[Federal Register Volume 64, Number 89 (Monday, May 10, 1999)]
[Rules and Regulations]
[Pages 24936-24942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11669]
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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 and request for comments.
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SUMMARY: The Nuclear Regulatory Commission (Commission) is announcing
its intent to implement a final rule, published and made effective in
1985, that amended its regulations applying the Government in the
Sunshine Act. The Commission is taking this action to provide an
opportunity for public comment on its intent because of the time that
has passed since the Commission last addressed this issue. This action
is necessary to complete resolution of this issue.
DATES: The May 21, 1985, interim rule became effective May 21, 1985.
Submit comments by June 9, 1999. Unless the Commission takes further
action, non-Sunshine Act discussions may be held beginning June 1,
1999.
ADDRESSES: Submit written comments to: Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff.
FOR FURTHER INFORMATION CONTACT: Trip Rothschild, Assistant General
Counsel, Office of the General Counsel, U.S. Nuclear Regulatory
Commission, Washington, D.C. 20555, (301) 415-1607.
SUPPLEMENTARY INFORMATION: The Commission, through this notice of the
Commission's intent to implement a rule published and made effective in
1985, seeks to bring closure to a rulemaking that amended the NRC's
regulations applying the Government in the Sunshine Act. Because of the
years that have elapsed, the Commission is providing this notice of its
intent to implement this rule and is providing an opportunity for
additional public comment on the Commission's proposal to implement.
The purpose of the rule is to bring the NRC's Sunshine Act
regulations, and the way they are applied by NRC, into closer
conformity with Congressional intent, as set forth in the legislative
history of the Sunshine Act and as clarified in a unanimous Supreme
Court decision, FCC v. ITT World
[[Page 24937]]
Communications, 466 U.S. 463 (1984). The NRC's original Sunshine Act
regulations, adopted in 1977, treated every discussion of agency
business by three or more Commissioners, no matter how informal or
preliminary it might be, as a ``meeting'' for Sunshine Act purposes. As
the 1984 Supreme Court decision made clear, however, ``meetings,'' to
which the Act's procedural requirements apply, were never intended to
include casual, general, informational, or preliminary discussions, so
long as the discussions do not effectively predetermine final agency
action. These kinds of ``non-Sunshine Act discussions,'' which can be
an important part of the work of a multi-member agency, had been
foreclosed at NRC since 1977 by the agency's unduly restrictive
interpretation of the Sunshine Act.
In response to the Supreme Court's clarification of the law, the
Commission in 1985 issued an immediately effective rule that revised
the definition of ``meeting'' in the NRC's Sunshine Act regulations. To
ensure strict conformity with the law, the new NRC rule incorporated
verbatim the Supreme Court's definition of ``meeting.'' The rule change
drew criticism, however, much of it directed at the fact that it was
made immediately effective, with an opportunity to comment only after
the fact. To address some of the concerns raised, the NRC informed the
Congress that it would not implement the rule until procedures were in
place to monitor and keep minutes of all non-Sunshine Act discussions
among three or more Commissioners. No such procedures were ever
adopted, however, nor was the rule itself implemented, and the issue
remained pending from 1985 on.
The Commission believes that it is time to bring the issue of the
NRC's Sunshine Act rules to a resolution. As noted, because of the many
years that have passed since the Commission last addressed this issue,
the NRC is providing this notice of its intent finally to implement and
use the 1985 rule, and providing 30 days for public comment on the
Commission's proposal to implement. The Commission will not modify its
current practices, under which no non-Sunshine Act discussions take
place, until it has had the opportunity to consider any comments
received.
I. Background
On April 30, 1984, the United States Supreme Court issued its first
decision interpreting the Government in the Sunshine Act, Federal
Communications Commission v. ITT World Communications, 466 U.S. 463.
Though the case could have been decided on narrow, fact-specific
grounds, the Court used the opportunity to offer guidance on what
leading commentators have described as ``one of the most troublesome
problems in interpreting the Sunshine Act'': the definition of
``meeting'' as that term is used in the Act. R. Berg and S. Klitzman,
An Interpretive Guide to the Government in the Sunshine Act (1978), at
3. The Court rejected the broad view of the term ``meeting'' that the
U.S. Court of Appeals for the District of Columbia Circuit had taken.
It declared that the statutory definition of a ``meeting'' contemplated
``discussions that `effectively predetermine official actions.' '' The
Court went on:
Such discussions must be ``sufficiently focused on discrete
proposals or issues as to cause or be likely to cause the individual
participating members to form reasonably firm positions regarding
matters pending or likely to arise before the agency.'' 466 U.S. at
471.
