Dr. Marcus' Room No. 8

8. The U.S. Nuclear Regulatory Commission:Rules for Commission Appointments (Part Ⅱ)
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.

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Dr. Marcus' Room No. 8This essay is a continuation of my previous essayand details further questions and incorrect assumptions I have heard over the years on the NRC
Commissioner appointments. I hope that readers
will review the two essays together to get a more
complete explanation to some of the rules and regulations the NRC follows with regard to its Commissioners. The previous essay covered six questions and comments I have heard. This essay covers six more.

7. A two-member Commission is not permissable.
Wrong! A two-member is clearly not intended.
The language states: “a quorum for the transactionof business shall consist of at least three memberspresent.” It is certainly not desirable. There are
nagging questions about whether decisions madeby a two-member Commission would stand up inCourt. In fact, a recent Supreme Court decision
ruled that more than 500 decisions of the National
Labor Relations Board (NLRB) will have to be reopened because they were decided by only twomembers. While Boards and Commissions operate
under many of the same rules, the applicability ofthis ruling to the NRC would depend on the detailed wording of the laws for each agency. Nevertheless, the ruling does highlight the fact thattwo-member boards and commissions can happen,
and that the legality of their decisions may be uncertain.
Two-member Commissions are certainly not acommon occurrence. However, the way the laws
regarding the NRC are written, it can happen, andit has happened. Since commissioners at the NRC
can’t stay on after their terms end, if there are delays for any reason in making new appointments,
perhaps coupled by an unexpected resignation by,
or death of, a commissioner before his or her term
expires, the Commission can find itself with only
two sitting Commissioners. It happened when
Shirley Jackson was Chairman. At one point,Kenneth Rogers was the only other Commissioner
remaining on the Commission. (The rules forcommissions are not completely uniform. As notedin the previous essay, the Federal Communications
Commission permits members to stay on after
their appointments end if a replacement hasn’t
been confirmed. This arrangement further reduces,
but does not completely eliminate, the possibility ofa two-member commission.)
I would further observe that it is conceptuallypossible for the two members to be of the sameparty. Clearly, if one party has only two members,
it is not difficult to envision that one vacancy andone unexpected departure of a sitting Commission
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could deplete the minority ranks. So there could be
three members left, all from the same party, andshould one of those also leave, two from one party
would remain.
To date, the only two-member Commission was
the period mentioned above, and with Jackson a
Democrat and Rogers, a Republican, the Commission did not face that situation. If a situation didoccur where the two Commissioners were from thesame party, it would be even more likely that thedecisions of the NRC would be challenged, andeven more problematical whether its decisions
would stand up in Court.
I should note that a Commission consisting of
three members of the same party, while it meetsthe test of having a three-member quorum, would
also be problematical. Since one of the fundamental reasons for commissions is to have representation of both parties, there would be considerablepressure on the President and the Congress tocorrect such a situation quickly. The NRC has
never had a three-member Commission in which
all the members were of the same party. I haven’t
studied all other commissions, but I’m not awareof any other commission having gotten into thatsituation. It would take an unusual combination ofevents, but it is theoretically possible.
Finally, Presidents sometimes fill vacant positions by means of a “recess appointment,” which isan appointment made without Senate confirmation
when the Senate is in recess. However, such appointments are temporary, lasting only until theend of that Senate session. In some cases, theSenate later confirms such appointments; in othercases, the President’s use of this mechanism has
strained relationships between the White Houseand the Senate. In any event, this mechanism isnot often used, and was not used to prevent thetwo-member Commission in 1995.

8. Oh, but the two-member NRC Commission
didn’t last long.
Wrong! It has surprised me to get that commenteven from people who I thought would know better.
I guess such details don’t stay in people’s minds.
However, since I had worked for Commissioner
Rogers (although I was no longer working for him
at that time), I perhaps was more aware of what
was happening than most.
The NRC operated with only two Commissioners
for about an 8-month period. Since the law requires
a quorum of three Commissioners, the Commission
could not function in accordance with the law if it
had only two members. Thus, in anticipation of theCopyright © JAPAN NUS CO., LTD. All Rights Reserved

Dr. Marcus' Room No. 8

potential for this situation to develop, the NRC
Commissioners preemptively approved a procedure
to delegate authority to the Chairman in the eventthat a quorum could not be convened, with theproviso that the Chairman consult with the otherCommissioner before exercising the delegated authority.
At the time, I understood from legal experts that
this was an unusual enough arrangement that decisions of the NRC made during this period could
potentially be challenged in court (as were theNLRB decisions mentioned above). There wastherefore an effort made to assure that highly
contentious issues were delayed as long as possible.
Obviously, that could not have gone on forever.
Fortunately, the decisions that were made during
this period were not challenged.
However, everyone continues to recognize theundesirability of this situation, and that wasprobably a large part of Dale Klein’s reason forstaying on the Commission after Gregory Jaczko
took over as Chairman.

