ML20024H636
| ML20024H636 | |
| Person / Time | |
|---|---|
| Issue date: | 05/29/1991 |
| From: | Carr K NRC COMMISSION (OCM) |
| To: | Quayle J SENATE, PRESIDENT OF THE SENATE |
| References | |
| NUDOCS 9106070191 | |
| Download: ML20024H636 (15) | |
Text
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'o UNITED STATES
~g NUCLEAR REGULATORY COMMISSION l'
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g a E W ASHINGTON, D. C. 20555 May 29, 1991
't,.....
CHAIRMAN 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 1990.
Sincerely, Kenneth M.
Carr
Enclosure:
As stated
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May 29, 1991
'S CHAIRMAN The Honorable Thomas S.
Foley Speaker of the United States House of Representatives Washington, D.C.
20515
Dear Mr. Speakor:
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 1990.
Sincerely, Kenneth M.
Carr i
Enclosure:
As stated l
1 l
l l
m _
ANNUAL REPORT GOVERNMENT IN THE SUNSHINE ACT 1.
AGENCY NAME:
U.S. Nuclear Regulatory Commission 2.
CALENDAR YEAR:
1990 3.
MEETINGS:
(See definitions in Appendix A).
A.
Total Number of Open........................
66 (90%)
B.
Total Number of Closed......................
7 (10%)
C.
Total Numbs of Partially Open/ Closed 0 (0%)
Total Number of Meetings...................
73 The above meetings are counted by the number of separate agenda topics discussed as described ir. 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.........................
56 E.
Total Sessions Closed.......................
7 l
F.
Total Sessions Partially Open/ Closed........
0 Total Number of Sessions....................
63 Appendix B contains a tabulation of open and closed meetings per month for CY 1990, 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) 3 A.
Exemption 1 2
Exemption 10 2
Exemptions 2 & 6..........................
Total................................
7 The percent of closed / partially closed meetings remained at O percent in 1990.
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I:
B.
HRC's practice regarding the closing of meetings pertaining to the budget, Congressional testimony, and briefings of agency members by staff is as follows:
(1)
Dudget_Meetinca.
The U.S. Court of Appeals for the District of Columbia Circuit concluded in Common Cause v. EBC, 674 F.2d 921 (D.C. Cir.
1982), that there was no exemption under the Sunshine Act authorizing automatic closure of budget meetings.
After Common Cause, the Commission has not convened any meetings to discuss the budget.
(2)
Keetina at which_Concressional testimony in discussed.
In 1990, there were no Commission meetings held to discuss Congressional testimony.
(3)
Briefinas of_acongy members by NRC stall.
Under the Commission's original Sunshine Act rules adopted in 1977, all briefings by NRC staff of a quorum of the Commission were considered to be for the purpose of conducting official Commission business and were therefore treated as meetings-under provisions of the Act.
Under the revised rule adopted by the Commission in 1985, some informational briefings would not constitute
" meetings" for Sunshine Act purposes.
Because to date the 1985 revised rule has not been implemented, all briefings attended by a quorum of Commissioners have been treated as " meetings."
of the 73 meetings held by the Commission in 1990, 35 were staff briefings, 33 of which were held in public session and 2 in closed session.
Meeting records of closed briefings are reviewed for retention / release as described in Section 10 below.
5.
DESCRIPTION OF LITIGATION l
There were no Government In the Sunshine Act cases involving l
NRC filed or otherwise in litigation during 1990.
6.
NOTATION VOTING l-The Commission uses the notation voting process to decide issues I
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,
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agreements with the Executive Branch agencies, export licences, outgoing Commission correFpondence, proposed rulemaking actions, appointments and reappointrer.ts to advisory committees, and review of actions being taken or about to be taken under delegations of authority to the stuff.
In connection with the notation voting process, the Commission in late 1989 expanded its policy on " openness" by deciding to place, except in relatively rare circumstances, all issue papers voted on by the Commission in the notation vote process 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 withheld (material containing adjudicatory, enforcement or investigatory, classified or proprietary, and personal privacy information).