The Court reviewed the legislative history, demonstrating how in
the process of revising the original bill, Congress had narrowed the
Act's scope. In the Court's words, ``the intent of the revision clearly
was to permit preliminary discussion among agency members.'' Id. at
471, n.7. The Court explained Congress's reasons for limiting the reach
of the Sunshine Act:
Congress in drafting the Act's definition of ``meeting''
recognized that the administrative process cannot be conducted
entirely in the public eye. ``[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.
At the time the Supreme Court handed down the ITT decision, the
Nuclear Regulatory Commission had for almost eight years applied the
Government in the Sunshine Act as though it required every discussion
of agency business to be conducted as a ``meeting.'' Recognizing that
the Supreme Court's guidance indicated that the NRC's interpretation of
``meeting'' had been unduly broad, the NRC's Office of the General
Counsel (OGC) advised the Commissioners in May 1984 that the decision
seemed significant: the decision was unanimous and it was the first
time that the Supreme Court had addressed the Act. OGC suggested that
revisions in the NRC's regulations might be appropriate to bring the
NRC into line with Congressional intent.
Soon after that, in August 1984, the Administrative Conference of
the United States (a body, since abolished, to which the Sunshine Act
assigned a special role in the implementation of the Act by federal
agencies) issued Recommendation 84-3, based upon an extensive study of
the Sunshine Act. The Administrative Conference was troubled by what it
saw as one harmful effect of the Act on the functioning of the multi-
member agencies. Commenting that ``one of the clearest and most
significant results of the Government in the Sunshine Act is to
diminish the collegial character of the agency decision making
process,'' the Administrative Conference recommended that Congress
consider whether the Act should be revised. The Conference observed:
Although the legislative history indicates Congress believed
that, after the initial period of adjustment, Sunshine would not
have a significant inhibiting effect on collegial exchanges,
unfortunately this has not been the case.
If Congress decided that revisions were in order, the Conference
said, it recommended that agency members be permitted to discuss ``the
broad outlines of agency policies and priorities'' in closed meetings.
The Administrative Conference did not address the distinction between
``meetings'' and those discussions that are outside the scope of the
Act.
II. The NRC's 1985 Rule
On May 21, 1985 (50 FR 20889), the Nuclear Regulatory Commission
issued new regulations implementing the Government in the Sunshine Act.
As a legal matter, the NRC could have continued to use the language of
its existing regulations, and reinterpreted them in accordance with the
Supreme Court's decision. However, the NRC decided that in the interest
of openness, it should declare explicitly that its view of the Act's
requirements had changed in light of the Court's ruling.
The revised rule conforms the definition of ``meeting'' in the
Commission's rules to the guidance provided by the Supreme Court by
incorporating the very language of the Court's decision into its
revised definition. Specifically, it provides, at 10 CFR 9.101(c):
Meeting means the deliberations of at least a quorum of
Commissioners where such deliberations determine or result in the
joint conduct or disposition of official Commission business, that
is, where discussions are sufficiently focused on discrete proposals
or issues as to cause or to
[[Page 24938]]
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.
Under the rule, which was adopted as an immediately effective
``interim'' rule (it was characterized as ``interim'' to reflect the
fact that it was being made effective before any comments were received
and addressed), with an opportunity for public comment, briefings were
excluded from the category of ``meetings.'' In the NRC's pre-1985
regulations, by contrast, briefings were treated as meetings, as a
matter of policy.
The NRC's 1985 rule proved controversial. In response to
Congressional criticism, much of it directed at the Commission's
decision to make the rule immediately effective, the Commission assured
the Congress that it would conduct no non-Sunshine Act discussions
until procedures were in place to govern such discussions.
In December 1985, the NRC's Office of the General Counsel forwarded
a final rulemaking paper in which comments on the interim rule were
analyzed and responded to. However, by the time that the Commission was
briefed on the comments, the American Bar Association had announced its
intention to address Sunshine Act issues, including matters directly
related to the NRC's rulemaking. The Commission therefore decided to
withhold action on the matter and to defer actual implementation and
use of the 1985 rule pending receipt of the ABA's views.
III. The American Bar Association Acts
In the fall of 1985, William Murane, Chairman of the Administrative
Law Section of the American Bar Association, announced that the Council
of the Administrative Law Section had decided to involve itself in the
controversy over the Sunshine Act and its effect on the collegial
character of agency decision making. Administrative Law Review, Fall
1985, Vol. 37, No. 4, at p. v. The Task Force established by the
Administrative Law Section ultimately focused on a single issue: the
definition of ``meeting'' under the Sunshine Act. Its report and
recommendations were accepted by the Administrative Law Section in
April 1986 and by the full American Bar Association in February 1987.
