doesn't do what it is intended to 16 do. It seems to me clear that we all agree that government should be public, that the 17 citizenry should understand what happens in agencies, and should be able to see it. The 18 question is how do .we get to an answer that satisfies the desires of the Sunshine Act that 19 we all share without hurting the decision making process because today we don't get the 20 benefits but we do get harmed. My experience has been with one agency. Prior to that I 21 was in the private practice oflaw with a little time out for teaching. I am reluctant, based 22 on my experience with one agency, to identify what should be the plan for all agencies. I 23 suspect that each agency differs a little bit. It has a different personality, it has a different 24 function and it has different needs.

25 I would suggest that what might well make sense would be a broad legislative 26 mandate to establish a plan, perhaps with a specified default plan such as that suggested 27 by Commissioner Wallman, but allowing each agency to put together its own public 28 access plan that serves its needs and submit that to some independent group for approval, 29 if you will - an oversight committee c,r some part of ACUS, and I'm not sure who that 30 ought to be - but establish, I would think, four broad areas that that plan should satisfy:

31 One would be an abandonment an of the Sunshine Act as we know it today; two 32 would be a clear injunction that meetings are to be public to the extent that doesn't 33 interfere with the processes of the agency, and I wouldn't underestimate the importance 34 of that injunction. It seems to me that agencies want to serve the public interest. They 35 want to do the right thing, and, in fact, the media will help them to do the right thing 36 with that injunction. It seems to me that that can be useful. I would require a minute of 37

• meetings of perhaps any two or more members, perhaps a quorum, especially with 38 outside people, people from outside the agency. I would keep that a .brief minute. I 39 would not keep the current regime 1:>f tape recorded or verbatim transcripts simply 40 because that is so cumbersome that it \ltndercuts the ability to get together and discuss. I 41 would expand upon today's opportunity for the public to interact with agency members.

42 I would require, for example, matters to be take up with the public to be subjected to a 43 public meeting at which questions must be asked and must be answered so that there is

11 .*

1 an opportunity not merely to observe but to interact, and I think ifwe trade, if you will, a 2 little bit less required publicity that is easily avoided today in fact for a little bit more 3 public interaction, the public will have benefitted from that exchange. I would allow 4 different agencies to establish those plans, as I've suggested, and l would then revisit the 5 issue in some specified period, perhaps five years, when we have had the experience of different agencies working under different plans, and then take the best of those plans as 7- they have evolved and see ifwe can't get a more uniform regime.

8 You asked us to preserve some time to respond to questions.

9 *MR MAY: Thank you very much. Thanks Mr. Lome and Commissioner 10 Wallman, and let's now tum to 1questions from the panel members or committee 11 members.

12 MR. MORRISON: I have not had a chance to read all the statements. We just

• 13 14 15 16 17 18 got some of them, but I did want to ask two questions - one rm going to ask the people on this panel and the next one for the other panel - which is, on the one hand, why is it that we have so many entities of government that are able to deliberate, at least in part, in a lot more openness than you have described the SEC and others have described other agencies? Congressional committees have public mark-ups and they have public hearings, advisory committees - you've talked about there's distinctions raised - units of 19 state and local government operate in the public. Why is it that the SEC can't? Even 20 courts - you can go to an argument in the Court of Appeals and they are deliberating.

21 They're not telling you what the answer is, but there is a lot of their thinking that comes 22 out during the course of an argument, at least in a well-conducted argument. Why 13 should the commissioners of Federal agencies be so resistent to changes and to public 24 dialogue?

25 That's the question, on the one hand. The question on the other, which I hope the 26 panels after you will address in their statements is given the fact that the agencies appear 27 to be highly recalcitrant and unwilling to operi up in a collegial manner under the 28 Sunshine Act, what is the point of 1exhorting them to have niore sunshine, and do you 29 have any method by which you can keep the present statute and have something more 30 than a charade?

31 MR. LORNE: That's an extnlordinarily important question. You're clearly right -

32 - more is possible than is done, and in some other organizations we see more being done.

33 I'm not sure of the answer to that. It seems to me that in part it may be that the inability 34 to have private deliberation perven~ly causes patterns of behavior in which we don't 3S have public deliberations. That is to say, that most of the organizations -you referred to 36 courts with open arguments. Yes, arguments are open; but there are also private 37 deliberations afterward that are possible and it might well be that if some greater degree 38 of private deliberation were possible and encouraged, there would be greater openness in 39 public. It's the inability to interface in _private to some degree I think that drives people 40 away from interfacing in public because they're not used to the interface process.

41 MR. MORRISON: Would it be possible then to follow the judicial model to have 42 the public deliberations first recognize that nobody has to commit themselves so that

• 12 1 people see the ideas coming back and forth, and then afterward - as opposed to the 2 model which was proposed here that we have private deliberations first with very brief 3 minutes and then you go on the public record to announce what everybody knows has it already taken place? It seems to me that you've almost got it backward in that solution.

5 COMMISSIONER WALLMAN: Ifl could, let me try to give a practical problem

, with regard to that because, as you remember from one of our earlier discussions, this 7 . was actually my proposal, sort of a judicial model that might supplant the current model.

I As I've given more thought to that, the problem is one of not only the logistics of how 9 you work it out, but the technical issue of what it means to start something in the public 10 forum. There are lots of small issues that nobody would *ever want to have a public 11 hearing about because they're simply unimportant. If one is now precluded from even 12 discussing those privately to figure out if they're so unimportant that there is not any 13 purpose in any pursuing it, then you need to think about whether or not we're going to have a public hearing every day to get this kind of interaction before we can decide that it 14 15 wasn't worth talking about any more.

16 Second, it's unclear when S<>mething begins. It's easy in the judicial forum.

17 You.'ve got a case filed, you've got briefs, you've got a schedule, you've got somebody 18 who comes before you and you've got interaction with the public. We don't have any 19 such clear, bright lines to when something begins with regard to it. Ifl have an idea that 20 I want to throw out, what your proposal would say and what my proposal would say -

21 and this is the original proposal I had - was that I would have to simply have a public 22 forum first about the proposal before I could proceed -

23 MR. MORRISON: You could try writing or send a memorandum around to the 24 commissioners saying is this anything zmybody wants to discuss.

2S CO:MMISSIONER WALLMAN: You could but that wouldn't be-unless that's 26 then intended to be public, rm not sure I know what we've got.

27 MR. MORRISON: You've got a public discussion or, I mean, it might not be.

28 COMMISSIONER WALLMAN: You could but you would end up with every 29 little idea that if it has to go through this process, it's not going to be worth it. What will 30 happen is you're going to go back to staff. The logistics become overwhelming.

31 MR. MORRISON: I think we could probably distinguish between little ideas and 32 big ideas.

33 COMMISSIONER WALLMAN: You could try, you could try.

. 34 MR. MORRISON: I mean, the paradigm problem is the rule making for a broad 3S area that you want to look - a broad area in which the agency has jurisdiction. Should 36 we get into this? Should we start an investigation not in the sense directed toward an 37 individual, but should we be worrying about the problem, all right? I think you could 38 probably figure out where an appropriate beginning and an end is. I mean, sure, we 39 lawyers can always create those kinds of problems. That doesn't seem to bother me.

40 What bothers me is how you're going to get more discussion period, and then get that 41 discussion in public and at some point you have to have something in private.

13 1 COMMISSIONER WALLMAN: Yes, if the view was to have a public forum 2' where that initial discussion would 1occur which would give some immediate feedback to 3 the agency and then allow for private deliberations after that to proceed with 4 determinations to whether or not the agency wanted to proceed at all, or whether or not 5 they wanted to adopt a rule, or propose a rule or whatever, that takes care of many of.

6 the problems that we have here. In fact, we've done that. ]'he agency, for example, had

7. public hearings with regard to its proposal for safe harbor for litigation. That was 8 something which worked I thought quite well, except we ~ere not entitled to have the 9 private deliberations afterward to r.ome to any conclusion, and so that proposal is still 10 sitting and has been almost a year.

• 11 We end up with the kind of concerns that we talked about in terms of having the 12 private deliberations under the current system. If one were to overlay what you just 13 proposed on what we had talked about em-lier in terms of an initial public forum, which 14 would then allow for private deliberations - very much similar to the judicial model -

IS that for many rulemakings I think would take care of the problem.

• 16 :MR. MORRISON: The trouble with your suggestion about the minutes is lawyers 17 can draft uniquely uninformative mi111utes.

18 COMMISSIONER WALLMAN: Sure.

19 :MR. MORRISON: Any lawyer who can\ should be fired. That's my concern 20 about that. I just find them unilluminating in terms of the dialogue, not in terms of 21 recording what happened. It's not the problem of what happened or what they decided.

22 The question is what reasons were given, what were the considerations, and it seems to 23 m~ that you can\ get that from minutes and you shouldnii get them from minutes.

24 People spend too much time trying to write it all down -

25 :MR. LORNE: That depends on the purpose the minutes are serving. It seems to 26 me that if the minute is simply identifying the topic of discussion, there may be value 27 there.

28 MR MORRISON: Right, yes.

29 MR. MAY: Let me just follow up on that, Mr. Wallman. I think you suggested as 30 a fall back position if the minute proposal were not accepted that perhaps there could be 31 a verbatim transcript made of the meeting, and then the transcript would be released 32 within either 180 days or at the time of the public vote. With that proposal, how come 33 the participants in the meeting, knowing that there is a verbatim transcript made, would 34 not feel the same type of chilling effect that they would feel in a public meeting, knowing 35 that the verbatim transcript was going to be released? I mean, how far does that get you 36 out from under the problem that yo11 described?

37 COMMJSSIONER WALLMAN: I think it gets you somewhat out from under the 38 problem, but I think you're still somewhat stuck under the roclc. It's a question of 39 whether or not something is better than nothing in this case.

• .14 I

1 My hope is that if people get used to private deliberations, there will be spillover 2 into public :ieliberations and people might feel more comfortable with it. I don't know if 3 that would be the case, but it's a hope.

4 My second hope is that if you. have 180-day delay that may be sufficiently long 5 that people would .feel that in that illlterim period if there are inadvertent statements 6 made, stupid statements made, things which o~erwise cause people not to want to say 7 anything at all, you're in a position where enough passage of time has occurred f:bat 8 people will feel that they can say that that's something that they thought about before, 9 theyve been better informed, theyve lleamed more and that's not their current view. I 10 agree - I think people are still going to be quite reluctant to speak when they have the 11 microphone in front of them. I think that if it is something where it's not released until 12 the actua1 action occurs, at least then you've got the benefit of people having formulated 13 the actua1 action and being able to explain their reasons in connection with the vote, 14 which will explain away anything that they might have said in the intervening six months 15 or other period.

16 So it has the opportunity for sc,rt of clearing the air, if it's released at the time of 17 the vote. If you release it simply after some period of time, regardless of whether or not 18 the vote has been taken, I think it still causes some problems. And then if you've got 19 ongoing negotiations, obviously, it can kill them. If there is a legislative matter pending 20 or some negotiation with an industry that's pending, to have all of a sudden the transcript 21 come out in the middle of that as to where the Commission was at some period in the 22 past, I think may well stymie the ability of the Commission to be effective.

23 So I think a lot of the problems that currently exist, however we want to describe 24 them - human elements or whatever -- are still there,- even under the fallback proposal, 25 and I think that there are some real severe problems with it. But it's a question as to how 26 far people are willing to consider going with regard to trying to make this whole process 27 better. Right now we have a process which simply doesn't work, and the question is can 28 we get one that at least is acceptable to most people to allow it to work better. I would 29 like to get to an ideal process. Alan's suggestion is one that is helpful in some respects 30 and in other respects it doesn't obviously work. The idea of a sort of shareholders 31 meeting that we talked about at one ]point or sort of open meetings when we have a 32 proposing release or adopting release also takes care of some of the issues. Again, in 33 other cases it doesn't work. If people are looking for something where you have access 34 to the deliberative process, the view of the minutes was to allow for the private 35 deliberation to occur and then for the public or an enterprising reporter to be able to 36 follow up by knowing that a private deliberation had occurred and get whatever 37 additional information they wanted. The overlay of the transcript in some cases was to 38 provide access to the actual deliberations if somebody wanted to look back and say how 39 do these people arrive at the decision they arrived at. They're in a position to get the 40 tapes and to say, all right, at least now I understand, given that this action occurred 41 today, how they got there over the last three, four or six months, whatever it may be.,

42 MR. MAY: We just have one minute or a couple of minutes before we get to the 43 next panel, but let me try and clarify this. With regard to the minutes that you proposed

15

• 1 to release I think within-two days after a meeting if that proposal were in effect - Mr.

2 Lome I think just suggested perhaps that a minute might mean just a notation as to the 3 .topic that was discussed at the meeting perhaps - what do you understand briefly to be -

4 - what do you envision within your proposal for the release of minutes?

5 COMMISSIONER W ALLlvIAN: My view would be to go further. I think that it 6 need not include only the topic. I think it can include a general discussion of what 7 occurred. I think that if the discussion is general enough, people will feel that they can 8 say certain things that simply will not get into the minutes after everybody realized that it 9 was not something that ought to be stated publicly and that there can be some 10 clarification there for what would go into the minutes. I agree with Alan that a good 11 lawyer is going to be able to write minutes so that they are not viewed as embarrassing 12 or do not spell out agency secrets or do not otherwise provide for the kinds of problems that people are concerned with in terms of a public debate among agency members. But 13 14 I think that's for the good - I don't think that's bad - I think the point is to allow people 15 to have minutes that will not be chilling.

16 I think, on the other hand, if you have minutes that provides sufficient information 17 so that somebody familiar with the area knows who to follow up and who to follow up 18 with, that's a great deal more information than currently exist. I think the real issue here 19 to understand is that we're not talking about a base where we have public open 20 deliberations today and we're cutting back. We're talking about a base today where we 21 don't have public open deliberations, and what we're trying to do is increase. And if we 22 have private deliberations and for the first time ever provide the public and the press the 23 opportunity to see in terms of minutes or some other kinds of recordings what it is that's 24 going on in private deliberations by at least knowing what it is that's being discussed, 25 what it is agency members are spending their time on, how much time they're spending 26 on it, which agency members are spending their time on it, that's a great deal more 27 information than is currently available to the public. And with that information I think 28 that you will start to see people providing information that they would like to see to

29. *deliver the process. More importantly, I think if you get those private deliberations 30 underway, people will feel more comfortable in appropriate times having a public debate 31 with regard to those matters as well.

32 MR. MAY: Thank you very much, Mr. Wallman, and Mr. Lome. We appreciate 33 it.

34 COMMISSIONER WALLMAN: Thank you.

35 MR. LORNE: Tliank you.

36 MR. MAY: We will now c-.all the next witness, the Honorable Stuart Weisberg, 37 Chairman of the Occupational Safety and Health Review Commission. That is, of 38 course, the agency where we're now sitting and we appreciate very much your 39 volunteering your room and so forth. Thank you very much for your hospitality.

40 Chairman Weisberg?

41

16 I

1 2 STATEMENT OF HON. STUART E. WEISBERG, CHAIRMAN, OCCUPATIONAL 3 SAFETY AND HEALTH REVIEW COMMlSSION, WASHINGTON, D.C.

4 MR. WEISBERG: Thank you, I would, first, like to welcome the ACUS Special 5 Committee on the Sunshine Act, to our agency headquarters and to our hearing room.

6 Having never sat in this seat before, rm looking at things from a different perspective.

7 [Laughter.]

8 MR. WEISBERG: *I have a brief three-page written statement to submit for the 9 record. Having spent almost a decade as the Staff Director for a House Subcommittee, I 10 remember witnesses coming in with three-page written statements that would have taken 11 them two minutes to read verbatim and spending 15 minutes summarizing the three-page 12 statement.

• 13 14 15 16

[Laughter.]

MR. WEISBERG: :Mindful of that experience, I will try to be brief.

Today's hearing was prompted by a letter earlier this year signed by over a dozen members of board and commissions asking ACUS to study the effectiveness of the 17 Sunshine Act. I was not one of those signatories, in large part because no one asked me 18 to sign the letter, but also because I was preoccupied with drafting memoranda to my 19 fellow commissioners and otherwise communicating with them being my chief counsel so 20 as not* to run afoul to the Sunshine Ac.1.

21 I would like to relate my first-hand experience with the Sunshine Act during the 18 22 months that I have served as Chairman of the Occupational Safety and Health Review 23 Commission. The Review Commission is an independent quasi-judicial agency. We are 24 not part of the Department of Labor or OSHA. Our sole function is a judicial one, to 25 adjudicate contested health and safety citations issued by the Secretary of Labor. An 26 OSHA inspector compliance officer inspects the plant or construction site. If he or she 27 finds violations, a citation is issued. The employer can contest that citation. If the 28 employer contests the citation in writing within 15 days, there is a hearing before a 29 commission administrative law judge, and there is also an appeal to the three-member 30 review Commission, of which I am the chairman. Thus, the Commission provides both 31 trial level and appellate review.

32 As we are a three-member Commission, the Sunshine Act has a constant 33 detrimental effect on our collegial deliberation and our ability to communicate with one 34 another. Because two Commission members constitute a quorum, it appears that any 35 discussion that I have with a fellow commissioner concerning a case on review could be 36 viewed as constituting a meeting undc:r the Sunshine Act's open meeting requirement. As 37 a result, our commissioners have historically been very reluctant to talk to any other 38 member about any matter for fear that the two together might be viewed as running afoul 39 of the Sunshine Act.

• 17

• 1 Remember, last year one of our commissioners and myself were attending an 2 American Bar Association conference. *The t\'10 of us were traveling together in the l same car from the airport.* We we:re more concerned about violating the Sunshine Act 4 than we were about obeying the posted speed limit.

5 (Laughter.]

6 MR. WEISBERG: Accordingly, communications between commissioners is 7 limited, indirect, and impersonal, 1md this impacts negatively on the collegial decision 8 making process. This is ironic because the Commission's agenda meeting where we 9 consider and dispose of cases are closed to the public pursuant to the Sunshine Act's 10 exemption for formal agency adjudication. Yet, even after we vote at a closed 11 Commission meeting on a case, two commissioners are reluctant to directly discuss 12 changes to a proposed draft opinion for fear of a Sunshine Act alarm being triggered.

13 We communicate by memorandum or through our chief counsels. This is impractical, 14 ineffective and time consuming. In my view, this adds* to the delay in issuing case 15 decisions.

16 I strongly believe in the basic principles of open government which the Sunshine 17 Act was created for. At the same time, I strongly support proposals one and six and 18 urge ACUS to recommend them as amendments to the Sunshine Act. There is a need to 19 restore the opportunity for collegial and direct *communication between commissioners 20 without diminishing the laudable goal of open government.

21 I would also urge you 1to look at the particular problems of three-member 22 commissions where two members constitute a quorum, and I think in this case one size 23 doesn't fit all.

24 Thank you and I'm prepared to answer any questions that anyone might have.

25 MR. MAY: Thank you, Chairman Weisberg .

26 Questions?

• 27 MR.. LUBBERS: I take it as an adjudicative agency you are permitted to close 28 your meetings to deliberate on cases?

29 MR. WEISBERG: Right.

30 MR. LUBBERS: And you regularly do so?

31 MR. 'WEISBERG: We regularly do so by a vote at the beginning ofa meeting.

32 MR. LUBBERS: By vote. So the problem you're really addressing is when you 33 have a case pending even after a closed meeting where you discuss some cases, then you 34 have to go about deciding the case and maybe writing up an opinion afterward.

35 MR. WEISBERG; Writing up an opinion; circulating an opinion, circulating 36 separate opinions, and even changes to a plurality opinion, the inability to communicate 37 directly with the commissioner. You have to do it through your chief counsels, and that's 38 time consuming and, frankly, no,t as effective as the ability to talk to another 39 commissioner. And at other agenci1es such as the National Labor Relations Board or our

~ 18 1 sister agency, the Federal Mine Safety and Health Review Commission, those are both 2 five-member bodies. So you don't have the quorum problem of two members talking 3 about a draft decision, about a proposed change or anything like that, but it's particularly 4 a problem to three-member commissio,ns or agencies.

5 MR. LUBBERS: The FTC's general counsel's comments, which we received, 6 indicate that there is a special problem with law enforcement agencies, and I gather one 7

• of your problems is that you're an adju'dicative agency. You're in effect a. quasi-court, 8 and you can't act like a court. Judges obviously can discuss cases amongst themselves in

• 9 any number and don't have to rely on their law clerks to go around and discuss the cases.

10 MR. WEISBERG: Exactly.

11 MR. LUBBERS: So it may be that it might be a one-size-fits-all problem with 12 respect to adjudicative agencies, agencies that primarily do adjudications.

13 MR. WEISBERG: Right, I think that's true but I think it's a particular problem for 14 three-member adjudicative agencies more so than agencies like the NLRB where you 15 have five members.

16 MR. LUBBERS: While I have the floor, I just wanted to point out one little thing 17 which I noticed. You mentioned going to an ABA meeting, and I saw in one of the 18 articles on the Sunshine Act that Colorado had a provision as to the definition of meeting 19 in their Sunshine Act, and it says that a meeting does not include, "The attendance of 20 members at any national, regional or state association to which the public body or the 21 members belong." That's a fairly narrow amendment but it might have helped you in that 22 situation.

23 [Laughter.]

24 MR WEISBERG: It probably wouldn't have covered.the car ride .

• 25 26 27 28

[Laughter.]

MR. MORRISON: What do your minutes look like for your closed meetings of the full Commission? That is, are they quite brief?

MR. WEISBERG: I think it varies depending on the case, the number of issues in 29 the case. They will vary from half a page to several pages.

• 30 MR. MORRISON: But they simply list the resolution of them?

31 MR.. WEISBERG: Not just the resolution. They will note what the particular 32 commissioner's concerns were and different views on various other issues.

• 33 MR. MORRISON: Are those ever made public?

34 MR. WEISBERG: No, they are not because they're part of the adjudicative 35 process, the deliberative process, and 1hat will usually come out when the Commission 36 has issued its decision.

37 MR. MORRISON: And I take it that people can change their mind until the 38 opinions come out any way.

• .J 19

• 1 MR. WEISBERG: Yes, exactly.

2 MR. MORRISON: It's simply - they're a little more than formalized notes that 3 any one commissioner might take as a record of what people tentatively voted on -

4 MR.. WEISBERG: Tentative:ly, that is correct.

5 MR. MORRISON: That's a problem that seems to be quite different from the 6 problem that Commissioner Wallman has, and one which I hasten to say I think can be 7 dealt with more easily.

8 MR. KAMENAR: I just have one question. The adjudicative hearing that you 9 hold like a court - is itopen?

10 MR. WEISBERG: When we hold oral argument in cases - just like an Appellate 11 Court, oral arguments are open, this hearing room is usually filled up to capacity and 12 completely and fully open and advertised to the public. It's just when we have 13 Commission agenda meetings where we actually consider and decide the cases, those are 14 voted on at the beginning of the meeting. I entertain a motion to close the meeting 15 pursuant to the exemption to the Sunshine Act for adjudication, and those meetings are 16 then closed. We then consider the various cases that we have on the docket.

17 MR. KAMENAR: So your problem then is that although that meeting is closed 18 and you have no problem with that part of the Sunshine Act, it's the collateral meetings 19 that go along -

20 MR. WEISBERG: I wouldn't even call it collateral meetings. That's the only 21 opportunity that we have to communicate with one another and that's at that closed 22 meeting. As soon as that meeting ends and we go outside, we cannot communicate 23 about a particular case, and I'm not talking necessarily about deciding the case but when 14 a draft opinion is circulated and you disagree with a particular line in it, you cannot go to

• 25 16 17 28 29 the commissioner who might have drafted that and say, well, I have this problem. Can we change it to X, Y or Z? Instead, you have to have your chief counsel go and talk to that commissioner and make that suggestion.

MR. KAMENAR: So you can't view those follow up conversations as a continuation of the meeting? So whien the meeting ends -

30 MR. WEISBERG: Under the requirements for the Sunshine Act you have to 31 advertise that there is going to be a meeting -

32 MR. KAMENAR: When it begins and when it ends.

33 MR. WEISBERG: - you have to vote to close that meeting or in effect close our

. 34 door.

35 MR. MORRISON: You co1Uldn't do that by memorandum, though, could you?

36 You could do it by memorandum but -

37 MR. WEISBERG: You could do it by memorandum but that's time consuming 38 and-39 :MR. MORRISON: I undersumd.

1 MR. MAY: Go ahead.

2 MR. CAMPBELL: 1f the Sunshine Act didn't provide you the opportunity to 3 cl~se the meetings, how would you anticipate your agency would conduct its business?

4 MR. WEISBERG: Our sister agency, the Federal :Mine Safety and Health Review s Commission, has had a long tradition c>f keeping their meetings open, and that in part has to do with the type of cases they have and it really goes bac~ historically.

7 I think what would happen is commissioners would come to the meetings with I their vote, with their position intact, and there would be less deliberation between the 9 commissioners. You would have less of an ability to influence a fellow commissioners 10 vote, to be able to discuss the issues imd to discuss the law. Instead, in a public forum 11 commissioners would come in with their vote and would not want it to look like they.

12 changed their mind during the Commission meeting, and I think that would be the likely 13 result. And in talking to people at the Mine Safety Review Commission, that's the 14 impression that I get on what happens there because efthe public nature ofit.

15 MR. MAY: Okay, if there are no further questions, thank you very much.

16 MR.. WEISBERG: Thank you very much.

17 MR. MAY: Thank you, again, for your hospitality today. We appreciate it.

18 Okay, I would like to call the next panel please:

19 Reginald E. Stuart, President of the Society of Professional Journalists; Lucy 20 Dalg]ish, the Society of Professional Journalists National Freedom of Infonnation 21 Committee Chairwoman; and William B. Ketter of the American Society of Newspaper 22 Editors who is President of the Society.

23 Is Mr. Ketter with us? Mr. Ketter?

24 MR. KElTER: Yes.

25 MR. MAY: Thank you all for being with us. You could begin in whatever order 26 you wish. If you would, please limit your statements to five minutes at the most at the 27 outset so we do have time for interchange. Of course, your statements will be entered 28 into the record.

29 Who would like to go first?

30 MS. DALGLISH: I think ru start off. I will be speaking for SPJ and a group of 31 other journalism organizations. Reginald Stuart will be answering questions, and then I 32 think Mr. Ketter will address some concerns. We will be addressing different concerns, 33 but I would like to stress that we're in a.greement with each other, I believe.

34 MR. MAY: Okay, we'll find out as we go along.

3S MS. DALGLISH: That_ should save us some time this morning.

36 37 f*

21

• 1 STATEMENT OF MS. LUCY DALGLISH, CHAIR.WOMAN, SOCIETY OF 2 PROFESSIONAL JOURNALISTS, NATIONAL FREEDOM OF INFORMATION 3 COMMITTEE, WASHINGTON, D.C.

4 MS. DALGLISH: Mr. Chairman, and members of the Special Committee, thank 5 you for the opportunity to address the Administrative Conference at today's hearing. My 6 name is Lucy Dalglish, and Ive been Chairwoman of the Society of Professional 7 Journalists Freedom of Information Committee for the past three years. Reginald Stuart 8 is SPrs President and Editor at Knight-Ridder's Washington Bureau. The Society is the 9 nation's oldest and largest organization of journalists. It includes members from every 10 aspect of collegiate and professional journalism. We would like to explain to you our 11 concerns about the proposed changes to the Government in the Sunshine Act that would 12 allow agency commis*sioners to meet in private, including proposals allowing for secret 13 deliberations, provided a record of such deliberations is made public.

• 14 15 16 17 18 First, a couple of preliminary matters, we are grateful to Security and Exchange Commissioner Steve Wallman for his willingness* to discuss this proposal with us this summer; and, second, I would like to explain to you how we went about preparing today's testimony. The media organizations who have endorsed this testimony include the Society of Professional Journalists, the Newspaper Association of American, the 19 Newsletter Publishers Association, the Radio and Television News Directors Association 20 and the Reporters Committee for Freedom of the Press. In addition to working with 21 those groups, we went to the Society's membership from around the country. In my long 22 association with the FOi committe:e, no issue has prompted a louder outcry from our 23 national membership. When we heard that ACUS was scheduling a hearing on the 24 Sunshine Act revisions,* we asked the presidents of our local chapters and members of 25 our 50 state project Sunshine Nen;ivork for their thoughts. We provided these leaders 26 with a packet of background information, including Commissioner Wallman's February

• 27 28 29 30 31 letter. We were flooded with e-mail, mail, voice mail messages from our members who were incredulous that any one would want to dismantle any portion of the Sunshine Act.

I have attached representative copies of this correspondence to my testimony for you to read at your convenience. Some of these responses are also paraphrased in the printed version of my testimony, but in the interest of time I won~ go into them today.

32 We asked our members to carefully consider Commissioner Wallman's letter and propose 33 alternatives that would foster opien government while giving commissioners more 34 flexibility in doing their jobs. There were three recurring themes in our members' 35 responses:

36 First, they don't trust decisions that are made in.secret. Second, they-pointed out 37 to us that local government officials, have to meet in public so why can't Federal officials.

38 They fear any limits to opeMess on the Federal level will inevitably trickle down to the 39 state and local level. Finally, they said that in balancing efficient government and open 40 government, openness wins every time. The bottom line is this: we strongly urge that 41 the people who are covered by the law change don't change the law to accommodate the 42 people who may be offended or intimidated by its intent. Public knowledge is essential 43 to the

• democratic process. Information is knowledge and knowledge is power.

II* 22 I

1 Excessive secrecy robs the public .1:,f its right to know, which is implicit in the 2

• Constitution and recognized in scores of court decisions. The victim of excessive 3 secrecy is public trust. The public is entitled to know how their money is being spent, 4 what their elected and appointed representatives are saying and why the government is 5 doing what it's doing.

6 Deliberating in public, as you lmow, is what it's all about. This is a lesson learned 7 at the most basic grassroots level of self-government entrusted into the hands of elected 8 officials throughout every village, town and city in the nation. In a public meeting there is 9 give and take, and even more important people occasionally change their minds, a 10 condition that manifests itself when minds are open and subject to influence by additional 11 information.

12 I believe the reason we receive such a visceral reaction from our members 13 nationwide is because they have diligently and successfully worked on these very issues

• 14 15 16 17 18 in their home states for at least the past *three decades.

In short, Washington's obsession.with secrecy and image does not play well in the heartland. State Sunshine Acts require school boards, city councils and state government agencies to deliberate in public. Local officials frequently look unpolished, irrational and silly, but our society ultimately thrives because they conduct our business in the open.

19 Unquestionably, open meetings make an agency's job more difficult, but Florida's 20 Governor Lawton Chiles, the father of the Sunshine Act, when he was a member of 21 Congress, explained several years ago that Congress in enacting legislation such as the 22 Freedom of Information Act and the Government in the Sunshine Act was not acting to 23 serve the interest of Federal agencies, but rather the interest of the public.

24 Commissioner Wallman, this committee and others have spent a great deal of time 25 this summer discussing proposals to modify the Sunshine Act. We are, frankly, wary of 26 each. No matter how well intentioned these proposals would gut the core of the 27 Sunshine Act requiring agency decision making processes to be public. To just address a 28 couple of these:

29 Proposals that would allow for private deliberations among a quorum or subgroup 30 of an agency's officials do not, in our view, present a viable alternative to the current 31 requirements of the Sunshine Act. Indeed, we question whether such discussions would 32 improve the collegiality of agency members, for private discussions among such 33 subgroups could foster the development of cliques among like thinking members to the 34 exclusion of those with differing viewpoints.--*

35 Proposals pennitting private deliberations for additional topfos or subjects would 36 create additional unnecessary exceptions for Sunshine Act requirements.

37 Finally, proposals that would allow for private deliberations among agency heads, 38 provided that any meeting is documented through minutes or similar notices would still 39 leave the public in the dark about critical aspects of the decision making process. Even 40 members of the trade press strongly believe that minutes are no substitute for full 41 coverage of open meetings.

23 '*

1 As .a former reporter, I have read hundreds of pages of minutes. In such 2 documents the public is presented with a neat, two-page summary of a three-hour 3 meeting with a general conclusion and little else. But what really happened in that 4 *meeting, which official relented and in the face of what threat, who scratched the back of 5 the senior member of the panel to make her change her mind so radically in the course of 6 30 minutes, what was the demeanor in the meeting - we'll never know. We asked our 7 membership to think carefully about this issue. We wanted solutions, not just a bunch of 8 whining about openness. Many :said they couldn't think of any way to balance the 9 efficiency and openness, but our members in Colorado and Montana described laws in 10 their States that might help solve this problem. I have reprinted the entire law in my 11 testimony, but, essentially, it allows for what they call informational dialogue meetings 12 that are regularly scheduled. You will notice the first one, seven days out. The agency 13 heads meet together at a routine time, perhaps 10:00 every Thursday morning. The 14 meetings are open to the public and no formal votes are taken. Our members in these 15 states say this proposal works quite well.

16 Finally, in concluding, I would like to say that it's somewhat ironic that while 17 ACUS is discussing allowing private meetings under the Sunshine Act, other Federal 18 entities have rediscovered openness. The Clinton Administration has made a priority of 19 eliminating excessive secrecy. In 1993 the Attorney General and President Clinton 20 announced a new openness standard that contained a presumption of openness. Earlier 21 this year the President issued an executive order decreasing the number of classified 22 documents. Congress' Secrecy Commission, headed by Senator Daniel Patrick 23 Moynihan, is currently investigating ways to reduce the mountains of secrets that have 24 accumulated on Capitol Hill, and, finally, just last week Attorney General Janet Reno 2S issued an order that says Justice Department employees will be graded on how well they 26 do in handling information requests.

• 27 28 29 30 31 The deliberative process also must be open to preserve the integrity of government. Elected and appointed officials serve with the consent of the governed, but they *serve effectively with the confidence of the governed. The only way to preseive that confidence is to go back to the beliefs that guided our founders when they led a new nation into a bold experiment called self-government. We can succeed only when there 32 is a free flow of information from that government enabling informed people to make 33 informed choices.

34 While we are here representing media groups, I stress that Sunshine is not a press 3S issue - it's a public issue - and you are the custodians of a public trust. . You must 36 govern yourselves accordingly. You must do everything in your power to make that 37 process as open as possible. You should work as hard to ensure that these meetings stay 38 open as you have worked this summer to try to close public access, and to that end the 39 Society stands ready to assist you Federal agencies in providing workshops or any other 40 type of assistance you deem appropriate to ensure that the Federal Government complies 41 with the law.

42 Thank you very much. I will tum it over to Mr. Ketter.

24 1 MR. KEITER: Thank you, Mr. Chairman, and members of the Special 2 Committee for allowing the American Society of Newspaper Editors to present its view.

3 I should explain that I'm the editor of the Patriot Ledger in Quincy, Massachusetts, a 4 historic community and our country's founder, the home of John Adams, John Quincy 5 Adams, John Hancock and others that began this great experiment in self-government.

6 I'm here as the current president of the American Society of Newspaper Editors, 7 and I would like to take just a moment to tell you a little bit about my group. ASNE is a I non-profit professional organization of more than 800 daily newspaper editors 9 throughout the United States, and their papers in tum serve more than 100 million daily

• 10 readers and citizens of this country. For more than SO years ASNE has dedicated itself 11 to encouraging and protecting the friee flow of information and to fostering the public 12 discourse essential to democracy.

• 13 In that role, we serve, as Lucy mentioned earlier, as a stand in, a surrogate, if you

• 14 15 16 17 18 will, for the citizens at countless government hearings and meetings because, as we all know, people cannot convenient as!,emble to .witness first-hand their government in action or inaction. Thus, the Government in the Sunshine Act is critical to our mission and to the core purpose of open door democracy, arid the examination of Federal agency decision making. Without a strong Federal law requiring public meetings, there will 19 surely be an even greater disconnect than presently exists between our political system 20 and the citizens of this country.

21 ASNE has reviewed the February 17, 1995 letter from agency commissioners, 22 which was chiefly responsible for creation of this Special Committee and the convening 23 of this public *. hearing. At the gracious invitation of Security and Exchange 24 Commissioner Steve Wallman, ASNE has also participated in several preliminary 25 meetings to discuss your review of the Sunshine Act and the several ideas for changing 26 it. In addition, we have reviewed relevant case law and other related materials, including 27 the 1984 ACUS study and recommendation, the 1987 report and resolution of the 28 American Bar Association, and ASNE's own 1988 testimony before the Senate 29 *Governmental Affairs Subcommittee on Federal spending, budgeting and accounting.

30 In light of that review, ASNE :;hares the concerns of Commissioner Wallman and 31 other officials that the Sunshine Act ruLS not fully achieved the intent of Congress to open 32 the collective deliberations of multi-commissioners and Federal agencies to public view. . :-*.~~~

- *~-~~

33 We agree that absence of open deliberations by agencies such as the Federal ~

34 Communications Commission and the Federal Trade Commission can limit the public's 35 understanding of their actions, and we agree that one-on-one private conversations and 36 written memorandum by government. officials are not conducive to a free and open 37 exchange of substantive ideas.

38 But ASNE strongly disagrees, with the main thrust of Commissioner Wallman's 39 argument that the way to improve the effectiveness of the Sunshine Act is to gut it, and 40 . by that I mean allowing multi-membi:r agencies to conduct more of their business in 41 secret rather than less. This boils down to a simplistic cause-and-effect argument that 42 wrongly blames the Sunshine Act for lack of open government. In our view it is not the

25

' 1 Act itself that has stifled the d.eliberative process, rather the blame lies with the agencies 2 themselves for their willful refusal to embrace the clear intent of the Sunshine Act. It 3 seems there is nothing new under the sun when it comes to criticism of the Sunshine Act.

4 Throughout the legislative debate that preceded its enactment, the leading critics of the .

5 Act - primarily the agencies subject to its mandate - made it abundantly clear that they 6 found neither comfort nor convenience in its open

• meeting and public notice 7 requirements. They characterized 1the Act's openness requirements as well meaning but 8 ultimately unrealistic, and even detrimental to the effective operation of government.

9 More specifically, these *agencies argue that human nature, as well as the .nature of 10 politics and government, make it unlikely that agency members would willingly engage in 11 collective decision making deliberations and public view, and they warn that the chilling

.11 effect of an openness requirement would inevitably lead to a decline in free wielding.

13 debate. And, of course, over the years with each successive review of the effectiveness 14 of the Sunshine Act the resisting conduct of these agencies has undermined the 15 implementation of the Act only to be cited as evidence that it does not work.

16 Unfortunately, this latest call by some agency commissioners for review and 17 revision uncritically reiterates this litany of self-fulfilling prophecy and tries to take us 18 back to square one in debating the public policy of applying Sunshine requirements to 19 Federal agency decision making. In so doing, the commissioners fail to recognize that 20 most Sunshine implementation problems are within the control of agency members. If 21 only they will take the bull by the horns and not worry about conducting the public's 22 business in public. ASNE believes that with few exceptions the agencies that are subject 23 to the mandate of the Sunshine Act have never really accepted the challenge of adapting 24 their 'decision making routines to open, collective deliberation.

25 Why is this? Let me offer a couple of reasons: For one, agency members 26 strangely fear the risk of personal embarrassment in using public meetings to conduct the 27 give and take exchapge of information and opinions that is supposed to be the distinctive 28 characteristic of open government in this democracy. Instead, these officials use public 29 meetings to simply present carefully scripted statements memorializing decisions that in 30 effect occurred outside the public eye. This.is nothing short ofa sham.

31 Another reason has to do with unnecessary fear of the Sunshine Act itself.

32 Agency members say they are afraid to convene any non-public meetings or discussions 33 among a quorum of agency members, even for the purpose of considering a meeting 34 agenda. This is nothing but a convenient excuse for avoiding public debate no matter 35 how messy that debate might be.

36 The February l 7ih letter from agency commissioners correctly warns that such 37 agency conduct contributes to a decline in the quality of policy making and a lack of 38 individual member accountability in agency decisions. However, it fails to come to grips 39 with the fact that the conduct in question is not caused by requirements of the Sunshine 40 Act, but by agency efforts to avoid having to comply with those requirements.

41 Would good faith efforts to comply with the Sunshine Act improve the quality of 42 decision making and the accountability of individual agency members even as it would

i26 1 enhance public understanding of agency actions? If we are to answer this question on 2 the basis of experience rather than surmise, ASNE believes that the ACUS* Special 3 .Committee should be considering proposals to encourage, assist, and - where necessary 4 - compel agencies to comply with the requirements of the Sunshine Act.

5 MR. MAY: Mr. Ketter, I'm going to *ask you if you could, to wrap up pretty 6 quickly because we want to make sure we have time to discuss some questions with you.

7 MR. KETTER: I just have another minute.

8 MR. MAY: Okay.

9 MR. KETTER: ASNE believe:s the proposal under preliminary consideration by 10 this Special Committee to allegedly improve the Sunshine Act generally missed the main 11 point of the Act, which is to enhance public access to and public understanding of 12 Federal agency decisions. You do not enhance open government by allowing agency 13 discussion to occur behind closed doors on the condition the details of the discussion will 14 be released to the public soon after in the form of minutes, or summary or press 15 conference. This is not open government, and this is contrary to the Sunshine Act's 16 fundamental purpose. Moreover, given the attitude of government officials toward 17 public access to their collective deliberations it does not seem likely that a requirement 18 for timely and complete minutes or summary of private discussion would meet with good 19 faith compliance. They fall short of full unedited recordings of transcripts, which. are lO themselves less satisfactory than public witness to actual meetings and discussions.

21 In a nutshell, ASNE believes it is both premature and inappropriate for this Special 22 Commission and the Congress to give up on the Sunshine Act. The proposed changes 23 would signal a clear retreat from the Act's mandate for public deliberations and such a 24 retreat, at a time when our nation is experiencing unique public doubts about the actions 25 and integrity of the Federal Government in general, would not serve the public interest.

26 Even if the type of accountability sou,ght by the Sunshine Act presently remains more 27 aspiration than reality, it is an objective still worth pursuing without compromise.

28 Otherwise, I fear the citizen interest would become - to paraphrase country singer 29 Wynnona Judd - just a bug on the windshield of government.

30 [Laughter.]

31 MR. KETTER: Thank you.

32 MR. MAY: Thank you very much, Mr. Ketter, and Ms. Dalglish.

33 One thing I would like to say just for the record to make sure that everyone is 34 clear. Ms. Dalglish, when you characterized the committee, I think at one point you said 35 that the committee spent a lot of time this summer working to close meetings. I just 36 want to emphasize again what the committee is doing and our purpose is to try and study 37 this issue, and, as I said at the outset, to have in mind the twin goals of increasing 38 collegiality and a quality of agency decision making if possible while, at the same time, 39 improving public access. We haven't reached any conclusions certainly, and I'm sure that 40 one of them is not really working to close meetings so I just want to be clear about that.

27 *.

1 Questions from the panel, the committee? ._

2 MR. MORRISON: I think if I understand you, there is no .substantial 3 disagreement that if you go to the meetings at the SEC now you won't learn anything 4 about what's going on. Is there any disagreement about that? I mean, do _you really 5 think you get very much out ofit?

• 6 MS. DALGLISH: Out of what the discussion is? Actually, in talking to a few 7 reporters who cover the SEC, they have told me that actual_ly, no, you don't get anything

• 8 out of the commissioners but it's the only time you can find their staff people to answer 9 questions so they all go just because it does tum out to be productive.

10 MR. MORRISON: Okay, so you don't get anything out of the commissioners.

11 You can talk to the staff. We could have a staff meeting and require the staff to show up 12 at some other time and that would avoid that problem.

13 MS. DALGLISH: Right.

14 MR. MORRISON: The point I want to make is I heard lots of complaints about 15 the commissioners not giving a good faith effort to comply with the* Act, and that they 16 don't believe in the spirit of the Act, they didn't want it to begin with. I agree with 17 everything you said there, but the problem I have is exhorting them to do the right thing 18 hasn't done any good, and I didn't hear a single solution to the problem of increasing 19 public collegiality.

20 MR. STUART: We gave you the Colorado solution.

21 MR. MORRISON: Well, I want to ask a question. Do they have votes in private 22 or public* after that?

23 MS. DALGLISH: Public.

24 MR. STUART: Public, the final disposition is in public. The infonnational 25 meetings are for the sake of having collegial discussions to resolve questions they have 26 about different members' positions.

27 MR. MORRISON: And you think by putting that provision in there, you think 28 Commissioner Wallman and his colleagues are going to start spilling all the beans like 29 they haven't done in the past.

30 MR. STUART: They should. They - .

31 MR. MORRISON: That's not the question.

32 MR. STUART: Well, my point is this, though, and the point we're both making 33 and all of us are making is this that every commissioner who takes the oath of office as a 34 public official on a commission has an inherent responsibility of -

35 MR. MORRISON: Do you want to impeach them? Is that your proposal, to 36 .* impeach them?

37 MR. STUART: They have a resp~nsibility to make sure they operate in the spirit 38 of the law.

~ 28 1 MR. MORRISON: Well, what do you propose to do if they don't do it? That's 2 my question. That's the problem I have. I agree with you. I spent the last 25 years 3 fighting for openness in government. I believe in it, but the practical problem we have is 4 how are you going to make people who don't want to be open be more open, and I don't 5 think exhorting them or threatening to impeach them does any good.

6 MR. STUART: Yes, but that's what you should be focusing on, not on how to 7 get them loopholes but how to enforce:: them -

I . MR. MORRISON: But you people -

9 MR. MAY: We can only have one person talking at a time. I'll yield to Mr.

10 Ketter.

11 MR. KETTER: Well, I don't see that the solution is to result in more privateness 12 rather than more publicness. I don't know - maybe there's some sanction procedures

• 13 14

. 15 16 17 that you ought to be considering if they're not openly discussing the actions that the public has an interest in. Certainly, one good step is to appoint commissioners that are interested in discussing the public business, you know, in :freewheeling forums. That serves the -

MR. MORRISON: We should ask them at the confirmation hearings, right,* and 18 they will all say yes and then what's going to happen when they say, "Oh, well, I didn't 19 realize they meant that or this is a particular difficult matter. We certainly can't talk 20 about that in public."

21 MR. KETTER: Let me ask you, why are they afraid to discuss in public the 22 business of the government?

23 MR. MORRISON: I've asked them that and I haven't gotten a satisfactory answer 24 from them either.

• 25 26 27 28 MR. KElTER: We can't come: to a point where we say this is good business to change the law because they're afraid t,o discuss things in public. That doesn't serve the public interest. Any kind of logic will tell you that.

MR. MORRISON: Do you think the current charade serves the public interest?

29 MR. KETTER: No, I think it does not.

30 MR. MORRISON: All right, that's my problem. I agree with you.

31 MR. STUART: Each of you has to remember, though, the law is not the problem.

32 MR. MAY: Let me ask this question -

33 MR. MORRISON: That's easy to say, but I don't think it's right.

34 MR. MAY: - and I believe, Mr. Stuart, you were at one of our meetings when 35 we sort of framed it this way. There are probably two reasons why the Sunshine Act 36 hasn't really worked maybe as it's enviskmed. One may be the human nature element that 37 people are just reluctant to speak at 21 public meeting in a way that might embarrass 38 someone or embarrass themselves, or it might offend the political constituency, all these

29 "

1 reasons why people might not want to speak in public, and that's human nature. I 2 understand one response to that is,, well, they're public officials and apart from whether 3 they might embarrass someone or themselves or whatever, that's theyre job. They 4 *collect a paycheck and that's what they should do.

S The second problem that we have talked some about is the logistical difficulties 6 that are posed by the Sunshine Act - in this sense, that ihere are a lot of these multi-7 member agencies that are subject to it like the Securities and Exchange Commission and 8 the Federal Communications Commission, which I believe you said you had some 9 experience covering. They have large agendas which are - theyre discussing a lot of 10 items on an ongoing basis, unlike Commissioner Wallman's Advisory Committee that's 11 focusing on one particular issue. And, you know, at the FCC - an agency that I'm 12 familiar with, for example - they will have a public meeting, and, as you know, there will 13 be seven or eight agenda items typically - it can be more or less - and they will have one

• 14 IS 16 17 18 of those meetings every two weeks.

Now one logistical problem posed by the Act is even if we didn't have the human nature problem and commissioners felt perfectly free to sit down in public and talk about a

these things, from a logistical point of view it's very hard or difficult to notice public meeting every time they start and have a collegial discussion and discuss that particular 19 issue, and then they may have that discussion and someone may have a follow up 20 thought, which is what you hope happens in collegial discussion and there is that type of 21 interchange. Because of the seven-day notice meeting requirement every time you call a 22 meeting, it's just very difficult to do that so you tend to say you're not going to do it.

13 Do you agree that this logistical issue is a problem in some of these agencies at all, 14 and if you do agree, can you envision any changes that would address that like perhaps 25 letting them have meetings up through or during the public comment period in a 26 rulemaking proceeding, you know, sufficiently far in advance of the actual Sunshine 27 meeting at which the decision is going to be made, or

• perhaps releasing minutes at 18 meetings that aren't called on sevein-day - that don't have to be called on seven days 29 notice or things like that?

30 MR. STUART: I think we~ would gladly support a Colorado styl~ solution, but 31 don't hold me to that.

32 MR. KETTER: Can I ask a question?

33 MR. MAY: Yes.

34 MR. KETTER: About the Colorado style solution - in your testimony you refer 3S to that statute there -

• and it's an informational dialogue. It says there that no 36 deliberation shall be had and no decision shall be made at these meetings. In other 37 words, it seems to me that those meetings are very much in the public interest, and I 38 think even Mr. Lome at the SEC had indicated that that might be a good proposal to 39 have as well, to have an interaction between the public and agency members. But I 40 thought you said in your other testimony that these meetings do show how the agency 41 deliberates and how they make decitsions, but the statutes it seems doesn't -

1 MS. DALGLISH: I think their definition of deliberation and your definition of 2 deliberation are slightly different. I think what they're saying by deliberation they mean 3 motions made, things tabled, things like that 4 MR STUART: Official action.

5 MS. DALGLISH: Official acti1on, and my understandi~g is that your definition of 6 that word is slightly different.  :

I 7 MR. MORRISON: Why is it do you think this Colorado solution ifit became law 8 would change the conduct of Commissioner Wallman and his colleagues? That's only an 9 example.

10 MR. STUART: We're not sure it will, but iftheyre looking for additional vehicles 11 in which they can legally hold additional discussions -

12 MR. MORRISON: They can hold all the discussions they want now. The 13 problem is they don't want to do it, tha.t's the problem.

14 MR. STUART: I agree with you totally. I would not change the law.

IS MR. MORRISON: It sounds like Colorado is not going to do anything for us, 16 that's the problem I have. I mean, it doesn't deal with the problem of the unwillingness 17 for whatever reason - good, bad, or whatever reason. We are faced with the fact now 18 that these bodies are not engaging in meaningful discussion in public about things which 19 Congress thought they should be engaged in, in meaningful discussion.

20 MR. STUART: Then you sh()uld be exploring what sanctions Congress should 21 consider. We should not be exploring what exemptions -

22 MR. MORRISON: Do you have any ideas?

23 MS. DALGLISH: Well, speaking for myself: I think we _have dropped - the 24 media has gotten a little complacent on this issue. I think that one of the good things 25 :from our standpoint that has happened is we all of a sudden have discovered some of the 26 problems, and we're going to be far more vigilant on this* issue. I can tell you that the 27 amount of chatter on the Internet about this issue, the number of editorials that are 28 appearing on editorial pages, I think you're going to be discovering far more pressure 29 from the public and from the media in the future urging public officials to comply with 30 the law. I think we got a little too complacent 31 MR. MORRISON: Of course:, one problem is, unlike the State - I was talking 32 about the City Council before - these men and women on federal agencies are not 33 elected, and, therefore, they don't have to run for office again. Most of them stay five 34 years, if that, on the commissions and then they go off into private practices sometimes.

35 a The notion of pressuring them by the public is different dynamic than it is when you're 36 talking about the elected local school board members, for instance.

37 MR. MAY: Well, isn't it true -you mentioned the local and State bodies that live 38 under the various Sunshine Act - but take a City Council, for example I understand that 39 these Acts require them to have meetings in public in which they take votes and make

31

• 1 decisions, but do a lot of these Acts you're referring to also prohibit the members of 2 those commissions, and councils and whatever from having meetings - other meetings -

3 at which they engage in deliberation I'm just not sure. I don't know that that's the case.

4 MR. KETTER: Well, I think as a practical matter you find, you know, people 5 discussing an issue prior to going into a public meeting, but_ the laws in most States -

6 MR. MAY: Wait, stop. Do you mean consistent with the laws - can they discuss 7 a meeting? Well, see -

8 MR. KEITER: You can't convene a quorum of a subcommittee or whatever and 9 do that in private, no. Most o,pen meeting laws prohibit that, and, certainly, in 10 Massachusetts they do. But as a practical matter, you know, there are discussions going 11 on between people, not in some sort of a formal meeting where they're deliberating and 12 reaching a decision, but where theyre discussing the issues that are involved. Sure, that's 13 human nature too. That's why I .don't understand why there is this reluctance to 14 strengthen this law rather than to weaken it.

15 MR. MAY: At your newspaper, for example, I take it there are meetings at which 16 you discuss your editorial policies and you have to have periodic meetings I guess to do 17 that or whatever. Do you invite or would you have any objection to the public sitting in 18 on those meetings?

19 MR. KETTER: No, we invite them.

20 MR. LUBBERS: Can I ask a follow-up question to that? Would your 21 organization take the position that Congress and the courts should operate in the same 22 way - in other words, should they be restricted from having meetings amongst 23 themselves in private forums before they go into public hearings and meetings?

24 MR. KETTER: Private deliberations?

25 MR. LUBBERS: Yes.

26 MR. KETTER: Well, the courts, of course, bl the Constitution have a special 27 standing. I'm an unreconstructed traditionalist when it comes to openness. I would like 28 to see the courts, you know, open everything in terms of their discussions and how they 29 reach their decisions, but as a practical matter that won't happen because the Constitution 30 gives them the authority to do that im private.

31 Congress, yes, again, I think that any meeting of a Congressional subcommittee or 32 unit should be open to the public. As a practical matter, of course, Members of 33 Congress are going to discuss things among themselves.

34 MR. LUBBERS: It seems to me that's the main distinction that we're talking 35 about. Those entities do meet in public for some of their business, but they also have the 36 opportunity to have private deliberations about those matters. Whereas, that's not 37 happening in -

38 MR. STUART: It doei,n't mean it's good public policy, all right. All our 39 Congressional committees that are: meeting in private doesn't mean that's good public t

0

~

• 32 1 policy. That's why Congress is, standing so low in the public's eye. I think if they had 2 more public meetings and fewer rump sessions, the public would feel a lot better about 3 Congress - and the same thing about government. And, as you said, the courts have a 4 special role, a special exemption. .

5 * .MR LUBBERS: Some agencies are similar to courts.

6 MS. DALGLISH: Some are.

7 MR. STUART: In those adjudicatory procedures, all right, we understand the 8 distinction, but we're talking about a lot of procedures that have nothing to do with 9 purely adjudicatory, personnel matters and things of that nature that don't need to be held 10 in private. The discussions about them don't need to be held in private.

11 MS. DALGLISH: And I would direct your attention to Senator Moynihan's 12 Commission, multi-partied members of the public studying ways to revamp some ways

• 13 14 15 16 17 Congressional records and proceedings - and my understanding is they will be meeting for the next two years - they're going in the opposite direction.

MR. MORRISON: But that's records. That's about records, isn't it, principally? I mean, this isn't about records. Let's be clear about that.

MS. DALGLISH: Well, I understand that.

18 MR. MORRISON: So records present a different problem. Indeed, the analogy 19 of records is internal agency - interagency agency memoranda, which, as you know, are 20 quite restrictively held.

21 MR. STUART: Beside that, we simply table the direction which the government 22 is going toward openness.

23 MR. MORRISON: Yes, but directions don't - we have a rather difficult problem 24 here. I do not find this an easy situation -

25 MR. STUART: Neither do I.

26 MR. MORRISON: - I wish that they would deliberate in public. I know that 27 some people on some of the commissions do deliberate in public and yet we are faced 28 with the fact that for whatever reason many commissions are not deliberating in public, 29 and that's what we have to deal with.

30 MR. MAY: Well, I think one of the reasons I believe still is a logistical reason is 31 not only human nature.

32 Dan, ~o you have a - .

33 MR. CAMPBELL: I would like to ask the panel given the fact that the Sunshine 34 Act commissions do vote by notation proceeding and that much of the agency business is 35 consequently done that way, do you give any consideration to the impact -- let me put 36 the question this way: would you prefer if decisions are in fact taken in private that they 37 be taken with or without deliberation between the commissioners? Because that's, from 38 my perspective, one of the real difficulties with the Sunshine Act as it exists today. It 39 creates an opportunity, perfectly lawful, for commissioners to do business in a manner in 1

33

• 1 which .they remain private, but it deprive,s thein in that process of the opportunity to 2 deliberate. And I think it's fair to s-.ay that - I hope that the panel would agree with the 3 .proposition that if the decisions are to be taken in private, some form of deliberation 4 between commissioners, some form of exchange of views, is better than none.

5 If lean - I-don't mean to answer the question for you, but if I can ask the question 6 that way, the reason I ask it - and this is sort of a two part question - one of the 7 suggestions that was made in the notice for this hearing is the proposition that when 8 decisions are taken by notation voting, and I would suspect that vast majority of 9 decisions in the government are taken in this fashion, when those decisions are taken in 10 that fashion, one amendment to the Act might be an amendment that would require 11 through some process that any commissioner who felt strongly about the matter would 12 be given an opportunity to call his or her brethren in in public discussion. Of course, 13 they can't necessarily force any discussion and it would be after the fact, but there is a 14 potential for experience, from my experience, that this could be conducive to some form 15 of public discussion on matters - a broad range of matters - on which there is now no 16 public discussion at all.

17 MR. KElTER: I think we would endorse that. That would be a step toward 18 more opeMess and not less.

19 MR. CAMPBELL: Well, I think, as Randy suggested, we weren't looking to close 20 meetings. We're looking for suggestions that solve a problem that exists, and I think that 21 anyone who has had to work with this will tell you that the problem that exist is that the 22 Sunshine Act - however iaudab.le its motives - exactly the opposite impact more 23 frequently than not in terms of what is disclosed.

24 MR. STUART: Do you think that's because it's a bad law? No, not because it's a 25 bad law. It's because people don't want to respect the law, and we keep saying over and 26 over again from the grassroots up the public is losing confidence in the government 27 because the people who are appointed to those jobs don't want to carry out the law in the 28 spirit of the law. That's not something that we can legislate. We can put all kinds of 29 vehicles for them to have more dialogue in, but unless they really want to have open 30 government, they won't even find ways to circumvent these exceptions you're making 31 and then come back again and say, oh, it doesn't work. We're saying perhaps you need 32 to say, folks, wake up, get yourselves educated. This is government, this is not private 33 sector, and the bar is much higher than the public sector of accountability.

34 MR. CAMPBELL: Well, then I take it you would support the proposition that 35 some amendment that looked to,ward making notation voting subject -to at least 36 subsequent public discussion as a gain?

37 MR. STUART: I would like to think about it.

38 MR. LUBBERS: It's not a trick question.

39 [Laughter.]

40 MR. CAMPBELL: No, it's not.

34 1 MR. MAY: This would be a. good point then to emphasize that the record is 2 going to remain open for a while so a111ything that you think about further that you think 3 would be useful, we would appreciate having your views.

4 What we're going to do at this point - we're going to have to move on - but I 5 wanted to say, number one, thank you all for coming. Commissioner Wallman has asked 6 that at the end of the hearing - we've had this rather tight time schedule and 7 Commissioner Wallman asked at the end that he might want to say something to wrap up 8 so, obviously, we would welcome your staying around, you or anybody else that wants 9 to say anything to wrap up at the end would be welcome to do that within reason.

10 So at this point I'm going to call the next panel.

11 MR. STUART: Thank you very much.

12 MR.. MAY: Thank you .

• 13 14 15 Hi MR. KEITER: Thank you very much, ,and anything that promotes more opeMess is what we're in favor of.

MR. MAY: Okay.

I'm going to call the next panel, and that consists of Steven Calkins, General 17 Counsel of the Federal Trade Commission, and Peter Crane, Special Council of the NRC, 18 Nuclear Regulatory Commission.

19 I want to emphasize, again, for 1everyone please to speak up so that the people in 20 the back are able to hear. Okay, unless you gentlemen have some other arrangement, I 21 will call on Mr. Calkins to begin, and thank you very much for being with us and your 22 participation today. Again, I'm going to ask each of you if you can limit your statements 23 please to four or five minutes, and that way we will have a little time for questions .

• 24 25 26 27 STATEMENT OF MR. STEPHEN CALKINS, GENERAL COUNSEL, FEDERAL TRADE COMMISSION, WASHINGTON, D.C.

28 MR. CALKINS: Thank you, we're not actually a coordinated panel. We're just 29 individuals who are showing up here abc>ut the same time, and let me proceed then.

30 First, with two quick disclaimers - the first is a standard one that I want to make 31 very specifically. The Federal Trade Commission has voted out this statement which you 32 all have and that is the Commission's position. I'm the general counsel for the agency, 33 but I am here and I'm speaking in my personal capacity and the views of the Commission 34 are as represented in the statement, and I'm not representing the views of the 35 Commission or any particular commissioner necess¢ly but --

36 l\.fR.. KAMENAR: Just a quick question, *I'm sorry. Was that by notational voting 37 that they voted on this statement or was there a meeting held?

35

• 1 MR. CALKINS: Indeed, because of - for a variety. of reasons including the 2 difficulty of arranging a meeting, the Commission had to do this by notational voting, and 3 we went were not able to have the c:ommissioners meet on this, no. That's correct.

4 MR. MORRISON: Or deliberate collegially.

5 MR. CALKINS: The deliberation took place by phone calls, or memoranda or by 6 conversations with me, which I then. -

7 MR. MORRISON: But not conference calls?

8 MR. CALKINS: Not conference calls because we couldn't - that's exactly right, 9 you've got it.

10 My second disclaimer to make very clear that I am not an expert on the Sunshine 11 Act. I was an honest law professor until the beginning of this summer when I came 12 down here, and I don't pretend expertise on the Sunshine Act, but it has been eye 13 opening to me to watch the Commission function under the Sunshine Act and so I was 14 pleased that the Commission was able, without a meeting, to come up with a position 15

• which it can present for your consideration, and I salute you for addressing this 16 important question.

