[Federal Register Volume 64, Number 140 (Thursday, July 22, 1999)]
[Rules and Regulations]
[Pages 39393-39396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18724]



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  Federal Register / Vol. 64, No. 140 / Thursday, July 22, 1999 / Rules 
and Regulations  

[[Page 39393]]


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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.

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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 begin holding non-Sunshine Act discussions no 
sooner than August 23, 1999.

FOR FURTHER INFORMATION CONTACT: Peter Crane, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
(301) 415-1622.

SUPPLEMENTARY INFORMATION: On May 10, 1999 (64 FR 24936), 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 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. NRC, 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. NRC, 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

[[Page 39394]]

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. ``(I)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 NRC to 
follow the approach of the Court of Appeals and disregard the contrary 
guidance of the Supreme Court, the NRC cannot agree. Even if the 
Commission 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.1
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    \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 
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 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.
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    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.
    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 of, 
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

[[Page 39395]]

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
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    \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.''
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    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. 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 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 NRC 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 NRC intends to implement its 1985 Sunshine Act rules 
and to begin holding non-Sunshine Act discussions, subject

[[Page 39396]]

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.

    Dated at Rockville, Md., this 16th day of July, 1999.
    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.

[FR Doc. 99-18724 Filed 7-21-99; 8:45 am]
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