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QUESTIONNAIRE SUBMITTED TO REGULATORY BOARDS AND COMMISSIONS BY THE HOUSE FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE 1

1. Does your Board/Commission claim, under any circumstances, the right to withhold facts or information from the committees of Congress having jurisdiction over your agency under the rules of the respective Houses or the Reorganization Act of 1946?

2. If any such claim is made or has been made, describe the circumstances of the claimed right and cite the specific authorities upon which you rely, including statutes, court decisions, legal opinions, and so forth.

3. If the claim is based on statute, is the Congress specifically named as being excluded from having access to information regarding your agency's activities?

4. Please state specifically whether your agency recognizes the right of congressional committees in exercising oversight over your agency's activities to have access to all facts during the entire course of consideration of matters pending before your agency.

5. If the answer to No. 4 is in the negative,

(a) State the specific conditions which would cause the agency to withhold facts or information from Congress.

(b) Cite specifically and in precise detail the statutes, court decisions, legal opinions, et cetera on which the agency relies and relate them specifically to inquiries by congressional committees.

(c) Define in detail "adjudicatory" process if a right to withhold is claimed during such process.

6. Describe in detail the process through which your agency makes decisions regarding the availability of information to congressional committees.

7. Do you or members of your Commission or Board keep detailed records of ex parte contacts formally or informally made during the time you are considering matters pending before your Board or which, in all probability will be pending at an early date? Give details.

8. Do you regard inquiries from the appropriate committees of Congress exercising their responsibility of oversight as constituting "ex parte" contacts?

9. Do you regard your responses concerning access to information by committees of Congress applicable also to individual Members of Congress? If not, please explain.

1 Any attachments or enclosures referred to in the replies are withheld in the subcommittee's files.

(1)

47-145-70

REPLIES FROM REGULATORY BOARDS AND COMMISSIONS TO QUESTIONNAIRE SUBMITTED BY THE FOREIGN OPERATIONS AND GOVERNMENT INFORMATION

SUBCOMMITTEE

U.S. ATOMIC ENERGY COMMISSION

HON. JOHN E. Moss,

WASHINGTON, D.C., January 7, 1970.

Chairman, Foreign Operations and Government Information Subcomittee, Committee on Government Operations, House of Representatives, Washington, D.C.

DEAR MR. Moss: Thank you for your letter of November 6, 1969 regarding policies on the flow of information from regulatory agencies to the Congress.

The situation of the Atomic Energy Commission is special because of section 202 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2252), which provides in part: "The Commission shall keep the Joint Committee [on Atomic Energy] fully and currently informed with respect to all of the Commission's activities."

The Commission and its staff conscientiously endeavor to meet this statutory requirement both in letter and in spirit.

Enclosed is a detailed response to the nine questions presented by your letter, with the answer to each question furnished in accordance with what we understand to be the purposes of your inquiry. We believe that your inquiry is essentially directed toward the regulatory function and have, therefore, framed our response with that in mind. We shall of course be happy to furnish any additional information which may be required.

Cordially,

W. E. JOHNSON,
Acting Chairman.

1. Does your Commission claim, under any circumstances, the right to withhold facts or information from the committees of Congress having jurisdiction over your agency under the rules of the respective Houses or the Reorganization Act of 1946?

Pursuant to the provisions of section 202 of the Atomic Energy Act of 1954, as amended (act) (42 U.S.C. 2252), the Atomic Energy Commission keeps the Joint Committee on Atomic Energy (JCAE) fully and currently informed with respect to all Commission activities. Under this provision of the act, the Commission not only provides the JCAE with requested information but affirmatively keeps the JCAE informed of its activities. Directives to that effect are incorporated in the Commission's internal directive system. Communications to the JCAE are made not only by the Commissioners but by AEC staff members at all appropriate levels.

The Atomic Energy Commission would divulge to the JCAE and to other committees of Congress any information requested concerning rulemaking proceedings and adjudicatory proceedings. Of course, the Commission would not be free to discuss the merits of a pending adjudicatory proceeding. It would be governed by the provisions of 10 CFR section 2.780, "Ex Parte Communications," of the Commission's "Rules of Practice," a copy of which is attached. In the latter regard, its procedures in this respect conform generally to recommendation No. 16 of the Administrative Conference of 19611962. See report of Committee on Internal Organization and Procedure, selected reports of the Administrative Conference of the United States, Senate Document No. 24, 88th Cong., 1st Sess., pp. 165-205, and see pp. 46-49. It would also be guided by rules of law dealing with communications between adjudicatory personnel and others, including members of Congress: Pillsbury Co. v. Federal Trade Commission, 354 F.2d 952 (C.A. 5th, 1966); cf. Amos Treat & Co. v. Securities and Exchange Commission, 306 F.2d 260 (C.A.D.C., 1962); United States v. Morgan, 313 U.S. 409, 422 (1941).