17 Marianne Kane from my office does know something about the Sunshine Act 18 beyond what I do and will correct my misstatements.

19 I could stop there except that I was told there may be one or two persons who 20 have not read this statement, and it would be helpful for me informally just to describe 21 what it says, so let me do that. The Federal Register statement asked people to spend 22 less time talking about the problems: and more time making suggestions, and the Federal 23 Trade Commission statement made three suggestions.

• 24 25 26 27 28 The first is merely to observe that technology provides an opportunity for citizens to have much. greater information about what government agencies are doing. I'm pleased to report that this statement, for instance, is available on the Internet to every American with a home computer that's wired to the Internet and can tap in and get that statement - it went on line 15 minutes ago - and, indeed, there are a variety of ways in 29 which I as a law professor have had to struggle over the years to get opinions by law 30 judges, and statements by commissioners, and speeches and a variety of things, which 31 have become and are becoming much easier as more and more of what the agency issues 32 goes on line some times in computer searchable forms so as to be accessible to lawyers 33 and to scholars trying to learn about what the agency is up to. There are opportunities 34 there for the public to learn more about what government agencies are doing.

35 , Our second observations concerned litigation policy. When the Commission 36 meets in a properly closed session under the Sunshine Act to consider going after some 37 one that has committed serious fraud, one of the questions is should we go into Federal 38 District Court as a prosecutor and go and seek an ex parte asset freeze or not, and the 39 Commission quite frequently does head into Federal Court as a prosecutor to seek to 40 freeze assets so there is an opportunity for consumer redress. When the Commission 41 meets, it considers, okay, now, here is a case* and the staff has either recommended

1 seeking an asset freeze or not, and it decides in that case whether to proceed. That is all 2 properly done in a closed meeting.

3 In those discussions occasionally a commissioner will say, well, let me think about 4 which are the kinds of cases where we ought to be going to get an asset freeze and when 5 should we not, and that's a proper sort of discussion in the context of a particular case.

6 But what if a commissioner said, golly, we've had a series of asset freeze 7 recommendations come along, and rm just not comfortable that we're thinking about ihe 8 question the right way. Let's have a session and try to really make sure that we're 9 thinking about this properly and deciding when should we go and seek an ex parte asset 10 freeze and when should we not.

11 I am told that the conventional wisdom would be that that sort of a meeting to 12 .consider when to go seek that kind of a remedy, that kind of meeting could not be held in 13 a closed session. The result is that because commissioners are concerned about telling 14 potential targets out there how to structure their behavior so as to avoid that kind of a 15 particular remedy, the result is that such meetings are not held, and instead those kinds of 16 litigation strategy issues are discussed only when they come up in the context of a 17 particular case and never in a meeting where a commission comes together to address 18 that question.

19 MR. MORRISON: So if! understand, as a result, you have no policy on this?

20 You just proceed on an ad hoc basis?

21 MR. CALKINS: That's my- well, the staff may well have -

22

• MR. MORRISON: The Commission has no voted policy?

23 MR. CALKINS: The Commission has no voted policy, and each time a case comes along involving some kind of fraud, a decision is made whether to proceed to get 24 25 an asset freeze or not. But there is no policy as to when to do it and when not to do it.

26 MR. MORRISON: And this is not a question that the policy is written down.

27 This is not a notational voting problem. This is a problem that you absolutely abandon 28 having policy because of the Sunshine Act?

29 MR. CALKINS: Well, with respc~ct to whether commissioners-30 :MR. MORRISON: I mean, that seems to be a little paranoid, if I might say so. I 31 know you're not a commissioner but you're here on behalf of the commissioners.

32 [Laughter.]

33 MR. CALKINS: No, I'm now speaking in my personal capacity, observing how 34 the commissioners act. Now one can say should there be - the matter is obviously 35 decided each time there is a case as to what the remedy will be. Each time there is a 36 proposed settlement one decides how should one go about figuring out how much 37 money to demand in this kind of a case as opposed to that kind of case, and those 38 decisions are made on a case by case basis, that's correct.

I I

37 1 The next item - the suggestion here would be that since these kinds of issues are 2 properly discussed in a closed meeting on a case by case basis, it would be worth 3

• considering whether they might be discussed in a more general discussion in a closed 4 meeting and whether that would contribute to the quality of decision making.

5 The third suggestion made concerns informal sessions, and I will be very quick 7

8 here. The question of adjudicatory opinion writing and such has been discussed before, and indeed at the Commission the experience is that when the Commission acts as an adjudicator, there is a public oral argument at which there is standard oral argument just 9 like with a court. The commissioners meet afterward in dosed sessions and typically will 10 vote, at least on a tentative basis, but thereafter the commissioners cannot - as I 11 understand it - cannot get together with more than two of them or with a quorum to 12 discuss how an opinion should be crafted or how a particular discussion should go 13 because that would be a meeting. At least it's possible that they could reschedule another

• 14 15 16 17 18 meeting, but it is logistically very difficult so the reality is that opinions are not written the way they are by a Court of Appeals, but instead are written by exchanges of drafts, or discussions with advisors, or a variety of other ways which reduces the give and take which - at least at the Court of Appeals level - is considered to contribute to the quality of opinion writing.

19 :MR. MAY: If you could just wrap up within another minute.

20 :MR. CALKINS: To wrap up, the Comnussion thinks that it would be worth 21 trying to consider what sort of sessions are sufficiently informal and tentative that they 22 should not qualify as a meeting and hence there could be some give and take without 23 having to schedule a meeting. We're talking here only about matters that are properly 24 closed, and the question is for a closed session - whether it's as a prosecutor or as an 25 adjudicator - doesn't it make sense to think about trying to identify those sessions that 26 could be had without qualifying as a matter and thereby encouraging give and take 27 among commissioners and not just among the staff members.

28 Thank you.

29 :MR. MAY: Thank you very much, Mr. Calkins.

30 Mr. Crane?

31

,_, __ ~ -* **-~. -*--

• 38 1

2 STATEMENT OF MR. PETER 'G. CRANE, SPECIAL COUNSEL, NUCLEAR 3 REGULATORY COMMISSION, WASIIlNGTON, D.C.

4 MR. CRANE: Thank you very much. My name is Peter Crane. I'm at the NRC s but the disclaimer, once again, I speak only for myself. I'm not speaking for the 6 Commission. The Commission has three vacancies at this point. and it's not an 7 opportune moment to be formulating policy.

8 I have submitted a written statement. and I don't want to rehash that here except 9 for one beloved quote from Leo Tolstoy who said that, "If you really want to know the 10 effect of the censorship on me, it's not the changes that they force me to make in what I 11 wrote. It's the things I never wrote in the first place." And that I think is the story of the 12 Sunshine Act - it's the meetings that are not held, not the changes in behavior in the 13 meetings that are held, and I think for that reason that the Sunshine Act has been 14 basically counterproductive, that it has not had a substantial benefit in openness, although 15 you can point to isolated instances but it has had a great cost in the quality of decision 16 making.

17 I think that the multi-member agency is a valuable concept. I'm long enough in the 18 to~th that I have seen commissions working before the Sunshine Act, and I compare the 19 way they worked before and the way they work after and allowing for the fact that there 20 may be (?ther factors in play. I think that it was a better process before, that there was 21 more bouncing of ideas off each other, that ideas got tested, that commissioners came to 22 the table knowing that they would have to defend their thinking, and I think we have had 23 - at least at the NRC - a progressively impoverished process.

24 To give some specifics of the kinds of discussions, when the Commission was first 25 created - the NRC was -first created in 1975, the then Chairman took all the 26 commissioners down to Airlie House for a weekend so that they could talk about the big 27 picture - what is the agency trying to accomplish, what do we see as our goals going 28 about it - I wasn't there - but not related to specific issues. I don't see any room under 29 the present Sunshine Act for that kind of big picture discussion of what are we trying to 30 achieve over the next five years, what do we see over the next year, relations with the 31 public, relations with the Congress, the general approach to openness. These kinds of 32 topics don't lend themselves to a formal scheduled meeting. They aren't subject to an 33 exemption that I know of, and I think the Commission would be better off if they were 34 having them - what's going on at that utility? Give us a sense of what's going on, the 35 personalities, how well it's run. I don't think you're going to get that kind of meeting in 36 public session. You may get it in these two-person sessions, but I don't think you're 37 going to have it in an open meeting and I think it's worth.having.

38 We have foreign visitors and heaven knows what they say when_ they go back to 39 their home countries and say I had the same conversation first with two commissioners, 40 then with two more commissioners, and then with the Chairman. For some reason we 41 couldn't have this discussion all in the same room.

39

• 1 Congressional correspondence, Congressional testimony as a practical matter if 2 the question is, gee, should we put in this paragraph or is it just going to inflame people?

3 If you have had that discussion m public, you have already inflamed people so the 4 *discussion won't be had, and I think, again, deliberation by notation voting is an s impoverishment.

6 In whatever changes I would recommend that you get away from recordings and 7 transcripts. Congressman Pete McCloskey said when the law was under consideration, 8 "A recording or a transcript is going to get out sooner or later." We saw the example in 9 the Diablo Canyon transcripts, which I described in the testimony. Somebody leaked 10 them. The subject was important, and yet for the same reason - for example, when you 11 go to an oral argument in the Supreme Court of the Court of Appeals, you may get a 12 very good idea of where they are coming down. You can count votes, and it's useful and 13 it benefits the public, but I would not deprive them of the opportunity to go behind

• 14 15 16 17 18 closed doors and deliberate in private afterward. Much as I might want to be a fly on the wall, I think it's better for the country that there be no flies on the wall and no transcript leaking. The commission in Diablo Xthink came to the conclusion that any transcript is a leak waiting to happen so it's better not to, it's better not to risk a leak of the transcripts.

MR. MORRISON: I take it that would apply, of course, to memoranda to the 19 commissioners too, or Justice Marshall's papers? Do you think those all ought to be 20 destroyed too because they're leaks waiting to happen? I guess I'm - of all the things 21 you said, I understand why an inquiry about a particular utility is sensitive and that might 22 be able to be closed on exemption four grounds, but leaving that aside for a second 23 because that's a different situation, the notion that the NRC can't meet to discuss its 24 future and how it should be allocating its resources, what kinds of things it ought to be 25 doing over the next five years, in a word to me is appalling. Maybe that's just the reality 26 of the situation, but, I mean, whatever you think about Commissioner Wallman's concern 27 about immediate rulemaking proceedings, you're way on the other end. I mean, the 28 notion that you can't talk about what you're doing - at least 90 percent of what you're 29 talking about in a public meeting just seems to me - I don't know what these people are 30 thinking. .

31

• MR. CRANE: I think what I'm talking about is a commission that has b ~

32 trained away *from deliberation, from collegial deliberation as a way of doing business. __J 33 MR. LUBBERS: Trained by whom?

34 MR. CRANE: By the Sunshine Act, by the problems it has run into, by the 35 capacity - I could give an example. During Three Mile Island, in the heat of Three Mile 36 Island the then Chairman Hendrie* said of himself and Governor Thornburgh of 37 Pennsylvania as they were trying to decide on an evacuation, "Golly, you know, we don't 38 have the information. We're stumbling around like a couple of blind men. 11 Hendrie, who 39 was the most decent and humane of people suddenly faced an onslaught of criticism from 40 the visually impaired who viewed this* as abusive. In one instance after another the 41 Commission has been given reason to feel rightly or wrongly --

42 MR. MORRISON: Did he say that in an open Sunshine Act meeting?

• 40 1 MR. CRANE: No, what happened was that the Commission turned on the tape:

2 In order to preserve the tapes forever and answer all Sunshine Act questions everything 3 that went on during TMI was taped.

4 MR. MORRISON: You think that that's a reason - sure, it was an unfortunate 5 statement, but peliticians make unfortunate statements all the time. I hardly think that's a 6 reason for closing all Sunshine Act meetings.

7 MR. CRANE: Certainly, it is not a reason for closing ~l Sunshine Act meetings.

8 What I'm trying to say is that human nature being what it is, whether you like it or not, 9 the effect of Sunshine on human beings who have been at the Nuclear Regulatory 10 . Commission or the last 17 or 18 years has been to discourage them from meeting in open 11 session and to encourage them to -

12 MR. MORRISON: I don't know if they need any encouragement not meeting in 13 open session. I just -

14

• MR. MAY: Why don't you go ahead and finish up, and we'll see whether there are 15 some other questions.

16 MR. CRANE: I would like just to wrap up very briefly. I want to say I agree 17 with Ms. Dalglish on a couple of points. I don't like the idea of cliques of three people 18 meeting. I think that's an invitation to rump sessions of one party or one group of 19 thinking and very undesirable, but I think special provision has to be made for the three-20 member agencies. They can't be prevented from talking to one another.

21 Secondly, I agree with her in her warning that there will be enormous public - that 22 it will be possible to mobilize public opposition to anything that is perceived as an assault 23 on the Sunshine Act. The NRC experienced that when it tried to incorporate the 24 language of the Supreme Court opinion, and, therefore, I think that the proposal that Mr.

25 Lome made to give flexibility to agencies to formulate their own procedures isn't going 26 to work because nobody is going to want to be seen as the mouse that bells the cat.

27 And, very lastly, I would say to Mr. Weisberg that I think he is in the bind that the 28 NRC is in, which is interpreting the law far more restrictively than the law really requires 29 under the ITT case. There are historical reasons for that, but it is really not true that you 30 cannot discuss business in any sense.

31 MR. MAY: Thank you very much.

32 Questions from the committee? Jeff, did you have a question?

33 MR. LUBBERS: *1 have one question. I think the.previous speaker referred to the 34 ABA's recommendation that was made back in 1987, and the basic recommendation was 3S to try to interpret the current Sunshine Act based on-the Supreme Court's ITT decision, 36 to allow certain types of discussions to occur outside the definition of meeting on the 37 theory that these deliberations were not "determining or result of the joint conduct or 38 disposition of official agency business." The ABA tried to crystalize this by saying that 39 there are several types of these deliberations, spontaneous and casual discussions among 40 agency members, briefings of agency mc~mbers, general discussions of subjects which are

41

• 1 relevant to an agency's responsibilities but which do not pose specific problems for 2 in agency resolution and exploratory discussions so long as they are preliminary nature.

3 The ABA then went on to recognize that there needs to be some sort of a policing 4 mechanism, and they suggested that monitoring by a general counsel or other agency S representatives should be undertaken to ensure that such discussions do not proceed to-6 the point of becoming meetings and that they should be memorialized through notes, 7 minutes or recordings.

8 I was just wondering since you're both from General Counsels' Offices at your two 9 agencies whether or not you think that some general counsel monitoring of such 10 meetings would be effective in sort of broadening the agency's interpretation of what 11 could be discussed outside of an open meeting?

12 MR. CRANE: Well, I think the ABA recommendation was very sound. I think 13 that there ought to be monitoring, I think that there ought to be minutes, I *_think that 14 there ought to be some policing mechanism because I know enough - well, at least my 15 impression of decision makers does not - I'm not arguing for unfettered discretion to the 16 decision makers, but I think that these minutes ought to be held, not normally made 17 public, but the fact that they would be there for inspection by the oversight committees 18 would act as a restraint against abuse.

19 The problem with trying to implement the ABA recommendation, sound as it is, is 20 that you can explain in public - you can say we're just following the Supreme Court, the 21 ABA and so on - but what the readers of the daily newspaper will likely read is the NRC 22 has acted to exempt itself from the Sunshine Act, and you get pilloried.

23 MR. CALKINS: I guess I would share the concern. I know that there's a 24 question about how far one could go with that case. I know that the custom at my 25 agency has been to be quite cautious, and commissioners are very, very reluctant to

• 26 27 28 29 30 discuss any adjudicatory or prosecutory matter when there is a quorum, whether they are in an elevator, or in a car, or a social gathering, or in an office because it's not clear where that line is, the result being that although the Federal Trade Commission is principally a law enforcement agency that files cases and then does some adjudicating of cases, those discussions are not held because that has been the approach the agency has 31 taken. And whether one could - I think it would a rather bold general counsel who 32 would say I'm going to sit in and try to interpret the Supreme Court case and say we can 33 go - it's hard to know exactly where you can go based on that, and I think a general 34 counsel would be reluctant to give a very sort of expansive advice on that just because 35 the line is so imprecise.

36 MR. MAY: Okay, thank you very much, Mr. Crane, and Mr. Calkins. We 37 appreciate your testimony.

38 I would like to call the next witness: the Honorable William B. Hathaway, 39 Chairman of the Federal Maritime Coimmission.

40- Mr. Hathaway, welcome, thank you for being with_ us this morning.

41

". 42 1*

2 STATEMENT OF HON. WILLIAM B. HATHAWAY, CHAIR.MAN, FEDERAL 3 MARITIME COMMISSION, WASHINGTON, D.C.

4 ACCOMPANIED BY: MR. TOM PANEBIANCO, DEPUTY GENERAL COUNSEL, 5 FEDERAL MARITIME COMMISSION, WASHINGTON, D.C.

6 MR. HATHAWAY: Thank you, Mr. Chairman. I want to introduce Tom_

7 Panebianco, our Deputy General Counsel who is accompanying me. I believe that we 8 sent you copies of the statement so I won't bore you by just reading it to you. I just

• 9 would like to summarize what I have said in the statement and - first of all, I haven't said 10 this in the statement, but I am guilty of having voted for the Sunshine Act. If I had one 11 vote to take back during the time I was in Congress, it would be that one because I have 12 found out - even when I was in Congress I found out it didn't work out very well. But,

• 13 14 15 16 17 18 as you know, committees can vote to close the meetings but you would never get enough people to vote to close the meetings because they're afraid that they would be scandalized back home if that vote were revealed. So I think it has inhibited the legislative process, and I think it is inhibiting the administrative process because although I believe that the decisions that we make should be open to the public and we should -

with the exceptions that we do have - we can hold closed meetings, of course, today but 19 all the other meetings should be open to the public. But I think that all the commissions 20 should have the opportunity to discuss freely among the five of them that we have on our 21 commission without having to go two by two around the commission, which we could 22 do within the law at the present time because it leads to a better final decision than we're 23 going to make. Often we find out in our one-on-one discussions that there's some 24 information that one or two of us doesn't know or maybe both of us don't know, and if 25 we were to wait until the actual meeting to discover that, it might mean that we have to 26 continue the meeting until another day until we can parse it out, this other information 27 that we should have to make that decision.

28 I don't think it serves any worthwhile purpose not to allow the five commissioners 29 to meet separately because then they meet together because they now meet two by two.

30 We have briefings by the general counsel or whatever. bureau tias jurisdiction over the 31 subject that we're going to discuss, and those discussions, those meetings where we can 32 ask questions of the bureau chiefs and other members of the bureau have to be conducted 33 in such a way that there's only two members at those meetings, otherwise we would have 34 to send out a public notice on them. So we do what we could do if five of us could meet 35 together right now except that it takes longer to do it. Why not give us the opportunity

• 36 for all five of us to meet and have a candid discussion of all these matters before we have 37 the open public hearing?

38 Also, the notice requirement - I think it's eight days notice that we have to give to 39 these meetings. Sometimes something comes up and I realize that if it comes up the day 40 of the meeting, we shouldn't be able to take it up because that doesn't give the public 41 adequate notice, but maybe a two-day or a four-day exception to that when something 42 comes up at the last minute that could be discussed at that meeting could be sent out or

I

-I -

I 43 #

1 could be noticed for that meeting so that we could discuss it then and not have to wait 2 another eight days to bring it up.

3 That's about the substance of it. You people think, or at least you thought at the 4 time, and I think with the background of this a lot of this was happening in Congress 5 because they would have closed mark-up sessions and everybody would say, well, they're 6 making deals behind closed doors and we're really not getting true reasons why we've got 7 the X, Y,Z law and we're just getting the reasons that they issued to the public in a 8 statement afterward. And that may be true ~ut I don't think theyve been able to stop the 9 deal making on the Hill any more than you can stop the deal making in the commission 10 because they could still meet privately. I recall when I was on the Finance Committee we 11 used to meet 7:00 in the morning to decide what we're going to do at the 9:00 mark-up 12 session, and that's probably still true today. So you really haven't accomplished an 13 objective. I don't think you're going to get members before the public scrutiny giving the

• 14 15 16 17 18 19 real reasons for doing something if those real reasons aren't acceptable by the public.

Their reasons for doing it might be that, well, Joe voted for me last week so rm going to vote for him this week, and I don't care about the substance of it. They're not going to reveal that to the public, but that may be the actual reason, and we've.just got to face it.

The Congress knows that commissioners are like the courts, and,' of course, court's deliberative sessions are not open to the public. But judgesprobably because of the 20 tenure that they hold, do give their real reasons for deciding cases the way they do and 21 probably it isn't as much as a back scratching operation as I know it is in the Congress, 22 and certainly probably in some of the commissions.

V 23 MR. MORRISON: Your meetings of the Finance Committee at 7:00 in the 24 morning, other than the fact that some people didn't get up that earlier, did you get good 25 attendance - a quorum?

26 :MR. HATHAWAY: Oh, yes, we got very good attendance .

27 :MR. MORRISON: So that the law was -

28 :MR. HATHAWAY: They were afraid that their issue might be dumped if they 29 didn't show up.

• 30 MR. MORRISON: So despite the fact that there was a law there which 31 everybody purported to be obeying, people weren't really -obeying it.

32 MR. HATHAWAY: Well, they were obeying it. There was nothing wrong with 33 meeting earlier before the meeting and then holding the meeting. I mean, the mark-ups 34 were still held in the public. *

• 35 MR. MORRISON: Because they called that a mark-up and this wasn't a mark-up.

36 MR. HATHAWAY: No, this wasn't a mark-up.

37 :MR. MORRISON: I see, preliminary discussions.

38 MR. HATHAWAY: Preliminary discussions. Well, lots of times it would be just I

39 one party. The Republicans would meet or the Democrats would meet. I i

J

.1

44 1 :MR. MORRISON: I see.

2 MR. MAY: Picking up on the preliminary discussion theme, of-course, as the 3 previous panel has suggested~ as we talked about, it is permissible - at least read literally 4 under the Sunshine Act - to have meetings where all five of you could get together .and 5 have-a discussion about something that will be before the agency but it would have to be 6 preliminary and you couldn't reach any decisions.

7 Does that ever happen at all at your agency, and if it doesn't happen, what's the 8 reason for that?

9 MR. HATHAWAY: Well-10 MR. MAY: I mean, do you ever have meetings where you say, "we know we 11 can't actually disclose the business, but let's just bounce a few things off and, you know, 12 we'll have the general counsel there to make sure we're really careful but we're just going

• 13 14 15 16 to bounce these things off each other. We're not going to make any decisions." Or is that not something that you do?

MR. HATHAWAY: We haven't done it since I've been there. I've been there since February of 1990, and w~ haven't done it in all the time that I've been there.

17 MR. PANEBIANCO: I think nt's just too difficult to determine what constitutes 18 the process leading to a decision and what constitutes the decision. And nobody at the 19 agency- at least no one in the General Counsel's Office - wants to be in that position to*

20 say, wait a minute, it looks like you're starting to agree on something so let's cut it off 21 That's just not practical and so we just avoid that situation all together.

22 MR. MORRISON: You could meet as long as you disagree.

23 MR. PANEBIANCO: Right, which normally isn't a problem .

• 24 25 26 27

• [Laughter.]

MR. MORRISON: But unless agreement creeps in, then you would be violating the law and you have to stop the meeting -- stop the non-meeting.

MR. MAY: Jeff?

28 MR. LUBBERS: The journalists pointed to a Colorado law that allows 29 . commissions to meet on a regular basis every Thursday morning at 10:00 with having to 30 keep re-noticing those meetings in order to have discussions amongst themselves about 31 matters that are not going to be formally voted on. They are open to the public, 32 however.

33 I was just wondering whether you thought that approach would logistically make 34 it easier for you to schedule some of these meetings to discuss issues even though you 35 would have to do it in public? Would that be of any benefit to your Commission?

36 MR. HATHAWAY: Well, in Colorado did they notice - they know they're going 37 to meet, like, every Thursday and they could take up anything they wanted to take up?

38 MR. LUBBERS: As long as it's !llOt a formal vote, yes.

45

• 1 MR. HATHAWAY: I don't think that would help us very much because a lot of 2 them would just be as much inhibited whether it was on a regular basis or otherwise to 3 say what they really felt about some of the issues.

4 MR. LUBBERS: Well, now why would they feel inhibited about speaking about 5 general-issues, do you think? I mean, the Administrative Conference, for example, has all 6 of its meetings in public. I know we're not a regulatory agency. We're an advisory 7 agency so we *can't make policy, but we do talk about a lot of issues in publi~ and 8 sometimes it gets fairly heated. I know that Alan, and Paul and the others don't shirk 9 from saying things in public about somewhat controversial issues.

10 Why would a commission not warit to talk about general policy matters about the 11 maritime industry or whatever in public?

12 MR. HATHAWAY: Well, maybe if it's that general, yes. They probably wouldn't 13 mind it, but I think if it was leading up to a decision that was going to come later on, I 14 think you would find a lot of the members would not be frank or candid about what they 15 said. Generally, if you're saying, well, are we being too lenient on carriers or are we 16 being too tough ori shippers, sure, we could have meetings to that effect and just discuss 17 that matter but nothing that would be necessarily a decision - what about the XYZ case 18 or this shipper against that carrier. I don't think that you would get a full and frank 19 discussion of that.

20 MR. LUBBERS: But up to a discussion of a specific case~

21 MR. HATHAWAY: Yes, I think we could. I think it would be - I don't know if 22 it would be very helpful to the public or not or even to the members to have those.

23 MR. LUBBERS: It might be easier logistically to schedule that sort of series of 24 meetings so that you wouldn't have to keep re-noticing it. You would know that it was 25 going to be some time to discuss those general matters.

26 MR. MAY: Just for clarification purposes or least my own clarification - and I 27 haven't had a chance to read the Colorado law that's attached - but my impression was 28 that you could actually have discussions about not only general matters and discussions 29 about particular items, but just that there was not going to be any vote or decision made 30 at that meeting. Do we know whether that's the case? In other words, could you discuss 31 an upcoming agenda item without having a vote or reaching a decision but exchanging 32 views on some particular matter?

33 MR. L~BERS: Well, according to the proposal that was attached by the 34 journalists, "Agency members may meet as a group from time to time prior to formal 35 deliberations to share information on* an issue to elicit ideas, to raise questions and to 36 explore possible solutions. No decision shall be made."

37 MR HATHAWAY: It sounds like it could be a particular issue because it says on 38 an issue.

39 MR. MAY: Yes, that's just one model but one thing we may want to think about 40 or the journalists may even want to clarify their own views because I had in mind that

46 1 that wall would allow you to talk about a particular issue and exchange views on that 2 issue but not reach a decision at that meeting. And, of course, the public would have 3 been noticed, that meeting would have notified, .but in tenns of how useful that might be 4 as a model I think it depends to -some extent on how specific you could be in terms of 5 your discussions.

6 MR. HATHAWAY: I don't think you would get too many commissioners 7 showing up to these meetings if it was just going to be a general discussion...

8 MR. MORRISON: If there is anything writing or that could be put in written 9 giving a little more description of the Colorado and Montana laws as they operate, it 10 would be helpful for us to have and read. We don't have enough time to get into it now, 11 but I would certainly want to look at it and see - even if the whole thing wasn't 12 something that we would feel comfortable with, at least there may be ideas or portions 13 that we could pick out. But we would need some more of a greater description as to 14 how it actually operates and functions. It's a little hard to tell from the face ,of that 15 statute.

16 MR. MAY: Well, and for the record I see Ms. Dalglish nod~ing her head so I'm 17 going to ask her. We would appreciate any further information you have, and, 18 specifically, I'm not even clear absolutely as to whether the Colorado law that you 19 mention and Montana law whether they were passed specifically in response to this type 20 of problem that we're discussing today in order to address the collegiality issue.

21 MS. DALGLISH: Yes, they were.

22 MR. MAY: They were? Any further information along those lines that you can 23 supply would be useful.

24 Are there any other questions for Chairman Hathaway before we move on?

• 25 26 27 28 29 MR. CAMPBELL: I would like to say, Chairman, I'm listening to the discussion this morning, and, obviously, there are two sides to the proposition at least. On the one side that the media panel is giving us there is a lingering distrust of government, and I wonder if you have any suggestions for the panel as to whether in your experience there are any processes that you might be able to suggest to us that will do something to dispel 30 that sense of distrust in the decision making processes that you have over at the Maritime 31 Commission now?

32 MR. HATHAWAY: Well, I think that the fact that you have to have a public 33 meeting to make your decision, absent some of the exceptions that you have with respect 34 to confiden~ial material and so forth, I think that's a giant step forward. I was, in a way, 35 glad to see that was happening to mark~ups on the Hill because it did give the public the 36 feeling that they were watching something, but I don't think that you should preclude 37 them from having their meetings ahead of time. I don't see how you can get it to be 38 realistically any better then. I mean, it would be nice if you knew exactly how each 39 member was thinking when he voted to do what the outcome of the legislation would be.

40 I mean, look at the Packwood case. I mean, why did the Ethics Committee finally 41 decide unanimously that they were going to kick Packwood out of the Senate? Probably

47 1 the real reason was because he demanded the public hearings. It may not have been on 2 the merits at all, but so what? I mean, that's human beings and that's the way we operate.

3 We're not machines, and I think that probably we've done the best we can for the public, 4 absent putting some wires attached to all the members heads to see exactly what they're 5 thinking when they vote.

6 MR. MAY: That may come one day sooner than we think or even like.

7 MR. CAMPBELL: Would it be your feeling that if pre-meeting deliberations were 8 allowed that the subsequent meetings would be more or Jess informative?

9 MR. HATHAWAY: Yes.

10 MR. CAMPBELL: More or less?

11 MR. HATHAWAY: They would be more informative .

• 12 13 14 15 MR LUBBERS: I would like to ask whether you think the Sunshine.Act does 1

enhance the power of the Chairman, vis-a-vis the other members of the Commission as it's often said?

MR. HATHAWAY: What reason?

16 MR. LUBBERS: That the Chairman controls the agenda and generally has more 17 authority to run things because of the operation of the Sunshine Act?

18 MR. HATHAWAY: I don't think so. He controls the agenda regardless in most 19 commissions whether it's the Sunshine Act or no Sunshine Act.

20 MR. LUBBERS: How about the fact that it's often said that the Sunshine Act 21 enhances the power of the staff vis-a-vis the commissioners?

22 MR. HATHAWAY: In what way? I don't understand that.

13 MR. LUBBERS: The staff would be doing most of the negotiating because the 24 commissioners can't meet and the staff -

25 MR. HATHAWAY: Yes, that could be. That's right.

26 MR. PANEBIANCO: I think it also enhances the power of the commissioners' 27 staffs because they all have to have a shadow commissioner to go around running around 28 to the other commissioners' offices to have these negotiations or discussions about things

• 29 to get around the requirement, and si:> I think it actually encourages more people into the 30 process for better or for worst. And, as far as the career staff of the agency goes, I think 31 what the Sunshine Act results in is a lot of discussions about the agenda items. They all 32 have to occur in double or triplicate because everything has to be repeated because you 33 can only deal with one or two commissioners at a time. I don't know that that 34 strengthens the staff at all. I think it wears them down.

35 MR. MAY: Okay, if there are no further questions, thank you very much, 36 Chairman Hathaway. We appreciate your time.

37 MR. HATHAWAY: Thank you very much, Mr. Chairman, and members of the 38 panel. I appreciate it.

l I

48 1 MR. MAY: I would like to call the next panel to come up to the front, if I could 2 please.

3 That's Mr. Alan C. Campbell of Irwin, Campbell & Tannenwald, and Mr.

4 Campbell is fonner President of the Federal Communications Bar Association; Gracia s Berg with Steptoe & Johnson, fonnerDeputy*General Counsel of the International Trade 6 Commission.

7 Ms. Berg and Mr. Campbell, thank you very much for being with us.

8 MR. MORRISON: I'm going to have to leave in just a minute. I just want to 9 apologize. I'm sorry that I couldn't stay. I will read your statements, though.

10 MR. MAY: We appreciate your being with us and participating, and, Ms. Berg, 11 would you like to go first?

12 13 14 STATEMENT OF MS. GRACIA .M. BERG, STEPTOE & JOHNSON, IS WASIDNGTON, D.C.

16 MS. BERG: Certainly, my name is Gracia Berg. I'm an international -trade 17 attorney practicing before the International Trade Commission. Most important to 18 today's proceedings, I'm involved in an ABA project on the Sunshine Act and have 19 recently published a law review article on the subject. My article analyzes the 20 applicability of exemption 10 to ITC adjudications and concludes that the Commission 21 may legally claim the exemption and for policy reasons should choose to do so.

22 Therefore, the issue I would like to present this morning differs from those previously-

• 23 14 25 26 27 discussed.

I am not here to advocate additional exemptions or enlargements, but rather to seek a clarification of the law and a change in the attitude toward claiming an exemption

• to which an agency is already legally entitled. Perhaps I should begin by explaining that the Commission has multi-statutory responsibilities, 20 percent of which are 28 adjudications, and -I believe within the exemption. One is an intellectual property 29 proceeding, which is clearly under Section 554 and under any definition of exemption I0 30 should be - the Commission should be entitled to claim exemption 10.

• The other 31 proceeding is an anti-dumping and countervailing duty proceeding, which results in an 32 order being issued and affects up to billions of dollars in trade and many U.S. industries.

33 These proceedings are on the record. l'hey have a hearing and briefs are filed, and under 34 the recent Uruguay round amendments by statute the Commission may not consider 35 anything that the parties have not had a chance to review and respond to.

36 The Commission, however, does not close any meetings. They never claim any of 37 the exemptions. Moreover, they do not deliberate in public. This has resulted in, I 38 believe, less infonnation for the bar. I believe if the Commissions were to collectively 39 deliberate, their opinions would provide more transparency and predictability for the bar.

49 **

1 Based on my observations and my experiences, I would like to offer three 2 suggestions for this committee's consideration:

I 3 First, I believe something could be done regarding the climate surrounding the 4 Sunshine Act so the stigma to claiming a legitimate exemption could be removed. It is 5 my understanding based on a survey that the Bar Association group did that not only the 6 ITC but other agencies as well who could legitimately claim an exemption do not do so 7 in large part because of fear of criticism that they are not keeping the spirit of the 8 Sunshine Act.

9 I know that the Commission is very aware of the 1989 Congressional hearings and 10 the criticism of the NRC and the attitude of the press, and they would like to not be 11 subjected to that type of criticism.

12 Second, definitions must be clarified. There have been so few court cases i3 interpreting\the Sunshine Act that another source needs to be developed to outline the 14 parameters of the Act more clearly. ]For example, we have talked about the definition of 15 meeting fairly extensively this morning, and I know that the Commission - or at least it 16 is my understanding - that the Commission currently still interprets the definition of 17 meeting to mean that any time the commissioners themselves may reach a conclusion it 18 will become a meeting and they would have to disband. It is not just when they are 19 disagreeing with each other and they suddenly agree. It is when they themselves reach 20 some sort of firm conclusion.

21

• Whatever the definition ends up being, it must be clarified because I believe that 22 this ambiguity - particularly for those agencies that err on the side of caution - results in 23 less openness.

• 24 And, third, I would like to suggest that the notational voting offers a large 25 loophole to the Sunshine Act. I happen to have worked at the Commission previously,

• 26 27 28 29 30 and so, therefore, I know that when the Commission's agenda says they have a ratification list 48, for example, that they are voting on ratifying all of the notational voting. I, however, have no idea of what any of that notational voting is about, and it would take extensive work for me to find out, and I guarantee you there is almost no one else in the room that even knows what the ratification list means. There is no 31 information that is offered through this loophole.

32 Thank you for the opportunity to present these brief comments, and I'm ready for 33 questions .

. 34 MR. MAY: Thank you very much.

35 Mr. Campbell?

36 MR. CAMPBELL: Yes, thank you.

37 38

t 50 1 STATEMENT OF MR. ALAN C. CAMPBELL, ATTORNEY, IRWIN, CAMPBELL &

2* TANNENWALD, WASHINGTON, D.C.

3 MR. CAMPBELL: Yes, thank you. I'm really here because in 1992 I was 4 chairman of an ad hoc committee that studied the Sunshine Act on behalf of the FCBA 5 focusing on the Federal Communications Commission. Just briefly, let me explain that 6 the FCBA is a voluntary bar. We have about 2,500 members. Most of the practice is in 7 Washington before the FCC, but we have chapters throu~hout the U.S.

8 The study that we made in 1992 came to two unanimous conclusions - one, that 9 the Sunshine Act really was not working as it was designed and that the open meetings 10 were not providing particularly useful information to the public; and, two, it was 11 arguably a question of whether decision making was resulting from the Sunshine Act.

12 We_ really did not have any ultimate conclusions as to how to resolve things, how 13 to improve matters, other than the idea of a more liberal interpretation of meetings so 14 that there could be meetings with more than two commissioners -- the FCC has five 15 commissioners -- at an early stage where there was fact gathering, discussions with the 16 staff and with other commissioners to try to focus on what particular issues there are out 17 there.

18 The problem is exemplified I think in one of the questions that Mr. Lubbers asked, 19 and that was about influence. Does it enhance the influence of the staff'? If you go to 20 any trade association's convention, there is inevitably an panel of FCC legal assistants, of 21 commissioner's legal assistants. And they explain uniformly the process that now goes 22 on. The legal assistants meet, they meet with each other, they meet with the FCC staff, 23 the professional staff. They go back to their commissioners and try to reflect what 24 occurred at those meetings, and it's a back and* forth among the legal assistants who are

• 25 26 27 28 29 meeting, you know, with perhaps the group of five with the FCC staff but never do you have the commissioners meeting to ti)' to exchange some ideas and understand *the process first-hand. So you create this circular process whereby the legal assistants go meet, Wk it out and then go back and forth _; a little bit like the childhood game of telephone - and who knows whether the final decision is better than it would have been 30 had the commissioners met, at least at an early stage, and had an opportunity to talk the 31 problem through.

32 I think those are the only commients I would make. _I would note, not on behalf of 33 the FCBA but individually, that among the suggestions that were included in your notice, 34 numbers six and seven - it seems to me that you have two goals here - one is the open 35 meetings and two is the better improved decision making process.. The open meetings

• 36 right now are not particularly useful, at least insofar as the FCC is concerned. They don't 37 result in a hashed out discussion of the substantive issues. They are simply a decision

• 38 announced, perhaps a brief statement by individual commissioners. But you do, after the 39 event, get a detailed report, an order, a notice, a proposed rule making. The FCC is very 40 good in those documents explaining the pros and cons, what the different issues were, 41 what the alternatives were, and then issuing a complete document explaining why they 42 reached a decision. It seems to me 1that sort of takes the place of the open meeting

l 51 I 1 concept where the public would otherwise be informed. The information is there after

• 2 the fact.

3 Thank you very much. .

4 MR. MAY: Thank you, Mr. Campbell.

5 Questions.

6 MR. D; CAMPBELL: I just would like to ask a quick question. Just so that I 7 understand what you were saying in your written testimony, Mr. Campbell, you said that 8 your other committee had indicated that it would be better to broaden the definition of a 9 meeting?

10 MR. A. CAMPBELL: No, I'm sorry, I guess I mean really to shrink the definition.

11 :MR. D: CAMPBELL: To narrow the definition?

• 12 13 14 15 MR. A. CAMPBELL: To narrow the definition, thank you.

MR. D. CAMPBELL: Not that the -

MR. A. CAMPBELL: I used the word broaden and I meant the other use of that word, yes - narrow it, thank you.

16 MR. MAY: Mr. Campbell, do you - from having watched the FCC for many, 17 many years, maybe even before the Sunshine Act, in our earlier meetings when we've 18 discussed this problem we've obviously realized there is an element of human nature that 19 is an aspect of what we're talking about in terms of the inhibition on people expressing 20 views in open meetings and that inhibits collegiality. We've also talked a little bit about 21 the fact that some agencies, like the FCC, where they have heavy agendas with frequent 22 public meetings even if agency members were willing to - had no inhibitions about 23 talking in public meetings - I realize there are those - but absent that, there is just a 24 logistical problem that the Sunshine Act imposes in terms of noticing all these meetings if 25 they wanted to get together.

26 From your experience, would you say that at the FCC it's principally a problem of 27 human. nature that has really had the effect that you've described of making the open 28 meetings rather shallow? If it's not exclusively that, do you think an approach like the 29 Colorado - I don't know if you were in the room when there was a description of the 30 Colorado law under which a regular, weekly or whatever meeting is noticed and the 31 public is therefore invited and commissioners can just get together or do get together and 32 talk about whatever is on their mind. Do you think that that would be something that 33 might be helpful with regard to the FCC?

34 MR. CAMPBELL: Well, in response to the first part of the question, I think it is a 35 human nature factor. I heard only yolllr question about the Colorado law so I didn't hear 36 the discussion of it leading up to that.

• It seems to me, though, that some of that 37 discussion - and interestingly when the ad hoc committee of the FCBA studied this, we 38 did have a lot of individuals who had been at the FCC as commissioners and the staff 39 people before the Sunshine Act, and they contrasted the meetings that went on then

t .

52 1 which were closed, but when the staff would be there and they would discuss contrasting 2 points of view on a particular issue, and they were sort of hammered out at a session like 3 that. No one seemed to indicate there was any inhibition then. In fact, some of the 4 meetings were described as fairly vocal and people were very strong in their views on s different things and different parts of the FCC staff would have different viewpoints.

6 But there didn't seem to be any inhibition at that point, and they contrasted that to 7 the meeting that occurs now that's an open meeting which is basically to announce the 8 decision. You don't know* how it was reached but here it is. Sometimes it's almost 9 number 48, and you move on.

10 I think another factor at least is the Chairman. I think depending on who the 11 Chairman of an agency is, the Sunshine Act can enhance his powers if he wants to use it 12 that way. Other Chairmen who are willing to delegate more and open the process up can

• 13 14 15 16 17 eliminate that as a problem.

MR. D. CAMPBELL: I would like to ask Ms. Berg if you had some suggestion about the notation voting process at the International Trade Commission - I think you referred to it as a loophole.

MS. BERG: Well, I mean, a general loophole in the law in that the law permits 18 commissioners to vote by notation voting, and they are never required to give 19 information about the background for that. Sometimes notational voting is used for 20 procedural issues and nobody really cares, but I understand that it is sometimes used for 21 substantive issues, and I think that that should be a part of your consideration, as you are 22 looking at the whole situation. I don't have a specific situation or proposal except maybe 13 that there should be some criteria for what is appropriate for notational voting.

24 :MR. LUBBERS: I would like to float an idea that a telephone caller gave to me

• 25 26 27 28 29 in advance of the hemng. His point was that - and he is a public interest lawyer in favor of openness generally - his point was that collegial agencies should normally have a split among their members such that you have different local parties and different representatives of different groups on the agencies. Therefore when you have a unanimous commission on a matter, on an issue, it should be easier for the commission io 30 dispose of that matter - and they often do through notation voting. But there should be 31 a - and this sort of what Dan was suggesting earlier - there should be a way for a 32 dissenting co~missioner or commissioner with a different view to escalate that issue to 33 an open meeting. On the other hand, the commission would have a freer hand to do 34 things unanimously not in public but presumably this would be okay because those things 35 would be less contentious, less controversial, maybe even of less public interest. But if 36 there was enough interest on the part of one commissioner to say, wait a minute, I think 37 this is going too far or whatever; it's not non-controversial and I want to have an open 38 meeting on this, that that would happen.

39 Do you see that as any kind of useful dividing line?

53

• I 1 MS. BERG: I agree that that would be helpful. I would also offer the comment, 2 though, just because the Commission "is unanimous does

• not mean that the public 3 understands why they're unanimous.

4 MR. LUBBERS: Well, there would have to be an opinion, a written opinion or 5 something,-a memorialization of the decision.

6 MS. BERG: There still needs to be something.

7 MR LUBBERS: I'm not saying that there wouldn't be, but the suggestion was 8 that normally there is enough interest on the part of one commissioner on a controversial 9 issue to warrant having an open meeting on that subject and there should be in those 10 situations. *It's kind of a variation of the change in notation voting suggestion that Dan 11 Campbell was raising earlier.

12 MS. BERG: Yes, I agree.

• 13 14 15 16 17 MR. MAY: I take it, Mr. Campbell, that your point in emphasizing that agencies like the FCC ultimately end up issuing a written opinion, which is subject to judicial review and is public and in fact there are often concurrences and sometimes dissents, or if they're unanimous, that's reflecting the views of the agency - that ultimately there is that accountability in terms of knowing how an agency member voted or what his position is 18 . on that issue. I mean, is it your view that in light of that the Sunshine Act really went too 19 far in requiring this openness and maybe failed to account for the fact that the written 20 opinions are the ultimate means of accountability of the agency members?

21 MR. CAMPBELL: I'm certainly satisfied - again, this is personally - with the 22 written, final decision. It gives me what I need as a practicing attorney and member of 23 the public to know what went on. To sit there and hear them perhaps hash it out and say 24 the same things in a meeting wouldn't add a great deal to my knowledge or be useful to 25 me particularly.

26 One other thought that occurs to me, again, I think was in response to one of your 27 questions about - you know, the things that the FCC is dealing with right now involves

• 28 millions of dollars, opportunities, etcetera, and they're trying to think in terms of if you .

29 had a meeting where people were ffoating ideas - which, hopefully, at meetings like that 30 you might do - the press and everyone would be sitting there trying to figure out, okay, 31 how do I take advantage of this? I mean, there is the ability to anticipate which way a 32 business opportunity is going to go based on some preliminary comments that may be 33 made at one of these public meetings. It could have good and bad effects for various 34 people, depending on how they read the tea leaves or hear them. I think that's something 35 to be concerned about.

• 36 MR. MAY: Ms. Berg?

37 MS. BERG: I want to poilflt out that my experience differs dramatically from 38 yours in that the concerns raised by myself and other members of the trade bar are 39 precisely that the written opinion does not provide us much information, that becaus~ the 40 commissioners never deliberate, the opinions become formula opinions that do not tell us 41 what the real basis for the opinion is.

• 154 1 MR. MAY: But don't they have to provide you with enough information to 2 withstand judicial review? I mean, those opinions, I take it, -are subject to APA judicial 3 review-4 MS. BERG: Yes, absolutely.

5 MR. MAY: - and that requires that there be a basis and rationale for the decision.

6 MS. BERG: That is true, and during one year 80 percent of those opinions were 7 remanded in part because there were not discussions that fully explained the basis for the 8 opinion. Also, there are multiple opinions because the commissioners - if they really 9 want to explain their opinion, they can°t do it as a group so* they do individual opinions 10 and I may know how any individual commissioner viewed that case, but I don't know 11 what the Commission position is. There are at least two judges at the Court of 12 International Trade that have complained about this, sent things back to the Commission 13 and said, "Wouid you please try and do a joint opinion so we can revie~ it?"

14 So while the court has not been as strict with the Commission as I sometimes 15 would like them to be, the court is sharing our concerns.

16 MR. LUBBERS: Your specific point with respect to the International Trade 17 Commission is that the countervailing duty and anti-dumping cases should fit into 18 exemption 10 if exemption 10 were properly construed by the commission. That's your 19 opinion as expressed in your law review article that you co-wrote?

20 MS. BERG: Yes, that is - I also, though, stated that the intellectual property, 21 Section 337 proceedings, clearly under the statute - these are under 554 - and I do not 22 know anyone who would believe that they are not within exemption 10 yet the 23 Commission does not claim exemption 10 to deliberate in those cases either.

• 24 25 26 27 28 MR. LUBBERS: Since that's clear on the face of the statute, why doesn't the Commission claim the exemption in thos,e cases, in your opinion?

MS. BERG: Ifl had to guess, I would say it stems in part from a desire to not be subject to criticism. At the time that the Sunshine Act was enacted the Chairman of the Commission was very concerned about openness and I do know that the Commission has 29 very aware of criticism of other agencies, criticism. in the Congressional hearings, as I 30 mentioned earlier, and I'm sure that this is a part of it.

31 MR. LUBBERS: Are you aware of other adjudicative agencies being criticized 32 for closing APA adjudication meetings?

33 MS. BERG: I am not aware of 1:riticism. I am only aware of comments that we 34 have received when we did a survey of other agencies to see*ifthere were any others that 35 had parallel proceedings to the anti-dumping, and several of them said, yes, we believe 36 we are subject to it but we do not claim it for this reason.

37 MR.. LUBBERS: What would you like to see the Administrative Conference do 38 with respect to this particular problems?

55 1 MS. BERG: I think that's a good question, and I don't know what you could do, 2 but I do think that since there has been so much public hearing on the other side of the 3 issue where the press has come fonvard and certainly some members of Congress have 4 come forward and said that they would like the spirit of openness even when people can 5 claim the exemption, that there needs to be someone to speak out on the other side and*

6 say, yes, but Congress did give that 1exemption and Congress recognized that there was a

-. 7 reason for it. And while I, as a member of the bar, care very much that there be 8 openness that we must be able to claim the exemption - the Commission must be able to 9 claim the exemption - when they are legally entitled to.

10 MR. LUBBERS: Copies of your law review article are available in the back.

11 MR. MAY: That may be a good start in that regard.

12 Any other questions?

• 13 14 15 16

[No response.]

MR. MAY: Okay, I would like to thank Ms. Berg and Mr. Campbell. Thank you very much for your participation.

Okay, that concludes the list of pre-listed witnesses. Do we have anyone else here 17 that would like to speak at this time? I think - Mr. Wallman, do you want to give some 18 further reflections at this point in summing up, and then if there is someone else as well 19 that wanted to say anything, we would be happy to hear you briefly.

20 Mr. Wallman?

21 COMMISSIONER WALLMAN: Well, thank you. It's been an interesting day.

22 Just a couple of points I wanted to make. The Colorado type of provision is something 23 that would be permitted under the Sunshine Act today depending on how you simply

• 24 25 26 27 28 work out the notice provision, and clearly the Colorado Act says, as I read it, that you cannot have deliberations. If we don't have deliberations, that's not covered by the Sunshine Act today. If we don't have deliberations, we can in fact have those meetings privately. All this does is allow us to do publicly what we can already do privately under the Act were we to interpret the Act with a bright light test in it.

29 So I don't think the Colorado type solution -- although I'm happy to read the 30 whole statute - is getting to the point that we're talking about.

31 With regard to whether or not the written decision provides enough information, 32 clearly, I think your point,-Randy, is correct. The APA requires the written decision to 33 provide the information necessary and appropriate so that a reviewing court can decide if 34

• it was a rational basis for a decision. That's where people get their information with 35 regard to how a decision was made or what the basis for a decision is, but it doesn't get 36 to admittedly the deliberations underlying that.

37 What we want to try to do is achieve a system where we can get better 38 deliberations or where we can at least get some deliberations. Right now, we have to 39 start with the understanding and the reality - we don't have any deliberations. People

• 40 can differ as to whether they believe all the reasons or whether they subscribe to all the

56 1 reasons for why those deliberations dont currently occur in public. Some of them are 2 better reasons than others, some of them are people's emotional views, some of them are 3 very rational, well thought out, very considerate views.

4 The point of the matter is that for a long time they've been the collective views of 5 almost all .the people on almost all these commissions, and when I look back at my own advisory committee experience in terms of the commission's Capital Information 7

.8 Committee and how well. the Sunshine Act does work there, I try to think in my own mind as to why it doesn't work in one case and why it works in the other case. It 9 becomes clear to me that the factors that inhibit public discussion in one case dont exist 10 with regard to the advisory committee actions. I suspect that to some degree they don't 11 exist with regard to ACUS' deliberations, and they dont exist with regard to a number of 12 other matters that I'm aware of.

13 Consequently, whenever there can be open meetings, I think there should be open 14 meetings. As I said before, having meetings in the public eye is clearly the best. It's the 15 ultimate, it's what we want. But if we cant get there in all cases, it makes no sense to 16 continue to insist upon an aspiration that is harmful to, I think, the overall credibility of 17 government, harmful to the quality of decision making, and which has the ironic effect of 18 precluding public deliberations that would spill over from well thought out considered 19 previous private deliberations by precluding the private deliberations that might allow for 20 that spill-over effect to occur in the first place. And, as you've heard some people here 21 say today that we need to allow for private deliberations, you might actually see more 22 public deliberations on the same matter, and I believe that that's true.

23 Where do we go from here? I think with regard to some specific ideas and 24 notational voting, for example ...: at least at the SEC. I dont know if this is mandated 25 across the board - but at least at the SEC any commissioner who wishes to kick out a 26 matter that is going around by notational voting for a calendar vote can do so. So that's 27 already - at least in our rules, and I thought it was in the law generally. But clearly that's 28 not something that needs to be done. It's already there, and any commissioner, therefore, 29 who doesnt want to join the unanimous opinion or has a dissenting view or otherwise 30 and wants to have it kicked out, has that right right now.

31 I think we need to focus on some method for allowing private deliberations, 32 whether it's Alan's method of having a public statement or public hearing first and then 33 allowing private deliberations afterward, or something else, the minutes method or

• 34 something, any of those I think are improvements on what we currently have.

35 Just a final note, with regard to comparisons that keep coming up with regard to, 36 for example, judicial determinations or Congressional mark-ups or things of that nature, 37 in all those cases what you have is the ability for people still to engage in private 38 deliberations. Every appellate court engages in private deliberations, every 39 Congressional committee can engage in private deliberations, every other context where 40 you're looking where you see public deliberations only I suspect* you dont really have 41 written decisions that are subject to the same kind of scrutiny and review and ability to 42 explain the reasons the same way you have commission decisions explained.

57 1 For example, at least as far as my experience is personally - and I can't talk about l many areas in this - but certainly when a school board makes a decision or a county

• 3 supervisor makes a decision, what's in the written record is a notice of the order of the 4 decision itself It is not a 30-page or SO-page review of the underlying rationale and the s equivalent in essence of a judicial decision with regard to all the actions taken. In a 6 certain sense then, public deliberations are a substitute for the written deliberations, the 7 written discussions that go out with an APA type of opinion that we issue in connection 8 with rulemaking or otherwise.

9 Again, that's just an anecdotal observation. I don't know if it works across the 10 board because I haven't done the study, but I would just simply suggest that that needs 11 further research if people are going to continue to use those comparisons.

12

• The point at hand, though, is that I think it's incumbent on all of us to figure out a

• 13 14 15 16 17 18 way to make the system work better. In my mind, it doesn't really matter terribly much if a system works better by having more openness, more public meetings and more public deliberations if that will occur. That will be fine, and I would be somebody who would greatly second that, but if we can't get that to work, if we can't reverse 20 years worth of history and observations here, then I think we need to start thinking about other solutions. Otherwise, we will simply continue with what we've seen for the last 20 years, 19 and I think that that will be damaging to our overall public interest.

20 , Thanks for the opportunity.

21 MR. MAY: Thank you very much, again, for all of your work and contributions 22 on this.

23 Does anyone else have* anything they want to say before we close?

24 [No response.]

25 MR. MAY: If not, I thanlc all of you for your attendance, and, remember, the 26 record will remain open for a week or so if you have any further statements or whatever 27 you want to submit.

28 We have a committee meeting on the 20th at 2:00 p.m., which will be an open 29 meeting for any one that wants to attend.

30 Thank you and the meeting is closed.

31 [Whereupon, at 12:03 p.m. the proceedings in the above-captioned matter were 32 concluded.]

33 34 35 36 37 38

_: .'.i *:

A. Periodic Agmey Review of SWISline Practices., Members of the public voice several criticisms of the manner in which agencies employ the Government in the Sunshine Act and conduct open

. meetings. Among the most significant are that meetings are often clmed on technical legal grounds without substantive reason fer.

• *doing so, that at times discussion in meetings is inadequate to allow those in attendance to understand fully the proceedings, and 1 that frequently members of the public have insufficient access to explanat<ry materials and underlying documents to allow them to follow the discussion and comprehend the content of meetings. At issue is oot so much compliance with the letter of the law as progress toward fuller realization of its general objective of enlarged, meaningful public access to information. To the extent that problems exist, they are a function of agency practice. and are appropriately addressed in their particulars on an agency-by-agency basis. ,

B. Impact of Sunsline on the Collegiality of Ageney Decisionmaking.

The desirability of the collegial form of agency organization, as oppmed to the agency headed by a single executive, has long been the subject of debate. Congress has, however, chosen to delegate certain administrative functions to collegial bodies.

One of the most frequently offered justifications for collegial decision making is that stated by the First Hoover Commission's Committee on Independent Regulatory Commissions:

. A- distinctive ~ttribute of commission action is that it requires concurrence by a majority of members of equal standing after full discussion and deliberation. At its best, each decision reflects the combined judgment of

,the grotp after critical analysis of the relevant facts and divergent views. This provides both a barrier to arbitrary or capriciol.L'!I action and a source of decisions based on different points of. view and experielllce****

The member of the commission must expose his reasons

• . and judgments to the critical scrutiny of his fellow-17

18 ADMINISTRATIVE CO!I.FERENCE OF THE UNITED STATES members and must persuade them to his point of view.

He must analyze and understand the views of his colleagues if only to refute them.

i Though no generally accepted standard for m~asuring the quality of agency decisions under the Government in the Sunshine Act has been devised, 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 open meeting requirement has generated reluctance to discuss certain important matters; and discussions, when they occur, may not contribute to achieving a consensus position. In some agencies the pattern of decision making has shifted from collegial exchanges to one-on-one encounters, transmission of views through staff, and exchanges of memoranda or notation procedure. The inhibition of collegial exchanges, in turn, impedes the members in the collective exercise of their responsibilities, and tends to weaken the role of the collegium vis-a-vis that of the staff and the agency chairman *.

Congress was aware of the inherent and unavoidable tension between the values of openness in government and collegiality in decision making when it enacted the Government in the Sunshine Act, and it consciously chose a result that would maximize openness. Concessions were made in the statute to the need f cr maintaining the confidentiality of certain categories ,of information under discussion, but few if any concessions were made to the needs of the deliberative process as such. . Although the legislative history indicates Congress believed that, after the initial period of adjmtment, sunshine would not have a significant inhibiting effect on collegial exchanges, unfortunately this has not been the case.

RECOMMENDATION

1. Agencies should continually strive to reflect fully in their activities the basic purpose of the Government in the Sunshine Act, which is to enlarge public access to information about the operations of government. Agencies are strongly encouraged to review periodically their sunshine policies and -

practices in light of experience and the spirit of the law for the purpcse of maki,ng adjustments that would enlarge public access to :

meaningful information, such as (a) invoking the exemptions of the.*

Act to clcse meetings only when there is substantial reason to cb so; and (b) making open meetings more useful through.comprehensi- .

ble discussion of agenda items and provision of background materi-al and documentation pertaining to the issues under consideration.

OFFICIAL RECOMMENDATIONS 19

2. Under the Government in the Sunshine Act the degree of collegiality in the multi-member agencies has diminished.

Congress should consider whether the present restrictions on closing agency meetings are advisable, and, if not, how they might best be revised without undercutting the basic principle of the Act that "the public is entitled to the fullest practicable information regarding the decision making processes .. of the Federal Government."

If a new balance is to be struck between the values of collegiality and openness, the Administrative Conference suggests that agency members be permitted some opportW11ity to discuss the broad outlines . of agency policies and prio1rities (including enforcement priorities) in closed meetings, when the discussions are preliminary in nature or pertain to matters, such as budget or legislative proposals, which are to be considered in a public forum prior to final action.

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UNITED STATES DOCKETED NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 205M-0001 us '.~c July 28, 1999

• 99 JUL 29 P2 :ua 0 ,-

, I I nr, AD.Ju The Honorable David Price United States House of Representatives D C ET NUMBER Washington, D.C. 20515 PROPOSED RU

Dear Congressman Price:

I am pleased to respond to your letter expressing your concern, and that of Mayor Michael Nelson of Carrboro, regarding the Nuclear Regulatory Commission's (NRC) recent action with regard to the Government in the Sunshine Act.

Mayor Nelson's letter was written before the NRC issued the May 10, 1999 Federal Register notice to which you alluded in your letter. Whereas, according to Mayor Nelson, the NRC "seeks exemption from the Sunshine Act," the Federal Register makes clear that this is not the case. Rather, the NRC's action starts from the premise that the Sunshine Act fully applies to the NRC. The question, rather, is of the definition of a "meeting" under the Act.

The Supreme Court explained in a unanimous 1984 decision that in enacting the Sunshine Act, Congress did not provide that eve,y discussion of agency business should be treated as a "meeting," because it understood that this would impede the kind of informal, prelimina,y discussions that are an important part of a government agency's work. Unfortunately, the NRC initially interpreted the Act as though every discussion should be considered a "meeting," in part

• on the basis of erroneous legal advice from the Justice Department in 1977. After the Supreme Court's clarification of the law in 1984, the NRC changed its regulations to reflect the Court's guidance, but in the face of sharp criticism of its action, the NRC never implemented the rule change, and continued its earlier practice of treating all discussions of agency business as "meetings." The NRC's recent action is intended to ensure that the NRC's practice and regulations conform to the Supreme Court's guidance.

Implementation of the rule change will permit the NRC Commissioners to hold certain kinds of discussions, unrelated to any specific issue; to hold informal and preliminary discussions of agency-related business; and to receive status or informational briefings related to staff activities. The kinds of issues that Mayor Nelson identifies in his letter as being of concern to the citizens of Carrboro -- for example, a pending specific application for license authorization to expand nuclear waste storage at the Shearon Harris plant -- are of sufficient specificity that a quorum of Commissioners could not discuss and formulate positions on the application except in "meetings," just as is the case today.

Mayor Nelson's letter speaks of the need to maintain "an open deliberation and decision process at the Nuclear Regulatory Commission." The Commission's recent action is fully consistent with Congress's intent that the Sunshine Act's procedural requirements shall apply

U.S. NUCLEAR REGULATORY COMMJSSIO RUlEMAKINGS &ADJUDICATION$ STAr OFFICE THE SECRETARY OF HE SSION

2 whenever discussions are, in the words of the Supreme Court, "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."

