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7 ELR 50001 | Environmental Law Reporter | copyright © 1977 | All rights reserved The Federal Advisory Committee System: An AssessmentKit Gage **Formal and informal advisory committees have long been used to furnish expert advice, ideas, and diverse opinions to the federal government.1 Their utility depends upon the balance and institutional and financial ties of members, especially when their advice is rendered in confidence. For present purposes, "balance" can be defined as broadly representative of sectors of society interested in the subject matter of the committee. Problems of balanced representation of advisory committee viewpoints and interests and confidential communications are apt to be most acute in the environmental domain, for here industrial interests historically have dominated representation on committees. Recognizing the difficulties inherent in unbalanced advisory committees, Congress conducted extensive hearings in 1970 and 19712 and finally enacted the Federal Advisory Committee Act (FACA),3 which, for the first time, required balanced advisory committee membership and insisted on public meetings. This article describes and assesses the effectiveness of FACA as a means of ensuring balanced and accurate information supply from advisory committees.4 Major Provisions of the Federal Advisory Committee Act The scope of the Act is determined by its definition of "advisory committee:" any committee, board, commission, council, conference, panel, task force or other similar groups, or any subcommittee or other subgroup thereof … which is (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies….5 This unusually broad definition of an advisory committee covers not only groups set up and administered directly by agencies but also potentially includes those groups established by institutions contracting with the government, such as the National Academy of Sciences. The Act, as clarified by the legislative history of the 1970-71 hearings and by the subsequent oversight hearings of the Senate Government Operations Subcommittee,6 defines the formation, procedures, and permissible structure of advisory committees, and requires that this information be specified in each committee charter. These statutory guidelines apply to all committees created by acts of Congress, agencies, or executive order.7 The guidelines require that committees must be "independent" and that they operate under a clearly defined charter. Crucial to the Act is the stipulation that committee composition must be balanced, so that individual members represent all major positions of different segments of society on the issues under consideration. The advice given to the government must be: balanced in terms of the points of view represented and the functions to be performed by the advisory committee.8 The Act mandates that advisory committee meetings shall be open to the public, with the few exemptions listed in the Freedom of Information Act (FOIA). "Timely" notice of advisory committee meetings must appear in the Federal Register.9 The Act requires that "detailed minutes" be kept for all federal advisory committee meetings and that these should comprise "a complete and accurate description of matters discussed and conclusions reached."10 The Act further requires that minutes and all documents including working papers, committee reports, and charters be made available to the public. Annual reports, which are also available to the public, must be prepared by each agency for each of its advisory committees. Even advisory committees that hold closed meetings must include a summary of such meetings in their annual reports.11 The standing committees of the House of Representatives and Senate have oversight responsibilities for all advisory committees. These standing committees, through congressional and staff studies and public hearings, must ensure that each advisory committee serves a necessary function and follows the guidelines set down by the Act.12 The appropriations committees of the House and Senate, similarly, must evaluate the cost effectiveness of each advisory committee. In addition, the House and Senate Government Operations Committees oversee the system as a whole. The executive branch shares in these oversight responsibilities. The Office of Management and Budget (OMB) Committee Management Secretariat is assigned the direction and control of all advisory committees and is "responsible for all matters relating to advisory committees."13 An OMB Circular, submitted by the Secretariat to all agencies, defines the required procedures for the creation and operation of each advisory committee.14 Qualitative oversight is to be assured by an annual comprehensive review conducted by OMB to revise, merge, or abolish advisory committees, as necessary.15 The Federal Advisory Committee Act: Ambiguities and Violations The effectiveness of FACA in dealing with the problems of the advisory committee system can be assessed by studying the language of the statute and claimed statutory violations by advisory committees — two interrelated sets of issues. Common to both problems is the ambiguity of the Act itself, ranging from simple lack of clarity, to the absence of requirements, to lack of sanctions for noncompliance. The major problems fall into three groups: scope, membership, and access to meetings and records. Despite the Act's seemingly broad coverage, there remain numerous committees which claim exemption or are exempted by statute from the Act and consequently do not announce their meetings, do not open them to thepublic, and do not keep detailed minutes available to the public.16 The recently formed Study or Investigatory Panels of the Science Advisory Board of the Environmental Protection Agency (EPA) appear to fall into the former category, as EPA decided they are exempt from the FACA. EPA claims that these panels give factual advice as opposed to recommendations, and this advice is reported to EPA advisory committees and not to the Agency directly; thus, EPA claims that the panels are exempt from the Act.17 A former senior EPA official has criticized the propriety of such procedures: [I]f this pattern of closed deliberation is repeated, our Science Advisory Board will, in my opinion, rapidly squander its credibility.18 Furthermore, the working papers of the Study Panels are unavailable to the public and minutes are not kept at meetings, although the Panels' assessments are used in open meetings of advisory committees. FACA, however, clearly stipulates that: working papers … which were made available to or prepared for or by each advisory committee shall be available for public inspection.19 Sometimes groups which directly advise the government refuse to acknowledge that they are federal advisory committees until forced to do so through litigation.20 One example of a committee which was claimed to be exempt from FACA and whose recommendations were almost directly incorporated into a proposed rule recently occurred in a determination by the U.S. Coast Guard. This committee, composed exclusively of representatives of the oil and shipping industries and the federal government, recommended against the use of double bottoms and of segregated ballast (in most instances) on large oil tankers, a measure with profound environmental implications. The action is now in litigation.21 In other instances, meetings of advisory committee members take place outside the statutory framework. An example of this problem is furnished by an October 1975 meeting of EPA with state officials on drinking water regulations. Members of an advisory committee were invited, but EPA denied that this was an advisory committee meeting. The agency then met separately that same month with environmentalists, who had expressed a desire to meet openly with other parties. At the meeting, EPA announced that the regulations would be severely weakened. There was never a joint meeting of all concerned groups to attempt some compromise effort. Subsequently, the Environmental Defense Fund filed suit over the decision to eliminate testing for organic chemical pollutants in drinking water.22 It is certainly possible that this litigation would have been avoided if an open forum had been arranged via an advisory committee. In some cases, committees apparently drift in and out of federal advisory committee status. In 1974, 69 previously unreported committees were recognized, and 13 others which had been separately identified as advisory committees in 1973 no longer were so identified, yet still existed in 1974.23 Some bodies which are not specifically included in (or explicitly excluded from) FACA function as advisory committees, perform advisory functions of comparable import, and have similar kinds of problems. One important example is the National Academy of Sciences (NAS). Through a congressional charter of 1863, the Academy is the "official scientific