ML20209H790

Provides Commission with Analysis of Comments Received on 990510,FR Notice Regarding Agency Sunshine Act Practices

ML20209H790
Person / Time
Issue date:	06/29/1999
From:	Cyr K NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
FRN-64FR39393 AB94-2-017, SECY-99-166, SECY-99-166-01, SECY-99-166-1, SECY-99-166-R, NUDOCS 9907210070
Download: ML20209H790 (18)

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....................eose POLICY ISSUE June 29, 1999 SECY-99-166 FOR:

The Commissio FROM:

Karen D. Cyr General Counsel

SUBJECT:

COMMENTS ON NRC'S SUNSHINE ACT NOTICE PURPOSE:

To provide the Commission with an analysis of the comments received on the NRC's May 10, 1999, Federal Register notice regarding the agency's Sunshine Act practices.

DISCUSSION:

The opportunity for public comment on the NRC's Sunshine Act notice resulted in only nine comments, all but one of which expressed disapproval of the NRC's action. (The lone exception was the Nuclear Energy Institute, which said that it endorsed the NRC's action for the reasons stated in the Federal Register notice.) The negative comments were for the most part along the lines that we had expected, and had therefore tried to anticipate in the May 10 Federal Register notice. 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 circurnstances 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 docussions will take; and (f) the Commission's action, by providing for minimal recordkeeping, i

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; (D) the NRC has failed to show that collegiality has been impaired by the Sunshine Act; (c) the examples of

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. topics that the Commission has cited as examplos 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 4

recordkeeping; (e) no harm could come to the Commission's processes if general beckground 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.

Of the critical comments received, the most detailed came from Representative Edward J.

Markey, the Natural Resources Defense Council, and Public Citizen. So many of the legal and policy arguments were raised in the letter from Rep. Markey, and addressed in OGC's proposed reply to him, that we have appended the incoming letter, as Attachment A, and the proposed response, as Attachment B.

As the proposed reply to Rep. Markey indicates, the legal arguments against the Commission's rule can be disposed of in f airly short order. The central point in everything that the Commission has said on the subject of the Sunshine Act since 1984 is that its purpose has

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been to bring itself into conformity with a unanimous Supreme Court decision that interpreted the Act and that went out of its way to provide clear guidance as to the meaning of the statutory term " meeting." (The NRC's original Sunshine Act regulations had been based in part on Justice Department guidance that proved to be erroneous.) There could be no stronger legal underpinning for a Commiosion action. Much of the quarrel of the critics seems to be less with what the Commission has done, but with the statute itself, as passed by the Congress and interpreted by the Supreme Court.'

The argument that the NRC should ignore the Supreme Court interpretation of " meeting,"in favor of the expansive interpretation applied by the D.C. Circuit in cases decided before the Supreme Court ruled, is legally untenable. There is no way to rationalize the Supreme Court's decision out of existence; the efforts to do so (e.g., by arguing that the decision should be limited to its facts, or that because it was not necessary for the Court to go into such detail about the definition of " meeting," that portion of the opinion can be ignored) were thoroughly j

and firmly squelched by the American Bar Association in its report. The bottom line is that the NRC does not have the liberty to disregard Supreme Court decisions.

l What the Supreme Court explained in detail is that the definition of " meeting" was an issue to which Congress ' paid extremely close attention, with changes introduced late in the legislative l

process. The bill in its final form therefore differed significantly from what some of its j

supporters (including its chief sponsor, the late Senator Lawton Chiles) desired. As a result, Committee reports describing earlier, more expansive versions of the legislation are of slight significance compared to the Supreme Court's parsing of the statute that Congress actually passed. Most of the commenters are in effect asking the NRC to join in rewriting history so that the narrowing of the scope of " meetings"-- proposed by Representative Pete McCloskey, l

'For instance, Public Citizen writes in its comments: '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.'" The sentence attributed i

to the Commission is in fact a quotation from the Supreme Court's opinion. FCC v. /TT Wodd Communications,466 U.S. 463,469-70.

