ADVISORY COMMITTEES

THURSDAY, NOVEMBER 29, 1973

U.S. SENATE,

SUBCOMMITTEE ON BUDGETING, MANAGEMENT, AND EXPENDITURES, COMMITTEE ON GOVERNMENT OPERATIONS, Washington, D.C. The subcommittee met at 10 a.m., pursuant to call, in room 3302, Dirksen Senate Office Building, Hon. Lee Metcalf (chairman of the subcommittee) presiding.

Present: Senators Metcalf, Percy, and Roth.

Staff members present: Vic Reinemer, staff director; E. Winslow Turner, chief counsel; and Alan Chvotkin, professional staff member. Senator METCALF. The subcommittee will be in order.

OPENING STATEMENT OF SENATOR METCALF

Today the Subcommittee on Budgeting, Management, and Expenditures begins its oversight hearings and investigations into the operation and effectiveness of the Federal Advisory Committee Act. This act, Public Law 92-463, signed into law on October 6, 1972, became effective on January 5 of this year.

Advisory committees are a major source of information for many departments and agencies. Some committees are created by statute, some by Executive order, and others by agency authority. Regardless of their beginning, however, they are used in almost every policy area of the Federal Government. The Federal Advisory Act has several key provisions:

First, through a reporting requirement, it identifies the location, function and costs of advisory committees in the executive branch. In hearings leading to the passage of this legislation, it was found that the Federal Government did not know how many advisory committees existed, who had responsibility for them, or what functions they performed. Thus, the reporting requirement provides an annual inventory.

The report requires that advisory committee members and their affiliations be specified. This serves two functions: (1) to identify those individuals who are giving advice and recommendations to the Federal Government, and (2) as a means of broadening the representation on advisory committees to include varied points of view and interests.

Second, to combat the problem of a lack of central control and responsibility, the act established within the Office of Management and Budget a Committee Management Secretariat with responsibilities for all matters relating to advisory committees. This arrangement

facilitates centralized decisionmaking and accountability. Thus, OMB has been assigned overall responsibility for the 1,439 committees identified as of the last calendar year. Standing committees of the Congress also have certain responsibilities under the act.

Third, except in certain instances, the act calls for open meetings of all advisory committees. The Congress recognized that while total open government is not possible, closed advisory committee meetings should be the exception and not the rule.

The act also deals with advance notice of meetings, balanced representation of membership, meaningful minutes or transcripts, the justification or discontinuance of advisory committees now in existence, nonestablishment of new advisory committees if an existing Federal agency or advisory committee can do the job, and limitation of these committees to advice, rather than policy decisionmaking and implementation.

Advisory committees are also subject to interim guidelines, issued jointly by the Office of Management and Budget and the Department of Justice pursuant to Public Law 92-463.

The hearings beginning today will provide an opportunity to assess adherence to the law and the guidelines by both agencies and advisory committees and to evaluate the law and the proposed redraft of the guidelines.

These hearings will be continued from time to time. To open this first oversight hearing we are very pleased and honored to have Prof. Richard Wolf, deputy director, Institute for Public Interest Representation, Georgetown University School of Law. accompanied by the staff attorney, Cathleen Douglas, and Harry Hull.

We are delighted to have you here. Would you identify for the reporter the colleague at the table?

STATEMENT OF PROF. RICHARD WOLF, DEPUTY DIRECTOR, INSTITUTE FOR PUBLIC INTEREST REPRESENTATION, GEORGETOWN UNIVERSITY SCHOOL OF LAW, ACCOMPANIED BY MRS. CATHLEEN DOUGLAS, STAFF ATTORNEY, AND HARRY HULL

Mr. WOLF. Thank you very much, Senator Metcalf.

On my right, as you have mentioned, Cathleen Douglas, a staff attorney with our institute and on my left is Harry Hull, 3d-year student at Georgetown Law Center, who has helped considerably with our work in the Adivosry Committee Act area.