Papers may also be withheld on rare occasions if they involve particularly sensitive matters and if solid justification for withholding exists.
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.
7.
PUBLIC OBSERVATION 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, and an adjoining conference room, which seats 40 people, are provided with multiple overhead speakers and with a closed-c.ircuit television system to ensure that every person desiring to attend a meeting can see and hear.
B.
A pamphlet er. titled " 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 1
-4 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 all viewgraphs to be used in the course of meetings are made available to meeting attendees at the entrance to the conference room prior to the commencement of the meeting.
D.
Copies of the principal staff papers scheduled to be considered at the meeting are normally provided to public attendees in the conference room.
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 1990, 90 such documents were released.
E.
A " Handbook of Acronyms and Initialisms" (NUREG-0544, Rev. 2) is on file in the PDR to further help the public in understanding the many technical terms discussed in Commission papers.
F.
Public attendees are permitted to tape record Commission discussions at open meetingt.
G.
It is the Commission's practice to allow camera and television coverage of open meetings and briefings without prior notification.
The use of cameras, including television coverage, at open licensing proceedings conducted by NRC's licensing and appeal boards is also permitted.
In both Commission meetings and adjudicatory hearings, however, camera equipment must be operated in a manner that is not disruptive to the proceedings.
H.
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. Transcripts of all 66 open meetings in 1990 are in the PDR, where they may be read or copied for a fee.
In August 1989, the Commission further expanded its " openness" policy by initiating a new type of public meeti.ng, which is intended to provide the Commissioners with a periodic
opportunity to bring up topics for collegial discussion without a formal agenda.
These meetings, called Collegial Discussion of Items of Commissioner Interest, cover a range of items of individual Commissioner interest arid are open to the public.
To date, the Commission has held 6 collegial meetings, during
-which such diverse topics as foreign travel, reactor design certification, NRC quality assurance and control, the Clean Air Act, the Commission's Below Regulatory Concern (BRC) Policy, principles of good regulation, recognition of good utility performance, utility management related issues, advisory committee responsibilities, licenseo performance grades, and personnel and logistical operations have been discussed.
8.
PUBLIC NOTICE l
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Each meeting is publicly announced by the methods listed below.
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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) 492-0292 to hear the pre-recorded message.
B.
Publishin( weekly in the Federal Register the time, date and location of all meetings schedulad 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 a contact person who is prepared to respond to questions about the meeting schedule.
c.
Posting in the NRC-Public Document Room, 2120 L l
- Street, N.W., Washington, D.C.
20555, a copy of the federal Reaister Notice at the time it is sent to the Federal Reaister.
D.
Mailing a copy of the Federal Recister Notice to those persons on a mailing list maintained for that purpose (currently over 175 names and addresses) at the time f
it is sent to the federal Recis'cer.
E.
Submittal of a copy of the Federal Reaister 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.
F.
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
)
j Reaister Notice-is continuously scrolled on one channel of the NRC's internal cable television system which can be viewed on a television monitor at the
-guard's desk 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.
G.
Telephoning interested partics 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 po.11cy 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, 92 percent of the 1990 Commission meetings (67 of 73) were announced with 7 or more day's notice while the remaining 8 percent were announced with less than 7 days' notice.
The following observations are made concerning the 6 "short notice" Commission meetings held during 1990:
There were 3 open and 3 closed "short notice" meetings.
Two of the 3 open meetings were affirmation sessions at which the Commission ratified (affirmed), with little or no discussion, the previously declared views of individual Commissioners.
The one other open meeting was held to continue discussions started at an earlier macting on design certification issues for evolutionary and advanced nuclear _ power plants.
Three closed meetings were held with less than 7 days' notice.
Holding these closed meetings on short notice did not affect public participation.
Whenever a short-notice meeting is added to the Commission's l'
schedule, public notice is immediately issued through NRC's l
automatic telephone enswering 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 Affairs, and, where appropriate, telephone notification to news media
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and to interested parties to adviso them of the additional meeting.
Notice is also promptly submitted to the rederal Reaister.
Additionally, if the short-nctico meeting was open, tho transcript of the mooting is placed in the PDR shortly thereafter.