advisor to the Government."24 The NAS has a major role in providing advice on a wide range of issues to the government: By the 1970's, the Academy had become a major source of scientific advice for the Federal government. In fiscal year 1970, more scientists served on the Academy's committees than served on advisory committees appointed directly by government agencies — namely 8328 appointments on Academy committees in that year compared with only 6424 appointments to science advisory posts with Federal agencies.25 Though the members are not paid consultants' fees for their efforts, they understand that membership on an NAS committee is a prestigious position and will likely improve their connections in the scientific sphere. The applicability of FACA to NAS has been under scrutiny. In response to a Food and Drug Administration (FDA) request in 1973 regarding FACA's application to an NAS committee under contract to the FDA, the Department of Justice stated that it do[es] not regard the legislative history as completely clear or conclusive. Still, there is evidence of a general intent on the part of Congress to exclude NAS committees from the coverage of the Act.26 The Department of Justice went on to say that it is unable, however, to accept as a categorical rule the … statement that the "Act does not apply to persons or organizations which have contractual relationships with Federal Agencies…" [as does the NAS]. Our reason is that, if the mere existence of a contract were decisive, avoidance of the Act in situations involving "utilized" [7 ELR 50004] advisory committees could easily, be accomplished.27 The Department of Justice's view that the NAS is exempt from FACA depends on the structure of the NAS (as, in essence, an on-going review organization) and that therefore one of its advisory committees is an integral part of that function and not a separate entity subject to FACA. Using the same rationale, however, the Department of Justice has viewed the Federation of American Societies for Experimental Biology (FASEB) committees as advisory committees subject to FACA, because they were not to be subject to an on-going review process of FASEB, and were not inseparable from the structure of the organization.28 Notably, Justice's rationale in the case of FASEB could subject to FACA's requirements many committees that have been exempt from FACA solely on the basis of their contractual nature. The Academy was recently sued over just such an issue, that is, whether the Committee on Motor Vehicle Emissions of the NAS was an advisory committee and whether the Academy could be considered an agency under FACA. In Lombardo v. Handler,29 Judge Sirica held that NAS is not an agency for purposes of FACA and the Committee is not an advisory committee subject to FACA. The crucial factor in the decision seems to be Judge Sirica's thoroughly researched view that the legislative history exempted the NAS specifically from FACA. Unfortunately, Lombardo may slow the process of opening the deliberations of de facto advisory committees similar in nature to NAS: those which advise the federal government under institutional contract. There are other organizations not affiliated with the federal government that nonetheless serve in an official advisory capacity and therefore should be subject to FACA. One such is The Institute of Ecology (TIE), which is described in a report of the Director as being organized: to direct and coordinate ecological analyses and research projects in the Western Hemisphere — projects beyond the scope and management capabilities of any single university or research institution.30 TIE includes as member organizations some 80 universities and research institutions. Since its organization in 1971, TIE has performed several major projects at the behest of NSF, the U.S. Corps of Engineers, and EPA. TIE has been called on to advise the federal government on various important issues of ecological concern, including coastal zone management, tropical ecology research, urban ecosystem research, and ecological program assessment. TIE does not consider its committees to be federal advisory committees and therefore they do not attempt to comply with FACA.31 The Act's definition of federal advisory committees, however, logically includes the TIE committees, formed at government behest and cost (though the members are generally not paid for their services).32 Little distinction can be made between TIE committees and federal advisory committees in any area. Despite an NSF ruling on TIE advisory committees which uses the contractual agreement rationale to exclude TIE from compliance with FACA, the Department of Justice ruling on the NAS,33 downplaying the role of institutional contracts as the determining factor in exemption from FACA, demonstrates that TIE's committees outhg to be subject to FACA's requirements. There are other important professional organizations, such as the American Public Health Association (APHA), which, under contract to the government, advise on the status of research and propose future research areas. The APHA committees are selected by that organization and are paid consultant and travel fees for their efforts just as are federal advisory committees. The crucial issue here is that these professional organizations, while receiving government funding, have sole control over their committee membership and related procedural matters.34 As the foregoing demonstrates, administrative whittling of FACA's seemingly broad scope has made its application problematic. The solution would seem to lie in Congress' being more specific about FACA's coverage, through legislation or oversight. In particular, NAS should receive special attention to bring it within FACA's scope. The FACA does not explicitly define the term "balanced representation." Nor does it specify which sectors of society are to be represented in which kinds of committees. Must a committee be divided evenly by interest sectors or is one member, with a viewpoint differing from the majority, sufficient to balance a committee? In implementing the Act, federal agencies have generally skirted the issue of representation of opposing viewpoints, concentrating only on the less controversial factors (in this context) of geography, race, and sex as the overriding indicators of balance.35 The concept that source of employment and grants or contracts should be considered in the determination of balance often is not significantly reflected in appointment of advisory committee members. An extreme example appears in the National Petroleum Council of the Department of the Interior, in [7 ELR 50005] which "balance," as reflected through the composition of the committee, is the representation of most major petroleum companies.36 Even after pressure brought to bear on the Council resulted in perfunctory efforts to represent consumer and environmental interests, "balance" was taken to mean only the presence of a few representatives of countervailing interests and not equal representation of diverse viewpoints.37 The Council has since been used by Senator Lee Metcalf on the grounds that the Council's composition and operation violates FACA.38 This issue is significant because of the influence the Council wields with Interior in energy policy areas. Because of lack of standing to sue, however, the Senator's concern remains unresolved, along with the issue of the Council's compliance with the Act. Attempts to alter the membership of existing advisory committees, and to balance them with respect to points of view represented, are constrained in several ways. Terms of membership on advisory committees average about three years, though variation has been noted from a few months to six years or to indefinite terms,39 and terms often overlap within a committee. Moreover, agencies rarely announce the existence of committee vacancies in the Federal Register. For instance, the Bureau of Radiological Health, HEW, as part of a new policy40 opened its nominations to the public for three federal advisory committees — Technical Electronic Product Radiation Safety Standards Commitee, Radiation Bio-Effects and Epidemiology Advisory Committee, and Medical Radiation Advisory Committee. The Bureau received 39, 14, and 55 nominations, respectively, for these three committees as a result of this public notice, thus stemming fears that they would be overwhelmed by nominations.41 This policy of publicly soliciting membership is an important method of reaching a variety of qualified individuals. While some of the better-established and amply-funded associations have developed their own systems to place members on advisory committees,42 other individuals and groups, often representing public interest and environmental concerns more specifically, must rely upon the government for such notice. FACA's failure to limit renomination or to include search procedures for new members tends to slow the changeover of membership