Seabrook decision. The Commission will want to move on that and move rapidly. There are some hundreds of millions of dollars sitting idle. There are 4,000 construction workers sitting around wondering where a paycheck will come from. The Commission will certainly have a short-notice meeting on Seabrook, I hope, although, as I say, I don't sit on it and I am simply encouraging my colleagues to act expeditiously. There simply are urgent things that come along that require us to put our heads together. We get a letter from Congress, for instance, and if we would put our heads together, we could see what direction we would work on the answer, what direction we will go, and so on, petitions occasionally from people that require urgent action. I try to keep these things to a minimum and deliberately try not to schedule short-notice meetings, but I think there is always going to be an irreducible number of these things coming through.

USE OF CAMERAS AND RECORDING DEVICES

Senator CHILES. Well, I hope you will continue your efforts in that regard.

The Justice Department has urged all the agencies to permit the use of cameras and tape recordings in open meetings. You permit the use of tape recordings but not cameras absent the advance written approval. Do you really think requiring advance written approval serves any significant purpose? It seems like other agencies have permitted cameras with no disruption of agency proceedings, and I note that you have allowed the use of cameras in your Licensing and Appeal Boards. Have you had any bad experiences with that?

Mr. HENDRIE. So far the experience is good. We have put in some provisions in connection with that trial policy that I think are helpful. One of them is, what we have in mind, primarily, are television cameras and movie cameras that would film proceedings, and we have said that they have to operate on existing light to avoid the floodlit hearing room problem and its high temperature and this sort of atmosphere, and also the camera has to occup a fixed location so you don't have cameramen wandering around the room.

I think a chief concern in initiating that policy was for our Boardsand wouldn't apply to the Commission-for our Boards was that we might lose the use of Federal courtrooms as our Boards go out of town and have to find places to meet. A number of Federal chief judges in the district take a dim view of cameras in their courtrooms and won't let the cameramen in if we are using a courtroom, and we didn't want to be shut out of using those Federal facilities because they are very useful for our hearings, but we haven't had any negative results that I have heard, and I think in due time we will probably adopt that policy.

At the moment we are simply observing how it comes out with the Licensing Board.

PUBLIC INTEREST

Senator CHILES. Well, I hope you would look at that. I really don't see anything to be gained if it is an open meeting by requiring written notice or a written request.

In your annual reports you describe how the Nuclear Regulatory Commission employes the public interest criteria. You draw the con

clusion that providing exemptions Congress—and I am quoting now— "recognized the public interest in closing and not opening the meetings falling under an exemption." I don't think this conclusion is correctly drawn.

We acknowledge that there may be instances where a discussion of some specific sensitive matter should be conducted in a closed meeting, but I don't think Congress ever intended that as a rule meetings with an exemption should be closed. We merely wanted to allow for the closure if it were absolutely necessary.

In what form does the staff submit to you its recommendations concerning the public interest? Is there always a discussion among the Commissioners themselves of the public interest consideration? In other words, where an exemption will lie, how do you determine if the public interest consideration outweighs that exemption? What kind of discussion is that? Does the staff make that decision?

Mr. HENDRIE. The Commission votes to close all of the meetings, and the Secretary, when we have a Commission agenda session to look ahead and take whatever votes to close that may be necessary, the Secretary will point out the nature of a given item for which closing might be considered, on classified matters or personnel privacy. As Chairman, I am generally pretty well informed on what the Commission is going to hear in the next week or so, at least if we can schedule ahead of time, and the recommendations are then made to the Commission. If it is judged as appropriate, it may be closed and there may be some discussion, depending on the item-at times the Commissioner will be familiar with the item and the background-it generally isn't an extended discussion.

Senator CHILES. Another thing that troubles me about your regulations is that they state that "Except where the Commission finds that the public interest requires otherwise, the Commission meeting shall be closed, where the Commission finds that the meeting falls within one of the exemptions." The Sunshine Act itself does not require that you close any meetings. It allows for closure under certain restricted

cases.

This regulation appears to me to detract from the presumption of openness contained in the act. I hoped your regulation would be more positive than this. It seems to me you could revise this to merely allow for the closure and not mandate it. The way that the regulation now reads the Commission's meetings shall be closed unless you make a positive finding that the public interest demands otherwise. I think the act itself says you may close the meeting for one of these exemptions, but even with one of these exemptions you must determine that there is not an overwhelming public interest. Your regulations appear to reverse that and say they shall be closed where one of the exemptions lies, unless you find an overriding public interest to the contrary. It is all in the emphasis, maybe, but what we are dealing with is the emphasis, and I think Congress is trying to say that the Government policy of this country now is that we want meetings to be open unless there is an overriding reason to close them.