The ABA's recommendation and report confirmed that the Commission's
reading of the Sunshine Act, as interpreted by the Supreme Court in the
ITT decision, was legally correct. Moreover, the legal standard set
forth in the ABA recommendation incorporated the identical language
from the Supreme Court opinion which the NRC had included in its 1985
rule: i.e., the provision stating that for a discussion to be exempt
from the definition of ``meeting,'' it must be ``[not] sufficiently
focused on discrete proposals or issues as to cause or be likely to
cause the individual participating [agency] members to form reasonably
firm positions regarding matters pending or likely to arise before the
agency.'' Subject to that qualification, the ABA guidelines provide
that the definition of ``meeting'' does not include:
(a) Spontaneous casual discussions among agency members of a
subject of common interest; (b) Briefings of agency members by staff
or outsiders. A key element would be that the agency members be
primarily receptors of information or views and only incidentally
exchange views with one another; (c) General discussions of subjects
which are relevant to an agency's responsibilities but which do not
pose specific problems for agency resolution; and (d) Exploratory
discussions, so long as they are preliminary in nature, there are no
pending proposals for agency action, and the merits of any proposed
agency action would be open to full consideration at a later time.
1
\1\ A fuller description of the types of discussions fitting in
these four categories may be found at pages 9 to 11 of the ABA
report.
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The ABA report disposed of the suggestion, advanced by some critics
of the NRC's interim rule, ``that the Supreme Court's opinion should be
limited to the facts before the Court.'' While it recognized that the
case could have been decided on fact-specific grounds, the report
observed that:
[I]t cannot be assumed that the Supreme Court got carried away
or that it was unaware that the definition of ``meeting'' was
controversial and ``one of the most troublesome problems in
interpreting the Sunshine Act.'' [Interpretive Guide 3.] We
concluded therefore, that the Supreme Court meant what it said in
ITT World Communications, and that it intended to provide guidance
to agencies and the courts in applying the definition of
``meeting.'' Report at 7.
The ABA report also rejected the argument that because of the
``difficulty of specifying in advance those characteristics of a
particular discussion which will cause it to fall short of becoming a
meeting,'' the Supreme Court's view of the Act should not become part
of agency practice. [Emphasis in the original.] The logic of this
argument, said the ABA report, would permit no discussion whatever of
agency business except in ``meetings,'' a result which ``seems clearly
to us not to have been intended by Congress.'' Report at 8. The report
noted that this argument in essence was a claim that agencies should
apply a different standard from the one specified by Congress for
distinguishing ``meetings'' from discussions that are not ``meetings.''
The ABA explained:
* * * Congress can hardly have gone to such pains to articulate
a narrower standard had it not expected the agencies to use the
leeway such a standard provides, and if they are to do so, they must
attempt to set out in advance, whether by regulation or internal
guidelines, the elements or characteristics of a discussion which
will cause it to fall short of being a meeting. Report at 8, fn. 9.
The ABA report's conclusion was a measured endorsement of the value
of non-Sunshine Act discussions. After stressing that its purpose was
not to urge agencies to close discussions now held in open session, the
report made clear that its focus, rather, was on the discussions which,
because of the Sunshine Act, are never initiated in the first place. It
said:
But the fact is that the Sunshine Act has had an inhibiting
effect on the initiation of discussions among agency members. This
is the conclusion of the Welborn report [to the Administrative
Conference], and it is confirmed by our meeting with agency general
counsels * * * [T]he Act has made difficult if not impossible the
maintenance of close day-to-day working relationships in [five-
member and three-member] agencies. * * * We believe that a sensible
and sensitive application of the principles announced in the ITT
case can ease the somewhat stilted relationships that exist in some
agencies. Report at 11-12. [Emphasis in the original.]
The ABA report made clear that it did not regard the opportunity
for non-Sunshine Act discussions as a panacea for the Sunshine-caused
loss of collegiality which the Administrative Conference had
identified, and which the ABA's own inquiry had confirmed. The Report
concluded that the impact of loosened restrictions was likely to be
``slight,'' though it saw ``some tendency to increase collegiality * *
* to the extent that it would contribute to more normal interpersonal
relationships among agency members.'' Report at 12. The Report also
observed that collegiality is most important in group decision-making
sessions, where the Act's ``meeting'' requirements clearly apply.
