ADVISORY COMMITTEES TUESDAY, FEBRUARY 5, 1974 U.S. SENATE, SUBCOMMITTEE ON BUDGETING, MANAGEMENT, AND Washington, D.C. The subcommittee met at 10:30 a.m., pursuant to call, in room 6202, Dirksen Senate Office Building, Hon. Lee Metcalf (chairman of the subcommittee) presiding. Present: Senator Metcalf. Also present: Vic Reinemer, staff director; E. Winslow Turner, chief counsel; Alan Chvotkin, professional staff member; Jeanne McNaughton, chief clerk. Senator METCALF. The subcommittee will be in order. I hope that we have some other members of the subcommittee here, Mr. Malek, but these are busy days. There are meetings, including the Conference Committee on Energy, and I think that every one of us have the same thing when the Senate is in session. So I hope you will discuss it, and we will all go over your testimony, as you know, and as carefully as we can. This is the third day in a continuing series of oversight hearings and investigations that this subcommittee is conducting into the operation and effectiveness of the Federal Advisory Committee Act, Public Law 92-463. The act, which establishes a system governing the creation and operation of advisory committees in the Federal Government, has been in operation for 13 months. It is an open meeting law, a "sunshine" law for the fifth branch of the Federal Government. Generally, agencies are attempting to implement the law. In some agencies, however, the act is disregarded or circumvented. Witnesses have come before this subcommittee to tell us how they view the operation of the act. This subcommittee has been reviewing policies and procedures. Shortly, agencies will be given an opportunity to explain their procedures and experiences. We are fortunate to have the Deputy Director of the Office of Management and Budget before this subcommittee today. The act places a heavy burden on OMB and the Director. He is the central figure if the law is to be effective. He has broad policy responsibilities, an overall coordinating role, and enumerated functions. We are pleased that Mr. Malek would be with us this morning. The President has just released his budget for fiscal year 1975. I am glad that we will have an opportunity to discuss this vital area of public access to executive branch advice with Mr. Malek before every committee on the Hill tries to get from him an explanation of how the new budget will affect programs. I reiterate, we are honored and delighted to have you here, Mr. Malek. You have a prepared statement. I hope you will summarize it, because we have read it. We have a vote at 12 o'clock and hope we can get you out of here by then. STATEMENT OF HON. FREDERIC V. MALEK, DEPUTY DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, ACCOMPANIED BY WILLIAM HAWLEY, COMMITTEE MANAGEMENT SECRETARIAT; ROYE LOWRY, STATISTICAL POLICY DIVISION, AND ROBERT BEDELL, ASSISTANT GENERAL COUNSEL Mr. MALEK. Thank you, Mr. Chairman. On my extreme left is Mr. William Hawley, who is the head of the Committee Management Secretariat in the Office of Management and Budget; to my immediote left is Mr. Roye Lowry, who is the clearance officer in the statistical policy division; on my right is Robert Bedell, Assistant General Counsel. I would like to say in behalf of all of us we are very pleased to be here today to offer testimony during the subcommittee's continuing oversight hearings into the operation of the Federal Advisory Committee Act. I do have a short statement which I will summarize at this point. The President signed the Federal Advisory Committee Act on October 6, 1972, and it became Public Law 92-463, taking effect on January 5, 1973. As you pointed out, Mr. Chairman, this act placed certain responsibilities on the President, the Director of Office of Management and Budget, and on the offices and agencies of other members of the executive branch. The President issued Executive Order 11686 on October 7, 1972, to implement the Federal Advisory Committee Act and to direct the heads of agencies to act to assure their ability to comply with the act. After the President signed the act, OMB took a number of steps which I will summarize for you. First, we established the Committee Management Secretariat under the direction of the associate director for management and operations. Secondly, we developed and published guidelines to implement this act. These guidelines were published on January 23, 1973, and provided guidance to the various agencies of the executive branch in establishing their procedures to assure their implementation of the law. These guidelines are in effect today. We have since done a considerable amount of work to refine these guidelines, to improve them, including submitting them for agency comment and public review. We expect to publish them this month in the Federal Register as OMB Circular A63. Senator METCALF. I understand that you have a 93-page revision of your previous draft interim guidelines. Mr. MALEK. Yes, sir. I might mention parenthetically that we believe a fundamental theme of the Federal Advisory Committee Act is that the meetings of advisory committees be open to the public. We believe that this is an important part of the act and that exceptions to the general rule should be made only if the effective functioning of the committee really requires that. Furthermore, we feel it is important that the agency heads enunciate these reasons and thereby permit the public to understand these reasons are sanctioned by the law. A third step that we have taken in OMB is to direct all users of advisory committee to make the comprehensive review that is required by section 7(b) of the act. As a result of this review, we have been able to diminish the number of advisory committees by 16 percent. This is really the result of the first 6 months of effort. We now have agency reports coming in that cover the calendar year of 1973. We are in the process of compiling these and analyzing them at the present time and they will be made a part of the President's annual report, which will be submitted to you next month. We also plan a very rigorous review on the second anniversary of the act to insure that those agencies that have not made the right kind of progress in reducing their advisory committees or at least subjecting them to intensive scrutiny-will do so. We also collected the data for the first annual report of the advisory committees. Copies of the full report as required by the act were provided to the Senate, the