In short, this decision is not intended to produce, nor should it produce, any reduction in the openness of the deliberative and decisional process at the NRC. While there would indeed be grounds for concern if, as your letter puts it, "important policy decisions were being made out of public view," the types of discussions that the Commission can hold as "non-Sunshine Act discussions" cannot, as a matter of law, include those in which policy decisions are made.

I trust that this letter is responsive to your and Mayor Nelson's concerns. Both his letter and yours were docketed as comments on the Commission's Federal Register notice. On July 16, 1999, the Commission approved a Federal Register notice responding to comments received on the May 1O, 1999 notice. A copy is enclosed for your information.

• ;~/;J;_

Dennis K. Rathbun, Director Office of Congressional Affairs

Enclosure:

As stated

39393

Rules and Regulations Federal Register Vol. 64, No. 140 Thursday, July 22, 1999 This section of the FEDERAL REGISTER on July 1, unless it took further action. Policy arguments included these:

contains regulatory documents having general Finding that the comments do in fact (a) Even if the rule can be justified applicabiUty and legal effect, most of which warrant discussion, the Commission are keyed to and codified in the Code of legally, it represents a retreat from provides this additional document that openness and will diminish public Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. responds to the issues raised by the confidence in the Commission; commenters. During the period of its (b) The NRC has failed to show that The Code of Federal Regulations is sold by review of the comments, the collegiality has been impaired by the the Superintendent of Documents. Prices of Commission has not held any non-Sunshine Act; new books are listed in the first FEDERAL Sunshine Act discussions and has REGISTER issue of each week. decided not to hold any such (c) The examples of topics that the discussions until, at the earliest, 30 days Commission has cited as examples of from the date of publication of this possible non-Sunshine Act discussions NUCLEAR REGULATORY document are too trivial to warrant changing a rule COMMISSION Nine comments were received on the that has served well for 20 years; May 10 notice, all but one of which (d) The Commission failed to follow 10 CFR Part 9 expressed disapproval of the NRC's the recommendations of the American RIN 3150-AB94 action. (The lone exception was a Bar Association with respect to record comment from a nuclear industry group, keeping; Government In the Sunshine Act the Nuclear Energy Institute, which said (e) No harm could come to the Regulations that it endorsed the NRC's action for the Commission's processes if general reasons stated in the May 10, 1999, background briefings were held in open AGENCY: Nuclear Regulatory document.) Of the critical comments session; Commission. received, the most detailed came from a ACTION: Final rule: Notice of intent to Member of the United States House of (0 The NRC's role as regulator of a implement currently effective rule; Representatives, Edward J. Markey, and technically complex industry calls for response to comments. from two public inten*st organizations, maximum openness; and the Natural Resources Defense Council (g) Nothing in the rule prevents the

SUMMARY

The Nuclear Regulatory Commission from holding off-the-record and Public Citizen. The negative Commission, having considered the comments were mostly (but as will be discussions with representatives of the comments received on the May 10, seen, not exclusively) along the lines regulated industry.

1999, document declaring its inteut to that the Commission had tried to In the interest of clarity, we will begin implementing a final rule anticipate in its detailer! document of "-ldress the comments in a commeot-published ai...: made effective in 1985, May 10. and-response format. Some comments has decided to proceed with The comments were both on legal and were dealt with in sufficient detail in implementation of the rule, 30 days policy grounds. The primarily legal the May 10, 1999, document that it from the date of publication of this ar~ents included the following:

would serve no useful purpose to repeat document. (a) The legislative history of the here the Commission's position with DATES: The May 21, 1985, interim rule Sunshine Act makes clear Congress's regard to them.

became effective May 21, 1985. The intent that there should be openness to A. Comment: One of the critical Commission will begin holding non- the maximum extent practicable; commenters quoted at length from the Sunshine Act discussions no sooner (b) The Commission's action is thus antithetical to the letter and spirit of the decision of the U.S. Cowt of Appeals for than August 23, 1999. the District of Columbia Circuit in FOR FURTHER INFORMATION CONTACT:

Act; (c) The Supreme Court's decision in Philadelphia Newspapers v. NRG, 727 Peter Crane, Office of the General F.2d 1195 (1984), in which the court Counsel, U.S. Nuclear Regulatory FCC v. ITT World Communications, 466 U.S. 463 (1984), involved unique declared that "Government should Commission, Washington, DC 20555, conduct the public's business in (301) 415-1622. circumsta. 'ces and is not relevant to the issue before the NRC; public." The commenter opined that SUPPLEMENTARY INFORMATION: On May (d) The Commission disregarded such Congress undoubtedly intended that the 10, 1999 (64 FR 24936), the Nuclear court decisions as that of the U.S. Court Government in the Sunshine Act Regulatory Commiss.ion noticed in the of Appeals for the D.C. Circuit in "would guarantee public Federal Register of its intention to begin Philadelphia Newspapers v. NRG, 727 accountability" on the safety of nuclear implementing its regulations, F.2d 1195 (1984); power.

promulgated in 1985, applying the (e) The criteria adopted by the Response: Undeniably, the Government in the Sunshine Act. The

• Commission are too vague to be Philadelphia Newspapers decision Commission provided a period for workable, inasmuch as they require the represented an expansive view of the public comment, ending June 9, 1999, Commission to predict the course that Sunshine Act on the part of that panel and stated that no non-Sunshine Act discussions will take; and of the D.C. Circuit Only a few months discussions would be held before July 1, (0 The Commission's action, by later, however, the Supreme Court 1999, to give the CoIOL1ission an providing for minimal recordkeeping, provided sharply different guidance in opportunity to consider the cmmnents. possibly to be discontinued after six the first (and to date only) Government The Commission stated that non- months, will preclude meaningful in the Sunshine Act case to reach the Sunshine Act discussions could begin judicial review. Court: FCCv. ITT World

39394 Federal Register/Vol. 64, No. 140/Thursday, July 22, 1999/Rules and Regulations Communications, 466 U.S. 463 (1984). B. Comment: The NRC's action, even Response: The Commission disagrees m' World Communications resembled if some legal arguments could be made with this comment. As long ago as 1984, Philadelphia Newspapers in that it also for it, is contrary to the Congress's the Administrative Conference of the involved an expansive interpretation of intent, documented in the legislative United States, in Recommendation 84-the Sunshine Act by the D.C. Circuit. history, that Federal agencies were 3, was commenting that the Sunshine Resoundingly, in a unanimous decision, ,intended to practice openness to the Act had had the unintended effect of lhe Supreme Court overturned the D.C. maximum extent possible. diminishing collegiality at multi-Circuit's ruling, and it used the Response: Congress made a deliberate member agencies and shifting power opportunity to give guidance on the decision to limit the applicability of the from the collegium to the Chairman and proper interpretation of the Sunshine Sunshine Act to "meetings." As the staff.'Analyses by the NRC, the Act. It said, among other things: Supreme Court explained in detail, the American Bar Association, and the Congress in drafting the Act's definition of definition of "meeting" was an issue to Administrative Conference all provide "meeting" recognized that the administrative which Congress paid extremely close factual support for the proposition that process cannot be conducted entirely in the attention, with changes introduced late there are problems associated with the public eye. "(I)nfonnal background in the process. The bill in its final form Act. Again, this topic was covered in discussions (that) clarify issues and expose therefore differed significantly from detail in the Commission's May 10, varying views" are a necessary part of an what some of its supporters (including 1999, document.

agency's work. (Citation omitted.) The Act's its chief sponsor, the late Senator E. Comment: One commenter procedural requirements effectively would observed that "[t)here is no apparent prevent such discussions and thereby impair Lawton Chiles) desired. As a result, normal agency operations without achieving Committee reports describing earlier, requirement to keep any tape or significant public benefit. Section 552b(a)(2) more expansive versions of the transcript of non-Sunshine Act therefore limits the Act's application. * *

• legislation bills are of slight significance discussions."

compared to the Supreme Court's Response: This comment is correct, Id. at 469-70. for that is the way that Congress enacted The Commission's rulemaking has parsing of the statute that Congress een grounded from the start in this actually passed. Some commenters are the statute. (The May 10, 1999, efinitive Supreme Court guidance. The in effect asking the NRC to join in document quoted the legal judgment rule itself includes a definition of rewriting history so that the narrowing reflected in the ABA report that if a "meeting" taken verbatim from the of the scope of "meetings"-proposed discussion "is not a 'm,,.eting,' no Court's opinion. The American Bar by then-Representative Pete McCloskey, announcement or procedures are Association confirmed that the NRC's enacted over the opposition of Senator required because the Act has no Chiles and others, and elucidated by the application.") As a matter of policy approach was consistent with Supreme Court-is made to disappear discretion, however, the NRC has Congressional intent and the Supreme decided to maintain a record of the date Court's interpretation. To the extent that from the record. The i t,aJ.ity' Cvlltrary to the views of some commenters, is that and subject of, and participants in, any the commenter was urging the NRC to follow the approach of the Court of the Sunshine Act did not decree scheduled non-Sunshine Act Appeals and disregard the contrary openness to the maximum extent discussions that three or more Commissioners attend, for at least the guidance of the Supreme Court, the NRC practicable. Instead, it struck a balance between the public's right to know and initial six-month period of cannot agreP ~ven if the Commission the agencies' need tu functiun efficiently implt ... enting 'he rule. This will assist believed as a matter of policy that such in order to get the public's business the Commission in determining whether a course was desirable, the NRC is not done. thereafter, recordkeeping should be at liberty to ignore Supreme Court maintained, increased, or eliminated.

decisions interpreting the statutes that C. Comment: A commenter asserted

~~;;;;i~ -~perations. 1 that the NRC had failed to offer examples of the types of "non-Sunshine No final decision has been made at this time. The Commission will not Act discussions" that it contemplated discontinue its practice of keeping such

~ o t i n g that on the precise legal point in dispute here-the definition of a "meeting" holding. records without advance notice to the under the Sunshine Act-one D.C. Circuit decision Response: The commenter is in error, public.

held that an agency is legally prohibited from as may be seen from the section of the F. Comment: The NRC should make interpreting the law more restrictively than NRC's May 10, 1999, document on page clear whether or not it intends that Congress provided. In WATCHv. FCC. 665 F.Zd discussions now held as "meetings" can 1264 (D.C. Cir. 1981), the court sharply chastised 24942 that begins, "Some specific an agency which had adopted a definition of examples of the kinds of topics that henceforth be held as non-Sunshine Act "meeting" that included types of discussions that might be the subject of non-Sunshine discussions. The Commissioners whose Congress had not included within the !latutory Act discussio1)~ would include. * * *" proposal initiated the Commission's scope. The court declared that the agency was Nor was this the first time that the NRC action seem to have contemplated "supposed to track" the statutory definition when it defined a "meeting" in its regulations. Because had offered such examples. It has done transforming current "meetings" into it had failed to do so, and instead included types so repeatedly, beginning in 1985. non-Sunshine Act discussions, but the of discussions not intended by Congress to fall Indeed, the American Bar Association Commission's May 10, 1999, document within the statutory scope, the agency bad written task force that studied the Sunshine Act denies this intent.

an "impermissibly broad" definition which could Response: The May 10, 1999, not legally be sustained. The court said: quoted, with approval and at Indeed, we are unable to discern any reason for considerable length, the examples of document made clear that the objective the breacfth of the agency's definition of possible non-Sunshine Act discussions is not to tum discussions now held as "meeting"-apart from shoddy draftsmanship, included in a memorandum to the "meetings" into non-Sunshine Act perhaps. While we recognize that an agency discussions, but rather to enable the generally is free to shoulder blll[.dens more onProus Commission from the NRC General than those specifically imposed by statute, the Counsel. Commission to hold, as non-Sunshine regulation at issue here is in excess of the D. Comment: A commenter asserted Act discussions, the kind of informal, C,ommission's rulemaking discretion un,: *r 47 that "no detailed analysis or specific preliminary, and "big picture" U.S.C. 154(1) (1976). Consequently, we set it aside example has been provided of problems discuss4,ns that currently are not held to the extent that its definition of "meeting" is more inclusive than the one contained in the Sunshine with the current rule or of the need for at all. As is sometimes the case, the final Act. 665 F.2d 1264, 1272. changes." Commission action differed in this

Federal Register/Vol. 64, No. 140/Thursday, July 22, 1999/Rules and Regulations 39395

• instance from the proposal that set the Response: The standards for L. Comment: The NRC did not follow action in motion. determining what is a non-Sunshine Act the recordkeeping recommendations of G. Comment: The memorandum from discussion were taken verbatim from the the American Bar Association.

two Commissioners that initiated the decision of a unanimous Supreme Response: It is true that the Commission's action said that one Court. Moreover, it is not correct to say Commission did not follow the reason to act was that the primary that the standard req4.ires "divination" American Bar Association's opponent of the Commission's 1985 of what will happen in a discussion. recommendations with respect to action was no longer in Congress. This Rather, what the rule envisions is that recordkecping. However, those suggests that the Commission's action if a discussion begins to evolve from the recommendations were prudential. not was motivated by political preliminary exchange of views that the based on legal requirements. The ABA considerations, rather than actual need. Commission contemplated into recognized that as a legal matter, if a Response: The cited memorandum something so particularized that it may discussion is not a "meeting," no did indeed include an allusion to a "effectively predetermine" agency procedural requirements apply at all.

former Representative. Read fairly and action if it continues, the Commission The Commission's May 10, 1999, in its totality. it makes clear that the two will cease the discussion. 2 document reflected a judgment that Commissioners' proposal was motivated Congress would not have given agencies J. Comment: Because of the special latitude to hold this type of discussion by concerns of good government and sensitivity and public interest in issues legal correctness, not politics. At the free of elaborate and burdensome of nuclear safety, the NRC should procedures if it had not viewed such same time, they offered their candid continue to apply the law more view that concern about the proposal procedures as undesirable. Nonetheless, stringently than is required. as described in the response to might be less intense than it had been Response: That argument may have in 1985. There was nothing Comment E above, the Commission has some force, but it cuts both ways. By the inappropriate about making this decided to maintain a record of the date.

same token, it can be argued that the participants in, and subject matter of all observation. The Commission's decision special sensitivity and public interest in to take action with regard to the non-Sunshine Act discussions for at issues of nuclear safety make it essential least the first six months in which the Sunshine Act was a reflection of its that the Commission remove barriers to longstanding efforts to increase the rule is implemented, and it will not efficiency and collegiality, so as to discontinue the practice thereafter collegiality of the Commission process, maximize the quality of Commission to ensure that its procedures and without advance notice to the public.

decision-making. and that the M. Comment: No harm could result practices are in conformity with current Congressional balance between from holding briefings in public session.

law, and to reach closure on outstanding openness and efficiency should and doing so would benefit public items. thereforP be a:.!herec to strictly. The understanding.

H. Comment: The May 10, 1\:l99, NRC believes that the latter interest Response: On this point, arguments document is not clear as to whether should predominate. can go either way. At the time that the there is anything in the rule that would Commission first put its Sunshine Act prevent the full Commission from K. Comment: Whether or not legally justifiable, the NRC's action will rules into place, it acknowledged that meeting off- 1 he-record with briefin~s might be exempt from the representatives of a lic.., .. se..: or the diminish public confir:lence in the Commission. Sunshine Act's scope, but said that the Nuclear Energy Institute in non- Commission did so much of its Sunshine Act discussions. Response: The Commission was important work in briefings that as a Response: The commenter's point is aware of this possibility at the time it policy matter, it believed these should well taken; the notice did not address issued the May 10, 1999, document, but be open to the public. This argument is this question. The Commission's intent it believes that the legal and policy not insubstantial. In part for that reason.

is that non-Sunshine Act discussions reasons for its action-compliance with the Commission affirms once again what would be limited to NRC or other the Supreme Court's guidance, and the it said in its May 10, 1999, document federal agency personnel. with limited expected benefits in collegiality and and earlier in this present document, exceptions for persons (e.g. efficiency, make this a desirable course namely, that its objective is not to tum representatives of the regulatory body of of action, even if-despite the discussions now held as "meetings" a foreign nation, or a state regulator) Commission's best efforts to explain its into non-Sunshine Act discussions.

• who would not be regulated entities or reasoning-some persons Rather, the intent is to ensure that the who could not be considered interested misunderstand or disapprove of the Commission is not categorically parties to Commission adjudicatory or Commission's action. It is also possible required to apply the Sunshine Act's rulemaking* proceedings. The that the potential enhancement of procedural requirements to every Commission is committed to collegiality and the potential briefi_ng, including such things as implementing this intent; the non- improvement in Commission decision- routine status updates, where the Sunshine Act discussions will not ~aking that may result from non- benefit to the public would be small include discussions with Sunshine Act discussions will compared to the administrative burden representatives of licensees or of ultimately increase the public's and loss of efficiency in doing day-to-organizations who could be considered confidence in the Commission's actions. day business.

interested parties to NRC adjudications, In sum, the NRC believes, based on its rulemakings, or development of 2 Every Commissioner who meets one-on-one review of the comments received on the guidance. with an interested party to A matter before the Commission has to be prepared to cut off May 10, 1999, document, that the I. Comment: The NRC's standards for discussions that threaten to stray into general approach taken by the determining when a discussion can be impermissible areas. as provided, for example, by Commission in that notice remains a held as a non-Sunshine Act discussion the NRC's ex pane rules. There seems no reason desirable course of action. Accordingly.

is impermissibly vague, requiring why Commissioners could not equally well halt the NRC intends to implement its 1985 discussions among themselves that seem likely to "divination" on the part of the cross the line separating non-Sunshine Act Sunshine Act rules and to begin holding participants. discussions from "meetings." non-Sunshine Act discussions, subject

39396 Federal Register/Vol. 64, No. 140/Thursday, July 22, 1999/Rules and Regulations to th.e (.-Onditionf\outlined in the May ADDRESSES: Submit comments in intended to adequately address the 10, 1999, document, and as further triplicate to the Federal Aviation identified unsafe condition.

clarified in the present document, 30 Administration (FAA), Transport The LFV classified this service days from the date of this notice. Airplane Directorate, ANM-114, bulletin as mandatory and issued Dated at Rockville, Md., this 16th day of Attention: Rules Docket No. 98-NM- Swedish airworthiness directive (SAD)

July, 1999. 350-AD, 1601 Lind Avenue, SW., No. 1-132, dated October 8, 1998, in For the Nuclear Regulatory Commission. Renton, Washington 98055-4056. order to assure the continued Annette Vietti-Cook, The service information referenced in airworthiness of these airplanes in Secretary of the Commission. this AD may be obtained from Saab Sweden.

(FR Doc. 99-18724 Filed 7-21-99; 8:45 am) Aircraft AB, SAAB Aircraft Product FAA's Conclusions BILLING CODE 7H0-01-f' Support, S-581.88, Linkoping, Sweden. This airplane model is manufactured This information may be examined at in Sweden and is type certificated for the FAA, Transport Airplane operation in the United States under the DEPARTMENT OF TRANSPORTATION Directorate, 1601 Lind Avenue, SW., provisions of section 21.29 of the Renton, Washington; or at the Office of Federal Aviation Regulations (14 CFR Federal Aviation Administration the Federal Register, 800 North Capitol 21.19) and the applicable bilateral Street, NW., suite 700, Washington, DC. airworthiness agreement. Pursuant to 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: this bilateral airworthiness agreement,

[Docket No. 98-NM-350-AD; Amendment Norman B. Martenson, Manager, the LFV has kept the FAA informed of 5-11232; AD S.-15-12) International Branch, ANM-116, FAA, the situation described above. The FAA RIN 2120-AA64 Transport Airplane Directorate, 1601 has examined the findings of the LFV, Lind Avenue, SW., Renton, Washington reviewed all available information, and lrworthlness Directives; Saab Model 98055-4056; telephone (425) 227-2110; determined that AD action is necessary AAB 2000 Serles Airplanes fax (425) 227-1149. for products of this type design that are

• SUPPLEMENTARY INFORMATION: certificated for operation in the United AGENCY: Federal Aviation States.

Administration, DOT. Discussion ACTION: Final rule; request for Explanation of Requirements of the comments. The Luftfartsverket (LFV), which is Rule the airworthiness authority for Sweden, Since an unsafe condition has been

SUMMARY

This amendment adopts a notified the FAA that an unsafe identified that is likely to exist or new airworthiness directive (AD), condition may exist on certain Saab develop on other airplanes of the same applicable to certain Saab Model SAAB Model SAAB 2000 ~P,ries airplanes. The type design registered in the United 2000 series airplanes. This action LFV advises that a failure of a bushing States, this AD is being issued to requires repetitive detailed inspections of the flap support fitting occurred prevent looseness or gap of the press fit to detect looseness or gap of the press during a fatigue test. The bushing bushing installation of the actuator fit bushing installation of the actuator installation of the flap support fitting is fittings of the aileron trim tnbs. This AD fittings of the -Jeron trim tabs, and similar to the bushing installation of the requires accomp~ishment of the actions eventual replacement of the oushings actuator fittings of the ail&ron trim tabs. specified in the service bulletin with new, staked bushings. In the event of failure of the redundant described previously, except as Accomplishment of such replacement trim tab actuator, such a failure of the discussed below.

terminates the repetitive inspections. bushing could lead to trim tab flutter J'his action also provides for an optional and consequent structural failure of the Differences Between this AD and emporary preventive action, which, if trim tab and reduced controllability of Service Bulletin

• accomplished, would terminate the the airplane. Operators should note that, although repetitive inspections until the the service bulletin specifies that the terminating action is accomplished. Explanation of Relevant Service Information manufacturer may be contacted for This amendment is prompted by disposition of a certain repair condition, issu~ce of mandatory continuing Saab has issued Service Bulletin this AD requires the repair of that airworthiness information by a foreign 2000-57-011, dated October 1, 1998, condition to be accomplished in civil airworthiness authority. The which describes procedures for accordance with*a method approved by actions specified in this AD are repetitive visual inspections to detect the FAA, or the LFV (or its delegated intended to prevent looseness or gap of looseness or gap of the press fit bushing agent).

the bushings. In the event of failure of installation of the actuation fittings of the redundant trim tab actuator, such the aileron trim tabs. In addition, the Cost Impact looseness or gap of the bushings could service bulletin describes procedures for None of the airplanes affected by this lead to trim tab flutter and consequent eventual replacement of existing action are on the U.S. Register. All structural failure of the trim tab and bushings with new, staked bushings in airplanes included in the applicability reduced controllability of the airplane. the fittings. Such replacement when of this rule currently are operated by DATES: Effective August 6, 1999. accomplished, eliminates the need for non-U.S. operators under foreign The incorporation by reference of the repetitive inspections. The service registry; therefore, they are not directly certain publications listed in the bulletin also describes procedures for an affected by this AD action. However, the regulations is approved by the Director optional temporary preventive action FAA considers that this rule is of the Federal Register as of August 6, that involves the installation of washers necessary to ensure that the unsafe 1999. on the bushings of the actuator fittings condition is addressed in the event that Comments for inclusion in the Rules of the aileron trim tabs. any of these subject airplanes are Docket must be received on or before Accomplishment of the actions imported and placed on the U.S.

A_ugust 23, 1999. specified in the service bulletin is Register in the future.

OFFICES :

DAVID PRICE 2162 RA YB URN BUILDING 4TH DISTRICT WASHINGTON. DC 20515

. N°ORTK°CAROLINA (202) 225-1784 225 HILLSBOROUGH STREET COMMITTEE ON APPROPRIATIONS SUITE 490 RALEIGH . NC 27603

\919) 832-2456 1777 FORDHAM BL VD CONGRESS OF THE UNITED STATES SUITE 202 HOUSE OF REPRESENTATIVES CHAPEL HILL. NC 27514 (919) 967-7924 WASHINGTON, DC 20515 May 13, 1999 Dr. Shirley Ann Jackson Ph.D., Chairman U.S. Nuclear Regulatory Commission CJ C)

One White Flint North p

C-c: ,;:. n 11555 Rockville Pike DOCKET UMBER q r- v;.-;,;.

Rockville, MD 20852-2738 PROPOSED RULE ,

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Dear Dr. Jackson:

N C.

co l am writing to express my concern, and that of Mayor Michael Nelson of Carrboro,: North Carolina, regarding a final rule recently published in the Federal Register amending the current application of the Government in the Sunshine Act to discussions among members of the Nuclear Regulatory Commission (NRC).

According to the May 10, 1999 Federal Register notice, this proposal is based on an interest in facilitating efficient and frank discussions among commissioners regarding issues under the purview of the NRC, and Sunshine Act limitations would still apply to meetings geared directly toward making policy decisions. Mayor Nelson's letter expresses a valid concern that private meetings among a majority of the commissioners would tarnish the reputation of the NRC by giving the impression that important policy decisions were being made out of public view. I am enclosing for your info, ,nation a copy of a letter from Mayor Nelson to me which expands on the~e concerns Thank you for your time and consideration.

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DAVID PRICE tvr ember of Congress DP:dn cc The Honorable Mike Nelson

U.S. NUCLEAR REGULATORY COM ION RULEMAKINGS&ADJUDICATIONS STAFF OFRCE OF'fHE SECRETARY OF THE COMMISSION DocumentSt!tlstics

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TOWN OF CARRBORO NORTH CAROLINA Mh March 22, 1999 RES Congressman David Price 2162 Rayburn House Office Building Washington,D.C. 20515

Dear Congressman Price:

It has come to the attention of the Town of Carrboro that the U.S. Nuclear Regulatory Commission (NRC) seeks exemption from the Sunshine Act and proposes to facilitate policy making out of the view of the public to which it is responsible . We believe this proposed policy change is unwise, wish to express our opposition to it, and request your assistance in opposing it.

On March l, 1999 the NRC announced that it would propose a final rule which allows three of five NRC commissioners to meet in private. Current rules allow no more than two commissioners to meet to discuss business. As justification for the change, the Commission cited a 1984 Supreme Court ruling which opened the way for this re-interpretation of the Sunshine Act of 1976. We understand the NRC has directed its General Counsel to prepare the rule to be published in the Federal Register within 30 days.

Notwithstanding assurances by the Commission that policy decisions would not be made at such closed-door meetings, we believe this rule change would undermine public confidence in the agency at a critical time.

The importance of this proposed change should net be underestimated. Policy issues now under discussion include such fundaipental questions about nuclear energy as decommissioning of nuclear power plants, plutonium fuel reprocessing, nuclear non-proliferation, and nuclear waste disposal. We also believe that it runs counter to recent administration decisions, which have brought past practices into the light of day.

Our concerns are heightened because Carrboro is located only some twenty miles from the site of Carolina Power & Light Company's Shearon Harris nuclear plant. CP&L currently has applied to the NRC to expand its high-level nuclear waste storage capacity at the plant. Significant technical and policy questions remain unanswered about the risks, wisdom, and alternatives of this proposal. If granted, more high level waste could be stored at Shearon Harris than at any other plant in the country.

301 WEST MAIN STREET . CARRBORO . NC 27510

• 19191 942 -8541

• FAX 19191 968 - 7737

• TDD 1919 1 968 - 7717 AN EQUAL OPPORTUNITY EMPLOYER

Pagc2

. March 22, 1999 It is in the interests of the residents of Carrboro and others around the country, that deliberations and decisions be made in the open, in the "sunshine". We do not believe that discussions of nuclear regulatory matters by a majority of the commission should take place in secret. As a legislative body, the Carrboro Board of Aldermen is subject to, and willingly agree to, broad open meetings requirements to the long-range benefit of good government. We believe the NRC should be held to a similar standard.

Thank you very much for your attention to this matter. We appreciate any assistance you may be able to give in maintaining an open deliberation and decision process at the Nuclear Regulatory Commission. We would appreciate hearing of any' action or devdopmems on il:.is matte,.

Sincerely,

\\J\uW Michael R. Nelson Mayor

• /

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555--0001 DOC EfED July 19, 1999 u ~1c

• 99 JUL 29 P2 :09 or Sl -

The Honorable Edward J. Markey ADJ r I -

United States House of Representatives Washington, D.C. 20515-2107 DOCKET NUMBER R

Dear Congressman Markey:

PROPOSED RULE ~ .-=-!;.,,~ ~

"1'i/ FR;).t/t:/31P Thank you for your letter of June 1, 1999, commenting on the Commission's recent decision to implement its 1985 change in its rules regarding the Government in the Sunshine Act. We have placed your letter in the docket, and have considered it along with other comments from the public, in addition to providing you with this response. On July 16, 1999, the Commission approved for publication in the Federal Register its responses to comments received on its decision to implement the 1985 rule changes. A copy is enclosed for your information. As indicated in the enclosed Federal Register notice, during the period of the Commission's review of the comments, no non-Sunshine Act discussions were held and the Commission will not hold any such discussion until 30 days after the publication of the Federal Register notice.

Before proceeding to the specific questions you 3sked, we wish to address the first portion of your letter, in which you stated your view of the law and the facts relating to the NRC's application of the Sunshine Act. You quote from the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Philadelphia Newspapers v. NRG, 727 F.2d 1195 (1984), in which the court dec'1red that "Government should conduct the public's business in public," and opined that Congress undoubtedly intended that the Government in the Sunshine Act "would guarantee public accountabilityn on the safety of nuclear power.

Undeniably, that decision represented an expansive view of the Sunshine Act on the part of that panel of the D.C. Circuit. Only a few months later, however, the Supreme Court provided sharply different guidance in the first (and to date only) Government in the Sunshine Act case to reach the Court: FCC v. ITT World Communications, 466 U.S. 463 (1984).

ITT World Communications resembled Philadelphia Newspapers in that it also involved an expansive interpretation of the Sunshine Act by the D.C. Circuit. Resoundingly, in a unanimous decision, the Supreme Court overturned the D.C. Circuit's ruling, and it used the opportunity to give guidance on the proper interpretation of the Sunshine Act. It said, among other things:

Congress in drafting the Act's definition of "meeting" recognized that the administrative process cannot be conducted entirely in the public eye. "[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 ....

U.S. NUCLEAR REGULATORY COMMlSSlON RULEMAKINGS &ADJUDICATIONS STAFF OFFICE OFlHE SECRETARY OFlllE WM~ION

. Id. at 469-70.

Your letter does not directly mention the Supreme Court's interpretation of the Sunshine Act, but instead refers obliquely to the possibility that the NRC's rule "may be consistent with some judicial interpretations of the Sunshine Act." This comment fails to give adequate recognition to the ironclad legal basis for the Commission's action. The reality is that the Commission's rulemaking has been grounded from the start in the Supreme Court's definitive guidance. 1 The r_ule itself includes a definition of "meeting" taken verbatim from the Court's opinion. The American Bar Association confirmed that the NRC's approach was consistent with Congressional intent_ and the Supreme Court's interpretation.

Your letter could be read to imply that the NRC should follow the approach of the Court of Appeals and disregard the contrary guidance of the Supreme Court. Even if we believed as a matter of policy that such a course was desirable, the NRC is not at liberty to ignore Supreme Court decisions interpreting the statutes that govern its operations. 2 As for the assertion that the NRC has failed to offer examples of the types of "non-Sunshine Act discussions" that it contemplates holding, we refer you to the section of the NRC's May 10, 1999 Federal Register notice on page 24942 that begins, "Some specific examples of the kinds of topics that might be the subject of non-Sunshine Act discussions would include .... " Nor is this the first t;me that the NRC has offered such examples. It has done so repeatedly, beginning in 1985. Indeed, the American Bar Association task force that studied the Sunshine Act quoted, 1

Though your letter describes the NRC's 198f'. rule as "NRC's ,. .... sponse" to the Philadelphia Newspapers case, it was in reality the agency's response to the ITT case .

2 It is worth noting that on the precise legal point in dispute here -- the definition of a "meeting" under the Sunshine Act -- one D.C. Circuit decision held that an agency is legally prohibited from interpreting the law more restrictively than Congress provided. In WATCH v.

FCC, 665 F.2d 1264 (D.C. Cir. 1981), the court sharply chastised an agency which had adopted a definition of "meeting" that included types of discussions that Congress had not included within the statutory scope. The court declared that the agency was "supposed to track" the statutory definition when it defined a "meeting" in its regulations. Because it had failed to do so, and instead included types of discussions not intended by Congress to fall within the statutory scope, the agency had written an "impermissibly tread" definition which could not legally be sustained.

The court said:

Indeed, we are unable to discern any reason for the breadth of the agency's definition of "meeting" -- apart from shoddy draftsmanship, perhaps. While we recognize that an agency generally is free to shoulder burdens more onerous than those specifically imposed by statute, the regulation at issue here is in excess of the Commission's rulemaking discretion under 47 U.S.C. § 154(1)

(1976). Consequently, we set it aside to the extent that its definition of "meeting" is more inclusive than the one contained in the Sunshine Act.

665 F.2d 1264, 1272.

with approval and at considerable length, the examples of possible non-Sunshine Act discussions included in a memorandum to the Commission from the then NRC General Counsel.

The February 24, 1999, memorandum from NRC Secretary Annette Vietti-Cook to the General Counsel was not, as your letter characterizes it, a promise to provide examples of non-Sunshine Act discussions to the General Counsel; rather, it was a directive that letters to Congress drafted by the General Counsel should include examples of such discussions. The implication that the Commission voted to authorize non-Sunshine Act discussions without knowing what sort of discussions it had in mind is thus incorrect.

You further state that "no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes." As long ago as 1984, the Administrative Conference of the United States, in Recommendation 84-3, was commenting that the Sunshine Act had the unintended effect of diminishing collegiality at multi-member agencies and shifting power from the collegium to the Chairman and staff. Analyses by the NRC, the American Bar Association, and the Administrative Conference all provide factual support for the proposition that there are problems associated with the Act. This topic was covered in detail in the Commission's May 10 Federal Register notice, and again briefly in the July 19 Federal Register notice.

• Your observation that "[t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions" is correct, for that is the way that Congress enacted the statute. (The May 10 Federal Register notice quoted the legal judgment of the ABA report that if a discussion "is not a 'meeting,' no announcement or procedures are required because the Act has no

• applice!:o_n.") As a matter of policy discretion, however, the NRC has decided to maintain a record of the date and subject of, and participants in any scheduled non-Sunshine Act discussion that three or more Commissioners attend for the initial six-month period of implementing the rule. This will assist the Commission in determining whether thereafter, record-keeping should be maintained, increased, or eliminated. The Commission will not discontinue this practice in the absence of notice, to the public. No final decision has been made at this time.

Our resporises to your specific questions are enclosed.

~;;~1N:~

\{?~;a"/oybicus

Enclosures:

As stated

• . with approval and at considerable length, the examples of pos*sible non-Sunshine 1ct discussions included in a memorandum to the Commission from the then NRC General Counsel.

The February 24, 1999, memorandum from NRC Secretary Annette Vietti-Cook to the General Counsel was not, as your letter characterizes it, a promise to provide examples of non-Sunshine Act discussions to the General Counsel; rather,.it was a directive that letters to Congress drafted by the General Counsel should include examples of such discussions. The implication that the Commission voted to authorize non-Sunshine Act discussions without knowing what sort of discussions it had in mind is thus incorrect.

You further state that "no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes." As long ago as 1984, the Administrative Conference of the United States, in Recommendation* 84-3, was commenting that the Sunshine Act had the unintended effect of diminishing collegiality at multi-member agencies and shifting power from the collegium to the Chairman and staff. Analyses by the NRC, the American Bar Association, and the Administrative Conference all provide factual support for the proposition that there are problems associated with the Act. This topic was covered in detail in the Commission's May 1O Federal Register notice, and again briefly in the July 19 Federal Register notice.

Your observation that "[t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions" is correct, for that is the way that Congress enacted the statute. (Tho May 10 Federal Register notice quoted the legal judgment of the ABA report that if a discussion "is not a**meeting,' no announcement or procedures are required because the Act has no application.") As a matter of policy discretion, however, the NRC has decided to maintain a record of the date and subject of, and participants in any scheduled non-Sunshine Act disc* ",sion that three or more Commissioners a~end for the initial six-month ;:-eriod of implementing the rule. This will assist the Commission in determining whether thereafter, record-keeping should be maintained, increased, or eliminated. The Commission will not discontinue this practice in the absence of notice to the public. No final decision has been made at this time.

Our responses to your specific questions are enclosed.

Sincerely,

/s/ Original signed by Greta Joy Dicus Greta Joy Dicus

Enclosure:

As stated Originating Office: OGC GJD - Approved w/edits Ref: CR-99-126 NJD - Approved w/cmt.

Commission Correspondence EXM - Approved w/edits JSM - Approved OFC OCA OCM/GJD NAME DATE OFFICIAL RECORD COPY

... ENCLOSURE 1

[7590-01-PJ NUCLEAR REGULATORY COMMISSION 10 CFR Part 9 RIN 3150 -AB94 Government in the Sunshine Act Regulations AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule: Notice of intent to implement currently effective rule; response to comments.

SUMMARY

The Nuclear Regulatory Commission, having considered the comments received on the May 10, 1999, document declaring its intent to begin implementing a final rule published and made effective in 1985, has decideci to proceed with implementation of the rule, 30 days from the date of publication of this document.

DATES: The May 21, 1985, interim rule became effective May 21, 1985. The Commission will

• begin holding non-Sunshine Act discussions no sooner than 30 days from the date of publication of this notice.

FOR FURTHER INFORMATION CONTACT- Peter Crane, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, (301) 415-1622.

SUPPLEMENTARY INFORMATION:

On May 10, 1999 (64 FR 29436), the Nuclear Regulatory Commission noticed in the Federal Register of its intention to begin implementing its regulations, promulgated in 1985, applying the Government in the Sunshine Act. The Commission provided a period for public

comment, ending June 9, 1999, and stated that no non-Sunshine Act discussions would be held before July 1, 1999, to give the Commission an opportunity to consider the comments. The Commission stated that non-Sunshine Act discussions could begin on July 1, unless it took further action. Finding that the comments do in fact warrant discussion, the Commission provides thi~ additional document that responds to the issues raised by the commenters.

During the period of its review of the comments, the Commission has not held any non-Sunshine Act discussions and has decided not to hold any suc;h discussions until, at the earliest, 30 days from the date of publication of this document.

Nine comments were received on the May 10 notice, all but one of_which expressed disapproval of the NRC's action. (The lone exception was a comment from a nuclear industry group, the Nuclear Energy Institute, which said that it endorsed the NRC's action for the reasons stated in the May 10, 1999, document.) Of the critical comments received, the most detailed came from a Member of .the United States House of Representatives, Edward J.

Markey, and from two public interest organizations, the Natural Resources Defense Council and Public Citizen. The negative comments were mostly (but as will be seen, not exclusively) along the lines that the Commission had tried to anticipate in its detailed document of May 10.

The comments were both on legal and policy grounds. The primarily legal arguments included the following:

(a) The legislative history of the Sunshine Act makes clear Congress's intent that there*

should be openness to the maximum extent practicable; .

(b) The Commission's action is thus antithetical to the letter and spirit of the Act; (c) The Supreme Court's decision in FCC v. ITT World Communications, 466 U.S. 463 (1984), involved unique circumstances and is not relevant to the issue before the NRC;

(d) The Commission disregarded such court decisions as that of the U.S. Court of Appeals for the D.C. Circuit in Philadelphia Newspapers v. NRG, 727 F.2d 1195 (1984);

(e) The criteria adopted by the Commission are too vague to be workable, inasmuch as they require the Commission to predict the course that discussions will take; and (f) The Commission's action, by providing for minimal recordkeeping, possibly to be discontinued_ after six months, will preclude meaningful judicial review.

Policy arguments included these:

(a) Even if the rule can be justified legally, it represents a retreat from openness and will diminish public confidence in the Commission; (b) The NRC has failed to show that collegiality has been impaired by the Sunshine Act; (c) The examples.of topics that the Commission has cited as examples of possible non-Sunshine Act discussions are too trivial to warrant changing a rule that has served well for 20 years; (d) The Commission failed to follow the recommendations of the American Bar Association with respect to record keeping; (e) No harm could come to the Commission's processes if general background briefings were held in open session; (f) The NRC's role as regulator of a technically complex industry calls for maximum openness;and (g) Nothing in the rule prevents the Commission from holding off-the-record discussions with representatives of the regulated industry.

ln the interest of clarity, we will address the comments in a comment-and-response format. Some comments were dealt with in sufficient detail in the May 10, 1999, document that it would serve no useful purpose to repeat here the Commission's position with regard to them.

A. Comment: One of the critical commenters quoted at length from the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Philadelphia Newspapers v. NRG, 727 F.2d 1195 (1984), in which the cqurt declared that "Government should conduct the public's business in public." The commenter opined that Congress undoubtedly intended that the Government in the Sunshine Act would guarantee public accountability on the safety of nuclear power.

Response: Undeniably, the Philadelphia Newspapers decision represented an expansive view of the Sunshine Act on the part of that panel of the D.C. Circuit. Only a few months later, however, the Supreme Court provided sharply different guidance in the first (and to date only) Government in the Sunshine Act case to reach the Court: FCC v. ITT World Communications, 466 U.S. 463 ( 1984). ITT World Communications resembled Philadelphia.

Newspapers in that it also involved an expansive interpretation of the Sunshine Act by the D.C.

Circuit. Resoundingly, in a unanimous decision, the Supreme Court overturned the D.C.

Circuit's ruling, and it used the opportunity to give guidance on the proper interpretation of the Sunshine Act. It said, among other thin.gs:

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 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.

The Commission's rulemaking has been grounded from the start in this definitive Supreme Court guidance. The rule itself includes a definition of "meeting" taken verbatim from the Court's opinion. The American Bar Association confirmed that the NRC's approach was consistent with Congressional intent and the Supreme Court's interpretation. To the extent that the commenter was urging the NRG to follow the approach of the Court of Appeals and disregard the contrary guidance of the Supreme Court, the NRG cannot agree.

• Even if the Commission believed as a matter of policy thafst.ich a course was desirable, the NRG is not at 1

liberty to ignore Supreme Court decisions interpreting the statutes that govern its operations.

B. Comment: The NRC's action, even if some legal arguments could be made for it, is contrary to the Congress's intent, documented in the legislative history, that Federal agencies were intended to practice openness to the maximum extent possible .

• 1 It is worth noting that on the precise legal point in dispute here -- the definition of a "meeting" under the Sunshine Act -- one D.C. Circuit decision held that an agency is legally prohibitedfrom interpreting the law more restrictively than Congress provided. In WATCH v.

FCC, 665 F.2d 1264 (D.C. Cir. 1981 ), the court sharply chastised an agency which had adopted a definition of "meeting" that included types of discussions that Congress had not included within the statutory scope. The court declared that the agency was "supposed to track" the statutory definition when it defined a "meeting" in its regulations. Because it had failed to do so, and instead included types of discussions not intended by Congress to fall within the statutory scope, the agency had written an "impermissibly broad" definition which could not legally be sustained. The court said: *

• Indeed, we are unable to discern any reason for the breadth of the agency's definition of "meeting" -- apart from shoddy draftsmanship, perha.ps. While we recognize that an agency generally is free to shoulder burdens more onerous than those specifically imposed by statute, the regulation at issue here is in excess of the Commission's rulemaking discretion under 47 U.S.C. § 154(1)

(1976). Consequently, we set it aside to the extent that its definition of "meeting" is more inclusive than the one contained in the Sunshine Act.

665 F.2d 1264, 1272. .

Response: Congress made a deliberate decision to limit the applicability of the Sunshine Act to "meetings." As the Supreme Court explained in detail, the definition of "meeting" was an issue to which Congress paid extremely close attention, with changes.

introduced late in the process. The bill in its final form therefore differed significantly from what some of its supporters (including its chief sponsor, the late Senator Lawton Chiles) desired. As a result, Committee reports describing earlier, more expansive versions of the legislation bills are of slight significance compared to the Supreme Court's parsing of the statute that Congress actually passed. Some commenters are in effect ask.ir:ig. the NRG to join in rewriting history so

• that the narrowing of the scope of "meetings'.' -- proposed by then-Representative Pete McCloskey, enacted over the opposition of Senator Chiles and others, and elucidated by the Supreme Court -- is made to disappear from the record. The reality, contrary to the views of some commenters, is that the Sunshine Act did not decree openness to the maximum extent practicable. Instead, it struck a balance between the public's right to know and the agencies' need to function efficiently in order to get the public's business done .

• C. Comment: A commenter asserted that the NRG had failed to offer examples of the types of "non-Sunshine Act discussions" that it contemplated holding.

Response: The commenter is in er,.or. as may be seen from the section of the NRC's May 10, 1999, document on page 24942 that begins, "Some specific examples of the kinds of topics that might be the subject of non-Sunshine Act discussions would include .... " Nor was this the first time that the NRC had offered such examples. It has done so repeatedly, beginning in 1985. Indeed, the American Bar Association task force that studied the Sunshine Act quoted, with approval and at considerable length, the examples of possible non-Sunshine Act discussions included in a memorandum to the Commission from the NRG General Counsel.

D. Comment: A commenter asserted that "no detailed analysis or s;:,ecific example has been provided of problems with the current rule or of the need for changes."

Response: The Commission disagrees with this comment. As long ago as 1984, the Administrative Conference of the United States, in Recommendation 84-3, was commenting that the Sunshine Act had had the unintended effect of diminishing collegiality at multi-member agencies and shifting power from the collegium to the Chairman and staff. Analyses by the

-- NRC, the American Bar Association, and the Administrative Conference all provide factual support for the proposition that there are problems associated with the Act. Again, this topic was covered in detail in the Commission's May 1o; 1999, document.

E. Comment: One commenter observed that "[t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions."

Response: This comment is correct, for that is the way that Congress enacted the statute. (The May 10, 1999, document quoted the legal judgment reflected in the ABA report that if a discussion "is not a 'meeting,' no announcement or procedures are required because the Act has no application.") As a matter of policy discretion, however, the NRC has decided to maintain a record of the date and subject .-f, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend, for at least the initial six-month period of implementing the rule. This will assist the Commission in determining whether thereafter, recordkeeping should be maintained, increased, or eliminated. No final decision has been made at this time. The Commission will not discontinue its practice of keeping such records without advance notice to the public.

F. Comme'lt: The NAG should make clear whether or not it intends that discussions now held as "meetings" can henceforth be held as non-Sunshine Act discussions. The Commissioners whose proposal initiated the Commission's action seem to have contemplated transforming current "meetings" into non-Sunshine Act discussions, but the Commission's May 10, 1999, document denies this intent.

Response: The May 10, 1999, document made clear that the objective is not to turn discussions now held as "meetings" into non-Sunshine Act discussions, but rather to enable the Commission to hold, as non-Sunshine Act discussions, the kind of informal, preliminary, and "big picture" discussions that currently are not held at all. As is sometimes the case, the final Commission action differed in this instance from the proposal that set the action in motion.

G. Comment: The memorandum from two Commissioners that initiated the Commission's action said that one reason to actwas that the primary opponent of the Commission's 1985 action was no longer in Congress. This suggests that the Commission's

• action was motivated by political considerations, rather than actual need.

Response: The cited memorandum did indeed include an allusion to a former Representative. Read fairly and in its total:*:y, it makes clear that the two Commissioners' proposal was motivated by concerns of good government and legal correctness, not politics. At the same time, they offered their candid view that concern about the proposal might be less intense than it had been in 1985. There was nothing inappropriate aboutmaking this observation. The Commission's decision to take action with regard to the Sunshine Act was a reflection of its longstanding efforts to increase the collegiality of the Commission process, to

ens~re:that its proced~res and practices are in conformity with current law, and to reach c_losure on outstanding items.

H. Comment: The May 1O, 1999, document is not clear as to whether there is anything in the rule that would prevent the full Commission from meeting off-the-record with representatives of a licensee or the Nuclear Energy Institute in non-Sunshine Act discussions.

Response: The commenter's point is well taken; the notice did not address this question. The Commission's intent is that non-Sunshine Act discussions would be limited to NRC or other federal agency personnel, with limited exceptions for persons (e.g.

representatives of the regulatory body of a foreign nation, or a state regulator) who would not be regulated entities or who could not be considered interested parties to Commission adjudicatory or rulemaking proceedings. The Commission is committed to implementing this intent; the non-Sunshine Act discussions will hot include discussions with representatives of

• licensees or of organizations who could be considered interested parties to NRC adjudications, rulemakings, or development of guidance.

I. Comment: The NRC's standards for determining when a discussion can be held as a non-Sunshine Act discussion is impermissilly vague, requiring "divination" on the part of the participants.

Response: The standards for determining what is a non-Sunshine Act discussion were taken verbatim from the decision of a unanimous Supreme Court. Moreover, it is not correct to say that the standard requires "divination" of what will happen in a discussion. Rather, what the rule envisions is that if a discussion begins to evolve from the preliminary exchange of views

that the Commission contemplated into something so particularized that it may "effectively 2

predetermine" agency action if it continues, the Commission will cease the discussion.

J. Comment: Because of the special sensitivity and public interest in issues of nuclear safety, the NRG should continue to apply the law more stringently than is required.

Response: That argument may have some force, but it cuts both ways. By the same token, it can be argued that the special sensitivity and public interest in issues of nuclear safety make it essential that the Commission remove barriers to efficiency and collegiality, so as to maximize the quality of Commission decision-making, and that the Congressional balance between openness and efficiency should therefore be adhered to strictly. The NRG believes that the latter interest should predominate .

.K. Coniment: Whether or not legally justifiable, the NRC's action will diminish public confidence in the Commission.

Response: The Commission was aware of this possibility at the time it issued the May 10, 1999, document, but it believes that the legal and policy reasons for its action -- compliance with the Supreme C~urt's guidance, and the expected benefits in collegiality and efficiency, make this a desirable course of action, even if -- despite the Commission's besrefforts to explain its reasoning -- some persons misunderstand or disapprove of the Commission's action.

2 Every Commissioner who meets one-on-one with an interested party to a matter before the Commission has to be prepared to cut off discussions that threaten to stray into impermissible areas, as provided, for example, by .the NRC's ex parte rules. There seems no reason why Commissioners could not equally well halt discussions among themselves that seem likely to cross the line separating non-Sunshine Act discussions from "meetings."

It is also possible that the potential enhancement of collegiality and the potential improvement in Commission decision-making that may result from non-Sunshine Act discussions will ultimately increase the public's confidence in the Commission's actions.

L. Comment: The NRC did not follow the recordkeeping recommendations of the American Bar Association.

Response: It is true that the Commission did not follow the American Bar Association's recommendations with respect to recordkeeping. However, those recommendations were prudential, not based on legal requirements. The ABA recognized that as a legal matter, if a discussion is not a "meeting," no procedural requirements apply at all. The Commission's May 10, 1999, document reflected a judgment that Congress would not have given agencies latitude to hold this type of discussion free of elaborate and burdensome procedures if it had not viewed such procedures as undesirable. Nonetheless, as described in the response to Comment E above, the Commission has decided to maintain a record of the date, participants in, and subject matter of all non-Sunshine Act discussions for at least the first six months in which the rule is implemented, and it will not discontinue the practice thereafter without advance notice to the public.*

M. Comment: No harm could result from holding briefings in public session, and doing so would benefit public understanding.

Response: On this point, arguments can go either way. At the time that the Commission first put its Sunshine Act rules into place, it acknowledged that briefings might be I

exempt from the Sunshine Act's scope, but said that the Commission 'did so much *of its

important work in briefings that as a policy matter, it believed these should be open to the public. This argument is not insubstantial.~ In part for that reason, the Commission. affirms once again what it said in its May 10, 1999, document and earlier in this present document, namely, that its objective is not to turn discussions now held as "meetings" into non-Sunshine Act discussions. Rather, the intent is to ensure that the Commission is not categorically required to apply the Sunshine Act's procedural requirements to every briefing, including such things as routine status updates, where the benefit to the public would be small compared to the

• . administrative burden and loss of efficiency in doing day-to-day business.

In sum, the NRG believes, based on its review of the comments received on the May 10, 1999, document, that the general approach taken by the Commission in that notice remains a desirable course of action. Accordingly, the NRG intends to implement its 1985 Sunshine Act rules and to begin holding non-Sunshine Act discussions, subject to the conditions outlined in the May 10, 1999, document, and as further clarified in the present document, 30 days from the

• date of this notice.

For the Nuclear Regulatory Commission

, - ~ -... I i . -;-* . - ( -~

~ "' _.,_<......, ...._~ \J. ~ '----<.:

Annette Vietti-Cook, Secretary of the Commission,

_-n...._

Dated at Rockville, Maryland, this~ l day of July, 1999.

ENCLOSURE 2

. . ~

QUESTION 1. In a May 21, 1985 he,aring before the House Subcommittee on Energy Conservation and Power it was testified that more than one-third of Commission meetings were closed under exemptions to the Sunshine Act. For each of the last five years, what percentage of meetings of a majority of the Commission were not open to the public? How many meetings were closed under each exception?

ANSWER The answer to this question depends in part on the method of tabulation used, since a single Commission meeting may include several agenda items, some of which are held in open session, while others.are closed under one or more Sunshine Act exemptions.* The clearest indication, therefore, of how frequently the NRC closes its discussions under the Sunshine Act is to tabulate each agenda item as a separate meeting. The data for the last five years follow. It wjlJ be noted that, in the interest of openness, the NRC continued to follow Sunshine Act

- procedures even at those times when vacancies*had reduced the Commission's membership to two.

A. 1994: 92 meetings, 72 open (78%), 2o*cIosed (22%). Of the 20 closed sessions, Exemption 1 was invoked three times; Exemption 9 twice; Exemptions 1 and 3 once; Exemptions 2 and 6 six times; Exemptions 2 and 9 once; Exemptions 5 and 7 four times; and Exemptions 2, 6, and 9 three times.

B. 1995: 52 meetings, 44 open (85%), 8 closed (15%). Of the 8 closed sessions, Exemption 1 was invoked four times; Exemptions 2 and 6 twice; Exemptions 5 and 7 once, and Exemptions 2, 6, and 9(b) once.

C. 19~6: 70 meetings, 59 open (84%}, 11 closed (16%). Of the 11 closed sessions, Exemption 1 was invoked 6 times; Exemption 2 three times; Exemptions 2 and 6 once; and Exemption 9 once .

D. 1997: 83 meetings, 69 open (83%), 14 closed (17%). Of the 14 closed sessions, Exemption 1 was invoked seven times; Exemption 2 twice; Exemptions 5 and 7 four times; and Exemption 9 once.

E. 1998: 62 meetings, 49 open (79%), 13 closed (21%). Of the 13 closed sessions, Exemption 1 was invoked 6 times; Exemption 2 was invoked twice; Exemptions 5 and 7 four times; and Exemption 9 once.

F. 1999 (January 1 through May 31): 49 meetings, 37 open (76%), 12 closed (24%). Of the 12 closed sessions, Exemption 1 was invoked three times; Exemptions 1, 4, and 9(b) once; 1

Exemptions 2, 5, and 7 twice; Exemptions 2 and 6 once; Exemptions 5 and 7 twice; and Exemption 9(b) three times.

In addition, the NRC's annual Sunshine Act reports to the Congress for 1994 through 1998 are attached (Attachment 1).

QUESTION 2. The recent Commission vote on implementing the rule was based o.~ a November 27, .1998 memorandum from the General Counsel to the.Commission.

NRC staff informed my staff that this memo itself is secret at the request of the General Counsel. Please provide us with copies of this memo (including all attachments) as well as copies of any written request by the General Counsel for not making it public. If any of this material is not public, please justify why a justification of secrecy itself needs to be secret, and please explain how Congress and the public can evaluate the Commission's decision without knowing the basis and justification for its actions.

ANSWER The General Counsel's memorandum to which you refer was never requested to be withheld. A copy is attached (Attachment 2) .

QUESTION 3. The May 10, 1999 Federal Register Notice states that "the Commission is not proposir ;g to close any meetings currently held as open public meetfngs."

However, the 1985 rule seems to redefine some gatherings as not being "meetings." Furthermore, the December 15, 199~ memorandum from Commissioners Edward McGaffigan, Jr. and Jeffrey S. Merrifield to John C.

Hoyle, which the Commission's vote approved, states an intent to explain "what kinds of gatherings now held by the Commission will no longer be treated as

'meetings' under the new rules." What is the basis for the Federal Register statement about current public meetings? What Commission meetings over the past three years could have been excluded from the 1985 rule's definition of a "meeting"?

• ANSWER Although it was the December 15, 1998 memorandum from Commissioners McGaffigan and Merrifield that initiated the Commission's action, the documents that reflect the Commission's actual decision are the Staff Requirements Memorandum (SRM) and the Federal Register Notice based on that SRM. As is sometimes the case, the final" Commission action differed in this instance from the proposal that set the action in motion. As the Federal Register notice 11'.lade clear, the objective is not to tum discussions now held as "meetings" into non-Sunshine Act discussions, but rather to enable the Commission to hold, as non-Sunshine Act discussions, the kind of informal, preliminary, and "big picture" discussions that currently are not held at all.

We are unaware of any "meetings" during the past three years that would qualify as non-Sunshine Act discussions under the 1985 rule.

To make clear, the 1985 rule did indeed reclassify, as non-"meetings", types of discussions --

e.g., informal, preliminary discussions by three or more Commissioners -- that would previously have bc-::n considered "meetings under the Commission's restrictive and erroneous interpretation of "meeting" prior to the Supreme Court's decision in ITT." It did so, however, to make it possible for the Commission to begin holding such discussions, not because such .

discussions were already occurring as Sunshine Act meetings .

QUESTION 4. The memo on which the Commission voted sta_ted that "the agency Y'ill maintain

• a record of the date and subject of, and participants in, all non-Sunshine Act

. informal gatherings of a quorum of the Commission." The May 10 Federal Register Notice applies this only to scheduled discussions and for the first six months. The NRC press release No. 99-39 deletes "scheduled," but does include the six month limit. Please state clearly what records will be maintained of non-Sunshine Act discussions, and justify any difference from the Commission's votes. If the record-keeping will indeed by evaluated after six months, on what basis will "the usefulness of the record-keeping practice" be decided?

ANSWER The use of the word "scheduled" was intended to permit the occasional brief, spontaneous discussion*-- e.g., three Commissioners riding the same elevator -- that does not rise to the level to justify memorialization.

As stated in the May 10 Federal Register notice, 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.

With regard to your question as to the basis for the NRC's evaluation of record-keeping after six months, the Commission will consider the totality of the circumstances, including both its own perceptions and ,those of persons who follow the NRC's activities. The Commission committed in the July Federal Register notice not to discontinue this record keeping in the absence of advanced notice to the public.

(.

QUESTION 5. The memo on which the Commission voted cites as a reason for th~ timeliness of, the rule change that "the main Congressional opponent of the 1985 *interim rule is no longer in Congress." Does the memo's apparent reference to the departure of our former colleague, Representative Dennis Eckart, suggest that the decision to revive this long dormant proposed rule was essentially political in nature and not based upon a compelling evidentiary record indicating the need for such a change in NRC procedures? What other NRC rule changes since 1985 have been based in whole or in part on the then current membership of Congress?

ANSWER The December 15, 1998, memorandum from Commissioners McGaffigan and Merrifield did indeed include an incidental allusion to former Representative Eckart. That memorandum, read in its totality, makes clear that the two Commissioners' proposal was motivated by concerns of good government and legal correctness, not politics. At the same time, they offered their candid view that concern about the proposal might be less intense than it had been in 1985. There was nothing inappropriate ab~ut making such an observation.

The Commission's decision to take action with regard to the Sunshine Act was a reflection of its longstanding efforts to increase the collegiality of the Commission process, to ensure that its procedures and practices are in conformity with current law, and to reach closure on outstanding items in this case, implementation of a rule that had been on the books for more than 14 years.

We are aware of no NRC rule changes since 1985 t.hat have been "based in whole or in part on the then current membership of Congress."

QUESTION 6. Under the 1985 rule could the full Commission invite representative~ of a

• licensee or of the Nuclear Energy Institute (NEI) for a general discussion about how easing government regulations could assist the nuclear power industry, and do so without public notice, without public participation, without transcript, tape, or minutes, and, if the meeting were next year, without any record that the meeting ever took place? If not, please explain what provision of the revised rule would prevent such a meeting. If unplanned discussion of specifi~ proposals for changing NRC regulations took place at such a meeting, would it then violate the 1985 rule? If improper negotiations about NRC regulations took place at such a meeting, how could the public ever find out?

• ANSWER

• The point made in question 6 is well taken, in that the May 10, 1999 notice is not clear as to whether discussions of the kind you posit -- i.e., the full Commission meeting off the record with representatives of a licensee or the Nuclear Energy Institute -- could take place as non-Sunshine Act discussions. -

The Commission's contemplation throughout has been that non-Sunshine Act discussions generally would be limited to NRC or other federal agency personnel, with limited exceptions, e.g., representatives of the regulatory body of a foreign nation, or a state regulator.

In the July Federal Register notice, the Commission committed not to hold any non-Sunshine discussions with representatives of licensees or of organizations who could be considered interested parties to NRC adjudications, rulemaking, or development of guidance .

QUESTION 7. On a related openness issue: a May ;3, 1999 letterfrom Alex Mario11iof the NEI to Ledyard B. Marsh of the NRC, recently released by Public Citizen, thanks the NRC for giving NEI the opportunity to comment on a draft NRC policy document, which has not been publicly released. Is it NRC policy to allow industry representatives to help draft NRC documents that are not available for public comment? How many draft SECY papers or other draft NRC policy documents that were not publicly available were given to industry representatives in the last five years (other than documents that were secret for security reasons)?

ANSWER It is not NRC policy to allow industry representatives to help draft NRC documents. We do, however, actively solicit feedback on our documents from the public. We are not aware of any draft SECY papers, which are NRC policy documents, that were given to industry representatives during the last five years that were not publicly available.

The letter that you cite makes specific reference to SECY-99-143, "Revisions to Generic Communications Program." The NRC held a public meeting on July 17, 1998, to receive and discuss stakeholder concerns in the Generic Communication area. Following receipt of input from NEI after that meeting, the staff developed a draft of the SECY in question. This draft was initially discussed at a public meeting with the ACRS on April 7, 1999.