and maintain the "old boy" method of solicitation for new members.43 While EPA and the Bureau of Radiological Health have, in limited areas, begun some innovative membership search procedures, all agencies may need more persuasion to set up such mechanisms throughout the federal advisory committee system. Even though the NAS is not subject to FACA, its committees have membership problems that could be solved were the NAS to follow FACA's mandates. The NAS Panel on Coal Miners Pneumoconiosis of the Committee on Mineral Resources and the Environment has issued a report that has been thoroughly criticized by experts in the field.44 It seems clear that neither the membership of the full committee nor the panel was competent by experience or education to analyze the social implications of coal workers pneumoconiosis which its task included along with analysis of medical effects45 Furthermore, the overwhelming orientation of the panel and committee was toward management, both directly and through academicians' close affiliation with management. There was no representation of working miners, disabled miners, or even of miners' widows.46 Nonetheless, the panel and committee response to charges of imbalance was simple, unelaborated disagreement.47 Membership Problems — Discrimination Some advisory committees are now making a concerted effort to inform and include environmental or consumer representatives. These efforts have not, however, resolved the problems of the nature of representation. [7 ELR 50006] The current definition of the statutory term "public" is a major hurdle to fair representation of that public. The government contends simply that all who are not federal employees are the public, including industry representatives. This distinction is not sufficient because the general public, primarily consumers and recipients of services, and the technically- or scientifically-qualified public interest sectors must have separate representation. Persons who are informed on environmental or consumer problems, knowledgeable about specific advisory committee issues, and unaffiliated with industry or government are necessary to represent the public on advisory committees whose work in major ways affects the public, whether in consumer, environmental, or other affairs. They need not necessarily have the specific technical expertise to deal with the scientific aspects of the issues under consideration. These representatives should be full voting members. Equally important, however, is the adequate representation of the technically-qualified public interest representatives, for through their scientific expertise and analysis the public can be protected from industry self-interest. An instance of consumer representation being isolated and limited occurred within the Animal and Plant Health Inspection Service of the Department of Agriculture. The Service's initial advisory committee plan included the membership of consumer representatives on technical advisory committees as well as on a Consumer Advisory Committee. The Service has now drawn away from this proposal and plans to include in its plans only the consumer committee whose members serve as ex officio members on its expert panels, not as full members. Though this category of membership may be preferable to no membership, it tends to minimize the input of consumers on such crucial committees as the Department of Agriculture's expert Panel on Nitrites and Nitrosamines.48 Membership Problems — Conflict of Interest A more subtle membership-related problem of advisory committees is conflict of interest. The Act requires committees not to be "inappropriately influenced by the appointing authority or by any special interest," but contains no enforcement provision.49 Experts in a particular field are often dependent to some extent on government or industry contracts and grants, which alone do not necessarily determine their views or prejudices. Their relationship to the government agency receiving their advice is one which must be clearly understood in order to comprehend the full implications of that advice. It is not necessary to forbid conflicts, so much as to mandate disclosure of interests. If interests remain hidden, then it is impossible to properly balance a committee with respect to views represented or determine if special interests are disproportionately represented. An expert working at a university, for example, who has been funded by industry grants may well come to conclusions unfavorable to that industry, but it is also likely that the expert would make sure that his or her actions and advice would not jeopardize continuation of these sources of funding. In this case, the associations and work of that person may give the closest idea of the point of view he or she represents, and this information, in tandem with public knowledge of any funding grants the person may have received, would enable wise placement on an advisory committee. This idea has been elaborated by the former director of the National Environmental Research Center of EPA: [T]he public cannot easily understand subtle influences that may impinge upon scientists working for university departments or research institutes. If these departments or institutes are heavily funded by industries which are being regulated, there is certainly the potential for conflict of interest. This situation is not hypothetical but rather one which currently exists.50 Conflict of interest statements are not mentioned in FACA. Further, only a few agencies require advisory committee members to file such statements, which merely list the identity of financial affiliations, i.e., employment, grants, consulting arrangements, and other financial interests.51 Also, these statements do not require the listing of compensation funneled indirectly from industry to an individual through an academic or other institution. A senior official of EPA has articulated the rationale behind requiring interest statements: To avoid hidden conflicts of interest, the background of our scientific advisors must be accessible to the public…. Our Agency should take immediate affirmative action to assure that the sources of such research conducted in departments or institutes in which our scientific advisors work are matters of public record. Our Agency should not only gather this information, but also collate it, present it in an understandable format and make sure that the resulting documents are easily available to any interested member of the public.52 This action would have allowed the public to know that a newly-reappointed member of the National Cancer Advisory Board (and chairman of its Subcommittee on Environmental Carcinogenesis), a committee which oversees the National Cancer Institute (NCI),53 was also the recipient of the second highest contract from the National Institutes of Health (of which NCI is a branch) while he was a member of the committee.54 This member also has been a consultant to Miles Laboratories and Abbott Laboratories, among other industries.55 Further conflict of interest problems arise in the political screening process for members of scientific advisory committees. Vacancies are not filled on some important Department of Health, Education and Welfare (HEW) advisory committees due, not only to the search for balance in race, sex, and geographical distribution, but to the fact that competent scientists much also be of the proper political persuasion. Such pressure comes from the White House and occasionally from Congress. There is, needless to say, no provision of FACA requiring political clearance for membership. Such a politically-cleared committee might well be questioned as to the independence of its advice to the administration in power or to Congress.56 The NAS does require conflict of interest statements of its members,57 though it is clear that many commiteee members are in serious conflict of interest. For example, the former committee to examine biological effects of airborne fluorides and the Food Protection Committee task force to examine toxicity of chemicals in food were both heavily weighted by industry representatives.58 An unusual case where an undisclosed interest prejudiced a committee's function is described in a recent article discussing the NAS Subcommittee on Particulate Contaminants, which is studying the health effects of asbestos. NAS claimed not to know that one member was an unpaid consultant to Reserve Mining Company and had testified on behalf of Reserve that asbestos is not a serious health hazard. The situation only came to light as memoranda describing an agreement between a company attorney and the committee member regarding the NAS committee surfaced among documents obtained in the litigation against Reserve for extensive pollution of Lake Superior by dumping taconite tailings. The NAS has three procedural safeguards designed to ensure that an individual will have no conflict of interest with regard to