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Mr. MARGULIES. We will. We are responsible for it. As of now, we do not have them. These are still being generated by task forces. There is no formal submission yet to the committee.
The CHAIRMAN. So if you depart on this prospect that the task forces do not exist for legal reasons under the act, nothing comes into the control of the Department of Commerce as the public representative until the task forces have concluded their work and given something to-
Mr. MARGULIES. Until it has reached the Executive Committee.
The CHAIRMAN. Well, would not such a simple thing as a list of the task forces come to you. Even though the task forces may not be covered, the Executive Committee took some action to constitute the task forces and assign people to them. At that point, does that not become one of the very kinds of records that the act contemplates?
Mr. MARGULIES. I have no quarrel with you on that. If it is there, it is part of the advisory committee material, and it is subject to what you are reading.
The CHAIRMAN. Since we have not been able to get from the Executive Committee itself that list, would you supply it to us or give us a letter telling us that it is not in your record, or has not been filed, so that we can ask your employee why she is not maintaining it?
Mr. MARGULIES. We will do one of the two.
The CHAIRMAN. Thank you. Now, again, the work plans are delineated in the strategy for conducting this study by the Executive Committee through its executive director. We know that work plans are in fact in existence and have been transmitted back in some fashion. Has this become the business of the executive committee when they meet at some date in the future to accept them formally or when they are submitted back with a report saying, “This is what we are doing.”
Mr. MARGULIES. Close question. I cannot answer that now. I really do not know.
The CHAIRMAN. Have you seen the almost humorous memorandum directing them in early September to come up with three to five horror stories?
Mr. MARGULIES. I was here at the last session when you read it. I have not seen it.
The CHAIRMAN. I was not so much surprised by the acknowledgement of paternity as I was by the explanation of legitimacy that we received at the last meeting. The witness who was here this morning said that his task force chose to disregard it. Unless one is willing to assume that all of them selectively chose to disregard this directive, there must be some kinds of lists of egregious and horrifying stories that have been submitted since September 7 to the Executive Committee. When they are submitted to the Executive Committee, do they not then become a public record?
Mr. MARGULIES. I am not clear on that question either. I am not sure I can answer it. I would like to look at it and supply that answer for the record. I just do not know.
The CHAIRMAN. Let us do it the other way. Do you have any doubt-assuming the validity of the distinction made between the activities of the Executive Committee, the status of membership on that committee, and the restrictions on the committee and its employees, assuming that being separate from the task forces, subcommittees, outside study groups, or whatever-at the point where a response is made to a request for information to anyone outside of the Executive Committee, and that response is made to the executive committee, does that not become an Executive Committee prima facie public record?
Mr. MARGULIES. I am just not clear on the answer of at what point of time it becomes the product of the committee or the record of the committee. I just cannot answer that right now. I do not know whether its coming to x makes it the product of the committee.
The CHAIRMAN. I cannot believe that Jack Brooks intended that an Executive Committee of this kind could wait until the 11th hour of the day, on December 31, and finally meet and accept this thing after it is all in the newspapers and say, “This is the way we are protecting the public interest.”
Mr. MARGULIES. I am not saying that is so. I am not able right now to answer your question. I just do not know when that becomes the product of the committee and so available on a freedom of information request or available to you. I do not know.
The CHAIRMAN. I am totally befuddled about all these little games we are playing. It is as if we were trying to get access to our first strike plans for an atomic war here, and we only started out asking about the Federal pensions. I find it extraordinary that we are going through all this anguish over just looking at a list of names or looking at a work plan, which everybody acknowledges is in existence and is the basis upon which they are asking our employees to drop everything else and get this information for them.
We have people over at OPM, with the Office of Management and Budget, the Congressional Budget Office, in this committee, and in Senator Stevens' committee, all asking Federal employees to drop everything they are doing and give them information. At the same time, somebody is in there trying to find out whether we are operating efficiently; now, how in the world they can operate efficiently with all of us asking them in a repetitive way to keep accumulating all this information, rather than putting it in a place where we can share it, gets to the very essence of why this act was written and why it was written in the way in which it was written, so that we would avoid this kind of wasteful duplication of effort by everybody concerned.
