[Federal Register Volume 86, Number 165 (Monday, August 30, 2021)]
[Rules and Regulations]
[Pages 48295-48296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18549]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Rules 
and Regulations  

[[Page 48295]]



DEFENSE NUCLEAR FACILITIES SAFETY BOARD

10 CFR Part 1704

[Docket No. DNFSB-2021-0001]


Government in the Sunshine Act

AGENCY: Defense Nuclear Facilities Safety Board.

ACTION: Direct final rule.

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SUMMARY: The William M. (Mac) Thornberry National Defense Authorization 
Act for Fiscal Year 2021 (NDAA) amended the Atomic Energy Act of 1954 
(AEA) to grant the Defense Nuclear Facilities Safety Board (Board or 
DNFSB) relief from certain limitations under the Government in the 
Sunshine Act (Sunshine Act). The Sunshine Act generally requires all 
Board meetings to be open to public observation unless certain 
exemptions apply. The NDAA added a provision to the AEA that permits 
the Board to hold nonpublic collaborative discussions without following 
the requirements of the Sunshine Act, so long as certain requirements 
are met. The Board is publishing this direct final rule to revise the 
Board's Sunshine Act regulations consistent with the new AEA provisions 
for nonpublic collaborative discussions.

DATES: This final rule is effective November 29, 2021 unless 
significant adverse comments are received by September 29, 2021. If the 
direct final rule is withdrawn as a result of such comments, timely 
notice of the withdrawal will be published in the Federal Register.

ADDRESSES: You may submit comments at any time prior to the comment 
deadline by the following methods:
     Email: Send an email to [email protected]. Please include 
``Sunshine Act Comments'' in the subject line of your email.
     Mail: Send hard copy comments to The Defense Nuclear 
Facilities Safety Board, Attn: Office of the General Counsel, 625 
Indiana Avenue NW, Suite 700, Washington, DC 20004-2901.

FOR FURTHER INFORMATION CONTACT: Eric Fox, Associate General Counsel, 
Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW, Suite 
700, Washington, DC 20004-2901, (202) 694-7000.

SUPPLEMENTARY INFORMATION:

I. Background

    The NDAA became law on January 1, 2021. The NDAA contained an 
amendment to the AEA that granted the Board relief from certain 
requirements of the Sunshine Act. Under the revised section 313 of the 
AEA (42 U.S.C. 2286b(k)), a quorum of the Board may hold meetings to 
deliberate on official agency business without public observation so 
long as it conducts the meeting in compliance with the following 
requirements: (1) No formal or informal vote may be taken at the 
meeting; (2) each individual present at the meeting must be a member or 
an employee of the Board; (3) at least one member from each political 
party represented on the Board must be present; and (4) the Board's 
General Counsel or his or her designee must be present.
    In addition to the requirements governing the conduct of the 
meeting, the AEA requires the Board to publish a summary of the matters 
discussed, including key issues, no later than two business days 
following the meeting. In circumstances where the matters discussed are 
covered by the exemptions to the open meetings requirements of the 
Sunshine Act, the Board must publish as much general information as 
possible without disclosing the exempt material. Unlike closed meetings 
held under the Sunshine Act, no transcript or advanced public notice is 
required.

II. Section-by-Section Analysis

Section 1704.11 Nonpublic Collaborative Discussions

    This new section contains the requirements for the conduct of 
nonpublic collaborative discussions as well as disclosure after they 
are held. These requirements are simply restating the language of the 
AEA, and do not expand or diminish the Board's obligations when holding 
a nonpublic collaborative discussion.

III. Regulatory Analysis

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, agencies 
must consider the impact of their rulemakings on ``small entities'' 
(small businesses, small organizations, and local governments) when 
publishing regulations subject to the notice and comment requirements 
of the Administrative Procedure Act. As noted in section IV Rulemaking 
Procedure below, the Board has determined that notice and the 
opportunity to comment are unnecessary because this rulemaking 
constitutes a limited, routine change to implement the recent amendment 
to the AEA. Therefore, no analysis is required by the Regulatory 
Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, as amended, 
5 U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100,000,000 or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) establishes certain requirements 
when an agency conducts or sponsors a ``collection of information.'' 44 
U.S.C. 3501-3520. This update to the Board's Sunshine Act regulations 
does not require or request information from members of the public. 
Therefore, this rulemaking is not covered by the restrictions of the 
PRA.

[[Page 48296]]

Executive Order 12988 and Executive Order 13132--Federalism

    According to Executive Orders 12988 and 13132, agencies must state 
in clear language the preemptive effect, if any, of new regulations. 
The amendments to the agency's Sunshine Act implementing regulations 
affect only how the Board conducts nonpublic meetings, and therefore, 
have no effect on preemption of State, tribal, or local government laws 
or otherwise have federalism implications.