a particular committee. However, due to vagueness in the bias statement itself, the committee's non-compliance with one of the review safeguards, and an insufficient screening by the NAS, the committee member revealed no affiliation. The committee member has since resigned under pressure.59 The importance of this example has been lost, however, because NAS has not indicated what steps it will take to ensure that this and other conflicts do not recur. Access to Meetings and Records FACA mandates that all advisory committee meetings be open to the public, with the few exceptions provided in the exemptions to the FOIA.60 In 1974 and 1975, however, half of all federal advisory committee meetings held were entirely or partially closed to the public.61 Most of those committees which closed all or part of their meetings cited one of the FOIA exemptions as justification for closing. Both Senator Metcalf and Chester Warner, former director of the OMB Committee Management Secretariat, have expressed their dismay at the high percentage of closed meetings and have encouraged the committees to consolidate the closed portions of the meetings to allow the public greatest prossible access to the meetings.62 It now appears, though, that most of the problems so prevalent with the applicability of the FOIA exemptions to FACA have been eliminated by the recently-enacted Government in the Sunshine Act.63 A last minute addition to the bill in Congress made the limitations on open federal advisory committee meetings consonant with those few in the sunshine bill, thus eliminating the exemption covering interagency and intragency memoranda.64 That a committee member may feel constrained by the presence of the public or the press is an often-heard complaint and one which is superficially valid. Often, however, public exposure compels the member to give more carefully reasoned advice, thus benefitting the government and the public. One other plausible reason to skirt FACA would be to avoid public exposure of a sector's views and methods. The federal advisory committee system, however, is not the proper forum for carrying on private discussions with the government. Another reason for avoiding the Act's open meeting requirement would be a belief that the committee system is an insufficient forum for thoroughly representing particular views. Fairer representation of all major interest constituencies would alleviate this concern. The decisions involving the Travel Advisory Board of the Civil Aeronautics Board (CAB) in Aviation Consumer Action Project v. Washburn65 illustrates one aspect of problems with the closed-meeting issue. A meeting of the Board was closed to the public because inter-agency and intra-agency memoranda were to be discussed at the meeting, an FOIA exemption applicable to FACA.However, in the district court, Judge Bryant stated that the exemption was: inapplicable and cannot be invoked … as to documents which have been voluntarily disclosed by the agency to members of an advisory committee who are not full-time officers or employees of the Federal government.66 This exemption, in particular, has been the cause of much controversy as it brings to a head the issue of government secrecy and real questions as to the distinction between members of the public in general and members of the public who are on advisory committees. A notable change from agency positions on closure of meetings has occurred through the General Energy Administration Act of 1974, which not only positively requires clearly balanced representation on advisory committees, but which also mandates open meetings (except in the interest of national security).67 Important attempts of several advisory committees to hold open meetings, even on some fairly sensitive issues, have lent credence to the movement for wider standards in open meetings. Among these are the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, which, observers believe, now has encouraged greater thoughtfulness on the part of members while not inhibiting freedom of expression, and FDA's Toxicology Advisory Committee, which remained open at the behest of the public through a complicated and unresolved discussion of the problem of Red Dye No. 2.68 A variation on closed-meetings violations of FACA is illustrated by the Standards Advisory Committee on Coke Oven Emissions of the Department of Labor, which held a "fact-finding field trip" that was declared not a federal advisory committee meeting, even though it was a paid gathering of the entire committee for the purpose of fact-finding prior to making recommendations.69 Public attendance of advisory committee sessions is also inhibited by unofficial government actions that effectively close the sessions. For example, an "open" meeting was held in the Old Executive Office Building next to the White House. Attendance was made very difficult by the tight security measures and after a few hours this "open" meeting was closed — without prior notice.70 Another such example is afforded by the Bureau of Land Management (BLM) which announced an open meeting of the advisory board as a field trip to observe lands acquired by BLM in which members of the public were "required to furnish their own transportation."71 Likewise, in the past, NAS meetings have been closed to the public and only final documents have been made public.72 NAS has now instituted a new public-access-to-information policy, the purpose of which is to open some NAS advisory committee meetings to the public and provide greater access to the documentation of those meetings and reports of subcommittees. Even under the new NAS guidelines, executive and working meetings of the committees still will not normally be open to the public73 and notice of meetings will not appear in the Federal Register. An example of some current closure problems in NAS advisory committee proceedings concerns the committee dealing with lead in paint. In a decision regarding the percentage of lead to be allowed in paint,74 [7 ELR 50009] the Consumer Product Safety Commission received conflicting recommendations. One suggestion from HEW would have set maximum levels of 0.06 percent lead in paint, but another recommendation from an ad hoc advisory committee of the NAS would have allowed up to 0.5 percent lead in paint.75 The Commission decided to accept the Academy study as the preferred level. If the NAS bore the title of "government agency," its advisory committee proceedings would be open, thus giving others the opportunity to observe and participate in the input and analysis of data.76 With its closed meetings, it is impossible to determine what induced the NAS to make its recommendations.Some of the resultant furor might have been avoided or brought in at an earlier stage of decision-making had the proceedings of the advisory committee meetings been open to the public.77 Only the final NAS ad hoc committee report, but not minutes or working papers, was made available through the Consumer Product Safety Commission. Unfortunately, the NAS report fails to validate scientifically the bases for its recommendation on permissible lead paint levels. Notice of meetings, whether open or closed, is a crucial element of member and observer attendance. On the average, federal advisory committees hold three meetings per year.78 OMB Circular A-63 requires that announcements of committee meetings appear in the Federal Register at least 15 days in advance of the meeting, along with notification that the meeting is either open or closed, and if closed, for what reasons.79 December 1974 and August 1975 examinations of the Register indicate that most of the approximately 300 meetings held per month are announced in the Federal Register or by press releases.80 In July 1974, however, 47 percent of the Register notices to the public of advisory committee meetings violated the 15-day requirement for advance public notice for meetings,81 by December, only 9 percent remained in violation.82 The FACA calls for complete minutes of meetings; this has not, however, eliminated inconsistent practices in keeping minutes. Some advisory committees already keep good, detailed minutes (supplemented by transcripts or tapes); others supply minimal minutes.83 An available transcript or tape would allow government and public access to the total range of advice given by the committee. Minutes of committee meetings closed for reasons of national security should be kept by the agency to whom the committee reports. Critical for proper oversight of the system is consistent and accurate basic information on the structure, membership, and activities of each federal advisory committee. The Annual Report of the President to the Congress is a method by which the public and the government can have direct access to and oversight of advisory committee proceedings and makeup because it should include the cost, accomplishments, and membership of each committee. The Annual Report to