As much as I try to escape the cynicism of this city, there is a terrible strain put on me to wonder why we are making this so complicated. I would appreciate very much having your reaction to the question of the point at which materials submitted in response at least to a request from or direction from the Executive Committee becomes a public record available to us. We are not asking for anybody's secrets. We do not want to pry into anything that is going to interfere with these people. But the intent and purpose of that act was that as you gathered information it would be available with notice in the Federal Register, to agencies, people interested in the agencies, committees interested in the agencies, to know what it was you were gathering together and what you purported to find or what you did find.
Mr. MARGULIES. I will supply that as our reasoned response to your question.
The CHAIRMAN. I am looking at the GAO report back to me earlier in the month. It says:
The Commerce Committee's management handbook, which governs advisory committees established by or assigned to the department, gives broad coverage to the concept of advisory committee, subcommittee, or subgroups. Part 2, chapter 1, section E, of the handbook applies to any advisory committee subunit, whether it is to be identified as a subcommittee, task force, study team, panel, or subgroup, or by any other term, and whether it is temporary or permanent.
This section of the handbook further provides: Section .03, Conditions of Utilization: Subcommittees cannot be used to circumvent any of the objectives of the Federal Advisory Committee Act. The activities and operations of subcommittees are subject to the same rules and conditions that apply to chartered parent committees as set forth in the next chapter, Committee Activities and Operations.
Now I understand that you have some question of the legality of your own handbook requirements?
Mr. MARGULIES. No, hardly, not the legality of it.
The CHAIRMAN. Is this requirement in your handbook being complied with?
Mr. MARGULIES. We believe it is.
The CHAIRMAN. Even though you deal in great and painful detail with eliminating any kind of name of a subcommittee that might substitute for the word “subcommittee” and indicate that attempting to call it something else and do something else would subvert the purpose of the act?
Mr. MARGULIES. That is your chacacterization, not ours.
Mr. MARGULIES. No. We have tried to be very clean with this. But, as we applied it to this entity before us, we concluded that the task force was not a subset of the Executive Committee.
The CHAIRMAN. You give very broad coverage to the concept of subgroups and say “applies to any advisory committee subunit, whether it is to be identified as a subcommittee, task force, study team, panel or subgroup, or by any other term, and whether it is temporary or permanent." What are the characteristics of these task forces that take them outside the use of the expression "task force” or “study team”?
Mr. MARGULIES. The expression at the beginning of the sentence assumes that you are already an advisory committee and then you are shuffling off. Here, we do not reach that. The task forces are composed differently. Essentially, you have an executive committee that is composed of special employees of government. You have a task force that is composed of people who stay outside. We thought that was a sufficient difference. As I said earlier, I am not arrogant about that. It was a view we reached when we looked at it. Justice agreed with us. I would like to examine, first, what GAO has to say, go back, deal with my counterparts at Justice, and look at this. But we did look at this and thought we were all right.
The CHAIRMAN. But if you look at the amplification under the title of "Conditions of Utilization," it seems that in your agency you made it absolutely clear that you would regard any kind of a subgroup-there cannot be any question from your organizational chart that it is a subgroup. There cannot be any question from the way in which the people are selected and the population from which they are selected; that membership on the executive committee is a condition precedent to being a subcommittee chairman. The subcommittee broke itself up into task forces, with three to four members serving on each task force. It looks like a duck, it walks like a duck, it quacks like a duck, and I have a lot of trouble seeing a chicken here.
