Dr. Marcus' Room No. 7

7. The U.S. Nuclear Regulatory Commission:Rules for Commission Appointments (Part I)
Gail H. Marcus, Consultant, USA

Profile (January 2008)
Dr. Gail H. Marcus is presently an independent consultant on nuclear power technology and policy.
She recently completed a three-year term as Deputy Director-General of the OECD Nuclear Energy Agency(NEA) in Paris. In this position, she was responsible for the program of work and budget for the agency.
From 1999 through 2004, Dr. Marcus served as Principal Deputy Director of the Office of Nuclear Energy,Science and Technology. There she provided technical leadership for DOE’s nuclear energy programs
and facilities, including the development of next-generation nuclear power systems. Other responsibilities included production and distribution of isotopes for medical treatment, diagnosis andresearch, and oversight of DOE test and research reactors and related facilities and activities.
From 1998-1999, Dr. Marcus spent a year in Japan as Visiting Professor in the Research Laboratory
for Nuclear Reactors, Tokyo Institute of Technology. She conducted research on comparative nuclear
regulatory policy in Japan and the United States.
Previously, Dr. Marcus had been in the US Nuclear Regulatory Commission (NRC). She served in a varietyof positions including Deputy Executive Director of the Advisory Committee on Reactor Safeguards/Advisory Committee on Nuclear Waste; Director of Project Directorate III-3, providing
regulatory oversight of seven nuclear power plants in the Midwest; and Director of the Advanced
Reactors Project Directorate, where she was responsible for technical reviews of advanced reactor
designs.
She also served as technical assistant to Commissioner Kenneth Rogers at the NRC for over four years,
providing advice and recommendations on a broad range of technical and policy issues of interest tothe Commission. From this position she was detailed for five months to Japan’s Ministry of International Trade and Industry, where she was NRC’s first assignee to Japan, studying Japan’s
licensing of the Advanced Boiling Water Reactor.
Prior to her service at NRC, Dr. Marcus was Assistant Chief of the Science Policy Research Divisionat the Congressional Research Service (1980-1985). In this position, she was responsible for policy
analysis in support of Congress covering all fields of science and technology, and played a lead rolein policy analysis and development for energy, nuclear power, and risk assessment and management.

Organization:
From 2001-2002, Dr. Marcus served as President of the American Nuclear Society (ANS), an 11,000 member
professional society. She is a Fellow of the ANS and of the American Association for the Advancementof Science (AAAS). She is a former member of the National Research Council Committee on the Future
Needs of Nuclear Engineering Education, and served three terms on the MIT Corporation Visiting
Committee for the Nuclear Engineering Department. She is just completing a term as the elected Chairof the Engineering Section of AAAS.
Publication:
Dr. Marcus has authored numerous technical papers and publications. Her research interests include
nuclear regulatory policy, energy technology and policy, risk assessment and management, international nuclear policy, and advanced nuclear technologies.
Education:
Dr. Marcus has an S.B. and S.M. in Physics, and an Sc.D. in Nuclear Engineering from MIT. She is thefirst woman to earn a doctorate in nuclear engineering in the United States.

