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Company and the National Canners Association.12 The Committee's minutes offer insights into attitudes of public disclosure:

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"The advantages and disadvantages of ultimate publication [of the draft guidelines for evaluating the safety of pesticide chemicals] in the Federal Register were debated. A number of members considered that formal publication might preclude desirable flexibility and the opportunity for later amendment. Several ventured to suggest that, in present form, its dissemination through the Federal Register would not attain the desired wide distribution of information because it contained little that is not already known at least by industry.)" Yet another collection of advisory committees deserving close attention is the FDA's over-the-counter (OTC) drug products review panels, which will pass judgment on the safety, efficacy and adequacy of labeling of products ranging from deordorants to cold remedies to first-aid preparations. The public minutes of the OTC Antimicrobal Review Panel, to mention but one example, are replete with discussions about unsafe, unproven or useless home remedies.

There are opportunities, then to learn about public policy by observing the advisory committee in action. Whether the advisory committee and its agency overseer are interested in explaining that authority is another matter.

II. EVASION AND VIOLATIONS OF THE 1972 ACT

In the few months since the Congress determined to pry the lid off the advisory committee there has come into being a proliferation of evasive techniques that took years to refine under the Freedom of Information Act. My experiences are anecdotal but, I submit, confirm unmistakeable pattern of response:

(1) Extermination

The classic in this category is the Coast Guard's decision to disband its Industry Advisory Panel on Oil Pollution because of the members' opposition to opening up the meetings." The official explanation was that the committee duplicated deliberations conducted elsewhere, notably through advisors to the Marine Safety Council. Needless to say, an effort to gain access to the deliberations of the Marine Safety Council is barred by invocation of the intra-governmental communications exception to the Freedom of Information Act. I am happy to report, however, that I was given access to the minutes of the now defunct Oil Pollution Panel of the Coast Guard because the material was thought to be "innocuous." The minutes confirm a familiar pattern among advisory committees where Coast Guard members later turn up representing the American Petroleum Institute and the American Institute of Merchant Shipping. The metamorphosis between government and industry is so complete as to require not so much as a change of nameplates for committee members.

(2) Missing in action

Some advisory committees evidently are so exclusive as to defy listing in the 1973 Annual Report on Federal Advisory Committees. I note, for example, no references to the Department of Interior's Columbia River Technical Advisory Committee nor the Corps of Engineers' Task Force on Nitrogen. These groups are considering the problem of nitrogen supersaturation which has destroyed millions of fingerling salmon on the Columbia and Snake River systems. Their minutes are instructive guides on a unique pollution problem. My guess is that other committees and task forces may be unreported for one reason or another.

(3) The olympian refusal to comply

Regular readers of the Federal Register confront many announcements of closed advisory committee meetings, sometimes without so much as a pro forma attempt to comply with the Act. The Department of Interior's General Technical Advisory Committee, which oversees the coal gasification research program at the Office of Coal Research, met with the Director in his office before the regular meeting on January 16, then met in a later executive session to consider the President's Fiscal Year 1974 Budget. Somebody who objects gets an invitation to join the next meeting in the Director's office.17

16

12 See HMAC Minutes and Staff Director's Report, Oct. 18-19, 1971.

13 Id., Minutes of Feb. 28, 1972.

14 For details, see The Washington Post, Feb. 2, 1973, p. D.15.

15 Letter to William H. Rodgers, Jr., Georgetown University Law Center, from T. McDonald, Chief, Public Affairs Division, U.S. Coast Guard, March 13, 1973.

16 For details, see letter from William H. Rodgers, Jr., to the Honorable Rogers Morton, Secretary of Interior, Jan. 29, 1973, reproduced as Ex. 1.

17 See letter from Deputy Solicitor Raymond C. Coulter, Department of Interior, to William H. Rodgers, Jr., Feb. 26, 1973.

18

The National Academy of Sciences is a group that seeks to escape the compulsions of the Act entirely on the basis of a legislative history that is at least debatable. The Academy's role as an architect of governmental policy and consequent magnet for potential influence is now well understood. It appears fully qualified for the attention that can be brought to bear by the Advisory Committee Act. I hope that recognition comes quickly, through either legislative or judicial action.

