PAGENO="0001" TO AMEND THE FEDERAL ADVISORY COMMITTEE A~T-P.L. 92-463 `7(1 ~~LJ ~7\~9'J4 ~) HEARINGS BEFORE THE STJBCOMITTEE ON REPORTS, ACCOTJNTI G, AND MANAGEMENT OF THE COMMITTEE ON ~0YERNMENP OPERATIONS UNITED STATES SENATE NINETY-FOURTH CONGRESS SECOND SESSION ON S. 2947 TO AMEND THE FEDERAL :AD~TISORy COMMITTEE ACT AND FOR OTHER PURPOSES S. 3013 TO AMEND THE FEDERAL ADVISORY COMMITTEE ACT March 8, 9, and 10, 1976 Printed for the use of the Committee on Government Operations 0 9L~1 7 U.S. GOVERNMENT PRINTING OFFICE 70-426 0 WASHINGTON: 1976 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price $6.95 PAGENO="0002" COMMITTEE ON GOVERNMENT OPERATIONS ABRAHAM RIBICOFF, Connecticut, Chairman JOHN L. McCLELLAN, Arkansas CHARLES H. PERCY, Illinois HENRY M. JACKSON, Washington JACOB K. JAVITS, New York EDMUND S. MUSKIE, Maine WILLIAM V. ROTH, JR., Delaware LEE METCALF, Montana BILL BROCK, Tennessee JAMES B. ALLEN, Alabama LOWELL P. WEICKER, JR., Connecticut LAWTON CHILES, Florida SAM NUNN, Georgia JOHN GLENN, Ohio RICHARD A. WEGMAN, Chief Counsel and Staff Director PAUL HOFF, Counsel PAUL L. LEVENTHAL, Counsel ELI E. NOBLEMAN, Counsel DAVID R. SCHAEFER, Counsel MATTHEW SCHNEIDER, Counsel JOHN B. CHILDERS, Chief Counsel to the Minority BRIAN C0NBOY, Special Counsel to the Minority MARILYN A. HARRIS, Chief Clerk ELIZABETH A. PREAST, Assistant Chief Clerk HAROLD C. ANDERSON, Staff Editor SUBCOMMITTEE ON REPORTS, ACCOUNTING AND MANAGEMENT LEE METCALF, Montana, Chairman JOHN L. MCCLELLAN, Arkansas BILL BROCK, Tennessee EDMUND S. MUSKIE, Maine CHARLES H. PERCY, Illinois SAM NUNN, Georgia LOWELL P. WEICKER, JR., Connecticut JOHN GLENN, Ohio VIC REINEMER, Staff Director B. WINSLOW TURNER, Chief Counsel GERALD STURGES, Professional Staff Member JOHN B. CHESSON, Counsel LYLE RYTER, Minority Counsel JIM GEORGE, Professional Staff Member of the Minority JEANNE A. MCNAUGHTON, Chief Clerk (II) PAGENO="0003" CONTENTS Opening statements: Page Senator Metcalf 1 Senator Percy WTITNESSES MONDAY, MARCH 8, 1976 Hon. Gaylord Nelson, a U.S. Senator from the State of Wisconsin 28 James T. Lynn, Director, Office of Management and Budget, accompanied by David Cavwood, Statistical Policy Division; William Bonsteel, Chief, Committee Management Secretariat; Clifford Graves, Deputy Associate Director for Evaluation and Program Implementation; and Robert Bedell, Assistant General COunsel 48 Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice; accompanied by David Marblestone, attorney, Office of Legal Counsel, and John Fitch, attorney, Office of Legislative Affairs 77 TUESDAY, MARCH 9, 1976 Henry J. Steck, professor, State University of New York, College at Cortland 112 Reuben B. Robertson III, member of the Public Citizen Litigation Group In Washington, D.C., and legal director of the Aviation Consumer Action Project 141 WEDNESDAY,! MARCH 10, 1976 Marjorie Lynch, Undersecretary of Health, Education, and Welfare; accompanied by Dr. Donald S. Fredrickson, Director, National Institutes of Health, and Dr. Duane J. Mattheis, Executive Deputy Commissioner of Education; William S. Ballenger, Assistant to the Secretary; Sam D. Fine, Associate Commissioner for, Compliance, Food and Drug Admin- istration; Thomas Scarlett, Associate Counsel, Food and Drug Admin- istration 175 Richard R. Hite, Deputy Assistant Secretary, Management, Department of the Interior; accompanied by Moody R. Tidwell III, Associate Solicitor, General Law; and Timothy S. Elliott, Assistant Solicitor, General Legal Services 240 Alphabetical list of witnesses: Hite, Richard R.: Testimony 240 Compensation of advisory committee members 243 Prepared statement 246 Lawton, Mary C.: Testimor~v Prepared statement 83 Selection of members for Department of Justice advisory com- mittees Lynch Marjorie: Testimony 175 Letter from Jo Anne Brasel tà Senator Percy, Mar. 3, 1976 180 Prepared statement with attachments 182 Recommendations submitted by Ms. Lynch 234 Responses to testimony of Mr. Robertson 238 (III) PAGENO="0004" Iv Lynn, James T.: Page Testimony 48 Estimated cost of report on experts and consultants employed by the executive branch 59 Estimated cost of report on use of non-appropriated funds by Federal Advisory Committees 61 Prepared statement 64 Nelson, Hon. Gaylord: Testimony 28 Prepared statement Opening remarks on the floor of the Senate by Senator Nelson on 5. 3085 Text of S. 3085 Opening remarks on the floor of the Senate by Senator Nelson on S.J. Res. 177 Text of S.J. Res. 177 45 Robertson, Reuben B. III: Testimony 141 Letter from Larry P. Ellsworth to Thomas Scarlett, FDA, Dec. 2, 1975 144 Letter from Earl J. Silbert, U.S. Attorney, to Ms. Anita Johnson, Public Citizen Litigation Group, Dec. 9, 1975 144 From the Federal Register, Dec. 15, 1975: OTC Drug Review Panel on antacid drug products 145 Letter from John T. Walden, Assistant Commissioner for Public Affairs, to Anita Johnson, Public Citizen Health Research Group, Dec. 29, 1975 146 From the Federal Register, Jan. 19, 1976: FDA Notices 147 Excerpts from the statement of Mary Lawton, at the Forum on Secrecy in Government, May 10, 1974, Washington, D.C 152 Excerpts from minutes of an October 1973 meeting of the Sea Grant Advisory Panel 159 Memorandum for chief legal officers of Federal agencies from Fred J. Emery, General Services Administration, Nov. 13, 1972 162 Letter from Judith S. Feigin, attorney, Appellate Section Civil Division, to Rueben B. Robertson III, Mar. 4, 1976, with enclosures 162 Steck, Henry J.: Testimony 112 Energy related advisory committees in selected agencies 139 ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD By Senator Metcalf: Letters from John E. Corbally, chairman of the National Council on Educational Research, to Senator Metcalf 172 Text of 5. 2947: To amend the Federal Advisory Committee Act and for other purposes Text of S. 3013: To amend the Federal Advisory Committee Act_ - - - 18 Charts: The effectiveness of the Federal Advisory Committee Act 23 The Rising Tide of Advisory Committees in 1975 24 Advisory Committees, by type, 1972-74 25 Individuals serving on four or more Federal Advisory Committees in 1974 26 Open and closed advisory committee meetings in 1974 27 Statement for the written record by the Association of American Medical Colleges on S. 2947, Mar. 16, 1976 249 APPENDIX Report by the Food and Drug Administration respon'dingto questions on the FDA's use of advisory committees submitted by Chairman Metcalf on March 10, 1976 254 PAGENO="0005" V Food and Drug Administration compliance with the Federal Advisory Com- mittee Act: Subcommittee staff memorandum of March 11, 1976, to Chairman Metcalf and Representative John Moss, Chairman of the House Subcommittee on Oversight and Investigations, analyzing the January 9 reply of Food and Drug Commissioner Alexander Schmidt to Page their questions on advisory committees 296 Subcommittee staff study of the representation of the top 100 defense contractors on Department of Defense advisory committees in 1974~~ 310 Energy Advisory Committees: Summary of activities, June through December 1975. Interim report of the Congressional Research Service, February 19, 1976 342 Commission for the Advancement of Public Interest Organizations: Memorandums to Chairman Metcalf on (1) storage and availability of advisory committee charters, annual reports and other records at the Library of Congress, and (2) whether