9. All Commissioners are appointed forfive-year terms.
Wrong! Commission terms are for five years, so ifa nomination is made in advance and the Senate
confirms the nomination in advance of the beginning of a term (one Commissioner’s term begins on
July 1 of each year), then the appointee can indeed
serve a full five years. However, either the President or the Senate sometimes does not act in time,or there is occasionally an unexpected vacancy due
to an early resignation (or death) of a Commissioner. In those cases, the new Commissioner begins his or her service in the middle of an existing
term. A Commissioner can end up serving a termthat is anywhere from a few months short to several years short. That is why the terms of the three
new Commissioners, who were all confirmed at thesame time, will end at different times.
As a practical matter, when only a very small
portion of a term is left, the appointment is usually
made for the remainder of the term, and―in advance―for the following term, so in a few instances,
an appointment can be made with the understanding it will last for more than five years.
However, that is technically a merging of twoterms, a partial term and a full term.

10. Appointments of new Commissioners haveto be paired, Democrat-Republican.
Wrong! This is a rather recent development, andin my mind, not necessarily a good one.

3The rules do not state this and do not require this.
For most of history, most Commission appointments―NRC and other commissions―have been
done one at a time. This allows a full review of eachcommissioner’s qualifications for the job. It should
allow vacancies to be filled sooner and the transitions of Commission membership to be more
gradual. And it should minimize the duration of
four-member commissions (that can lead to tie
votes). The recent trend reflects the increasing politicalization of the appointment process. Appointments were being held up for reasons unrelated to the qualifications of the individuals, soPresidents began pairing their appointments sothat the opposing party would have something atstake as well. What began as an exceptional event
seems to have become standard practice. But it is
not a requirement.

11. The Senate Minority or Majority Leader
designates who the President should nominate from the opposing party.
Wrong! That is another misperception based on apractice that has evolved in relatively recent years.
The President actually has the sole responsibility
and authority to identify and nominate appropriate
candidates from both parties. However, in recentyears, the President has sometimes turned to theSenate leader from the opposing party (the Majority leader when the majority of the Senate is fromthe opposite party as the President, and the Minority leader when the majority of the Senate isfrom the same party as the President). Once again,
this has been seen as an effort to assure that thePresident’s candidates are acceptable to the Senate
and that the nominations will be acted upon favorably by the Senate.
This trend has also led, in recent years, to an increase in the number of Congressional staffers
filling seats in commissions, including the NRC.
There have almost always been one, or perhaps
two, former Congressional staffers on the Commission. However, at one point recently, three offour members of the Commission were former
Congressional staffers. While I cannot speak forother commissions, I want to say that the Congressional staffers who have become NRC Commissioners have been highly qualified, both interms of having an appropriate technical or legal
background, and in the knowledge and understanding of the issues that their work in Congresshas given them.
Nevertheless, one strength of a commission is in
the diversity of background and experience thatfive members can bring to the activities of the organization. In this regard, it is noteworthy thatCopyright © JAPAN NUS CO., LTD. All Rights Reserved

Dr. Marcus' Room No. 8

none of the three most recent appointments areformer Congressional staffers. This has “rebalanced” the Commission to a more diverse mix of
two former Congressional staffers, an academic, aformer industry official, and an individual with amix of Executive branch and industry experience.

12. A Commissioner is limited to two terms.
Wrong! There is actually no specified limit on thenumber of terms a Commissioner can serve. However, for a very long time, no Commissioner had
been appointed to more than two terms. In fact,
when Commissioner Rogers finished his secondterm on June 30, 1997, he was the longest serving
Commissioner in the history of the NRC. He retained this title until Ed McGaffigan became thefirst NRC Commissioner to be reappointed to athird term and had served a portion of that term.
To date, Commissioner McGaffigan is the only
NRC Commissioner who was appointed to a thirdterm. Unfortunately, he died before he could serveout his full third term.

A good reference to the terms of the previous NRC
Commissioners can be found at:
http://www.nrc.gov/about-nrc/organization/commissi
on/former-commissioners/former-commissioners.ht
ml#N_19_
These two essays, taken together, are probably
more detail than most people need to know most ofthe time. However, I have heard every one of thesestatements made, sometimes by people I would
have thought knew better. I therefore thought thismight be a useful reference to post, and hope people will return to it the next time the need arises.
As always, I welcome comments on these two essays. If there are other questions on the NRC―orthe DOE, where I also worked―that I have notaddressed, please let me know, and if possible, I
will try to address them 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.)October 2010

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