The ABA report recommended that agencies follow procedures for the
monitoring and memorialization of non-Sunshine Act discussions to give
assurance to the public that they are staying within the law. The ABA
made clear that this was a policy recommendation, not a matter of legal
obligation. (The report noted at one
[[Page 24939]]
point that if a discussion ``is not a `meeting,' no announcement or
procedures are required because the Act has no application.'' Report at
6.) The ABA recommended that General Counsels brief agency members in
advance on the requirements of the law, to assure their familiarity
with the restrictions on non-Sunshine Act discussions, and that non-
Sunshine Act discussions (other than ``spontaneous casual discussions
of a subject of common interest'') be monitored, either by the General
Counsel or other agency representatives, and memorialized through
notes, minutes, or recordings.
IV. Further Developments
On August 5, 1987, an amendment was offered to the NRC
authorization bill to bar the Commission from using any funds in fiscal
year 1988 or 1989 ``to hold any Nuclear Regulatory Commission meeting
in accordance with the interim [Sunshine Act] rule [published in] the
Federal Register on May 21, 1985.'' 133 Cong. Rec. H7178 (Aug. 5.
1987).2 As Chairman Philip Sharp of the Subcommittee on
Energy and Power of the House Committee on Energy and Commerce
explained, the amendment ``simply neutralizes a rule change.'' The
amendment, passed by a voice vote, was not passed by the Senate and
thus was not enacted into law.
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\2\ The text of the amendment and the colloquy surrounding its
adoption by the House of Representatives are also reprinted in full
in SECY-88-25.
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The Commission took no further action regarding the Sunshine Act
after 1985, and the issue was allowed to become dormant. While the
``interim'' rule of 1985 has remained in effect and on the books, at 10
Code of Federal Regulations, Part 9, the Commission has continued to
apply its pre-1985 rules. Accordingly, all discussions of business by
three or more Commissioners have continued to be treated as
``meetings,'' whether formal or informal, deliberative or
informational, decision-oriented or preliminary, planned or
spontaneous. No non-Sunshine Act discussions of any kind have been
held. In the meantime, some other agencies adopted and implemented
rules that permit informal discussions that clarify issues and expose
varying views but do not effectively predetermine official actions,
discussions of the sort that the Court's ITT decision said are a
``necessary part of an agency's work.'' 466 U.S. at 469-70. See, for
example, the Occupational Safety and Health Review Commission's (OSHRC)
and Defense Nuclear Facility Safety Board's (DNFSB) definitions of
``meeting'', at 29 CFR 2203.2(d) (50 FR 51679; 1985) and 10 CFR
1704.2(d)(5) (56 FR 9609; 1991), respectively.
In February 1995, Commissioner Steven M.H. Wallman of the
Securities and Exchange Commission, joined by twelve other
Commissioners or former Commissioners of four independent regulatory
agencies (the Securities and Exchange Commission, Federal
Communications Commission, Commodity Futures Trading Commission,
Federal Trade Commission), wrote to the Administrative Conference of
the United States to urge a reevaluation of the Sunshine Act. The group
expressed strong support for the Act's objective of ensuring greater
public access to agency decision-making, but questioned whether the
Act, as currently structured and interpreted, was achieving those
goals. The group said that the Act has a ``chilling effect on the
willingness and ability of agency members to engage in an open and
creative discussion of issues.'' It continued:
In almost all cases, agency members operating under the Act come
to a conclusion about a matter * * * without the benefit of any
collective deliberations. [Footnote omitted.] This is directly in
conflict with the free exchange of views that we believe is
necessary to enable an agency member to fulfill adequately his or
her delegated duties, and to be held accountable for his or her
actions.
We are also of the view that the Act is at odds with the
underlying principles of multi-headed agencies. These agencies were
created to provide a number of benefits, including collegial
decision making where the collective thought process of a number of
tenured, independent appointees would be better than one.
Unfortunately, the Act often turns that goal on its head, resulting
in greater miscommunication and poorer decision making by
precluding, as a matter of fact, the members from engaging in
decision making in a collegial way. As a result, the Act
inadvertently transforms multi-headed agencies into bodies headed by
a number of individually acting members. [Footnote omitted.]
The group identified as one problem the issue confronted by the
NRC's 1985 rulemaking: that ``many agencies'' avoided the problem of
distinguishing between ``preliminary conversations, which are outside
of the Act, and deliberations, which trigger the Act,'' by a blanket
prohibition, as a matter of general policy, against any conversation
among a quorum of agency members, except in ``meetings'' under the
Sunshine Act. While such bright-line policies were easy to apply and
effective, the letter said, they were often over-inclusive, barring
discussion of even the most preliminary views and often impeding the
process of agency decision-making.