Federal agencies require advisory committee members to file conflict of interest statements 352 National Institutes of Health: Analysis of appointments of professional members to NIH advisory councils, 1965-75. (These tables were sub- mitted to the staff of the President's Biomedical Research Panel in November 1975) 361 U.S. Office of Education Advisory Councils: Summary of a doctoral dis- sertation b Gerald J. Kluempke to be presented to the George Wash- ington University in March 1976 394 Veto by neglect: The Federal Advisory Committee Act. Barbara W. Tuerkheimer, the American University Law Review, volume 25: No. 1, fall 1975 526 Newspaper and magazine articles about Federal advisory committees: "Cheap" Brainpower in Washington-Boon or Boondoggle? U.S. News and World Report, March 1, 1976 558 Biomedical Panel: Urging h Move to Bring Cancer Back into the NIH Fold. Science, April 16, 1976 560 Sailing Through Cups of Oolong. Washington Star, February 4, 197& - 563 The Secret Men Pulling Power Levers. Knight News Service, in the San Francisco Sunday Examiner and Chronicle, July 6, 1975 566 Politics and People. Column by Alan L. Otten in the Wall Street Jour- nal, November 7, 1975 568 Use of False Identity To Obtain Passports, Credit Cards Grows. Wall Street Journal, January 8, 1976 570 Paperwork Jungle: U.S. has 1,242 Federal boards. Column by Kevin P. Phillips in the Evening Bulletin, Philadelphia, Pa., January 1, 1976 572 Some Delaware Advice Is Costly. Delaware State News, November 23, 1975 573 Advisory committees: the invisible branch of Government. Industry Week, February 23, 1976 577 Should U.S. Know-How Be Exported Only to U.S. Military Allies? Washington Star, March 25, 1976 584 Dangers of Tailgating * * * Braking standards lowered despite more rear-end crashes. National Observer, March 27, 1976 586 Ban Sought on Closed Advisory Sessions. Congressional Quarterly, March 20, 1976 587 NIH to Open Budget Sessions to Public. Science, April 9, 1976 589 Ford Urged to Revise Cancer Committee. Associated Press, in the Denver Post, March 11, 1976 590 "Privilege" Is Worry For NCI. Washington Star, October 29, 1975 - 591 Panels Abound: Taxpayers Shell Out $50 Million Yearly, Support Sometimes Useless Advisory Units. Atlanta Journal and Constitu- tion, November 16, 1975 592 Why Advise?-To Get Ears of High Officials. Washington Star, November 23, 1975 594 "Bottom Line" Data on Payments Balance Held Meaningless by U.S. Advisory Body. Wall Street Journal, December 10, 1975 597 U.S. Dropping "Balance of Payments" from its vocabulary. Wash- ington Post, May 17, 1976 599 PAGENO="0006" VI Agency comments on 5. 2947, the Federal Advisory Committee Act Amendments of 1976: Page Administrative Conference of the United States 600 Department of Agriculture 602 Department of Health, Education, and Welfare 604 Department of the Interior 632 Department of State 636 Energy Research and Development Administration 641 Federal Communications Commission 646 General Accounting Office 651 Government Printing Office 656 Interstate Commerce Commission 658 Library of Congress 661 National Aeronautics and Space Administration 663 National Endowment for the Arts 670 National Endowment for the Humanities 674 Office of Technology Assessment 678 U.S. Civil Service Commission 680 U.S. Consumer Product Safety Commission 683 U.S. Postal Service 687 Decided court cases involving the Federal Advisory Committee Act: Aviation Consumer Action. Project v. C. Langhorne Washburn- Appellees' petition for rehearing and suggestion for rehearing en banc 692 Decision of the U.S. Court of Appeals for the District of Columbia Circuit 697 Brief for plaintiffs-appellees 713 Consumers Union of the United States v. Department of Health, Education, and Welfare- Memorandum and order of the U.S. District Court for the District of Columbia Memorandum of points and authorities in support of plaintiff's cross- motion for summary judgment, and in opposition to defendants' and intervenor-defendant's motions to dismiss or, in the alternative, forsummary judgment 755 Ralph Nader v. William J. Baroody, Jr.- Appeal from the U.S. District Court for the District of Columbia---- 782 Memorandum and order of the U.S. District Court for the District of Columbia 832 Louis Lombardo v. Philip B. Handler- Memorandum opinion and order of the U.S. District Court for the District of Columbia 838 Center for Auto Safety v. Ps,lorbert T. Tiemann 859 PAGENO="0007" TO AMEND THE FEDERAL ADVISORY COMMITTEE ACT-P.L. 92-463 MONDAY, MARCH 8, 1976 U.S. SENATE, SUBCOMMITTEE ON REPORTS, ACCOUNTING AND MANAGEMENT OF THE CO3r~nrrEE ON GOVERNMENT OPERATIONS, Washington, D. C. The subcommittee met at 10 :08 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 Brock. Also present: E. V~Tinslow Turner, chief counsel; Gerald Sturges, professional staff member; Jeanne A. McNaughton, chief clerk; John B. Childers, minority counsel, Committee on Government Operations; and Lyle R.yter, minority counsel. Senator METCALF. The subcommittee will be in order. I am going to apologize for a rather long preliminary state- ment, but it does set the pattern for the next 3 days of hearings,. for today's and the next 2 days of hearings. OPENING STATEMENT OF SENATOR METCALF Today the Subcommittee on Reports, Accounting, and Manage- ment begins 3 days of hearings on two bills to amend the Federal Advisory Committee Act. Thèy~ are 5. 2947, introduced by Senator Hatfield and me, and 5. 3013, introduced by my distinguished col- league on my right, Senator Percy. The Federal Advisory Committee Act (Public Law 92-463) went into effect on January, 5, 1973. It set standards and pre- scribed uniform procedures to govern the establishment, operation, administration, and duration of the committees, boards, commis- sions, councils, task forces, and other citizen panels which advise the President or agencies or officers of the Federal Government. It also stipulated that each advisory committee meeting be open to the public unless it is concerned with matters which the ~Free- dom of Information Act exempts from mandatory public dis- closure. I think the Federal Advisory Committee Act has gotten off to a better start in its first 3 years than the Freedom of Information Act did, for two reasons: (1) PAGENO="0008" 2 1. The Advisory Committee Act directed that the Office of Man- agement and Budget establish and maintain a committee manage- ment secretariat to be responsible for all matters relating to ad- visory committees, whereas the Freedom of Information Act was expected to be more or less self-executing. 