We thank you and the committee for asking us to discuss with you today some of our experiences with the Federal Advisory Committee Act.

On the whole, the act is a most significant addition to open government in the United States. I don't want my criticisms later on of certain provisions of it and its implementation by OMB, the Office of Management and Budget, to detract from the overall important addition that the act and some of the guidelines are to our Government.

Our institute has represented several persons and groups in their efforts to attend and participate in advisory committee meetings. For the most part, we have seen that Federal agencies and departments have been reluctant to comply with the spirit of the act. Meetings are

too often closed to the public, and I suspect that the secret policymaking which Congress sought to eliminate by this legislation still has a fertile environment in which to flourish. The act, however, is essentially sound. Its language, with few exceptions, is unambiguous. Therefore, if the act's mandate is fully implemented by the departments and effective regulations are issued by the Office of Management and Budget, advisory committees will be a meaningful and well-balanced aid to Federal policymakers. And I might add, may also give a strong feeling of participation by the public generally in the processes of the Federal Government.

First, however, the following summarized problems, which I will discuss in more detail during my testimony, must be addressed.

1. Timely notice of advisory committee meetings. The act's fundamental requirement is that advisory committees shall be open to the public. But this principle has little utility if the public and interested groups and any person have only a few days advance notice that a meeting is to be held. This has too often been the case thus far since the act's passage. Although advisory committee members often are informed months before the actual meeting, other outsiders cannot quickly rearrange their schedules if they learn of the session only a short time before it is to begin. At the present time OMB has an interim guideline requiring only 7 days' advance notice and we think that this is far too short a time.

We would suggest a 30-day published notice for the public, the advisory committee and anyone else to be advised of the committee meeting.

We say this 30-day requirement, and I would suggest 30 days from publication in the Federal Register, is necessary because if you are going to have meaningful attendance, people have to arrange schedules and get here with a minimum of conflict. But possibly more important, if preparation-that is to say, preparation for participation in the meeting-is warranted it takes a minimum of 30 days for the outsider to make an intelligent presentation. Of course, he can always submit some material after the session has been concluded but we think that it is much more meaningful, and of course required if you are participating, to have this material prepared beforehand.

We would like to mention in passing, as Senator Metcalf has noted in the Congressional Record, that the Federal Register's newly instituted publication, in bold faced form, of advisory committee meetings at least a week in advance is an improvement, but again the notice is far too short.

In the notice area, as the OMB guidelines now indicate, there are and should be in addition to the Federal Register other forms of notice to the public and possibly more important to groups interested in the subject matter of the agency committee.

For example. OMB now in its interim guidelines talks about press releases and notices by mail. That is fine, but oftentimes press releases are not picked up and the appropriate interest groups or individuals don't know about the meeting. We would suggest that agency officials should notify by mail interested groups that they believe might be interested in the meeting.

This is not too far-fetched. We don't think it is far-fetched at all. Any agency knows which groups are interested in its subject matter.

When I say which groups, I mean groups having a diverse point of view, both industry-oriented, shall we say, and nonindustry-oriented.

It is not too much to ask the intelligent agency head to make sure that at least 30 days in advance formal notification goes out to these groups.

A press release is helpful, but we would suggest that a notice, and these committees have ample budgets we think for this, a notice, for example, in the newspapers would be appropriate publicity. It is not costly, at least if it is placed in a paper in the city in which the advisory committee is to be held. It would at least alert people in that area, those who were interested, about the meeting.

The press release format can be picked up by interested reporters here or people who are covering particular agencies and that is another form of notice. We also see nothing wrong with an insertion in a local newspaper with general circulation in the city where the meeting is to be held advising people about the committee meeting.