The Administrative Conference, then soon to be abolished, took up
the group's challenge, assembled a special committee to study the
Sunshine Act, and convened a meeting in September, 1995, to discuss the
Act, its problems, and possible remedies. The Conference appeared to be
looking for some compromise, acceptable both to the Federal agencies
and to representatives of the media, that would acknowledge the Act's
impairment of the collegial process and try to remedy that by giving
greater flexibility to agencies in applying the Act. No consensus
developed, however. The Administrative Conference, apparently
recognizing that there would be no meeting of the minds between critics
and defenders of the Sunshine Act, did not pursue its efforts to find
common ground.
V. Conclusions
The Commission has taken into account information from a number of
quarters, as well as its own experience in implementing the Sunshine
Act. It has considered, among other things, the language of the statute
and its legislative history; the Supreme Court's decision in the ITT
case; Recommendation 84-3 of the Administrative Conference of the
United States; the findings of the American Bar Association; actual
practice at other federal agencies, including the DNFSB and OSHRC; and
the advice letter from numerous Commissioners and former Commissioners
of four other independent regulatory agencies.
Based on all of these, the Commission believes that while the
Sunshine Act's objectives, which include increasing agency openness and
fostering public understanding of how the multi-member agencies do
business, are laudable, it is important to recognize exactly what it
was that Congress legislated. The legislative history, as the Supreme
Court explained, shows that Congress carefully weighed the competing
considerations involved: the public's right of access to significant
information, on the one hand, and the agencies' need to be able to
function in an efficient and collegial manner on the other. Congress
struck a balance: it did not legislate openness to the maximum extent
possible, nor did it provide unfettered discretion to agencies to offer
only as much public access as they might choose. Rather, it crafted a
system in which the Sunshine Act would apply only to ``meetings,'' a
term carefully defined to exclude preliminary, informal, and
informational discussions, and then provided a series of exemptions to
permit closure of certain
[[Page 24940]]
categories of ``meetings.'' Unfortunately, in part because of advice
from the Justice Department in 1977 that later proved to be erroneous,
the Commission's original Sunshine Act regulations did not give due
recognition to the balance contemplated by Congress. Rather, the
regulations mistakenly took the approach that every discussion among
three or more Commissioners, no matter how far removed from being
``discussions that effectively predetermine official actions,'' in the
Supreme Court's words, should be considered a ``meeting.'' 466 U.S. at
471.
At the time that the Commission changed its Sunshine Act rules in
1985, many of its critics appeared to believe that if the rule change
were implemented, numerous discussions currently held in public session
would instead be held behind closed doors. This was a misapprehension.
Indeed, if there is one point that needs to be emphasized above any
other, it is that the objective of the 1985 rule is not that
discussions heretofore held in public session should become non-
Sunshine Act discussions; rather, the focus of the 1985 rule is on the
discussions that currently do not take place at all. This was also the
focus of the American Bar Association and the authors of the 1995
letter to the Administrative Conference.
The Commission believes that non-Sunshine Act discussions can
benefit the agency and thereby benefit the public which the NRC serves.
This view did not originate with the Commission by any means. On the
contrary, as described above, the starting point of the Commission's
analysis is Congress's recognition that `` `informal background
discussions [that] clarify issues and expose varying views' are a
necessary part of an agency's work,'' and that to apply the Act's
requirements to them would, in the words of the Supreme Court, ``impair
normal agency operations without achieving significant public
benefit.'' 466 U.S. 463, 469.
For convenience, the currently effective (but not implemented) 1985
rule is included in this notice and the Commission is providing 30 days
for public comment on its stated intent to implement the 1985 rule. No
non-Sunshine Act discussions will be held during the period for public
comment and for a 21-day period following close of the comment period
to allow the Commission to consider the public comments. Absent further
action by the Commission, non-Sunshine Act discussions may be held
commencing 21 days after the close of the comment period.
From previous comments, the following are possible questions about
the 1985 rule, and the Commission's responses to those questions.
1. What types of discussions does the Commission have in mind, and
what does it seek to accomplish with this rule?
Answer: First and foremost, the Commission would like to be able to
get together as a body with no fixed agenda other than to ask such
questions as: ``How is the Commission functioning as an agency? How has
it performed over the past year? What have been its major successes and
failures? What do we see coming in the next year? In the next five
years, and ten years? How well are our components serving us? Are we
getting our message to the industry we regulate and to the public? Are
we working effectively with the Congress?'' This kind of ``big
picture'' discussion can be invaluable. One of the regrettable effects
of the Sunshine Act, as documented as long ago as 1984, in
Administrative Conference Recommendation 84-3, has been the loss of
collective responsibility at the agencies, and the shift of authority
from Presidentially appointed and accountable agency members to the
agencies' staffs. The Commission believes that ``big picture''
discussions served a valuable function in pre-Sunshine Act days at NRC
and can do so again, helping to assure that the Commissioners serve the
public with maximum effectiveness and accountability.