A request I made for the past minutes of the National Advisory Committee on Oceans and Atmosphere ran into a plea that it would take too much time to go through the material to "sanitize" it for my consideration. This compulsion to sanitize, I should add, will get worse as understanding of the Act spreads. The "detailed minutes" of each meeting are apt to lose their detail, as they succumb to the universal tendency to strike from the record all vestiges of embarrassment. (4) The "all-purpose" defenses: Freedom of Information Act excmptions

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It is clear that widespread abuses have attended the Congressional decision to allow the advisory committee to hide behind the Freedom of Information Act exemptions. Within the Department of Interior's General Technical Advisory Committee the trade secret doctrine is invoked to bar the public from discussion of coal gasification research projects while representatives of potential competitors and their trade association absorb the information behind closed doors. The Commission on American Shipbuilding is closed for national security reasons. Grants review committees at the National Institutes of Health are closed to protect the ideas of the applicant," although he isn't asked whether he would prefer an open meeting to protect instead against bias, cronyism and arbitrariness. The investigating files exemption is also popular, and is carried to its administrative extreme by the Food and Drug Administration. Meeting after meeting of Committees advising the Commissioner on the safety and effectiveness of drugs are open for an hour, then closed for the better part of two or three days." The express justification for closing the doors is that FDA "is relying heavily on the use of outside experts to assist in regulatory decisions" and needs the "best advice... available to it on a continuing basis in order that it may most effectively carry out its mission." "1 In other words, these advisors are so important the FDA believes it must talk to them privately. The rationale of the Advisory Committee Act, of course, is that advisors who are important ought to be made accountable. The granddaddy of advisory committee secrecy is the oft-invoked "inter-agency or intra-agency" communication exemption. This evasion is foolproof because all that's needed is a claim that the discussion will focus on internal agency matters and, presto, the doors are closed. That's the rationale that kept the Senior Editor of Hospital Practice out of the meetings of HEW's Tuskegee Syphilis Study Ad Hoc Advisory Committee. The AEC prefers this explanation to protect many of the deliberations of its Advisory Committee on Reactor Safeguards. Same story for the National Commission on Materials Policy.

As the subcommitee is aware, the court decisions in Gates v. Schlesinger and Nader v. Dunlop casts doubt on the intra-agency communications exemption as it applies to a group of outsiders convened as an advisory committee. The decisions are to be applauded.

(5) (a) The "non-committee" exceptions

Two additional techniques have emerged for avoiding the Act, both legally debatable, both sanctioned by the OMB draft guidelines.22 The first concerns the ad hoc, single purpose group that is not formally established by an agency but arrives to give advice because of the policy pressures of the moment. "Offthe-record" briefings with government officials are so popular that some firms regularly collect fees to arrange the contacts. Obviously these meetings— unrecorded, secret-are fraught with many of the policy implications that attend the formal comittees meeting on a periodic basis.

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18 The Academy has consistently responded to outside inquiries with assertions that it is wholly exempt.

19 See Science, Jan., 1973, p. 158 ("Peer Review System: How to Hand Out Money Fairly").

20 E.g., Federal Register, May 29, 1973, pp. 14115–17.

21 Id.. at 14117.

22 Section 4 (1) of the Draft guidelines reads:

"The Act would not apply where a group of persons seeks and obtains a meeting (or even a series of meetings) with a Federal official in order to present him with their views on certain subjects." Section 4 (4) draws a distinction between formal and informal sub-groups.

23 Reported in National Journal, Aug. 4, 1973, p. 1141.

One example: the FTC's prolonged rule-making on phosphates in detergents is compromised after a series of secret meetings between members of the agency and representatives of detergent manufacturers and their trade association. Another example: high officials of the Department of Interior meet with the Grizzly Bear Committee of the International Ass'n of Fish and Game Commissioners to explore issues affecting the grizzly bear and predator control. Still another example: for forty years the Business Council, with membership spanning America's corporate leaders, actively functions "to submit to any branch or agency of Government a constructive point of view on matters of public policy affecting the business interests of the country." " In 1961, by the way, the Council severed its official ties with the Department of Commerce apparently to avoid the disclosure obligations of Executive Order 11007, which of course was a predecessor of the Federal Advisory Committee Act. By insisting that an advisory committee is not a committee therefore it is possible to hide the vast influence of the Business Council while we simultaneously smoke out the activities of such lesser groups as the Sawtooth National Forest Grazing Advisory Board.