2. The Advisory Committee Act required the President to make an annual report to the Congress on the activities, status, and changes in the composition of advisory committees, whereas the Freedom of Information Act made no provision for an annual report. Over the past 3 years, the administration of advisory committees has improved substantially under the guidance of 0MB, and Con- gress has been kept informed of advisory committee activities through the President's annual reports. For all the improvement, there are problems and questions, some of them summarized by the graphic displays in use here today. For example, from the end of December 1972, when the first inventory of advisory committees was taken, to May 1, 1975, a span of 28 months, the number of advisory committees fell from 1,439 to 1,250, a net decrease of 189. Since 525 advisory committees were newly created or belatedly discovered during this period, the act in the first 28 months actually caused termination or merger of more than 700 advisory committees. However, the advisory committee tide began to turn late last spring, and the number of advisory committees rose from 1,250 on the 1st of ~`1ay to 1,341 on the 1st of October. How and why this happened is a matter of congressional con- cern, although I understand that the Director of 0MB, James Lynn, will testify this morning that the number of advisory com- mittees dropped back to below 1,300 by the end of 1975. Another chart here gives the breakdown of advisory committees, by type, for the years 1972 through 1974. The breakdown shows a percentage increase in the number of advisory committees directed by statute. It also shows that most committees, by far, are estab- lished at the discretion of Federal agencies. That is, the committees are authorized-but not directed-by statute, or are established by agencies purely on their own initiative. However, let me make a parenthetical statement here. When I appeared before the Rules Committee and was talking with the Rules Committee to get the appropriation for our subcommittee, Senator Percy, we were talking about advisory committees, and I suggested that over in the Legislative Counsel's Office there is boilerplate language, and any time any of us send over some sug- gestions for legislation, they always grind in an advisory commit- tee. Some day some of us are going to have to stand up and say, "Gentlemen, What is the special need for the advisory committee in this agency?" PAGENO="0009" So while I have suggested here that most of the committees are authorized by executive order, the Senate of the United States and the Congress of the United States are not without criticism or censure. Another graphic aid we have here points out that in 1974, there were 196 persons serving on anywhere from 4 to 15 advisory com- mittees. Apart from Federal officials who serve ex officio on sex'- eral committees, these figures raise questions about the advisory committee membership selection process. Finally, another chart portrays the reluctance of advisory com- mittees to open their meetings to the public in 1974. Only 55 percent of the more than 3,600 advisory committee meetings held that year were, fully open. Twenty percent were wholly closed to the public, and the remaining ~5 percent were partially closed. And sometimes ~partially closed" means closed all but. 15 minutes of an 8-hour meeting. The bills being considered at these hearings today, tomorrow, and Wednesday address themselves to these problems. These bills would: Extend the coverage of the Federal Advisory Committee Act to additional units of government.; Open the advisory coinmit.~ee membership selection process to public scrutiny; Delete exemption No. 5 of the Freedom of Information Act- dealing with interagency or intra-agency memorandums or letters- as grounds for closing an advisory committee meeting; Provide for administrative review and court challenge of a de- cision to hold a closed advisory committee meeting; and, Tighten up advisory committee recordkeeping and reporting re- quirements. The subcommittee looks forward to receiving a wide range of comment and suggestions on these and related issues bearing on amendment of the Federal Advisory Committee Act. Senator Percy? OPENING STATEMENT OP SENATOR PERCY Senator PERCY. Thank you, Mr. Chairman. I am very pleased to participate in these hearings, and particularly to have the Di- rector of Management and Budget, James Lynn, to be our leadoff witness today. We have a tremendous problem of proliferation of Goyernment activities. I don't know if we have found a formula for when some- thing gets started to stop it. After its usefulness has long been served, where is the self-destruct button that ends it? That really goes for the Congress just as much, if not more so, than for the executive branch. We continue to proliferate commit- PAGENO="0010" 4 tees up here until there are far more than we need. That is pro- bably why the staff runs the Congress up here. The House members sometimes overrule the Senate members, because they know more a.bout the issues. Knowledge is powerful. We are spread too thin. The whole Government is spread too thin. The President of the United States is spread too thin. There is far too much proliferation. We are starting hearings tomorrow with Henry Kissinger on proliferation of nuclear power around the world. I tell you we will fall by our own weight unless we find a way to cut down this proliferation of committees. I certainly commend Senator Metcalf and the Subcommittee on Reports, Accounting and Management for the way it has gone about taking grip of this one activity, advisory committees. Our original estimate of the cost was something like $75 million. `We have eliminated and cut down a few of them. We are down to $42,200,000, I understand. But there were some committees, such as the Committee on De- veloping the Use of Spruce in `Wooden Propeflors, which only a few years ago went out of business. We hadn't used spruce in pro- pellors for a long time. Even then there was some objection to reducing it from Oregon, or not for using spruce. That was the only one there was around, I guess. `We have had a tremendous problem. I think generally speaking we probably ought to work toward having a self-destruct button at the end of a certain period. Unless there is a need for it, it now goes out of business unless it is reaffirmed and reinstituted. So I think that the nature of our hearing this morning is very broad and it goes perhaps beyond the relatively narrow scope of just Federal advisory committees, im- portant as they are. If this is to work, responsibility for oversight of the act, I think, must be exerted not only by the various departments and agencies in the executive branch, including 0MB, but also the stading committees of the Senate and House in the legislative branch. I am very pleased~ Mr. Chairman, that we will have by this afternoon a report of the Government Operations Committee on its own oversight initiative under this act. This project involved the evaluation and investigation of some 82 Federal advisory committees falling under the specific legis- lative jurisdiction of this particular committee. This report we hope can be commended to various standing committees of the Senate and House interested in conducting comprehensive over- sight of advisory committees under their own substantive juris- diction. PAGENO="0011" The methodology developed.