In preparation for a subsequent public meeting on the generic communications process to be held on April 22, 1999, between the NRC and NEI, the staff forwarded a draft version of SECY-99-143 to NEI and also made the draft SECY paper available in the Public Document Room (PDR). The staff verified that the draft SECY document was in fact available in the PDR on April 7, 1999. At the April 22 meeting, the staff discussed the proposed improvements to the generl ... commur,ications program, made copies o*; the draft SECY paper availa;.,,e to all who attended, and solicited comments from those who attended.

While the document was being placed in the PDR at the same time that it was made available to NEI, we recognize that as a practical matter, few members of the public would have been aware of its existence until the April 22 meeting. To address that problem, we are adding new web pages to our website to ensure that the NRC gives public notice of the availability of documents as soon as they are placed in the PDR. It was not the intention of the NRC to give preferential treatment to NEI in this case; nevertheless, we can understand why members of the public who did not receive the document until April 22 might have gained that impression. With the creation of these new web pages, we believe that we can avoid similar problems in the future. (Our Office of Public Affairs will be issuing a press release to provide the public with web addresses for these pages.) The NRC will continue to ensure that no licensee, industry group, or any other special interest group will have a preferential opportunity to review and affect the contents of agency decision-making documents such as SECY papers.

The NRC will continue its practice of providing information to interested stakeholders, including both members of the public and members of the regulated 'industry, so that they can effectively participate in the regulatory processes. The NRC will continue to ensure that the broadest

• spectrum of individuals can obtain or have access to information that is the subject of regulatory reform, policy, or practice.

ATTACHMENT 1 UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20556--0001 March 5, 1999 The Honorable Albert Gore, Jr.

President of the United States Senate Washington, D.C. 20510

Dear Mr. President:

In accordance with Public Laws 94~409 and 1.04-66 (5 U.S.C. 552bU)), I am enclosing the U.S. Nuclear Regulatory Commission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1998.

Sincerely, Shirley Anri Jackson

Enclosure:

As stated

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555--0001 March 5, 1999 The Honorable J. Dennis Hastert Speaker of the United States House of Representatives Washington; D.C. 20515

Dear Mr. *Speaker:

In accordance with Public Laws94-409 and 104-66 (5 U.S.C. 552bG)), I am enclosing

• the U.S. Nuclear Regulatory Commission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1998.

Sincerely, I1/2~~

Shirley Ann Jackson

Enclosure:

As stated

ANNUAL REPORT GOVERNMENT IN THE SUNSHINE ACT

. 1. AGENCY NAME: U.S. Nuclear Regulatory Commission

2. CALENDAR YEAR: 1998

3. The NRC made no changes in its policies and procedures related to the Government in the Sunshine Act during 1998.

4. MEETINGS: (See definitions in Appendix A)

(January 1, 1998 through December 31, 1998)

A. Total Number of Open . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 49 (79%)

B. Total Number of Closed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 (21 %)

C. Total Number_of Partially Open/Closed. . . . . . . . . . . . . . . . . . . . . . . 0 (0%)

Total Number of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 The above meetings are counted by the number of separate agenda topics discussed as described in Appendix A. Appendix B contains a tabulation of open and closed meetings per month for CY 1998. Throughout this report, meeting numbers quoted are counts of individual items.

5. EXEMPTIONS USED FOR CLOSING OR PARTIALLY CLOSING MEETINGS:

• (Number of Times Used)

A. Exemption 1 .................................... _........

Exemption 5 & 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 4

Exemption 2 . . . . . . . ......................... ,* . . . . . . . . . . . 2 Exemption 9 . . . . ....................... ,. . . . . . . . . . . . . . . . . 1 Total .... * ... -. .................................... 13

6. DESCRIPTION OF LITIGATION AND FORMAL COMPLAINTS:

There were no Government in the Sunshine Act cases involving NRC filed or otherwise in litigation during 1998. There were no formal complaints filed in 1998 related to closed Commission meetings and no requests to open a closed Commission meeting were received.

7.

• ADDITIONAL INFORMATION:

This report was prepared in the Office *of the Secretary, U.S. Nuclear Regulatory Commission. Comments or inquiries on this report or related matters should be addressed to:

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone inquiries can be made to the Office of the Secretary by dialing (301) 415-1968.

Af>PENDICES:

A. Definition of Meetings B. Tabulation.of Open and Closed Meetings by Month C. Tabulation of Meetings by Days' Notice ATTACHMENT:

• A. STAFF REQUIREMENTS - COMEXM-98-006/COMJSM-98-001 - SUNSHINE ACT PRACTICES .

APPENDIX A Definition of Meeting NRC's Statutory Meeting- Requirement The Nuclear Regulatory Commission is a five-member independent regulatory commission established by the Energy Reorganization Act of 1974 (P.L.93-408). It is responsible for ensuring the protection of the public health and safety through the licensing and regulation of the uses of nuclear materials. Section 201(a)(1) of the Energy Reorganization Act, 42 U.S.C.

5841 {a)(1), provides that "[a]ction of the Commission shall be determined by a majority vote of the members present." In order to conduct meetings under the Government in the Sunshine Act, a quorum must be present. * *

• Meetings Defined by Sunshine Act Under NRG regulations, revised in 1985, a "meeting" is defined as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or .to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by§§ 9.105, 9.106, or 9.108(c) do not constitute 'meetings' within this definition." (10 CFR Section 9.101(c) ofNRC's Sunshine Regulations) Although this definition would properly allow some discussions among three or more Commissioners to be held in a non-public setting, the Commission had not implemented this regulation through CY 1998. For CY 1999, the Commission has asked the NRG Office of General Counsel to prepare a notice of intent to implement this Sunshine Act rule which was issued and made effective in 1985. See Attachment A.

For the purpose of tabulating meetings in this report, NRG follows the practice of the Commission for scheduling topics for Commission discussions. Generally one agenda item is scheduled for each discussion or briefing session. Accordingly, each session is counted as a separate meeting unde~ the NRG method of tabulating meetings in this report even if several discussions or briefings occur on the same day. Appendix B includes counts of meeting statistics reported using the above definition and methods.

APPEND!~ B TABULATION OF OPEN AND CLOSED MEETINGS BY MONTH CY 1998 Open Closed Open/Closed Total Jan 2 1 0 3 Feb 2 1 0 3 Mar 4 3 0 7

• Apr .

May 6

2 1

2 0

0 7

4 Jun 9 1 0 10 Jul 5 0 0 5 Aug 5 1 0 6

• Sep Oct 7

1 2

0 0 0 9 1

Nov 4 1 0 5 Dec 2 0 0 2 Year to Date 49 13 0 62

APPENDIX C TABULATION OF MEETINGS BY DAYS' NOTICE January 1, 1998 - December 31, 1998 DAYS' NOTICE OPEN CLOSED OPEN/CLOSED TOTAL 12 or more 32 9 0 41

• 11 0 0 0 0 10 0 0 0 0 9 0 1 0 1 8 0 0 0 0 7 __§ _Q Q __§ Subtotal 38 10 0 48 6 0 0 0 0 5 1 0 0 1 4 1 0 0 1 3 0 1 0 1 2 0 0 0 0 1 0 0 0 0 Less than 1 ~ _g Q 11 Subtotal 11 3 0 14

• GRAND TOTAL 49 13 _Q 62

... Attachment A UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON. D.C 20555-0001 February 24, 1999 MEMORANDUM TO: Commissioner McGaffigan Commissioner Merrifield FROM: Annette L. Vietti-Cook

SUBJECT:

COMEXM-98-006/COMJSM-98-001 - SUNSHINE ACT .

PRACTICES This memorandum is to inform you that the Commission has agreed to your proposal to move toward practice consistent with the 1985 Federal Register notice and the rules, 10 CFR 9.101 (c) in particular, that embody the analysis in that notice. and has requested the General Counsel to prepare a notice of the Commission's intent to implement the rule which considers the American Bar Association study results and the public comments on the rule. See memorandum attached.

This completes action on COMEXM-98-006/COMJSM-98-001.

Attachment:

As stated

• cc: Chairman Jackson Commissioner Dicus Commissioner Diaz EDO OGC

UNITED STATES NUCLEAR REGU.LATORY COMMISSION WASHINGTON D.C 20555-0001 February 24, l 999 MEMORANDUM FOR: Karen D. Cyr General Counsel FROM: Annette L. Vietti-Cook, Secretary

SUBJECT:

STAFF REQUIREMENTS - COMEXM-98-006/COMJSM-98_;001 -

SUNSHINE ACT PRACTICES

• The Commission has considered your memorandum on-November 27, 1998, SUNSHINE ACT PRACTICES, and has agreed to move toward a practice consistent with the 1985 Federal Register notice and the rules. 10 CFR 9.101 (c) in particular, that embody the analysis in that notice.

Therefore, consistent with your recommendation. the Commission requests that you prepare. no later than 30 days after issuance of this SRM, a notir.e of the Commission's intent to implement the Sunshine Act rule which was issued and made effective in 1985. The notice should consider and discuss the American Bar Association study results and the public comments on the 1985 a

rule and should provide short period (e.g .. 30 days) for additional public comments before the Commissin'1 would implement the rule.

_(OGC) (SECY Suspense: 3/26/99)

In addition, the staff should prepare letters 'to Congress to be sent before the Commission implements the rule. The letters to Congress should include the notice of the Commission's intent to implement the rule that is proposed to be issued for public comment and should explain, with concrete examples, the kinds of non-Sunshine Act discussions that will be held by the Commission when it implements the rule. The letters should also state that, for the first six month period in which the Commission implements the rule, the agency will maintain a record of the date and subject of, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend. After the six-month period, the Commission will revisit the usefulness of the record keeping practice.

It is not the Commission's intention to treat any public meetings currently being held under the Internal Commission Procedures as non-Sunshine Act discussions. Examples of the types of discussions sought to be held include, but are not limited to, generalized "big picture"

• discussions; preliminary, exploratory discussions that generate ideas (these ideas, if followed up with specific proposals, would become the subject of later "meetings" within the meaning of the Sunshine Act); spontaneous, casual discussions of matters of mutual interest; briefings in which the Commissioners are provided information but do not themselves deliberate on any proposal for action; discussions of business-related matters not linked to any particular proposal for Commission action; and discussions to enhance the dfectiveness of intercommunications between and among Commissioners and their officP~

cc: Chairman Jackson Commissioner Dicus

• Commissioner Diaz Commissioner McGaffigan Commissioner Merrifield EDO OCA OPA CFO CIO

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20556--0001 February 25, 1998 The Honorable Albert Gore, Jr.

President of the United States Senate Washington, D.C. 20510

Dear Mr. President:

In accordance with Public Laws94-409 and 104..S6 (5 U.S.C. 552b0)), I am enclosing the Nuclear Regulatory Commission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1997.

Sincerely, Shirley Ann Jackson

Enclosure:

As stated

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, i>.C. 20555 0001 February 25, 1998 The Honorable Newt Gingrich Speaker of the United States House of Representatives Washington, D.C. 20515 Dear Mr. *speaker.

• .In accordance with Public Laws94-409 and 104-66 {5 U.S.C. 552b0)), I am enclosing the Nuclear Regulatory Cpmmission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1997.

Sincerely, Shirley Ann Jackson

Enclosure:

As stated

ANNUAL REPORT GOVERNMENT IN THE SUNSHINE ACT

1. AGENCY NAME: U.S. Nuclear Regulatory Commission

2. CALENDAR YEAR: 19 9 7

3. The NRC made no changes in its policies and procedures related to the Government in the Sunshine Act during 1997.

4. MEETINGS: {See definitions in ~ppendix A)

{January 1, 1997 through December 31, 1997)

A. Total Number of Open ...............* *........... 69 {83%-)

B. Total Number of Closed . . . . . . . . . . . . . . . . . . . . . . . . 14 {1 7 %)

C. Total Number of Partially Open/Closed ........ . 0 {0%)

Total Number of Meetings .................. 83 The above meetings are counted by the number of separate agenda topics discussed as described in Appendix A. Appendix B contains a tabulation of open and closed meetings per month for CY 1997.

Throus:_out this report, meeting numl:.ars quoted are counts of individual items .

• 5. EXEMPTIONS USED FOR CLOSING OR PARTIALLY CLOSING MEETINGS:

{Number of Times Used)

A. _Exemption 1 Exemption 5 & 7 .****.**..*..*****.**.*.****..****.

7 4

Exemption 2 2 Exemption 9 ............................. ....... - . ~ 1 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

6. DESCRIPTION OF LITIGATION AND FORMAL COMPLAINTS:

There were no Government in the Sunshine Act cases involving NRC filed or otherwise in litigation during 1997. There were no formal complaints filed in 1997 related to closed commission meetings and no requests to open a closed Commission meeting were received.

7. ADPITIONAL INFORMATION:

This report was prepared in the Office of the Secretary, U.S. Nuclear Regulatory Commission. Comments or inquiries on this report or related matters should be addressed to:

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone inquiries can be made to the Office of the Secretary by dialing (301) 415-1968.

APPENDICES:

A. Definition of Meetings B. T-hulation of Open and Closed Meetings by Month C. Tabulation of Meetings by Days' Notice

APPEND_IX

• q A

Definition* of Meeting NRC's statutory Meeting Requirement

• The Nuclear Regulatory Commission is a five-member independent regulatory commission established by the Energy Reorganization Act of 1974 (P.L.93-408). It is responsible for en~uring the protection of the public health and safety through the licensing and regulation of the uses of nuclear materials. Section 20_1 (a) (1) of the Energy Reorganization Act, 42 u.s.c. 584 (a) (1), provides that "action of the Commission shall be taken by a majority vote of members present." In order to conduct meetings under the Government in the Sunshine Act, a quorum must be present.

Meetings Defined QY sunshine Act Under NRC regulations, revised in 1985, a "meeting" is defined as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in 'the joint conduct or disposition of official Commission business; that is, where discussions are sufficiently focused on discrete proposals or. issues as t_o cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by Secs.

9.105, 9.106, or 9.108(c) do not constitute 'meetings' within this

• definition." (10 CFR Section'9.10l(c) of NRC's Sunshine Regulations)

Although this definition would allow some deliberations to be held in a non-public setting, the Commission has chosen to treat all discussions of agency business by a quorum of Commissioners as "meetings" for Sunshine Act purposes*.

-For the purpose of tabulating meetings in this report, NRC follows the practice of the Commission for scheduling topics for. Commission discussions. Generally one agenda item is scheduled for each discussion or briefing session. Accordingly, each session is counted as a separate meeting under the NRC method of tabulating meetings in this report even if several discussions or briefings occur on the same day. Appendix B includes counts of meeting statistics reported using the above definition and methods.

APPENPJ!*iX B TABULATION OF OPEN AND CLOSED MEETINGS BY MONTH CY 1997 closed o_pen/closed Total Jan 9 2 0 11 Feb 7 2 0 9 Mar 4 2 0 6

• Apr 5 0 0 5 May 14 2 0 16 Jun 5 1 0 6 Jul 0 0 0 0 Aug 5 2 0 7

• Sep Oct 5

7 0

0 0

0 5

7 Nov 3 2 0 5 Dec 5 1 0 6 Year to Date 69 14 0 83

APPENDIXC i:1 TABULATION OF MEETINGS BY DAvs* NOTICE January 1, 1997 ,. December 31, 1997 PAYS' NOTICE OPEN CLOSED OPEN/CLOSED TOTAL 12 or more 52 8 0 60 11 0 0 0 0 10 0 1 0 1 9 0 0 0 0 8 0 0 0 0 7 _g_ .l. .Q. 1.

_Subtotal 58 10 0 68 6 1 2 0 3 5 2 0 0 2 4 0 1 0 1

~ 1 0 0 1 2 0 0 0 0 1 0 0 0 0

. e s s than 1 1 .l. .Q. .a Subtotal 11 4 0 15 GRAND TOTAL ~ li .Q. ..al

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555--0001 February 11, 19,97 The Honorable Albert Gore, Jr.

President of the United States Senate Washington, D.C. 20510

Dear Mr. President:

In accordance with Public Laws .94-409 and 104-66 (5 U.S.C. 552b(j)), I am enclosing the Nuclear Regulatory Commission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1996.

Sincerely, J~~~

Shirley Ann Jackson

Enclosure:

As stated

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20556--0001 1,i February 11, 1997 The Honorable Newt Gingrich Speaker of the United States House of Representatives Washington, D.C. 20515

Dear Mr. Speaker:

In accordance with Public Laws94-409 and 104-66

• (5 U.S.C. 552b(j)), I am enclosing the Nuclear Regulatory Commission's Annual Report of the Administration of the Government in the Sunshine Act for Calendar Year 1996.

Sincerely,

-1~7 tf~;;~~

Shirley Ann Jackson

Enclosure:

As stated

ANNUAL REPORT GOVERNMENT IN THE SUNSHINE ACT

1. AGENCY NAME: U.S. Nuclear Regulatory Commission

2. CALENDAR YEAR: 1996

3. The NRC made no changes in its policies and procedures related to the Government in the Sunshine Act during 1996.

4. MEETINGS: (See definitions in Appendix A)

(February 15, 1996 through December 31, 1996)

A. Total Number of Open . ......................... 59 (84%)

B. Total Number of Closed . ........................ 11 (16%)

• C. Total Number of Partially Open/Closed . ........

Total Number of Meetings . . . . . . . . . . . . . . . . . .

The above meetings are counted by the number of separate agenda topics discussed as described in Appendix A, The same 0

70 1

( 0%)

number of topics counted by the method used by Common Cause results in the following n~mber of meetings (see definitions in the Appendix):

D. Total Sessions Open . ... ............... - .......

• 49 (81%)

E. Total Sessions Closed . ......................... 7 ( 12%)

F. Total Sessions Partially Open/Closed . ......... 4 ( 7%)

• Total Number of Sessions ..................

Appendix B contains a tabulation of open and closed meetings per month by CY 1996, using both the Nuclear Regulatory Commission (NRC) and the Common Cause (CC) methods of counting. Throughout this report, meeting numbers quoted are 60 counts of individual items.

~The NRC requires a quorum of three members to conduct meetings under the Government in the Sunshine Act. On July 1, 1995, membership on the Nuclear Regulatory Commission dropped to two and remained there uritil February 15, 1996 when Greta Joy Dicus was sworn in as a third Commissioner. Accordingly all public discussions and briefings of the two Commissioners between January 1, 1996 and February 14, 1996 have not been counted as Commission meetings. During this period the Commission held 5 public sessions that were announced to the public in the same manner in which they would have been announced had there been a quorum.

5. EXEMPTIONS USED FOR CLOSING OR PARTIALLY CLOSING MEETINGS:

(Number of Times Used)

A. Exemption 1 . . . . . . . . . . . . . . . . . .... . . . . . . . . . . . . . . . . . . 6 Exemptions 2 & 6 . . . . . . . . . . . . .... . . . . . . . . . . . . . . . . . . 1 Exemption 2 . . . . . . . . . . . . . . . . . .... . . . . . . . . . . . . . . . . . . 3 Exemption 9 . . . . . . . . . . . . . . . . . .... . . . . . . . . . . . . . . . . . . 1 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

6. DESCRIPTION OF LITIGATION AND FORMAL COMPLAINTS:

There were no Government in the Sunshine Act cases involving NRC filed or otherwise in litigation during 1996. There were

• 7.

no formal complaints filed in 1996 related to closed Commission meetings and no requests to open a closed Commission meeting were received.

ADDITIONAL INFORMATION:

This report was prepared in the Office of the Secretary, U.S.

Nuclear Regulatory Commission. Comments or inquiries on this report or related matters should be addressed to:

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone inquiries can be made to the Office of the Secretary by dialing (301) 415-1968 .

APPENDICES:

A. Definition of Meetings B. Tabulation of Open and Closed Meetings by Month C. Tabulation of Meetings by Days' Notice

APPENDIX A Definition of Meeting NRC's Statutory Meeting Requirement The Nuclear Regulatory Commission is a five-member independent regulatory commission established by the Energy Reorganization Act of 1974 (P.L.93-408). It is responsible for ensuring the protection of the public health and safety through the licensing and regulation of the uses of nuclear materials. Section 201(a) (1) of the Energy Reorganization Act, 42 U.S.C. 5841

{a) (1), provides that "action of the Commissioil' shall be determined by a majority vote of the members present." In order to conduct meetings under the Government in* the Sunshine Act, a quorum of three members must be present.

Meetings Defined by Sunshine Act

• Under NRC regulations, revised in 1985, a "meeting" is defined as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form re:-?.sonably firm positions regarding matters pending or likely to arise before the agency.

Deliberations required or permitted by Secs. 9.105, 9.106, or 9.l0B(c) do not constitute 'meetings' within this definition."

(10 CFR Section 9.l0l(c) of NRC's Sunshine Regulations) Although this definition would allow some deliberations ~o be held in a non-public setting, the Commission has chosen to treat all discussions of agency business by a quorum of Commissioners as "meetings" for Sunshine Act purposes.

For the purpose of tabulating meetings in this report, NRC follows the practice of the Commission for scheduling topics for Commission discussions. Generally one agenda item is scheduled for each discussion or briefing session. Accordingly, each session is counted as a separate meeting under the NRC method of tabulating meetings in this report even if several discussions or briefings occur on the same day.

Appendix B includes counts of meeting statistics reported using the above definition and methods, and also using the "Common Cause" method. The latter method counts all meetings held during the morning or afternoon on the same day as a single meeting, whether that meeting lasts one hour or half a day and irrespective of the number of agenda items considered. Both methods are reported here to allow comparisons of statistics by those who use the Common Cause method.

APPENDIX B TABULATION OF OPEN AND CLOSED MEETINGS BY MONTH CY 1996 Open Closed Open/Closed Total Jan (NRC) O* 0 0 0 (CC) 0 0 0 0 Feb (NRC) 8 0 0 8 (CC) 7 0 0 7 Mar (NRC) 5 0 0 5 (CC) 4 0 0 4 Apr (NRC) 3 0 0 3 (CC) 3 0 0 3 May (NRC) 8 1 0 9 (CC) 8 1 0 9 Jun (NRC) 6 1 0 7 (CC) 5 1 0 6 Jul (NRC) 6 0 0 6 (CC) 6 0 0 6 Aug (NRC) 5 1 0 6

'.'.:C) 5 0 6 Sep (NRC) 1 2 0 3 (CC) 1 2 0 3 Oct (NRC) 9 3 0 12 (CC) 6 1 2 9 Nov (NRC) 5 3 0 8 (CC) 2 1 2 5 Dec (NRC) 3 G 0 3 (CC) 2 0 0 2 Year to Date (NRC) 59 11 0 70 (CC) 49 4 60

• During ~he January 1 - February 14, 1996 period a quorum of Commissioners did not exist. During this period 5 public briefings of the Commission were held.

11 CC 11 - Common Cause method of counting.

I

~-*

APPENDIX C TABULATION OF MEETINGS BY DAYS' NOTICE February 15, 1996 - December 31, 1996 DAYS' NOTICE OPEN CLOSED OPEN/CLOSED TOTAL 12 or more 43 6 0 . 49 11 0 0 0 0 10 0 0 0 0 9 3 0 0 3 8 2 1 0 3 7 J. .l Q .1 Subtotal 51 8 0 59

• 4 3

2 1

6 5

0 0

0 1

0 1

0 0

0 0

0 0

0 0

0 0

0 0

0 0

0 1

0 1

Less than 1 Q J. _Q_ ~

Subtotal 8 3 0 11 GRAND TOTAL 59 11 Q I ]_Q

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555---0001 March 25, 1996 The Honorable Albert Gore, Jr.

President of the United States Senate Washington, D.C. 20510

Dear Mr. President:

In accordance with Public Laws94-409 and 104-66

• (5 U.S.C. 552b(j)), I am enclosing the Nuclear Regulatory Commission's Annual Report on the administration of the Government in the Sunshine Act for Calendar Year 1995.

Sincerely, Shirley Ann Jackson

Enclosure:

As stated

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 i.j March 25, 1996 The Honorable Newt Gingrich Speaker of the United States

-House of Representatives Washington, D.C. 20515

Dear Mr. Speaker:

In accordance with Public Laws94-409 and 104-66

• (5 U.S.C. 552b(j)), I am enclosing the Nuclear Regulatory Commission's Annual Report on the administration of the Government in the Sunshine Act for Calendar Year 1995.

Sincerely, Shirley Ann Jackson

Enclosure:

As stated

ANNUAL REPORT GOVERNMENT IN THE SUNSHINE ACT

1. AGENCY NAME: U.S. Nuclear Regulatory Commission

2. CALENDAR YEAR: 1995

3. The NRC made no changes in its policies and procedures related to the Government in the Sunshine Act during 1995.

4. MEETINGS: (See definitions in Appendix A)

(January 1, 1995 through June 30, 1995)

A. Total Number of Open .......................... 44 (85%)

B. Total Number of Closed ........................ 8 (15%)

C. Total Number of Partially Open/Closed ......... 0 (0%)

• Total Number of Meeting's* . . . . . . . . . . . . . . . . . .

The above meetings are counted by the number of separate agenda topics discussed as described in Appendix A. The same number of topics counted by the method used by Common Cause 52 1 results in the following number of meetings (see definitions in the Appendix):

D. Total Sessions Open . .......................... 33 (80%)

E. Total Sessions Closed . ........................ 6 ( 15%)

F. Total Sessions Partially Open/Closed . ......... 2 (5%)

• Total Number of Sessions ..................

Appendix B contains a tabulation of open and closed meetings per month by CY 1995, using both the Nuclear Regulatory Commission (NRC) and the Common Cause (CC) methods of counting. Throughout this report, meeting numbers quoted are 41 counts of individual items.

1 The NRC requires a quorum of three members to conduct meetings under the. Government in the Sunshine Act. On July 1, 1995, membership on the Nuclear Regulatory Commission dropped to two and remained there through the end of the year. Accordingly all public discussions and briefings o'f the two Commissioners between July 1, 1995 and December 31, 1995 have not been counted as Commission meetings. During this period, the Commission held 30 public sessions that were announced to the public in the same manner in which they would .have been announced had there been a quorum.

- 2 -

5. EXEMPTIONS USED FOR CLOSING OR PARTIALLY CLOSING MEETINGS:

(Number of Times Used)

A. Exemption 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Exemptions 2 & 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Exemptions 5 & 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Exemptions 2, 6 & 9B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

6. DESCRIPTION OF LITIGATION AND FORMAL COMPLAINTS:

There were no Government in the Sunshine Act cases involving NRC filed or otherwise in litigation during 1995. There were no formal complaints filed in 1995 related to closed

• 7.

Commission meetings and no reque.sts to open a closed Commission meeting were received.

ADDITIONAL INFORMATION:

This report was prepared in the Office of the Secretary, U.S.

Nuclear Regulatory Commission. Comments or inquiries on this report or related matters should be addressed to:

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone inquiries can be made to the Office of the Secretary by dialing (301) 415-1963 .

APPENDICES:

A. Definition of Me~tings.

B. Tabulation of Open and Closed Meetings by Month C. Tabulation of Meetings by Days' Notice

APPENDIX A Definition of Meeting NRC's Statutory Meeting Requirement The Nuclear Regulatory Commission is a five-member independent regulatory commission established by the Energy Reorganization Act of 1974 (P.L.93-408). It is responsible for ensuring the protection of the public health and safety through the licensing and regulation of the uses of nuclear materials. Section 20l(a) (1) of the Energy Reorganization Act, 42 U.S.C. 584 (a) (1),

provides that "action of the Commission shall be taken by a majority vote of members present." In order to conduct meetings under the Government in the Sunshine Act, a quorum of three members must be present.

Meetings Defined by Sunshine Act

• Under NRC regulations, revised in 1985, a "meeting" is defined as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business; that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably. firm positions regarding matters pending or likely to arise before the agency.

Deliberations required or permitted by Secs. 9.105, 9.106, or 9.108(c) do not constitute 'meetings' within this definition. 11 (10 CFR Section 9.lOl(c} of NRC's Sunshine Regulations) Although this ~efinition would allow some deliberations to be held in a non-public 6etting, the Commission has chosen to treat all discussions of agency business by a quorum of Commissioners as "meetings" for Sunshine Act purposes .

For the purpose of tabulating meetings in this report, NRC follows the practice of the Commission for scheduling topics for Commission discussions. Generally one agenda item is scheduled for each discussion or briefing session. Accordingly, each session is counted as a separate meeting under the NRC method of tabulating meetings in this report even if several discussions or briefings occur on the same day.

Appendix B includes counts of meeting statistics reported using the above definition and methods, and also using the "Common Cause" method. The latter method counts all meetings held during the morning or afternoon on the same day as a single meeting, whether that meeting lasts one hour or one day and irrespective of the number of agenda items considered. Both methods are reported here to allow comparisons of statistics by those who use the Common Cause method.

APPENDIX B TABULATION OF OPEN AND CLOSED MEETINGS BY MONTH Open/Closed Total CY 1995 Closed 0 3 Jan (NRC 2 1 0 3 (CC) 2 1 0 8 Feb (NRC) 7 1 0 7 (CC) 6 1 2 0 10 Mar (NRC) 8 8 6 2 0 (CC) 0 11 Apr (NRC) 10 1 0 9 8 1 (CC) 0 7 May (NRC) 6 1 0 7 (CC) 6 1

.o 13 Jun (NRC) 11 2 2 7 (CC) 5 0 Year to Date 52 44 8 0 (NRC) 41 33 6 2 (CC)

During the second half of 1g95 a quorum of Commissioners did not

• exist. The following is a tabulation of Briefings/Discussions held with the two Commissioners in attendance.

Jul Aug 5

3 Sep 4 Oct 3 Nov 8 Dec 7 Total 30 11 CC 11 - Common Cause method of counting.

't APPENDIX C TABULATION OF MEETINGS ~i BY DAYS' NOTICE January 1, 1995 - June 30, 1995 CLOSED OPEN/CLOSED TOTAL DAYS' NOTICE OPEN 6 0 44 12 or more 38 0 1 11 1 0 0 0 0 10 0 0 0 0 0 9 0 0 8 0 0 Q Q 7 Q Q 6 0 45 Subtotal 39 0 0 1 6 1 2 2 0 0 5 0 0 4 0 0 0 0 3 0 0 0 0 2 0 0 0 0 1 0 0

2. Q .1 Less than 1 2.

0 7 Subtotal 5 2 44 .a Q 22.

GRAND TOTAL

UNITED STATES NUCLEAR RE_GULATORV_COMMISSION WASHINGTON, D. C. 20555 i,j March 29, 1995 The Honorable Albert Gore, Jr.

President of the United States Senate Washington, D.C. 20510

Dear Mr. ~President:

In accordance with Section 3(j) of Public Law 94-409 (5 U.S.C. 552b(j)), .I am enclosing the Nuclear Regulatory Commission's Annual Report of the Administration of the Sunshine Act for Calendar Year 1994.

Sincerely,

.,,/4~

rvan Se:_in

Enclosure:

As stated

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555

• March 29, 1995 The Honorable Newt Gingrich Speaker of the United States House of Representatives Washington, D.C. 20515

Dear Mr. Speaker:

In accordance with Section 3(j) __ .of Public Law 94-409 (5 U.S.C. 552b(j)), I am enclosing the Nuclear Regulatory Commission's Annual Report of the Administration of the Sunshine Act for Calendar Year 1994.

Sincerely,

~

Ivan Selin

Enclosure:

As stated

ANNUAL REPORT GOVERNMENT IN THE SUNSHINE ACT

1. AGENCY NAME: U.S. Nuclear Regulatory Commission

2. CALENDAR YEAR: 1994

3. MEETINGS : {See definitions in Appendix A)

A. Total Number of Open. . ....................... 72 {78%)

B. Total Number of Closed ...................... 20 {22%)

C. Total Number of Partially Open/Closed ....... 0 { 0%)

Total Number of Meetings ................... 92 The above meetings are counted by the number of separate agenda topics discussed as described in Appendix A. The same number of topics counted by the method used by Common Cause results in the following number of meetings (see definitions in the Appendix):

D.. Total Sessions Open ......................... 55 E. Total Sessions Closed ....................... 13 F. Total Sessions Partially Open/Closed * * * * * < .. 6 Total Number of Sessions ................... 74 Appendix B contains a tabulation of open and closed meetings per month for CY 1994, using both the Nuclear Regulatory Commission (NRC) and the Common Cause (CC) methods of counting. Throughout this report, meeting numbers quoted are counts of individual items.

4. EXEMPTIONS USED FOR CLOSING OR PARTIALLY CLOSING MEETINGS

{NUMBER OF .TIMES USED)

A. Exemption 1 ................ *............... 3 Exemption 9 ........... .- . . . . . . . . . . . . . . . . . . . 2 Exemptions 1 & 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Exemptions 2 & 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Exemptions 2 & 9 . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Exemptions 5 & 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Exemptions 2, 6 & 9 . . . . . . . . . . . . . . . . . . . . . . . 3 Total ...............* ..... *............ 20

. B. NRC' s practice regardil"lg the closing of meeti*11i9s* ..

pertaining to the budget, Congressional testimony, and briefings of agency members by staff is as follows:

(1) Budget Meetings. The Commission has not convened any meetings to discuss the budget since the U.S.

Court of Appeals for the District of Columbia Circuit concluded in Common Cause v. NRC, 674 F.2d 921 (D.C. Cir. 1982), that there was no exemption under the Sunshine Act authorizing automatic closure of budget meetings.

(2) Meetings at which Congressional testimony is discussed. In 1994, there were no Commission meetings held to discuss Congressional testimony.

(3) Briefings .of agency members by NRC staff. All briefings attended by a quorum of Commissioners are treated as "meetings." Of the 92 meetings held by the Commission in 1994, 57 were staff briefings, 39 of which were held in public session and 18 in closed session. The 18 closed staff briefings were held to discuss matters involving classified information, pending investigations anJ enforcement actions,

• management and personnel matters, and litigation activities. Meeting records of closed briefings are reviewed for retention/release as described in Section 10 below.

(4) Meeting subjects required to be held in closed session. Certain information (e.g., classified information} is required under law or executive order to be protected. Three of the 20 closed Commission meetings dealt with matters which could not by.law be discussed in public session.r

5. DESCRIPTION OF LITIGATION There were no Government In the Sunshine Act cases involving NRC filed or otherwise in litigation during 1994.

6. NOTATION VOTING The Commission uses the notation voting process to decide issues which do not require interactive discussion among all Commissioners in the presence of each other. In this type of decision-making, individual Commissioners provide views in writing to the Secretary (approval and/or comments} on actions proposed by the staff or by individual Commissioners. Typical examples include responses to Congress on GAO reports, budget matters, agreements with the Executive Branch agencies, export licenses, outgoing Commission correspondence, proposed

rulemaking actions, appointments and reappointments to apvisory committees, and review of actions being taken or about to be taken under delegations of authority to the staff.

The Commission also uses notation voting to obtain Commis-sioners' views on agency business which by law requires a formal vote in an open meeting but is not of such a complex nature as to require interactive conversation between Commissioners in the presence of each other. After all participating Commissioners have first expressed their views in writing, public Commission meetings entitled Affirmations are scheduled for the purpose of a formal vote (ratification of Commissioners' views on the issue), with or without discussion as desired. Examples of matters which are decided in this manner include final rule-makings, responses to certain petitions, and adjudicatory decisions.

In connection with the notation voti:µg process, the Commission in late 1989 expanded its policy on *iopenness" by deciding to place, except in relatively rare circumstances, all issue papers voted on by the Commission in the notation vote process, as well as the votes sheets of individual Commissioners, in its Public Document Room (PDR). The papers are released at the time the Secretary's decision memorandum for final action on the paper is released, unless they involve matters which the Commission has specifically agreed should be wichheld (material containing adjudicatory, enforcement or investigatory, classified or proprietary, and personal privacy information).

7. PUBLIC OESERVATION The Commission continued its policy of providing meaningful public observation and understanding of open meetings through the following measures:

A. The Commission's main conference room, with a seating capacity of 150, is provided with multiple overhead speakers and with a closed-circuit television system to ensure that every person attending a meeting can see and hear.

B. A pamphlet entitled "Guide to NRC Open Meetings" is available in the Commissioners' Conference Room and in the PDR. The guide describes for public attendees the normal seating arrangement for participants at the conference table, the general functional responsibilities of these participants, Commission procedures for voting on agenda items, general rules for public conduct at Commission meetings, and sources of additional information on the Commission and its meetings.

C. Copies of viewgraphs and the principal staff PfPers scheduled to be *considered at the meeting arc normally made available to meeting attendees at the entrance to_

the conf*erence room prior to the commencement of the meeting. These papers are also placed in the PDR at the conclusion.of the meeting, along with viewgraphs and other material handed out at the meeting.

Additionally, copies of all papers referenced at the meeting are normally released to the public. During 1994, 77 such documents were released.

D. The "NRC Collection of Abbreviations" (NUREG-0544, Rev. 3) is available in the Commission Conference Room and the PDR to further help the public in understanding the many technical terms discussed in Commission papers.

E. Public attendees are permi~ted to tape record Commission discussions at open meetings.

F. It is the Commission's practice to allow camera and television coverage of its open meetings and briefings without prior notification. The use of cameras, including television coverage, at open licensing proceedings conducted by NRC's licensing boards is also permitted. In b0th Commission meetings and adjudicatory hearings, however, camera equipment must be operated in a manner.that is not disruptive to the proceedings.

G. Transcripts are made of all public Commission meetings. These are unofficial transcripts which are not edited by the Commissioners or by the staff and are generally placed in the Commission's PDR within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> of the conclusion of the meeting. Paper and electronic copies of transcripts of all 72 open meetings in 1994 are in the'PDR, where they may be read or copied as desired. A fee is charged for copying services.

H. In 1994, the Commission continued and expanded upon its efforts to ma~e available in the PDR electronic copies of the transcripts of Conunission meetings and other NRC documents for which electronic files exist.

This will continue and be expanded as the PDR's capability to handle electronic documents grows.

- 5

8. , - PUBLIC NOTICE Each meeting is publicly announced by the methods listed below.

A. Use of an automatic telephone answering machine, which provides a daily recorded message describing the meetings. scheduled for the Commission over a four week period. Members of the public desiring such information dial (301) 415-1292 to hear the pre-recorded message.

B. Publishing weekly in the _Federal Register the time, date, and location of all meetings scheduled for the next four weeks; the topic(s} to be discussed, whether the meetings are open or closed; and the name and telephone number of contact persons who are prepared to respond to questions about the meeting schedule .

C. Posting in the NRC Public Document Room, 2120 L Street, N.W., Washington, D.C. 20555, a copy of the Federal Register Notice at the time it is sent to the Federal Register.

• D. The meeting schedule is posted in the NRC Electronic Bulletin Board at Fedworld.

E. Mailing a copy of the Federal Register Notice' to those persons on a mailing list maintained for that purpose (currently over 175 names and addresses) at the time it is sent to the Federal Register.

F. Submittal of a copy of *the Federal Register Notice to the Office of Public Affairs for dissemination to the national wire services (AP, UPI) and Reuters, and to other news media as applicable.

G. Use of a closed circuit television to. project the meeting schedule to headquarters building visitors.

The Commission's current and projected schedule of meetings for the period covered by the weekly Federal Register Notice is available for viewing on one channel of the NRC's internal cable television system.

Television monitors are available in the lobby of the One White Flint North headquarters building near the*

entrance to the Commission meeting area and in other public areas of the building.

H. Telephoning known interested parties when public meetings of particular interest are scheduled with less than seven days' notice.

The.Commission is *sensitive to the need for reasonable advance notice of Commission meetings;. Its policy is to reduce ,

scheduling changes to a minimum and to avoid short notice meetings if possible. However, the Commission continues to be confronted with the requirement to consider urgent matters in a timely manner. The meeting schedule is constantly adjusted to ensure that the business of the Commission is not delayed, taking into account Commissioner availability and the urgency and significance of the meeting topic. Appendix C contains a tabulation of the number of days' notice for NRC meetings. In summary, 84 percent of the 1994 Commission meetings (77 of 92) were announced with 7 or more day's notice while the remaining 16 percent (15 of 92) were announced with less than 7 days' notice. The following observations are made concerning the 15 "short notice" Commission meetings held during 1993:

There were 6 open and 9 closed "short notice" meetings.

All 6 of the "short notice" open meetings were affirmation sessions at which the Commission ratified (affirmed) Commission orders or final rules, based upon the previously declared views of individual Commissioners, with litrle or no discussion. In each case the Commission had announced the affirmation session more than 7 days in advance but had not announced a specific topic to vote on.

Holding 9 closed meetings (in which cl:3sified information, investigations, internal management and personnel matters, and litigation were discussed) on short notice did not affect public participation.

Whenever a short-notice meeting is added to the Commission's schedule, public notice is immediately provided through NRC's automatic telephone answering machine, the posting of a revised meeting notice in the PDR, displaying a revised notice on a television monitor in the lobby of One White Flint North, notification to the Offices of Public and Congressional Affair~,

and, where appropriate, telephone notification to news media and to interested parties to advise them of the additional meeting. Notice is also promptly submitted to the Federal Register. Additionally, if the short-notice meeting was open, the transcript of the meeting is placed in the PDR shortly thereafter.

9. PUBLIC INTEREST The Commission, in adopting its Sunshine regulations (see Appendix D), explained, in the course of responding to a specific proposal, how it would employ the public interest criterion in exercising agency discretion to open meetings that could otherwise be closed under one of the ....:.<.2.nptions authorized in the Act.

"Section 9.104(a) of the rules, like. the proposals ~f several other agencies, giyes presumptive but not conclusive force to the determination that an exemption is available in deciding the public interest question. The fact that a meeting does come within a specific provision of Section 9.104(a) indicates that the Congress recognized a public interest in closing, not opening, meetings of this character. The Commission staff has been instructed to consider the public interest in recommending to the Commission whether or not to close particular meetings. The* Commission believes that this internal procedure and the awareness of *the Commissioners themselves and their advisors of public interest concerns will ensure adequate consideration of the public interest before any decision to close a meeting is made, without need for a formal procedure of the type proposed." 42 Fed ... Reg. 12875 (March, 1977) .

In the implementation of its rules, the Commission calls upon the staff to consider the public interest factors in any recom-mendations to the Commission for closed meeting discussions.

The Commissioners review staff's recommendations for closed meetings and consider the advice l"'\r the General Counsel as to whether the item is properly closab:e. Implicit in this procedure is the understanding that a vote to close represents the Commission's determination that the public interest does not requir~ an open meeting.

10. RELEASING OF TRANSCRIPTS, RECORDINGS AND MINUTES OF CLOSED MEETINGS

• A. The policy of the Commission is to make available to the public the record of all meetings except for those portions the agency determines to contain information which may be withheld under the provisions of Section 552b(c), the Government in the Sunshine Act. To ensure that the determinations made are correct, the Commission, upon receipt of a request for a copy of a transcript or portion thereof previously withheld, conducts three independent levels of review for eacb transcript or electronic recording under consideration for release. An initial review is performed by the staff office presenting the briefing or discussion.

The second review is accomplished by the Office of the General Counsel (OGC). Thirdly, the Commission reviews the record and makes the final determination .

regarding public disclosure.

The Connnission' s rules, in accordance with the.i;i Sunshine Act, permit'records of closed meetings including litigation, to be kept in minutes (10 CFR 9.108(a)).

B. Index Systems and Tabulation of Regµests for Transcripts, Recordings and Minutes* (Open and Closed)

The Nuclear Regulatory Commission indexes transcripts of meetings and meeting summaries that are placed in the PDR. This information is included in a Daily Accession List, with monthly cumulations, and is made available in the Commission's Public Document Reading Room and mailed on a subscription basis to interested persons.

Transcripts of all public Commission meetings

• are usually placed in the PDR within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> following the meeting. During 1994, members of the public sought access to transcripts of Commission meetings on 618 occasions; 93 transcripts were examined at the NRC's Public Document Room, 71 paper copies and 410 electronic copies of transcripts were provided to requesters by the PDR's reproduction contractor and staff.

• During 1994, the NRC finished its processin~ of an FOIA request from a former NRC Commis~ioner for the public release of a large collection of documents from 1979 to 1983. In responding to this FOIA, one closed Commission meeting transcript was partially released and 6 were withheld in their entirety. Public releases of documents associated with this FOIA made on April 11,. 1994, and June 20, 1994, addressed these transcripts along with other documents.

11. REQUESTS TO OPEN MEETINGS The Commission's rules describe the procedure to be followed by a person who wishes to requeEt a change in the status of a closed meeting. 10 CFR 9.106(b) and (c) provide that "any person" may ask the Commission to reconsider its decision to close a meeting by filing a petition for reconsideration. Any such petition must specifically state the grounds on which the petitioner believes the Commission decision is erroneous and th~ public interest in opening the meeting. All requests, formal or* informal, are referred to the Commission for decision.

Filing such a petitio~ does not automatically act to Stay the effectiveness of the Commission decision or to postpone the meeting in question.

9 -

No. requests to open a closed Commission meeting were rec~ived in 1994.

12. FORMAL COMPLAINTS There were no formal complaints filed in 1994 relating to closed Commission meetings.

13 .. EX PARTE COMMUNICATIONS The Commission's regulations on ex parte communications and separation of functions were adopted in final form on March 23, 1988 (see Appendix E). The Commission's rules conform to the requirements of 5 U.S.C. 557(d). The separation of functions rule precludes private Commission communications with the NRC staff about a matter at issue in a formal adjudicatory proceeding only if the staff member participates in investigating or litigating functions. in the proceeding.

14. ADDITIONAL INFORMATION A. In addition to the formal "Sunshine" meetings of the Commission, the NRC staff held close to 1000 meetings and workshops throughout the year with licensees, the press, representatives of State and local governments, and the public.* The NRC's "Principles of Good Regulation" encourages an "Open" regulatory process, stating that:

"Nuclear regulation is the public's businE..as, and it must be transacted publicly and candidly. Tt-e public must be informed about and have the opportunity to participate in the regulatory process as required by law. Open channels of communication must be maintained with Congress, other government agencies, licensees, and the public, as well as with the international nuclear community."

On September 20, 1-994, the Commission published a Final Policy Statement (59 FR 48340) on "Staff Meetings Open to the Public" indicating NRC's "long standing practice of providing the public with the fullest information practicable on its activities and of conducting business in an open manner, while balancing the need for the NRC staff to exercise its regulatory and safety responsibilities without undue administrative burden." The Commis.sion also extended its two year trial program of holding a limited number of enforcement conferences in open public session (57 FR 30762). The trial period was extended to allow review of the Commission's entire enforcement program.

During the trial period, the Commission's goal has been to hold 25 percent of its enforcement conferences in open public session.

In order to alert the publi,. to the upcoming meetingi9, recorded telephone announcements are available and the meetings are posted on the NRC's Electronic Bulletin Board at Fedworld. The Commission also lists future meetings in its weekly information report, which is placed in. the PDR.

Finally the Commission's Advisory Committees held approximately 70 meetings that were open or mostly open to the public.

B. In addition to the Commission meeting transcripts and meeting related documents norrµally placed in the NRC Public Document Room in Washington, D.C., the NRC routinely places an average of 290 new documents each day on virtually every aspect of NRC's regulatory program for public inspection and copying in the Public Document Room. This extensive voluntary document release program has.resulted in more than 1. 9 million documents being_ .made available in the Public Document Room and serves about 1300 users per month.

• Additionally, the NRC maintains extensive document collections relating to individual nuclear facilities in 88 Local Public Document Rooms located throughout the country.

C. This report was prepared in the Office of the Secretary, U.S. Nuclear Regulatory Commission. Comments or inquiries on this report or related matters should be addressed to:

Office of the Secretary U.S. Nuclear Regulatory Commission Was~ington, D.C. 20555 Telephone inquiries can be made to the Office of the Secretary by *dialing (301) 415-1963.

APPENDICES A. Definition of Meetings B. Tabulation of Open and Closed Meetings by Month C. Tabulation of Meetings by Days' Notice D. NRC Regulation as Amended Implementing the Sunshine Act (10 CFR Sections 9.100-9.109) .

E. NRC Ex Parte (10 CFR Section 2.780) and Separation of Functions Regulation.s (10 CFR Section 2. 781)

APPENDIX A Definition of Meeting i,i NRC's Statutory Meeting Requirement The Nuclear Regulatory Commission is a five-member independent regulatory commission established by the Energy Reorganization Act of 1974 (P.L.93-408). It is responsible for ensuring the protection of the public health and safety through the licensing and regulation of the uses of nuclear materials. Section 201{a) (1) of the Energy Reorganization Act, 42 U.S.C. 584(a) (1),

provides that "action of the Commission shall be taken by a majority vote of members present."

Meetings Defined by Sunshine Act Under NRC regulations, revised in 1985, a "meeting" is defined as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or

-disposition of official Commission bu~_iness; that is, where discussions are sufficiently focused on discrete proposals or

• issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency.

Deliberations required or permitted by Secs.9.105, 9.106, or 9 .108 {c) do not constitute 'meetings' within this definition. 11 10 CFR Section 9.lOl{c) of NRC's Sunshine Regulations (see Appendix D). Although this definition would.allow some deliberations to held in a non*-public setting, the Commission has chosen to treat all discussions of agency business by a quorum of Commissioners as "meetings" for Sunshine Act purposes.

For the purpose of tabulating meetings in this report, NRC follows the practice of the Commission in deciding whether to schedule topics for Commission discussions. Most of the Commission meeting sessions other than Affirmation Sessions and Collegial Discussions

• are scheduled to hear a briefing or to discuss a single topic at some length. Accordingly, each agenda item scheduled for discussion or briefing is counted as a separate meeting under the NRC method of tabulating meetings in this report even if several discussions or briefings occur on the same day. Each session at which one or more Commission papers were scheduled for affirmation under the limited notation voting procedure described in paragraph 6 is counted as a meeting.

Appendix B includes counts of meeting statistics reported using the above definition, and also using the *icommon Cause" method.

The latter method counts all meetings held on the same day as a single meeting, whether that meeting lasts one hour or one day and irrespective of the number of agenda items considered. Both methods are reported here to allow comparisons of statistics by those who use the Common Cause method.

APPENDIX B TABULATION OF OPEN AND CLOSED ':I MEETINGS BY MONTH CY 1994 Open Closed Open/Closed Total Jan (NRC) 13 3 0 16 (CC) 10 0 3 13 Feb (NRC) 2 2 0 4 (CC) 1 1 1 3 Mar (NRC) 7 3. 0 10 (CC) 6 3 0 9 Apr (NRC) 7 2 0 9 (CC)* 4 *1 1 6 ay (NRC) 4 0 0 4 (CC) 3 0 0 3 Jun (NRC) 11 4 0 15 (CC) 8 3 1 12 Jul (NRC) 4 2 0 6 (CC) 3 2 0 5 Aug (NRC) 5 2 0 7 (CC) 4 1 0 5 Sep (NRC) 6 1 0 7 (CC) 4 1 0 5 (NRC) 4 .0 0 4 (CC) 4 0 0 4 Nov (NRC) 2 0 0 2 (CC) 2 0 0 2 Dec (NRC) 7 1 0 8

• (CC) 6 1 0 7 YEAR TO DATE (NRC) 72 20 0 .92 (CC) 55 13 6 74

APPENDIX C TABULATION OF MEETINGS BY DAYS' NOTICE i,i CY 1994 DAY_S_'_NOTICE OPEN CLOSED OPEN/CLOSED TOTAL 12 or more 60 11 0 71 11 1 0 0 1 10 0 0 0 0 9 0 0 0 0 8 0 0 0 0 7 .2. Q Q .2.

Subtotal 66 11 0 77 6 0 0 0 0 5 0 0 0 0 4 1 1 0 2 3 1 2 0 3 2 0 0 0 0 1 0 0 0 0 Less than 1 ~ Q_ Q 10 Subtotal 6 9 0 15 GRAND TOTAL 72 20 Q 92

9.BO(a) 9.102 PART 9

• PUBLIC RECORDS

To any penon upon a lhowins ot EJIPOIICDO:lfT Subpart C-Govemment In the compeWq cfrcumatancea atfectlns I 9.90 VlolatJonL Sunahlne fct le1ulatlon1 the health or l&fet, of any IDlf!vldual; § 9. 100 Scope of subpart.

<t> To either Rome of Con,ral or, <a> An Injunction or other court This suhp11rt prescribes procedures to the extent of matter wfthfD lta Ju* *order may be obtained pursuant to 5 rildlction, to any committee or 111b- U.S.C. 552a(I') Cl-3) to compel NRC to pursuHnt lo which NRC meetings shall commlttee thereof or to any Joint com- permit an individual to review, amend l,e open lo public observation pursuant mittee-of the Conareu or to any 111b- or copy a record pertainfnl' to hfm, or to the pro\*isions of 5 U.S.C. 552b. This commfttee of 111cb Joint committee;_ to be accompanied by someone of his subpart does not affect the procedures (10) To the ComptrolJer General, or own choosinc when he reviews hla .,, pursuant to which l\;RC records are record. A court-order may be obtained ~ made a\*ailable to the public for any of his authorized representatives. for the payment of a civil penalty tm- ; inspection and copying which remain in the course of the performance of *posed punuant to 5 u.s.c. 552a<r><4>

the duties or the General Accounttns 11. governed by Subpart A. except thal the If NRC Intentionally or wllllully falla Office; or to maintain a record accurately, or ~ go\*em exemptions set forth in § 9.104(a) shall in the case of an).' request made

<l 1) Pursuant to the order of a court fafla to comply with any provision of 5 of competent Jurisdiction. "' U.8.C. 552a, or any provision of thfl pufl!UIIDt to § 9.23 lo copy or inspect the

subpart, If such failure result.a In an transcripts, recordings. or minutes I 9.81 Notice of ubpoenu. described in§ 9.108. Access to records

~ adverae determination or hu an ad-When records concerntns an individ- a:* vene effect on an individual. Court considered al l\'RC meetings shall ual are subpoenaed or otherwise dfs. ~ costs and attorney's fees may. be continue to be go\*emed by Subpart A of clOled pursuant to court order, the

• awarded ID civil actions.

• this part.

NRC officer or employee aen~ with * Any officer or employee of NRC the subpoena shall be responsible for who willfully maintains a system of

~

9.101 DefinltJonL

"" assurtne that the indMdual ill notUled record without meetin&' the notice re-t of the disclosure within five daya aft.er quirement.II of 5 U.S.C. 552a<e><U, or Aa usecfln this subpart:

i such subpoena or other order become who willfully dlsclosea Information <11> "Commission" means the colle-a matter of public record. The notice knowfn&' such dlsclosure to be prohib- gial body of five Commissioners or a shall be malled to the last known ad- ited by 5 U.S.C. 552a or by'any rulea or quorum thereof as provided by section dress of the individual and shall con- re1111Jatlons Issued thereunder, may be E 201 of the Eneru Reorganization A~t tain the folJowtns lnformat.fon: Ca) &'llflty of a crfmlnal misdemeanor and ~ of 197-l, or any subdivision of that col-The date the subpoena Ill retun1able; upon conviction may be fined up to a: Jegfal body authorized to act on Its Cb) the court in which ft Ill returnable; $5000. Any person who knowln1Jy and u. behalf, and shall not mean any body

<c> the name and number of the case willfully requests or obtains any N not composed of members of that col-l or proceedinc; and <d> the nature of record concemlnc an Individual from legial body.

the information soucht. NRC under false pretenses may be Cb) "'Commissioner" means an Indi-D9.82 Notice of emu1enc7 dl1elourea. convicted of a criminal . misdemeanor vidual who Is as member of the Com-and upon convlctfv., L11ay be fined up mission. .

When information concenlin&' an in- to $5,000.

dividual has been disclosed to any <c> "'Meetln&'" means the delibera-r person under compellf.ns circum- l!:D:IIPTIOIOI tions of at least a quorum of Commis-stances affectlnc health or safety, the f 9.95 Specific Hemptlona. sioners where such deliberations deter-NRC officer or employee who made or The following records. contained in mine or result in the Joint conduct or authorized the dlllcloaure shall notify the designated NRC Systems or Record* disposition of official Commission the individual at his Jut known ad- bUL:... .esa, that Ill, where discussions are dress within five days of the dfsclo- [NRC-5. NRC-9. NRC-11. NF.C-18.

NRC-2Z. NRC-28. NRC-29, NRC-31.  : sufficiently focused on discrete pro-sure. The notice shall contain the fol- ~ posala or Issues u to cause or to be Jowfnlr information: <a> The nature of NRC-33. NRC-37, NRC-39, and NRC-40) a: likely to cause the individual partlcf-the Information dlllcloaed; the are ex.empt from 5 U.S.C. 552a(c)(3), {d), ~ patfns members to form reasonably person or asency to whom the fnfor- (e)(i), (e)(4) (C). {H). (I). and {fl in firm positions reirardfnl' matters pend-

• matfon wu dlacloaed: Cc) the date of accordance with 5 U.S.C. 552a(k). Each fn&' or likely to arille before the the dlllcloaure: and Cd> the compell1n8' of these records is subject lo the acency. Deliberations required or per-circumstance Juatlf:vlnl' the dlaclo- pro\*isions of § 9.61: mitted by H 9.105, 9.106, or 9.108(c) do (a) Contracts Record>> Filn. 1'.'RC-5; [ not constitute "meetincs" within this (b) Equal Employment Opportunity definition.

Records Filea. NRC-B:

rm Cd) "Closed meetinc" means a meet-

"' (cl General Personnel Records Inc of the Commission closed to public

~ (Official Personnel Folder and Related obllenatlon as provided by 19.104.

~ 9.15 Fees. a:

• Records). NRC-1~ <e> "Open meetlnc" means a meetlnc Fees shall not l,e charged for &r.arch ~ (d) Investigative Offices lndeK. Filea, of the Commission open to public ob-fur or rc\*iew of records requestr.d "' and Associatd Record1, NRC-1&: servation pursuant to this subpart.

pursuant to this subpart or for m1tking (el Personnel Performance Appraiaala, Cf> "Secretary" means the Secretary copies or extracts of records in order to . NR~ to the Commission.

make them ll\"i1il11l,le for review. Fees <1> "General Counsel" means the (I} Recruiting. Examining, and ,.. General Counsel of the commission as PSlrrblishud pu~suant to 31 U.S.C. 483c and 5 l!.S.C. 552i1(f)I,;) sh1dl be char11ed Placement Record, NRC-28; (g) Document Control System, !'1.'RC-5 provided by section 25(b) of the ffl ,u.cordinl! to the sc:hl"dule contained in i:c Atomic EnercY Act of 1954 and section ll> § !l.3;\ 1,f t!::~ par: for ac1u11l copies of 29: "' 20l<f> of the Energy Reorganization (h) Correspondence and Record N Act of 19'1-l, and, until sud!. time as fE rec:ord~ rf'lj.J"~:r*c! by indi\*id1rnls. the offices of that officer are In the fa Branch. Office or the Secretary, NRC-31; l

pursuanl 111 !ht Prin,q- Act of 1974. same location as those of the Commis-unl!!~s thr Direc:tor. Division or .!-'n:udom (i) Special Inquiry File, NRC-33; sion, any member of his office special-of Information and Publicution11 Scrvice11 (j) lnfonnation Security Files and ly designated In writin&' by him pursu-waives the fee hecause of Associated Records. NRC-37; ant to this subsection to carry out his the :nal,ili1) of the indi\*idual to pay or (kl Personnel Security Files and responslbflftles under this subpart.

liec:c1u~1: mc1l..i11g the record~ i1\'ailc1ble Associated Records. NRC-39; and 19.102 Genenl requirement.

with11ul c:o~t. or al a rr.duction in c:ost. is (I) Facility Security Support Files and Commissioners shaJJ not Jointly con-othnwisr* ir. 1l:_c public interest. Associated Re.:ordL NRC-40.

• 11ct or dispose of Commission busl-

. iss In Commission meetings other April 30, 1992 9-12

. 9.102 9.lOS(c)

PART 9

• PUBLiC RECORDS than In accordance with this subpart. confidential, Including such Informa- Information provided or requests made Except as provided In I 9.104, every tion as defined In § 2.790Cd> of this to the CommJsslon In confidence by portion of every meeting of the Com- title: persons outsJCle the Commission and misslori .shall be open to public obser- <5> Involve accusing any person of a which would not have been provided vation.

• crime, Imposing a civil penalty on any or made otherwise; <2> If openinl( a person pursuant to 42 U.S.C. 2282 or meetlns or dlsclostnc any Information IJ 9.103 General provieionL 42 U.S.C. 5846, or any revocation of would reveal legal or other policy The Secretary shall ensure that all any license pursuant to 42 U.S.C. Sec. advice, public knowledl(e of whJch

~ open Commission meetings are held In 2236, or formally cens~ any could substantially affect the outcome

' ~ a location such that there ls reasona- person; or conduct of pending or reasonably

... ble space and adequate visibility and (6) Disclose Information of a person- anticipated litigation or negotiations;

~ acoustics, for public observation. No al nature where such disclosure would or (3) lf opening any meeting or dis-

~ additional right to participate in Com-constitute a clearly unwarranted inva- closing any 'information would reveal sion of personal privacy; Information requested by or testimony

. mission meetings is granted to any C7) Disclose investigatory reparts person by this subpart. An open meet- compiled for law enforcement pur- or proposals to be given to other agen-ing Is not part of the formal or Infor- poses, lnclud1n1i specifically enforce- cies of government, including the Con-mal record of decision of the matters ment of the Atomic Energy Act of gress and the Executive Branch before discussed therein except as otherwise 11954, as amended, 42 U.S.C. 2011 et the requestlnc agency would receive required by Jaw. Statements of views :seq., and the Energy Reorganization the information, testimony or propas-or expressions of opinion made by Act of 1974, as amended, 42 U.S.C. als. The examples in the above sen-Com.missioners or NRC employees at 5801 et :seq., or Information which if tence a.re for illustrative purposes only open meetings are not intended to rep- written would be contained in such and are not intended to be exhaustive.

resent final determinations or beliefs. records, but only to the extent that A9.105 Comml111lon procedure1.

the production of such records or in- ca> Action under § 9.104. shall be

""such statements may not be pleaded, formation would: (1)-Interfere with en- taken only when a majority of the ited, or relied upon before the Com- forcement proceedings;' (Ii) *deprive a entire membership of the Commission ion or in* any proceeding under person of a right to a fair trial or an votes tc, take such action. A separate

u. Part 2 of these regulations ClO CFR impartial adjudication, Ciii) constitute vote of the Commissioners shall be

"' Part 2) except as the Commission may an unw11,rranted invasion of personal taken with respect to each Coznmis-

~direct. privacy, Civ) disclose* the identity of a sion meeting a portion or portions of

_.- Members of the public attend- confidential source and, in the case of which are proposed to be ciosed to the

~ Ing open Commission meetings may a record compiled by a criminal law public pursuant to § 9.104, or which re-liluse small electronic sound recorders to ~ enforce~e_nt au thor~ty ~ the course I!? spect to any !r.formatlon which ls pro-

.- record the meeting but the use of N of a cnmmal investigation, or by an I!!! posed to be withheld under § 9.105Cc).