The Commission believes that some kinds of general, exploratory
discussions can be useful in generating ideas. Such ideas, if developed
into more specific proposals, will become the subject of subsequent
``meetings.'' The Commission recognizes that it would be incumbent on
the participants in such non-Sunshine Act discussions to assure that
they remain preliminary and do not effectively predetermine final
agency action. The Commission believes that the guidelines proposed by
the American Bar Association are the most suitable criteria for
assuring compliance with the Act's requirements.
The Commission also believes that spontaneous casual discussions of
matters of mutual interest--for example, a recent news story relating
to nuclear regulation--can be beneficial, helping both to ensure that
Commissioners are informed of matters relevant to their duties and to
promote sound working relationships among Commissioners.
2. Is it really clear that the law permits non-Sunshine Act
discussions?
Answer: Yes, beyond any reasonable doubt. Congress so provided, a
unanimous Supreme Court has so found, the American Bar Association Task
Force on the Sunshine Act agreed, the Council of the Administrative Law
Section of the American Bar Association adopted the Task Force's views,
and the ABA's full House of Delegates accepted the Administrative Law
Section's report and recommendation.
3. Didn't the ITT case involve a trip to Europe by less than a
quorum of FCC members, and couldn't the case be viewed as relating to
those specific facts?
Answer: The case was resolved on two separate grounds. Although the
Supreme Court did not have to reach the issue of what constitutes a
``meeting'' under the Sunshine Act, it did so, in order (so the ABA
report concluded) to provide guidance to agencies and the courts on a
difficult aspect of Sunshine Act law. In addressing the ambiguity in
the definition of ``meeting'' and thus the uncertainty as to the Act's
scope, the Supreme Court was acting to resolve a problem that had been
apparent literally from the day of its enactment into law, as President
Ford's statement in signing the bill, on September 13, 1976, makes
clear. He wrote:
I wholeheartedly support the objective of government in the
sunshine. I am concerned, however, that in a few instances
unnecessarily ambiguous and perhaps harmful provisions were included
in S.5. * * * The ambiguous definition of the meetings covered by
this act, the unnecessary rigidity of the act's procedures, and the
potentially burdensome requirement for the maintenance of
transcripts are provisions which may require modification.
Government in the Sunshine Act--S.5 (P.L. 94-409), Source Book:
Legislative History, Text, and Other Documents (1976), at 832.
4. On the meaning of ``meeting'' as used in the Sunshine Act,
aren't the views of Congressional sponsors of the legislation entitled
to consideration?
Answer: Yes, when they appear in the pre-enactment legislative
history. In the present case, for example, the Supreme Court cited the
remarks of the House sponsor of the Sunshine Act, Representative Dante
Fascell, who introduced the report of the Conference Committee to the
House. He explained to his colleagues that the conferees had narrowed
the Senate's definition of ``meeting'' in order ``to permit casual
discussions between agency members that might invoke the bill's
requirements'' under the Senate's approach. 122 Cong. Rec. 28474
(1976), cited at 466 U.S. 463, 470 n.7. Likewise, Senator Chiles, the
Senate sponsor of the bill, described the definition of ``meeting'' in
the final bill as a ``compromise version.'' 122 Cong. Rec. S15043 (Aug.
31, 1976), reprinted in
[[Page 24941]]
Government in the Sunshine Act Source Book. In any case, however, once
the Supreme Court has declared what the law requires, federal agencies
are bound to follow its guidance.
5. Is there any basis in the legislative history for the notion
that non-Sunshine Act discussions are not only permissible, but useful?
Answer: Yes. The point was made forcefully by Professor Jerre
Williams (subsequently a judge on the Fifth Circuit Court of Appeals),
presenting the views of the American Bar Association. He testified, in
Congressional hearings on the bill:
One of the most critical facets of the American Bar Association
view has to do with the definition of ``meeting.'' The ABA firmly
agrees that policy must not be determined by informal closed-door
caucuses in advance of open meetings. On the other hand, however,
the ABA believes it important that ``chance encounters and
informational or exploratory discussions'' by agency members should
not constitute meetings unless such discussions are ``relatively
formal'' and ``predetermine'' agency action.
It should be a matter of concern to all those interested in good
government that agency members be allowed to engage in informal work
sessions at which they may ``brainstorm'' and discuss various
innovative proposals without public evaluation or censorship of
their search for new and creative solutions in important policy
areas.