~ 1y our committee in the course of this project and the analysis of our results, though not perfect and certainly subject to being improved upon, at least are a good starting point and possibly will help other committees in know- ing how they should go about fulfilling their oversight responsi- bilities under the Federal Advisory Committee Act. From the oversight experience we did undergo, I am offering two amendments for criticism, improvement, rejection, or mcorpora- t~on, both intended to facilitak the job of the congressional over- seer by making available convenient. and important information for judging the quality and accomplishments of advisory committees. The first has to do with funding. I was somewhat surprised to find there is a certain amount of private funding of advisory committees. We are all interested in reducing Federal expenditures. But I think some times we fiuid that it may not pa for us to cle- pend upon private outside funding if, accepting that funding, we really have a conflict, of interest. It is a little difficult, to seive two masters sometimes. Someone who provides the funds has,' something to say about how those funds are spent. where they are spent. and so forth. I think the problem is serious enough that.' we at least ought to have all pri- vate source funding reported in a public place so that it is not clone other than right out. in the.' Open. If private funds are available, we ought to know that. We ought to be on notice that. there may be a vested interest being served by those private funds being provided. Maybe it is entirely in th~ national interest that they be pro- vided. Maybe they are provided from the goodness of someone's heart. But I am not sure that the chief executive officer of the company can have that kind of a heart. His interest has to be to- wards his stockholders, generally speaking; to his own special in- dustrv interests. I think, therefore, these fiuicls should be surfaced and exposed and macIc apparent and public, just like the ownership of securi- ties, I suppose, by a Senator, someone sitting on the Banking Com- mittee. I wa.s shocked to find how many members of the Banking Committee own stock in savings and loan associations or are di- rectors, and officers of banks. It is a little hard. Maybe they can be objective. Nevertheless, their private interests pertain to their judlgment I think it is going to be much more salutar if,' it. is exposed to the light of clay, and it. is known to the Public they. have such an interest. I woul~l think for that reason I would ask that private industry not to dlo anything we wouldn't want to do. The second amendment really was intended to find some basis for evaluating what the track record has been of the committee-a PAGENO="0012" 6 very high-sounding committee, maybe doing good. I think you find some of them haven't met for 4 or 5 years. You can't tell me it really needed is that it shouldn't be liquidated; or, if they have met, maybe it is a lovely social gathering. They may even invite some people to Washington, sit down, counsel, and advise, but what do they do? Do they make a recommendation? If they do make re- commendations, what happens to them? I found GAO on one appropriation, legal assistance, has made five major reports and no one has done a single thing with those reports. It must be very discouraging to the Comptroller to make these reports in a vacuum and not have anything done with them. For that reason I think we ought to have a scorecard of some sort. It is not going to be bogged down with a lot of paperwark. But how can we make certain by a report card of recommenda- tions, and what has happened to the recommendations? Have they been followed up on? Can we see that a coinmitee has been effective? That is the purpose, I presume, of a committee, to give advice and counsel and then have it accepted or rejected and know the basis for it. So these two amendments are designed not to confuse the issue but to kind of focus on what these committees are doing. Whether this is the right way or not, I don't know. I simply look for com- ments and suggestions. But I certainly welcome our witnesses today. I once again com- mend the subcommittee under your chairmanship, Senator Met- calf, for exercising this oversight over a piece of legislation. Too many times we pass something and forget about it. We had better look back and see what. is done about it. If it is a good piece of legislation, fine, amen. If not, undo the thing and practice what we preach. Thank you. Senator METCALF. Thank you. Senator Percy. Certainly no one has been more interested or concerned in checking the growth and the proliferation, as you suggest, of commissions and Government as Senator Percy. He is as much responsible for the creation of this subcommittee and the Advisory Committee Act as anyone in the Congress. The bills S. 2947 and 5. 3013, along with the charts that I men- tioned will be incorporated in the record at this point. IThe information referred to follows:] PAGENO="0013" 94'rii CONGRESS S 2947 TN TIlE SENATE OF THE UNITED* STATES FEBRUARY 6, 1976 ~Ir. I~1ETCALF (for himself and Mr. 1-IATFIELD) introduced the following bill'; which was read twice and referred to the Committee on Government Operations A BILL To amend the Federal Advisory Committee Act and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tiL'eS of the United States bf America in Congress assembled, 3 That this Act may be cited as the. "Federal Advisory Com- 4 mittee Act Amendments of 1976". 5 SEC. 2. Paragraph (2) of section 3 of the Federal Ad- 6 visory Committee Act is amended- 7 (1) by inserting after "thereof" the following: ", or S any ad hoc group, hicluding any group which has any 9 responsibilities of an administrative, executive, or opera- 10 tional nature within an agency other than providing ad- 11 vice and information,"; II PAGENO="0014" 8 2 1 (2) by inserting after "Federal Government," the 2 following: "and, without regard to the means of estab- 3 lishment, which provides advice or information to or is 4 utilized by the United States Postal Service, the General 5 Accounting Office, the Library of Congress, the Office of 6 Technology Assessment, the Government Printing Office, the Congressional Budget Office, the Architect of the 8 Capitol, or the National Railroad Passenger Corpora- 9 tion, or any other entity which provides information to io or advises the Congress,"; and (3) by striking out ", (ii) the Commission on Gov- 12 ernment Procurement, and (iii)" and inserting in lieu 13 thereof "and (ii) ". 14 SEc. 3. Section 4 (b) of the Federal Advisory Commit- 15 tee Act is amended by striking out all after "by" and insert- 16 lug in lieu thereof "by the Central Intelligence Agency.". 17 SEc. 4. Section 5 (b) of the Federal Advisory Corn- 18 mittee Act is amended- 19 (1) in paragraph (2) - 20 (A) by inserting after "to be" the first place it 21 appears therein the following: "publicly solicited 22 and" ; and 23 (B) by inserting before the semicolon the fol- 24 lowing: "and require at least one7third of the mern- 25 bership to be drawn from citizens in private life who PAGENO="0015" 1 shall represent the interests of the public with re- 2 spect to the subject matter before the advisory corn- 3 mittee"; 4 (2) in paragraph (4) by striking out "; and" and 5 inserting in lieu thereof a semicolon; 6 (3) by striking out the period at the end thereof 7 and inserting "; and"; and 8 (4) by adding at the end thereof the following new 9 paragraph: 10 "(6) require that the names and business af~lia- tions of advisory committee members be publicly an- 12 nounced at the time they are appointed.". 