Congress, required by the Act, has varied in substance and in public availability. For the Second Annual Report, covering 1973, the full documentation of individual committee annual reports was available to the public only at the General Services Administration (GSA), and Government Operations Subcommittees of Congress — not "easily accessible" as required by the Act.84 [7 ELR 50010] While the GSA's report — the Third Annual Report — is publicly available for sale, the fiscal figures used are not entirely consistent with those of the Senate Subcommittee on Reports, Accounting and Management, primarily due to procedural differences.85 In addition, the Senate Government Operations Committee has discovered that numerous committees under its jurisdiction are now moribund though they are reported as active in both the Third and Fourth Annual Reports.86 The government has compiled and published indices more thorough than that for the First Annual Report (no index was compiled for the Second Annual Report). Detailed, current, and mostly accurate information is now readily available from GSA. This index should be made mandatory for each Annual Report because of the massive quantities of information they include. The Act requires the Library of Congress to maintain a repository of advisory committee documents including committee charters and any report an advisory committee submits to an agency, for "public inspection and use."87 However, approximately one quarter of the charters of federal advisory committees listed in the Second Annual Report are not on file at the Library. Indeed, until complaints were lodged, there was no regular file at the Library but only a large cardboard box for storage of all advisory committee material.88 The Congressional Research Service, the research branch of the Library, is given the option to keep topical advisory committee reports; otherwise the Library generally discards them.89 No attempt is made by the Library to see that the collection of charters is complete or up-to-date and similarly, the reports are merely channeled through the Library, not cataloged or made publicly available.90 Some of the collection is now gradually being bound. The only feasible solution to the confusion which exists regarding storage of the advisory committee records is to create and maintain in one place in the Library of Congress a complete record of all charters, verbatim transcripts, or tapes of open meetings, committee reports, annual reports, and membership lists of all advisory committees. This could be on microfiche or a comparably inexpensive and space-saving method. The collection should then be codified and cataloged at the Library, at the direction of an amendment of the FACA or through an OMB directive. As all of the materials for this collection are currently available (with the exception of verbatim transcripts or tapes, in some cases),the problem would be primarily that of assembly and codification. Advisory Committee Effectiveness Annual reports of all federal advisory committees must describe the committee's accomplishments over the past year. These accomplishments vary dramatically. For instance, EPA's Antimicrobial Advisory Committee was reported to be merely "familiarized" by the agency "with the magnitude and complexity of the problems to be reviewed."91 EPA's Technical Advisory Group for Municipal Waste Water Systems, on the other hand, participated in numerous workshops for the development and implementation of various regulations.92 The question remains how well the recommendations of advisory committees are utilized by agencies. The Act does not require that agencies follow advisory committees' advice. On the other hand, if agencies totally ignore their advice, the whole process is useless and the advisory committee ought not exist, or the agency should consider modifying its policies. Several important movements are now in progress to measure government use of the advice of these committees. The actual value of each advisory committee can be partially assessed from the form that agencies must complete for the Fourth Annual Report, which includes a question on government actions taken regarding advisory committee recommendations primarily within the last year.93 Another possibility for increased government responsiveness to its advisory committees requires more direct feedback from the government to the advisory committee on the use made of its advice. At this point, only the members of EPA's former National Air Quality Criteria Advisory Committee and the National Drinking Water Advisory Council are known to have initiated this procedure, that is, to request government response to advisory committee advice.94 These committees recommended that their suggestions should be circulated to all EPA advisory committees. More specifically, the air committee's resolution recommends that meetings be attended by the Assistant Administrator for Air and Waste Management "or if that is not possible or practicable, by a senior official as his representative," and that the Agency use the committee for consultation on the scientific aspects of matters related to regulatory policy on air quality criteria in a [7 ELR 50011] systematic fashion.95 Although this committee no longer exists, other EPA committees would do well to initiate similar procedures. Improved Congressional and Executive Branch Oversight Either through strengthening of the Act, requiring congressional standing committee reports on the status of advisory committees under their jurisdiction, or through comparable directives, standing committees must carry out their oversight responsibilities under the Act. These are the only bodies outside of the executive branch which are set up to oversee thoroughly each individual committee. Section 5(a) of FACA gives the standing committees of Congress continuing oversight of federal advisory committees under their jurisdiction. The extent of actual oversight is both difficult to determine and varying in purpose.96 For instance, there has been no central list of standing committees, and those advisory committees they are to oversee, in the House and a severely outdated one for the Senate, although the Congressional Research Service now has prepared an updated list for the Senate.97 Furthermore, congressional appropriations committees review some, but apparently not all,98 advisory committees only with respect to their cost effectiveness, not with respect to compliance with FACA. Most of the congressional standing committees engage in only sporadic oversight of advisory committee compliance with FACA.99 Among the factors contributing to this problem are committee understaffing and resultant concentration on new legislation or more major issues with perhaps only peripheral study of advisory committees, lack of public or congressional prodding to investigate advisory committees and dearth of knowledge of the requirements of FACA.This is not to say that there has been no oversight, because some committees have conducted thorough hearings on particular advisory committees,100 while other congressional committees are beginning to review advisory committees or at least have expressed an active interest in pursuing this function. OMB's Committee Management Secretariat should also be clearly empowered to control federal advisory committees. Sanctions for noncompliance with the Act must necessarily come from that office and from the Congress. As has been demonstrated, most of the failings in the advisory committee system stem from statutory ambiguity and administrative lassitude. Corrective action should be by amendment to FACA or vigorous agency enforcement of its mandates. Specifically, the following solutions are recommended. Congress should legislatively clarify and, through congressional oversight, enforce the current definition of a federal advisorycommittee. In particular, the National Academy of Sciences should be legislatively determined to be subject to FACA. Congress should statutorily define "balanced representation" in terms of direct and indirect interests as well as geography, race, and sex. All members should have equal voting power and equal financial assistance. Technically- and otherwise-qualified public interest representatives should be included in all advisory committees. Membership — Conflicts of Interest FACA should be amended to require preparation and full public disclosure of advisory committee members' conflicts of interest statements. The statements should contain financial affiliations and descriptions of direct and indirect industry funding of academic personnel. The Government in the Sunshine Act should be vigorously enforced by agencies and through congressional oversight. There should be 30-day notice publication in both the Federal Register and other media likely to reach affected or interested members of the public. Agencies should strictly enforce FACA's requirement that meeting minutes be maintained. In