Mr. MARGULIES. Let me try and formulate the reason we made the judgment that we did. The task forces provide staff support to the Executive Committee, under the agreement between the Foundation and the Department. They are not, in themselves, advisory committees or subgroups of advisory committees, but rather they are the equivalent, in our view, of employees of a joint venturer who is performing the functions required of that joint venturer in the agreement with us. The way we set this thing up, Commerce entered into an agreement with the Foundation: they do certain things, we do certain things, so the
whole effort would come together. We viewed them as separate. These are the fellows who come from the joint venturer; the Executive Committee is ours; the task force is theirs; they meet down here, our effort meets down here, but we close it off at the Executive Committee.
That is right or it is wrong, but that is what we did, and that is how we viewed it at the time. We viewed the task forces as not ours but theirs, and so not a part of the Executive Committee and not subject to the advisory committee act.
The CHAIRMAN. Except that the executive director, Mr. Bolduc, does not consider it to be that remote. In his memo, he addresses his memo to "desk officers and project managers.” The project managers are found only at the task force level. He gives them specific instructions on what he wants them to report back on without undue delay. He gives them a qualifier that he is not too much interested in how much money it saves as long as it is embarrassing: He says, “Try to limit your description to no more than one page. It is a specific direction on how the report is to be made back. “You may feel free to submit these to me through your desk officer on an ongoing basis."
How do you get that separation?
Mr. MARGULIES. Mr. Bolduc, as I understand it, is part of the Foundation. You have problems when you have a joint venturer arrangement. He is part of this total effort that we are doing, but he is with the Foundation. He is directing his whatever to the Foundation people.
The CHAIRMAN. If I did not believe in Santa Claus I might think that somebody deliberately structured this in a way to avoid the provisions of the act. Do you think it just accidentally fell that way?
Mr. MARGULIES. I am sure a lot of thought was given to the setup of this organization.
The CHAIRMAN. What purpose is served by separating the function, laying aside the legality of where it is, in that fashion, when you have a relatively short charter. In June the Executive order came out. December 31 is the end of their period of operation. They indicate that they are prepared at the task force level with some timetable in the first week in October. What purpose would be served by setting the structure up to avoid having the records, documents, studies, findings, recommendations, deliberations, and other activities of the task forces insulated from any public scrutiny or public exposure until it was a finalized product.
Mr. MARGULIES. I was not part of those conversations, so I can speak to it only abstractly. It seems to me as an abstract statement that there is a great problem until the work of the task forcewhich is, if you will, unfathered-is submitted to the Executive Committee and receives some sort of consideration by them. Until then, it really has no moment. The work is being done so that it can be submitted to someone else who can make recommendations. The recommendations have no paternity until they go through that established advisory group.
The great danger in letting the work of the task force be more than it is, is that in a town like this, with this broad kind of task force, work that will never see the light of day becomes very significant to everyone. People will get very excited about items that just cannot survive, for reasons that you have pointed out here. So, when you create a kind of a layering of this work that need not be fathered or authored, from the more serious efforts of that executive group, you preserve an opportunity to have some discrimination as to the work that is done in the task force, to decide what really can go forward and what is just a bunch of guys who have gotten together who have gone off half cocked.
I say that as an abstraction. I was not part of these discussions, but it seems to me, having been around this town awhile-
The CHAIRMAN. It seems that the abstraction comes very close to the impression I am getting. Mr. Grace's representatives said the other day that they did not intend to direct the task forces in how they went about their jobs. We found out that in fact they are directing them. They made up the makeup of the task forces and then task forces make out these work plans which seem to be causing all the difficulty. That is the point I raise, the question of whether or not they are violating the Executive order and indeed violating the clear statements of the White House at the time of announcing this operation when they start fooling around with program content to the exclusion of looking at program administration.
That is the reason this act is out there, that you cannot go in saying that you are fishing but carry a shotgun under your coat and start shooting pheasants. You have to declare up front, when you are going into Uncle Sam's back pocket and into his computers, what it is you are going in after. This work plan, with respect to OPM, does not read like anything we read or heard when this whole thing was set up. It was not a matter of concern then. I think the committees felt, “right on, we are happy to have some