I would like to mention one thing. In the present interim OMB guidelines there is a provision for waiver of notice in national security areas. No more is said about that in the present OMB guidelines. This concept we think is much too vague, the concept of waiver in national security areas. There may be, and in fact I am sure there are, emergency meetings that have to be called from time to time on short notice. But this kind of waiver ought to be explained much more thoroughly in the notice of emergency meeting in the Federal Register and elsewhere. Afterwards a description of that meeting should appear in the Federal Register discussing in as much detail as possible relating what happened.

In other words, an after-the-fact notice as well would be required. We understand that OMB is working on new regulations and perhaps we will get more enlightenment once they are issued on the waiver of notice provision.

I would like to go next to the content of the published notices in the Federal Register and elsewhere. Thus far we think such notices for the most part have been deficient. Most committees give too little information on precisely what the committee is to consider. For example, relevant parts of the agenda for the meeting should be publicized and, where all or part of a meeting is sought to be closed, detailed reasons justifving this course should be set forth. We don't mean to say that in all situations an agenda will be sufficient. There will be some committees who will publish the most generalized agenda, which of course would hold to the letter, but not to the spirit, of what we are suggesting.

Our point is that the description of what is going on at the meeting should be meaningful. If it is an agenda which details in some fashion the substance of the meeting, that is fine. If it is a paragraph or two statement in detail, that is fine also. But the point is to get across to the lay reader as well as interested groups what is going on, and then that person or that group can make a decision of whether or not to attend or participate.

I will get into more detail in a moment about closing of meetings and the reasons for such a procedure, but just let me touch on that briefly now.

If a meeting is closed, it is important to discuss in the notice of closure why it is being closed. Let me say why. We don't just mean the recitation of an exemption which may be applicable under the Freedom of Information Act. There is nothing even in the national security area, we suggest, that prevents a fairly detailed description of what in terms of topics is being discussed in order to justify the exemption or closing.

This will, of course, give interested groups a chance to object informally to the agency, to say that it ought to be opened up, or if worse comes to worse, litigation can result if outsiders feel that it is totally unjustified. But there must be some meaningful way of advising the public of why a meeting is closed.

The public now has to depend upon the good faith of the agencies in this regard, but OMB, with strict guidelines as to the content of closure notices, will go a long way to help agencies achieve this result.

Another, and I think perhaps the most significant part of opening up advisory committee meetings to diverse points of view, and getting so-called public interest aspects across to the policymakers who receive the recommendations of the advisory committee, is to have the membership of the committees itself represent a diverse point of view.

The statute, the act itself, we believe, provides ample authority for participation of a variety of groups. Sections 5(b) (2) and 5(c) discuss this in some detail. But the point is that the agency should make sure that it has a diverse point of view expressed at the committee level in the form of membership on the committee.

New procedures for selection should be utilized to achieve this result. We are not quite sure how this should be done, whether by amendment, for example, but at this point there are no OMB guidelines on the manner of the agency's selection of committee members.

We have had personal experience with a problem which I suspect won't come up too often, but it may arise again and I thought it would be a good idea to mention it this morning. This is the socalled de facto advisory committee meeting where the agency head decides to meet with a group of outsiders and does not recognize this meeting constitutes an advisory committee session. The agency therefore doesn't comply with any of the reporting or chartering require

ments.

We had one experience where the agency director wanted to meet with a group of scientists outside the government admittedly to receive advice on national science policy. This to us seemed to be a most obvious type of advisory committee meeting and we made efforts to get the agency to comply with the act.

To make a long story short, we had some success, but this area still is vague.

In any event, it illustrates the situation where the policymaker, the agency head, wants to meet with outsiders, but doesn't wish to comply with the act. This situation also raises the problem of the one-shot meeting. We are not suggesting here that each and every time a Federal policymaker is to meet with one person that is an advisory committee. I don't think that is, or should be the case, but some problems are raised when you are talking about meeting with two, three, or four people for advice on policy. I think at that point you probably do get into the Advisory Committee Act legislation and Federal policymakers have to adhere to the act in those circumstances.