addition, the Act should be amended to require complete transcripts or tapes to be kept of all advisory committee meetings. Meeting Access — Annual Reports FACA's requirement that annual reports be "easily accessible" should be enforced. Indexing of the Annual Report should be mandatory. Meeting Access — Other Records Through amendment of FACA or an OMB directive, the Library of Congress should catalog and maintain in one place a complete record of all committee charters, minutes, transcripts, reports, and membership lists. The implementation of FACA has had an impact both on the advisory process and on agency operations. It has reformed the advising system into an organized, though perhaps slower, feedback system of [7 ELR 50012] non-governmental input. As for government operations, surprisingly, the increase in bureaucracy has not caused greater overall cost as the number of committees has generally decreased and the oversight on committee spending has increased.101 Perhaps too, more careful selection of members through demands for balanced representation and elimination of conflicts of interest produces more responsible advice. FACA, while incurring significant recordkeeping, does seem to be increasingly effective."Effectiveness" of a committee, though difficult to define and quantify, may be simply viewed as thorough committee consideration and commentary on any relevant issue which may benefit from outside evaluation. The basic purpose of the Act is to see that this consideration occurs with a standardized set of checks. Given this purpose, some strengthening amendments to the Act, based on several years' experience, are in order, and recent oversight hearings and the new amendments proposed by Senators Metcalf, Hatfield, and Percy could go far toward improvement of the system.102 Though some vested interests would prefer to see the Act destroyed or weakened — and it is possible that stronger regulation may lead special interests to further circumvent the Act and advisory committees — thorough oversight and agency compliance with the Act can help preclude this. It is also true that some committees have been largely isolated from the Act and probably will never be examined by overseeing bodies except possibly by the agencies which control them — such as the committees which deal with "national security" issues. In general, though, the more crucial and well-publicized the issue, the more chance that there will be careful consideration of membership and activities of a committee by an agency. The ultimate effectiveness of FACA depends on the overseers of the agencies — Congress and the public — requiring agencies and their advisory committees to conduct the public's business for and in sight of the public.
1. George Washington reportedly used an advisory committee to help resolve the Whiskey Rebellion of 1794. After World War II, a significant number of advisory committees were formed to help agencies make decisions by providing the diversity of expert advice not available within the ranks of government. See Levine, The Federal Advisory Committee Act, 10 Harv. J. Legis. 217 (1973); Perritt & Wilkinson, Open Advisory Committees and the Political Process: The Federal Advisory Committee Act After Two Years, 63 Geo. L.J. 725 (1975); Tuerkheimer, Veto By Neglect: The Federal Advisory Committee Act, 25 Am. U.L. Rev. 53 (1975). See generally Morehead, Federal Advisory Committees and Access to Public Information, in 2 Government Publications Review 1 (1975). In step with the growth of government, the number of subject areas in which advisory committee input has been sought has burgeoned, as has the complexity of those subject areas and the cost of dealing with them. See Table I infra. By 1975 there were over 1,250 federal advisory committees serving some 52 federal agencies, composed of approximately 25,000 members (about 6,000 nominated each year for about four-year terms) and advising all sectors of government on the widest range of regulatory policies. Many committee members serve simultaneously on several committees. See Table II infra. 2. Documents issued pursuant to the congressional studies include Presidential Advisory Committees, Hearings Before a Subcommittee of the House Committee on Government Operations, 91st Cong. 2d Sess. (1970) [hereinafter 1970 House Hearings]; Advisory Committees, Hearings on Advisory Committees Before the Legal and Monetary Affairs Subcommittee of the House Government Operations Committee, 92d Cong., 1st Sess. (1971) [hereinafter 1971 House Hearings]; Advisory Committees, Hearings Before the Subcommittee on Intergovernmental Relations of the Senate Government Operations Committee, parts I, II, III, 91st Cong., 2d Sess. (1970, 1971) [hereinafter 1970-71 Senate Hearings]. 3. Of the many bills introduced the most important were S. 1637, 92d Cong., 1st Sess. (1971), the Open Advisory Committee Act, introduced by Senator Metcalf (D-Mont.), and H.R. 4383, 92d Cong., 1st Sess. (1971), The Federal Advisory Committee Standards Act, introduced by House Committee Chairman Monagan (D-Ct.). The former proposed drastic changes in the advisory committee system, specifying that meetings must be open to the public, that membership on committees must be fairly balanced, and that noncompliance with the Act could be challenged in court. This bill provided that one third of the membership on an advisory committee must be from the public sector, that is, from outside industry or the government. Representative Monagan's bill, similar in intent but less restrictive, was the basis of FACA. As passed, however, FACA did incorporate Senator Metcalf's recommendations that meetings and records be open and accessible in accordance with the requirements of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, ELR 41015. In spite of efforts by the Nixon Administration to preclude legislation, FACA became law on October 6, 1972, P.L. 92, 463, 5 U.S.C. App. I, ELR 41019. 4. The authors make the following assumptions: (1) that public examination of issues is vital to proper government, (2) that FACA (or an improved Act), which requires significant recordkeeping and some standardization procedures, helps to insure this examination, and perhaps more essentially, (3) that legislation establishing an organized set of meetings in which issues may be debated in a single forum is in the public interest. These assumptions are based upon a well-founded fear on the part of many environmentalists, consumer representatives and other public interest workers that without these measures, industrial lobbying efforts and a plethora of well-financed promotional and research efforts would, meeting in secret with the government, overwhelm the understaffed, poorly-funded public interest sector. [Editors' note: One of the authors, Samuel Epstein, recently was rejected for membership on the Food and Drug Administration's advisory board for the National Center for Toxicological Research, even though he received the highest number of endorsements from consumer groups. The board advises the Center on how to allocate funds to study the biological effects of toxic substances. Burros, FDA Rejected No. 1 Choice for Advisory Panel, Washington Post, Nov. 27, 1976, at A3, col. 1.] 5. 5 FACA § 3(2). 6. Oversight Hearings before the Subcommittee on Budgeting, Management and Expenditures of the Senate Committee on Government Operations, 93d Cong., 1st and 2d Sess. (1973-74) [hereinafter 1973-74 Senate Oversight Hearings]; Hearings before the Subcommittee on Reports, Accounting and Management of the Senate Committee on Government Operations, 94th Cong., 2d Sess. (1976) [hereinafter 1976 Senate Hearings]. 7. FACA § 5(c). There is some controversy as to the meaning of this provision. Agencies have used it to exempt themselves from important aspects of the Act. 8. Id. § 10(a)(1). 9. Id. § 10(a)(2). 10. Id. § 10(a)(3)(c). 11. Id. § 10(d). 12. Id. § 5(a). 13. Id. § 7(a). 14. OMB Circular A-63 (1974). 15. General Services Admin., Federal Advisory Committees, Fourth Annual Report of the President (1976), Transmittal Memorandum No. 3 [hereinafter Fourth Annual Report]. 16. 121 Cong. Rec. S6562 (daily ed. Apr. 23, 1975). 17. Memorandum from C. Richard Boehlert, Deputy Associate General Counsel, Grants, Contracts and General Administration Division, EPA to staff Director, Science Advisory Board Secretariat, March 18, 1975, on The Use of Investigative Panels by Advisory Committees of the Science Advisory Board: The Act … does not apply to a group specifically constituted to gather information for the use of an "advisory committee" and which lacks recommendatory authority. Consequently, to the extent that your subgroups simply collect scientific information and data pertaining to a specific topic for presentation to an advisory board for their deliberations, they are not "advisory committee[s]" within the Act. 18. Memorandum from John F. Finklea, former Director, National Environmental Research Center, to Ms. Ferial Bishop, Office of Program Management, EPA, Comments on the Proposed EPA Science Advisory Board, Dec. 13, 1974, at 2 [hereinafter cited as Finklea Memorandum]. 