9.
PUBLIC INTEREST The Commission, in adopting its Sunshine regulations (soo Appendix D), explained how it would employ the public interest criterion in exercising agency discretion to open meetings that could.otherwise be closed under one of the exemptions authorized in the Act.
"Section 9.104(a) of the rules, like the proposals of soveral other agencies, gives presumptive but not conclusive force to the determination that an exemption is available in deciding the public interest question.
l The fact that a meeting does come within a specific l
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 t
l 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 neoting 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-l mondations to the Commission for closed meeting discussions.
I The Commissior. ors review staff's recommendations for closed acetings and consider.the advice of the General Counsel as to whether the item is properly closable. Implicit in this procedure is the understanding that a vote to closo represents L
the Commission's determination tLat the public interest does-not L
require an open meeting.
- 10. RELEASING OF TRANSCRIPTS, RECORDINGS AND MINUTES OF CLOSED MEETINGS l
A.
The policy of the Commission is to make available to the public the record of all meetings exbept for those portions the agency determines to contain information which may be w!thheld under the provisions of Section l
552b(c), the Government in the Sunshine Act.
To l
ensure that the determinations mado -'are correct, the Commission, upon receipt of a request for a copy of a 1
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transcript or portion thereof previously_ withheld, conducts three independent levels of review for each transcript.or electronic recording under consideration for release.
An-initial review is performed by-the staff office. presenting the briefing or discussion.
l The second review is accomplished by the Office of the l-General Counsel (OGC). _ Thirdly, the Commission l-reviews the record and makes the final determination regarding public disclosure.
The review process has resulted in the release of all or portions of approximately 300 transcripts of closed meetings to the Commission's PDR since the enactment of the Sunshine Act.
The Commission's rules, in accordance with the Sunshine Act, permit records of closed meetings including litigation to be kept in minutes (10 FR
_9.108(a)), and procedures exist for the review of l:
such: minutes._ Two closed meetings to discuss L
pending litigation were held in 1990.
Minutes l
were kept for one meeting and a tape recording was made for the second meeting.
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B.
Index Systems and Tabulation of Reauests for L
Transcrints. Recordinas and Minutes (ODen and Closed) l The Nuclear Regulatory Commission indexes transcilpts of meetings and meeting summaries that are placed in the PDR.
This information is i
included in a Daily Accession List, with monthly cumulations, and is made available in-the L
Commission's Public Document Reading Room and mailed on-a subscription basis to interested persons.
L Appendix:E contains a sample entry from the PDR t
MonthlycAccession List.
This~ example identifies l
and describes the factors that are indexed.
Transcriptslof all public Commission meetings are usually placed in the PDR within 72 : hours following the meeting. During 1990, members of the public examined 631 transcripts of public Commission meetings at the NRC's Public Document l
Room,_and 938 copies of transcripts were l
reproduced for members of.the public.
During )990,-NRC did not receive any FOIA requests for transcripts..
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- 11. REQUESTS TO OPEN MEETINGS The Commission's rules-describe the-procedure to_be followed by c person _who wishes to request a change in the status of a closed meeting.
10 CFR 9.106(b) and (c)- provide that "any l
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' 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 l
the public interest in opening the meeting.
All requests,
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formal or informal, are referred to the Commission for decision.
Filing such a petition does not cutomatically act to stay the effectiveness of the Commission decision or to pestpone the meeting in question.
No requests to open a closed Commission meeting were received in 1990.
- 12. FORMAL COMPLAINTS There were no formal complaints filed in 1990 relating to closed Commission meetings.
13.
EK E RTE COMMUNICATIONS On March 26, 1986, the Commission published in the Federal Register (51 FR 10393) a proposed rule on ex parte communications and separation of functions and adopted the rule in final form on March 23, 1988 (see Appendix F).
The rule conforms the Commission's regulations regarding ex narte communications between adjudicators and persons outside the agency to the requirements of 5 U.S.C. 557(d).