House of Representatives, and the Library of Congress. Since that time, after discussion and agreement with the General Services Administration, we have decided to ask GSA to prepare the annual report, with our oversight. We think this is a good change. We think it will provide for the steady and systematic accumulation of advisory committee records in GSA by the National Archives and Record Service. I understand, Mr. Chairman, that the subcommittee is interested in hearing also an expression of OMB's views on what constitutes balanced membership on an advisory committee. The act itself uses broad language to establish the requirement. Section 5(b) (2) states that any legislation creating advisory committees shall require the membership of the advisory committee to be fairly balanced in terms of the points of view presented and the functions to be performed by the advisory committee. For the present we plan to include this statutory language in Circular A63 and then, perhaps relying on a supplementary Department of Justice memorandum to discuss the concept of balanced membership. We will at a later time evaluate our experience with this part of the guidelines and make modifications that seem appropriate. Mr. Chairman, I think we have made considerable progress in administering the act since it was passed. We had the advantage of an existing committee management framework within OMB that had been established by prior Executive order. We have used this framework in establishing procedures for the orderly administration of advisory committees. I think it is clear from the first year of operation that some progress has been made, but that more needs to be made. We are still learning as we go along and hope to improve our administration of the act as time goes on. Mr. Chairman, we would be very pleased to respond to any questions. [The prepared statement of Mr. Malek follows:] PREPARED STATEMENT OF HON. FREDERIC V. MALEK Mr. Chairman and members of the subcommittee: I am pleased to be here today to offer testimony during the subcommittee's continuing oversight hearings into the operation of the Federal Advisory Committee Act. The President signed the Federal Advisory Committee Act October 6, 1972. It thereby became Public Law 92-463, taking effect on January 5, 1973. It superseded Executive Order No. 11671, "Committee Management" of June 5, 1972, in which this Administration had set general standards for the formation, use and accessibility to the public of committees appointed to advise or assist the Federal Government. The enactment of P.L. 92-463 placed certain responsibilities on the President, the Director of the Office of Management and Budget, and the officers and agencies of the Executive Branch. Executive Order 11686, "Committee Management", of October 7, 1972, implemented the President's approval of the Federal Advisory Committee Act, and directed the heads of agencies to act to assure their ability to comply with the Act. After the President signed the Act, OMB took the following steps: 1. Established the Committee Management Secretariat. The Assistant Director for Management and Operations is responsible for this function. Within his directorate, the function is assigned to the Organization and Special Projects Division. Building upon the system of agency Committee Management Officers established by Executive Order 11671, the Secretariat began preparations to implement the law on its effective date, January 5, 1973. 2. Developed and published guidelines to implement the Act. These guidelines were published January 23, 1973, for the guidance of the agencies in establishing their procedures to implement the law. Those guidelines are in effect today. We have done considerable work on the guidelines to improve them, reviewing agency and public comment during the process. We expect to publish them in the Federal Register, and to include them as CMB Circular A-63 in the OMB Chapter in the Code of Federal Regulations. Parenthetically, we hope to publish the final guidelines shortly. They will state what we believe is the fundamental theme of the Federal Advisory Committee Act-that meetings of these committees will be open to the public. We believe that exceptions to this general rule should be made only if the effective functioning of the particular committee requires it and the reasons necessitating the exceptions are recognized by the Act. Furthermore, we believe that the agency head should clearly enunciate these reasons and thereby permit the public to understand these reasons and that they are sanctioned by law. 3. Directed all users of advisory committees to make the comprehensive review required by Section 7(b) of the Act. As a result of this review, the number of advisory committees reported declined about sixteen percent. We are now receiving agency reports in preparation for the President's annual report of advisory committees. This report will tell us, of course, whether the downward trend in numbers is continuing. In any case, we plan a particularly rigorous review on the second anniversary of the Act. 4. Collected the data for the first annual report of advisory committees. Copies of the full report which provided detailed information required by the act were provided to the Senate, the House of Representatives and the Library of Congress. A printed summary of these data was made available for public sale through the Government Printing Office. This report was prepared by OMB staff. Since that time, after discussion and agreement with the General Services Administration, we have decided to ask GSA to prepare the annual report. We have discussed the preparation of the report with the GSA, and are advised that the National Archives and Records Service will prepare it. We think the change is a good one, because it will provide for the steady and systematic accumulation of advisory committee records. In addition, the GSA, as a line agency, may be able to devote more staff time over the years to the preparation of the report than OMB could. In this connection, Mr. Chairman, we understand your interest in seeing that the entire report, including the detailed information specified by law, is printed and made available for sale through the GPO. We are interested, of course, in having this information made readily available to the public, and as mentioned earlier, this has been accomplished in large part through making the President's First Annual Report of |