13 SEc. 5. Section 6 of the Federal Advisory Committee 14 Act is amended- 15 (1) in~ubsectioiI (b)- 16 (A) by striking out "public" both places it ap- 17 pears; and 18 (B) by adding at the end thereof the following 19 new sentence: "Subsequently, at least once every 20 year, the President shall report to the Congress on 21 the status of actiOns taken or proposed to be taken 22 to carry out accepted recommendations. A final re- 23 port shall be submitted when all such recommenda- 24 tions have been carried out to the extent practicable 25 within the President's authority."; and PAGENO="0016" 10 4 1 (2) by adding at the end thereof. the following new 2 subsec~ons: 3 "(d) The President shall maintain in the Committee .4 Management Secretariat in the Office of. Management and 5 Budget a coniprehensive and complete and current list of the 6 námès of all members, past and present, of all advisory corn- 7 mittees together with such indices as will contain cross refer- 8 ences. by the name, business affiliation, occupation, and mem- 9 bership on an advisory committee of such members. The list iO of all current members together with all indices of such mem- 11 bers shall be published in the annual report required under 12 subsection (e). 13 "(e) At the same time the report required under sub- 14 section (c) is transmitted to the Congress the President shall 15 transmit to the Congress a report covering the same period 16 as the report required under subsection (e) and containing 17 the names and affiliations of all persons employed as con- 18 sultants or experts under section 3109 of title 5, United 19 States Code, or under any ot.her provision of law other than 20 experts employed for the purpose of providing testimony on 21 behalf of the-Government in cases before t.he courts of the. 22 TJnited States or agencies.". 2~ ~ 6. (a) Section 7 (b) of the Federal Advisory 24 Committee Act is amended- 25 (1) in clause (4) by striking out "is" and inserting 26 in lieu thereof "it"; PAGENO="0017" 11 1 (2) in the fourth sentence by inserting before the 2 period a comma mid, the following; "and shall include 3 therein a comprehensive review of every advisory corn- 4 mittee the duration of which is less than one year"; and 5 (3) by inserting between the fourth and fifth sell- 6 tences the following: "Such an annual review shall in- 7 elude a determination *as to whether an advisory corn- S mittee has any responsibilities of an administrative, 9 executive, or operational nature, other than providing 10 advice or information, and shall list all such advisory 11 committees and sta~te whether each such advisory corn- 12 mittee has filed a charter as required by section 9 (c) .". 13 (b) Section 7 of such Act is amended by adding at 14 the end thereof the following new subsection: 15 " (f) At the time an advisory committee is established, 16 J)ut before anymembers are appomted and before an advisory 17 committee charter is filed as required by section 9 (c) , the 18 Director shall determine whether any such advisory com- 19 mittee has any responsibilities of an administrative, executive, 20 or operational nature other than providing advice or informa- 21 tion. Such a determination shall be published in the Federal 22 Register not later than ten days before any member is 23 appointed.". 24 SEC. 8. Section 9 (C) of the Federal Advisory Corn- 25 mittee Act is amended- 70-426 0 - 76 - 2 PAGENO="0018" 12 1 (1) by striking out "with the standing committees 2 of the Senate and of the House of Representatives hay- 3 ing legislative jurisdiction of such agency" and inserting 4 in lieu thereof the following: "with the Congress by 5 transmitting a copy of such charter to the President 6 pro tempore of the Senate and the Speaker of the House 7 of Representatives"; 8 (2) in clause (I) by striking out "and" after the 9 semicolon; 10 (3) in clause (J) by striking out the period and 11 inserting in lieu theteof "; and"; and 12 (4) by adding the following new clause: "(K) 13 the number of members to be appointed, the method 14 of selection and appointment of any such members, and 15 the qualifications to be sought.". 16 SEC. 9. Section 10 of the Federal Advisory Committee 17 Act is `amended- 18 (1) in subsection (c) by inserting "(1)" after 19 "(c)" a.nd by adding at the end thereof the following 20 new paragraph: 21 "(2) A complete audio or audio and visual recording 22 shall be made of every advisory committee meeting which is 23 closed. Every such recording shall be dep&sited with the ~ Librarian of Congress not later than twenty-four hours after 25 the closed meeting has been completed. At the request of PAGENO="0019" 13 :7 1 any member of any advisory committee which has met in a 2 closed session the recording of the closed session may `be 3 reduced to typescript which shall be deposited with the 4 Librarian of Congress."; 5 (2) in subsection (d)- 6 (A) by ii~s~rting "(1)" after "(d) "; 7 (B) `by striking out "section 552 (b)" the first 8 time it occurs therein and inserting in lieu thereof 9 the following: ::: "paragraphs (1) through (4) or 10 (6) through (9) of section 552 (b) "; and 11 (C) by striking out the second and third sen- 12 tences thereof and adding at the end thereof the 13 following: 14 "(2) Any such determination shall be in writing, shall 15 contain the reasons for suóh determination, and shall be pub- 16 lished in the Federal Register at least thirty days before the 17 proposed date of any such :adyisory committee meetin~. 18 "(3) Any such determination made by a delegate of 19 the President or a delegate of the agency head shall be re- 20 viewed by the President or the agency head, as the case may 21 be, upon application of :~`Y person, not later than forty- 22 eight hours after such ~ 1ication is received. If any such 23 application for review is received later than forty-eight hours 24 before any such meeting, such meeting shall be delayed to 25 permit the review and determination by the President or the PAGENO="0020" 14 S 1 agency head and notification of the person applying for such 2 review. The President or the agency head shall advise the 3 person applying for review in writing of his determination to 4 require that any such meeting be held in open session or to 5 sustain or modify the determination made by the delegate. 6 The President or the agency head may direct that any such 7 meeting be held in open session. 8 "(4) If a determination is made to close any portion or 9 all of any meeting of an advisory committee such advisory 10 committee shall file a report of its activities including setting 11 forth a summary of its activities, a detailed list of its meet- 12 ings, and such related matters, including a detailed agenda for 13 each meeting as would be informative to the public consistent 14 with the policy of this section no later than the last day of 15 the quarter immediately following any quarter during which 16 a meeting of any such advisory committee is closed and in 17 each of the next three succeeding quarters. 18 ." (5) On complaint the district court of the United 19 States in the district in which the complainant resides, or has 20 1~is principal place of busine~s, or in which the advisory 21 committee routinely holds its meetings or may hold its 22 meetings, or in the District of Columbia, has jurisdiction to 23 enjoin the closing of the meeting of any advisory committee. 24 In such a case the court shall determine the matter de novo, 25 and may conduct an inquiry in camera to determine whether PAGENO="0021" 15 1 any meeting of any advisory committee should be closed 2 under any of the provisions of this subsection and the burden 3 is on the agency to sustain its action. 4 " (6) Notwithstanding' any other provision of law, the 5 defendant. shall serve all answer or otherwise plead to any 6 complaint, made under this subsection within ten days after 7 service upon the defenda~itof the pleading in which such com- 8 plaint is made, unless the court otherwise directs for good 9 cause shown. 