Another possible method for curcumventing the Act is for advisory committees to conduct important business in informal sub-groups without public participation, access or reporting. I understand, Mr. Chairman, that you were concerned about this possibility with respect to the National Petroleum Council whose full meetings are largely ceremonial while the substantive work is completed in smaller subcommittees and task forces. By making available the minutes of its subgroups, the Council would set a good precedent for arguing that disclosure should extend as far as the groups that advise.

(6) Procedural hindrances

I will mention a few abuses, which I am sure will be further documented by other witnesses:

(i) Inadequate notice.-The 7-day notice requirements in the OMB guidelines are regularly flouted. It's most difficult to attend a meeting, to be sure, when the notice in the Federal Register arrives the day after the meeting has been held. The Federal Register of October 29, for example, carries a terse announcement of an October 30 meeting of the Department of Interior's Foreign Petroleum Supply Committee (members are executives representing 21 American oil companies engaged in foreign operations). The Wall Street Journal explains the welcome extended to members of the public: "It's understood that the State Department would have preferred that the supply committee meet in secret. But since public notice is required by law, the Interior Department was told to play down the meeting to the maximum extent possible." 25 The U.S. Advisory Committee on Information, thanks to an exemption by OMB Director Roy Ash, need not even provide a pro forma notice of its secret meetings.

(ii) Inadequate explanations of secrecy.—Neither the Act nor the OMB guidelines require the agency determination closing the meeting to be made public, and the explanations forthcoming are consequently almost worthless. Why can't the public attend three meetings of the Civil Service Commission's Federal Prevailing Rate Advisory Committee? Because the "meetings will be closed to the public under a determination to do so" reads the full Federal Register explanation. And why can't the public sit in on the deliberations of the Treasury Departments Advisory Committee on Reform of the International Monetary System? Because a determination "has been made that this and future meetings of this Committee will consider matters falling within one or more of the exemptions to public disclosure set forth in 5 U.S.C. 552(b) and that the public interest requires such meetings be closed to public participation."

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(iii) Space limitations.—Announcements of "limited space" for advisory committee meetings turn up occasionally in the Federal Register. There is an obvious potential here for restricting public access, under whatever criteria the agency chooses to apply.

(iv) Inadequate minutes.-The "detailed" minutes requirement of Section 10(c) is likely to be violated with greater regularity as the disclosure provisions of the Act become widely known. My view is that the problem of adequate minutes never will be met satisfactorily until verbatim transcripts are generally

24 By-laws of the Business Council, March 15, 1962.

25 Oct. 30, 1973, p. 16. col. 3.

28 Dec. 3. 1978, p. 33321.

27 Federal Register, Oct. 12, 1972, p. 28307.

required, an idea first applied to industry advisory committees in 1962 by Executive Order 11007. Many advisory committees now voluntarily prepare verbatim transcripts-DOT's Advisory Committee on Mass Transportation, the National Petroleum Council, EPA's Advisory Committee on the Revision and Application of Drinking Water Standards.

III. RECOMMENDED AMENDMENTS TO THE ADVISORY COMMITTEE ACT

Experience indicates that several areas are ripe for potential amendment: (1) Define "advisory committee" to foreclose the sub-group and the ad hoc group dodges. I suspect this inquiry will take the Subcommittee deeply into issues of executive lobbying and remedies to combat abuses. Note, for example, the Justice Department's recent order requiring employees to record "in memorandum form each oral communication *** concerning a case or other matter pending before the Department with a non-involved party ***" 28 I would not be reluctant to see the disclosure provisions of the Act applied to such groups as trade associations.

(2) Modify the Freedom of Information Act exemptions, especially 5 U.S.C. § 552(b) (5) ("inter-agency or intra-agency memorandums") which is incompatible with disclosures within an advisory group.

(3) Add sanctions, such as a monetary penalty, for willful non-compliance with the notice or disclosure provisions of the Act.

(4) Impose a verbatim minutes requirement on the deliberations of major advisory committees.

(5) Require advisory committee members to submit a statement on potential or actual conflicts of interest. Even the National Academy of Sciences requires such a statement from its committee members although the Academy refuses to take the next obvious step of making the disclosure public.