19. FACA § 10(b). 20. E.g., a meeting of advisors to the Civil Aeronautics Board was not acknowledged as a federal advisory committee and was closed to the public. Aviation Consumer Action Project v. Yohe, Judgment for Plaintiff, Civ. No. 73-707 (D.D.C. June 21, 1973). 21. NRDC v. Coleman, Civ. No. 76-181 (D.D.C., filed Feb. 2, 1976), ELR Doc. [412], ELR 65327. Of the 11 members, 8 were from affected industries, 3 from the government. 22. Environmental Defense Fund v. Train, No. 75-2224 (D.C. Cir., filed Dec. 17, 1975), ELR Doc. [373], ELR 65291. 23. 121 Cong. Rec. S7340-42 (daily ed. May 1, 1975). 24. 36 U.S.C. §§ 251-254 (1970). See generally P. Boffey, The Brain Bank of America, An Inquiry into the Politics of Science (1975). In 1970, a House committee stated: A great number of the approximately 500 advisory committees of the National Academy of Sciences and its affiliates should be added to the above 1800 advisory committees as the NAS committees fall within the intent and literal definition of advisory committees under Executive Order 11007. H. Rep. No. 91-1731, 91st Cong., 2d Sess. 15 (1970). 25. Boffey, supra note 24, at 11. Science advisory committees with federal agencies are those federal advisory committees which deal specifically with scientific matters — for example, most National Institutes of Health committees. 26. Letter from Robert G. Dixon, Jr., Ass't Attorney General, Office for Legal Counsel, Department of Justice to Peter Barton Hutt, Ass't General Counsel, Food and Drug Division, HEW, Nov. 23, 1973. 27. Id. at 3. 28. Id. at 7. These committees were set up to review "Generally Recognized As Safe" (GRAS) ingredients in food. Subsequent to the ruling, FASEB copied NAS structure for advisory committees which effectively circumvented its need to comply with FACA. 29. 397 F. Supp. 792, 6 ELR 20046 (D.D.C. 1975). 30. Neuhold, Ecosystem Processes and Organic Contamination, A Workshop Proposal to NSF-RANN, App. A (The Institute of Ecology, Dec. 2, 1974). 31. Authors' discussion with F. J. Rimberg, The Institute of Ecology. 32. Neuhold, supra note 30, at 15. The TIE solicits and chooses committee members from its membership. Travel expenses are paid by the contractee. 33. Leter from Robert G. Dixon, Jr., supra note 26. 34. Authors' discussions with a staff member of the American Public Health Association, May 21, 1975 and other occasions. 35. This conclusion is based on conversations and letters between the authors and 20 committee management officers of various agencies during the month of October 1974, and analysis of approximately 300 advisory committee charters. See also Table III infra. 36. At least 105 of the 155 members on the National Petroleum Council are directly involved in the recovery, refinery and/or sale of petroleum products, not including law firms, banks, truckers, etc., whose significant business may be from these same products and with these same companies. 37. Aug, Ex-Aide Calls Continuing of Counsel Illegal, Washington Star News, Jan. 20, 1975, at A12. A Department of the Interior news release outlined the new procedures to balance the Council. Twenty-two members were added: three environmentalists, five consumers (which includes the AFL-CIO and a rural electric cooperative), three academicians, and a nuber of small business people. Dep't of the Interior, National Petroleum Council Broadened (Jan. 6, 1975). One observer has stated: [t]ypical is the National Petroleum Council which political science professor Robert Engler commends as a "case study" on how concentrated economic power is "capable of shaping or forestalling presumably public policies." Rodgers, Advisory Committees, Back Room Arm Twisters, The Nation, June 8, 1974, at 724. 38. Metcalf v. National Petroleum Council, Civ. No. 75-0397 (D.D.C., filed Feb. 9, 1976). 39. This conclusion is based on a mixed sample of 500 advisory committee charters for 1974. 40. 39 Fed. Reg. 24940 (July 8, 1974). 41. This data is based on authors' discussions with the three executive secretaries of the federal advisory committees of the Bureau of Radiological Health, April 23, 1975. 42. A.M.A. Develops Referral System to Put Doctors on U.S. Health Advisory Panels, N.Y. Times, June 29, 1975, at 19. 43. In the recently phased-out Hazardous Materials Advisory Committee of EPA, 50 percent of the membership had been constant since October 1971, even though members serve terms of only three years. Compare 1970 Senate Hearings, supra note 2, with EPA Committee Management Office, Advisory Committee Membership List (1973; Mar. 1975). 44. Letter from Harriet L. Hardy, M.D. to Brian Skinner, M.D., May 19, 1976. Dr. Skinner is Chairman, Committee on Mineral Resources and the Environment, NAS. Letter from John D. Stoeckle, M.D. to Brian Skinner, M.D., Apr. 19, 1976. 45. Letter from Lorin E. Kerr, M.D., United Mine Workers to Brian J. Skinner, Apr. 13, 1976; Falk, Notes on the National Academy of Sciences Supplementary Report: Coal Workers' Pneumoconiosis — Medical Considerations, Some Social Implications, (United Mine Workers, May 28, 1976). 46. Id. at 1, 2. 47. Letter from Brian J. Skinner to Dr. Lorin E. Kerr, Apr. 22, 1976. Letter from Robert Frank, M.D., Chairman, Panel on Coal Workers' Pneumoconiosis, to Lorin E. Kerr, M.D., July 2, 1976. 48. 122 Cong. Rec. S678-80 (daily ed. Jan. 28, 1976). 49. FACA § 5(b)(2). 50. Finklea Memorandum, supra note 18, at 2. 51. Dep't of Housing and Urban Development, HUD Form #HUD 844A (8-69) (not altered since passage of FACA): Food and Drug Administration, FDA Form #FD 2637 (2.74). Half of the ten agencies contacted by the authors regarding the confidential statement require their advisory committee members to complete the form. None of these makes the completed forms public. 52. Finklea Memorandum, supra note 18, at 2. 53. Dep't of Health, Education and Welfare, NIH Public Advisory Groups, Authority Structure, Functions, Members, (Jan. 1, 1974), DHEW Publ. No. (NIH) 74-11. 54. NIH, Public Health Service Grants and Awards, Part III, (1973), contract #9 No1 CP33278-00, $3,446,000, to Eppley Institute of Cancer Research. See also NIH Advisors Advised Cost of Penury is High, Science (May. 9, 1973). 55. Hearings Before the Subcommittee on the Department of Labor and Health, Education and Welfare of the House Committee on Appropriations, Part 4, 93d Cong., 1st Sess. 132 (1973). 56. Hicks, Politics Charges in Science Panels, N.Y. Times, Dec. 4, 1975. 57. Boffey, supra note 24, at 44, 87. 58. Id. at 77: In addition to such direct industry representation, many academic scientists serving on Academy committees have ties to industry that are difficult for an outsider to detect. Thus a committee that issued a report in 1971 on the biological effects of airborne fluorides was composed entirely of scientists from universities and research laboratories that were seemingly independent of industry influence. But it was later revealed that four of these scientists, who had written most of the report, had close ties to the aluminum industry, which is a major emitter of fluorides. Some had written publications for the Aluminum Association, received research support from the industry, or testified for the industry in hearings on fluoride standards. The report which they helped prepare under the Academy imprimatur proposed tolerance thresholds which were somewhat more lenient than standards proposed by the Center for Science in the Public Interest, a Washington-based study group. (footnotes omitted). The NAS itself recognized in an internal document of April 20, 1975 that: Scientists are accustomed to forming increasingly firm conceptions in their professional work and may not realize how much room there is in advice on policy questions. One of the authors has stated: In April 1969, a nine-man task force of this Committee (Food Protection, NAS), of whom five were industrial employees, one a commercial testing house director, and the other three academic scientists, with long and intimate associations with industrial interests, released a report entitled "Guidelines for Estimating Toxicologically Insignificant Levels of Chemicals in Food." None of the authors of the report are recognized as knowledgeable, let alone as authorities, in the field of carcinogenesis. Hearings before the Senate Select Committee on Nutrition and Human Needs, 92d Cong., 2d Sess. 12 (1972) (testimony of Dr. Samuel Epstein). 59. Wade, NAS Committee on Asbestos: Discovery of a Special Relationship, 193 Science 661 (Aug. 20, 1976). 60. FACA § 10(d). FACA allows meetings which consider issues of national security, foreign policy, personnel matters, trade secrets, confidential financial information, and interagency and intra-agency memoranda not available through litigation to be exempt from public access. 