~ other electronic rec~rdlng equipment ; itgency co nd uctino- "- law~ul ~ational ; A single vote may be t_aken with _re-

~ and cameras requires the advance u. s~curity intelligence lnvest1(!'at1on, con- u. spect to a series of meetmgs, a portion I written approval of the Secretary. ~ f1dentlal ln_form~tlon furn1she~ only*~ or portions of which are proposed to L: by the conf1dent1al source, <v> disclose ' be closed to the public, or with respect Investigative techniques and proce* to any Information concerning such fl 9.104 Closed "'~etinp.

dures, or (vi) endanger the life or series of meetings, so long as each

<a> Except where the Commission physical safety of law enforcement meeting In such series Involves the finds that the public interest requires personnel; sa.rue pa.rtlcula.r matters and Is sched-otherwise, Commission meetings shall C8) [Reserved) uled to be held no more than thirty be closed, and the requirements of (9) Disclose Information the prema- days after the initial meetliig in such I I 9.105 ar.d 9.107 shall not apply to ture dlscl~sure of which would be series. The vote of each Commissioner y information pertaining to such likely to s1gnlficantly frustrate lmple- participating In such vote shall be re-eetlng otherwise required by this mentation of a proposed Commission corded and no proxies shall be al-subpart to be disclosed to the public, action, except that th~ subparagraph lowed.

where the Commission determines in shall not apply in any instance where (b) Within one day of any vote taken accordance with the procedures of the Commission has already disclosed pursuant to paragraph. Ca) of this sec-

§ 9.105 that opening such meetings or to the public the content or nature of tion. I 9.106Ca) or I 9.l0BCc> the Secre-portions thereof or disclosing such in- lts proposed action, or where the Com-* ta.ry shall make publicly available in formation, Is likely to: mission is required to make such dis* the Public Document Room a written Cl> Disclose matters that are m spe- closure on its own lnitatlve prior to copy of such vote reflecting the vote cifically authorized under criteria es- taking final action on such proposal; of each member on the question. If a lCI tabllshed by an Executive order to be or portion of a meeting is to be closed to

kept secret in the Interests of national (10) Specifically concern the Com- the public, the Secretary shall, within

~ defense or foreign policy, and cm In mission's issuance of a subpoena, or one day of the vote taken pursuant to

~ fact properly classified pursuant to the Commlsslon's participation In a. paragraph (a) of this section or

"" such Executive order; civil action or proceeding or an action § 9.106Ca), make publicly available in

"' <2> Relate solely to the Internal per- or proceeding before a state or federal the Public Document Room a full sonnel rules and practices of the Com- administrative agency, an action in a written explanation of Its action clos-mission; _ foreign court or international tribunal, Ing the portion together with a list of (3) Disclose matters specifically ex- or an arbitration, or the initiation. all persons expected to attend the empted from disclosure by statute conduct or disposition by the Commls* meeting and their affiliation.

Cother than 5 *U.S.C .. 552) provided slon of a particular case of formal (c) The notices and lists required by that such statute m requires that the agency adjudication pursuant to 5 paragraph (b) of this section to be matters be withheld from the -public In U.S.C. 554 or otherwise involving a de- made public may be withheld from the such a manner as to leave no discre- termination on the record after an op- public to the extent that the Commis*

• tion on the issue, or (ii) establishes portunity for a hearing pursuant to

• sion determines that such information particular criteria for withholding or Part 2 or similar provisions. Itself would be protected against dis-refers to part 1cular types of matters to Cb) Examples of situations in which closure by I 9.104Ca). Any such deter-be withheld; Commission action may be deemed to mination shall be made independently (4) Disclose trade secrets and com~ be significantly frustrated are: Cl) If of the Commission's determination mercial or financial information ob- opening any Commission meeting or tained from a person and privileged or negotiations would be likely to disclose 9-13 April 30, 1992

9.10S(c) 9.108(b)

PART 9 e PUBLIC RECORDS pursuant~ paragraph <a> of this sec- (b) The time or place of a meeting tiine of the public announcement of tion to close a meeting, but In accord- may be changed following the public the met:ting, or if there is no public ance' with* the procedure of. that sub-section. Any such determination, in-announcement required by paragraph announcemenf.i.11,t the earliest practical.

ca> of this section only if th~ Secretary time, that, in* his or her opinion, the cluding a written explanation for the publicly announces such changes at meeting may be closed to the public action and the specific i:rovision or the earliest practicable time. The sub- and shall state each relevant exemp*

provisions of § 9.104<a> relied upon, ject matter of as meetin~, '!r the deter- tive provision unless the Commission must be made publicly availal)le to the mlnation of the Comm1SS1on to open votes pursuant to I 9.105<c> that such extent permitted by the circum- or close a meeting, or portion of a certification Is protected against dis-stances. meeting, to the public, m~y

• be closure by § 9.104Ca). A copy of such changed following the publlc an- certification, together with a state-

§ 9.106 Person affected and motions for nou.ncement r enuired

.. by this sUbsec- ment from the presidingthofficer tim of the d

reconsideration. ti.on only if: (1) A majority of the meeting setting forth d eth e an entire membership of the Commission place of the meeting, an e persons Ca) Whenever any person whose In- determines by a recorded vote that present, shall be retained by the Com-terests may be directly affected by a := Commission business so requires and mission. The Commlssfon shall main-portion of a meeting requests that the if that no earlier announcement of the tain a complete transcript or electron-Commission close such portion to the: change was possible, and (2) the Secre- le recording adequate to record fully public for any of the reasons referred u.* tary publicly announces such change the proceedinp of each meettne, or to in paragraphs <a> <5>, (6), or <7> of; and the vote of each member upon

• portion of a meeting closed to the I 9.104, the Commission, upon request

• such change at the earliest practicable public except that In* the case of a of any one Commissioner, shall vote time meetfxig, or portion of a meeting, by recorded vote whether to close such <c>* Immediately following each closed to the public pursuant to para-meetlng. public announcement required by this - graph (c)Cl0> of§ 9.104, the Commfs-(b) Any person may petition the section, notice of the time, place, and sion shall maintain such a transcript, Commission to reconsider its action subject matter of a meeting, whether or recording or a set of minutes. Such der I 9.105Ca> or paragraph Ca> of the meeting is open or' closed, any minutes shall fully and clearly de-is section by f'iling a petition for re- change in one of the preceding, and scribe all matters discussed and shall nsideration with the Commission the name and phone number of the of- provide a full and accurate summary r- within seven days after the date of ficliLI designated by the Commission to in of any actions taken, and the reasons

~ such action and before the meeting in respond to requests for -Information therefor, includfn1 a description of i

question is held. about the meeting, shall also be sub- .. each of the views expressed on any LL (c) A petition for reconsideration mitted for publication in the FEDERAL f item and the record of any rollcall N filed pursuant to paragraph (b) of this REGISTER. N vote <reflecting the vote of each Com-section shall state specifically the ""* missioner on the question). All docu-grounds on which the Commission r Cd> The public ~"'nouncement re- ments considered in connecti~n with action is claimed to be erroneous, and I quired by paragraph (a) of this section any action shall be Identified m such shall set forth, if appropriate, the ~ shil.ll consist of the Secretary

minutes.

public Interest in the closing or open-  ! (1) Publicly posting a copy of the (b> The Commission shall make fn&' of the meeting.

11 The filing of such a: document in the Public Document promptly available to the public, in a petition sh~ not act to stay the ef- LL Room at 2120 L St,eet, N.W., Wash- the Public Locument Room, the tran-fectiveness of the Commission action ~ ington, D.C.; and, to the extent appro- scriot, electronic recording, or minutes or to postpone or ...elay the meetin1 in Lpriate under the circumstances; <as required by paragraph Ca> of this question unless the Commission orders

• section) of the discussion of any Item otherwise. (2) Mailing a copy to all persons on the agenda, or of any Item of the whose names are on a malling list testimony of any witness received at 9.107 Public announcement of Commu- maintained for this purpose; the meeting, except. for such Item or Ion meetlnp. (3) Submitting a copy for possible Items of such discussion or testimony a> In the case of each meeting, the publication to at least two newspapers as the Commission determines pursu-Secretary shall make public announce- of .general circulation In the Washing- ant to paragraph Cc> of this section to ment, at least one week before the ton, D.G. metropolitan area; contain Information which may be meetlni', of the ~hne, place, and sub- (4) Any other means which the Sec- withheld under § 9.104 or I 9.105Cc>.

Ject matter of the meeting, whether it r:;: retary believes will serve to further Coples of such transcript, or minutes, 1s to be open or closed to the public, ~ inform any persons who might be in- or a transcription of such recording and the name and phone number of a: terested. dlsclosfn& the Identity of each speaker, the official designated by the Commis- LL Ce) Action under the second sentence shall be furnished to any person upon slon to respond to requests for fnfor- i of paragraph <a> or Cb> of this section payment of the actuiLI cost of c;luplica-matlon about the meeting. Such an- shall be takl"n only when the Commis- tlon or transcription as provided in nouncement shall be made unless a slon finds tt,at the public interest in I 9.14. The Secretary shall maintain a majority of the members of the Com- prompt Commission action or the need complete verbatim copy of the tran-mfaslon determines by a recorded vote to protect the common defense or se- script, a complete copy of the minutes, that Commission business requires curity_ or to protect the public health or a complete electronic recording of that such meeting be called at an ear- or safety overrides the public interest each meetin1, or portion of a meeting, lier date, In which case the Secretary in having full prior notice of Commis- closed to the public, for a period of at shall make public announcement of slon meetings. least two years after such meeting, or the time, place and subject matter of . until one year after the conclusion of such meetin1, and whether ope~i o~

closed to the public, at the ear es 1ft I§ 9 108 Certification transcript,, record-

• lnp and minu*

any Commission proceeding with re-spect to which the meeting or portion practical time. gN Ca) For every meeting closed pursu- was held, whichever occurs later.

ant to paragraphs Ca> Cl) through Cl0)

u. of § 9.104 and for every determination I

~ pursuant to I 9.10£Cc), the General Counsel shall publicly certify at the April 30, 1992 9-14

9.204 PART 9 e PUBLIC RECORDS

.. <ci'In the case of &ny meetlns closed pursuant to t 9.l0f. the Secretary of r

N (C) This subpart ls intended to pro-vide instructions rega.rdlnr the inter-I the General Counsel in . appropriate circumstances. _

the Coinmfsafon, upon the advice of l nal operations of the NRC and ls not (2) ~e Geperal CoW1Sel may re-the General counsel and after consul-  ::; Intended, *and does not, and may not,"' quest a plan from the party seeking tation with the Commission, shall de- a: be* relied upon to create any right or i'b discovery of .all demands then reason-termlne which, ff any, portions of the ~ benefit, substantive or procedural, en-~ ably foreseeable, lncludlnr but not electronic recordlns transcript or min- "' forceable at law by a party against the ff limited to, names of all NRC personnel

utes and which, ff ~Y, Items of lnfor- LNRC. ~ from whom discovery Is or will be a matlon withheld pursuant to I 9.l05(c) sought, areas of inquiry, length of Ltlme away from duty involved, and

contain Information wh Ich should be N

I t.201 Production or dlscloeure identification of documents to be used withheld pursuant to 19,104, In the prohlbfted unlna approved by approPrtat* in h d lti n where appropriate.

~ event that a request for the recordinl', NRC Offlclal.

• eac epos O

• transcrfpt, or minutes la received . No employee of the NRC shall, in . h witbJn the riod durin " which the r"* (c) The Inspector General or t e pe cordlnr, transcript, or

• minutes must" response to a demand of a court or other General Counsel will notify the Li be retained, under pararraph (b) of this section.

judicial or quasi-judicial authority, produce any material contained in the files of the NRC or disclose, throURh employee and such other persons, as

.circumstances may warrant, of the decision on the matter.

<d> If at some later time the Com- testimony or other means, any § t.203 Procedure wtiere reaponn to mission determines that there la no information relatins to material demand la raqu1rec1 p,tor to recetvlng further Justification for withholdinl' contained in the files of the NRC, or lnatructlon&.

any transcript, recordlns or other Item disclose any information or produc~ any If a response to the demand: is of Information from the public which material acquired as part of the required before*the.instructions from the has previously been withheld, then performance of that employee's official Inspector General or thB General such Information shall be made avail- duties or official status without prior Counsel are*recelved, a U.S. attorney or able. approval of the appropriate NRC NRC attorney desisnated:for*the

§ 9.109 Report to Congreu. official. When the demand is for purpose shall*appear with the employee

.. The Secretary shall annually report

to the Congress regarding the Com-

mission's compliance with the Govern-material contained in the files of the Office of the Inspector General or for

• of the.NRC upon whom the demand has been made, and* shall furnish the court information acquired by an employee of ~ or other authority with a, copy*of the

... ment In the Sunshine Act, Including a that Office, the Inspector General is the a: regulations contained in, this subpart

.. tabulation of the total number of open appropriate NRC official. In all other u. and inform. tha court 011 other authority meetings, the total number of closed cases, the General Counsel is the :8 that the demand*ha11 been. or.ill being; as.

meetings, the reasons for closing such appropriate NRC official. the case. may be, referrud' for-the prompt meetings and a description of any lftl- § 1u 02 Procedure In the event of I consideration of the.appropriate NRC gation brought against the Commls- Ill demand tor production or dllCloeure. official and hall*respectfully request the slon pursuant to the Government In This subpart sets forth the pro- production of material or the disclosure II 9.204 Procedure in the event of an ad-cedures to be followed when a subpoe- of information described in § 9.200, that verse rulinj.

~ na, order, or other demand (herein- employee shall immediately notify the If the court or other Judicial or

~ after referred to as a "demand") for General Counsel. If the demand is made quasi-Judicial authority declines to

.., the production of NRC records or dis- upon a re9ional NRC employee, that stay the effect of the demand In re-

~ closure of NRC Information, lncludinl' employee shall immediately notify the ~

N aponae to a request. made in accord-a testimony rerardinl' such records, la Regional Counsel who, in tum, shall i1i ance with I 9.203 pending receipt of in-

"' issued by a court or other Judicial or immediately request instructions from  !;; structlons, or if the court or other au-quasi-Judfcl&l authority In a proceed- the General Counsel. If the demand is ff thority rules that the demand must be lnr, excludlnir Federal ara,nd Jury pro- made upon .an employee in the Office of ~ complied with irrespective of Instruc-ceedlnp, to which the NRC Is not a Inspector General, that employee shall tions not to produce the material or party. Information and documents disclose the Information sought, the immediately notify the Inspector subject to this subpart Include: employee upon whom the demand has (1) Any material contained in the General. The Inspector General shall immediately provide a copy of the *been made shall respectfully decline to files of the NRC; demand to the General Counsel, and as comply with the demand, citing these

<2> Any Information relatlnr to ma- regulations and Untted Stat.a e:t: rel.

terial contained In the files of the deemed neceSBary, consult with the General Counsel. Touhy v. Ragen, 340 U.S. 462 (1951).

6 NRC.

(b) For purposes of this subpart. the r (b)(1) If oral testimony ls sought by

~ the demand, a summary of the testi- Appendix A (removed) 50 FR 50283

~ term "employee of the NRC" includes all ~ many desired mU!.t be furnished to the

NRC personnel as that term is defined in .., General CoWlSel by a detailed afflda-

~ § 9.3 of this part. including NRC ~ vlt or, if that ls not feasible, a detailed o statement by the party seeking the L con!ractors. 'f testimony or the party's attorney.

This requirement may be waived by 9-15 April 30, 1992

APPENDIX E 2.770 2. 78 l(a)

PART 2

• RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS***

FINAL DECISION where such schedules may differ from knowingly c;wses to be made a r

I*

those elsewhere prescribed in these rules or where t'h'!se rules do not pre-communica,ion prohibited b\' this section shali e~sure that it a~d an\'

~ § 2.770 Final decision. scribe a schedule; responses to the communicat10n *

-g; (a) The Commission will ordinarily (b) Rule on motions for extensions promptly are served on the par,ies and

~ consider the whole record on review, "' of time; placed in the public record of :he

u. but may limit the issues to be reviewed  ;;; (c) Reject motions, briefs, pleadings, proceeding. In the case of oral 18 to those identified in an order taking ~ and other documents filed with the communications. a written summarv review_. a: Commission later than the time pre-L  ! scribed by the Secretary or the Assist-ant Secretary or established by an must be served and placed in the p~blic record of thP. proceeding.

Cb> The Commission may adopt, order, rule, or regulation of the Com- (d) Upon receipt of a communication r: modify, or set aside the findings, con-clusions ar.d order in the initial deci-

- sion, and will state the basis of Its

. action. The final decision will be in mission unless good cause is shown for the late filing; Cd) Prescribe all procedural arrange-ments relating to any oral argument knowingly made or knowingly caused to be made by a party in violation of this section. the Commission or other adjudicatory employee presiding in a

~ writing and wlll include: to be held before the Commission; proceeding may. to the extent consistent

~ (1) A statement of findings and con- - with the interests of justice and the Nlclusions. with the basis for them on all mat~riai issues of fact, law or discre-tlon presented;

!r (e) Extend the time for the Commis- policy of the underlying statutes. require sion to rule on a petition for review g the party to show cause why its claim or

• under 10 CFR 2.786(b); 2 interest in the proceeding should not be (2) All facts officially noticed; ~ (f) Extend the time for the Commis- ; dismissed. denied. disregarded. or a: sion to grant review on its own motion LL otherwise adverselv affected on account

~ LL under 10 CFR 2. 786Ca);

(3) The ruling on each material LJ~ Cg) Extend time for 'Commission

'.::: of the violation.

• issue; and review on its own motion of a Direc- (e) (1) The prohibitions of this section tor's denial under 10 CFR 2.206(c); apply-(i) When a notice of hearing or other s;-

.- ~ comparable order is issued in

~ (4) The appropriate ruling, order, or :; Ch> Direct pleadings improperly filed accordance with§§ 2.104(a). 2.105(e)[2),

~ denial of relief. with the effective ; before the Commission to the ~ppro- 2.202( c). 2.204. 2.205(e). or 2.703: or LL priate adjudicatory board for action; la d t e. ~

(ii) Whenever the interested person or Commission adjudicatory employee r (i) Deny a rc:quest for hearings, responsible for the communication has r

knowledge that a notice of hearing or

~ § 2.771 Petition for reconalderatlon. where the request fails to !:'.)mply with other comparable order will be issued in (J)

C\l [a) A petition for reconsideration of a the Commission's pleading require- accordance with§§ 2.104(a). 2.105(e)[2),

ff: "final decision may be fiied by a party ments set forth in this part, and fails _2.202[c), 2.204. 2.205[e). or Z.70:J.

iil within ten (10) days after the date of the to set forth an arguable basis for fur-Ldecision..

~ ther proceedings;

~ (j) Refer to the Atomic Safety and a: Licensing Board Panel or an Ad.minis-II (Z} The prohibitions of this section cease to apply to ex parte communicd.tions relevant to the merits

~ trative Law Judge, as appropriate, re- of a full or partial initial decision when, (b) The petition for reconsideration quests for ~earings not falling under ff: in accordance with § 2.786, the time has l

hall state specifically the respect.s in 12.104 of th1S part, where the request- co * * .

which the final decision is claimed to er ts entitled to further proceedings; U'l expired for Comm1ss1on review of the e erroneous, the grounds of the petl- and . L decision.

ion, and the relief sought. Within ten Ck) Take action on minor procedural * *

(10) days after a petition for reconsid- matters. (0 The prohibitions in this section do LL eration has been filed, any other party

- N may file an answer in opposition to or not apply to- .

• (1) Requests for and the provision of l

in support of the petition. However, Restricted Communications the staff may file such an answer status reports; within twelve <12) days after a petition § 2.780 Ex parte communications. (Z) Communications specifically for reconsideration has been filed. In any proceeding under this permitted by statute or regulation; (3) Communications made to or by r Cc) Neither the filing nor the immt- subpart- (a) Interested persons outside the Commission adjudicatory employees in

ing of the petition shall stay the deci- agency may not make or knowingly the Office of the General Counsel

u. sion unless the Commission orders caus*. to ii*:- made to any Commission regarding matters pendmg before a cuur!

~ otherwise. or another agency: and adju<l;catcr\ employee. any ex parte r

1-0 cor11r.*~nir:nt1on relevant to the merits of (4) Communications re1<arding generic

§ 2.772 Authority of the Secretary to rule ~ the pro*.:!.!P.dmg. issues involving public health and safet~*

on procedural matt.en. . "" (bj Comm!s~1or. adjudicatory or other statutory responsibiiities of the a: agency (e.g., rulemakings. congressional When briefs, motions or other LL emplo~*ees may not request or entertain

~ papers listed herein are submitted to ~ from any intcresied person outside the hearings on legislation. budgetary

the Commission Itself, as OPPOlied to agcnc~* or make or knowingly cause to planning) not associated with the c

officers who have been delegated au- be mc1de to c1ny interested person resolution of any proceeding under this

! thority to act for the Commission, the outside the a!lency. and ex parte ,. subpart pending before the NRC.

,., Secretary or the Assistant Secretary communication relevant to the merits of § 2.781 Separation of functions.

are authorized to: the proceeding.

Ca> Prescribe schedules for the filing (a) In any proceeding under this

[c) An:t Commission adjudicatory subpart. any NRC officer or employee of briefs, mot' ">ns, or other pleadings, employee whu receives. makes. or engaged in the performance of any April 30, 1992 2-38

2.781(a) 2.78l(t)

PART 2

• RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS,,*

investigative or litigating function in that paragraph (a) of this._ser.tion shall ensure l proceeding or in a factually related proceeding may not participate or advise a Commission adjudicatory in that it and any responses to the communication are pl;iced in the publir record of the proceeding and ser\'ed or.

employee about the intitial or final the parties. In the case of oral decision on any disputed issue in that communications. a written summan*

proceeding. except- must be served and placed in the p~blic

(!} As witness or counsel in the record of the proceeding.

preceeding: (d) (1) The prohibitions in this section (2) Through a written communication apply-served on all parties and made on the (i) When a notice of hearing or other record of the proceeding: or comparable order is issued in (3) Through an oral communication accordance with§§ 2.104{a). Z.105{e)(2).

0 made both with reasonable prior notice ~ 2.202(c), 2.204. 2.205(e). or 2.703; or to all parties and with reasonable ~ (ii) Whenever an NRC officer or opportunity for all parties to respond. a: employee who is or has reasonable (b} The prohibition in paragraph (a) of u. cause to believe he or she will be this section does not apply to- "' engaged in the performance of an (1) Communications to or from anv investigative or litigating function or o Commission adjudicatory employee* Commission adjudicatory employee has regarding- knowledge that a notice of hearing or (i} The status of a proceeding; other comparable order will be issued in (ii) Matters with regard to which the accordance with § § 2.104(a). 2.105(e)(2).

mmunications specifically are 2.202(c). 2.204. 2.205(e). or 2.703.

rmitted by statute or regulation: ~ (2} The prohibitions of this section (iii} Agency participation in matters ~ will cease to apply to the disputed pending before a court or another R'J issues pertinent to a full or partial initial agency;or a: decision when, in accordance with (iv) Generic issues involving public ~ § 2.786, the time has expited for health and safety or other statutory .___ Commission review of the decision.

~ responsibilities of the agency (e.g.,

2 rulemakings, congressional hearings on I (e) Communications to. from. and between Commission adjudicatory

~ legislation, budgetary planning) not

/{: associated with the resolution of anv ~ employees not prohi:;ited by this section

~ proceeding under this subpart pending may not serve as a conduit for a before the NRC. ft communication that otherwise would be (2} Communications to or from fZ prohibited by this section or for an ex Commissioners. members of their parte communication that. otherwise personal staffs. Commission L would be prohibited by-§ 2.780.

adjudicatory employees in the Office of (f} If an initial or final decision is the General Counsel, and the Secretary stated to rest in whole or in part on fact and employees of the Office of the or opinion obtained as a result of a cretary, regarding- communication authorized by this (i) Initiation or dil'ection of an section, the substance of the vestigation or initiation of an communication must be specified in the enforcement proceeding; , record of the proceeding and every party (ii} Supervision of agency staff to must be afforded an opportunity to ensure compliance with the general ij controvert the fact or opinion.- If the policies and procedures of the agency; gi parties have not had an opportunity to (iii) Staff priorities and schedules or a: controvert the fact or opinion prior to the allocation of agency resources~ or u.. the filing of the decision, a party may

[iv) General ree1ls;atu,~. scientific. or :8 controvert the fact or opinion by filing a engineering principles that are useful for petition for review of an initial decision, an undcrslimding of the issues in a or a petition for reconsideration of a proceedin~ and arr. no: cor.ll!sted in lf't final decision that clearly and concisely proceeding. sets forth the information or argument (3) ~one of the comm:.mications relied on to show the contrary. If permitted by paragraph [b)(2) (i)-[iii) of appropriate, a party may be afforded the this section is to be associated bv the opportunity for cross-examination or to Commission adjudicatory employee or present rebuttal evidence.

the J\'RC officer or employee perfo~ming investigative or litigating iunctions witr.

the resolution of any proceeding ur.der  :::: ATOMIC SAFETY AND LICENSING APPEAL this subpurt p!endin~ beforf. the '.\RC a: BOARD u.

(c) Am* Comm1ss1on adi:id:ca!on employe*e wno recei;-es a*

• communication prohibited undei § 2.785 [Removed] 56 FR 29403 2-39 April 30, 1992

• ATTACHMENt .*2

• UNITED STATES Nl)CLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555,-G001 November 27, 1998 MEMORANDUM TO: Chairman Jackson Commissioner Dicus Commissioner Diaz Commissioner McGaffigan Commissioner Merrifield FROM: Karen Cyrcf<'~ {l _

-7....,

J General c~J;'el

SUBJECT:

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

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

In 1985 the Commission amende.d its Sunshine Act regulation, 10 CFR 9.100 et seg, to align its definition of meetings subject to the Act with the U.S. Supreme Court's guidance provided in FCC v. ITT World Communications, 466 U.S. 463 (1984). It promulgated an interim rule, made

• immediately effective, which changed the definition of "meeting" to exclude additional gatherings of Commissioners from the requirements of these*regulations. (Attachment 1) This more limited definition of what constitutes a meeting is the one currently codified in 10 CFR 9.101(c).

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

"Meeting" means the deliberations of at least a quorum of Commi_ssioners where such deliberations determine or result in the joint conduct or disposition of official business, but does not include deliberations required or permitted by§§ 9.105, 9.106, or_ 9.108(c), 1 gatherings of a social or ceremonial nature, or briefings of the Commission by representatives of other agencies .or depar:tments of the United States government, or representatives of foreign governments or international bodies* where such briefings or discussions are informational in nature and are 1

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

J not conducted with specific reference to any particular matter then pending before the Commission.

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

This statutory language contemplates discussions that "effectively predetermine

• official actions. n See S. Rep. No.95-354, at 19; accord id., at 18. Such discussions must be "sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual participating member to form reasonably firm positions regarding matters pending or likely to arise before the agency.ff R.

Berg and S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act 9 [1978] [hereinafter Interpretive Guide] .

• The 1985 Commission rule. incorporated verbatim the Supreme Court's language in the. ITT decision. The exceptions for "social and ceremonial" gatherings and for informational briefings by other agencies or international organizations were dropped, since under the amended rule they would be redundant. The Commission reasoned that the change would have beneficial effects and would improve its ability to do the public's business.

The ability to hold informal preliminary briefings can help assure that Commissioners are. well informed about subject areas well before any particularized proposal reaches them for consideration. The ability to hold free-flowing discussions of a variety of problems likely to face the agency, or to get together for brainstorming sessions, can foster both collegiality and sound.

management. It is through such generalized background discussions that Commissioners can decide what topics should become the subject of more

• particularized proposals, discussions of which would fall within the Act's definition of "meeting."

50 Fed. Reg. 20890 (May 21, 1985). The Commission perceived that under the amended rules, Commission "gatherings" involving such things as a general background briefing by the NRC staff on a technical issue common to a number of plants; informal discussion of problems likely to face the agency in the coming year, a discussion of the effectiveness of a particular office in meeting the Commission's needs, and a discussion of the state of relations between the Commission and its oversight committees or with other government agencies could be held without applying the Sunshine Act.

., \ ..

• The rule was made effective on an interim* basis in order to improve the conduct of Commission business in the interim by facilitating the flow of information to the Commission and fostering .::ollegiality, but will also enable the Commission to gain some limited experience with the rule change before making any decision on the final rule.

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

- the Commission promised the Congress by letter that it would maintain a record of all informal gatherings and keep the Congress informed on a monthly pasis of the nature of such gatherings. (Attachment 4) Subsequent to this* commitment, however, Representative Dennis Eckert of Ohio offered an amendment to an NRC authorization bill that would have barred the Commission from using appropriated funds to implement the rules. Although the legislation was

• not adopted, the Commission itself decided to defer implementation of the interim rules until it considered public comments and the results of a planned ABA study on the impacts of the*

Sunshine Act. The Commission informed the Congress of its decision to defer implementation in numerous Annual Reports on. the agency's Sunshine Act implementation that were issued from 1986* through 1992: (Attachment S)

A brief review of the Sunshine Act regulations fc:- :~her agencies has identified sixteen agencies, 2 for which the definition of a meeting does not go beyond that of the statute. i.e.,

deliberations of a quorum of members "where such deliberations determine or result in the joint conduct or disposition of official agency business." Four agencies, the National Transportation Safety Board, the Occupational Safety and Health Review Commission the Federal Election Commission and the Defense Nuclear Facilities Safety Board, have included some additional criteria to exclude certain gatherings from the definition of a meeting. (Attachment's)

The agency's interim rules on the Sunshine Act are currently effective and could be implemented by the Commission at this time. However, in view of the Commission's previous repeated representations to Congress, that it was deferring implementation of the interim rules, we believe it would be prudent for the Commission to proceed to consider the ABA's study results and the public comments on the interim rule and to publish final rules before implementation. For this purpose, OGC could prepare a notice and final rule package in 30 to 2

Equal Employment Opportunity Commission, Tennessee Valley Authority, Federal

. Energy Regulatory Commission, Securities and Exchange Commission, Commodity Futures Trading Commission, Consumer Product Safety Commission, National Credit Union Administration, Export-Import Bank, Federal Retirement Thrift Investment Board, Legal Services Corporation, Marine Mammal Commission, Federal Housing Finance Board, Foreign Claims Settlement Commission, National Commission on Libraries and Information Science, Federal Communications Commission and Federal Trade Commission.

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

Attachments: 1. Statements of Consideration for Rule

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

3. Ur dtd 6/6/85 fm Congressman Eckart to Chrm Palladino

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

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

6. Miscellaneous Regulatory Provisions

• cc w/attachments: EDO SECY OCAA CIO CFO

i,\

ATTACHMENT 1

• ~*

~-- . 1 PART 9

• STATEMENTS OF CONSIDERA~ION iJL~ru1e Reallldal:rRmbllUJ Act unanimous 1884 declalon of the United States Supreme Court In federal

'11le 6na1 ruie would revise.the fee ~C. iSZC*1(4KA) reqalres die NRC. Communications Comminion v. /77' ule aet forth In 10 CPR 8.H(a) to *ii a em agency, lo promulgate World Communications, - U.S.-.

reD the new prfcifi1 for the copying of reguJ ona **** tPedfJlnl* uni/onn 104 S.CL 1938. The Comml11lon believes NR recqrda that have resulted from the 1clied offeeHppllcablt-toall

• that thl1 change would erve to aw of the new contractfor the coriati ntwnftaof uchagency.*

effectuate the Congre111lonal Intent that n uctlon ofrecorda at the PDR. In ~:r,ha added). Therefore. DO background briefings and generalized addl n. I 9.14(a)(5) of the fin1d rule y1Jli any dlffaren6al Impact GD discussions of agency bu11lne11 not be p,ovl for any future changes In . mall en . 1u aece1ury. considered meetings" for Sun11hlne Act charge to become Immediately* Pa~ ucllon Act Statement purposes, and that adherence to e ectl for the Interim period pending statutory standards will help asaure compte on of the Cominlaaion'1 'l'hllfinal collection req mentl and therefore la both fuller Information for the nl111111ucu:1J1 to eetabll1h the new fee not 1ubJect to e requlrementa of the Commissioners and greater colleglallty

• 1chedul Thia provision will ensure :hat Paperwork Red ction Act *or 1980 {44 In their performance of their dutie1. The the full duction co1t will be home u.s.c. 3501-et 18 ). rule change will be applied on an by the p on requesting the record( Interim basis, pending s11bml111lon and and will. t require the NRC to U.t of SubJecta evaluation of comments and publication 1ubsJdize production cost_ during the

• Freedom of Info of a final rule.

Interim od.  : Privacy, Reporilng d recordkeeplng EFFECTIVE DATE: The rule change will be

. The fi.qal e will alao delete those requirements, Suns e Act. effective on an interim basis on May 21, vialona I. 9.14(a) that do not For the reasons et t In the . 1985. Comments on whether the Interim to th price to be charged for the preamble and under authority of the

• rule change should be made final must of re orda. Accordingly, the Atomic Energy Act of 1 , a, amended, be received on or before June 20, 1985.

and ad II of the current -the Energy Reorganlzati Act of 1974, Comments received after this date will contractor In 8,14(a)(3)[il) and the

• as*amended, and & U.S. 3, the NRC be considered If It ls practical to do so, billing Inform* on In f 8.H(a)(t)[v) and la adopting the following endmenta to

• but a11Burance *or consideration cannot I 1.H{a)(3)(il) ave been deleted. In the 10 CFR Part 8. be given except as to comments future. thls Info ation will routinely.be received on or before this date.

available from e PDR. . ADDRESSES: Interested persons are In addllion to e above revisions, all '48 FR 31259 Invited to send written comments or of which were p posed In th'e Federal Published 8/6/84 suggestions to the Secretary or the Reglater Notice o June 21, 1984, the NRC Effective 8/6/84 Commission, U.S. Nuclear Regulatory Staff has recomm nded that the charge Commission, Washington. D.C. 20555, pecified In f 8.14 )(1) for the copying Attention: Docketing and Service of record atloca ns other than the Branch. Comments may also be 10CFRPart9 delivered to Room 1121, 1717 H Street, PDR conform to th new charge 1pec:ified In I 8.14( {1)(1) for-the copying NW., Washuigt~.i. D.C. between 8:15 Chargn for .the Productlon*of Records a.m. and 5:00 p.m. Coples of any

.of records at the The charges

,peclfted bi theae 1ecUon1 have Correction docuinente received may be examined tradiUonally \,een th same In order to al the NRC Public Document Room, 1717 In FR Doc. 84-20177, beginning on

• H Street. NW., Washington, D.C. 20555.

equitable trea ent to those oa with access t

• the PDR. and page 30457, In thelsaue of Tuesday, July FOR FURTHER INFORMATION CONTACT:

. who do not hav accesa to the 31, 1984, on page 30458, Ip the first . Peter Crane, Office of General Counsel, In order to main In thla policy, the column, In paragraph "1.", ln the *Unlled States Nuclear Regulatory final rule haa revised .14(b)(1) to authority for Subpar.t A. In the second Commission, *Washington, DC 20555, 1peclfy a charge of aev cents per page. line, "31 U.S.C. 9710" should read "31 telephone: 202-634-1465.

The final rule will be edlately u.s.c.

. jk.,. 9701".

effective upon publlcati The

~mmiarilon believe!I th good cause ~ F.R 20889 SUPPLEMENTARY INFORMATIOU: The txllll under & U.S.C. 653 ){3) to waive Published 6/21/85 NRC'1 current Sunshine Act regulations the uaual 30-day delay In e lffective . Effective on an Interim (10 CFR f 8.100-109), define a "meeting" date of a final rule. U1era f the PDR basis on 5/21/85 as follows, at 10 CFR I 9.101(c):

were notlBed on May zz. 1 that a Meeting" mean the dellberatlonc or at new contract WBI being a ed and 10CFR Part9 lea1t I quorum* of Comml11lonen where aµt:h were notified on June a. 1 of the new deliberation detennlne or re1ult In the Joint-contract prices. '"1erefore, en of the Government In the Sunshine Act

• conduct or di1po11tlon of official buslneH, PDRhad ~ reasonable oppo ty to Regulation* but doe not Include deliberations required or prepare for the reviled fee edule permitted by-H 11.105, 11.106, or 9.t08{c), 1' .

AQENCV: Nuclear Regulatory salhering1 or a 1ocl1l or ceremonial.nature, or contained hJ thla 6nal rule. addition,

• Commission.

the NRC ha1 been ubsl the* briefinss or the Commlaslon by ACTION: Interim rule .with request for repreentaUve or other sencle1 or dlfl'erence In co1t between th Id fee departmentl or the. Unlt!!d State government.

ICbedule and the new fee lch ule. comments.

or repreaentaUve *or rorelsn government or pending the effective date of final IUMMARV: The Nuclear Regulatory lntematlonal bodle1*where 1uch briefing* or.

rule. An Immediate effective will Comml11lon ls maklns an.Interim rule dl1cu11lon1 lire lnfo~ational In n_ature and eliminate the unnece11ary co1ta\l:IIC1l11Te change to confonn Its definition of a

. through th1 contlnµed 1ub1ldy. "meeting" under the Govemmenl in the place full reproduction co1t-* Sunshine Act (5 U.S.C. 552b) to the 1 The,e thrH aectlou deftnlllon rerer to penon requesting the records. procedwe9 _ror lmplemenllnc the Sunahlne Act ltel{.

1tatutory Intent, as clarified ln the and ha,.. no bearlna on the Commlaelon'a conduct or Ila enr;day dullet ander the Atomic Energy Act.

F.llftl'ln, Recirsnlullon Act. and other atatutea.

ATTACHMENT 1

PAR'r 9

• STATEMENTS OF CONSIDERATION are not conducted with 1peclfic reference to written by Justice Powell. revened lhe The Court ~oted lhat1rrr had not any p11rtlcylar-matler then pencfina before the D.C. Circuit's holding. Its discussloo of alleged that the Conference 1es1lon1 Comml11lon. .* . *the ineanlng of "meeting" under the Included formal action on applications It \\ill at once be noticed that the only Sunshine Act Is worth quoting at some before the FCC. nor that ihe aes1lon1 type or briefing which ls explicitly length. "resulted in firm po11Uona on particular exempted from the definition of Congres1 In di'aftlng the Act'* definition of matters pending or likely to arise before "meellng" is a briefing by a "meeting" recognized that the adminlstralive. the Committee," Rather, lhe conference representative of another agency or process cannot be conducted entirely In the sessiom "provided general background department or a foreign or international public eye. "(l)nfonnal background lnfonnatlon to the Commissionen and body. Ukewise. the only type of

• discussions (that) clarify issues and expose permitted them to engage with their "gathering" or Commissioners whichls . varying views" are a neceasary part of 11n foreign counterparta In an exchange or expressly exempted from the definition 11,sency'1 work. See 6. Rep. No.94-354. 11119 vlewa by which declslona already 11 one of a "social or ceremonial (1975). T"nc Act'* procedural req11irement1 reached by the Commission could be effectl\*ely would prevent 11uch discuaslon1 nature." Thus under lbe NRC's and thereby Impair nonnal agency operallona Implemented.~ The Court added: "A* we regulations, the following types of without achlevlns 1lgnificant public benefiL have noted. Congress did not Intend the*

meetings would all be subject to the Section SSZb(a)(Z) therefore limlta the Act's Sunshine Act to encompaas auch Sunshine /\cl~s meeting requirements: a* appllcallon to meetings "where at leasl a discussions."

general background briefing by the ?\;"RC quoNJD of the agency's The Court observed that the D.C.

ataff on a technical Issue common to a membern , ** conduct or dispose of official Circuit had not found that the FCC number of plants; Informal discussion of agency bu1lnes1." S. Rep. No. ~54. at 2. Commissioners at the conference were problems likely to face the agency In the coming year: a discussion of the a

In footnote, the Court reviewed the pertinent legislative history:

actually deliberating oo matters "1ithin their formally delegated authority:

. efrectiveness*of a particular office in The evolution of the 1t11tulory languuge rather, the lower court had Inferred an eting the Commission's needs; and a reficcls the congressional intent precisely to authority, not formally delegated, to cussion of the state of relations define the limlled 1cope or the .statute's engage In discussions on behalf of the tween the Commission and Its requirements. See generally. H.R. Rep. No. Commission. The lower court "then ersight committees; or with other ~ . Part z. at 14 (1976). For example, the concluded that these discussions were government agencies. It is the Senate 11ub11Uluted the tenn "deliberations" deliberations that resulted In the

- Commission's ,*iew that the Supremt: for the previously proposed tenns- conduct o( official agency busineSB. 111 Court's 1984 decision In FCC v. /Tr "assembly or lmultanei>us communication," the discussions 'play[ed] an Integral role H.R. 11656. IMth Cong .. Zd Seas. I 552b(i1}(2l World Communications, - - U.S.--, or "gathering, S. 5, 941h Cong.. 1st Sess. in the Commission's policy-mak~

104 S.Ct. 1936, strongly suggests that .§ 20t(al (1976Hn order to "exclude many processes.' [citation omitted]"

none of these topics necessarily falls discussions which are informal la nature." S. The Court categorically rejected the within the class of discussions that Rep.94-354, at 10: see id., al 18. Similarly, Court of Appeals' reasoning:

triggers the "meeting" requirement of the

• earlier versions or the Act had applied to any We view the act differently. * *

• Under Sunshine Act. agency discussions that "concern[ ) the Joint the reasoning of the Court or Appeal,. any In 1984, the Supreme Court provided conduct or disposition or agency buslnesst group of memben who exchange vlew1 or its first guidance on the Sunshine Act. H.R. 11656, supra. § 55Zb(a)(2). The Act now gathered lnlormaUon on agency bualneu FCC v. lT/' World C()mmunicatlons, appliea only to deliberation* that "determine apparently could be viewed as a "1ubdivf1lon or re11ult In" th~ conduct or "oifi-:lal agency * *

• authorized to act on behalf of the

- - U.S.--, 104 b.~t. 1936, was business." The Intent of the revision clearly decided by a unanimous Court on April was to pennlt prelimlnlll)' discussion among agency.** *

• Moreover, the more expansive 30, 1984. The case arose when three agency member,. See 122 Cong; Rec. 28474 view of the term *1ubdlvl1lon" adopted by members of the FCC. a,nstituting a (1976) (remarks of Rep. Fascell). the Court of Appe11la would require public orum of the agency's attendance at a boat of lnfonn11l The Court then explained that though convenaUons of the type Congre111 ecommunications Committee (a the FCC'* Telecommunications underatood to be necenary for the effective dMsion to which declsionmaking Committee was subject lo the Sunshine conduct of ragency bulnes.

ower had been delegated) traveled to Act (since it could act on behalf of the Europe to take part In an International agency, under a delegation of authority The interim nile Incorporates conference of telecommunications from the Commission as a whole), it did verbatim the Supreme Court'* language regulatora>An American company, not appear that the Committee had. by In the 1TI' decision. The exceptions for aware that the FCC Commissioners participating In the International * * "social and ceremonial" gatherings end plaMed to use the conference to argue conference, engaged In "deliberations for Informational briefing* by other for Increased competition In the *[that] det~nnlne or result In the joint agencies or International organizations provision of telecommunications conduct or disposition of official agency are dropped, since wider the proposed services, filed suit In District Court. business." The Court offered a definiUon rule they would be redundant. The charging among other things that the of this by no meana self-explanatory Commission believes, baaed on.almost presence of a sufficient number of language: . 1 eight years or operation under the Commissioners to decide agency current niles. lhal a decision lo conform business rendered the International Thia tatutory language contemplates Its regulations lo the literal requirements conference a Commlsslon*"meetlng" dlscuaslon1 that "effectl\'ely predetennlne of the statute** interpreted by the officl11I a~on11." See S. Rep. No.95-354. 11119; under the Sunshine Act, and that the* accord id., al 18. Such diacuaslona must be Supreme Court will Improve Ill ability to meeting was required to be held In the "ufflciendy focu1ed on discrete proposals or do the public's b111lne1111. The abUity to open. The District Court ruled for the l11uea s to cause or be likely to cause the hold lnfonnal preliminary briefingi can company, as did the D.C. Circuit Court lndivfdu11I participating member to Conn help assure lhatCommiastonen are well of Appeals, In a decision .written by.. . reaaonablr firm poalUona regardlns mattera Informed about .1ubJect areas well

• Judge Bazelon. pending or likely to arl1e before the agene1*." before any particularized proposal The Supreme Court. in a 9--0 decision R. Bers and S. Klitzman. Ao lnterpreUve *

• Gulde lo the Govemmenl In the Sunshine Act reaches them ror,conalderatlon. The 9 (1978) (herelnarter lntcrpreth*e Gulde) .. ability to hold free-flowing discuaslona of a variety of problema likely to face

PART 9

• STATEMENTS OF CONSIDERATION i,i the agency. or to get together for In addition, In the interest or lhti deruutfon of meetina t~ permit private

• Nbrafnttormlng aesalo111," can foster

• efficient use of re10urce11, the CommlaJon dJscustom many briefings both coUeglallty and 1ound Commission 11 amending Its rules to or. other Comml11fon 1ea1lons devoted mm;aagement. It !1 through such clarify that Sunshine-Act recordin(ls, to 1peclfic Initial licemlng ca1ea or the 1eneral:fzed bacqround, discuasions that transcripts, and minutes of closed TMI-1 re1tart cue. In tbts mterim Commissioners can decide what topics Commission meetings will be reviewed period Initial licensing and TMl-1 1hould become the 1ubfect of more for "cJosabilily" onJy when a request Is restart will. as matter or policy, be particularized propoals. discussions of received. The Commission agrees with governed by the "old" expansive whJch would fall within the Act's the position taken in this regard by the definiUon of "meeting".

del'mition of "meeting."" Federal Communications Commission, En,ironmenllll Impact-Categorical In 10 changing Its rules. the which likewise found that fl would be a Exclusion

• Commission would In no 1ense be waste of public funds to review 1eeldng to evade the Sunshine Act'1 transcripts In which no one has e\inced The amendments amend the requirements. Rather, It would be giving any Interest. Moreover, since the Commission's rules relating to the belated recognition to the fact- Commission's present rules require the . Sunshine Act codified In 10 CFR Part 9 understood by the Congreaa and Commissioners themselves to be and therefore meet the eligibiUty criteria rearrarmed by the Supreme Court-that consulted on these review* the present for the categorical exclusion set forth _in ome types of lnfonnal discussions, rule Is an unnecessary burden on the 10 CFR 51.Z2(c)(1). Accordingly,

• necessary for sound agency functioning. time of the Commissioners. As revised. pursuant lo 10 CFR St.22(b). no

• do not belong within the purview of the the rele\*ant subsection provides that the en\ironmental Impact 1latement or

• Sunshlne*Act.

• review will take place-if.requested en\ironmental assessment need be witliin the period during which .the prepared in connection with the recording. transcrlpL or mlnuies must be issuance of the amendments.

• one other ~spect. th.e Commission retained. The provision for review by

- c e d on itself a restriction that other the Commissioners at the end of the Paperwork Reduction Act Statement agencies did not 1ee fit to adopt. The meeting itself Is dropped from the rule. The rule contains no information NRC's rules provide that when a as this pro\*ision is impracticable and is collection requirements and therefore is meeting ls closed. one of the following not currently used.

• not 1ubject to the requirements of the

... two alternatives must be adopted: While the Commission is seeking

• Paperwork Reduction Act of1980 (44

. either, (1) '.l'he Comission itsei.f. as the

• public comment on the rule change, it U.S.C. U 3501 el 1eq.).

.' last Item If business In the meeting. has decided lo make the role effective Lisi or Subjects in 10 CFR Part 9

reviews the course of the meetng and on puLlica tion on an 1111erim basis

. decides which portions of the transcript pendin[i submission and evaluation of Freedom ofinformlition. Penalty .

or recording can be withheld. or (2) the comments, and publication of a final Privacy. Reporting and recordkeeping Secretary. "upon the advice of t.ie Office rule. It is authorized to do ao because requirements. Sunshine Act.

of General Counsel and after consulting the change to 10 CFR § 9.t0l(c) is both For the reasons set out in the with the Commission. shall make such an Interpretative rule_ and a rule of pr*

• mble and ur. .!er the authority of the

• . detenninationa." ,hese rules apply agency procedure, and the changes to 10 Atomic Energy-Act of 1954, as amended.

.* whether or not anyone has evinced any CFR § 9.108(c) is a rule of agency the Energy Reorganization Act of 1974.

Interest in learning the nature of the procedure. Such rule changes are as amended. and*su.S.C. 553. the NRC

. Commission** discussions. exempt from proposed rulemaking and is adopting the follo\\ling amendments to er agencies have*takcn the deferred effectiveness under 5 U.S.C. 10 CFR Part 9 on an interim basis. As on-sense view that they wiU I 553 or the Administrative Procedure noted. public comment is solicited c1s to w the transcripts if and when Act. The change to 10 CFR I 9.t0l(c) is whether they should be made final.

someone asks for them. The Federal interpretative because*it merely .

- Communications Commission. in specifies the Commission's Separate Statement or Chainnan promulgating its Sunshine Act interpretation or the term ..meeting" in Palladino-Sunshine Act Rulemaking regulations In 1977, dismissed the the Sunshine Act, Batterton v. Marshall. I fully 1upport the proposal el forth In 1uggestion that every transcript of every . 648 F.2.d 694, 705 (D.C. Cir. 1980). The

• this notice of rulemaking to change the closed meeting should be reviewed as a changes to 10 CFR 9.l0l(c) and 10 CFR Commission' Sunshine Act rules.

matter of course (and later re*te\*iewed 9.108(c) are rules of agency procedure However, I ~iaagree with the policy jf any portions continued to be because they qnvem how the decision to use the revised definition of withheld). The FCC said: Commission t<.lnducts Its business and a "meeting" durir.g the Interim period We reject lhe proposition lhHI the do not in any way alter the substantive during which public comments are lrllmcript of each cloted meetiRB should bf' rights or Interests or persona affected by received and a final rule f1 published.

miewed regularly lo de11:rrnlne whether ii Commission action. Batterton \". I doubt the usefulness of 1uch Interim can.be made nailable to the public. The Marshall, supra at 7r!l. application. U, on the one hand. the proposition Is Impracticable. * *

• Many or Making the rule change eCfeclive on Commission applies the new definition lhe matlen acted on by lhe CommiAsion In an interim basis will not only improve narrowly-that la. if It exempts from the closed meelings should be or littlP. or no the conduct of Commission business in definition of "meeting " only the dearest lnte~st to the general public and should or caaea-then It will not gain much of rarely be made lhe subject or requ~11t1 for the interim by faciJitating the flow or transcript* A periodic review or uch infonnation to the Commission and value from Interim applit3tion. lf, on the tniMCript would be a wa te of time and rostering collegialaty, but will also

• other hand, the_.Conunlssion applies the p11Llic fund

• Transaipts may be placed in enable the Commission to gain some new definlUon broadly. then It risks the public file jut after the meet:ng l11 held. limited experience *with the rule change potentially counter-productive but otherwise will be rc,*iewcd onlv when -before making any decision-on the final consequences for its overall objective lo requela for copies are i,ocr.i,*cd. 42 Fed. Retl. rule. However. In this interim period the confonn Ila ruJea to the Sunshine Act.

J!?8(;." (March 7, l!r.7).

Commission will not be using the n~w

.,. PART 9

• STATEMENTS OF CONSIDERATION Separate Views of Commissioner the purpose of which was to pro,*lde the .

Auelatln* public with ~the fullest pr11cticabl~

I approved publication or the lnformatlon*regarding the propo1ed changes to our rule . declslonmaklng proceue, or the Federal Implementing the Sunshine Act only In Government" (P.L No.94-409 I 2). l1 .

order to obtain comment on those clearly a nile In which the public haa an lntereaL The Commission should await changes. However. I ha\"e significant public comment before putting the rule concerns about the difficulty of Into effecL The Commission has administering the proposed ;tandard operated under Its present rule for eight which make it Impossible fqr me to= yean without catastrophe. Waiting endorse the propo1ed rule. I particularly thirty more day, for public comment.

Invite comment on the concerns hardly *seems to be an onerous burden*

. expressed below. I The Sunshine Ac;t la not an easy act to Interpret or to apply~ Thia la the primary reason the Commission's present regulation was written as It was. The Commission*, regulallon 1ets up a bright line ror determining what constitutes a meeting'and what does noL Whlle the Comff!ission mey ha\*e given up some ftexlb1lity when it setup that bright line standard. It did 10 with a re*aaon. A standard which provided more flexibility would, of necessity, have

.been less certain and would have created problems of interpretation.

Adopting a more flexible standard would have made It easier for the

• • • Commission to misapply the Act ln~dvertently In a particular case.

0 The standard In the proposed rule

- 11.iffers from just these.problems.

- Because the standard vague andis subjective, it will be much more difficult to administer than the present standard.

Pr_edictlng whether a particular meeting

• will consist ~r di1cusslon1 "sufficiently

-- focused on u1acrete proposals or iasues

. H to cause or be likely to cause the

Individual participating members to

. form reasonably firm positions regarding

.. matters pending orUkely to arise before t~e agency" will require nothing short of divination. And. If the Commission * .

• guesse wrong; there ls no remedy because if there is no "meeting" there will be no notice, *no transcript and no minutes.

Uthe Commission insists on going forward with the proposed rule. it should a least ba\*e made clear ln the statement of conslderaUons what change to present practice the rule ls.

Intended to effecL_Tbe Commission

• hould.have explained. with concrete examples, exactly what kind of meetings now held by the Commission will be treated a "gatherl!'lg11** under the proposed rule. Or. If the Intent ia to create a new t)-pe or meeting not now held by the CommlHlon, that should have been made clear.

I also cannot support the Cornmlss!on'1 decision to make this rule

• Immediately effective by applying It while the comment period runs. A rule changing the manner In which the Commission Implements the Government ln the Sunshine- Act. an act

ATTACHMENT 2

• jOIIN D. DINGUL, M1CHIGAH. CHAIRMAN

,-.,

• olAMU H. SCHEUElt NEW YORK ..' JAMES.T. IIROYHIU. N0IITH CAR0UNA IIENIIY A. WAXlofAN. CAUf0l'INIA N011MAH F. LENT. NEW Y0IIK .

llllD1NY L W11111C. COIDIIADO.

. . . . IL.-.INOWfA :* **

EDWARD IL MAllf!Wt WNOIS .

-CM.OS-.1.MOORHEAl>.CALIFOIUtlA .

11.6. J,oust of lttprt,tiltatibt-'

JAMES J. RDIIIO; NEW JEIISEY IDWAIII J. MAIIQY, MASSACIIUSfflS' lll0MAS A. LUKEN._ OHIO.

MAmiEW J. IIINALDO, NEW JERSEY WIUWI I!. DANNEM£YEII. CALIFORNIA .

101 W'll'ITAICEft. KANSAS omttdttte *on .enerm, anb Commerte DOUG WALGIIEN. PENNSYLVANIA:

IAIIUM A. MIKULSKI; MAIM.AND TH0UAS J. TAUKE. IOWA DON llfl1EII, PENNSYLVANIA

.Boom 2125. ltapbum *out emu **dlbfnr AL SWIFT, W~HINGTOH DAN COAT$. INDIAHA llollCICEY LElAND. TEXAS IIICHAIIO C. SHRIIY, A1A8AMA nt0MAS J. IIULEY, .Ill,, VIRGINIA JACIC fla.DS, ll:XAS. llaibfngtort. 18£ 20515 CAIIIIISS COWNS. IWNOIS MICHAEL G. OXLEY. OHIO MIKE S1'NAII. OKlAHOMA HOWAIIO C. NIELSON. UTAH.

W.J. "'IIIU.r TAliZltl. LOUISIANA MICIIAEL BIUIIAKIS. FLORID.\

110N WYDEN. OREGON DAN SCHAEFER. COLORADO

• IIAlftt M. HAU. TEXAS* FRED J. ECKERT. NEW YORK DENHIS E. EClCAIIT. OHIO WAYNE DOWDY, MISSISSIPPI June 3, 1985 IIU. RICHARDSON. NEW MEXICO JIM SIATTEIIY. KANSAS GEIIIIY SIKORSKL MINNESOTA JOHN BRYANT. TEXAS

• JIM BATES, CALIFORNIA WM. MICHAEL ICITZMfllEJI. STAFF DIRECTOR THOMAS M. RYAN. CHIEF COUNSEL Honorable Nunzio J *. Palladino Chairman

• Nuclear Regulatory Commission 1717 H Street, N. w.

Washington, D. c. 20555

Dear Mr. Chairman:

At the May 21, 1985 hearing of the Subcommittee on Energy Conservation and Power, the Subcommittee examined the Nuclear Regulatory Commission's (NRC) action to amend its Sunshine Act regulations. Because of our continuing interest in these procedures, we request the Commission provide the Congress and the public with additional information as it inj'"ia':es its new procedures.

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

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

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

• "gatherings" of a quorum of the-Commission. The reports should include the date of all such "gatherings" that took place that

.month, the persons in attendance, a list of the documents discussed or provided at the "gathering," and a specific '6' description of the subject or subjects discussed. These reports ,U-will assist the Committee in fulfilling the oversight tA.

responsibilities entrusted to it under the Rules of the House of 11 Representatives. ~

ATTACHMENT 2 01

Hono,rable Nunz{ ~J. Palladino

. ,J-une 3 , 19 8'5

_Page 2_

We recognize, and appreciate, the concern expressed by several Commissioners at the May 21 hearing that the -Commission needs to conduct its business in an effective and efficient manner. It is no less important that the Commission, as an ag~ncy entrusted to protect the public health and safety, be fully accountable'*for its actions. We expect that the Commission's compliance with our request for additional accountability can be accomplished in*a manner consistent with the other concerns ex~ressed at the hearing.

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

Sincerely, Chairman

"/

EDWARD J".i!y4r-"" CARLOS EAD

. Chairman Ranking ority Member Subcommittee on Energy Subcommi ee on Energy onservation and Power Conservation and Power

ATTACHMENT 3

WASHINGTON OFACE:

1224 LONGWORTH BUILDING

_,.. Ml:Pfl~ER:* WASHINGTON, D.C. 20515

-':o~ON . .l 1202) 225-6331 t~l Et .'lY & COMMERCE

. COMMITTEE QN . . DISTRICT OFACE:

EDUCATION & LABOR 9040 MENTOR AVENUE COMMITTEE ON MENTOR, OHIO 44060 SMALL BUSINESS (2161 522-2056 AT LARGE MAJORITY'WHIP CONGRESS OF THE UNITED STATES TOLL FREE 1-800-457-7375 HOUSE OF REPRESENTATIVES WASHINGTON, D.C. 20515 .

June 6, 1985 The* Honorable Nunzio J. Palladino Chairman Nuclear Regulatory Commission 1717 11 HII St re e t ,

• N. W.

• Washington, D.C. 20555

Dear Mr. Chairman:

I would like- to reempha~ize my dismay, first expressed to jou at the May 21*, 1985_Energy Conservation & Power Subcommittee hearing, at the Commission's detision to amend its Sunshine Act regulations ,to n.llow more Commission meetings to be held in secret.

The Commissi-0n 1 s new rul*e, distinguishing betwien closed 11 gatherings 11 and open 11 meetings,".violates both the* spirit and the purpose of the*sunshine Act. It is., quite sim~ly, bad public policy. Institution of a.practite of secrecy instead of a pre-sumption of 9penness .is in direct co~traventio~ of Cong~ess 1 historic~l intention that, to the maximum extent possible, agen-ci e s do i n g the pub l i c bu s i ne s s s h ou1 d . s e e- k to :do th at b us i nes s i n the open. _ _ . _

In the absence of public participation in the Commission 11 gatherings, 11 how are we to know whether the Commissioners have in fact crossed the line from 11 brainstorming-11 into decision-.making?

At the May 21st hearing, you were asked thesecµest*ions, Mr. Chair-m~n, and your response was that we would "know by the outcome. 11 This is not acc~ptable. If we 1re to learn f~om the outcome that

-the Commission has made a-decision adversely affecting the public interest, we will have learn.ed toci late.

Further, the -Commission's d~cision to preclude public comment oh the rule change until after the new rule is already in effect adds insult to injury. The record of the May 21 hearing

• shows that no Commissioner was able to explain to my satisfaction ~

th~- reason fo~ NRC 1 s rtish to implement the new*rule prior to - ~

.obtaining public comment. Instead, Commissioner Zech ~xpressed \

the Cammi ss ion I s expectation that the public s haul d .have some f;'

tr ust an d con f i de n ce in the Comm i s s i on I s de c i s i on s . Ye t th e

= .

Commission forced through this change in its regulatio~s overnight, ~

ATTACHMENT 3 01

I

-r

• \

'\* ......

-' . i) n 2

1 ,. ~i reversing*eight *years of Commission policy, without giving that

. publ-ic whose trust i-t expects ariy *chance to be heard.* In so doing, the C"ommission *has created a definite_ impression .tha*t it has something to hide from the ptiblic it supposedly represents. This is hardly an effective way to insp*ire *confidence. On the contrary, it achieves precisely the opposite effect~ The Commission has succeeded in nothing but* fostering mistrust and suspicion:.