All persons who have engaged in policymaking have participated
in such informal sessions. Sometimes outlandish suggestions are
advanced, hopefully humorous suggestions abound. But out of all this
may come a new, creative, important idea. There is time enough to
expose that idea to public scrutiny once it has been adequately
evaluated as a viable alternative which ought to be seriously
considered. [Emphasis added.] Hearings Before a Subcommittee of the
Committee on Government Operations, House of Representatives, 94th
Cong., First Session (Nov. 6 and 12, 1975), at 114-15.
6. Why is the NRC paying so much attention to the ITT case and
ignoring the Philadelphia Newspapers case which dealt specifically with
NRC?
Answer: First of all, the ITT case dealt with the issue of what is
a ``meeting,'' whereas Philadelphia Newspapers, Inc. v. NRC, 727 F.2d
1195 (D.C. Cir. 1984). dealt with an unrelated issue: whether a
particular ``meeting'' could be closed under the Sunshine Act.
Secondly, the ITT case was decided by the Supreme Court, and as such
would be entitled to greater weight than the decision of one panel of a
Court of Appeals, even if they were on the same issue. Thirdly, the
full D.C. Circuit, sitting en banc, has severely criticized the
Philadelphia Newspapers decision for digressing from Congressional
intent and thereby reaching an ``untoward result.'' Clark-Cowlitz Joint
Operating Agency v. FERC, 798 F.2d 499, 503 n.5 (D.C. Cir. 1984).
7. If it is so clear that non-Sunshine Act discussions are
permissible, why did the NRC interpret the Act differently for so many
years?
Answer: In part, the answer lies in the fact that the Justice
Department, in the years 1977 to 1981, took an expansive view of the
definition of ``meeting.'' (See the letter from Assistant Attorney
General Barbara A. Babcock reprinted in the Interpretive Guide at p.
120.) In contrast, Berg and Klitzman, the authors of the Interpretive
Guide, believed that Congress had consciously narrowed the definition.
(See the Interpretive Guide at 6-7.) Because the Justice Department
defends Sunshine Act suits in the courts, its view of the law's
requirements carried considerable weight. The Supreme Court's decision
in the ITT case resolved the issue definitively.
8. Didn't the NRC acknowledge in its 1977 rulemaking that it was
going beyond the law's requirements in the interest of the Act's
``presumption in favor of opening agency business to public
observation''? Why isn't that rationale still applicable today?
Answer: There are at least three factors today that were not
present in 1977: (1) the Supreme Court's ITT decision, which makes
clear that Congress gave the agencies authority to hold such
discussions because it thought they were an important part of doing the
public's business; (2) the Administrative Conference recommendation
stating that the Sunshine Act has had a much more deleterious effect on
the collegial nature of agency decision making than had been foreseen;
and (3) the American Bar Association report stating that Congress gave
the agencies the latitude to hold non-Sunshine Act discussions in the
expectation they would use it, and suggesting that the use of such
discussions might help alleviate some of the problems caused by the
Sunshine Act. Moreover, the Commission has had the benefit of its own
and other agencies' experience under the Act. It should be emphasized
that the Commission, by implementing this rule, is not implicitly or
explicitly urging that the Sunshine Act be altered; rather, it is
saying that the Sunshine Act should not be applied even more
restrictively than Congress intended when it enacted the statute.
9. Why does the NRC put such reliance on the ABA report, when the
ABA made a point of saying that it was not urging the closing of any
meetings now open?
Answer: The question misses the point of the ABA comment. In the
context in which the comment appears in the ABA report, it is clear
that the ABA was expressing its concern for the discussions that
currently do not happen at all, either in open or in closed session,
because the Sunshine Act inhibits the initiation of discussions. Its
point was similar to that made by Professor Williams in the hearings on
the bill in 1975, when he urged that agency members not be deprived of
the opportunity to generate ideas in ``brainstorming sessions''--ideas
which may subsequently be the subject of ``meetings'' if they turn out
to warrant formal consideration. As we have emphasized above, the
Commission is not proposing to close any meetings currently held as
open public meetings.
10. How does the Commission intend to differentiate between
``meetings'' and ``non-Sunshine Act discussions'?
Answer: The Commission intends to abide by the guidance provided by
the Court in FCC v. ITT World Communications and contained in our
regulations, in differentiating between ``meetings'' and non-Sunshine
Act discussions. Applying this guidance, the Commission may consider
conducting a non-Sunshine Act discussion when the discussion will be
casual, general, informational, or preliminary, so long as the
discussion will not effectively predetermine final agency action.
Whenever the Commission anticipates that a discussion seems likely to
be ``sufficiently focused on discreet proposals or issues as to cause
the individual participating members to form reasonably firm positions
regarding matters pending or likely to arise before the agency,'' the
Commission will treat those discussions as ``meetings.'' See id. at
471.