Congressional Review Act

    This rule will not result in and is not likely to result in (A) an 
annual effect on the economy of $100,000,000 or more; (B) a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions; or 
(C) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets. As such, the Office of Management and Budget has not 
found it to be a major rule as defined in the Congressional Review Act. 
To comply with the Congressional Review Act, the Board will submit the 
required information each House of the Congress and the Comptroller 
General.

Finding of No Significant Environmental Impact

    The proposed regulations amend the Board procedures for holding 
meetings pursuant to the Government in the Sunshine Act. The procedural 
changes to the Sunshine Act implementing regulations will not result in 
significant impacts affecting the quality of the human environment, 
unavoidable adverse environmental effects, rejection of reasonable 
alternatives to the proposed action, or irreversible or irretrievable 
commitments of environmental resources. The agency has not consulted 
with any other agencies in making this determination.

IV. Rulemaking Procedure

    In light of the amendments made to the AEA at 42 U.S.C. 2286b(k), 
this rulemaking makes limited conforming changes to the Board's rules 
implementing the Sunshine Act (10 CFR part 1704). The Board is using 
the ``direct final rule'' procedure because this rulemaking represents 
a limited, routine change to implement the new provisions of the AEA. 
This amendment will become effective on November 29, 2021. However, if 
the Board receives a significant adverse comment by September 29, 2021, 
then the Board will publish a notice in the Federal Register 
withdrawing this rule and publishing the changes as a notice of 
proposed rulemaking. The Board will respond to the significant adverse 
comment(s) in that notice of proposed rulemaking and take an additional 
30 days of comments before publishing any final rule. If no significant 
adverse comment is received, the Board will publish a notice that 
confirms the effective date of this direct final rule.
    A significant adverse comment is a comment where the commenter 
explains why the rule would be inappropriate, including challenges to 
the rule's underlying premise or approach, or would be ineffective or 
unacceptable without a change. A comment is adverse and significant if:
    (1) The comment opposes the rule and provides a reason sufficient 
to require a substantive response in a notice-and-comment process. For 
example, a substantive response is required when:
    (a) The comment causes the Board staff to reevaluate (or 
reconsider) its position or conduct additional analysis;
    (b) The comment raises an issue serious enough to warrant a 
substantive response to clarify or complete the record; or
    (c) The comment raises a relevant issue that was not previously 
addressed or considered by the Board.
    (2) The comment proposes a change or an addition to the rule, and 
it is apparent that the rule would be ineffective or unacceptable 
without incorporation of the change or addition; or
    (3) The comment causes the Board to make a change (other than 
editorial) to the rule.

List of Subjects in 10 CFR Part 1704

    Sunshine Act.

    For the reasons stated in the preamble, the Defense Nuclear 
Facilities Safety Board amends 10 CFR part 1704 as follows:

PART 1704--RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT

0
1. The authority citation for part 1704 is revised to read as follows:

    Authority: 5 U.S.C. 552b; 42 U.S.C. 2286, 2286b(c), (k).


0
2. Add Sec.  1704.11 to read as follows:


Sec.  1704.11  Nonpublic collaborative discussions.

    (a) In general. Notwithstanding the other requirements of this 
part, a quorum of Members may hold a meeting that is not open to public 
observation to discuss official business of the Board if--
    (1) No formal or informal vote or other official action is taken at 
the meeting;
    (2) Each individual present at the meeting is a Member or an 
employee of the Board;
    (3) At least one Member from each political party is present at the 
meeting, unless all Members are of the same political party at the time 
of the meeting; and
    (4) The general counsel of the Board, or a designee of the general 
counsel, is present at the meeting.
    (b) Disclosure of nonpublic collaborative discussions. (1) Except 
as provided by paragraph (b)(2) of this section, not later than two 
business days after the conclusion of a meeting described in subsection 
(a), the Board shall make available to the public, in a place easily 
accessible to the public--
    (i) A list of the individuals present at the meeting; and
    (ii) A summary of the matters, including key issues, discussed at 
the meeting, except for any matter the Board properly determines may be 
withheld from the public under Sec.  1704.4.
    (2) Information about matters withheld from the public. If the 
Board properly determines under paragraph (b)(1)(ii) of this section 
that a matter may be withheld from the public under Sec.  1704.4, the 
Board shall include in the summary required by paragraph (b)(1)(ii) as 
much general information as possible with respect to the matter.

    Dated: August 24, 2021.
Joyce Connery,
Chair.
[FR Doc. 2021-18549 Filed 8-27-21; 8:45 am]
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