10 "(7) Except as to c~ses the court conside~s of greater 11 importance, proceedings' before the district court, as author- 12 ized by this subsection, and appeals therefrom, take prece- 13 dence on the docket over all cases and shall be assigned for 14 hearing and trial or for argument at the earliest practicable 15 date and expedited in every way. 16 "(8) The court may assess against the United States 171 reasonable attorney fees and other litigation `costs reasonably 18 incurred in any case under this section in which the corn- 19 plainant has substantially prevailed. 20 " (9) Whenever the court orders any advisory commit- 21 tee meeting to be held open and assesses against tile United 22 States reasonable attorney's and other ~litigation costs, and 23 the court additionally issues a written finding that the eir~ 24 eunlstanees surrounding the closing of any such meeting raise 25 questions whether agency personnel or advisory committee PAGENO="0022" 16 10 1 members have acted arbitrarily or capriciously with respect 2 to the closing, the Civil Service Commission shall promptly 3 initiate a proceeding to determine whether disciplinary action 4 is warranted against the officer or employee or member who 5 is primarily responsible for the closing. The Commission, 6 after investigation and consideration of the evidence sub- 7 mitted, shall submit its findings and recommendations to 8 the administrative authority of the agency concerned, and 9 shall send copies of the findings and recommendations to 10 the officer, employee, or member or his representative. The 11 administrative authority shall take the corrective action 12 that the Commission recommends with respect to officers 13 or employees and shall refer the matter to the Department 14 of Justice for appropriate dispostion if any member of the 15 advisory committee with respect to whom corrective action 16 appears necessary is not an employee or officer of the Federal 17 Government. 18 "(10) in the event of floncompliance. with the order 19 of the cotirt, the district court may punish for contempt the 20 responsible employee or member and in the case of a uni- 21 formed service, the responsible member. 22 "(11) The Attorney General shall submit an annual 23 report on or before March 1, of each calendar year which 24 shall include for the prior calendar year a listing of the 25 number of cases arising under this section, the matters in- PAGENO="0023" 17 11 1 volved in each case, the disposition of such case, and the 2 cost, fees, and penalties assessed thereunder. Such report 3 shall also include a description of the efforts undertaken by 4 the Department of Justice to encourage agency compliance 5 with this section.". PAGENO="0024" 18 94TH CONGRESS 2n SEssioN S. 30 1 3 IN THE SENATE OF THE UNITED STATES FEBRUARY 23, 1976 Mr. Pmtc~ introduced the following bill; which was read twice and referred to the Committee on Goveriiment Operations A BILL To amend the Federal Advisory Committee Act. Be it enacted by the Senate and House of Represent a- 2 tires of the United States of America in Congress assembled, 3 That section 3 of the Federal Advisory Ciominittee Act is 4 amended by adding at the end thereof the following: 5 " (5) The term `committee recommendation' meaiis a 6 communication, presented by or on behalf of an advisory 7 committee after consultation with and approval by a minority 8 of a quorum of such advisory committee, for the purpose of 9 encouraging an agency to adopt a general or specific policy 10 or program or to adopt or pursue a specific course of 11 conduct.". II PAGENO="0025" 19 1 Si~c. 2. Section (3 df the Federal Advisory Committee 2 Act is aineiided- 3 (1) iii the SP(~)nd selltelI('e of subsection (c), by 4 inserting after "iiieiiibers," the following: `the receipt 5 a11(l (liSposil 1011 of 111W iionappropiiated 1 uiids 01 any 6 tliuig of value foi the ~11J)pO1t, operation, 01 maintenance 7 of auiv advisory con1~n1ittee and tile source and amount of 8 any such nonappropriated funds or any thing of value 9 received,"; and 10 (2) by adding at the enl thereof the following 11 new subsection: 12 " (d) The President shall include in time annual report 13 required liv SIll)SCctiOII (c) from records maintaiiied by the 14 advisory committee manag'ement officer imder section 8 (b) 15 (4) of each agency which has an advisory commifte.e and 16 from such other similar records as may exist, for each ad- 17 visory committee which~ makes any committee recomnmenda- 18 tions to any agency or to tile President- 19 " (1) the nuniber of committee recommendations 20 presented; 21 "(2) the number of committee recommendations 22 adopted; 23 "(3) the number of committee recommendations 24 rejected; and 25 " (4) the mnmnibem of committee recommendations PAGENO="0026" 20 3 pending or not acted upon and the length of time each 2 committee recommendation was pending or not acted 3 upon.". 4 Si~c. 3. Section 7 of the Federal Advisory Committee 5 Act is amended by adding at the end thereof tile following 6 iiew subsection: 7 " (f) The Director shall compile and publish in the S Federal Register and transmit to tile Speaker of tile House 9 of Representatives and the President pi'o teinpore of the 10 Senate an animal list specifically identifying all advisory 11 coinnuttees which have reported or should have reported the 12 receipt of nonappropiiated fuiids or any thing of value re- 13 quired to be reported under subsection 12 (b) together with 14 the source and amounts of such nonappropriated funds re- 15 ceived or thing of value furnished and the disposition 16 thereof.". 17 SEC. 4. Section 8 of the Federal Advisory Committee 18 Act is amended- 19 (1) in subsection (a)- 20 (A) by striking out "and operations" and in- 21 serting in lieu thereof "operations, and committee 22 recomnmendations" 23 (B) by adding at the end thereof the follow- 24 ing new sentence: "Each agency head shall main- 25 tam a complete and current file of all committee rec- PAGENO="0027" of the Federal Advisory Committee (b) as subsectiOn (a) the following 21 4 1 ommendations of every advisory committee which 2 reports to such agency. Such systematic information 3 and the contents of such file shall be made publicly 4 available for inspection ai~d copying subject to the 5 provisions of section 552 of title 5, United States 6 Code."; and 7 (2) in subsection (b) - S (A) by striking out "and" at the end of clause 9 (2); 10 (B) by striking out the period at the end there- 11 of and inserting in lieu thereof "and"; and 12 (C) by adding at the end thereof the following 13 new clause: 14 "(4) collect and maintain all records of committee 15 recommendations necessary to supply such information as 16 the President may require for purposes of section 6 17 (d).". 