The rule also revises the separation of functions rule to preclude private Commission communications with the NRC staff about a matter at issue in a formal adjudicatory proceeding only if the staf f member is an investigator or litigator in the proceeding. Prior to adopting this rule, the Commission was precluded from private communications with any member of the NRC staff whether or not the staff member was involved in a proceeding.
l 14.
NRC RULE CHANGE l
l 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
-decision, which relied heavily on the Interpretive Guide to the Sunshine Act (R. Berg and S.
Klitzman, 1978), held that a
" meeting" for Sunshine Act purposes means a discussicn l
t "s>fficiently 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 cn 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 discussions 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 acted on a final Sunshine Act rule.
15.
ADDITIONAL INFORMATION l
This report was prepared in the Office of the Secretary, U.S.
Nuclear Regulatory Commission. Comments or inquiries on this l
report or related matters should be addressed to:
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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) 492-1963.
APPENDICES A.
Definition of Meetings B.
Tabulation of Open and Closed Meetings by Month c.
Tabulation of Meetings by Days' Notice l
D.
NRC Regulation as Amended Implemer. ting the Sunshine Act l
(10 CFR Sections 9.100-9.109)
E.
Sample Entry from Index F.
NRC Ex Parte (10 CFR Section 2.780) and Separation of Functions Regulations (10 CFR Section 2.781)
L
o.
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EWEDlDIX b Rgfinition of Meetinq NRC's Statutor y Meetina Requj rement 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."
Meetinos Defined by Sunchine Act Under NRC regulations, revised in 1985, a "mcotingd 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 discussione 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."
10 CFR Section 9.101(c) of NRC's Sunshine Regulations (see Appendix D).
This revised definition has yet to be implemented.
To date, the Commission has treated all discussions of acency business by a quorum of Commissioners as " meetings" for Sunshine i
l 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 l
sessions other than Affirmation Sessions and Collegial Discussions are scheduled to heer a briefing or to discuss a single topic at 1some_ 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 l
discussions or briefings occur on the same day.
Each session at l
which one or more Commission papers were scheduled for affirmation under the limited notation voting - procedure described in paragraph 6 is counted as a mooting.
Appendix B includes counts of meeting statistics reported using the above definition, and also using the " Common 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 i
irrespective of the number of agenda items considered.
Both methods are reported here to allow comparisons of statistics by those who use the Egmmon Cause method.
APPENDIX B TABULATION OF OPEN AND CLOBED MEETIN08 BY NONTH CY 193J OfEH CLOSED OPEN/ CLOSED TOTAL Jan (NRC) 5 0
0 5
(CC) 5 0
0 5
Feb (NRC) 6 2
0 8
(CC) 5 2
0 7
Mar (NRC) 6 0
0 6
(CC) 6 0
0 6
Apr (NRC) 8 0
0 8
(CC) 7 0
0 7
May (NRC) 5 1
0 6
(CC) 5 1
0 6
Jun (NRC) 8 2
0 10 (CC) 6 2
0 8
Jul (NRC) 3 0
0 3
(CC) 2 0
0 2
Aug (NRC) 3 0
0 3
(CC) 2 0
0 2
Ser (NRC) 3 0
0 3
(CC) 3 0
0 3
Oct (NRC) 9 1
0 10 (CC) 8 1
0 9
Nov (NRC) 3 1
0 4
(CC) 2 1
0 3
Dec (NRC) 7 0
0 7
(CC) 5 0
0 5
YEAR TO DATE (NRC) 66 7
0 73 (CC) 56 7
0 63
_ - ~.
0 APPENDIX C TABULATION - OF MEETINGS BY DAYC' NOTICE CY 1990 DAYS' NOTIcI QPfl{
CLOSED OPEN/ CLOSED TOTAL 12 or moro 48 4
0 52 11.
1 0
0 1
10 0
0 0
0 9
7 0
2 9
8 5
0 0
5 7
2 3.
A
_.2 Subtotal 63 4
0 67 6
2 2
0 4
5 0
0 0
9 4
1 1
0 2
3 0
0 0
0 2
0 0
0 0
1 0
0 0
0 Less than 1 E
A A
_2 Subtotal 3
3 0
6 GRAND TOTAL
$1 2
2 22 l
ww