61. 121 Cong. Rec. S7340-42 (daily ed. May 1, 1975); 122 Cong. Rec. E1844 (Apr. 6, 1976). 62. Id. See also Aug, supra note 37. 63. Section 5(c), 5 U.S.C. § 552b, ELR 41017. 64. FOIA, 5 U.S.C. § 552(b)(1)(A)(5). 65. Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974), rev'd 535 F.2d 101 (D.C. Cir. 1976). 66. Id. For further litigation regarding FOIA exemption five, see also Wolf v. Weinberger, Civ. No. 74-454 (D.D.C. Oct. 31, 1975); Don't Tear It Down, Inc. v. GSA, 6 ELR 20091 (D.D.C. Apr. 23, 1975); Nader v. Dunlop, 370 F. Supp. 177 (D.D.C. 1973); Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973). 67. Section 17, P.L. 93-275, 15 U.S.C. § 776, ELR 41270. 68. "Freedom of Information" Can Work, 188 Science 812 (May 23, 1975). See also 122 Cong. Rec. E1589-90 (daily ed. Mar. 29, 1976). 69. Letter from Bertram Robert Cottine, Staff Attorney, Health Research Group of Public Citizen, Inc., to John H. Stender, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, January 7, 1975. Fact-finding is not one of the exemptions of the Freedom of Information Act; therefore, the meeting was closed in violation of the FACA. 70. 1973-74 Senate Oversight Hearings, supra note 6, at 20. 71. Id. at 79. 72. Boffey has stated: It is difficult for an outsider to evaluate how well a committee has performed simply by reading its final report. The report seldom makes explicit the compromises that were reached, the issues that were ducked, or the biases that may have swayed committee members. Such flaws might often be revealed in internal files. But lacking access to those files, we were forced to rely heavily on interviews to reconstruct the factors that influenced a committee's thinking. P. Boffey, supra note 24, at xi. 73. NAS, NRC Drafting Guidelines for New Public-Access-To-Information Policy, (May 7, 1975). 74. Consumer Product Safety Comm'n, A Report to Congress in Compliance with Lead Based Paint Poisoning Prevention Act, as Amended (Dec. 23, 1974); National Academy of Sciences, Report of the Ad Hoc Coomittee to Evaluate the Hazard of Lead in Paint Prepared for the Consumer Product Safety Commission (Nov. 1973). 75. Letter from Charles C. Edwards, M.D., Ass't Secretary for Health, HEW, to the Honorable Richard O. Simpson, Chairman, Consumer Product Safety Commission, Dec. 19, 1974, summarizing the views of the Department with respect to the safe level of lead in residential paints. Letter from Vernon N. Houk, M.D., Director, Environmental Health Services Division, HEW, to Dr. Robert M. Hehir, Director, Bureau of Biomedical Science, Consumer Product Safety Commission, Dec. 9, 1974. 76. P. Boffey, supra note 24, at xi. 77. Id. at viii: Almost all meetings of the Academy's working committees are off limits to press and public, making it impossible for an outsider to determine at first hand how well a committee performs. Similarly, most of the internal documents relating to an advisory report — including original data submitted to the committee, conflict-of-interest statements filed by committee members, expert critiques of the report by the Academy's own reviewers, occasional dissenting opinions, correspondence, minutes of meetings, and the like — are kept hidden from public view. The Academy has a rule that only those internal documents that are more than fifty years old are available for examination upon request; anything less than fifty years old is considered privileged and can be seen only with special permission, seldom granted (letter, Ernst Weber to Louis V. Lombardo). 78. This conclusion is based on the authors' 1974 survey of 500 committee charters. 79. OMB Circular A-63, § 8(b)(3) (1974). ACAP v. Washburn, supra note 65, suggested that a 30-day notice period would more easily have allowed the public to respond to notices. Also testimony in the 1973-74 oversight hearings promoted 30-day advance notice to allow those who have an interest in the meeting in question to arrange to attend the meeting or submit or prepare a statement for it. See generally 1973-74 Senate Oversight Hearings, supra note 6. 80. Chester Warner, speech at Freedom of Information Act Luncheon, Washington, D.C., Feb. 6, 1975, and authors' survey of the Federal Register, August 1975. 81. OMB Circular A-63 (1974). 82. Chester Warner speech, supra note 80. 83. A survey reported in the 1970-71 Senate Hearings, supra note 2, at 815, suggested that keeping complete transcripts of all meetings would be prohibitively expensive. However, although no study has determined precise numbers, many committees already make complete transcripts of meetings. 84. The First Annual Report is a five volume compendium, which costs $52. The Library of Congress publishes a summary of each annual report listing advisory committees and the agencies and committee management officers responsible for them. Also included in this summary is a copy of the Act, Circular A-63 and some basic cost information on the system. The microfilm of the Third Annual Report is available for $24. Unlike the First Annual Report, the Third Report lists the individual committee reports required by the Act to be available to the public. 85. These differences include the Senate Subcommittee consideration that ended on December 31, 1974, while GSA extended its consideration to include committee actions taken in January. 86. Authors' discussion with a member of the Senate Subcommittee on Reports, Accounting and Management regarding for example, the Emergency Stabilization Industry Advisory Committee for Retailing (other than food and automobiles) of the General Services Administration. 87. FACA § 13. 88. Information learned from authors' repeated visits to the Library of Congress. Letters from Carl C. Clark to L. Quincy Mumford, former Librarian of Congress. Letter from Mumford to Clark, October 1, 1974. Mr. Mumford correctly stated that the Act "does not define the methods" which should be used to maintain a repository at the Library of Congress. 89. Authors' discussions with Nathan Einhorn, Chief, Gift and Exchange Division, Library of Congress. 90. Authors' discussions with Alma Mather, Advisory Committee Desk, Library of Congress. 91. EPA, U.S. Environmental Protection Agency Advisory Committees, Charters and Rosters 6 (Jan. 1974). The committee no longer exists, having accomplished nothing. 92. Id. at 34. 93. Fourth Annual Report, supra note 15, App. D. 94. EPA, National Air Quality Criteria Advisory Comm., Draft Resolution (Revised), Effectiveness of the National Air Quality Criteria Advisory Committee, (Apr. 4, 1975). The Committee passed the resolution; EPA, National Drinking Water Advisory Council, resolution submitted by Harold W. Wolf, Mar. 15, 1975. 95. Draft Resolution (Revised), supra note 94. 96. In early June, 1975, a total of 18 committees of the House and Senate were contacted by the authors with regard to their oversight efforts. 97. This new list is unfortunately based largely on the old list and has been determined by the Senate Subcommittee on Reports, Accounting and Management to be significantly incorrect. For example, advisory committees of the National Endowment for the Humanities are listed as the responsibility of the Rules and Administration Committee, rather than, more logically, under the oversight of the Labor and Public Welfare Committee. 98. See Hearings (Appropriations for Fiscal 1975) before a Subcommittee of the House Committee on Appropriations, Part 4, 93d Cong., 2d Sess. (1974). 99. Id. 100. Some of the Food and Drug Administration advisory committees are being investigated by Senator Edward Kennedy's (D-Mass.) Subcommittee on Health, Committee on Labor and Public Welfare. See, e.g., Food and Drug Administration Practice and Procedure, 1975, 94th Cong., 1st Sess. (1975). 101. Most committees terminated by the FACA as of January 1975 have been renewed; others have been created and equal 25 more than the number of committees terminated. See Fourth Annual Report, supra note 15. 102. Federal Advisory Committee Amendments of 1976, S. 2947, 94th Cong., 2d Sess. (1976); S. 3013, 94th Cong., 2d Sess. (1976). See 1976 Senate Hearings, supra note 6. 1. 1970 House Hearings, supra text note 2, at 31. 2. 121 Cong. Rec. S1429 (daily ed. Jan. 27, 1975). 3. General Services Admin., Federal Advisory Committees, Second Annual Report of the President (1974). 4. General Services Admin., Federal Advisory Committees, Third Annual Report of the President (1975). 5. Fourth Annual Report, supra text note 15. * See 121 Cong. Rec. S22288 (daily ed. Dec. 16, 1975). ** These numbers represent maximum committees served. In other words, a member serving simultaneously on four advisory committees is not considered to be serving simultaneously on three advisory committees. * Employees from these organizations are representatives on the listed number of committees. See 121 Cong. Rec. S22290 (daily ed. Dec. 16, 1975). 7 ELR 50001 | Environmental Law Reporter | copyright © 1977 | All rights reserved |