Even the Administrative**conference report so dften cited by the Commi~~ion in support-*of its actions strongly recommends that agencies comply ~ith long established notice and *comment*pro-cedures -unles-s it :finds that p*ublic notice and comment would be llimpr.:.acticable-,*unnecess:ary, or contrary to the* public i-nterest. 11 I* Rndw-of no -~uch finding _by the NRC, ~nd doubt .very much -if*

one could. be- faihioned as*a pos*t-hoc ratio~alization. Unless some satisfactpry explanation is forthcoming, I will tontin~e to

• bel_ieve your ac1;ion*-was at best "impracticable, unnecessary, and contrary to *the public interes.t. 11 I am of course aware of the letter recently sent to the

• Commission by Chai*rman *oi-ngell ,_ *Chairnian Markey,* Mr. Broyhill and Mr~ MOQrehead, requesting.that the Commissi~n provide informa- ~

tion on proceduras it will follow in implementing *the new rule, as well as monthly public listings of the Commission's non-Sunshine gatherings and a more detailed monthly report on those 11 11 gatherings for the Congress._ I wish to make it* clear that I*.vtew the* provision of such information* as the very least the Commission must do 9 or t~e time being, ~nd is, in ~Y opinion, only a tempo-rary measure*. Telling* the public "yo_u have*met in secret after the fact is in effect*no _better than simply meeting in secret~ The public is best .protected wheh decisions affecting them are, *in fact,* made in pu.b11c *. Erecting ~r~i-ficial*b~rrfers or~creating

. after the fact rat1Qnale for dec1*s1ons* made 1n secret 1s scant

• protection for the public intetest. * *

. I still intend to introduce. legislation which.will rescind the Commi*ssion'-s new. closed meeting rule. Only through full and open debate will the public's fuhdamental right to protection of its interesti be maintained. *

, I look forwa*rd to you*r

ATTACHMENT 4

UNITED STATES NUCLEAR REGULATORY COMMISSI.ON i.1 WASHINGTON, D. C. 20555 June 6, 1985 The Honorable John Dingell, Chairman Committee on Energy and Commerce United States House of Representatives Washington, D.C. 20515

Dear Mr. Chairman:

This is in response to your letter, dated June 3, 1985, concerning the Commission I s changes to i-ts Government in the Sunshine regulations.

Your letter asked that we provide the Committee with the Commission's written procedures for implementing the new rul~.

The Commission has not yet finalized any implementing procedures *.

No non-Sunshine Act gatherings have yet been held. Our staff is developing procedures for Commission review, and we will be pleased to provide them to you as soon as they have been agreed upon.

The Commission will maintajn a record of all informal gatherings not subj3ct to Sunshine Act require~ents, and will keep the Con gres s a nd the pub l i c i nf orm e d on a mo nth 1y ba s i s of the n.a tu re of such gatherings as you requested. Consistent with that policy, the date, participants and subject of such gatherings, including a list of any documents that were the subject of the discussion,

• will be recorded and m~de available to the oversight Committees of the Congress. A monthly listing will also be made available to the public.

The Commission's revisions of its Sunshine regulations were intended to foster collegiality and improve its ability to do the public's business, and do not compromise or circumvent the requirements of the Sunshine Act in any way. The Commission trusts that the above procedure for advising Congress and the public, and the final procedure when adopted, will be helpful to th~ Congress in the _exercise of its oversight responsibility.

Sincerely, n4faY"'if.

Nunzio

• ,.-?Ji;

\,;

. Palladino tif<1.rl,--.--

ATTACHMENT 4

L ..*.. **\ .\

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. -:.: . *-*~~~..

* , !'.~R REGt,1_

.** . . ....,.,.o~

• -, UNITED STATES n .

.* </!*. (\0 NUCLEAR REGULATORY COMMISSION

~. C WASHINGTON, D. C. 20555 i.l

' ~

Q

~ ,;;

~+. £,

"'*** ... ,.."'o ,r June 6_, 1985 CHAIRMAN.

The Honorable James T. Broyhil.l Ranking Minority Member Committee on Energy and Commerce United States House of Representatives Washington, D.C. 20515

Dear Congressman Broyhill:

Th i s i s i n r e-s po ns e to you r l et t e r , d a t e d J une 3 , 19 8 5 , c on c e r n i ng the Commission's changes to its Governm*ent in the Sunshine regulations.

Your letter asked that we provide the Committee with the Commission's written procedures for implementing the new rule.

The Commission has not yet finalized any implementing procedures. ..

No non-Sunshine Act gatherings have yet been held. Our staff is develop*ing procedures for Commission review, and we will be pleased to provide them to you as soon as they have been agreed upon.

The Commission will maintain a record of all informal gatherings not su~ject to Sunshine Act requirements, and will keep the Congress and the publi-c informed on a monthly basis of the nature of such gatherings as you requested. Consistent with that policy, the date, participants and subject of such gatherings, including a list of any documents that w~re the subject of the discussion,

• will be recorded and made available to the oversight Committees of the Congress. A m6nthly listing will also be made available to the public.

The Commissi.on's revisions of its Sunshine regulations were intended to foster collegiality and improve its ability to d6 the public's business, and do not compromise or circumvent the requirements of the Sunshine Act in any way. The Commission trusts that the above procedure for advising Congress and the public, and the final procedure when adopted, will be helpful to the Congress in the exercise of its oversight responsibility.

Sincerely,

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• Pa 1 l a d i no

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ATTACHMENT 5

• - -UNITED STATES NUCLEAR REGULATORY-COMMISSION WASHINGTON, D, C, 28555 Apri 1 21 , 1992 The Honorable J. Danforth Quayle President of the United States Senate Washington, D.c. 20510

Dear Mr. President:

In accordance with Section 3(j) of Public Law 94-409 (5 u.s.c. 552b(j)), I am enclosing the Nuclear Regulatory Commission's Annual Report of the Administration of the Sunshine Act for Calendar Year 1991.

Sincerely,

Enclosure:

As stated Ivan Selin ATTACHMENT 5

11. REQUESTS TO OPEN*MEETINGS The Commission's rules describe the procedure to be followed by a person who wishes to request a change in the status of a closed meeting. 10 CFR 9.106(b) and (c) provide that "any person" may ask the Commission to reconsider .its decision to close a meeting by filing a petition for reconsideration. Any such petition must specifically state the grounds on which the petitioner believes the Commission ~ecision is erroneous and the public interest in opening the meeting. All requests, formal or informal, are referred to the Commission for decision.

Filing such a petition does not automatically act to stay the effectiveness of the Commission decision or to postpone the meeting in question.

No requests to open a closed Commission meeting were received in 1991 *

• 1.2. FORMAL COMPLAINTS There were no formal complaints filed in 1991 relating to close~ Commission meetings.

13. EX PARTE COMMUNICATIONS The Commission's regulations on ex parte communications and separation of functions were adopted in final form on March .23, 1988 (see Appendix F). The Commission's rules conform to the requirements of 5 u.s.c. 557(d). Thn separation of func~ions rule pr~cludes private Commission communications with the NRC staff about a matter at issue in a formal adjudicatory proceeding only if the staff member participates in investigating or litigating functions in the proceeding. A prior version of the rule precluded the Commission from private communications with any member of the NRC staff whether or not the staff member was involved in a proceeding.

14. NRC RULE CHANGE In May 1985, the commission published a new interim rule implementing the sunshine Act with a request for concurrent public comments to be considered before determining whether the interim rule should be made final. Prior to the rule change, the Commission's regulations were somewhat more restrictive than the Sunshine Act required, and the Commission had interpreted them still more restrictively. The fact that the NRC's restrictive approach to the Act was out of step with Congressional intent became apparent in 1984 with the unanimous decision of the Supreme Court in Federal Communications Commission v. ITT World Communications, 466 U.S.463. The

i,i

• decision;-which relied heavily on the Interpretive Guide to the sunshine Act '(R. Berg ands. Klitzman, 1978), held that a "meeting" for Sunshine Act purposes means a discussion .

"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."

The NRC to date has not implemented the rule, and all discussions of agency business by a quorum of commissioners have taken place in sunshine Act "meetings." The Commission, after receiving comments on the rule and a briefing from its Office of the General counsel on January 17, 1986, decided to defer action pending completion of the study of the issue by the American Bar Association (ABA). In February, 1987, the ABA House of Delegates -approved a recommendation establishing guidelines for determining which types of agency d~sc~ssions fall outside the statutory definition of a: "meeting." *The ABA's action confirms the legal soundness of the NRC's reading of the Sunshine Act's requirements. The Commission has not yet acte~ on a final Sunshine Act rule. *

15. ADDITIONAL INFORMATION This report was prepared in the Office of the Secretary, u.s.

Nuclear Regulatory Commission. Comments or inquiries on this report or related matters should be addressed to:

• office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone inquiries can be made to the Office of the Secretary by dialing (301) 504-1963.

APPENDICES A. Definition of Meetings B. Tabulation of Open and Closed Meetings by Month

c. Tabulation of Meetings by Days' Notice D. NRC Regulation as Amended Implementing the Sunshine Act (10 CFR Sections 9.100-9.109)

E. Sample Entry from Index F. NRC Ex Parte (10 CFR Section 2_. 780) and Separation* of Functio*ns Regulations (10 CFR Section 2. 781)

ATTACHMENT 6

.. 49 CFR § 804.3, Definitions. Page 1

• 178888 include: \1 CODE OF FEDERAL (a) Notation voting or similar consideration of REGULATIONS business, whether by circulation of material to the Members individually in writing or by a polling of TITLE 49-TRANSPORTATION the Members individually by telephone.

SUBTITLE B--OTHER (1,) Deliberations by three or more Members (I)

REGULATIONS RELATING TO to open or to close a meeting or to release or to TRANSPORTATION withhold information pursuant to § 804.6, (2) to CHAPTER VIII--NATIONAL call a meeting on less than seven days' notice as TRANSPORTATION SAFETY permitted by § 804.7(b), or (3) to change the BOARD subject matter or the determination to open or to PART 804--RULES close a publicly announced meeting under § 804.S(b).

IMPLEMENTING THE (c) An internal session attended by three or more GOVERNMENT IN THE Members for which the sole purpose is to have the SUNSHINE ACT staff brief the Board concerning an accident, incident, or safety problem.

• Current through September I, 1998; 63 FR  ;'Member" means an individual duly appointed 46596 and confirmed to the collegial body, known as "the Board," which heads the NTSB.

§ 804.3 Definitions. National Transportation Safety Board (NTSB)"

means the agency set up under the Independent As used in this part: "Meeting" means the Safety Board Act of 1974.

deliberations of three or more Members where

[42 FR 13284, Mar. JO, 1977, as amended at 42 FR 31794, such deliberations determine or result in the joint June 23, 1977]

conduct or disposition of official NTSB business, and includes conference telephone calls otherwise <General Materials (GM) - References, coming with.in the definition. A meeting does not Annotations, or 1 ables>

ATTACHMENT 6 Copyright (c) West Group 1998 No claim to original U.S. Govt. works

.\ ~

~

.29 CFR § 2203 .2, Definitions. Page 1

• 19864 conference telephone. call iJ among the

• coDE OF FEDERAL Commissioners is a "meeting" if it otherwise REGULATIONS qualifies as a "meeting" under this paragraph. The TITLE 29-LABOR term does not include:

(a) The deliberations required or permitted under SUBTITLE B-REGULATIONS

§§ 2203.4(d) and 2203.5, e.g., a discussion of RELATING TO LABOR whether to open or close a meeting under this part; CHArTER XX-OCCUPATIONAL (b) Business that is conducted by circulating SAFETY AND HEALTH REVIEW written materials sequentially among the COMMISSION Commissioners for their consideration on .an PART 2203-REGULATIONS individual basis; IMPLEMENTING THE (c) A gathering at which the Chairman of the GOVERNMENT IN THE Commission seeks the advice of the other Commissioners on the carrying out of a function SUNSIDNE ACT that has been vested in the Chairman, by statute or otherwise; or Current through September I, 1998; 63 FR (d) Informal discussions of the Commissioners 46596 that clarify issues and expose varying views but do not effectively predetermine official actions:

§ 2203.2 Definitions. "Official Commission business" means matters that are the responsibility of the Commission For the purposes of this part: acting as a collegial body, including the "Expedited closing procedure" means the adjudication of litigated cases. The term does not simplified proced1:1res described at 5 U.S.C. include matters that are the responsibility of the 552b(d)(4) for announcing and closing certain Commission's Chairman. See, e.g., 29 U.S.C.

agency meetings. 661(e).

"General Counsel" means the General Counsel "Regularly-scheduled meetings" means meetings of the Commission, the Deputy General Counsel, of the Commission that are he~j at 10:00 a.m. on or any other person designated by the General Thursday of each week, except on legal holidays.

Counsel to carry out his responsibilities under this The term includes regularly-scheduled meetings part. that have been rescheduled for another time or "Meeting" means the deliberations of at least day.

two Commissioners, where such deliberations determine or result in the joint conduct or <General Materials (GM) - References, disposition of "official Commission business." A Annotations, or Tables>

Copyright (c) West Group 1998 No claim to original U.S. Govt. works

I I I CFR § 2.2, Definitions. Page I

• • 51898 United States Government. i1 CODE OF FEDERAL (d) Meeting.

REGULATIONS (1) "Meeting" means the deliberation of at least TITLE 11-FEDERAL ELECTIONS four voting members of the Commission in collegia where such deliberations determine or CHAPTER I-FEDERAL result in the joint conduct or disposition of official ELECTION COMl\fiSSION Commission business. For the purpose of this PART 2--SUNSHINE section, .joint conduct" does not include, for REGULATIONS; MEETINGS example, situations where the requisite number of members is physically present in one place but not Current through September 1, 1998; 63 FR conducting agency business as a body (e.g., at a 46596 meeting at which one member is giving a speech while a number of other members are present in

§ 2.2 Defmitions. the audience). A deliberation conducted through telephone or similar coilllllunications equipment by means of which all persons participating* can (a) Commission. "Commission" means the heru,- each other will be considered a "meeting" Federal Election Coinrnission, 999 E Street, NW.,

under this section.

Washington, DC 20463. . (2) The term "meeting" does not include the (b) Commissioner or Member. "Commissioner" process of notation voting by circulated or "Member" means an individual appointed to the memorandum for the purpose of expediting Federal Election Commission pursuant to 2 U.S.C. consideration of routine matters. It also does not 437c and section lOl(e) of Pub.L.94-283 and include deliberations to schedule a meeting, to shall also include ex-officio non-voting take action to open or close a meeting, or to Commissioners or Members, the Secretary of the release or withhold information, or to change the Senate and the Clerk of the House, but does not subject matter of a meeting under 11 CFR 2.5, 2.6 include a proxy or other designated representative and2.7.

of a Commissioner.

(c) Pc.Jon. "Person" means an individual, [50 FR 50778, Dec. I 2, 1985]

including employees of the Commission, partnership, corporation, association, or public or <General Materials (GM) - References, private organiz.ation, other than an agency of the Annotations, or Tables>

Copyright (c) West Group 1998 No claim to original U.S. Govt. works

\:. :~

• i.,._

IO CFR § 1704.2, Definitions. Page 1

• 51833 (i) Open or to close a meeting or to release or to CODE OF FEDERAL withhold information pursuant to § 1704.5; REGULATIONS (~i) Set an agenda for a proposed meeting(s);

TITLE IO-ENERGY (iii) Call a meeting on less than seven days' notice as permitted by § l 704.6(b); or CHAPTER XVII-DEFENSE (iv) Change the subject matter or the NUCLEAR FACILITIES SAFETY determination to open or to close a publicly BOARD announced meeting under § 1704. 7(b).

PART 1704-RULES (3) A session attended by three or more IMPLEMENTING THE Members for which the purpose is to have the GOVERNMENT IN THE Board's staff or expert consultants to the Board SUNSIIlNE ACT brief or otherwise provide information to the Board concerning any matters within the purview Current through September I, 1998; 63 FR of the Board under its authorizing statute, 46596 provided that the Board does not engage in deliberations that determine or result in the joint

§ 1704.2 Definitions. con.duct or disposition of official Board business on such matters.

As used in this part: (4) A session attended by three or more (a) Chainnan and Vice Chainnan mean those Members for which the purpose is to have the Members designated by the President to serve in Department of Energy (including its contractors) said po_sitions, pursuant to 42 U.S.C. 2286(c). or other persons or organizations brief or (b) Defense Nuclear Facilities. Safety Board otherwise provide information to the Board means the Board established under the National ...,onceming any matters within the purview of the Defense Authorization Act, Fiscal Year 1989. Board under its authorizing statute, provided that (c) General Counsel means the Board's principal the Board does not engage in deliberations that legal officer, or an attorney serving as Acting detennine or result in the joint conduct or General Counsel. disposition of official 13oa....d business on such (d) Meeting means the deliberations of three or

• matters.

more Members where such deliberations *51834 (5) A gathering of Members for the determine or

• result in the joint conduct or purpose of holding informal preliminary disposition of official Board business. A meeting discussions or exchange of views which do not does not include: *

• effectively predetermine official action.

(1) Notation voting or similar consideration of (e) Member means an individual duly appointed business for the purpose of recording of votes, and confumed to the collegial body, known as whether by circulation of material to the Members "the Board."

individually in writing or by a polling of the Members individually by telephone. <General Materials (GM) * - References, (2) Action by three or more Members to: Annotations, or Tables>

Copyright (c) West Group 1998 No claim to original U.S. Govt. works

• \a *

'.r 'i' ' *~

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

Attachments: 1. Statements of Consideration for Rule

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

3. Ltr dtd 6/6/85 fm Congressman Eckart to Chrm Palladino

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

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

6. Miscellaneous Regulatory Provisions cc w/attachments: EDO SECY OCAA CFO CIO DISTRIBUTION KCyr (2) JMoore SBurns DDambly JGray JGoldberg LChandler Central Files JFitzgeral-:' OGC R/F DHassell OGC S/F STreby OGC Library File (electronic)

' DOCUMENT NAME: i:\lglcouns\sunshine.wpd To receive II copy of this document, indicate in the box: "C" = Copy without enclosures "E" = Copy with enclosures "N" = No copy OFFICE OGC I OGC I OGC ~//I I I NAME JFitzgerald JGray KCyr ~

DATE 11 / /98 11 / /98 11ll/!98 .- 11 / /98 11 / /98 OFFICIAL RECORD COPY

EDWARD J.MARKEY DOCKET NUMBER PR j 2108 RAYBURN BUILDING WASHINGTON, DC 20515 .. 210" 7TH O!STAlCT, MASSACHUSETTS PROPOSED RULE lP 'IFR,2 'I 'I 3 ,) !2021 225 2836 COMMERCE COMMITTEE DISTRICT OFFICES:

RANKING MEMBER SUBCOMMITTEE ON TELEC-OMMUNICATIONS, TRADE AND CONSUMER PROTECTION ClCongress of tbe mtntteb ~tates 5 HIGH STREET, SUITE ,01 MEDFORD, MA 02155 1781 I 396-2900 BUDGET COMMITTEE RESOURCES COMMITTEE 1!,ou~c of l\cprc~cntatibc~ 188 CONCORD STREET, SUITE 102 FRAMINGHAM, MA 01702 (on leave)

COMMISSION ON SECURITY AND wmasb1ngton, 7!l<lt 20515-2107 (508) 875- 2900 COOPERATION IN EUROPE June 1, 1999

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Shirley Ann Jackson c_

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r- (./)0 Chairman -.,, :::r.

N ,) r:,

Nuclear Regulatory Commission \0 r:-,-l rri Washington, DC 20555 v D r'-.l

Dear Ms. Jackson:

co Public trust in the Nuclear Regulatory Commission's (NRC's) oversight of nuclear facilities depends on the fairness and openness of the process. For this reason I am disturbed that the Commission recently voted (without your participation) to revive a 1985 proposed rule change that would allow secret Commission meetings. In 1985 the proposed rule was dropped in the face of strong public and Congressional opposition.

The 1976 Government in the Sunshine Act required most meetings of government agencies like the NRC to be open to the public. Since that time the Commission's policy has been to open all meetings of a majority of Commission members at which official business is discussed with several exceptions based on specific content. Nonetheless, in 1984 in thP Philadelphia Newspapers, Inc. v. NRC case, it was found that meetings on reopening the Three Mile Island nuclear plant were improperly closed. The appeals court decision stated:

A decade ago revelations of secret abuse of official power shocked this Nation and seared in our minds a lesson vital to the health of a democratic polity:

Government should conduct the public's business in public. In the Sunshine Act Congress moved to ensure that those in government do not forget that they are above all accountable to the people of this Nation.... Without a doubt, Congress intended that the Sunshine Act would guarantee public accountability on what is one of the most sensitive and difficult issues of our time: The safety of nuclear power.

NRC's response was to propose a new rule in 1985, temporarily made effective without the benefit of any public comment, that limited application of the Sunshine Act to gatherings "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." In effect the rule said the Commission can best "do the public's business" out of the public eye. Faced with Congressional legislation that would have repealed the new rule (which I cosponsored) and an outpouring of adverse public opinion, NRC at the time never implemented the rule change. However, the Commission has now decided, without a public meeting, to implement the 1985 rule.

PRINTED ON RECYCLED PAPER

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2 Even if a legal case can be made that the new rule may be consistent with some judicial interpretations of the Sunshine Act, an increase in secret Commission meetings seems likely to decrease public confidence in the NRC as an independent regulatory agency and could lead to further "secret abuse of official power." Senator Lawton Chiles, the author of the Sunshine Act, said in 1985, "As the public is so importantly affected by nuclear decisions, there should be a corresponding ability of the public to view fully the decisionmaking processes of the agency.

The Sunshine Act gives that right to the public and we must be vigilant in protecting it." Despite more than twenty years of experience under the current rule, no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes.

The 1985 rule leaves much room for abuse due to the above vague and probabilistic definition of"meetings" subject to Sunshine rules. A February 24, 1999 memorandum from Commission Secretary Annette L. Vietti-Cook to General Counsel Karen D. Cyr promises to provide "concrete examples" of "non-Sunshine Act discussions," but only in letters to Congress.

Any problems or abuse under the new rule may never be known. There is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions, and the May 10, 1999 Federal Register Notice announcing the intent to implement the 1985 rule promises to "maintain a record of the date and subject of, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend" only for the first six months of the revised rule. Thus there will be no way to know what meetings took place, and no way to find out in retrospect whether Commission members formed reasonably firm opinions regarding any matters that later arose before the agency.

To shed some sunlight on this "Sunset Rule," I respectfully request your assistance in answeri~.:; the following questions and information requests:

1. In a May 21, 1985 hearing before the House Subcommittee on Energy Conservation and Power it was testified that more than one-third of Commission meetings were closed

• under exemptions to the Sunshine Act. For each of the last five years, what percentage of meetings of a majority of the Commission were not open to the public? How many meetings were closed under each exception?

2. The recent Commission vote on implementing the rule was based on a November 27, 1998 memorandum form the General Counsel to the Commission. NRC staff informed my staff that this memo itself is secret at the request of the General Counsel. Please provide us with copies of this memo (including all attachments) as well as copies of any written request by the General Counsel for not making it public. If any of this material is not public, please justify why a justification of secrecy itself needs to be secret, and please explain how Congress and the public can evaluate the Commission's decision without knowing the basis and justification for its actions.

3. The May 10, 1999 Federal Register Notice states that "the Commission is not proposing to close any meetings currently held as open public meetings." However, the 1985 rule seems to redefine some gatherings as not being "meetings." Furthermore, the December 15, 1998 memorandum from Commissioners Edward McGaffigan, Jr. and Jeffrey S.

3 Merrifield to John C. Hoyle, which the Commission's vote approved, states an intent to explain "what kinds of gatherings now held by the Commission will no longer be treated as 'meetings' under the new rules." What is the basis for the Federal Register statement about current public meetings? What Commission meetings over the past three years could have been excluded from the 1985 rule's definition of a "meeting"?

4. The memo on which the Commission voted stated that "the agency will maintain a record of the date and subject of, and participants in, all non-Sunshine Act informal gatherings of a quorum of the Commission." The May 10 Federal Register Notice applies this only to scheduled discussions and only for the first six months. The NRC press release No.

99-39 deletes "scheduled," but does include the six month limit. Please state clearly what records will be maintained of non-Sunshine Act discussions, and justify any difference from the Commission's votes. If the record-keeping will indeed be evaluated after six months, on what basis will "the usefulness of the record-keeping practice" be decided?

5. The memo on which the Commission voted cites as a reason for the timeliness of the rule change that "the main Congressional opponent of the 1985 interim rule is no longer in Congress." Does the memo's apparent reference to the departure of our former colleague, Representative Dennis Eckart, suggest that the decision to revive this long dormant proposed rule was essentially political in nature and not based upon a compelling evidentiary record indicating the need for such a change in NRC procedures? What other NRC rule changes since 1985 have been based in whole or in part on the then current membership of Congress?

6. Under the 1985 rule could the full Commission invite representatives of a licensee or of the Nuclear Energy Institute (NEI) for a general discussion about how easing government regulations could assist the nuclear power industry, and do so without public notice, without public participation, without transcript, tape, or minutes, and, if the meeting were

• next year, without any record that the meeting ever took place? If not, please explain what provision of the revised rule would prevent such a meeting. If unplanned discussion of specific proposals for changing NRC regulations took place at such a meeting, would it then violate the 1985 rule? If improper negotiations about NRC regulations took place at such a meeting, how could the public ever find out?

7. On a related openness issue: a May 3, 1999 letter from Alex Marion of the NEI to Ledyard B. Marsh of the NRC, recently released by Public Citizen, thanks the NRC for giving NEI the opportunity to comment on a draft NRC policy document, which has not been publicly released. Is it NRC policy to allow industry representatives to help draft NRC documents that are not available for public comment? How many draft SECY papers or other draft NRC policy documents that were not publicly available were given to industry representatives in the last five years (other than documents that were secret for security reasons)?

4 Thank you for your assistance. If you have questions concerning this letter please feel free to contact Mr. Lowell Ungar or Mr. Jeffrey Duncan on the staff of Congressman Markey at (202)225-2836.

Sincerely,

&,..,,__....g ~'Yn..J.-

Edward J. Markey "'- (

Member of Congress

DOCKET NUMBER PR q PROPOSED RULE ,.c~---- [7590-01-PJ t.,t/fR~'f °I 3~)

• 99 JUL 27 P 1 :12 NUCLEAR REGULATORY COMMISSION QFr 10 CFR Part 9 flL RIN 3150 -AB94 ADJ I F

Government in the Sunshine Act Regulations AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule: Notice of intent to implement currently effective rule; response to comments.

SUMMARY

The Nuclear Regulatory Commission, having considered the comments received on the May 10, 1999, document declaring its intent to begin implementing a final rule published and made effective in 1985, has decided to proceed with implementation of the rule ,

30 days from the date of publication of this document.

DATES: The May 21, 1985, interim rule became effective May 21, 1985. The Commission will U,<,,(~ -4~ /9<;5' begin holding non-Sunshine Act discussions no sooner than 30 sa;<s from the date at publicatieA ef ~his ne~iee.

FOR FURTHER INFORMATION CONTAr,T: Peter Crane, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, (301) 415-1622.

SUPPLEMENTARY INFORMATION:

On May 10, 1999 (64 FR 29436), the Nuclear Regulatory Commission noticed in the Federal Register of its intention to begin implementing its regulations, promulgated in 1985, applying the Government in the Sunshine Act. The Commission provided a period for public I~ ~ ,rfa-2/11 4 ~ l/t:R3'i393

comment, ending June 9, 1999, and stated that no non-Sunshine Act discussions would be held before July 1, 1999, to give the Commission an opportunity to consider the comments. The Commission stated that non-Sunshine Act discussions could begin on July 1, unless it took further action. Finding that the comments do in fact warrant discussion, the Commission provides this additional document that responds to the issues raised by the commenters.

During the period of its review of the comments, the Commission has not held any non-Sunshine Act discussions and has decided not to hold any such discussions until, at the earliest, 30 days from the date of publication of this document.

Nine comments were received on the May 10 notice, all but one of which expressed disapproval of the NRC's action. (The lone exception was a comment from a nuclear industry group, the Nuclear Energy Institute, which said that it endorsed the NRC's action for the reasons stated in the May 10, 1999, document.) Of the critical comments received, the most detailed came from a Member of the United States House of Representatives, Edward J.

Markey, and from two public interest organizations, the Natural Resources Defense Council and

• Public Citizen. The negative comments were mostly (but as will be seen, not exclusively) along the lines that the Commission had tried to anticipate in its detailed document of May 10.

The comments were both on legal and policy grounds. The primarily legal arguments included the following:

(a) The legislative history of the Sunshine Act makes clear Congress's intent that there should be openness to the maximum extent practicable; (b) The Commission's action is thus antithetical to the letter and spirit of the Act; (c) The Supreme Court's decision in FCC v. ITT World Communications, 466 U.S. 463 (1984), involved unique circumstances and is not relevant to the issue before the NRC;

(d) The Commission disregarded such court decisions as that of the U.S. Court of Appeals for the D.C. Circuit in Philadelphia Newspapers v. NRG, 727 F.2d 1195 (1984);

(e) The criteria adopted by the Commission are too vague to be workable, inasmuch as they require the Commission to predict the course that discussions will take; and (f) The Commission's action, by providing for minimal recordkeeping, possibly to be discontinued after six months, will preclude meaningful judicial review.

Policy arguments included these:

(a) Even if the rule can be justified legally, it represents a retreat from openness and will diminish public confidence in the Commission; (b) The NRC has failed to show that collegiality has been impaired by the Sunshine Act; (c) The examples of topics that the Commission has cited as examples of possible non-Sunshine Act discussions are too trivial to warrant changing a rule that has served well for 20 years; (d) The Commission failed to follow the recommendations of the American Bar

• Association with respect to record keeping; (e) No harm could come to the Commission's processes if general background briefings were held in open session; (f) The NRC's role as regulator of a technically complex industry calls for maximum openness; and (g) Nothing in the rule prevents the Commission from holding off-the-record discussions with representatives of the regulated industry.

In the interest of clarity, we will address the comments in a comment-and-response format. Some comments were dealt with in sufficient detail in the May 10, 1999, document that it would serve no useful purpose to repeat here the Commission's position with regard to them.

A. Comment: One of the critical commenters quoted at length from the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Philadelphia Newspapers v. NRG, 727 F.2d 1195 (1984), in which the court declared that "Government should conduct the public's business in public." The commenter opined that Congress undoubtedly intended that the Government in the Sunshine Act "would guarantee public accountability" on the safety of nuclear power.

Response: Undeniably, the Philadelphia Newspapers decision represented an expansive view of the Sunshine Act on the part of that panel of the D.C. Circuit. Only a few months later, however, the Supreme Court provided sharply different guidance in the first (and to date only) Government in the Sunshine Act case to reach the Court: FCC v. ITT World

• Communications, 466 U.S. 463 (1984). ITT World Communications resembled Philadelphia Newspapers in that it also involved an expansive interpretation of the Sunshine Act by the D.C.

Circuit. Resoundingly, in a unanimous decision, the Supreme Court overturned the D.C.

Circuit's ruling, and it used the opportunity to give guidance on the proper interpretation of the Sunshine Act. It said, among other things:

Congress in drafting the Act's definition of "meeting" recognized that the administrative process cannot be conducted entirely in the public eye. "[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.

The Commission's rulemaking has been grounded from the start in this definitive Supreme Court guidance. The rule itself includes a definition of "meeting" taken verbatim from the Court's opinion. The American Bar Association confirmed that the NRC's approach was consistent with Congressional intent and the Supreme Court's interpretation. To the extent that the commenter was urging the NRG to follow the approach of the Court of Appeals and disregard the contrary guidance of the Supreme Court, the NRG cannot agree. Even if the Commission believed as a matter of policy that such a course was desirable, the NRG is not at liberty to ignore Supreme Court decisions interpreting the statutes that govern its operations. 1 B. Comment: The NRC's action, even if so111e legal arguments could be made for it, is contrary to the Congress's intent, documented in the legislative history, that Federal agencies were intended to practice openness to the maximum extent possible .

1 It is worth noting that on the precise legal point in dispute here -- the definition of a "meeting" under the Sunshine Act -- one D.C . Circuit decision held that an agency is legally prohibitedfrom interpreting the law more restrictively than Congress provided . In WATCH v.

FCC, 665 F.2d 1264 (D.C. Cir. 1981 ), the court sharply chastised an agency which had adopted a definition of "meeting" that included types of discussions that Congress had not included within the statutory scope. The court declared that the agency was "supposed to track" the statutory definition when it defined a "mee*;ng" in its regulations . Because it had failed to do so, and instead included types of discussions not intended by Congress to fall within the statutory scope, the agency had written an "impermissibly broad" definition which could not legally be sustained. The court said:

Indeed, we are unable to discern any reason for the breadth of the agency's definition of "meeting" -- apart from shoddy draftsmanship, perhaps. While we recognize that an agency generally is free to shoulder burdens more onerous than those specifically imposed by statute, the regulation at issue here is in excess of the Commission's rulemaking discretion under 47 U.S.C . § 154(1)

(1976) . Consequently, we set it aside to the extent that its definition of "meeting" is more inclusive than the one contained in the Sunshine Act.

665 F.2d 1264, 1272.

Response: Congress made a deliberate decision to limit the applicability of the Sunshine Act to "meetings." As the Supreme Court explained in detail, the definition of "meeting" was an issue to which Congress paid extremely close attention, with changes introduced late in the process. The bill in its final form therefore differed significantly from what some of its supporters (including its chief sponsor, the late Senator Lawton Chiles) desired. As a result, Committee reports describing earlier, more expansive versions of the legislation bills are of slight significance compared to the Supreme Court's parsing of the statute that Congress actually passed. Some commenters are in effect asking the NRC to join in rewriting history so that the narrowing of the scope of "meetings" -- proposed by then-Representative Pete McCloskey, enacted over the opposition of Senator Chiles and others, and elucidated by the Supreme Court -- is made to disappear from the record. The reality, contrary to the views of some commenters, is that the Sunshine Act did not decree openness to the maximum extent practicable. Instead, it struck a balance between the public's right to know and the agencies' need to function efficiently in order to get the public's business done.

C. Comment: A commenter asserted that the NRC had failed to offer examples of the types of "non-Sunshine Act discussions" that it contemplated holding.

Response: The commenter is in error , as may be seen from the section of the NRC's May 10, 1999, document on page 24942 that begins, "Some specific examples of the kinds of topics that might be the subject of non-Sunshine Act discussions would include .... " Nor was this the first time that the NRC had offered such examples. It has done so repeatedly, beginning in 1985. Indeed, the American Bar Association task force that studied the Sunshine Act quoted ,

with approval and at considerable length, the examples of possible non-Sunshine Act discussions included in a memorandum to the Commission from the NRC General Counsel.

D. Comment: A commenter asserted that "no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes."

Response: The Commission disagrees with this comment. As long ago as 1984, the Administrative Conference of the United States, in Recommendation 84-3, was commenting that the Sunshine Act had had the unintended effect of diminishing collegiality at multi-member agencies and shifting power from the collegium to the Chairman and staff. Analyses by the NRC, the American Bar Association, and the Administrative Conference all provide factual support for the proposition that there are problems associated with the Act. Again, this topic was covered in detail in the Commission's May 10, 1999, document.

E. Comment: One commenter observed that "[t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions."

Response: This comment is correct, for that is the way that Congress enacted the

• statute. (The May 10, 1999, document quoted the legal judgment reflected in the ABA report that if a discussion "is not a 'meeting,' no announcement or procedures are required because the Act has no application.") As a matter of policy discretion, however, the NRC has decided to maintain a record of the date and subject ,'f, and participants in, any scheduled non-Sunshine Act discussions that three or more Commissioners attend, for at least the initial six-month period of implementing the rule. This will assist the Commission in determining whether thereafter, recordkeeping should be maintained, increased, or eliminated. No final decision has been made at this time. The Commission will not discontinue its practice of keeping such records without advance notice to the public.

F. Comment: The NRC should make clear whether or not it intends that discussions now held as "meetings" can henceforth be held as non-Sunshine Act discussions. The Commissioners whose proposal initiated the Commission's action seem to have contemplated transforming current "meetings" into non-Sunshine Act discussions, but the Commission's May 10, 1999, document denies this intent.

Response: The May 10, 1999, document made clear that the objective is not to turn discussions now held as "meetings" into non-Sunshine Act discussions, but rather to enable the Commission to hold, as non-Sunshine Act discussions, the kind of informal, preliminary, and "big picture" discussions that currently are not held at all. As is sometimes the case, the final Commission action differed in this instance from the proposal that set the action in motion.

G. Comment: The memorandum from two Commissioners that initiated the Commission's action said that one reason to act was that the primary opponent of the Commission's 1985 action was no longer in Congress. This suggests that the Commission's

• action was motivated by political considerations, rather than actual need.

Response: The cited memorandum did indeed include an allusion to a former Representative. Read fairly and in its totality, it makes clear that the two Commissioners' proposal was motivated by concerns of good government and legal correctness, not politics. At the same time, they offered their candid view that concern about the proposal might be less intense than it had been in 1985. There was nothing inappropriate about making this observation. The Commission's decision to take action with regard to the Sunshine Act was a reflection of its longstanding efforts to increase the collegiality of the Commission process, to

ensure that its procedures and practices are in conformity with current law, and to reach closure on outstanding items.

H. Comment: The May 10, 1999, document is not clear as to whether there is anything in the rule that would prevent the full Commission from meeting off-the-record with representatives of a licensee or the Nuclear Energy Institute in non-Sunshine Act discussions.

Response: The commenter's point is well taken; the notice did not address this question. The Commission's intent is that non-Sunshine Act discussions would be limited to NRC or other federal agency personnel, with limited exceptions for persons (e.g.

representatives of the regulatory body of a foreign nation, or a state regulator) who would not be regulated entities or who could not be considered interested parties to Commission adjudicatory or rulemaking proceedings. The Commission is committed to implementing this intent; the non-Sunshine Act discussions will not include discussions with representatives of licensees or of organizations who could be considered interested parties to NRC adjudications, rulemakings, or development of guidance.

I. Comment: The NRC's standards for determining when a discussion can be held as a non-Sunshine Act discussion is impermissibly vague, requiring "divination" on the part of the participants.

Response: The standards for determining what is a non-Sunshine Act discussion were taken verbatim from the decision of a unanimous Supreme Court. Moreover, it is not correct to say that the standard requires "divination" of what will happen in a discussion. Rather, what the rule envisions is that if a discussion begins to evolve from the preliminary exchange of views

that the Commission contemplated into something so particularized that it may "effectively predetermine" agency action if it continues, the Commission will cease the discussion. 2 J. Comment: Because of the special sensitivity and public interest in issues of nuclear safety, the NRC should continue to apply the law more stringently than is required.

Response: That argument may have some force, but it cuts both ways. By the same token, it can be argued that the special sensitivity and public interest in issues of nuclear safety make it essential that the Commission remove barriers to efficiency and collegiality, so as to maximize the quality of Commission decision-making, and that the Congressional balance between openness and efficiency should therefore be adhered to strictly. The NRC believes that the latter interest should predominate.

K. Comment: Whether or not legally justifiable, the NRC's action will diminish public confidence in the Commission .

• Response: The Commission was aware of this possibility at the time it issued the May 10, 1999, document, but it believes that the legal and policy reasons for its action -- compliance with the Supreme Court's guidance, and the expected benefits in collegiality and efficiency, make this a desirable course of action, even if -- despite the Commission's best efforts to explain its reasoning -- some persons misunderstand or disapprove of the Commission's action.

2 Every Commissioner who meets one-on-one with an interested party to a matter before the Commission has to be prepared to cut off discussions that threaten to stray into impermissible areas, as provided, for example, by the NRC's ex parte rules. There seems no reason why Commissioners could not equally well halt discussions among themselves that seem likely to cross the line separating non-Sunshine Act discussions from "meetings."

lt is also possible that the potential enhancement of collegiality and the potential improvement in Commission decision-making that may result from non-Sunshine Act discussions will ultimately increase the public's confidence in the Commission's actions.

L. Comment: The NRC did not follow the recordkeeping recommendations of the American Bar Association.

Response: It is true that the Commission did not follow the American Bar Association's recommendations with respect to recordkeeping. However, those recommendations were prudential, not based on legal requirements. The ASA recognized that as a legal matter, if a discussion is not a "meeting," no procedural requirements apply at all. The Commission's May 10, 1999, document reflected a judgment that Congress would not have given agencies latitude to hold this type of discussion free of elaborate and burdensome procedures if it had not viewed such procedures as undesirable. Nonetheless, as described in the response to Comment E above, the Commission has decided to maintain a record of the date, participants in, and subject matter of all non-Sunshine Act discussions for at least the first six months in which the rule is implemented, and it will not discontinue the practice thereafter without advance notice to the public.

M. Comment: No harm could result from holding briefings in public session, and doing so would benefit public understanding.

Response: On this point, arguments can go either way. At the time that the Commission first put its Sunshine Act rules into place, it acknowledged that briefings might be exempt from the Sunshine Act's scope, but said that the Commission did so much of its

important work in briefings that as a policy matter, it believed these should oe open to the public. This argument is not insubstantial._ In part for that reason, the Commission affirms once again what it said in its May 10, 1999, document and earlier in this present document, namely, that its objective is not to turn discussions now held as "meetings" into non-Sunshine Act discussions. Rather, the intent is to ensure that the Commission is not categorically required to apply the Sunshine Act's procedural requirements to every briefing, including such things as routine status updates, where the benefit to the public would be small compared to the administrative burden and loss of efficiency in doing day-to-day business.

In sum, the NRG believes, based on its review of the comments received on the May 10, 1999, document, that the general approach taken by the Commission in that notice remains a desirable course of action. Accordingly, the NRG intends to implement its 1985 Sunshine Act rules and to begin holding non-Sunshine Act discussions, subject to the conditions outlined in the May 10, 1999, document, and as further clarified in the present document, 30 days from the date of this notice.

For the Nuclear Regulatory Commission i

(~ __,, (_---'r-._"

/

~;:::c;___'--- \).; ;_,.c-A___A__ -

(__ ---<....Z:V-Annette Vietti-Cook, Secretary of the Commission,

-t1, Dated at Rockville, Maryland, this l l.,,;;;, day of July, 1999.

UNITED STATES DOCr'.[Tf"'J I

U~, I L, NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 June 30, 1999 *99 JUL 13 P3 :32 DOCKET NUMBER PROPOSED RULE p :/_

[tpt/ FR:J'l93,)

The Honorable John Edwards United States Senate Washington, D.C. 20510

Dear Senator Edwards:

I am pleased to respond to your request that the U.S. Nuclear Regulatory Commission (NRC) look into concerns raised by Mayor Michael R. Nelson of Carrboro.

Mayor Nelson's letter was written before the NRG issued its recent (May 10, 1999) Federal Register notice regarding the Sunshine Act, and its characterization of the NRC's action is not altogether accurate. According to his letter, the NRC "seeks exemption from the Sunshine Act."

In reality, the NRC seeks nothing of the sort. As the enclosed Federal Register notice makes clear, the NRC's action starts from the premise that the Sunshine Act fully applies to the NRG.

The question, rather, is of the definition of a "meeting" under the Act.

The Supreme Court explained in a unanimous 1984 decision that in enacting the Sunshine Act, Congress did not provide that every discussion of agency business should be treated as a "meeting," because it understood that this would impede the kind of informal, preliminary discussions that are an important part of a government agency's work. Unfortunately, the NRG

• initially interpreted the Act as though every discussion should be considered a "meeting," in part on the basis of erroneous legal advice from the Justice Department in 1977. After the Supreme Court's clarification of the law in 1984, the NRG changed its regulations to reflect the Court's guidance, but in the face of sharp criticism of its action, the NRG never implemented the rule change, and continued its earlier practice of treating all discussions of agency business as "meetings." The NRC's recent action is intended to ensure that the NRC's practice and regulations conform to the Supreme Court's guidance.

Implementation of the rule change will permit the NRC Commissioners to hold certain kinds of discussions, unrelated to any specific issue; to hold informal and preliminary discussions of agency-related business; and to receive status or informational briefings related to staff activities. The kinds of issues that Mayor Nelson identifies in his letter as being of concern to the citizens of Carrboro -- for example, a pending specific application for license authorization to expand nuclear waste storage capacity at the Shearon Harris plant -- are of sufficient specificity that a quorum of Commissioners could not discuss discuss and formulate positions on the application except in "meetings," just as is the case today.

U.S. NUCLEAR REGULATORY co I Ii RULIEMAIKINGS &ADJUDICATIONS S1 nR=lir.J: OFTHESECRETARY OF THE CO ISSION

2 Mayor Nelson's letter speaks of the need to maintain "an open deliberation and decision process at the Nuclear Regulatory Commission." The Commission's recent ac~ion is fully consistent with Congress' intent that the Sunshine Act's procedural requirements shall apply whenever discussions are, in the words of *the Supreme Court, "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."

In short, this decision is not intended to produce, nor should it produce, any reduction in the openness of the deliberative and decisional process at the NRC.

I trust that this letter is responsive to Mayor Nelson's concerns. His letter will be included in the public comments to the Federal Register notice.

Sincerely, 2~ '4/&-

Dennis K. Rathbun, Director Office of Congressional Affairs *

Enclosure:

As stated

Federal llegilter/Vol. 64, No. 199/Monday, May 10, 1991HRules ai.. bgulations (Z) Totaling the eli,rlble cwt (not to ccmditioD for paymm arising under"the NUCLEARREOUL.ATOAY aCNd 2fl,OOO cwt) ol milk marketed application, or till nbpart, and If my COMMIIIION commercially durine the bue period nfund of* payment to CCC lhal1 from all ai,proved applications* ud otherwise become due ID cmmectiOD 10CPIIPal'tl (S) Divicling th* amount av;iiable for with the application, or thi nbpart, all MNS1IO-,A914 Dairy Market Lo11 A11istance Program payments made wider thil 1ubput to by the total eligible cwt 1ubmitted and any dairy operation ahall be nfu.Dd*d to Gov.nment In the aunehlne Act approved for payment. CCC togethet with interest u llegulatfona (b) Each dairy operation payment will be calculated b)* multiplying the determined ID accordmca with AGDICY: NuclHr hgulatory

~yment rate determined in paragraph paragraph (c) of thil MCtion 11nd late- Commi1aion.

(aJ (3) of this 1ection by the dairy payment charges u provided for iD put ACTION: Final rule: Notic of intent to

~ration** eligible production. 1403 of thb chaptc. implement Cun9Dtly effectin rule and (c) ID the event that approval of all (b) All pmon.s Uated on* dairy nque1t for commenu.

eligible applications would result in operation' applicatiOD shall be jointly apenditures in excess of the amount and 1evvally liable for any refund, allAIARY: The NuclNr Regulatory available, CCC alall reduce the payment including related charges, which is Commit1lon (Ccmmiuion1 is nu in such manner u CCC, in its 101* determined to be du* for any ru,on unowicma its mtmt to implement

• d!1cntion, finds fair and 111uonable. under the term, and canditiom of the ha! rule, published and made effective in 1115, that ammded it regulations I 1430.507 Mle1"8preHntaUon llfttll actlema applicatlOD or thi* subpart. applying th* Govmunet in th*

Ot'davlc:e. (c) IDtarelt ball be applicable to SuDhiD* Act. Tbe C-ommi,.ion ii (a) A dairy operation 1ball be refund* requind of the dairy opntion tum& this action to provide an Ii ble to recei\*e usi1t11.nce under if CCC determine* that payme11u or opportunity for public comment on lt rogram if it ill determined by the other uirtance were provided to the intent becaun of the time that bu ommittee or the county producer was not eligible for uch pa1Nd aince the Comm.inion lut ttee to have: usistance. Such intent shall be 1ddl'911ed this l11ue. Thi* action is (1) Adopted any scheme or device charged at the rate of interest which the ueceary to complete retolution of this which tend, to defeat the purpose of United State Tl'ea1ury charge CCC for baue.

this program; fund,, u of the date CCC made such (2) Made any fraudulent DATU: Tba May 21, 1H5, interim rule benefits available. Such interest lbAll became effective May 21, 1885. Submit representation; or (3) Misrepres nted any fact affecting a acCNe from th* date such benefits were commenu by }UDe t, 1898. Un.leH the program determination. made available to the date of repayment Commi11ion take further action, non-(ti) Any funds disbursed pursuant to or the date interest increues u Sunshine Act di1c:u11i0111 may be held this part to a dairy operation engaged in determined in accord~::* Wlth heginnins Jun* 1, 1999.

a misrepresentation, scheme. or device, applicable regulations. CCC may waive ADDRESSD: Submit written commanu or to any other person u a result of the the accrual of .interest if CCC determiDH to: s.cnt&ry, U.S. NuclNt Regulatory dairy operation's ac~' ~ns. shall be that the cauH of the erroneous Comm.inion, WuhiDgton, DC 20555-refunded with interest together with determination wu not du* to any action 0001, A'rI'N: RulemakiDI* and auch other sums as may becom"! due. of the dairy operation. Adjudication* Staff.

Ar.y dairy operation or person engaged (d) IDterest determined in accordance FO" FUATNVI INll'OMIATION CONTACT: Trip in acts prohibited by this section and with paragraph (cl of this section may Rothchild, A11iltant General Counsel, dairy operation or person receiving be waived by CCC with respect to Office of the General Counsel, U.S.

,ment under this subpart shall be refund a required of the dairy operation Nuclear Regulatory Commission, tly and severally liable for any becau11 or UD.illtentional mi11ction on Wuh.inston, D.C. 20555, (301) US-fund due under this section and for the put or the dairy operation, u 1607.

related charge,. The remedies provided determined by CCC. &IP'PLDIENTMIY INFOIIIIIATION: Tbe

- in this subpart shall be in addition to C*l Lte payment interut shall be Commi11ion, thiough thi notice of the other civil, criminal, or administrative Commi1sion'1 intent to implement

• nmediea which may apply. aueued on all HiuDd, in 1.CCO?dance with the provisions or, and 1ub}lct to rule publilbed and made elfeetive in I 14J0.501

• Maintaining racont . the ratea pn1cribod in 7 CFR pan 1403. 1985, eeks to bring cloun to*

Dairy operation, malting application rulemak.ing that ame:oded the NRC'*

(0 D&iry operati0Z11 mwt ndimd to regulation applying the Government in for benefit.s UDder this program*must CCC any exceu payments made by CCC the SW11hine Act. Because of the years maintain accunt111 record, and accou.nts with respect to 1ucl: application.

that will document that they meet all that have elapsed, the Commiasion is eligibility requirements 1pecified in thi1 (g) lD the event that

• beneftt under proviclina this notice of its intent to subpart and the pounds of milk thi1 ubput wu provided 11 the reult implement thi1 rule ud is providing an marketed commercially during the of erroneou1 information provided by opportunity for additional public fourth quarter of 1998 and the base any person, the benefit mllfl be repaid comment cm the Commi 1ion's proposal period. Such record, and account.I must with any applicable interest. to implement.

be retained for at least three yean after Signed at Wuhuirton, D.C., on April 30, The purpoe of the rule ii to bring the the date of the cash payment to dairy 19119. NRC' Sunahine Act regulations. and operationa under this program. the way they are applied by NRC, into lteith Kelly, closer coDformity with Congre11ional I 1'30.509 Aeh,ndl; joint end HWral Encutive Vic:e Pres/den!, Commodity O..dit intent, ** 1et forth in the leg! lat.lve D blllty. CArpororion. history of the Sunshine Act and u (a) 1n the event there is a failure to !FR Doc:. 9~11595 Filed 5-7-99; 1:45 am) clarified in a unanimou1 Supreme Court

_comply with any term, requirement, or 11&.lJNG COO! M l ~ decision, FCCv. ITT World

Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules and Regulations 24937 Communications, 466 U.S. 463 (1984). Communications, 466 U.S. 463. ~ough to bring the NRC into line with The NRC's original Sunshine Act the case could have been decided on Congressional intent.

regulations, adopted in 1977, treated narrow, fact-specific grounds, the Court Soon after that, in August 1984, the e,*el)' discussion of agency business by used the opportunity to offer guidance Administrative Conference of the three or more Commissioners, no matter on what leading commentators have United States (a body, since abolished, how informal or preliminary it might be, described as "one of the most to which the Sunshine Act assigned a as a "meeting" for Sunshine Act troublesome problems in interpreting special role in the implementation of purposes. As the 1984 Supreme Court the Sunshine Act": the definition of the Act by federal agencies) issued decision made clear. however, "meeting" as that term is used in the Recommendation 84-3; based upon an "meetings." tq which the Act's Act. R. Berg and S. Klitzman, An extensive.~dy ~fthe Sunshine Act.

procedural requirements apply, were Interpretive Guide to the Government in The Admm1strat1ve Conference was ne,*er intended to include casual. the Sunshine Act (1978), at 3. The Court troubled by what it uw as o~e ~armful general. informational. or preliminary rejected the broad view of the term

• effect of the Act on the functioning of discussions. so long as the discussions "meeting" that the U.S. Court of the multi-member agencies.

do not effecti\'ely predetermine final Appeals for the District of Columbia Commen~g ~at "one of the clearest agency action. These-kinds of "non- Circuit had taken. It declared that the and most 11gmficant results of the Sunshine Act discu~sions," which can statutory definition of a "meeting" Gov~~ent in the ~unsbine Act is to be an important part of the work of a multi-member agency, had been contemplated "discussions that diminish ~e.colleg18:1 character the ~f

'effectively predetermine official ageno/ _dec1~1on making process, the Iosed at NRC since 1977 bv the actions.' " The Court went on: . Administrative Conference C\' S unduh* restrictive

• 0 Such discussions must be "sufficient]\' recommended that Congress consider rpretation of the Sunshine Act. focused on discrete proposals or issues as to whether the Act should.be revised. The In response to the Supreme Court's cause or be likely to cause the individual Conference observed:

- clarification of the law. the Commission participating members to fonn reasonably Although the legislative history indicates in 1985 issued an immediatelv effective finn positions regarding matters pending or Congress 'believed that. after the initial period rule that re,*ised the definition of likely to arise before the agency." 466 U.S. of adjustment. Sunshine would not ha\'e a "meeting" in the NRC's Sunshine Act at 471, 1ignificant inhibiting effect on collegial regulations. To ensure strict conformity The Court reviewed the legislative exchanges, unfortunately this has not been with the law. the new NRC rule history, demonstrating bow in the the case.

incorporated ,*erbatim the SuprPme process of revising the original bill, If Congress decided that revisions Court's definition of "meeting." The Congress had narrowed the Act's scope. were in°order, the Conference said, it rule change drew criticism. however, In the Court's words, "the intent of the recommended that agency members be much of it directed at the fact that it was revision clearly was to permit permitted to discuss "the broad outlines made immediate,, effecti\*e. with an preliminary discussion among agency of agency policies and priorities" in opportunity to comment only after the members." Id. at 471, n.7. The Court closed JT1-.etings. The Administrative fact. To address some of the concerns explained Congress's reasons for Conference did not address the raised. the J\:RC informed the Congress

• limiting the reach of the Sunshine Act: distinction between "meetings" and that it would not implement the rule those discussions that are outside the

• 1 procedures were in place to *congress in drafting the Act's definition of "meeting" recognized th_at the administrative 1cope of the Act.

itor and keep minutes of all non- process cannot be conducted entirely in the

• shine Act discussions among three public eye. "ll)nfonnal background

n. The NRC's 1985 Rule or more Commissioners. No such discussions [that) clarify issues and expose On May 21, 1985 (50 FR 20889), the procedures were ever adopted, however, varyirig views" are II necessary part of an Nuclear Regulatory Commission issued nor was the rule itself implemented, and 1gency*s work. [Citation omitted.) The Act's new regulations implementing the the issue remained pending from 1985 procedural requirements effectively would Government in the Sunshine Act. As a on. prevent such discussions and thereby impair legal matter, the NRC could have The Commission believes that it is nonnal agency operations without achieving significant public benefit. Section 552b(a)(2) continued to use the language of its time to bring the issue of the NRC's existing regulations, and reinterpreted Sunshine Act rules to a resolution. As therefore limits the Act's application. * *

• them in accordance with the Supreme noted, because of the many years that Id. at 469-70. Court's decision. However, the NRC ha\'e passed since the Commission last At the time the 3upreme Court decided that in the interest of openness, addressed this issue. the NRC is handed down the rrr decision, the Nuclear Regulatory Commission had for it should declare explicitly that its view providing this notice of its intent finally of the Act's requirements had changed to implement and use the 1985 rule, and almost eight years applied the Government in the Sunshine Act as in light of the Court's ruling.

providing 30 days for public comment Tlie revised rule conforms the on the Commission's proposal to though it required every discussion of definition of "meeting" in the implement. The Commission will not agency business to be conducted as a Commission's rules to the guidance modify its current practices, under "meeting." Recognizing that the provided by the Supreme Court by which no non-Sunshine Act discussions Supreme Court's guidance indicated incorporating the very language of the take place, until it has had the that the NRC's interpretation of Court's decision into its revised opportunity to consider any comments "meeting" had been unduly broad, the definition. Specifically, it provides. at receh'ed. NRC's Office of the General Counsel 10 CFR 9.l0l(c):

(OGC) advised the Commissioners in J. Background May 1984 that the decision seemed Meeting means the deliberations. of at least 1 quorum of Commissioners where such On April 30, 1984, the United States significant: the decision was unanimous deliberations determine or result in the joint Supreme Court issued its first decision and it was the first time that the conduct or disposition of official interpreting the Go,*emment in the Supreme Court had addressed the Act. Commission business, that is, where Sunshine Act. Federal Communications OGC suggested that revisions in the discussions are sufficiently focused on Commission,.. ITT World NRC's regulations might be appropriate discrete proposals or issues es to cause or to

.24938 Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rl.lles ana Regulations be like!)' to cause the individual participating Moreover, the legal 1tandard Mt forth in Report at 8. The report noted that this members to fonn reasonably finn positiond the ABA recommendation incorporated argument in essence was a claim that ftS!l.l'ding matters pending or likely to arise the identical language from the Supreme agencies 1hould apply a different before the agency. Deliberations required or Court opinion which the NRC had standard from the oile ,pecified by permitted by §§9.105. 9.106. or 9.10B(c) do not constitute .. meetings** within this included in its 1985 rule: i.e., the Congre11 for distingui1hing "meetings" definition. provision stating that for a discussion to from discussions that are not be exempt from the definition of "meetings." The ABA explained:

Under the rule. which was adopted as . "meeting," it mu11t be "[not) sufficiently an immediateh* effective "interim" rule * *

• Congress can hardly have gone to focu,ed on discrete proposals or issues 1uc:h pains to articulate a nmower standard (it was characterized as "interim" to as to cause or be likely to cause the bad it not expected the agencies to use the reflect the fact that-it was being made individual participating (agency) leeway 1ucb a standard provides, and if they effective before anv comments were members to form reasonably firm are to do 10. they must attempt to set out in received and addressed}, with an positions regarding matters pending or advance. whether by regulation or internal .

opportunity for public comment, guidelines, the elements or characteristics of likely to arise before the agency." a discuuion wbic:h will cause it to fall short briefings were excluded from the Subject to that qualification, the ABA category of "meetings." In the NRC's of being a meeting. Report at 8, fn. 9.

guidelines provide that the definition of pre-1985 regulations. by contrast, "meeting" does not include: The ABA report's conclusion was a briefings were treated as meetings, as a measured endorsement of the value of matter of J>olicy. (a) Spontaneous casual discussions among non-Sunshine Act di1cussions. After The NRC's 1985 rule proved agency members of a subject of common stressing that its J>urpose was not to controversial. ln response to interest; (bl Briefings of agency members by staff or outsiders. A key element would be urge agencies to close discussions now gressional criticism. much of it that the agency memben be primarpy held in open session, the report made cted at the Commission's decision to receptors of information or views and only clear that its focus, rather, was on the

• e the rule immediateh* effective, the incidentally exc:hange views with one discussions which, because of the Commission assured the Congress that it another; (cl General discussions of subjects Sunshine Act, are never initiated in the would conduct no non-Sunshine Act which are relevant to an agency's first place. It laid:

discussions until procedures were in responsibilities but which do not pose specific problems for agency resolution; and .1 But the fact is that the Sunshine Act has place to go,*em such discussions. * (d) Exploratory discussions, so long as they bad an inhibiting effect on the initiation of In December 1985. the 1'.'RC's Office of are preliminary in nature, there are no discussions among agency members. This is the General Counsel forwarded a final pending proposals for agency action, and the the conclusion of the Welborn report [to the rulemaking paper in which comments merits of any proposed agency action would Administrative C:Onference], end it is on the interim rule were analvzed and be open to full consideration at a later time. 1 confirmed by our meeting with agency responded to. Howe\'er. by the time that

• The ABA report disposed of the general counsels * * * [T)he Act has made the Commission was briefed on the suggestion, advanced by some critics. of difficult if not impossible the maintenance of close day-to-day working relationships in comments. the. AmPrican Bar the NRC's interim rule, "that the [five-member and three-member] agencies.

Association had announced its intention Supreme Court's opinion should be * *

• We believe *hat a sensible and to address Sunshine Act issues, limited to the facts before the Court." ensitive application of the principles including matters a1rectly related to the While it recognized that the case could announced in the m case c:an ease the NRC's rulemaking. The Commission have been decided on fact-specific somewhat stilted relationships that exis1 in therefore decided to withhold action on grounds, the report observed that: some agencies. Report at 11-12. [Emphasis in matter and to defer actual the original.)

(1)1 cannot be assumed that the Supreme lementation and use of the 1985 rule Court got carried away or that it was unaware The ABA report made clear that it did nding receipt of the ABA 's \'iews. that the definition of "meeting" was not regard the opportunity for non-controversial and "one of the most Sunshine Act discussions as a ranacea

m. The American Bar Association Acts troublesome problems in interpreting the for the Sunshine-caused loss o In the fall of 1985. William Murane. Sunshine Act." [Interpretive Guide 3.J We collegiality which the Administrative Chairman of the Administrative Law concluded therefore, that the Supreme Court Conference had identified, and which Section of the American Bar meant what it said in m World . the ABA's own inquiry bad confirmed.