18 SEC. 5. Section 12 19 Act is amended- 20 (1) by redesignàting subsection 21 (c) ; and 22 (2) by inserting after subsection 23 new subsection: 2. "(b) Records required to be kept by. subsection (a) 25 shall clearly, completely, and conspicuously disclose the PAGENO="0028" 22 5 I receipt and disposition of aIIy 11oI~a1)propriated funds or any 2 thing of value received for the support, operation, or maiiitc- 3 nance of any advisory committee and the source and amount 4 of any such nonappropriated funds or any thing of value 5 received.". PAGENO="0029" The Effectiveness of the Federal Advisory Committee Act Number of Advisory Committees End of 1972 Asof May Actually, the Feder AthiithryCommjftéeAc~ ~ a far more effective weapon during the period from December 31, 1972 to May 1, 1975 than the net decrease would indicate. Since 525 or more advisory committees were newly created or belatedly recognized during 1973 and 1974, the act really forced termination or merger of more than 700 advisory committees during that 28-month period. PAGENO="0030" The Rising Tide of Advisory Committees in 1975 End of 1974 ______________________________ May 1, 1975 _____________________________ Oct. 1, 1975 __________________________________ Due to a late spring and summer surge in the establishment of new committees and renewal of existing committees, there was a net increase of 99 advisory committees during the first nine months of 1975. PAGENO="0031" __ Advisory Committees, By Type, 1972-74 k~1 Directed by Statute ~ Agency Discretion ~ Presidential Discretion 1972 18% TOTAL: 1,439 ADVISORY COMMITTEES 80.5% 1974 TOTAL: 1,250 ADVISORY COMMITTEES 20.3% 1.7% TOTAL: 1,242 ADVISORY COMMITTEES Note: The "Agency Discretion" category includes Advisory Committees authorized by Statute and Committees established by Agencies on their own initiative. 78% PAGENO="0032" Individuals Serving on Four or More Federal Advisory Committees in 1974 Research by the Subcommittee on Reports, Accounting, and Management discloses that: -107 persons serve on 4 advisory committees -47 persons serve on 5 advisory committees -21 persons serve on 6 advisory committees -21 persons serve on 7 or more advisory committees In all, 196 persons serve on anywhere from 4 to 15 advisory committees. PAGENO="0033" Open and Cbsed Advisory Committee Meetings in 1974 There were 3,626 meetings - counting a meeting held on ~ more~co~nsecutive: \ days as one meeting - during J the year, of these: -1,994 were open to the public -719 were closed to the public 0 OPEN 55% -913 were partially closed PAGENO="0034" 28 Senator METCALF. Our first witness this morning is our very distinguished colleague from Wisconsin, Senator Gaylord Nelson, who is going to tell us a little bit about his experience with small busi- ness and the representation of small business on some of the ad- visory committees. We are delighted to have you here, Senator Nelson. You have a prepared statement, so go right ahead. TESTIMONY OP HON. GAYLORD NELSON, A U.S. SENATOR PROM THE STATE OP WISCONSIN Senator NELSON. Mr. Chairman, I would ask that my full state- ment, which isn't very long, be printed at the end of my remarks. I will only need about 3 minutes of the committee's time. 5. 3085 would amend the Federal Advisory Committee Act of 1972 and t.he Federal Reports Act of 1942 to direct that small business be fairly represented on Federal advisory committees, boards, commissions, panels, and task forces. We don't try to-maybe we should have-but we don't try to set forth a formula for what "fairly represented" means. But, certainly, on many of these committees in those areas where the business community is affected and small business is affected, there should be a substantial ratio or percentage of small business mem- bers on any of these committees, in our judgment. The objective of this bill is to give the small business community a greater voice in formulating actions of the Federal departments and agencies which affect the economy. In a study that was sponsored by the Office of Management and Budget entitled "Small Business Reporting Burden," the Peat, Marwick, Mitchell & Co. accounting firm stated in one part of that report, and I quote: Small business has very limited representation on the Council (Business Advisory Council on Federal Reports). In practice the panels, too, have tended to be dominated by representation from large business-a natural consequence of the difficulty experienced by small business in giving the time and absorbing the expense involved in sitting on (such) panels. Indeed, the statement about the very limited small business re- presentation is, I think, a substantial understatement. There are 13 corporations represented on BACFR. One is a small business cor- poration having $1 million in sales and 45 employees. The remain- ing 12 corporations have an average of $5.5 billion in sales and 167,000 employees. Of the 10 associations represented, only one could be characterized as a small business organization. Obviously, according to the standard in the bill we have intro- duced, this one company with $1 million in sales would not con- stitute "fair representation," at least in my judgment. It is the intent of this proposal to require all such agencies that are advisory in the business area to have fair representation for small enterprise on them. In fact, in the Internal Revenue Service just last year, a small business advisory committee to the Commissioner was established- that was 1975-by Commissioner Alexander. That committee has PAGENO="0035" 29 gotten very high marks from~ its participants despite the inevitable growing pains. This happens to be a small business advisory com- mittee to the IRS itself. So the proposal is quite simple. I think the merit of it is clear. One of the problems in this area would be to assure that the small business representatives receive expense payments for their par- ticipation. As a. matter of faét, in many of these cases it will have to be a. representative from one of the small business organizations. since a small businessman running a small business can't commit a lot of time away from the business to participate in any of these lengthy proceedings such as from time to time occur. Furthermore, I think the Small Business Administration should be a. participant in these various advisory councils. I would ask that some matérial I have appended to my state- ment. Mr. Chairman, also be printed in full in the record.1 That completes my testimony. Senator METCALF. Thank you very much, Senator Nelson. Your statement in its entirety and~ the material you have submitted will be Printed in the record at. the conclusion of your testimony. We will also incorporate your bill, 5. 3085, which you are in- troducing along with SenatOr Nunn and Senator Brock, both of whom have worked very hard on this committee, and Senator Weic~ ker who is now a member of our subcommittee. ou mentioned Business Advisory Council on Federal Reports, with the acronym of BACFR. This is the committee that advises the 0MB on Federal forms. It has been the complaint, of many of the Members of the Con- gress over the years that this committee stops essential question- naires because of business objection and. at the same time, BACFR. has no representation from siñall business. When Senator Nunn and I conducted a paperw-ork burden hear- ing last year, I discussed this matter with Mr. Oaxaca who is here today. He told us about the Peat., Marwick, and Mitchell study that you mentioned on reporting and it pointed out the very things that you have suggested and that we suspected, that big business was dominating the BACFR. organization. For $85,000 we received confirmation that big business was stop- ping questionnaires and big business was the only one that was represented. As I understand it, BACFR. is self-appointed. 