Further, to ensure that we appropriately implement the Supreme
Court guidance in differentiating between non-Sunshine Act discussions
and meetings, the Commission will consider the ABA's remarks on the
seriousness of this task. For instance, the ABA cautioned that a non-
Sunshine Act discussion ``does not pose specific problems for agency
resolution'' and agency ``members are not deliberating in the sense of
confronting and weighing choices.'' Report at 9-11.
Some specific examples of the kinds of topics that might be the
subject of non-Sunshine Act discussions would include generalized ``big
picture'' discussions on such matters as the following: ``How well is
the agency functioning, what are our successes and
[[Page 24942]]
failures, what do we see as major challenges in the next five and ten
years, what is the state of our relations with the public, industry,
Congress, the press?'
Preliminary, exploratory discussions that generate ideas might
include, for example, ``Is there more that we could be doing through
the Internet to inform the public and receive public input? How does
our use of the Internet compare with what other agencies are doing?''
Such ideas, if followed up with specific proposals, would become the
subject of later ``meetings'' within the meaning of the Sunshine Act.
Spontaneous, casual discussions of matters of mutual interest could
include discussions of a recent news story relating to NRC-licensed
activities, or a Commissioner's insights and personal impressions from
a visit to a licensed facility or other travel. Under this heading,
three Commissioners would be permitted to have a cup of coffee together
and to talk informally about matters that include business-related
topics. Under the Commission's pre-1985 rule, such informal get-
togethers were precluded.
Briefings in which Commissioners are provided information but do
not themselves deliberate on any proposal for action could include
routine status updates from the staff.
Discussions of business-related matters not linked to any
particular proposal for Commission action might include an upcoming
Congressional oversight hearing or a planned all-hands meeting for
employees.
11. Apart from the issue of the definition of ``meeting,'' are
there other changes that the interested public should be aware of?
Answer: Yes, one minor procedural point. The 1985 rule includes a
provision stating that transcripts of closed Commission meetings will
be reviewed for releasability only when there is a request from a
member of the public for the transcript. Reviewing transcripts for
releasability when no one is interested in reading them would be a
waste of agency resources and thus of the public's money.
12. Will the Commission adopt any particular internal procedures
for its non-Sunshine Act discussions?
Answer: For an initial 6-month period of non-Sunshine Act
discussions, the Commission will maintain a record of the date and
subject of, and participants in, any scheduled non-Sunshine Act
discussions that three or more Commissioners attend. After the six-
month period, the Commission will revisit the usefulness of the record-
keeping practice.
List of Subjects in 10 CFR Part 9
Criminal penalties, Freedom of information, Privacy, Reporting and
recordkeeping requirements, Sunshine Act.
The May 21, 1985 (50 FR 20863), rule is currently effective but has
never been implemented. For the convenience of the reader, the
Commission is republishing the text of that rule.
PART 9--PUBLIC RECORDS
1. The authority citation for part 9 continues to read as follows:
Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
Subpart A is also issued 5 U.S.C. ; 31 U.S.C 9701; Pub. L. 99-
570. Subpart B is also issued under 5 U.S.C. 552a. Subpart C is also
issued under 5 U.S.C. 552b.
2. In Sec. 9.101, paragraph (c) is republished for the convenience
of the reader as follows:
Sec. 9.101 Definitions.
* * * * *
(c) Meeting means the deliberations of at least a quorum of
Commissioners where such deliberations determine or result in the joint
conduct or disposition of official Commission business, that is, where
discussions are sufficiently focused on discrete proposals or issues as
to cause or to be likely to cause the individual participating members
to form reasonably firm positions regarding matters pending or likely
to arise before the agency. Deliberations required or permitted by
Secs. 9.105, 9.106, or 9.108(c), do not constitute ``meetings'' within
this definition.
* * * * *
3. In Sec. 9.108, paragraph (c) is republished for the convenience
of the reader as follows:
Sec. 9.108 Certification, transcripts, recordings and minutes
* * * * *
(c) In the case of any meeting closed pursuant to Sec. 9.104, the
Secretary of the Commission, upon the advice of the General Counsel and
after consultation with the Commission, shall determine which, if any,
portions of the electronic recording, transcript or minutes and which,
if any, items of information withheld pursuant to Sec. 9.105(c) contain
information which should be withheld pursuant to Sec. 9.104, in the
event that a request for the recording, transcript, or minutes is
received within the period during which the recording, transcript, or
minutes must be retained, under paragraph (b) of this section.
* * * * *
Dated at Rockville, Maryland, this 4th day of May, 1999.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-11669 Filed 5-7-99; 8:45 am]
BILLING CODE 7590-01-P