Communications, and that it intended to Association. announced that the provide guidance to agencies and the couns The Report concluded that the impact of Council of the Administrath-e Law in applying the definition of "meeting." loosened restrictions was likely to be Section had decided to invol\'e itself in Report at 7. "alight," though it saw "some tendency the contro\'ersv o\*er the Sunshine Act The ABA report also rejected the to increase collegiality * *

• to the and its effect on the c*ollegial character argument that because of the "difficulty extent that it would contribute to more of agency decision malting. of specifying in advance those normal interpersonal relationships Administrative Law Re\'iew, Fall .1985, characteristics of a particular discussion among agency members." Report at 12.

Vol. 3i. No. 4. at p. v. The Task Force which will cause it to fall short of The Report also observed that established b,* the Administrative Law becoming a meeting," the Supreme collegiality is most important in group Section ultimately focused on a single Court's view of the Act should not decision-making sessions, where the issue: the definition of "meeting" under become part of agency practice. Act's "meeting" requirements clearly.

the Sunshine Act. Its report and [Emphasis in the original.) The logic of

• appJy.

recommendations were accepted by the this argument, said the ABA report, The ABA report recommended that Administrative Law Section in April would permit no discussion whatever of agencies follow procedures for the 1986 and bv the full American Bar monitoring and memorialization of non-agency business except in "meetings," a Association in Februan* 1987. Sunshine Act discussions to give result which "seems clearly to us not to The AB:\'s recommendation and have been intended by Congress." assurance to the public that they are report confirmed that the Commission's staying within the law. The A~A made reading of the Sunshine Act, as ' A fuller description of the types of discussions clear that this was a policy interpreted by the Supreme Court in the fitting in these four categorie, may be found at recommendation, not a matter of legal m decision. was legally correct. pages 9 10 11 of the ABA report. obligation. (The report noted at one

Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules and Regulations 24939

(

point that if I discussion "is not a 51679; 1985) and 10 CFR 1704.2(d)(5) The Administrative Conference, then

• meeting.' no announcement or (56 FR 9609; 1991), respectively. aoon to be abolished, took up the procedures are required because the Act ID February 1995, Commissioner sroup'11 challenge, usemblea a 1pecial has no application." Report at 6.) The Steven M.H. Wallman of the Securities committee to ltlldy the SUDShine Act, ABA recommended that General and Exchange Commission, joined by and convened a meeting in September, Counsels brief agency members in twelve other Commissioners or former 1995, to discuH the Act, its problems, advance on the requirements of the law, Commissioners of four independent . and possible remedies. The Conference to assure their familiaritv with the regulatory agencies (the Securities and appeared to be looking for 1ome restrictions on non-Sunshine Act Exchange Commission, Federal compromise, acceptable both to the discussions, and that non-Sunshine Act Communications Commission, Federal agencies and to representatives discussions (other than "spontaneous Commodity Futures Trading of the media, that would acknowledge casual discussions of a subject of Commission, Federal Trade the Act's impairment of the collegial common interest") be monitored, either Commission), wrote to the proce&11 and try to remedy that by giving by the General Counsel or other agency Administrative Conference of the greater flexibility to agencies in representati\*es. and memorialized United States to urge a reevaluation of applying the Act. No consensus through notes, minutes, or recordings. the Sunshine Act. The group expressed developed, however. The strong support for the Act'* objective of Administrative Conference, apparently JV. Further Developments

• ensuring greater public access to agency recognizing that there would be no On August 5, 1987, an amendment decision-making, but questioned

• meeting of the minds between critics offered to the NRC authorization whether the Act, as currently structured and defenders of the Sunshine Act, did to bar the Commission from using and interpreted, was 1chieving*those not pursue its efforts to find common funds in fiscal ~*ear 1988 or 1989 "to goals. The group said that the Act has ground.

d any Nuclear Regulatory

• a "chilling effect on the willingness and ability of agency members to engage in V. Conclusions Commission meeting in accordance with the interim [Sunshine Act] rule an open and creative discussion of The Com.mission has taken into

[published in] the Federal Register on issues." It continued: account information from a number of May 21.1985." 133 Cong. Rec. H7178 In almost all cases, agency members quarters, as well as its own experience (Aug. 5. 1987).= As Chairman Philip operating under the Act come to II conclusion in implementing the Sunshine Act. It Sharp of the Subcommittee on Energy about a matter * *

• without the benefit of has considered, among other things, the and Power of the House Committee on anv collective deliberations. (Footnote language of the statute and its legislative Energy and Commerce explained. the omitted.) This is directly in conflict with the history; the Supreme Court's decision in amendment "simply neutralizes a rule free exchange of views that we believe is necessary to enable an agency member to the m case; Recommendation 84-3 of change." The amendment. passed by a the Administrative Conference of the fulfill adequately his or her delegated duties, United States; the findings of the voice \'Ote. was not passed by th.i Senate and to be held accountable for his or her and thus was not enacted into law.

• actions. American Bar Association; actual The Commis *. .,n took no further We are also of the view that the Act is 1t practice at other federal agencies, action regarding the Sunshine Act after odds with the underlying principles of multi- including the Dt,7SB and OSHRC; and 1985. and the issue was allowed to headed agendes. These agencies were the advice letter from numerous ome dormant. \\'bile the "interim" created to provide II number of benefits, Com.missioners and former

• including colleg.ial decision malting where Commissioners of four other of 1985 has remained in effect and the collecti\*e thought process of a number of the books. at 10 Code of Federal independent re~latory agencies.

tenured, independent appointees would be Based on all of these, t!ie Commission Regulations. PaM 9. the Commission has better than one. Unfortunately. the Act often believes that while the Sunshine Act's continued to apply its pre-1985 rules. turns that goal on it& head, resulting in objectives, which include increasing Accordingly. all discussions of business greater miscommunication and poorer b\' three or more Commissioners have decision making by precluding. as I matter agency openness and fostering public of feet. the members from engaging in understanding of how the multi-member continued to be treated as "meetings." agencies do business, are laudable, it is decision making in* collegial way. As a whether formal or informal. deliberative result. the Act inadvertentl\' transforms important to recognize exactly what it or informational. decision-oriented or multi-headed agencies into.bodies headed by was that Congress legislated. The preliminary, planned or spontaneous. 1 number of individually acting members.

legislative history, as the Supreme Court No non-Sunshine Act discussions of any (Footnote omitted.) explained, shows that Congress kind ha\'e been held. In the meantime, The group identif.ed as one problem

• carefully weighed the competing some other agencies adopted and the issue confronted by the NRC's 1985 considerations involved: the public's implemented rules that permit informal rulemalcing: that "many agencies" right of access to. significant discussions that clarifr issues and avoided the problem of distinguishing information, on the one hand, and the expose \'arying views but do not ,between "preliminary conversations, agencies' need to be able to function in effecth*ely predetermine official actions, which are outside of the Act, and an efficient and collegial manner on the discussions of the sort that the Court's m decision said are a "necessary part adeliberations, which trigger the Act," by blanket prohibition, as a matter of other. Congress struck a balance: it did not legislate openness to the maximum of an agency's work." 466 U.S. at 469- general policy, against any conversation extent possible, nor did it provide

70. See, for example. the Occupational among a quorum of agency members, unfettered discretion to agencies to offer Safet\' and Health Re\'iew Commission's except in "meetings" under the only as much public access as they (OSHRC) and Defense Nuclear Facilit\' Sunshine Act. While such bright-line might choose. Rather, it crafted a sys~em Safet\' Board's (DNFSB) definitions of policies were easy to apply and in which the Sunshine Act would apply "meeting". at 29 CFR 2203.2(d) (50 FR effective, the letter said, they were often only to "meetings," a term carefully over-inclusive, barring discussion of defined to exclude preliminary,

Th~ lexl of 1he amendmPnl and 1he colloquy even the most preliminary views and surrounding ii~ udoplion by the House of informal, and informational discussions.

RepreSPnlati\'H are else, reprin1ed in full in SECY- often impeding the process of agency and then provided a series of BB-:!5. decision-making. exemptions to permit closure of certain

24940 Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules and Regulations categories of "meetings." Unf'ortunately, From previous comments, the

• found, the American Bar Association in part because*of ad\'ice &om the following are possible questions about Task Force on the Sunshine Act agreed, Justice Department in 1977 that later the 1985 rule, and the Commiuion's the Council of the Administrative Law proved to be erroneous. the responses to those questions. Section of the American Bar Association Commission's original Sunshine Act 1. What types of discussions does the adopted the Task F~rce's views, and the regulations did not give due recognition Commission have in mind, and what

• ABA's full House of Delegates accepted to the balance contemplated by does it seek to accomplish with this the Administrative Law Section's report Congress. Rather, the regulations rule? and recommendation.

mistakenly took the approach that every Answer: First and foremost, the 3. Didn't the 11T case involve a trip discussion among three or more Commission would like to be able to get to Europe by less than I quorum of FCC Commissioners, no matter how far together as a body with no fixed agenda members, and couldn't the case be removed from being "discussions that other than to ask such questions as: viewed as relating to those specific effectively predetermine official "How is the Commission functioning as facts?

actions," in the Supreme Court's words, an agency? How has it performed over Answer: The case was resolved on two should be considered a "meeting." 466 the past year? What have been its major separate grounds. Although the U.S. at 471. successes and failures? What do we ,ee Supre!De Court did not have to reach the At the time that the Commission coming in the next year? In the next five issue of what constitutes a "meeting" changed its Sunshine Act rules in 198S, years, and ten years? How well are our under the Sunshine Act, it did so. in many of its critics appeared to believe components serving us? Are we getting order (so the ABA report concluded) to that if the rule change were our message to the industry we regulate provide guidance to agencies and the implemented. numerous discussions and to the public? Are we working courts on I difficult aspect of Sunshine ently held in public session would effectively with the Congress?" This Act law. In addressing the ambiguity in ead be held behind closed doors. kind of "big picture" discussion can be the definition of "meeting" and thus the s was a misapprehension. Indeed. if invaluable. One of the regrettable effects uncertainty as to the Act's scope, the there is one point that needs to be of the Sunshine Act, as documented as Supreme Court was acting to resolve a emphasized above any other. it is that long ago as 1984. in Administrative problem that had been apparent literally the objecti\*e of the 1985 rule is not that Conference Recommendation 84-3, has from the day of its enactment into la1/4'.

discussions heretofore held in public been the loss of collective responsibility as President Ford's statement in signing session should become non-Sunshine at the agencies, and the shift of the bill, on September 13, 1976, makes Act discussions: rather. the focus of the authority from Presidentially appointed clear. He wrote:

1985 rule is on the discussions that and accountable agencv members to the agencies' staffs. The Commission

• I wholeheartedly support the objecti\*e of currently do not take place at all. This government in the sunshine. I am concerned.

believes that "big picture" discussions however, that in I few instances was also the focus of the American Bar served a valuable function in pre- unnecessarily ambiguous and perhaps Association and the authors of the 1995 Sunshine Act days at NRC and can do letter to the Administrative Conference. tlarmful provisions were included in S.S.

so again, helping to assure that the * *

• The ambiguous definition of the The Commission believes that non* Com.missioners serve the purlic with meetin"* cover* j by this act, the unnecessary Sunshine Act discussions can benefit maximum effectiveness and rigidity of the act's procedures, and the the agency and thereby benefit the accountability. potentially burdensome requirement for the public which the l',;RC serves. This view The Commission believes that some maintenance of transcripts are provisions id not originate with the Commission kinds of general, exploratory which may require modification.

,. any means. On the contrarv, as discussions can be useful in generating Government in the Sunshine Act-S.5 (P.L.

escribed abo,*e. the starting point of 94-409), Source Book: Legislative History.

ideas. Such ideas, if developed into Text, and Other Documents (1976). at 832.

the Commission's analysis is Congress's more specific proposals, will become recognition that .. 'informal background the subject of subsequent "meetings." 4. On the meaning of meeting" as discussions [that] clarifv issues and The Commission recognizes that it used in the Sunshine Act, aren't the expose varying ,*iews' are a necessary would be incumbent on the participants views of Congressional sponsors of the part of an agency's work," and that to in such non-Sunshine Act discussions legislation entitled to consideration?

apply the Act's requirements to them to assure that they remain preliminary Answer: Yes, when they appear in the would. in the words of the Supreme and do not effectively predetermine pre-enactment legislative history. In the

• Court, "impair normal agency final agency action. The Commission present case, for example, the Supreme operations without achieving significant believes that th, .guidelines proposed by Court cited the remarks of the House public benefit." 466 U.S. 463, 469. the American Bar Association are the sponsor of the Sunshine Act, For convenience, the currently most suitable criteria for usuring Representative Dante Fascell, who .

effective (but not implemented) 198S compliance with the Act's requirements. introduced the report of the Conference rule is included in this notice and the T!ie Commission also believes that Committee to the House. He explained Commission is providing 30 days for spontaneous casual discussions of to his colleagues that the conferees had public comment on its stated intent to matters of mutual interest-for example, narrowed.the Senate's definition of implement the 198S rule. No non* a recent news story relating to nuclear "meeting" in order "to permit casual Sunshine Act discussions will be held regulation-can be beneficial, helping discussions between agency members during the period for public comment both to ensure that Commissioners are that ~ght invoke the bill's and for a 21-day period following clo!11! inf'ormed of matters relevant to their requirements" under the Senate's .

of the comment period to allow the duties and ti;> promote sound working approach. 122 Cong. Rec. 28474 (1976),

Commission to consider the public relationships among Commissioners. cited at 466 U.S. 463,470 n.7. Likewise, comments. Absent further action by the 2. ls it really clear that the law Senator Chiles, the Senate sponsor of Commission, non-Sunshine Act pemuts non-Sunshine Act discussions? the bill, described the definition of discussions may be held commencing Answer: Yes, beyond any reasonable "meeting" in the final bill as a .

21 davs after the close of the comment doubt. Congress so provided, a "compromise version." 122 Cong. Rec.

period. unanimous Supreme Court has so S15043 (Aug. 31, 1976). reprinted in

~

Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules and Regulations 24941 Go,*emment in the Sunshine Act Source from CongreHional intent and thereby Dot urging the cloaing of any meetings Book. In any case, however, once the reaching an "untoward result." Clark- DOW open?

Supreme Court has declared what the Cowlitz Joint Operating Agency v. FERC, *An.rwer: The question mi11es the Jaw requires, federal agencies are bound 798 F,2d 499, 503 D.5 (D.C. Cir. 1984). point of"the ABA comment. JD the to follow its guidance. 7. Uit is 10 clear that non-Sumhi.De context in which the comment appears

5. Is there any basis in the legislative Act discussions are permissible, why fn the ABA nport, it is clear that the history for the notion that non-Sunshine did the NRC interpret the Act differently ABA wu expre11ing its concem for the Act discussions are not only for so many years? . di1CU11iom that cwrently do DOt permissible, but useful? Answer: ID part; thf! answer lies mthe happen at all, either in open or in closed Answer: Yes. The point was made fact that the Justice Department, in the Nssion, became the Sunshine Act forcefully by Professor Jerre Williams years 1977 to 1981, took an expansive inhibits the initiation of discwsions. Its (subsequently a judge on the Fifth view of the definition of "meetiDg." (See point was 1imilu to that made by Circuit Court of Appeals), presenting the the letter from Assistant Attorney Professor Williams in the hearings on views of the American Bar Association. General Barbara A. Babcock reprinted in the bill in 1975, when be urged that He testified, in Congressional hearings the Interpretive Guide at p. 120.) ID agency memben Dot be deprived of the ontlle bill: contrast, Berg and JClitzman, the authors opportunity to gaerate ideas in One of the most critical facets of the of the Interpretive Guide, believed that "braimtormiDg 1nliom"-ideu which American Bar Association view bas to do Congress had consciously narrowed the may ubsequently be the ubject of definition of "meeting." The ABA definition. (See the Interpretive Guide at "meetms1" if they tum out to warrant grees that polic~- must not be 6-7 .) Because the Justice Department formal comideration. & we have ed bv informal closed-door caucuses defends Sunshine Act suits in the* emphasized above, the CommiHion ii ce o( open meetings. On the other courts, its view of the law's not proposing to close IDY meetings

• ban . howe\"eT. the ABA believes it currently held as DP!D public meetings.

imponant that "chance encounters and requirements carried considerable

10. How does the Commission intend informational or exploratory discussions" by weight. The Supreme Court's decision to differentiate between "meetings" and agency members should not constitute in the m case resolved the iasue definitively. "non-Sun1hiDe Act ducutsions'?

meetings unless such discussions are Answer: The Commi11ion intends to "relatively formal'" and "predetermine" 8. Didn't the NRC acknowledge i.J:i its abide by the guidance provided by the agency action. 1977 rulemaldng that it was going

• It should be a matter of concern to all those beyond the law's requirements in the Court in FCC v. ITT World interested in good government that agency Communications and contained in our interest of the Act's "pre:-:miption in regulations, in differentiating between members be allowed to engage in informal favor of opening agency business to work sessions at which they may * "meetings" and non-Sunshine Act "brainstorm" and di~cuss various inno,*ative public observation"? Why isn't that discuHion.s. Applying this guidance, the proposals without public e,*aluation or rationale still applicable today? Commission may consider conducting a censorship of their search for new and Answer: There are at least thr-ae non-Sunshine Act discussion when the creative solutions in :.-.. ?ortant polic:i, ..:eas. factors today that were not present in discussion will be casual, general, All persons who have engaged in 1977: (1) the Supreme C'.ourt's ITf informational, or preliminary, 10 long as policymaking have participated in such decision, which makes cleu that the discussion will Dot effectively al sessions. Sometimes outlandish Congress gave the agencies authority to tions are advanced. hopefully predetenniDe final agency action.

hold such discussions because it Whenever the Commission anticipates ous suggestions abound. ~ut out of all thought they were an important part of ay come a new. creative. 1mponant that a discussion 1eems likely to be idea. There is time enough to expose that doing the public's business; (2) the "sufficiently focused on discreet

- idea to public scrutiny once it has been Administrative Conference proposals or issues u to cause the adequately e\"aluated as a viable alternative recommendation stating that the . individual participating members to which ought to be seriously considered. Sunshine Act has had a much more form reasonably firm positions (Emphasis added l Hearings Before a deleterious effect on the collegial nature

• regarding matters pending or likely to Subcommittee of the Committee on of agency decision maldng than had vise before the agency," the Government Operations. House of been foreseen; and (3) the American Bu Representati\*es, 94th Cong .. First Session Commission will treat those discussions Association report stating that Congress as "meetings." See id. at 471.

(Nov. 6 and 12. 1975). 11t 114-15.

gave the agencies the latitude to hold Further, to emu.re that we

6. Why is the NRC paying so* much non-Sunshine Act discussions in the appropriately implement the Supreme attention to the m case and ignoring expectation they would use it, and Court guidance in differentiating the Philadelphia Newspapers case suggesting that the use of such between non-Sunshine Act discussions which dealt specifically with NRC? discussions might help alleviate some of and meetings, the Commiaaion will Answer: First of all, the m case dealt the problems caused by the Sunshine con.sider the ABA '1 remarks on the with the issue of what is a "meeting," Act. Moreover, the Commission has had seriouaness of this tuk. For instance, whereas Philadelphia Newspapers, Inc. the benefit of its own and other the ABA cautioned that a non-Sunshine

v. NRC, 727 F.2d 1195 (D.C. Cir. 1984). agencies' experience under the Act. It Act discussion "does not pose specific dealt with an unrelated issue: whether should be emphasized that the problems for agency resolution" and a particular "meeting" could be closed Commission, by implementing this rule, agency "members are not deliberating in UDder the Sunshine Act. Secondly, the is not implicitly or explicitly urging that the sense of confronting and weighing ITT case was decided by the Supreme the Sunshine Act be altered; rather, it is choices." ReJ;>Ort at 9-.11.

Court, and as such would be entitled to saying that the Sunshine Act should not Some specific examples of the kinds greater weight than the decision of one be applied even more restrictively than of topics that might be the subject of panel of a Court of Appeals, even if they Congress intended when it enacted the non-Sunshine Act discussions would were on the same issue. Thirdly, the full statute. include generalized "big picture" D.C. Circuit, sitting en bone, bas 9. Why does the NRC put such discussions on such matters as the severely criticized the Philadelphia reliance on the ABA report, when the following: "How well is the agency Newspapers decision for digressing ABA made a point of sayiDg that it was functioning, what are our successes and

24942 Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules and Regulations failures, what do we see u major u.t of Subjects ID 10 a& Part 9 Dated at Rockville, Maryland, this 4th day challenges in the next five and ten of May, 1999.

years, what is the state of our relations Criminal pen~ties, Freedom of For the Nuclear Regulatory Commission.

v.ith the public, industry, Congress, the information, Privacy, Reporting and Anaette Vfetti-COOk, press?' ncordkeeping requirements, Sunshine Act. Secretary of th~ Commission.

Preliminary, exploratory discussions (FR Doc. 99-11669 Filed S-7-99: 8:45 am]

that generate ideas might include, for The May 21, 1985 (50 FR 20863), mle MJ.NG COOi 7'111>-01-fl example, "Is there more that we could i1 currently effective but has never been be doing through the Internet to inform implemented. For the convenience of the public and receive public input? the reader, the Commission is How does our use of the Internet republishing the text of that rule. DEPARTMENT OF COMMERCE compare v.ith what other agencies are Buruu of the Cenau1 doing?" Such ideas. if followed up with PART ~UBLIC RECORDS specific proposals, would become the 1. The authority citation for part 9 15 CFR Part 30 subject of later "meetings" within the continues to read as follows:

meaning of the Sunshine Act. [Docut No. l9041IOH-t0119-01]

Spontaneous. casual discussions of Authority: Sec. 161, 68 Stat. 948, 1s AIN OI07...u32 matters of mutual interest could include amended (42 U.S.C. 2201): ec. 201, 88 Stat.

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

discussions of a recent news story Subpart A is also issued 5 U.S.C. : 31 U.S.C New C.nadlan Province Import Code relating to NRC-licensed activities, or a 9701: Pub. L.99-570. Subpart Bis also for Territory of Nunavut Commissioner's insights and personal issued under 5 U.S.C. 552a. Subpart C is also

• mpressions from a \'isit to a licensed AGENCY: Bureau of the Census, issued under 5 U.S.C. 552b. Commerce.

acilit,* or other travel. Under this eading. three Commissioners would be 2. In§ 9.101, paragraph (c) is ACTION: Final rule.

permitted to have a cup of coffee republished for the convenience of the reader as follows:

SUMMARY

The Bureau of the Census is together and to talk infonnall\' about amending the Foreign Trade Statistics matters that include business:related 11.101 Deflnltlona. Regulations (FTSR), to add a new topics. Under the Commission's pre- * * * *

• Canaruan Provincerrerritory code for 1985 rule. such informal get-togethers were precluded. (c) Meeting means the deliberations of the Territory of Nunavut. This Canadian at least a quorum of Commissioners Territory code is being added to the Briefings in which Commissioners are existing Canadian Provincerrerritory provided information but do not where such deliberations determine or themselves deliberate on any proposal result in the joint conduct or disposition codes used for reporting Canadian for action could include routine status of official Commission business, that is, Province of Origin information on where discussions are sufficiently Customs Entry Records.

• updates from the staff.

Discussions of business-related focused on discrete proposals or issues EFFECTIVE DATE: The provisions of this matters not linked to any particular as to cause or to be likely to cause the rule are effective April 1, 1999.

proposal for -ommissiou action might individual participating members to FOR FURTHER l,..fORMATION CONTACT: C.

include an upcoming Congressional form reasonably firm positions Harvey Monk, Jr., Chief, Foreign Trade O\*ersight hearing or a planned all-hands regarding matters pending or likely to Division, Bureau of the Census, Room meeting for emplo,*ees. arise before the agency. Deliberations

• 2104, Federal Building 3, Washington,

11. Apart from the issue of the required or permitted by§§ 9.105, 9.106, DC 20233-6700, by telephone on (301) definition of "meeting," are there other or 9.108(c), do not constitute 457-2255, by fax on (301) 457-2645, or changes that the interested public "meetings" with.in this definition. by e-mail at should be aware of? * * * *

• c.h.mon1c.jr@ccmail.census.gov. For Answer: Yes. one minor procedural 3. In§ 9.108, paragraph (c) is information on the specific Customs point. The 1985 rule includes a republished for the convenience of the reporting requirements contact; Dave provision stating that transcripts of reader as follows: Kahne, U.S. Customs Service, Room closed Commission meetings will be 5:2C, 1300 Pennsylvania Avenue, NW, reviewed for releasability only when I 1.108 Certification, transcripts, Washington, DC 20229, by telephone on recording, and minutes there is a request from a member of the (202) 927-0159 or by fax on (202) 927-public for the transcript. Reviewing * * * *

• 1096.

transcripts-for releasability when no one (c) In the case of any meeting closed IUPPLEMENTARY INfORMATION:

is interested in reading them would be pursuant to§ 9.104, the Secretary of the a waste of agency resources and thus of Commission, upon the advice of the Background Information the public's money. General Counsel and after consultation On November 29, 1996, the U.S.

12. Will the Commission adopt any with the Commission, shall determine Bureau of the Census (Census Bureau),

particular internal procedures for its which, if any, portions of the electronic Department of Commerce, and the U.S.

non-Sunshine Act discussions? recording, transcript or minutes and Customs Service (Customs), Department Answer: For an initial 6-month period which, if any, items of information of the Treasury, announced the of non-Sunshine Act discussions, the withheld pursuant to § 9.105(c) contain implementation of the requirements for Commission will maintain a record of information which should be withheld collecting Canadian Province of Origin the date and subject of, and participants pursuant to§ 9.104, in the event that a information on Customs Entry Records in, an,* scheduled non-Sunshine Act request for the recording, transcript, or in the Federal Register (61 FR 60531).

discussions that three or more minutes is received within the period The Supplementary Information Commissioners attend. After the six* during which the recording, transcript, contained in that notice fully recounts month period, the Commission will or minutes must be retained, under the development of the program for revisit the usefulness of the record- paragraph (b) of this section. collecting Canadian Province of Origin keeping practice. * * * *

• information on Customs import

27041 Corrections Federal Register Vol. 64, No. 95 Tuesday, May 18, 1999 This section of the FEDERAL REGISTER paragraph designation."(iii)" should NUCLEAR REGULATORY contains editorial corrections of previously read "(ii)", COMMISSION published Presidential, Rule, Proposed Rule, [FR Doc. CB-22354 Filed 5-17-99; 8:45 am!

and Notice documents. These corrections are 10 CFR Part 9 BILLING CODE 1505-01-0 prepared by the Office of the Federal Register. Agency prepared corrections are issued as signed documents and appear in RIN 3150-AB94 the appropriate document categories DEPARTMENT OF ENERGY elsewhere in the issue. Government In the Sunshine Act Federal Energy Regulatory Regulations Commission Correction CENTRAL INTELLIGENCE AGENCY Notice of As-Built Exhibit A, F, and G and Sollcltlng Comments, Motions to In rule document 99-11669 beginning 32 CFR Part 1903 Intervene, and Protests on page 24936 in the issue of Monday, May 10, 1999, make the following Security Protective Service Correction correction:

Correction In notice document 99-11765, On page 24936, in the third column, In rule document 98-22354, beginning on page 25316 in the issue of under DATES, in the last line "June 1, beginning on page 44 785 in the issue of Tuesday, May 11, 1999, make the

. 1999" should read "July 1, 1999".

Friday, August 21, 1998, make the following correction:

On page 25316, in the second column, [FR Doc. C9-11669 Filed 5-17-99; 8:45 am!

following correction:

in paragraph b. Project No:, "5876-038" BILLING CODE 1505-01-0

§ 1903.4 [Corrected] sho1.1:ld read "5867-.:;.:;.::;".

On page 44786, in the third column, [FR Doc. C9-1.1765 Filed 5-17-99; 8:45 am]

in § 1903.4(a)(3)(ii), in the first line, the BILLING CODE 15~1-0

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This fax includes --3_ pages, including the cover page.

Senator John Edwards 825 Hart Senate Office Building Washington, D.C. 20510 Phone (202) 224~3154 Fax (202) 228-1374

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roWN OF CARRBORO NORTH CAROI-INA March 22, 1999 Senator John Edwards Hart Senate Building Washington, D,C; 20510

Dear Senator Edwards:

It has come to the attention of the Town of Carrboro that the U.S. Nuclear Regulatory Commission (NRC) seeks exemption from the Sunshine Act and proposes to fucilitate policy making out of the view of the public to which it is responsible. We believe this proposed policy change is unwise, wish to express our opposition to it, and request your assistance .i.u opposing it. _.. ,

On March l, 1999 w NRC announce4 that. iet would propose a final rule which allows three of five :NRC conunissioners to meet in private,. Curr~ rules allow 11'? more.*

two com.missioners to meet to discuss business. As fus~uon for t'1e change, the Commis11ion cited a 1984 Supreme Court ruling whj,ch opened the way for thi!i re-intapretation of the Sunshine Act of 1976. We understand the NR.C has directed its General Counsel to prepare the rule to be published in the Federal Register within 30 days.

Notwithstanding assurances by the Commission that policy decisions would not be made at such closed-door meetings, we believe this rule change would undermine public confidence in the agency at a critical time.

The importance of this proposed change should not be underestimated. Policy issues now under discussion include such fundamental questions about nuclear energy as decommissioning of nuclear power plants, plutonium fuel reprocessing, nuclear non-proliferation, and nuclear waste disposal. We also believe that it runs counter to recent administration decisions, which have brought put practices into the light of day.

Our concerns are heis)itened because Carrboro is located only some twenty miles from the site of Carolina Power & Light Company's Shearon Harris nuclear plant. CP&L currently has applied to the NRC to expand its high*level nuclear waste storage capa.9jncat the plant. Significant technical and policy questions remain unanswered about the risks, **

wisdom, and alternatives Qf this proposal. If granted, more high level waste could be stored at Shearon Harris than at any other plant in the country.

• 301 Wl!:&T MAIN STREET, C~RP!ORO, NC :l.7~10

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Pqel March 22, 1~99 It ill in the interests of the residents of Carrboro !Uld others around the countiy, that deliberations and decisions be made in the open. in the ":nmshine". We do not believe that discussions of nuclear regulatory matters by a majority oftbe commission should take place in secret. As a legislative body, the Carrboro Bo9td of Aldennen is subject to, and willingly agree to, broad open meetings requirements to the long-range benefit of good government We believe the NRC should be held to~ similar standard.

Thank you ver:y much far your attention to this matter. We appreciate any llll~i.$tance you may be able to give in maintaining an open deliberation and decision process at the Nuclear Regulatory Commission. We would appreciate hearing of any action or developments on this matter.

~-w Sincerely,

. Michael ll. Nelson Mayor

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555--0001 June 29, 1999 *99

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PROPOSED RUlE.!f!f~

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The Honorable Jesse Helms United States Senate Washington, D.C. 2051 0

Dear Senator Helms:

I am pleased to respond to your request that the U.S._Nuclear Regulatory Commission (NRC)

• look into concerns raised by Mayor Michael R. Nelson of Carrboro.

Mayor Nelson's letter was written before the NRC issued its recent (May 1o, 1999) Federal Register notice regarding the Sunshine Act, and its characterization of the NRC's action is not altogether accurate. According to his letter, the NRC "seeks exemption from the Sunshine Act."

In reality, the NRC seeks nothing of the sort. As the enclosed Federal Register notice makes clear, the NRC's action starts from the premise that the Sunshine Act fully applies to the NRC.

The question, rather, is of the definition of a "meeting" under the Act.

The Supreme Court explained in a unanimous 1984 decision that in enacting the Sunshine Act, Congr"ss did not provide that every discussion of agency business should be t'"eated as a "meeting," because it understood that this would impede the kind of informal, preliminary discussions that are an important part of a government agency's work. Unfortunately, the NRC initially interpreted the Act as though every discussion should be considered a "meeting," in part on the basis of erroneous legal advice from the Justice Department in 1977. After the Supreme Court's clarification of the law in 1984, the NRC changed its regulations to reflect the Court's guidance, but in the face of sharp criticism of its action, the NRC never implemented the rule change, and continued its earlier practice of treating all discussions of agency business as "meetings." The NRC's recent action is intended to ensure that the NRC's practice and regulations conform to the Supreme Court's guidance.

Implementation of the rule change will permit the NRC Commissioners to hold certain kinds of discussions, unrelated to any specific issue; to hold informal and preliminary discussions of agency-related business; and to receive status or informational briefings related to staff activities. The kinds of issues that Mayor Nelson identifies in his letter as being of concern to the citizens of Carrboro -- for example, a pending specific application for license authorization to expand nuclear waste storage capacity at the Shearon Harris plant -- are of sufficient specificity that a quorum of Commissioners could not discuss discuss and formulate positions on the application except in "meetings," just as is the case today.

U.S. NllCl,£AfHiEGUlA!OR'r/ COMM!SSI ON RUlSH!AKM\'GS&~~AFF OFFICE (Of1J:{J!~~MV Of'1~~~

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2 Mayor Nelson's letter speaks of the need to maintain "an open deliberation and decision process at the Nuclear Regulatory Commission." The Commission's recent action is fully consistent with Congress' intent that the Sunshine Act's !)rocedural requirements shall apply whenever discussions are, in the words* of the Supreme Court, "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."

In short, this decision is not intended to produce, nor should it produce, any reduction in the openness of the deliberative and decisional process at the NRC.

I trust that this letter is responsive to Mayor Nelson's concerns. His letter will be included in the public comments to the Federal Register notice.

Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs

Enclosure:

As stated

34936 Federal R.egi1t1r/Vol. 6t No. 89/Mondey, May 10, 1999/Rules and Regulations (2) Totaling the eligible cwt (not to condition for payment arising under'the NUCLEAR REGULATORY exceed 26,000 cwt) ol milk mulr.eted application, or this 1ubput, and if my COMMISSION commercially during the bue period refund of a payment to CCC ahall from all aP.proved applications: and otherwise become due in connection 10 Cl'R Part I

[3) Diviwng the amount available for with the application, or thi1 aubput, all IIIN 111D-AM Dairy Market Loss A11istance Program payments made under this 1ubput to by the total eligible cwt submitted and any dairy operation ball be refunded to Govemment 1ft 1M BunahlM Act approved for payment. CCC together with lntemst u Regulatton (b) Each dairy operation payment wiJl be calculated by multiplying the determined in accordance with AGENCY: Nuclear Regulatory 1t*yment rate determined in paragraph paragraph (c) of thia aection and late- Commi1aion.

(a) (3) of this section by the dairy payment chuges u provided for in part ACTION: Pinal rule: Notice of intent to

~ration's eligible production. 1403 of this chapter. implement currently effective rule and (c) In the event that approval of all {b) All persons listed on a dairy nquet for comments.

eligible applications would result in operation'* application shall be jointly expenditures in excess of the amount and severally liable for any refund, IUIIIIAflY: The Nuclear Regulatory available, CCC ahall reduce the payment including related cbarges, which is Commi11lon (Commiuion) i1 nte in such manner u CCC, in its 1ole determined to be due for any NUDD announcing ltl Intent to implement a discretion, finds fair and reasonable. under the terms and conditio111 of the final rule, publilhed uid made effective application or thi* 1ubpart. in 1985, that amended ita regulations 1,430.507 Mlaraprnentatlon 1111d achema applying the Government IJl the ordavlca. (c) Interest hall be applicable to Sun1bine Act. The Commi11ion is (1) A dairy operation shall be refunds required of the dairy operation taking thi action to provide an ineligible to Ntcei,*e assistance under if CCC determine that paymentl or opportunity for public comment on its this program if it is determined by the other auistance weNt provided to the intent becauae of the time that has ate committee or the county producer was not eligible for such passed ince the Commi11ion last aunittee to have: usistance. Such intere1t shall be addre11ed this i11ue. Thi* action i

• (1) Adopted any scheme or device charged at the rate of interest which the nece11uy to complete reolution of this which tends to defeat the purpose of United States Treasury chargea CCC for iuue.

this rrogram; funds, u of the date CCC made such DATU: The May 21, 1985, interim rule (2 Made a.ny fraudulent benefits available. Such interest lhall representation; or became efftctive May 21, 1995. Submit

{3) Misrepresented any fact affecting 11 accrue from the date 1uch benefits were comment by June 9, 1999. Unleas the program determination.

• made available to the date of repayment Commi11ion take further action, non*

(b) Any funds disbursed pursuant to or the date inteNtst inc:reues u Sunshine Act di1cu11ions may be held this part to a dairy operation engaged in determined in accordr!!lce with beginning June l, 1999.

a misrepresentation, 1c:heme. or device, applicable regulations. CCC may waive ADORESSES:Submitwrittencomments or to any other person as a result of the the accrual of .interest if CCC determines to: s.cretary, U.S. Nuclear Regulatory dairy operation's actions, shall be that the cause of the erroneous Commisnlon, Wuhington, DC 20555-refunded with interest together with determination was not due to any action 0001, ATI'N: Rulemaking1 and 1uch other sums as may becom'! due. of the dairy operation. Adjudication Staff.

A:rJy dairy operation or person engaged (d) lntere11t determined in accordance FO" FURTHER 1NirOMaAT10N CONTACT: Trip in acts prohibited by this section and with paragraph (c) of this section may Roth11child, A11istant General Counsel, any dairy operation or person receiving be waived by CCC with nspect to Office of the General Counsel, U.S.

payment under this subpart shall be refunds required of the dairy operation Nuclear Regulatory Commission, intly and severally liable for any because of unintentional minction on Wuhington, D.C. 20555, (301) 41S-fund due under this section and for the part of the dairy operation, u 1607.

• ,ilated charges. The remedies provided detennlned by CCC. IUflPLEMENTAFIY !NFOAMATION: The in this subpart shall be in addition to Com.mi11ion, through thi notice of the other civil, criminal, or administrative (e) Late payment interest hall be assessed on all refund; in accordance Commi1Sion'1 intent to implement a

• remedies, which may apply. rule publi hed and made effective in with the provisions or, and 1ubj1ct to l14JO.SOI Maintaining racorda. the ratH prescribed in 7 CFR put 1403. 1985, 1eeb to bring clo ure to a Dairy operation& making application rulemaking that amended the NRC'1 (f} Dairy operations must refund to regulation applying the Government in for benefits under this program must CCC nny excea payments made by CCC maintain accurate records and accounts with respect to 1uch application. the Sunshine Act. Because of the years that will document that they meet all that have elapaed, the Commission is eligibility requirements specified in this (g) In the event that a benefit under providing this notice of its intent to subpart and the pounds of milk this subpart was provided a1 the result implement this rule and is providing an marketed commercially during the of erroneou1 information provided by opportunity for additional public fourth quarter of 1998 and the base any person, the benefit must be repaid comment on the Commis ion'1 proposal period. Suc:h records and accounts must with any applicable interest. to implement.

be retained for at least three years after Signecl at Wuhin,ton, D.C., on April 30, The purpose of the rule i1 to bring the the date of the cash payment to dairy 19911. NRC'1 Sunshine Act regulations, and operations under this program, the way they are applied by NRC, into Keith Kelly, closer conformity with Congre1111ional 11430.509 Rafunda; joint and Hvaral becutive Vice President, Commodity Credit intent, as et forth in the legislative nablllty. Corporation. hi&tory of the Sunshine Act and as

{a) In the event there is a failure to (FR Doc:. 99-ll596 Fllecl S-7-99; 8:45 am] clarified in a unanimous Supreme Court comply with any term, requirement, or &IUJNG CDDE M , ~ decision, FCCv. ITT World

Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules and Regulations 24937 Communications, 466 U.S. 463 (1984). Communications, 466 U.S. 463. T~ough to bring the NRC into line with The NRC's original Sunshine Act the case could have been decided on Congressional intent.

regulations, adopted in 1977, treated narrow, fact-specific grounds, the Court Soon after that, in August 1984, the e,*ery discussion of agency business by used the opportunity to offer guidance Administrative Conference of the three or more Commissioners, no matter on what leading commentators have United States (a body, since abolished, how informal or preliminary it might be, described as "one of the most to which the Sunshine Act assigned a as a "meeting" for Sunshine Act troublesome problems in interpreting special role in the implementation of purposes. As the 1984 Supreme Court the Sunshine Act": the definition of the Act by federal agencies) issued

• decision made clear. however, "meeting" as that term is used in the Recommendation 84-3; based upon an "meetings." tq which the Act's Act. R. Berg and S. Klitzman, An extensive study of the Sunshine Act.

procedural requirements apply, were Interpretive Guide to the Government in The Administrative Conference was ne\'er intended to include casual, the Sunshine Act (1978}, at 3. The Court troubled by what it saw as one harmful general. informational. or preliminary rejected the broad view of the term effect of the Act on the functioning of discussions. so long as the discussions "meeting" that the U.S. Court of the multi-member agencies.

do not effectively predetermine final Appeals for the District of Columbia Commenting that "one of the clearest agency action. These kinds of "non- Circuit had taken. It declared that the and most significant results of the Sunshine Act discu~sions," which can statutory definition of a "meeting" Government in the Sunshine Act is to be an important part of the work ofa contemplated "discussions that diminish the collegial character of the multi-member agency, had been 'effectively predetermine official agency decision malting process," the foreclosed at NRC since 1977 bv the actions.' " The Court went on: Administrative Conference agency's unduly restrictive - recommended that Congress consider Such discussions must be "sufficient!\'

rpretation of the Sunshine Act. focused on discrete proposals or issues is to whether the Act should be revised. The response to the Supreme Court's cause or be likely to cause the individual Conference observed:

• fication of the law. the Commission participating members to form reasonably Although the legislative historyindicates in 1985 issued an immediateh* effective firm positions regarding matters pending or Congress believed that. after the initial period rule that re,*ised the definition of likely to arise before the agency." 466 U.S. of adjustment, Sunshine would not ha,*e a "meeting" in the NRC"s Sunshine Act at 471. significant inhibiting effect on collegial regulations. To ensure strict conformity The Court reviewed the legislative exchanges, unfortunately this has not been with the law. the new NRC rule history, demonstrating bow in the the case.

incorporated ,*erbatim the Supreme process of revising the original bill,

• If Congress decided that revisions Court's definition of "meeting." The Congress had narrowed the Act's scope. were in"order, the Conference said, it rule change drew criticism. however, In the Court's words, "the intent of the recommended that agency members be much of it directed at the fact that it was revision clearly was to permit permitted to discuss "the broad outlines made immediateh' effecti\*e. with an preliminary discussion among agency ofagency policies and priorities" in opportunity to comment only after the members. Id. at 471, n.7. The Court closed meetings. The Administrative fact. To address ~ome of the concerns explained Congress's reasons for

• Conference did not address the raised, the ?',;RC informed the Congress limiting the reach of the Sunshine Act: distinction between "meetings" and that it would not implement the rule those discussions that are outside the until procedures were in place to *congress in drafting the Act's definition of "meeting" recognized that the administrative scope of the Act.

monitor and keep minutes of all non- process cannot be conducted entirely in the nshine Act discussions among three public eye. "[l)nformal background n. The NRC's 1985 Rule more Commissioners. No such discussions [that) clarify issues and expose On May 21, 1985 (50 FR 20889), the ocedures were ever adopted, however, varying views" are a necessary part of an Nuclear Regulatory Commission issued nor was the rule itself implemented, and agency's work. (Citation omitted.) The Act's new regulations implementing the the issue remained pending from 1985 procedural requirements effectively would Government in the Sunshine Act. As a

• on. prevent such discussions and thereby impair normal agency operations without achieving legal matter, the NRC could have The Commission believes that it is continued to use the language of its time to bring the issue of the NRC's significant public benefit. Section 552b(a)(2) therefore limits the Act's application. * *

• existing regulations, and reinterpreted Sunshine Act rules to a resolution. As them in accordance with the Supreme noted, because of the many years that Id. at 46~70. Court's decision. However, the NRC have passed since the Commission last At the time the Supreme Court decided that in the interest of openness, addressed this issue. the NRC is handed down the ITI decision, the it should declare explicitly that its view providing this notice of its intent finally Nuclear Regulatory Com.mission had for of the Act's requirements had changed to implement and use the 1985 rule, and almost eight years applied the in light of the Court's ruling.

providing 30 days for public comment Government in the Sunshine Act as Tlie revised rule conforms the on the Commission's proposal to though it required every discussion of definition of "meeting" in the implement. The Commission will not agency business to be conducted as a Com.mission's rules to the guidance modify its current practices, under "meeting." Recognizing that the provided by the Supreme Court by*

which no non-Sunshine Act discussions Supreme Court's guidance indicated incorporating the very language of the take place, until it has had the that the NRC's interpretation of Court's decision into its revised opportunity to consider any comments "meeting" had been unduly broad, the definition. Specifically, it provides, at recei\'ed. NRC's Office of the General Counsel 10 CFR 9.101(c):

(OGC) advised the Com.missioners in I. Background May 1984 that the decision seemed Meeting means the deliberations of at least On April 30, 1984, the United States significant: the decision was unanimous a quorum of Commissioners where such deliberations determine or result in the joint Supreme Court issued its first decision and it was the first time that the conduct or disposition of official interpreting the Go,*ernment in the Supreme Court had addressed the Act. Commission business, that is, where Sunshine Act, Federal Communications OGC suggested that revisions in the discussions are sufficiently focused on Commission,*. ITT World NRC's regulations might be appropriate discrete proposals or issues as to cause or to

24938 Federal Register /Vol. 64, No. 89 /Monday, M~y 10, 1999 /Rules and Regulations be likely to cause the individual participating Moreover, the legal standard set forth in Report at 8. The report noted that this members to fonn reasonably finn position~ the A.BA recommendation incorporated argument in essence was a claim that regarding matters pending or likely to arise the identical language from the Supreme agencies should apply a differei;it before the agency. Deliberations required or Court opinion which the NRC had standard from the one specified by pennitted by §§9.105. 9.106. or 9.l0B(c) do not constitute "meetings" within this included in its 1985 rule: i.e., the Congress for distinguishing "meetings" definition. provision stating that for a discussion to from discussions that are not be exempt from the definition of "meetings." The A.BA explained:

Under the rule, which was adopted as "meeting," it must be "[not) sufficiently an immediatelv effective "interim" rule * *

• Congress CIIJl hardly have gone to focused on discrete proposals or issues such pains to articulate a narrower standard (it was characterized as "interim" to as to cause or be likely to cause the had it not expected the agencies to use the reflect the fact that it was being made individual participating (agency) leeway such a standard provides, and if they effective before anv comments were members to form reasonably firm are to do so, they must attempt to set out in received and addressed), with an positions regarding matters pending or advance, whether by regulation or internal opportunity for public comment, guidelines, the elements or characteristics of

• likely to arise before the agency." a discussion which will cause it to fall short briefings were excluded from the Subject to that qualification, the AB.A category of "meetings." In the NRC's of being a meeting. Report at 8, fn. 9.

guidelines provide that the definition of pre-1985 regulations. by contrast, "meeting" does not include: The A.BA report's conclusion was a briefings were treated as meetings, as a measUJ'8d endorsement of the value of matter of policy. (al Spontaneous casual discussions among non-Sunshine Act discussions. After The NRC's 1985 rule proved agency members of II subject of common stressing that its purpose was not to interest: (b) Briefings of agency members by controversial. In response to staff or outsiders. A key element would be urge agencies to close discussions now Congressional criticism, much of it that the agency members be primarily held in open session, the report made directed at the Commission's decision to receptors of information or views and only clear that its focus, rather, was on the E he rule immediately effective, the ission assured the Congress that it conduct no non-Sunshine Act discussions until procedures were in place to go\*em such discussions.

incidentally exchange views with.one another; (cl General discussions of subjects which are relevant to an agency's responsibilities but which do not pose specific problems for agency resolution: and discussions which, because of the Sunshine Act, are never initiated in the first place. It said:

But the fact is that the Sunshine Act has bad an inhibiting effect on the initiation of (d) Exploratory discussions, so long as they In December 1985. the NRC's Office of are preliminary in nature, there are no discussions among agency members. This is the General Counsel forwarded a final pending proposals for agency action, and the the conclusion o,f the Welborn report [to the rulemaking paper in which comments merits of any propos*ed agency action would Administrative Conference]. and it is on the interim rule were analvzed and be open to full consideration at A later time. 1 confinned by our meeting with agency responded to. Howe\'er, by the time that The ABA report disposed of the general counsels * * * [TJhe Act has made difficult if not impossible the maintenance of the Commission was briefed on the suggestion, advanced by some critics of . close day-to-day working relationships in comments. the AmPrican Bar the NRC's interim rule, "that the [five-member and three-member] agencies.

Association had announced its intention Supreme Court's opinion should be * *

• We believe that a sensible and to address Sunshine Act issues, limited to the facts before the Court." sensitive application of the principles including matters directly related to the While it recognized that the Cf\se could announced in t},o m case can ease the NRC's rulemaking. The Commission have been decided on fact-specific somewhat stilted relationships that exist in therefore decided to withhold action on grounds, the report observed that: some agencies. Report at 11-12. [Emphasis in the original.)

the matter and to defer actual (I)t cannot be assumed that the Supreme implementation and use of the 1985 rule Court got carried away or that it was unaware The ABA report made clear that it did nding receipt of the ABA 's \'iews. that the definition of "meeting" was not regard the opportunity for non-controversial and "one of the most Sunshine Act discussions as a panacea

• . The American Bar Association Acts troublesome problems in interpreting the for the Sunshine-caused loss of In the fall of 1985, William Murane, Sunshine Act." (Interpretive Guide 3.) We collegiality which the Administrative Chairman of the Administrative Law concluded therefore, that the Supreme Court Conference had identified, and which Section of the American Bar meant what it said in m World Communications, and that it intended to the AB.A's own inquiry had confirmed.

Association. announced that the provide guidance to agencies and the courts The Report concluded that the impact of Council of the Administrative Law in applying the definition of "meeting." loosened restrictions was likely to be Section had decided to involve itself in Report at 7. "slight," though it saw "some tendency the contro\*ersv O\'er the Sunshine Act The ABA report also rejec.1ed the to increase collegiality * *

• to the and its effect on the collegial character argument that because of the "difficulty extent that it would contribute to more of agency decision making. of specifying in advance those normal interpersonal relationships Administrative Law Review, Fall ,985, characteristics of a particular discussion among agency members." Report at 12.

Vol. 3i. No. 4. at p. v. The Task Force which will cause it to fall short of The Report also observed that established bv the Administrative Law becoming a meeting," the Supreme collegiality is most important in group Section ultimately focused on a single Court's view of the Act should not decision-making sessions, where the issue: the definition of "meeting" under become part of agency practice. Act's "meeting" requirements clearly the Sunshine Act. Its report and [Emphasis in the original.] The logic of apply ..

recommendations were accepted by the this argument, said the ABA report, Tne ABA report recommended that Administrath*e Law Section in April would permit no discussion whatever of agencies follow procedures for the 1986 and bv the full American Bar agency business except in "meetings," a monitoring and memorialization of non-Association in Februar\' 1987. result which "seems clearly to us not to Sunshine Act discussions to give The ABA's recommendation and have been intended by Congress." assurance to the public that they are report confirmed that the Commission's staying within the law. The A~A made reading of the Sunshine Act. as 1 A ful\er description of the types of discussions.

clear that this was a policy interpreted by the Supreme Court in the fitting in these four categories may be found at recommendation, not a matter of legal ITT decision. was legally correct. pages 9 to 11 of the ABA report. obligation. (The report noted at one

Federal Register /Vol. 64, No. 89 /Monday, May 10, 1999 /Rules and Regulations 24939 point that if a discussion "is not a 51679; 1985) and 10 CFR 1704.2(d)(5) The Administrative Conference, then

'meeting.* no announcement or (56 FR 9609; 1991), respectively. 11000 to be abolished, took up the procedures are required because the Act In February 1995, Commissioner group's challenge, assembled a special has no application." Report at 6.) The Steven M.H. Wallman of the Securities committee to study the Sunshine Act, ABA recommended that General and Exchange Commission, joined by and convened a meeting in September, Counsels brief agency members in twelve other Commissioners or former 1995, to discuss the Act, its problems, advance on the requirements of the law, Commissioners of four independent and possible remedies. The Conference to assure their familiaritv with the regulatory agencies (the Securities and appeared to be looking for some restrictions on non-Sunshine Act Exchange Commission, Federal compromise, acceptable both to the discussions, and that non-Sunshine Act Communications Commission, Federal agencies and to representatives discussions (other than "spontaneous Commodity Futures Trading of the media, that would acknowledge casual discussions of a subject of Commission, Federal Trade the Act's impairment of the collegial common interest") be monitored, either Commission), wrote to the process and try to remedy that by giving by the General Counsel or other agency Administrative Conference of the greater flexibility tq agencies in representatives. and memorialized United States to urge a reevaluation of applying the Act. No consensus through notes, minutes, or recordings. the Sunshine Act. The group expressed developed, however. The strong support for the Act's objective of Administrative Conference, apparently JV. Further Developments ensuring greater public access to agency recognizing that there would be no On August 5. 1987, an amendment decision-making, but questioned meeting of the minds between critics was offered to the NRC authorization whether the Act, as currently structured and defenders of the Sunshine Act, did bill to bar the Commission from using and interpreted, was achieving those not pursue its efforts to find common funds in fiscal year 1988 or 1989 "to goals. The group said that the Act has ground.

any Nuclear Regulatory a "chilling effect on the willingness and ability of agency members to engage in V. Conclusions ission meeting in accordance

• the interim [Sunshine Act) rule an open and creative discussion of The' Commission has taken into

[published in) the Federal Register on issues." It continued: account information from a number of May 21. 1985." 133 Cong. Rec. H7178 In almost all cases, agency. members quarters, as well as its own experience (Aug. 5. 1987).= As Chairman Philip operating under the Act come to a conclusion in implementing the Sunshine Act. It Sharp of the Subcommittee on Energy about a matter * *

• without the benefit of has considered, among other things, the and Power of the House Committee on anv collective deliberations. (Footnote language of the statute and its legislative Energy and Commerce explained, the omitted.] This is directly :n conflict with the history; the Supreme Court's decision in amendment "simply neutralizes a rule free exchange of views that we believe is necessary to enable an agency member to

• the m case; Recommendation 84-3 of change." The amendment. passed by a the Administrative Conference of the .

fulfill adequately his or her delegated duties, United States; the findings of the voice vote. was not passed by the Senate and to be held accountable for his or her and thus was not enacted into law. actions. American Bar Association; actual The Commission took no fur..::er We are also of the view that the Act is at practice at other federal agencies, action regarding the Sunshine Act after odds with the underlying principles ofmulti- including the DNFSB and OSHRC; and 1985. and the issue was allowed to headed agencies. These agencies were the advice letter from numerous become dormant. While the "interim" created to provide a number of benefits, Commissioners and former including collegial decision making where Commissioners of four other rule of 1985 has remained in effect and the collective thought process of a number of independent reg!,llatory agencies .

the books. at 10 Code of Federal tenured, independent appointees would be Based on all of these, tlie Commission gulations. Part 9. the Commission has better than one. Unfortunately, the Act often believes that while the Sunshine Act's

• ntinued to apply its pre-1985 rules. turns that goal on its head, resulting in greater miscommunication and poorer objectives, which include increasing Accordingly. all discussions of business agency openness and fostering public bv three or more Commissioners have decision making by precluding. as a matter of fact, the members from engaging in understanding of how the multi-member continued to be treated as "meetings." decision making in a collegial way. As a agencies do business, are laudable, it is whether formal or informal, deliberative result. the Act inadvenenth* transforms important to recognize exactly what it or informational. decision-*oriented or multi-headed agencies into.bodies headed by was that Congress legislated. The preliminary, planned or spontaneous. a number of individually acting members. legislative history, es the Supreme Court No non-Sunshine Act discussions of any !Footnote omitted.} explained, shows that Congress kind ha\'e been held. In the meantime, The group identified as one problem carefully weighed the competing some other agencies adopted and the issue confronted by the NRC's 1985 considerations involved: the public's implemented rules that permit informal rulemaking: that "many agencies" right of access to significant discussions that clarif..- issues and avoided the problem of distinguishing information, on the one hand, end the expose nrying ,*iews but do not between "preliminary conversations, agencies' need to be able to function in effecth*ely predetermine official actions, which are outside of the Act, and an efficient and collegial manner on the discussions of the sort that the Court's deliberations, which trigger the Act," by other. Congress struck a balance: it did ITT decision said are a "necessary part a blanket prohibition, as a matter of not legislate openness to the maximum of an agency's work." 466 U.S. at 469- general policy, against any conversation extent possible, nor did it provide

70. See, for example. the Occupational among a quorum of agency members, unfettered disaetion to agencies to offer Safety and Health Review Commission's except in "meetings" under the only as much public access as they (OSHRC) and Defense Nuclear Facility Sunshine Act. While such bright-line might choose. Rather, it crafted a system Safetv Board's (DNFSB) definitions of policies were easy to apply and in which the Sunshine Act would apply "meeting". at 29 CFR 2203.2(d) (50 FR effective, the letter said, they were often only to "meetings," a term carefully over-inclusive, barring discussion of defined to exclude preliminary,

The text of the amendment and the colloquy even the most preliminary views and surrounding it~ adoption by the House of informal, and informational discussions.

Representatives are else, reprinted in full in SECY- often impeding the process of agency and then provided a series of 88-25. ' decision-making. exemptions to permit closure of certain

24940 Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules and Regulations categories of "meetings." Unfortunately, From previous comments, the found, the Americ:m Bar Association in part because of advice from the following are possible questions about Task Force on the Sunshine Act agreed, Justice Department in 1977 that later the 1985 rule, and the Commission's the Council of the Administrative Law proved to be erroneous, the responses to those questions. Section of the American Bar Association Commission's original Sunshine Act 1. What types of discussions does the adopted the Task Force's views, and the regulations did not give due recognition Commission have in mind, and what ABA's full House of Delegates accepted to the balance contemplated by does it seek to accomplish with this the Administrative Law Section*s report Congress. Rather, the regulations rule?* and recommendation.

mistakenly took the approach that every Answer: First and foremost, the 3. Didn't the lTf case involve a trip discussion among three or more Commission would like to be able to get to Europe by less than a quorum of FCC Commissioners, no matter how far together as a body with no fixed agenda members, and couldn't the case be removed from being "discussions that other than to ask such questions as: viewed as relating to those specific effectively predetermine official "How is the Commission functioning as facts?

actions," in the Supreme Court's words, an agency? How has it performed over Answer: The case was resolved on two should be considered a "meeting." 466 the past year? What have been its major separate grounds. Although the U.S. at 471. successes and failures? What do we see Supreme Court did not have to reach the At the time that the Commission coming in the next year? In the next five issue of what constitutes a "meeting" changed its Sunshine Act rules in 1985, years, and ten years? How well are our under the Sunshine Act, it did so, in many of its critics appeared to believe components serving us? Are we getting order (so the ABA report concluded) to that if the rule change were our message to the industry we regulate provide guidance to agencies and the implemented. numerous discussions and to the public? Are we working courts on a difficult aspect of Sunshine currently held in public session would effectively with the Congress?" This Act law. In addressing the ambiguity in stead be held behind closed doors. kind of "big picture" discussion can be the definition of "meeting" and thus the his was a misapprehension. indeed, if invaluable. One of the regrettable effects uncertainty as to the Act's scope, the ere is one point that needs to be of the Sunshine Act, as documented as Supreme Court was acting to resolve a

• long ago as 1984, in Administrative emphasized above any other, it is that problem that had been apparent literally the objecti\*e of the 1985 rule is not that Conference Recommendation 84-3, has from the day of its enactment into law, discussions heretofore held in public been the loss of collective responsibility as President Ford's statement in signing session should become non-Sunshine at the agencies, and the shift of the bill, on September 13, 1976, makes Act discussions: rather, the focus of the authority from Presidentially appointed clear. He wrote:

1985 rule is on the discussions that and accountable agencv members to the agencies' staffs. The Commission 1wholeheartedly support the objective of currently do not take place at all. This government in the sunshine. I am conc.erned.

was also the focus of the American Bar believes that "big picture" discussions however, that in a few instances served a valuable function in pre- unnecessarily ambiguous and perhaps Association and the authors of the 1995 Sunshine Act days at NRG and can do letter to the Administrative Conference. harmful provisions were included in S.S.

so again, helping to assure that the * *

• The ambiguous definition of the The Commission believes that non- Commissioners serve the puhlic with meetinn* covered by this act, the unnecessary Sunshine Act discussions can benefit maximum effectiveness and rigidity of the act's procedures, and the the agency and thereby benefit the accountability. potentially burdensome requirement for the public which the J',;RC serves. This view The Commission believes that some maintenance of transcripts are provisions did not originate with the Commission kinds of general, exploratory which may require modification.

by any means. On the contrary, as discussions can be useful in generating Government in the Sunshine Act-S.5 (P.L.

escribed abo,*e. the starting point of ideas. Such ideas, if developed into 94--t09), Source Book: Legislative History, e Commission's analysis is Congress's Text, and Other Documents (1976), at 832.

more specific proposals, will become ecognition that "'informal background the subject of subsequent "meetings." 4. On the meaning of "meeting" as discussions [that] clarifv issues and The Commission recognizes that it used in the Sunshine Act, aren't the expose varying views' are a necessary would be incumbent on the participants views of Congressional sponsors of the part of an agency's work," and that to in such non-Sunshine Act discussions legislation entitled to consideration?

apply the Act's requirements to them to assure that they remain preliminary Answer: Yes, when they appear in the would, in the words of the Supreme and do not effectively predetermine pre-enactment legislative history. In the Court, "impair normal agency final agency action. The Commission present case, for example, the Supreme operations without achieving significant believes that tht .guidelines proposed by Court cited the remarks of the House public benefit." 466 U.S. 463, 469. the American Bar Association are the sponsor of the Sunshine Act, For convenience, the currently most suitable criteria for assuring Representative Dante Fascell, who effective (but not implemented) 1985 compliance with the Act's requirements. introduced the report of the Conference rule is included in this notice and the Tlie Commission also believes that Committee to the House. He explained Commission is providing 30 days for spontaneous casual discussions of to his colleagues that the conferees had public comment on its stated intent to matters of mutual interest-for example, narrowed.the Senate's definition of implement the 1985 rule. No non- a recent news story relating to nuclear "meeting" in order "to permit casual Sunshine Act discussions will be held regulatio~an be beneficial, helping discussions between agency members during the period for public comment both to ensure that Commissioners are that might invoke the bill's and for a 21-day period following close informed of matters relevant to their requirements" under the Senate's .

of the comment period to allow the duties and tc;> promote sound working approach. 122 Cong. Rec. 28474 (1976),

Commission to consider the public relationships among Commissioners. cited at 466 U.S. 463,470 n.7. Likewise, comments. Absent further action by the 2. Is it really clear that the law Senator Chiles, the Senate sponsor of Commission, non-Sunshine Act permits non-Sunshine Act discussions? the bill, described the definition of discussions may be held commencing Answer: Yes, beyond any reasonable "meeting" in the final bill as a 21 davs after the close of the comment doubt. Congress so provided, a "compromise version." 122 Cong. Rec.

period. .unanimous Supreme Court has so S15043 (Aug. 31, 1976), reprinted in

Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules arid Regulations 24941 Government in the Sunshine Act Source from- Congressional intent and thereby not urging the closing of any meetings Book. In any case, however, once the reaching an "untoward result." Clark- now open?