1Copyright © JAPAN NUS CO., LTD. All Rights Reserved

Dr. Marcus' Room No. 7First, I want to say that I am glad to be backagain writing for the Marcus Room. I thank JANUS for this new opportunity and look forward to acontinued dialogue.
During the hiatus since my last set of essays, wehave had some changes to the US Nuclear Regulatory Commission. The Chairman appointed under the Republican Administration, Dale Klein,
was replaced as chairman by Gregory Jaczko, appointed by the new Democratic Administration.
Following that, Dale Klein stayed at the NRC as aCommissioner, but announced his intention toleave as soon as a replacement was appointed.
Since there were already two vacancies on theCommission, this created a total of three positions
to be filled. This spring, they were filled by Commissioners George Apostolakis, William Magwood,and William Ostendorff. The new Commission canbe seen at
http://www.nrc.gov/about-nrc/organization/commfu
ncdesc.html
During this whole process, I was questioned anumber of times by colleagues outside the US government about parts of the process. It became clear
to me that there are a lot of misperceptions about
the rules of the game. I can certainly see why! Therules are a bit arcane, and the practices have, insome cases, created the impression that there are
additional rules―but they are, in fact, just practices, and not requirements.
Although the positions are now filled and it will
likely be some time before the issue of a new appointment comes up again, I thought it might beuseful to document some of the answers I gave
people so that next time a new appointment ispending, at least my readers will understand better what is happening.
So for the record, this essay and the one to follow
will document some of the statements I heard regarding NRC appointments over the past year or soand how I answered them. Exact language for therules regarding Commission appointments can befound in the US Code at 42 USC 5841, which canbe reviewed in its entirety at:
http://www.law.cornell.edu/uscode/html/uscode42/u
sc_sec_42_00005841----000-.html

1. When a new President is elected from adifferent party, the NRC Chairman has tostep down.
Wrong! The NRC Chairman does serve―asChairman―at “the pleasure of the President.” Thismeans that any President can, at any time, ask
whoever is chairman to step down as chairman. It2

does not have to be a new President from a different party. It does not even have to be a new President. It would be unusual, but if a President loses
confidence in the Chairman, the President can select another chairman at any time.
When a new President is elected, he―or she―has
literally thousands of positions to fill. Believe it ornot, the President usually has higher priorities
than the NRC! I could fill the rest of this essay
listing the major positions dealing with defense,
budget, international relations and other mattersthat are more critical than the NRC. The President,of course, does have the authority to change theChairman of the NRC as soon as he or she is sworn
in. In practice, this never happens. The Chairman
holding the office stays in the position until thePresident decides to appoint someone else as
Chairman.

2. When a new Chairman is appointed, the old
one has to leave the NRC.
Wrong! As we saw in this last transition, as longas the outgoing Chairman’s term has not expired,
they may stay on as a Commissioner. The outgoing
Chairman is permitted to leave immediately if heor she wishes to, of course, and many do. The outgoing Chairman usually believes that they have
had their chance at influencing the course of theagency. In the case of Dale Klein, he decided to stay
on to prevent the commission from becoming a
two-member commission. (More on that below.)

3. The President can select anyone he/shewants to be Chairman.
Not always! If there is a vacancy on the Commission, then the President can nominate a commissioner with the understanding that person will be
named as chairman as soon as he or she is confirmed by the Senate. Therefore, if there is a vacancy on the Commission, the President can selectwhomever he or she wants as Chairman.
Note that the President does not have to appoint
someone new to serve as Chairman when there is avacancy. In this last transition, there were vacancies on the Commission, but President Obama appointed one of the existing Commissioners, Gregory Jaczko, to replace Dale Klein.
However, if the Commission has five members
when the new President comes in, the President
can only select from among the existing members.
The President cannot “fire” one of the sitting
commissioners to create a vacancy. (A Commissioner may be removed from office by the President
only for “inefficiency, neglect of duty, or malfeasance in office.”) What if the President doesn’t
Copyright © JAPAN NUS CO., LTD. All Rights Reserved

Dr. Marcus' Room No. 7

want to choose any of the current commissioners?
The President can wait until the next vacancy occurs and appoint a new commissioner with the intent to make him or her chairman immediately. Or
the President can designate someone as Acting
Chair, which gives a clear signal of the intent tomake another appointment when that is possible.
One could argue, of course, that the President canask one of the other commissioners to step down,
and one would guess that, if that happens, the individual would most likely comply. However, theindividual would not be required to step down. Inpractice, if a President wanted to remove a Commissioner, they would be likely to offer them someother desirable position. This has happened inother commissions, but it is an unusual practice.
The bottom line is that the President can’t fire aCommissioner except for misconduct.

