substance left to the complaint following the appointment of commissioners Primm and Gebbie is that no AIDS victim has been appointed a commissioner. Given the representation of other plaintiff groups, the potential harm from this omission is at best aleatory. The Public Interest Is Best Served by Permitting the Commission to Continue its Work Another "uniquely important factor in the prelimina:y injunction calculus is the potential harm to the public interest from such an injunction. National Association of Farmworkers v. Marshall, 628 F.2d 604, 616 (D.C. Cir. 1980); Virginia Petroleum, 259 F.2d at 925. Both parties acknowledge the urgency of the AIDS problem, yet plaintiffs demand that the AIDS Commission be restrained from any further work on the hypothesis that its work may be biased. As noted earlier, any injury that might result from an imbalance of viewpoints, if any, on the Commission can be remedied at the time that the Commission issues its report or recommendations. Plaintiffs' apprehension, however, that the Commission's work will be impaired by the alleged imbalance and that its report will delay the development of a useful national policy on AIDS does not warrant the grant of a preliminary injunction. Consequently, enjoining further activity by the Commission could only harm the public interest. CONCLUSION Alleging that the AIDS Commission is composed of persons who hold viewpoints outside of the "mainstream," plaintiffs seek to enjoin any further activity by the Commission and to compel the President to appoint new commissioners who will imbue the Commission with viewpoints allegedly required under section 5(b) (2) of FACA. The extraordinary relief requested by plaintiffs would be premature. Plaintiffs are not likely to succeed on the merits of their complaint and no irreparable harm is likely to result in the absence of a preliminary injunction. Further, if the harm presaged by plaintiffs were to occur, an adequate remedy would be available at that time. TESTIMONY OF PHILIP J. HARTER BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS THE FEDERAL ADVISORY COMMITTEE ACT I am Philip J. Harter, a lawyer here in Washington, who is largely responsible for the development of the concept of regulatory negotiation. It is a procedure by which an agency assembles representatives of interests that would be substantially affected by a regulation, including a senior official of the agency itself, to negotiate the terms of a rule. These committees operate under the Federal Advisory Committee Act. I have served as the mediator for a number of regulatory negotiations and as an advisor to several agencies in establishing the process. In other capacities, I have worked with statutorily created advisory I therefore have a firsthand, practical experience committees. with the operation of Federal advisory committees. I am also a professor of administrative law at the University of Maryland School of Public Policy and am a former member of the Council of the Section of Administrative Law of the American Bar Association. Hence I also approach advisory committees from a broader perspective with respect to their contribution to administrative law in general. Finally, I have been a member of the Federal Bar Association's Select Committee on FACA that has exhaustively reviewed the Act and has been active in making recommendations concerning its administration. Although I could spend a great deal of time talking about the various issues raised by the obscure Federal Advisory Committee Act, I want to make three main points: ● Advisory committees that are empaneled to address a specific issue are likely to be real bargains for The central administration of the substantive pro- The conflict of interest law applicable to advisory Advisory committees that address specific problems are a value to the government. Those created by the Agency. Advisory committees that are empaneled to address a specific issue are generally a true bargain for the government. They are a means by which interested members of the public can participate in the development of agency policy, ranging from complex rules, to the criteria used to make decisions, to the processes the agency will use to conduct its business. Advisory committees enable an agency to gain an extraordinary breadth of technical expertise at a low, marginal cost. How else, for example, could an agency obtain the enormous range of experience that it is able to tap through advisory committees?1 Moreover, through advisory 1. For an elaboration on my views with respect to the limitations on the efficacy of notice and comment rulemaking and, by analogy, other means by which interested parties submit their views to an agency without the opportunity to explore their respective positions and needs, see Harter, Negotiating Regulations: A Cure for Malaise, 71 Geo. L. J. (1982). committees agencies can gather a practical insight into how real life situations work, something that it is usually quite difficult for agencies to do; we all know that while agencies may generate mounds of abstract data, the view from inside the Beltway is often very different from that of the shop floor. Finally, what is frequently needed by an agency is to be sure that it understands the views of its constituencies. Since much after all, is political, this of what the government does, ability to reconcile competing interests is critical in achieving the government's aims. Advisory committees are a better way of doing this than ad hoc calls or iterative supplication of the individual interests. Committees created by statute may be a process in search of a problem. The oft-expressed concern over committees being expensive in terms of money expended for their meetings and demands on agency time for their servicing may be legitimate for those in which the agency has little choice they are required by statute to meet, and the agency is required by statute to consult with them, even if there are no specific problems to be resolved. I have attended several advisory committee meetings that were, to put it kindly, an utter waste of time; they were consulted solely because the statute said they must. Committees that are created to resolve a specific issue therefore need to be distinguished from those that are created by statute. Congress should systematically review the utility of those committees which are established by statute and those which an agency is authorized urged to create. It is, of course, - |