(6) Strengthen the public notice provisions. For example, the definition of "timely notice” ought to be made interpretation-proof—say, fifteen or twenty days. Additionally, interested members of the public should be able to get on a committee mailing list upon request.

(7) Consider applying at least the reporting requirements of the Act to interagency committees. The problem here is not the exercise of government power by outsiders but the muddying of clear lines of authority established by statute. It would make sense to find out what interagency committees are at work on what subjects.

(8) Adopt enforceable "balance of membership" provisions for advisory committees established by executive agencies. Mr. Chairman, you made a strong case for such a change in your December 5 testimony before the Special Senate Subcommittee on Integrated Oil Operations where you detailed how the administration, after some prodding, was willing to add a representative of the National Oil Jobbers Association to its big oil-dominated Emergency Petroleum Supply Committee but balked at going so far as to include the Chairman of the Board of Consolidated Edison. That move, I suppose, would make an otherwise dependable committee too radical.

IV. CONCLUSION

In closing, I would like to commend the Subcommittee and its Chairman for declaring war on the secrecy of these shadow governments called advisory committees. The disclosures you have forced have made an issue of whether any of the recognized 1,400 advisory committees should carry on deliberations and exert influence without the mantle of public exposure and public participation. You have made credible the suggestion that special access and special interest are enough to justify special precautions. And you have reasserted principles of public disclosure and congressional power, which not so surprisingly go hand in hand. Thank you.

Mr. RODGERS. Mr. Chairman, I welcome the opportunity to address vou on the surprised reactions of the bureaucracy to the sentiments of disclosure and accountability established by the Congress in the Federal Advisory Committee Act of 1972.

28 Order No. J32-73, Aug. 8, 1973.

I have written on the subject of advisory committees and have explored their influence because I believe they are vastly underrated as policymakers, mostly because those who do the rating (scholars, journalists, and others) are only occasional observers of the advisory committee process.

My statement will attempt to (I) identify some positive consequences of the 1972 act (II) discuss the evasions, illegalities and disinterest invoked routinely to frustrate its purpose, and (III) recommend amendments to rescue it from the oblivion evidently planned for it by hostile administrators.

I will start with a story. The Federal Register of June 4, 1973, contains both good news and bad. The good news was the announcement of a June 20 meeting of the Bureau of Land Management's Medford District Advisory Board which would take a field trip to observe lands acquired by BLM along the Rogue River under the Wild and Scenic Rivers Act. "The meeting will be open to the public," read the announcement, but then came the bad news: "They will be required to furnish their own transportation and lunches." The spectre of the citizens in his pick-up truck driving along behind the official meeting being held up ahead in the Cadillac pretty well satirizes the difficulties that impede implementation of the Advisory Committee Act. In a sentence, public access to advisory committees falls far short of the desirable and substantially below the legal minimum.

Senator METCALF. Having driven along the Rogue River, I would expect the Land Rovers and the four-wheel drive vehicles are the ones who might have to pull the Cadillacs out.

Mr. RODGERS. No doubt that's true, Senator. As a standard against which to measure the performance of some of the agencies, it might be useful at the outset to reflect upon a few of the impulses that inspired the Congress to move against advisory committees.

There were allegations of wholesale secrecy, arbitrary obstacles invoked to frustrate interested observers, minutes required by law that said nothing. I recall reading, for example, one seven-line summary of an all day meeting of the Underground Mines Advisory Committee, convened to help write safety standards under the Federal Metal and Nonmetallic Mine Safety Act. For an investment of $128.50, you could be privileged to secure copies of the minutes of the National Industrial Pollution Control Council, an advisory group set up under Secretary of Commerce Maurice Stans and credited by him with playing "an increasingly important role in both Government policymaking and in industry leadership."

I am firm on that figure because I spent that money. That was occasioned by the fact I was stuck in Seattle at the time, interested in reading minutes located back in Washington, D.C.

It was the advisory committee as an invisible policy-maker that became the focus of the hearings leading to the 1972 Act. Congress was given example after example of the special interests boring from within: technical groups, like the Department of Interior's Joint Task Force on Euthrophication and the National Air Pollution Control Administration's Primary Non-ferrous Smelting Industry Liaison Committee, guide research efforts in "safe" directions; business groups, like NIPCC, the National Business Council for Consumer Affairs and the National Petroleum Council, contribute to Government policies

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