Mr. HENDRIE. I have been joined by Steve Ostrach who will assist me in answering that. I am glad he is here so he can have this point called to his attention.

Do you want to make a comment on the point, Steve?

35-867 -79-22

Mr. OSTRACH. Briefly, I believe the language that the Commission has in section 104 of the regulations is basically a repeat of the language that is contained in section C of the Sunshine Act, 552 b (C). In the Commission meetings at which these regulations were discussed, there was no intent to vary the language whatsoever when that material was presented to the Commission. It was intended to be virtually a rehashing of the statutory language.

Mr. HENDRIE. Let me comment. Since I don't regard myself as much of an expert scanner of legal language, we will take your comment well in mind, Senator, and have the counsel examine it.

Senator CHILES. We thank you very much for your appearance here and for your actions under sunshine.

Mr. HENDRIE. Thank you, Senator.

[The prepared statement of Mr. Hendrie follows:]

TESTIMONY OF CHAIRMAN JOSEPH M. HENDRIE

Mr. Chairman and members of the Subcommittee, I am Joseph M. Hendrie, Chairman of the Nuclear Regulatory Commission and with me are several members of the Commission staff. I would like to begin by thanking you for the opportunity to discuss my views and experiences on the administration of the Government in the Sunshine Act. In some measure my discussion will draw upon the Annual Report on the Administration of the Sunshine Act that the Commission recently issued and I would like to submit a copy of that report to be included in the record as part of my remarks.

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 assuring the protection of the public health and safety through the licensing and regulation of the civilian use of nuclear materials. In keeping with our significant public health responsibilities, this Commission has emphasized the participation of each Commissioner in all of its decisionmaking activities. We are possibly unique among agencies in that at the present time our organic statute permits us to take substantive actions only through formal meetings of the Commission and not by notation voting, although legislation to permit limited use of notation voting by unanimous consent is now pending in Congress. H.R. 12928. Therefore, our meetings are generally scheduled at times when all Commissioners can be present so that each may participate in the contribute to the deliberations.

My fellow Commissioners and I fully support the purposes of the Sunshine Act. The subject matter of the issues that we deal with is of considerable and legitimate interest to many segments of the public and each of us feels a continuing responsibility to inform the public about the questions before us and about the reasons for our decisions. Open Sunshine meetings help us meet that responsibility. An ever increasing portion of our meetings have been open-for example, over 70 percent of our meetings in our last three-month recording period were open to the public. Furthermore, in a variety of ways the Commission has voluntarily chosen to go beyond the literal requirements of the Act and to adopt policies that advance the purposes of the Act by providing maximum information to the public consistent with the administration of the Commission's business. In December of last year we began to keep and make publicly available transcripts of our open meetings so that members of the public who could not attend the meeting would be able to keep informed.

Several months ago we began routinely providing public attendees with copies of the staff paper which is the principal subject of discussion at each of our open meetings. We are doing this so that our meetings will be understandable by the general public and not by just a specialized group of insiders. Furthermore, we have amended our regulations to permit attendees to tape record open meetings, and we are permitting on a trial basis, and under certain conditions, radio and television coverage of hearings held by our Atomic Safety Licensing and Licensing Appeal Boards. Finally, in several recent cases of general interest we have let the public attend adjudicatory sessions that clearly could have been closed under exemption 10.

Of course the essential measure of the Commission's administration of the Act lies in our conduct of the Act's open meeting provision. The key element in our administration has been our regulations, attached as Appendix D of the Annual Report. The regulations were designed to do more than simply repeat the statutory language. We picked up the suggestion in the legislative history of the Act that the regulations be used to adapt the general language of the Sunshine Act to the specific categories of business that come before each agency. For example our regulation based on exemption 5 of the Act not only lists the statutory provisions involving accusations of crimes or formal censures, but also mentions two specific Commission functions that we feel come within the legislative intent-imposition of civil monetary penalties and license revocation proceedings. We believe that each agency covered by the Sunshine Act is obligated to examine the general categories of business it conducts and, to the extent practical, make clear in its Sunshine regulations how meetings involving those categories will be treated for Sunshine purposes.

In practice we have found the language of the Sunshine Act to be reasonably workable. The Act sets out sufficiently clear guidelines so that the path of proper compliance is well marked, but the drafters of the Act also built in sufficient flexibility so that 50 agencies with a wide variety of missions and procedures would not be forced into a Procrustean bed of conformity. The best example of this flexibility is the definition of "meeting" in section (a) (2) of the Act. The inclusive intent of the provision is clear and not so narrowly defined as to give a loop-hole hunter much chance of success. But that language is not so overbroad as to force every agency to publish a Federal Register notice about its annual Christmas party.