If a request involved information classified as "Restricted Data," as defined in section 11y. of the act (42 U.S.C. 2014(y)), such information could be made available only to persons authorized to have access to that classified information in accordance with the procedures specified in sections 141-146 of the act (42 U.S.C. 2161-2166). Members and staff of the JCAE are cleared by authorized procedures, as well as appropriate members and staff of Appropriations Committees.

There could be other information pertinent to the regulatory activities of the Commission which might be deemed by the President to be subject to executive privilege' in accordance with the President's Memorandum for Heads of Executive Departments and Agencies dated March 24, 1969. In considering whether the procedures in that memorandum should be instituted, and in its recommendations to the President with regard to the invocation of executive privilege, the Commission would be guided by the philosophy of full disclosure stated in that memorandum.

2. If any such claim is made or has been made, describe the circumstances of the claimed right and cite the specific authorities upon which you rely, including statutes, court decisions, legal opinions, et cetera.

The answer to this question is incorporated in the answer to question No. 1. During the past decade, the Atomic Energy Commission is unaware of any difficulties in satisfying requests received from congressional committees for facts or information regarding Commission activities.

3. If the claim is based on statute, is the Congress specifically named as being excluded from having access to information regarding your agency's activities?

The Congress is not specifically named, in any pertinent statute, as being excluded from having access to information regarding the activities of the Atomic Energy Commission.

4. Please state specifically whether your agency recognizes the right of congressional committees in exercising oversight over your agency's activities to have access to all facts during the entire course of consideration of matters pending before your agency.

1 See appendix.

The Atomic Energy Commission recognizes the right of appropriate congressional committees, particularly the JCAE, in exercising oversight over the Commission's activities, to have access to all facts during the entire course of consideration of matters pending before it, subject to the limitations specified in the answer to question No.1. 5. If the answer to Number 4 is in the negative,

(a) State the specific conditions which would cause the agency to withhold facts or information from Congress.

(b) Cite specifically and in precise detail the statutes, court decisions, legal opinions, et cetera on which the agency relies and relate them specifically to inquiries by congressional committees.

(c) Define in detail "adjudicatory" process if a right to withhold is claimed during such process.

Please see the answer to question No. 1.

6. Describe in detail the process through which your agency makes decisions regarding the availability of information to congressional committees.

Any information requested concerning a rulemaking or adjudicatory proceeding, and normally any other information pertinent to the Commission's regulatory functions, would be made available promptly upon request. In the event that a staff member of the Atomic Energy Commission should perceive a possible question with respect to whether requested information should be made available to a congressional committee, the matter would be referred to the Commissioners for a determination as to whether to provide the information or to refer the matter to the Attorney General pursuant to the President's memorandum for heads of executive departments and agencies dated March 24, 1969.

7. Do you or members of your Commission or Board keep detailed records of ex parte contacts formally or informally made during the time you are considering matters pending before your Commission or which, in all probability will be pending at an early date? Give details.

Under 10 Code of Federal Regulations section 2.780 of the Atomic Energy Commission's "Rules of Practice," which apply to the quasijudicial functions of the Commission only after the issuance of a notice of hearing and until final decision by the Commission, records of ex parte contacts formally or informally made are maintained by the Commission in its public document room. In addition, the parties to the proceeding involved and the communicator are served notice of the ex parte contact in accordance with 10 Code of Federal Regulations section 2.780(b).

The Commission has no regulatory requirement dealing with recordkeeping for ex parte contacts made formally or informally with respect to matters pending before the Commission at times prior or subsequent to the time interval covered by 10 Code of Federal Regulations section 2.780.

8. Do you regard inquiries from the appropriate committees of Congress exercising their responsibility of oversight as constituting ex parte contacts?

Communications regarding a matter pending before the Commission would be considered ex parte contacts only to the extent that they concerned a substantive matter at issue in a proceeding and otherwise fell within the provisions of 10 Code of Federal Regulations section 2.780 of the Commission's "Rules of Practice." They would then be dealt with in accordance with the provisions of that rule.

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