Supreme Court has declared what the Cowlitz Joint Operating Agencyv. FERC, Answer: The question misses the law requires, federal agencies are bound 798 F.2d 499, 503 n.5 (D.C. Cir. 1984). point of the ABA comment. In the to follow its guidance. 7. Hit is so clear that non-Sunshine context in which the comment appears

5. ls there any basis in the legislative Act discussions are permissible, why in the ABA report, it is clear that the history for the notion that non-Sunshine did the NRC interpret the Act differently ABA was expressing its concern for the Act discussions are not only for so many years? discussions that currently do not permissible, but useful? , Answer: In part, th~ answer lies in the happen at all, either in open or iD closed Answer: Yes. The point was made fact that the Justice Department, in the session, because the Sunshine Act forcefully by Professor Jerre Williams years 1977 to 1981, took an expansive inhibits the initiation of discussions. Its (subsequently a judge on the Fifth view of the definition of "meeting." (See point was similar to that made by Circuit Court of Appeals), presenting the the letter from Assistant Attomey Professor Williams in the hearings on views of the American Bar Association. General Barbara A. Babcock reprinted in the bill in 1975, when he urged that He testified, in Congressional hearings the Interpretive Guide et p. 120.) In agency memben not be deprived of the on the bill: contrast, Berg and Klitzman, the authors opportunity to generate ideas in One of the most critical facets of the of the Interpretive Guide, believed that "brainstorming 1e11ions"-ideas which American Bar Association view has to do Congress had consciously narrowed the may subsequently be the subject of with the definition of "meeting." The ABA definition. (See the Interpretive Guide at "meetings" if they tum out to warrant firmly agrees that policy must not be 6-7.} Because the Justice Department formal consideration. Aa we have ined by informal closed-door caucuses defends Sunshine Act suits in the emphasized above, the Commission is nee of open meetings. On the other courts, its view of the law's not proposing to close any meetings owever. the ABA believes it currently held as OJ>t!n public meetings.

ant that **chance encounters and requirements carried considerable weight. The Supntme Court's decision 10. How does the Commission intend informational or exploratory discussions" by to differentiate between "meetings" and

- agency members should not constitute *in the m case resolved the issue definitively. "non-Sunshine Act discussions'?

meetings unless such discussions are . Answer: The Commission intends to "relatively formal"" and "'predetermine" 8. Didn't the NRC acknowledge in its abide by the guidance provided by the agency action.

• 1977 rulemaking that it was going It should be a matter of concern to all those Court in FCC v. 177' World beyond the law's requirements in the Communications and contained in our interested in good government that agency* interest of the Act's "presumption in members be allowed to engage in informal regulations, in differentiating between work sessions at which they may favor of opening agency business to "meetings" and non-Sunshine Act "brainstorm** and di~cuss various innovative public observation"?_ Why isn't that discussions. Applying this guidance, the proposals without public evaluation or rationale still applicable today? Commission may consider conducting a censorship of their search for new and Answer: There are at least three non-Sunshine Act discussion when the creati\'e solutions in ;.-.. jlortant policy areas. factors today that were not present in discussion will be casual, general, All persons who have engaged in 1977: (l) the Supreme Court's ITT informational, or preliminary, so long as policymaking have participated in such decision, which makes clear that informal sessions. Sometimes outlandish the discussion will not effectively Congress gave the agencies authority to predetermine final agency action.

suggestions are advanced. hopefully bold such discussions because it orous suggestions abound. But out of all Whenever the Commission anticipates ay come a new. creati\*e. important thought they were an important part of that a discussion seems likely to be here is time enough to expose that doing the public's business; (2) the "sufficiently focused on discreet to public scrutiny once it has been Administrative Conference proposals or issues as to cause the adequately evaluated as a viable alternative recommendation stating that the . individual participating members to which ought to be seriously considered. Sunshine Act has had a much more form reasonably firm positions (Emphasis added ] Hearings Before a deleterious effect on the collegial nature regarding matters pending or likely to Subcommittee of the Committee on of agency decision ma.Icing than had arise before the agency," the Government Operations. House of been foreseen; and (3) the American Bar Representatives, 94th Cong .. First Session Commission will treat those discussions Association report stating that Congress as "meetings." See id. at 471.

(Nov. 6 and 12, 1975), at 114-15.

gave the agencies the latitude to hold Further, to ensure thatwe

6. Why is the NRC paying so much non-Sunshine Act discussions in the appropriately implement the Supreme attention to the JTr case and ignoring expectation they would use it, and Court guidance in differentiating

• the Philadelphia Newspapers case suggesting that the use of such between non-Sunshine Act discussions which dealt specifically with NRC? discussions might help alleviate some of and meetings, the Commission will Answer: First of all, the JTr case dealt the problems caused by the Sunshine consider the ABA's remarks on the with the issue of what is a "meeting," Act. Moreover, the Commission has bad aeriou.sness of this task. For instance, whereas Philadelphia Newspapers, Inc. the benefit of its own and other the ABA cautioned that a non-Sunshine

v. NRC, 727 F.2d 1195 (D.C. Cir. 1984). agencies' experience under the Act. It Act discussion "does not pose specific dealt with an unrelated issue: whether should be emphasized that the problems for agency resolution" and a particular "meeting" could be closed Commission, by implementing this rule, agency "members are not deliberating in

• under the Sunshine Act. Secondly, the is not implicitly or explicitly urging that the sense of confronting and weighing m case was decided by the Supreme .the Sunshine Act be altered; rather, it is choices." Report at 9-11.

Court, and as such would be entitled to saying that the Sunshine Act should not Some specific examples of the kinds greater weight than the decision of one be applied even more restrictively than of topics that might be the subject of panel of a Court of Appeals, even if they Congress intended when it enacted the non-Sunshine Act discussions would were on the same issue. Thirdly, the full statute. include generalized "big picture" D.C. Circuit, sitting en bane, has 9. Why does the NRC put such discussions on such matters es the severely criticized the Philadelphia reliance on the A'BA report, when the following: "How well is the agency Newspapers decision for digressing ABA made a point of saying that it was functioning, whet are our successes and

24942 Federal Register/Vol. 64, No. 89/Monday, May 10, 1999/Rules and Regulations failures, what do we see as major List of Sub;ec,. in 10 CFK Part 9 Dated at Rockville, Maryland, this 4th day challenges in the next five and ten ' ' of May, 1999.

years, what is the state of our relations Criminal penalties, Freedom of For the Nuclear Regulatory Commission*.

• with the public, industry, Congress, the information,Privaq*,Reportingand Annette Vietti-Cook, press?'

• recordlceeping requirements, Sunshine Act. Secretary of the Commission.

Preliminary, exploratory discussions (FR Doc. 9~11669 Filed S-7-99; B:45 em) that generate ideas might include, for The May 21, 1985 (SO FR 20863), rule IIUJNO CODE 7II0-01_.

example, "ls there more that we could is currently effective but has never been be doing through the Internet to inform implemented. For the convenience of

• the public and receive public input? the reader, the Commission is How does our use of the Internet republisl;iing the text of that rule. DEPARTMENT OF COMMERCE compare with what other agencies are Buruu of the Cenau1 doing?" Such ideas, if followed up with PART 9-PUBLIC RECORDS specific proposals, would become the 1. The authority citation for part 9 15 CFA Part 30 subject of later "meetings" within the continues to read as follows:

meaning of the Sunshine Act. [Dock9t No. l9041eot9-90fi-01]

Spontaneous. casual discussions of Authority: Sec. 161, 6B Stat. 94B, as RIN OI07-.AA32 matters of mutual interest could include amended (42 U.S.C. 2201); sec. 201, BB Stat.

discussions of a recent news story 1242, as amended (42 U.S.C. 5B41). New C.nadlan Province Import Code Subpart A is also issued 5 U.S.C. ; 31 U.S.C relating to NRC-licensed activities, or a 9701; Pub. L. 9~570. Subpart Bis also for Terrhory of Nunavut Commissioner's insights and personal issued under 5 U.S.C. 552a. Subpart C is also AGENCY: Bureau of the Census, impressions from a visit to a licensed issued under 5 U.S.C. 552b.

facilit\' or other travel. Under this Commerce.

eading. three Commissioners would be 2. In§ 9.101, paragraph (c) is ACTION: Final rule.

ermitted to have a cup of coffee republished for the convenience of the reader as follows:

SUMMARY

The Bureau of the Census is ogether and to talk informally about amending the Foreign Trade Statistics matters that include business-related u.101 Definitions. Regulations (FI'SR), to add a new topics. Under the Commission's pre- * * * *

• Canadian Province/Territory code for 1985 rule. such informal get-togethers (c) Meeting means the deliberations of the Territory of Nunavut. This Canadian were precluded. at least a quorum of Commissioners Territory code is being added to the Briefings in which Commissioners are existing Canadian Province/Territory provided information but do not where such deliberations determine or themselves deliberate on any proposal result in the joint conduct or disposition codes used for reporting Canadian for action could include routine status of official Commission business, that is, Province of Origin information on where discussions are sufficiently Customs Entry Records.

• updates from the staff.

Discussions of business-related focused on discrete proposals or issues EFFECTIVE DATE: The provisions of this matters not linked to any particular as to cause or to be likely to cause the rule are effective April 1, 1999.

proposal for ~ommissio11 action might individual participating members to FOR FURTHER !~FORMATION CONTACT: C.

include an upcoming Congressional form reasonably firm positions Harvey Monk, Jr., Chief, Foreign Trade oversight hearing or a planned all-hands regarding matters pending or likely to Division, Bureau of the Census, Room meeting for emplovees. arise before the agency. Deliberations 2104, Federal Building 3, Washington,

11. Apart from the issue of the required or permitted by§§ 9.105, 9.106, DC 20233-6700, by telephone on (301) definition of "meeting." are there other or 9.108(c), do not constitute 457-2255, by fax on (301) 457-2645, or

• hanges that the interested public "meetings" within this definition. by e-mail at should be aware of? * * * *

• c.h.monk.jr@ccmail.census.gov. For Answer: Yes, one minor procedural 3. In § 9.108, paragraph (c) is information on the specific Customs point. The 1985 rule includes a republished for the convenience of the reporting requirements contact: Dave provision stating that transcripts of reader as follows: I<ahne, U.S. Customs Service, Room closed Commission meetings will be 5.2C, 1300 Pennsylvania Avenue, NW, fSl.108 Certification, tranacrlpta, Washington, DC 20229, by telephone on reviewed for releasability only when recordings *n~ minutes there is a request from a member of the (202) 927-0159 or by fax on (202) 927-public for the transcript. Reviewing * * * *

• 1096.

transcripts for releasability when no one (c) In the case of any meeting closed SUPPLEMENTARY INFORMATION:

is interested in reading them would be pursuant to § 9.104, the Secretary of the a waste of agency resources and thus of Commission, upon the advice of the Background Information the public's money.

• General* Counsel and after consultation On November 29, 1996, the U.S.

. 12. Will the Commission adopt any with the Commission, shall determine Bureau of the Census (Census Bureau),

particular internal procedures for its which, if any, portions of the electronic Department of Commerce, and the U.S.

non-Sunshine Act discussions? recording, transcript or minutes and Customs Service (Customs), Department Answer: For an initial 6-month period which, if any, items of information of the Treasury, announced the of non-Sunshine Act discussions, the withheld pursuant to § 9.105(c) contain implementation of the requirements for Commission will maintain a record of information which should be withheld collecting Canadian Province of Origin the date and subject of, and participants pursuant to§ 9.104, in the event that a information on Customs Entry Records in, an\* scheduled non-Sunshine Act request for the recording, transcript, or in the Federal Register (61 FR 60531).

discu;sions that three or more minutes is received within the period The Supplementary Information Commissioners attend. After the six- during which the recording, transcript, contained in that notice fully recounts month period, the Commission will or minutes must be retained, under the development of the program for revisit the usefulness of the record- paragraph (b) of this section. collecting Canadian Province of Origin keeping practice. * * * *

• information on Customs import

e:r:urzm:rm '.bl 27041 Corrections Federal Register Vol. 64, No. 95 Tuesday, May 18, 1999 This section of the FEDERAL REGISTER paragraph designation "(iii)" should NUCLEAR REGULATORY contains editorial .corrections of previously read "(ii)". COMMISSION published Presidential, Rule, Proposed Rule, [FR Doc. CB-22354 Filed 5-17-99; 8:45 am]

and Notice documents. These corrections are 10 CFR Part 9 BILLING CODE 15~1-D

. prepared by the Office of the Federal Register. Agency prepared corrections are issued as signed documents and appear in RIN 3150-AB94 the appropriate document categories DEPARTMENT OF ENERGY elsewhere in the issue. Government In the Sunshine Act Federal Energy Regulatory Regulations Commission

• Correction CENTRAL INTELLIGENCE AGENCY Notice of As-Built Exhibit A, F, and G and Sollcltlng Comments, Motions to In rule document 99-11669 beginning 32 CFR Part 1903 Intervene, and Protests on page 24936 in the issue of Monday, Security Protective Service May 10, 1999, make the following Correction correction:

Correction In notice document gg....:11765, On page 24936, in the third column, In rule document 98-22354, beginning on page 25316 in the issue of under DATES, in the last line "June 1, beginning on page 44 785 in the issue of

• Tuesday, May 11, 1999, make the 1999" should read "July 1, 1999".

Friday, August 21, 1998, make the following correction:

On page 25316, in the second column, [FR Doc. C9-11669 Filed 5-17-99; 8:45 am) following correction:

in paragraph b. Project No:, "5876-038" BILLING CODE 150~1-0

§ 1903.4 [Corrected) shol!)d read "5867-038".

On page 44786, in the third column, [FR Doc. C9-11765 Filed 5-17-99; 8:45 am]

in § 1903.4(a)(3)(ii), in the fast lin~, the BILLING CODE 15~1-0

, JESSE HELMS NORTH CAROLINA tlnitrd ~tatrs ~rnatr /

WASHINGTON, DC 20510-3301 April 19, 1999 Mr. Dennis K. Rathbun, Director

. Office of Congressional Affairs Nuclear Regulatory Commission

• Washington, DC 20555

Dear Mr. Rathbun:

I have recently received the enclosed letter from Mr.

Michael R. Nelson. Mr. Nelson is concerned with the Nuclear Regulator Commission's plans to seek exemption from the Sunshine Act.

I would greatly appreciate your looking into this situation.

If you have any questions, please contact Mary Elizabeth Strum, a member of my staff. Thank you for your time and assistance.

Kindest regards.

JESSE HELMS:mes 1"'

>< N u

w

I) r::J CQ

~

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C,.J

r TOWN OF CARRBORO NORTH CAROLINA c .~-. ~--.: *.) 1*:

_,,.; i .! ' t,,..

• March 22, 1999 Senator Jesse Helms

, 403 Dirkson Office Building Washington, D.C. 20510

Dear Senator Helms:

It has come to the attention of the Town of Carrboro that the U.S. Nuclear Regulatory Commission (NRC) seeks exemption from the Sunshine Act and proposes to facilitate policy making out of the view of the public to which it is responsible. We believe this proposed policy change is unwise, wish to express our opposition to it, and request your assistance in opposing it. ....

On March l, 1999 the NRC announced that it would propose* a final rule which allows three ciffiveNRC commissioners fo meet in private. Current rules allow no more than two commissioners to meet to discuss business. As justification for the change, the C .....nmission cited a 1984 Supreme Court ruling which opened the way for ttis re-interpretation of the Sunshine Act of 1976. We understand the NRC has directed its General Counsel to prepare the rule to be published in the Federal Register within 30 days.

Notwithstanding assurances by the Conuriission that policy decisions would not be made

• at such closed-door meetings, we believe this rule change would undermine public confidence in the agency at a critical time.

• The importance of this proposed change should not be underestimated. Policy issues now under discussion include such fundamental questions about nuclear energy as decommissioning of nuclear power plants, plutonium fuel reprocessing, nuclear non-proliferation, arid nuclear waste disposal. We also believe that it runs counter to recent administration decisions, which have brought past practices into the light of day.

Our concerns are heightened because Carrboro is lo~ated only some twenty miles from the site of Carolina Power & Light Company's Shearon Harris nuclear plant. CP&L currently has applied to the NRC to expand its high-level nuclear waste storage capacity at the plant. Significant technical and policy questions remain unanswered about the risks, wisdom, and alternatives of this proposal. If granted, more high level waste could be stored at Shearon Harris than at any other plant in the country. *

• 301 WEST MAIN STREET. CARRBORO, NC 27510

• 19191 942-8541

• FAX 19191 968-7737

• TDD 19191 96B-7717 AN EQUAL OPPORTUNITY. EMPLOYER

Page2

.... March 22, 1999

• It is in the interests of the residents of Carrboro and others aroun~ the cou,ntry, that deliberations and decisions be made in the open, in the "sunshine". We do not believe that discussions of nuclear regulatory matters by a majority of the commission should take place in secret. As a legislative body, the Carrboro Board of Aldermen is subject to, and

-willingly agree to, broad open meetings requirements to the long-range benefit of good government. We believe the NRC should be held to a similar standard.

Thank you very much for your attention to this matter. We appreciate any assistance you may be able to give in_maintaining an open deliberation and decision process at the Nuclear Regulatory Commission. We would appreciate hearing of any action oi-developments on this matter. .

Sincerely,

\V\,c\;j Michael R. Nelson Mayor

NATlJlW.

m REsoURCES DEFENSE U>UNciL June 14, 1999 Secretary,_ U.S*. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Attention: Ruleniakings and Adjudications Staff Re: NRC's Proposed Amendment to Its Government in the Sunshine Act Regulations

Dear Sir or Madame:

• Please find :the enclosed comments on behalf of the Natural Resources Defense Council ("NRDC") Inc., concerning t,Jie Nuclear Regulatory Commission's'proposed

. amendment. to its Government in the Sunshine Act. regulations. *1 apologize for*

submitting these comments after the close of the comment period. However, I spoke with a staff person in NRC's Office of General Counsei who stated .that it was NRC's policy to consider all comments to the extent practicable. I trust that you, will ha;ve the opportunity to reviewNRDC's comments given that the comment period closed less than a week ago.

Thank you for your consideration.of these comments. If you have any questions, please feel free to call me:

• Sincerely, .

. David E. Adelman Project.Attorney, Nuclear Program

. JU 22 1999

-'cknowfe,dged by card ONir I ~

12()()NewYorkAve.,N,W. 71 Stevenson Street 6310 San V1cente Boul~d 40 West 20th Street Suite400 Suite 1825 . Su1te250 NewY'ork,NY 10011 Washington, DC'20005 San Francisco, CA 94105 Los Angeles, CA 90048 212 727-2700 202 289-6868

• 415 777-0220 . 323 934-69.Q()* 'Fax212127 1773 Fax 202 289-1060 Fax415 495 5996 I:ax '323 934-1210*

www.nrdc.org 100% Alstronsumer R<<yded

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• NUCLEAR REGULATORY COMMlv . I UJLH,WCINGS &ADJUDICATIONS STA OFFICE OFlltE SECRETARY OF THE COMMISSION Document Statistics

. (p/;tl/qt(

NATURAL m Rf.sOURCES DEFENSE_

U)UNCIL COMMENTS OF THE NUCLEAR REGULATORY COMMISSION'S AMENDMENT TO ITS GOVERNMENT iN THE SUNSHINE ACT REGULATIONS June 14, 1999 On behalf of the Natural Resources Defense Council ("NRDC") Inc., I submit th~

following commen~ on the Nuciear Regulatory Commission's proposed fill:lendment redefining the terin "meeting" for purposes. of the Government in the Sunshine Act, published at 64 Fed. Reg. 2493~.(May 10, 1999).

• • Currently, the Sunshine Act regulations of the N1,1_clear Regulatory Commission .

("NRC':') define "meeting" as "the deliberations of at least a quorµm of Commissioners where such del~berations determine or result in the joint conduct or disposition of official business." 10 C.F.R. § 9.101_. This definiti<;mjs*consistent with the language of the Sunshine Act.. The proposed amendm~nt would, however, substantially qualify this definition to include only meetings "where d_iscussions are sufficiently focused on discrete pr<;>posals or issues*as to cause or to be likely to cause the individual participating members to form r~asonably firm positions regarding matters pending or likely to arise before the agency." Under this definition, other*meetings or "gatherings" would not be subject fo the public notice, attendance, or recording requirements of the Sunshine Act.

NRDC urges the Commission to reconsider the proposed amendment to its Sunshine Act regulations, just as it did when the amendme~t was first considered in May .

1985. The same issues exist today that resulted in the rejectioµ of the_ original amendment: First, the proposed amendment is.inconsistent with the Government ii:i the 1200NewYorkAve.,N.W. 71 Stevenson Street 63 lO San Vicente Boulevard *40 We5t 2Qth Street Sujte400 Suite 1825 Suite250 NewYorKNY 10011 Washington.DC ~0005 San Francisco.CA 94105 Los Angeles, CA 90048 212 727-2700 202 289-6868 415 777-0220 323 934-6900 Fax 212 727-1773 Fax 202 289-1060 Fax 415 495*5996 Fax323 934-1210 www.nrdc.org 100% ~&cycled

Sunshine Act's underlying policy ~f openness. Se~ond; the criteria established by the . .

rule are too vague an¢ undefined fo provide a workable means for Conimissio~ers to

' * *

• I * * * * *

-jJJdge when*a ?1eetirtg" should not be subjecdo the Sunshine Act_'s requirements. Third,

. because the .C~mmission does notplan to ~aJ.(e"records of~eetings itdeteimines are not

. subject to the Sunshine Act, meaningful judicial review of the Cominissiori' s deci~ion to*

• 1:ioid closed meetings will be precluqed.: Fourth, the Commission has *provided no_:

rational for severely ljmiti11g public access to* its. m*eetings .

I. . NRC's Proposed Amendment Violates The Sunshine Act.

The Sunshine Act is predicated* on the principle that "the public .is entitled fo t!?-e .

fi1llest practicable information reg~rding the .decisionmaki~g processes. of the F eder~l

. Government." Section 2. Congress_ intent was tb .increase tl).e public's raith in the

. integrity-ofgov~rnme~t,

• enable the public to better understand the

.decisions. reach~d°by the government,. and better ~cqliaint the public with the. proc~s~ by which i;lgency .

• _decisions are reached.". -Senate Report aCl._ *Congress also s_ought "to ~risui.e that those in

.-_ govern:ment do* not forget that they are ~bov~ all acco'1ntabl~ to the.people of this nation..

PhUadelphiaNewspapers, Inc .. v. Nuclear Reg~latoryCommission,721 F.2d 1195~ 1203

• (D.C. Cir. 1984).

• I * *

• . To this end, the Su~shine Act ~~ts forth comprehensive notice and recording *

• . requirements for agencies to _follow, and limits the bases.upon which meetings may be closed: 5 U.S;C. § 552b(d).

• The definition of "111eetings" that are*subjectto the Sunshine **

. Act is_ therefore defined broadly to pr~vicie the p~blic with the *,*fullest practical" access to goverimient delioerations; ..(;ongrii"ss did ~ot intend that the public have ~ccess only.to

. meetirig at .which agen~y officials actu~ily adopt final decisions, i.e:, "~erely reruns  :*

2

stated for the public afte~ agencyrriembers.have discu~sedtheissue in privat~ and predet~rmined their vie~s/' Senate Report at 18 .. Rather, C.ongress mandated that the*

. "whole_ decisionmaking process~ not merely the .resl,ilts, must be exp~sed to public:

scrutiny.,; Id.*_ Accordingly' the open meeting requirement of the Act inciudes 1'not just the. formal decisionmaking or voting, but. all discussio.n relating _to the .business ofthe agency." House Report at 8.. *

• NRC's proposed definition of "meeting" is antitheticaHo the ietter and intent of -

the. Sunshine_ Act. -Under the proposed amendment, NRC has identified a host of. . _

deliberative meeting;s that will no longer be subject to any of the Sunshine Act's

. requirements;focluding, abriinimum? discussion of pr,oblenis Hkely to face the agency in

_-_. the coming year; discussion of the effoctiveness of~-particular office. ih meeting the s

Commissi01~' needs; and discussio~ of the state of relations between the Commission -*

and its oversight committees, or with other. government agendes. All of these topics_* are

_of critical concern to the public and therefore sho.uld be subject to the Sunshine Act.

' .. NRC.improperly reHes on the Supreine Court's decision'inFCCv.iTT World' Communications, 466 U.S. 463 (1984). The ITT decision involved

. . unique

. circumstances I

that are completely inapplicable to NRC meetings. The Supreme Court held _that FCC

• . members . .

attendiri~ meetings in Eurppe,*with their European an:d Canadian.counterparts;*

• was not authorized .

to take official action for. the FCC, and

. . ruled. further that the meetings.

were not .-'meetings of an agency" subject to th~ Sunshine Act. Meetings,f~gularly conducted by the NRC. do not raise ~y of these issues-,. and ~he ITT holding _therefore ....

_does µot support the NRC' s proposed rule.

3

I ..

• II.*: .. NRC's ProposedAmendment Establishes.An Unworkably Vague Standard.

The proposed amendment .

provides. no . guidance~ other than those specifically .

. listed, as to the types *of me~tings t~at may be excluded from compliance with the*

Su~shine Act.* Because the proposed language is extraordinarily yague;* it can be easily manipulated by the agency to. avoid public discus~ion of all matters that are cdntroversial.

or embarrassing. Fµrlher, ev~n if the agency is acting i~ good. faith, *preliminary

discussions will ~atm;ally and ~apidly lead to formulation ofpositions by C~mmis~ioner~

.. on particular issues of publi<;: import. Indeed, past. Commission meetings demonstrate

. that individual Commissioners can and do adopt Jirm positio'ns during even the earliest .

stages of"background discussions."

This problem was acknowiedged in 1985 by.CommissionerAsseltine, who

. commented that predicting whether a particular proceeding will not be subject to the Sunshine Act "will r~quire nothing short of divination." .50 Fe.d Reg. 20892.

• The American Bar AssociationTaskforce also recognized the problem:

[T]he status* of "preliminary" or "exploratory discussions of a problem within an agency; s authority to address is the hardest" ca~e, for even if one accepts a particular verbal formulation, .such as that set*out in the .

Interpretive Guide, the difficulties of application are intimidating, *Yet inasmu~h as whether a particular discussion is exploratory or decision-oriented depends on the totatfactual context, it is likely to be more : .

difficult to,resolve a hypothetical situation than.a real' one. In other words

. one may*say ofa meeting, as Justice Stewart said of obscenity, "I know it.

when I see it." *

• Reco~endations and Report to the House.of Delegates, at 16-17, AB.A Taskforce on Governmentin the Surtshirie. Accordingly, the.ilotion*tl~1;1.t Commissioners will be capable of re~ogni_zing the precise point af which Commissioners are st~ing to formulate firm positions on fill issue; and will immediately halt gatherings at that point, strains 4

credulity. The proposed rule will inexorably-lead to prec{seiy_the tyre of closed-door decisionmaking that Congress sought to prevent through passage of the Sunshine Act.

III. NRC's-Proposed Amendment Precludes.Meaningful Judicial Revi~w .

. NRC will not maintain rec*ords of clos~d, no~-Sunshine Act meeti~gs. Instead; it has* only committed to maintaining the most general information oh closed meetings; and .

. then only for the first six months following implementation of the rule. The absence of .

details about such gatheri11gs denies the public any means* by which it could challenge the

• • -NRC' s co*nvening of a "gathering" to discuss a particular issue. Further-, without notice.it

• _is unlikely that a reporter 01; a*memb~rofthe public wHl learn ofthe_gathering; And without a record,ofthe gathering, court review ofNRC's complifil1:Ce with the Sunshine

• Act wiil be seriously compromised.

The ABA Taskforce al~o* appreciated this problem and recommended -that procedural safeguards be required for meetings .that are not coveted by the new definition of meeting proposed in the amendment. .The ABA Taskforce was particularly concerned

• about (.I) *briefings of agency m*embers by staff or outsiders; (2) general discussions of ..

subjects rele~~t to. the Commission's responsibilities but that do. not present specific

• problems for agency resolution; and (3) exploratory discussions. For such gatherings, the

.ABA Taskforce recommended that minutes or recordings of such meetings be maintained*

-: by the Com.mission to assure that public or°compliance with the Sunsh_ine Act. In faili1;1g to meet even these minimal requirements, the* NRC's proposed ~le clearl:y violates the

• basic elements of the Government in the.Sunshine.Act ~d circumvents meaningful .

judicial review. lf NRC chooses to finalize this ruie, it will be essential that it maintain

• . proper records .of these gatherings.

5

1*.

• IV. Public Policy ~avors TheExisti~gDefinition of Meeting.

The Commission's arguments for limiting the public's.access to its meetings:are.

without inerit. While. tlw:Co~issioti claims that the rule will proniote "collegiality" in

.the agency, it conspicuously fails to po.int to any lack of collegiality or, more importantly,

.*

• t * * * . '

• t~ any. advers~ effects on igency decisiolllTI~ldrig caused by ha~ing operi ni~etings,: .

Indeed; iti~ impossible to imagine howgeneraLbackground biiefings _:a central focus of the proposed amendmertt...:. could be hindered if open to the publk. This *suggests.that ..

either there is ho policy supporting the rule or.that it is .intended to apply ~o far more

• . controversial subjects than the Commission has .acknowledged. In either case, the. ruie

. should be abandoned ..

Wliil~ th~ Commission has failed to.. ideptify

~ *. any sound bases for adopting..the proposeiaillendment, there are many compelling reasons to retain the current definition

• of meeting under the Act.. As the regulator ofthe.nude~ industry, NRC oversees.*.

• perhaps the most technically complex industrial sector. in the United States, ~d one that

. continues to receive close public attention .. Because ofthe unique risks assodated with

• nuclear power . and .

the degree .ofpublic concern~ NRC' .

s d~cisionrilaking process should

. *. remain op~n to the public. t~ the maximum extent feasible. The proposed rule. represents

• a:significantstep awayfrnm this prirn::iple and fromthe mandate ofthe ..Silllshine Act, which is further heightened by the long-standing p~bli;; ~oncem abo~tNRC.'s dpenness.

• to public scrutiny: NRG sh~uld therefore retai!l the exi~ting definition: of "meeting" rindedhe Sunshi~e Act. ** ..

Shoulci*NRC decide to implementthe.proposedamendme~t,.ifrmist, .at the Very ..

least; adopt procedural.

measm-es to

• ensure that the

~ ' -.

public can monitor

. . how the 6

• Cominissiori is apply1ng the ne:w rule. As stated above, .it is essential that proper recorqs are made of all non-Sun.shine Act gatherings.. In addition, NRC should provide advance

• notice in the Federal Register of all such gatherings. The notice*should include*a descriptfon of the matte;s to be discussec;l 'ahd a detailed explanation for the Comniission'sfinding that the meeting is not subject to the Sunshine Act Such.a

• procedure is anaiogot1s to that employed wheri the government is s~eking exemption from.

the requirements of the Freedonfoflrifonnation Act This advance riotic~ will ensure that

• the public .is informed of the Commission's activities arid how it is applyii:ig its ~ew .

definition of meeting, but will involve.only a nominalcost tothe Commission ..

David E. Adelman .

.*_ Project Attorney, Nuclear Program. *.

,"1 .... .... - - - .:

.--..,-..,--1-------=--===-.~ DOC ETFO c:

IL

• 99 J It' 15 P2 :57 01 I I,

AD 1 rowN OF CARRBORO NORTH CAROL.INA g9 HflR 2S AM 9: 28 DOCKET NUMBER p q PROPOSED RULE,;;....;;..;;..---

'4 '/ FR.:lt/ '13f.)

March 22, 1999 Senator John Edwards Hart Senate Building Washington, D.C. 20510

Dear Senator Edwards:

It has come to the attention of the Town of Carrboro that the U.S. Nuclear Regulatory Commission (NRC) seeks exemption from the Sunshine Act and proposes to facilitate policy making out of the view of the public to which it is responsible. We believe this proposed policy change is unwise, wish to express our opposition to it, and request your assistaru:e in opposing it. - ,

On March 1, 1999 the NRC announced. that it would propose a final rule which allows three of five NRC commissioners to meet in private,. Current rules allow no more.than

• two commissioners to meet to discu11s business. As justifi~tion for tfie change, the Commission cited a 1984 Supreme Court ruling which opened the way for this re-interpretation of the Sunshine Act of 1976. We understand the NRC has directed its General Counsel to prepare the rule to be published in the Federal Register within 30 days.

Notwithstanding assurances by the Commission that policy decisions would not be made at such closed-door meetings, we believe this rule change would undermine public confidence in the agency at a critical time.

The importance of this proposed change should not be underestimated. Policy issues now under disalssion include such fundamental questions about nuclear energy as decommissioning of nuclear power plants, plutonium fuel reprocessing, nuclear non-proliferation, and nuclear waste disposal. We also believe that it runs counter to recent administration decisions, which have brought p8$t practices into the light of day.

Our coru:cms are heightened because Carrboro is located only some twenty miles from the site of Carolina Power & Light Company's Shearon Harris nuclear plant. CP&L currently has applied to the NRC to expand its high-level nuclear waste storage capacity at the pl~t. Significant technical and policy questions remain unanswered about the risks, wisdom, and alternatives of this proposal. If granted, more high level waste could be stored at Shearon Harris than at any other plant in the country.

301 w~aT MA I N ~TREE;'T', cA,Ol&ORO, NC .27~10

• IQ10 l , .. 2 , ee,4 1 * ,,AX 10 , 01 aee -7737

• TOO ,a,a1 068 -77 17 A N EOUAC OPPOR T UNI TY l!MPLOYl!R

U.S. NUCLEAR REGULATOh ~ VVIVII RUlEMAKINGS &ADJUDICATIONS S OFFICEOFTHESECRETAAY OF THE COMMISSION

Pagel March 22, 1999 It i, in the interests oftbe residents of Carrboro and others around the count!)', that deliberations and decisions be made in the open, in the ":nmshinc", We do not believe that discussions of nuclear rcgulatory matters by a majority of the commission should take place in secret. As a legislative body, the Carrboro Bo'll'd of Aldennen is subject to, and willingly agree to, broad open meetings requirements to the long-range benefit of good government We believe the NRC should be held to a similar standard.

Thank you very much for your attention to this matter. We appreciate any usi.$tance you may be able to give in maintaining an open deliberation and decision process at the Nuclear Regulatocy Commission. We would appreciate hearing of any action or developments on this matter.

Sincerely,

\v\,vW Michael R, Nelson M.ayor

(j)

Qublt~ DOCKETED

[ r r t, Qt1zeti *99 Buyers Up

• Congress Watch

• Critical Mass

• Global Trade Watch

• Health Research Group

• Litigation Group JUN 14 P3 :14 Joan Claybrook, President QI-

[i '

ADJl June 8, 1999

• DOCKET NUMBER Secretary, PROPOSED RULE PR 9 bl/ FR:l t/ f.f 3t, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 Attn: Rulemakings and Adjudications Staff

• COMMENTS OF PUBLIC CITIZEN'S CRITICAL MASS ENERGY PROJECT ON THE NUCLEAR REGULATORY COMMISSION'S IMPLEMENTATION OF 10 CFR PART 9: GOVERNMENT IN THE SUNSHINE ACT REGULATIONS The Nuclear Regulatory Commission has announced its intent to implement a final rule, published aI1d made effective inl 985, that amended its regulations applying the Government in the Sunshine Act. Essentially, the NRC will obviate the requirements of the Sunshine Act and allow a quorum of the NRC Commissioners to exclude the public from merely viewing their meetings. The Commission claims that it 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. However, the NRC's decision to implement the rule on June 1, prior to the closure of the comment period on June 9,

• betrays the Commission's bias.

Public Citizen vigorously opposes the NRC's wrong-minded attempts to close meetings to public scrutiny. The NRC's attempts to close certain meetings between three or more NRC Commissioners is based upon a selective interpretation of a fifteen year old court case. Given that it has taken the NRC fifteen years to get around to implementing its misinterpretation of the Sunshine Act, waiting until the end of the comment period would have at least provided the public with the illusion that our comments would be taken into consideration.

While the NRC acknowledges that FCC v. ITT World Communications, 466 U.S.

463 (1984) is not directly on point, the Commission is none-the-less willing to circumscribe the public's ability to merely view Commission deliberations based upon an overly broad interpretation of a fifteen year old court case. The decision in FCC v. ITT World Communications, states that a quorum of the FCC is an agency is subject to the Sunshine Act but only in regard to "matters that are within that subdivision's formally delegated authority to take official action for the agency."(FCC v. ITT World Communications, 466 U.S. 463, 465-466 (1984). The court also found that deliberations Ralph Nader, Founder

~cknowledged by card ....~~, 1.L1~9 t wout 215 Pennsylvania Ave SE

• Washington, DC 20003 * (202) 546-4996

• www.citizen.org * ~ 11 @ Printed on Recycled Paper

U.S. UCLEAR REGULATORY CO 10 RUILEMAKIN!GS & ADJUDICATKJG STAFF OFRCE OF THE SECRETARY Of THE CONIMl9SION

of a quorum of an agency subdivision upon matters outside that subdivision's formally delegated authority are not "meetings" subject to the Sunshine Act. (FCC v. ITT World Communications, 466 U.S. at 473.

The NRC does not claim that these "non-sunshine act meetings" are concerning issues outside of the Commissioners formally delegated authority to take official action for the agency. Nor do I believe that they could sustain such an argument. Furthermore, the premise that the Nuclear Regulatory Commission can best serve the public by excluding them from viewing the Commissioners deliberations is absurd!

Rather than relying upon its overly broad interpretation of FCC v. ITT World Communications, NRC' s Office of General Counsel should have reviewed and relied upon the legislative history of the Sunshine act. The Senate Report explains that:

The definition of meetings includes the conduct, as well as the disposition, of official agency matters. It is not sufficient for the purposes of open government to merely have the public witness final agency votes. The meetings opened by Section 201(a) are not intended to be merely reruns staged for the public after agency members have discussed the issue in private and predetermined their views. The whole decision making process, not merely its results, must be exposed to public scrutiny.

(Government-in-the-Sunshine Source Book: Legislative Hist01y, Texts, and other Documents, Committees on Government Operations, U.S. Senate and House of Representatives, 94th Cong., 2d Sess. (1976) S. Rep. No. 354 at p. 18, Reprinted in Sunshine Source Book at 214. Emphasis Added.)

Similarly the House report states that meetings "include not only sessions at which formal activn is taken, but also those at which a quorum of members deliberates regarding the conduct or disposition of agency business." (H.R. Rep. 880 (part 1) at p. 3 .,

reprinted in 1976 U.S. Code Cong. & Admin. News at p. 2185.)

The Commission claims that "The Act' s procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit." (64 Fed. Reg. 24937.) However, the Commission has failed to identify a single instance where its previous interpretation of the Sunshine Act "impaired normal agency operations." Furthermore, the NRC claims that it "could have continued to use the language of its existing regulations, and reinterpreted them in 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 light of the Court's ruling." (Id. at p. 24937.)

I hope the absurdity of the previous statement is not lost on the Commission. The NRC, in the interest of openness, is going to explicitly declare its intent to close

certain meetings to the public. Is it any wonder that this agency and the industry it purports to regulate have forever lost the trust of the American public? Are the Commissioners so afraid that the public will find fault with their deliberations that they must hide behind closed doors?

If the NRC Commissioners can not stand in the sunshine and conduct their deliberations openly, they should make no pretense about seeking public participation or bemoaning the fact that they and the nuclear industry have lost the public's confidence.

If this interpretation of the Sunshine Act is implemented, meetings that the NRC Commissioners deign to open to the public will be little more than a charade where the Commissioners merely rerun decisions made behind closed doors. As Abraham Lincoln once wrote, "When it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty - to Russia, for instance where despotism can be taken pure and with out the base alloy of hypocrisy." (Abraham Lincoln, Letter to Joshua F.

Speed, August 24, 1855)

• Respectfully Submitted,

~-~

es P. Riccio Staff Attorney Public Citizen's Critical Mass Energy Project

DOC ET NUMBER PROPOSED RULE PR q t,'I FR a41~31,) oocKr: TED pc I C From: BREDL <BREDL@skybest.com> ~ J' I To: TWFN_DO.twf4_po(CAG)

Date: Thu, Jun 10, 1999 12:04 AM

Subject:

comments 10CFRpart9 *99 JUN 11 P4 :50 BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE PO Box 88 - Glendale Springs, North Carolina 28629

<www.bredl.org> Phone 336-982-2691 - Fax 336-982-2954 - Email bredl@skybest.com June 9, 1999 Secretary US Nuclear Regulatory Commission Washington, DC 20555-0001 Re: Government in the Sunshine Act Regulations 10 CFR Part 9

Dear Mr. Secretary:

I write in opposition to the notice of intent to implement a final rule that amends the Government in the Sunshine Act with regard to the Nuclear Regulatory Commission. I have reviewed documents provided by the NRC Office of Public Affairs and the Federal Register pertaining to this matter.

The proposed action would change the way meetings are conducted within the NRC. Meetings could be held which would not be open to the public, and without effective public oversight. The 1985 rule contains a provision which states that transcripts of closed Commission meetings will be released only when there is a request from a member of the public. This is not a minor point. This provision creates a Catch 22 situation in which a member of the public would have to have reason to request a transcript about which he or she has little or no knowledge .

• The citation by the NRC of the 1984 Supreme Court decision (FCC v. ITT World Communications, 466 US 463), the American Bar Association report, and the Administrative Conference of the United States Recommendation does not alter the fact that there is no consensus on this matter and that the Administrative Conference left the question open in 1995.

The NRC fails to identify solid evidence to back its assertion that meetings which are not held impair the collegial process. Furthermore, by providing examples of what might be considered non-Sunshine Act discussions, e.g. how is the Commission functioning as an agency? or, are we working effectively with Congress?, the NRC trivializes the nature of an amendment to a rule which has served the agency for over two decades. Examples of non-Sunshine discussions in the 4 May 1999 Q&A, Annette Vietti-Cook states,

• Spontaneous, casual discussions of matters of mutual interest could include discussions of a recent news story relating to NRG-licensed activities, or a Commissioners insights and personal impressions from a visit to a facility or other travel."' (emphasis added) A *bright line* definition of what constitutes a meeting, i.e. a quorum of commissioners, is precisely the public deserves and is what the Commission ought to adhere to.

JU 1S1999

-'cknowledged bycalU ltt - I etUttUtfU - ~

U.S. NUCLEAR REGULATORY COMMISSION RULEMAKINGS &ADJUDICATIONS STAFF FFICE OFTffE SECRETARY Of THE COMMISSION

Finally, with regard to international projects and the free flow of information, the amendment may prevent the public from obtaining important information about companies based outside the United States. For example, the British firm BNFL is shielded by the Official Secrets Act in that country. Likewise, the French concern COGEMA is immune from our Freedom of Information Government in the Sunshine Act Regulations 10 CFR Part 9 Act. By closing meetings which are for *presentation or exchange of information,* public access to information about these companies will be denied. Important national policy decisions will suffer as a result of the information blackout on foreign industries which will construct facilities and provide fuel to supply plutonium-fueled light water reactors to utilities in North Carolina, South Carolina, and Virginia.

Respectfully submitted, Louis A. Zeller Blue Ridge Environmental Defense League P.O. Box 88 Glendale Springs, NC 28629

June 10, 1999 NOTE TO: Emile Julian Chief, Docketing and Services Branch FROM: Carol Gallagher /1 .J / A . () fJ ~A ADM, DAS GtH°'"" ~ - -

SUBJECT:

DOCKETING OF COMMENT ON FINAL - GOVERNMENT IN THE SUNSHINE ACT REGULA TIO NS Attached for docketing is a comment letter related to the subject final rule. This comment

• was received via e-mail on June 10, 1999. The subrnitter's name is Louis A. Zeller, Blue Ridge Environmental Defense League, P.O. Box 88, Glendale Springs, NC 28629. Please send a copy of the docketed comment to Trip Rothschild (mail stop 015-B-18) for his records.

Attachment:

As stated cc w/o attachment:

T. Rothschild

(})

NEI DO CK r._ 1:_o IC,' tr; ,

NUCLEAR ENERGY INSTI TU E .,. ,

• 99 JUN -9 P3 :48 Robert Willis Bishop VICE PRESIDFNT &

CENERAl Cflll/...JSEL June 9, 1999 BY COURIER Ms. Annette L. Vietti-Cook DOCKET NUMBER PR Secretary PROPOSED RULE ;,:_; * ==---' -- -

U.S. Nuclear Regulatory Commission ( &t/~R ;;"931,)

Mail Stop 0-16 G15 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 ATTN: Rulemakings and Adjudications Staff

SUBJECT:

Government in the Sunshine Act Regulations (64 Fed. Reg. 24936 - May 10, 1999)

Dear Secretary Vietti-Cook:

The nuclear energy industry long has encouraged the Commission to revise its practices for conducting meetings in accordance with the Government in the

• Sunshine Act (Public Law No.94-409). The Nuclear Energy Institute (NEI), 1 on behalf of the nuclear energy industry, supports the Commission's action to adopt a more reasoned, rather than an unduly restrictive, interpretation of the Sunshine Act.

The May 10, 1999, Federal Register notice provides a thorough exposition of the underlying statutory requirements, its purpose and its limits, and provides a solid legal basis for the proposed agency action. As a result, there is no reason to separately examine the governing statutory and judicial foundation for the Commission's actions in these comments. Because of the extensive coverage in the Federal Register notice of the many policy considerations that led to the 1 NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEl's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, nuclear materials licensees, and other organizations and individuals involved in the nuclear energy industry.

JUN 15 1999

-'cknowledged byCMJ - - - - -

1/76 I

• 1 PEET N\'\' ':,i_lTE 4(_,i, \\'ASHl"-J1,T,-1N [)r_-~ )1l(;(,Q-J7()h PHC,~JF ') ;2 7Jt) RI 19 FAX L02 785 4<;19 www ne 1 org

U.S. NUCLEAR REGULATORY COMMIS 1 .~

FIULEMAKINGS&ADJUOICATIONS STAFF OFFICE OF"fffE SECRETARY Of THE COMMISSION

Secretary Vietti-Cook June 9, 1999 Page 2 Commission's decision to modify its practices, we have not provided detailed comments on those matters either. However, if the Commission is interested in the industry's views on any of those issues, we would be pleased to provide our perspective.

We believe that implementation of the Commission's new initiative is a clearly justified step to improve the administration of the Commission's responsibilities in a manner consistent with the practices of other federal agencies. The deliberative process that the Commission has outlined will allow productive discussion between Commissioners on issues of importance to the agency. It will also foster the development of a productive collegial relationship among the Commissioners. It will not, however, jeopardize the Commission's responsibilities under the Sunshine Act.

The Commission should be commended for taking yet one more initiative to reform its administrative processes to enable it to be a more efficient and effective regulator. These actions will benefit all who are affected by the Commission's actions, whether NRC licensees, members of the general public, or others.

oor,K~ ED DOCKET N US C PROPOSED

.:/'1'131,) *99 JU -8 A8 :08 OF-I 1 ,

ADJU

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........... PA 111136- 101 o~

l'

.... n,, ,11:<:aULATORY CO 10 MAKINGS &ADJUDICAllONS STAFF OFFICE OF THE 8ECRETMY OF THE CONIMBION DoalnerCmallallta Postmark D te .-~t.,J),_q__q_____

Copies Rea:lWBd I Add'I Spe . I 91Jbibul~ _,a~~~~~

DOCKET NUMBER PROPOSED RULE PR 9 oocrETCD

( ({)I./ Ff<. ~4C/ 3/o) US f*C Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 *99 JUN -3 P2 :20 ATTN: Rulemakings and Adjudications Staff.

OH Re: Sunshine Act Regulations Rv- 1 FF AOJU:J ,

26 May, 1999

Dear Sirs,

I would like to comment on the subject of the Government in the Sunshine Act Regulations, recently published in the Federal Registry.

I am outraged that you would be so deceitful as to bar the public from your meetings.

Redefining the word meeting isn't much of a cover for what you are planning to do. It is understandable that you would want privacy for meetings of three or under, but when more meet it should and must be open to the public. The public should be able to attend all meetings, (I am using the Webster's definition not the court's definition), and be able to witness all events taking place without restrictions. The public should also be able to make comment during all meetings.

It is imperative to a free and democratic society that the truth be known without restriction. Members should be accountable for all actions and words.

By limiting public access the NRC is showing the public that it has something to hide, something that would be good for the few and not the many. Like little boys that want to do something dirty the NRC would conceal i~s true self.

Remember one key issue. Without the public" the NRC ' is nothing.

Paul Goettlich P.O.Box 6854 South Bend IN 46660 JU

• 1999

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lJ.S. NUCLEAR REGUI.ATO RULEMAKINGS&

OFFICEOF OF THE COMIWSSI

"9<) MAY 20 P3 :45 Nuclear Information and Resource service 1424 16th St. NW, Suite 404, Washington, DC 20036; 202-328-0002; fax:202- 462- 2183; e-miil!Oisnet@igc.apc.orgweb:www.nirs.org AUJ ~

ET UM May 18, 1999 PRO OSED q

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Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Rulemakings and Adjudications Staff Regarding Government in the Sunshine Act Regulations Final Rule:

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

Federal Register: May 10, 1999 (Volume 64, Number 89) Page 24936-24942

Dear Ms. Vietti-Cook:

On behalf of Nuclear Information and Resource Service (NIRS), I am offering the following comments on the Commission's final rule to implement non-Sunshine Act meetings.

NIRS opposes the implementation of this rule at this time.

• As a publi9 interest stakeholder in the nuclear power issue, NIRS would hopefully interpret the Commission's intent of the rule to take the deliberative process out of a "fishbowl" to allow for a more creative process to not only include our constituency but the regulated licensees as well.

However, given the history of the agency to date, NIRS must take a more cynical view.

It is our observation that NRC already and increasingly allows the industry a favored position to view and participate in the agency's deli~erative and decision-making process.

Placing the Commission's decision-making process further behind the veil from public scrutiny is not a productive direction for the agency to be headed in establishing a more level playing field for all stakeholders. It is our current concern that the agency is already heavily biased in favor of economically shielding the industry from the consequences of the regulatory process. Public confidence is at an all time low with the agency's demonstrated inability to effectively regulate the industry at arm's length, to hold industry to commitments to maintain reactors within their*design bases, to resolve numerous safety issues within a timely fashion, to protect the anonymity of the safety-MAY 25 1999

~cknowledged by card 0110 I ,,, _ _,

@ printed on recycled paper dedicated to a sound non-nuclear energy policy.

I- -

conscious workplace, to allocate agency resources to provide the public with reasonable precautionary and protective action against accidental radioactive releases and to take effective enforcement action against repeated licensees safety violations.

Allowing the Commissioners to meet in a non-Sunshine Act fonnat opens the proverbial barn door of opportunity for additional abuse without checks and balances.

NIRS is particularly concerned with potential Commission abuse through closed-door meetings with licensees and consultants or agents of licensees. The current rule makes no provisions for preventing such abuse to occur.

Another specific concern involves opening the process to abuse by a majority of the commission meeting to the exclusion of the minmity. The cu.ITent rule makes no provision for preventing the development of majority-rule fiefdoms in the guise of discussion groups within the Commission.

The reason the Sunshine Act was originally implemented was because commissioners would meet 2-3 at a time, in door-to-door discussions about issues, and make their decisions. They would then "meet" fonnally and pretend to talk about the issues and vote on the basis of discussions not fully within the range of public access and understanding.

NIRS regrets that our objection to non-Sunshine Act meetings would preclude the commissioners from meeting "collegially," but the level of distrust is already so high that anything they can't say to each other in a publicly transc1ibed meeting probably shouldn't be said anyway. The Commission has on numerous occasions espoused its intent to make its process "more transparent" in order to regain public trust. The move to non-Sunshine Act meetings contradicts the Commission's stated intent. Until such time that the public is willing and able to trust the Commission's deliberative process, the Cmmnission must conduct its process in the light of day to the degree currently provided by the Sunshine Act.

Paul Gunter, Director Reactor Watchdog Project

UNION OF CONCERNED SCIENTISTS May 12, 1999 Secretary United States Nuclear Regulatory Commission Washington, DC 20555-0001

SUBJECT:

COMMENTS ON NON-SUNSIDNE ACT DISCUSSIONS

Dear Ms. Vietti-Cook:

• The following comments are submitted in response to the May 10, 1999, Federal Register notice (Vol.

64, No. 89) regarding the Nuclear Regulatory Commission's intent to implement a rule enacted in 1985 allowing three or more Commissioners to hold private discussions.

The Commission should not conduct non-Sunshine Act discussions. If the Commission persists in meeting privately, the agency must stop proclaiming that "public confidence" is one of its key considerations. The two actions are contradictory. The Commission must decide whether it will sacrifice public confidence in order to gain some purported convenience.

The Federal Register notice stated that by now implementing a 14-year old rule, "The Commission believes that non-Sunshine Act discussions can benefit the agency and thereby benefit the public which the NRC serves." The Commission is clearly entitled to the beliefs of its choice, as are we. We believe that the public would be better served if the agency were to now enforce a 19-year old rule - namely, the fire protection regulations of Appendix R to 10 CFR Part 50. Continuing to virtually scoff at those public safety regulations while implementing this rule allowing private meetings will do very little to boost public confidence. More importantly, it does nothing to protect public health and safety.

The Federal Register notice stated that At the time that the Commission changed its Sunshine Act rule in 1985, many of its critics appeared to believe 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, ifthere is one point that needs to be emphasized above any other, it 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.

Our concern, which the staff cavalierly dismissed as a 'misapprehension,' is that the bulk of the discussion on selected agency matters will be conducted by the Commissioners in private sessions, thereby turning public meetings into mere theatrics, which by their very nature tend to erode public confidence.

Washington Office: 1616 P Street NW Suite 310

• Washington DC 20036-1495

• 202-332-0900

• FAX: 202-332-0905 Cambridge Headquarters: Two Brattle Square

• Cambridge MA 02238-9105

• 617-547-5552

• FAX: 617-864-9405 California Office: 2397 Shattuck Avenue Suite 203

• Berkeley CA 94704-1567

• 510-843-1872

• FAX: 510-843-3785

May 12, 1999 Page 2 of2 The agency's evaluation, as presented in the Federal Register notice, failed to justify why non-Sunshine Act meetings were important. In numerous other forums, such as in testimony before the United States Senate and in the document (SECY-99-007 A) supporting its new oversight program, the agency contends that the nuclear industry's overall safety performance has improved significantly over the past decade and suggests that its regulatory effectiveness is partially responsible for this improvement. If this contention is correct, the agency seemingly wants us to believe that this alleged regulatory effectiveness and safety improvement was obtained in spite of the Commission' s inability to conduct non-Sunshine Act discussions.

Setting aside beliefs, the truth is that the agency's existing "Noah' s Ark" policy allows Commissioners to privately gather as often as desired "two by two." Technically, this policy enables the Commission to reach consensus on an issue before discussing it in a public meeting and to examine "big picture" issues.

This existing policy therefore prevents neither the predeterminations that we fear or the collegial raps that the Commissioners desire - it merely complicates and inconveniences the process.

Returning to beliefs, UCS believes that implementing this 1985 rule at this time will gain the Commission some convenience at the sake of eroded public confidence. During my tenure at UCS, I 1

have only sought, and was granted, one private meeting with a member of the Commission. Such private meetings would not be improper and would enhance the dialogue between UCS and the Commission on safety issues, but I have resisted them. Instead, I engage the Commission on safety issues via the very public forums of public meetings and publicly available correspondence. It is more inconvenient and perhaps less effective, but it is necessary to avoid even the perception ofbehind-the-scenes dealings.

The Commission has a choice - convenience or confidence. It may be very tempting to choose convenience. But, a simplified process which lacks public confidence is not really an attractive option.

UCS urges the Commission not to implement this 1985 rule and not to hold non-Sunshine Act discussions involving three or more Commissioners.

Sincerely, David A. Lochbaum Nuclear Safety Engineer 1

The one exception involved a whistle-blower who was receiving death threats at the job site, but very little attention or interest from the NRC staff.

DOCKET NUMBER PROPOSED RULE.PR Cf DOCKETED

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• 99 MAY -6 P2 :25 RI N 3150-AB94 ,

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GOVERNMENT IN THE SUNSHINE ACT REGULATION . *,

/- _

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 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

~~ ~1999 (30 doye efter u,e aate ef ~ulalisaUeR). Unless the Commission takes further action, non-

~ 11 l'f99 Sunshine Act discussions may be held beginning ~21 ele~e eifter t!cle oloee of the eefflffiGAt

,r,e,iod).

ADDRESSES: Submit written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.

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

SUPPLEMENTARY INFORMATION:

The Commission, through this notice of the Cc-mmission'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 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 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 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 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.

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

4 S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act (1978), at 3. The 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" 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." Id. at 471, n.7.

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 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 ITT decision, 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.

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 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 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 Government 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 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 light of the Court's ruling.

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 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§§ 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 addressed), with an opportunity for public comment, briefings 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 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 defer actual implementation and use of the 1985 rule pending receipt of the ABA's views .

7 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 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 ASA 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 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

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

1 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.

9 The ABA report's conclusion was a measured endorsement of the value of non-Sunshine 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 never initiated in the first place. It said:

But the fact is that the Sunshine Act ha:; 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 ITT case 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.

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 "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

discussions, and that non-Sunshine Act discussions (other than "spontaneous casual discussions of a subject of common interest") be monitored, either by the General Counsel or other agency representatives, and memorialized through notes, minutes, or recordings.

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 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 furth'er 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. at 469-70. See, 2

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.

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

In February 1995, Commissioner Steven M. H. Wallman 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), 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 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,

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 ITT 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-

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 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 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 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 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 Ajministrative Conference.

14 The Commission believes that non-Sunshine Act discussions can benefit the agency and 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 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 apply the Act's requirements to them would, in the words of the Supreme Court, "impair 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 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 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 message to the industry we regulate and to the public? Are we working 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 Presidentially appointed and accountable agency members to the agencies' staffs. The Commission believes that "big picture" discussions served a valuable function in pre-Sunshine 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 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 compliance 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 .

16

3. Didn't the ITT case 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 ASA 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 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 rigidity 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 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,

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 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 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 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 ITT case and ignoring the Philadelphia Newspapers case which dealt specifically with NRC?

j

18 Answer: First of all, the ITT case dealt with the issue of what is a "meeting," whereas Philadelphia Newspapers, Inc. v. NRG, 727 F.2d 1195 (D.C. Cir. 1984). dealt with an unrelated issue: whether a particular "meeting" could be closed undP-r 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.

Thirdly, the full D.C. Circuit, sitting en bane, has severely criticized the Philadelphia Newspapers decision for digressing from Congressional intent and thereby reaching an "untoward result."

Clark-Cowlitz Joint Operating Agency v. FERG, 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 lnter.pretive 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 isl'l't that rationale still applicable today?

19 Answer: There are at least three factors today that were not present in 1977: (1) the Supreme Court's ITT 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 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 NRG 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 context 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 bill in 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 . As

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

10. How does the Commission intend to differentiate between "meetings" and "non-Sunshine Act discussions"?

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 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 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 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 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 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 Act discussions would include generalized "big picture" discussions on such matters as the 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 Internet 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 includ_e 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.

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 for releasability

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

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

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.

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 Bis 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.

I ,

23 (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§§ 9.105, 9.106, or 9.108(c), do not constitute "meetings" within this definition.

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

§ 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 +~ day of May, 1999 For the Nuclear Regulatory Commission.

~v,~-~

Annette Vietti-Cook, Secretary of the Commission.

27041 Corrections Federal Register Vol. 64, No. 95 Tuesday, May 18, 1999 This section of the FEDERAL REGISTER paragraph designation "(iii)" should contains editorial corrections of previously NUCLEAR REGULATORY read "(ii)", COMMISSION published Presidential, Rule, Proposed Rule, and Notice documents. These corrections are [FR Doc. CB-22354 Filed 5-17-99; 8:45 am]

prepared by the Office of the Federal BILLING CODE 1505-01-0 10 CFR Part 9 Register. Agency prepared corrections are issued as signed documents and appear in RIN 3150-AB94 the appropriate document categories DEPARTMENT OF ENERGY elsewhere in the issue.

Federal Energy Regulatory Government In the Sunshine Act Commission Regulations CENTRAL INTELLIGENCE AGENCY Correction Notice of As-Bullt Exhibit A, F, and G 32 CFR Part 1903 and Sollcltlng Comments, Motions to In rule document 99-11669 beginning Intervene, and Protests on page 24936 in the issue of Monday, Security Protective Service Correction May 10, 1999, make the following Correction correction:

In notice document 99-11765, In rule document 98-22354, beginning on page 25316 in the issue of On page 24936, in the third column, beginning on page 44785 in the issue of Tuesday, May 11 , 1999, make the under DATES, in the last line "June 1, Friday, August 21, 1998, make the following correction: 1999" should read "July 1, 1999".

following correction: On page 25316, in the second column, (FR Doc. C9-11669 Filed 5-17-99; 8:45 am) in paragraph b. Project No:, "5876-038" BILLING CODE 150S--01-0

§ 1903.4 [Corrected] should re.i!,d "5867-038".

On page 44786, in the third column, (FR Doc. C9-11765 Filed 5-17-99; 8:45 am]

in§ 1903.4(a)(3)(ii), in the first line, the BILLING CODE 1505-01-D