4. The President’s party has to have threeof the Commission positions.
Wrong! In the first place, the President can’t
make any change in the makeup of the Commission until a vacancy develops. Since the President
takes office on January 20 and Commission appointments start on July 1, if there is no vacancy
on the Commission when a new President takes
office, it is a minimum of five months until there isa vacancy for the President to fill. Even then, itmight not be a vacancy that will allow the President to change the political composition of theCommission.
Let’s look at a hypothetical case. Let’s say that
the Presidency has just changed from a Republican
to a Democrat. In that case, it is likely that there
are three Republican commissioners and two
Democratic ones. (It is likely, but not necessary―see below.) If the next vacancy is for a position now held by a Republican, of course the President can appoint a Democrat and change theCommission makeup to three Democrats and twoRepublicans. But let’s say the next vacancy that
opens is one of the two Democratic seats. ThePresident can, of course, appoint another Democrat,
but that would still leave the Commission with a
3-2 Republican majority.
In addition, there is one more complication. ThePresident does not actually have to appoint threemembers of his/her own party. The rule only requires that there be “not more than three membersof the Commission shall be members of the same
political party.” Technically, this means that thePresident could appoint a member of the otherparty, or an Independent, or a member of a third
party to one of the three positions. This, of course,
3

rarely, if ever, happens, and if it ever did happen, itwould most likely be an Independent with strong
leanings toward the President’s party. I raise thispoint primarily to clarify what the rule actuallysays.

5. The President has to appoint two membersof the opposite party to the Commission.
Wrong! If you read the last paragraph carefully,
you will be able to guess why this statement iswrong. The rule only states that the President canappoint no more than three individuals from
his/her own party. It is silent on who the others are.
Obviously, the most frequent outcome is that theother two members are from the opposite party.
However, as above, an Independent, or a memberof a third party can conceptually be chosen. (In thiscase, unlike the statement above, the President
could not appoint a member of his/her party to oneof the two remaining positions if there were already three members of his/her party in the Commission.) During the Nixon Administration, there
were cases of “Democrats for Nixon” being appointed to the minority positions on other Commissions. (The rules for commissions are similar,although not identical, for all U.S. government
commissions.)

6. When a Commissioner’s term ends, he or
she can stay on until the President makes anew appointment.
Wrong! This is one of the areas in which the rules
for NRC Commissioners do differ from the rules forother government commissions. My husband used
to work for the Federal Communications Commission. For the most part, they followed the same
rules as NRC follows. Or, I should say that NRC
follows the same rules FCC follows because theFCC is a far older body. At the FCC, if a commissioner’s term expires, the commissioner can, andusually does, stay on until the President nominates
another commissioner and the nomination is confirmed by the Senate. In some cases, this has resulted in commissioners staying on for a year or
more beyond the end of their terms. Sometimes, it
was just considered easier to let that happen thanto make a new appointment.
When the NRC was established, it was felt that
putting in place language that would forbid an
NRC commissioner from staying past the expiration of his or her appointment would prevent thiskind of situation from developing. It has prevented
that, but it has resulted in situations where theCommission operates with several members missing. (More on that below.)
In fact, there have been cases where the PresiCopyright © JAPAN NUS CO., LTD. All Rights Reserved

Dr. Marcus' Room No. 7

dent has re-nominated an existing Commissioner,
but where Senate action has not been completed
before the expiration of the commissioner’s term.
In those cases, the commissioner involved has had
to leave his position (so far, none of the femalecommissioners has been in this position) until theSenate has acted. For practical reasons, the NRC
has usually used these commissioners-in-limbo insome consulting capacity while awaiting Senate
action, but they have been excluded from taking
part in any activities as a commissioner.

For reasons of length, I am going to stop this essay at this point. In my next essay, I will detailmore misperceptions I have heard about the NRC
Commissioner appointments.
As before, I will welcome comments on this andmy future essays in this series. I’d also be interested to know if anyone has questions on theNRC―or the DOE, where I also worked―that Imight be able to address in a future essay. My
e-mail address is:ghmarcus alum.mit.edu.
（ An image charactor is used intentionally for@-sign. Please cut the image and put a keystroke@-sign.)August 2010

4

Copyright © JAPAN NUS CO., LTD. All Rights Reserved