Of course, as with any statute, experience continually gives rise to a number of questions of interpretations. I discussed two such minor problems that have surfaced in the Commission's experience under the Act in my April 12 letter to you and I shall only mention them here. One problem which arises in some meetings closed under exemption 1 is caused by the creation of a transcript containing extremely sensitive classified information-information so sensitive that it would not be written down in any form were it not for the transcript requirement. Adding exemption 1 meetings to the class of meetings for which subsection (f) (1) of the Act permits minutes to be used in lieu of transcripts would solve the problem. The other area of potential concern involves Commission meetings with members of Congress. These meetings might have to be held outside the Commission's control and therefore we might be unable to ensure we are in compliance with the Act.

Another minor problem which I have not previously mentioned deals with exemption 2 of the Act. It provides for closure of meetings dealing only with "internal personnel rules and practices." Occasionally matters come before us dealing with reorganization of Commission officers or redistribution of functions among Commission branches. These are normally matters of little, if any, interest to the public. However, it is possible that some employees might be inhibited about discussing agency structural problems at a meeting open to public attendance and open to other employees. This problem would be solved if the exemption were not limited to meetings concerning "personnel" rules and practices, but applied to any agency meeting limited to discussion of internal personnel or organizational rules and practices.

I would also like to mention three minor ambiguities in the Act as examples of the kinds of issues that arise in the course of implementation of the Act. Sunshine transcripts contain minor errors introduced by the transcriber's unfamiliarity with agency jargon or names. We have adopted a policy of permitting any speaker to correct such errors in the transcripts of his statements, but only by marking the transcript so that the raw version can still be read and by initialing each change. We believe this proper under the Act, but we are investigating how other agencies have handled the issue.

Another area that is still not entirely resolved is the treatment of postponed or continued meetings. For example, we normally have a separate vote to hold a "short notice" meeting when a meeting which had been scheduled for Tuesday, and which had been properly noticed more than a week in advance, was rescheduled for Thursday. We believe that in such circumstances short notice votes are not required by the Act, but out of caution, we have continued to take them. We believe that, at least in this area, the best way to implement the Act is to accept the procedural burden of probably unnecessary votes.

Another example of a troubling open question is a minor, but substantive issue that we may someday have to face. Exemption 10 permits an agency to close meetings dealing with its participation in a number of forums including for example, court and international tribunals. One forum not mentioned however is a case of formal adjudication before another agency. Recently the Commission has been involved in a formal proceeding before an administrative law judge of the ICC. Although the issues presented by that case never have been discussed in a Commission meeting, in other cases such participation might be of concern to the Commission. Virtually all of the reasons that underlie exemption 10 also would support closing such a meeting, yet the Act does not specifically provide for such closure. In this case we believe that the proper course is to follow the evident purpose of the Act and not to adopt an overly narrow reading of the exemption.

The Sunshine Act has caused some problems in our handling of day-to-day administrative matters. Few if any of these administrative issues are of an "emergency" nature, so routine use of the short notice provision is section (e) (1) of the Act is inappropriate. However, the questions I have in mind are of a scale such that interposition of a week's delay between the time an issue arises and the time the Commission can deal with it has the practical effect of preventing the Commission from having any significant control over the matter. Fortunately, we believe there is a simple solution to this problem which is fully consistent with the spirit of the Act and which would aid us in carrying out our administrative duties. That solution would be to permit use of meeting announcements stating that a meeting will consider general administrative questions before the Commission. The announcement would be issued at least one week before the meeting and would name the specific administrative items that would definitely be on the agenda. However, it would also provide that other administrative issues that arose during the week might also be discussed. The open/closed status of the meeting would depend upon the specific items discussed, although normally such meetings would be open.

As I said above, the Commission does not now hold the sort of general roundtable discussions about administrative matters that would be the subject of a general announcement. If the Sunshine Act permitted us to, I believe we would. That would assist us in carrying out our administrative and supervisory duties. Furthermore, by giving the public a window on an important aspect of the Commission's work which it does not now have, we would be furthering the principal purposes of the Act.

One not unexpected aspect of Sunshine Act implementation is that we have found that, as we gain experience working under the literal requirements of the Act, we have become more comfortable in doing our work in the open. This in turn has led us increasingly to employ our discretion to open meetings that could have been closed. The statistics given above demonstrate the extent to which we have been doing this.

Thank you for your time this morning. I would be glad to try to answer any questions you might have.

[Subsequent to the hearing the following letter was received:]