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3-enacted over the opposition of Senator Chiles and others, and elucidated by the Supreme Court

--is made to disappear from the record. This the NRC cannot do.

j Contrary to the views of some of the commenters, the Sunshine Act did not decree openn.ess 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. To the j

concern that the standards for determining what is a non-Sunshine Act discussion are too vague, we can only reply that the Supreme Court thought otherwise, for the standard came j

directly from the Court's opinion. Nor is it correct to say that the standard requires " divination" 1

of what will happen in a discussion; what the rule contemplates is that if a discussion begins to j

evolve from the preliminary exchange of views that the Commission contemplated into i

something so particularized that it may " effectively predetermine" agency action if it continues, the Commission will cease the discussion.8 On the issues of policy, we agree that an argument can be made that because of tL Opecial

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sensitivity and public interest in issues of nuclear safety, the NRC should continue to apply the law more stringently than is required. But that argument cuts both ways. It could equally well be argued that the special sensitivity and public interest in issues of nuclear safety make,

efficiency and collegiality particularly important, in order to maximize the quality of Commission decisionmaking, and that the Congressional balance between openness and efficiency should

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therefore be adhered to strictly.

On the question of whether the NRC's action will diminish public confidence in the Commission, this possibility cannot be ruled out, although to date, the adverse reaction has been comparatively mild. The Commission was of course aware, at the time it issued the May 10 notice, that negative public reaction was a possible consequence. It is also possible that the potential enhancement of collegiality and the potential improvement in Commission decision-making that could result from non-Sunshine Act discussions will ultimately increase the public's confidence in the Commission's actions. At thic point, the Commission needs to consider whetner the potential negative impact on public perception is so serious as to outweigh the expected benefits in collegiality and efficiency. This is the Commission's call to make; for its part, OGC does not see reason to change course on this account.

It is true that the Commission did not follow the American Bar Association's recommendations with respect to record-keeping. 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 notice 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.

2 Every Commissioner who meets one-on-one with agency stakeholders has to be prepared to cut off discussions that threaten to stray into impermissible areas, such as those covered by the Commission's ex parte regulations. 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."

, On the question of whether any harm could result from holding briefings in public session, 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 i

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 could still be made today. On the

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1 other hand, the counter-argument can be made that two decades of implementing the Sunshine Act, with its procedural burdens and its tendency to inhibit the free flow of discussion, have persuaded the Commission that Congress's original judgment was well-founded, and that the Act should not be applied beyond the bounds set by Congress. In addition, as noted in the proposed reply to Representative Markey, there is one court decision holding that an agency exceeded its legal authority when it adopted a definition of " meeting" broader than what Congress had legislated. WATCH v. FCC,665 F.2d 1664 (D.C. Cir.1981).

Finally, there is one point, noted by Representative Markey in his letter, on which the Commission's Federal Register notice was not clear: whether there is anything in the rule to prevent the Commission fmm meeting in non-Sunshine Act discussions with a representative of the Nuclear Energy Institute. We believe that the proper response is that the Commission's contemplation throughout has been that non Sunshine Act discussions generally would be j

limited to NRC or other federal agency personnel, with lirnitod exceptions, such as the representative of a foreign regulatory body or a state regulator, who would not be regulated entities or who could not be considered interested parties to Commission adjudicatory or rulemaking proceedings.

CONCLUSION:

OGC believes, based on its review of the comments received on the May 10 Federal Register notice, that none of them indicates a neen to revise the approach taken by the Commission.

The Commission may proceed to implement its Sunshine Act rules as it proposed in the May 10 Notice. If the Commission wishes to formally respond to the comments beyond what will be done in response to Congressman Markey's letter, we could prepare an appropriate document quickly.

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j Karen D. Cyr General Counsel Attachments:

1. Letter from Representative Edward J. Markey, June 1,1999

2. OGC's proposed reply to Representative Markey DISTRIBUTION:

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Dear Ms. Jackson:

Public trust in the Nuclear Regulatory Commission's (NRC's) oversight of nuclear facilities

• depends on the fairness and openness of the pm For this reason I am disturbed that the Commission recendy 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 maiority of Commission members at which official business is discussed with severa1 exceptions based on specific content. Nonetheless, in 1984 in the Philadelphia Newspqpers. 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 th~ N this Nation and scared in our minds a lesson vital to the health of a democratic polity:

Govemment should conduct the public's business in public. In the Sunshine Act i

Congress moved to ensme that those in govemment 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 whe 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 be the public's business" out of the public eye. Faced with Congressional legislation that wou have repealed the new mle (whi:h I cosponsored) and an outpouring of adverse public opinion NRC at the time never implemented the rule change. However, the Commission has no-decided, without a public meeting, to implement the 1985 rule. 8m w

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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 iahaaahat regulatory agency and could lead to J

further " secret abuse of official power." Senator Lawton Chiles, the author of the Simaki=> 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 decisioamaking processes of the agency.

The Sunnhine 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 detail.ed analysis or specific example has been provided of problems with the current rule or of the need for changes.

'Ihe 198$ tule leaves much room for abu:e due to the above vague and probabilistic de5nition of"maa*ia*=" subject to Simahine rules.' A February 24,1999 memorandum from Ca==i== ion 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-S=hina Act discussions, and the May 10, 1999 Federal Register Notice announcing the intent to implement the 1985 rule promises to "maintshia record of the date and subject of, and participants in, any scheduled non-Sunshine Act dia== ions that three or more Comminaioners attens' 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 tlist later arose before the agency.

To shed some sunlight on this " Sunset Rule," I resocctfully request your assistance in answering the following questions and information requests:

1. In a May 21,1985 hearing before the House Sut+3Mttee on Energy Conservation and Power it was testified that more than one-third of Commienion meetings were closed under exemptions to the Sna=hia* Act. For each of the last five years, what percentage meetings of a majority of the Commission were not open to the public? How many meetmgs 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) my staff that this memo itselfis secret at the request of the General Counsel. Please provide us with copies of this memo (including all attachments) as well as copies of an written request by the General Counsel for not making it public. If any of this material i not public, pleasejustify why a justification of secrecy itself needs to be secret, and j

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 pro 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 McGaffisan, Jr. and Jeffrey S.

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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 treate as 'mestags' 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 "m#a "?

4. 'Ibe memo on which the Commission voted stated that "the agency will maintain a record of the date and subject of, a..d participants in, all non-Sunnhine Act informal gatherings j

of a quorum of the Cn=mi== ion." The May 10 Federal Register Notice applies this on to scheduled discussions and only for the first six months. The NRC press release No.

99 39 deletes "#W," but does include the six month limit. Please state clearly what records will be maintainad of non-Sunshine Act discussions, andjustify any difference from the rammineian's votes. If the record-keeping willindeed be evaluated after six maaA. on what basis will"the usefulness of the acord. keeping practice" be decided?

5. The memo on which the Commission voted cites as a reason forthe timelin) change that "the main Congressional opponent of the 1985 interim rule is no longer in Congress." Does the memo's apparent reference to the d.y.e.e of our former colleague, Reprenantative 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 6ange in NRC recewee? Whatother NRC rule changes since 1985 have been based in whole or in part on the then current rusmbership of Congren?

6. Under the 1985 rule could the full Commission invite wy.

tauves of a licensee or of I

the Nuclear Energy Institute (NEI) for a general discussion chut how easing government regulations could assist the nuclear power industry, and do so without public notice, without public participation, witimut transcript, tape, or minutes, and, if the meeting we 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 dis of specific proposals for changing NRC regulations took place at such a meeting then violate the 1985 rule? Ifimproper 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 1,edyard B. Marsh of the NRC, recently released by Public Citizen, thanks the NR giving NEI the opportunity to comment on a draft NRC policy domaaaat. which has n been publicly released. Is it NRC policy to allow industry wr.

atatives 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 w to industry representatives in the last five years (other than documents that were security reasons)?

4 Thank you for your assistance. If you have questions conceming 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, f_A_ x_ _._ _0__

YD~ Aw.

g- - $y Edward J.

Mernber of Congress i

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w Representative Edward J. Markey United States House of Representatives Washington, D.C. 20515-2107

. Daar Congressman Markey:

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 Govemment in the Sunshine Act. We have placed your letter in the docket, and will consider it along with other comments from the public, in addition to providing you with this response. Given that the Commission has allowed a period for public comment, the views expressed in this letter do not necessarily represent the Commission's final word on the issues involved. Nevertheless, we do not wish to delay replying

' to you on that account.

Before. proceeding to the specific questions you asked, 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. As will be apparent, your perceptions and ours differ significantly.

First of all, you quote at length from the decision of the U.S. Court of Appeals for the District of Colurt.'>ia Circuit in Philadelphia Newspapers v. NRC, 727 F.2d 1195 (1984), !.1 which the court declared that "Govemment should conduct the public's business in public," and opined that Congress undoubtedly intended that the Govemment in the Sunshine Act "would guarantee public accountability" 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) Govemment 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

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expansive interpretation of the Sunshine Act by the D.C. Circuit. Resoundingly, in a unanimous decision, the Supreme Court overtumed 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.

ATTACHMENT 2

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2-Section 552b(a)(2) therefore limits the Act's application....

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 -

'judicialinterpretations 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.' 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 intorpretation.

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 j

- matter of policy that such a course was desirable, the NRC is not at liberty to ignore Supreme l

Court decisions interpreting the statutes that govem its operations. 2 As for the asse tion that the NRC has failed to offer examples of the types of "non-Sunshine Act discussions" t' it contemplates holding, we refer you to the section of the NRC's May 10,1999 Federal Regl notice on page 24942 that begins, "Some specific examples of the kinds of topics that tr' 'at be the subject of non-Sunshine Act discussions would include...." Nor is this the first time tr. d the NRC has offered such examples, it has done so repeatedly, beginning in

'Though your letter describes the NRC's 1985 rule as "NRC's respor.se" to the Philadelphia Newspapers case, it was in reality the agency's response to the ITT case.

8 lt 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:

lndeed, we are unable to discem any rea' son 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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0 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 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 make the further comment that "no detailed analysis or specific example has been provided of problems with the current rule or of the need for changes." We disagree. 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 3

I 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 Federal Register notice.

Your observation that "[t]here is no apparent requirement to keep any tape or transcript of non-Sunshine Act discussions" is entirely 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 l

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 such discussions for the initial six-month period of implementing the rule. This will assist the Commission in determining whether thereafter, record-keeping should be maintained, in' creased, or eliminated. No final decision has been made at this time.

1 Our responses to your specific questions are attached.

Sincerely, Shirley A. Jeckson Chairman i

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- OUESTION 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?

81LSWEB 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 will 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%),20 closed (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.1996: 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 i 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; 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.

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- QUESTION 2.The recent Commission vote on implementing the rule was based on a l

Novemiser 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 materialis 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.

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- QUESTION 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. 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 made 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 been considered " meetings under the Commission's restrictive and erroneous interpretation of " meeting" prior to the Supreme Court's decision in l_TI." 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 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 for the first six months. The NRC press release No. 99-39 deletes *scheduleif," but does include the six month limit. Please state clearly what records will be rnaintained of non-Sunshine Act discussions, and justify any difference from the Commission's votes. If the record-keeping willindeed by evaluated after six months, on what basis will"the usefulness of the record-keeping practice" be defoedy 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.

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.

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- QUESTION 5.The memo on which the Commissior, voted cites as a reason for the timeliness of l

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 pohtical 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 l

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 fairly and in its totality, makes clear that the two Commissioners' proposal was motivated by

. concems of good govemment and legal correctness, not politics. At the same time, they offered their candid view that concem about the proposal might be less intense than it had been in l

1985. There was nothing inappropriate about 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 that have been " based in whole or in part on the then current membership of Congress."

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- QUESTION 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 govemment 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?

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 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 i

could not be considered interested parties to Commission adjudicatory or rulemaking proceedings.

In the case of the example you offer - the Commission holding a non-Sunshine Act discussion with NEl --it does not seem practicable to keep the discussion sufficiently removed from specific issues before the agency to nake the non-Sunshine Act discussion format appropriate. The same would apply to a i

discussion with, for example, representatives of Public Citizen or NIRS.

Discussions of such a kind should take place in an open forum, i.e., a " meeting."

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- QUESTION 7.On a related openness issue: a May 3,1999 letter from Alex Marion of the NEl to Ledyard B. Marsh of the NRC, recently released by Public Citizen, thanks the NRC for giving NEl 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 i

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 concems in the Generic Communication area. Following receipt of input from NEl 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 NEl, the staff forwarded a draft version of SECY-99-143 to NEl and also made the draft SECY paper available in the Public Document Room. The staff verified that the draft SECY document was in fact available in the Public Document Room on April 7,1999. At the April 22 meeting, the staff discussed the proposed improvements to the generic communications program, made copies of the -iraft SECY paper available to all who atended, 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 NEl, 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 NEl 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.