0MB does not decide the membership. My question is, after this preliminary, Senator, couldn't we solve this by making a more balanced representation and having it ap- pointed by or having it at least monitored by 0MB rather than BACFR being a self-executing sort of an organization? Senator NELSON. I didn't realize they were self-appointed. Is that correct? Mr. LYNN. Yes. That is cOrrect, Mr. Chairman. We can make suggestions, but under their charter, they make the actual appoint- inents. And they do take our suggestions, as I understand it, from time to time. 1 See p. 33. PAGENO="0036" 30 Senator METCALF. Hurray! But here is sort of a special organization composed, at the pres- ent time, according to the Peat-Marwick study that you have men- tioned, of just big business people, who are self-perpetuating by con- tinuing to appoint big business; and the small business people you are talking about, Senator Nelson, have not been represented and have no voice in that council. Senator NELSON. I agree with you. I assumed they were appoint- ed from outside of that committee. The small business representation, as I pointed out, is very minor. Quite obviously, if they were voting on a one-man-one-Vote basis, small business would be outvoted 12-to-i on any issue that was raised. Furthermore, a corporation with $5.5 billion in sales, which is the average, can afford to engage the finest expertise there is, and have them participate full time, if necessary, because the matter of forms and what is reported and what is not reported is very im- portant. But the small business can't afford that. That is why it seems to me that when you talk about fair repre- sentation on forms-the small businesses have to make out all of the forms, too-so at least half of them ought to be small business. Two: It seems to me you should have representation of the Small Business Administration somehow involved in this directly. If they need some funding for expertise in that area, we ought to do it. I think that the small business organizations representing small business ought to have an input into it. This is about the only way you can create an infrastructure within small business that would be adequate to at least evaluate the impact of these various forms and regulations upon smaller and new businesses. Obviously, when you create a. form, there are lots of provisions asking all kinds of questions of big business and little business that are totally unnecessary. I would guess in my own mind looking at them about 80 percent of the information government asks, or 90 percent, from businesses and individuals is duplicative or unneces- sary. But in any event, a large business is equipped to handle that. Senator METCALF. Stick around until we pass the lobbying act and see how many forms there are. Senator NELSON. In any event, large businesses have all the tech- nical expertise and computers that at least can handle a whole lot more unnecessary forms than a small business can handle. Thank you, Mr. Chairman. Senator METCALF. Thank you very much, Senator Nelson. Senator Percy? Senator PERCY. I have just two questions, Mr. Chairman. Senator Nelson, I agree that fair representation for small business is in accord with the central theme of the Advisory Committee Act. What do you, first of all, see as the cause? Why do you believe there is an underrepresentation of small business on the Nation's Federal advisory committees? Senator NELSON. I don't know that I can answer what the cause is. I have begun to look at that question in the past year since I PAGENO="0037" 31 became chairman. I have been by no means an expert on these advisory committees or the impact of their advice upon small business. But I would guess that a good part of it is for the same reason that the voice of small business isn't heard very well in the Congress; because who is their voice except individual members? That is in contrast with the large corporations who have full-time offices and the finest lawyers in the United States. I conducted the pension hearings on the Pension Reform Act in the Finance Committee. We heard-and very good testimony; I don't. quarrel with it at all-we heard from the representatives of every major association and cOrporation in America, pointing out technical problems with the pension plan, and some of them sub- stantive, arguing about them. It was very compelling testimony by first-rate witnesses who are this country's pension experts. But on all of these little things that affect the little fellow we didn't. hear very much because. No. 1, he isn't any expert himself. No. 2, he has problems in hiring and paying the expert to repre- sent him. Now, we conscientiously looked at the questions of impact on small business. WTe made some exemptions in the Pension Act for small business. But nevertheless, the voices that were heard the strongest. because they are the best prepared and had the most resources, are the voices of large business. It is the same, I think, in any agency representation, whether it is the Food and Drug Administration or any regulatory body that we have: just b virtue of the fact that the little fellow can't afford to be here and, if lie comes, doesn't have the expertise. Senator PERCY. Maybe it pays not to have representation, then, because my own impression from here in the Senate is that there is really gross discriminatioii in favor of small business. We have just increased the income tax exemption so as to lower rates applying to small business-the first $50,000 instead of the first $25,000, or reduced 20 to 22 percent; where a large business pays 48 percent. Certainly the President's action the other day in enunciating the $155,000 exemption from the action of our estate taxes is a strong, favorable thing for small business. I support it. I have supported the exemption for every piece of legis'ation that. has come along requiring reporting and accOuntability by larger business. On the floor of the Senate just the end of last year we had one amendment, which I strongly supported, which exempted all small business from the application to the Consumer Protection Agency, or Agency for Consumer Advocacy. It wiped out 90 percent of all business from coverage. That Agency has no jurisdiction or cog- nizance over it whatsoever. But it does apply to big business. So I don't think we have discriminated against small business particularly. I think because the Small Business Committee, which I am not member of, has beeii very active, I think they have a very strong voice I want to see small business represented in these advisory com- mittees, but I don't think we have been really ruling against them. PAGENO="0038" 32 If anything, it seems to be going the other way-beat the big guy because he is big and he has been successful and exempt the smafl fellow. If we make a special provision for small business, then how about the environmentalists? Will they want to require a certain number of seats on every advisory committee? How about consumer groups that come in and say they want representation? How about special- ized business groups? Will we start to get into a quota system? How do we say that small business is peculiar and particularly should be protected, but these other groups-environmentalists, specialized business groups, consumer groups-should not then have a quota on every advisory committee? How could we protect our- selves against this? Senator NELSON. This proposal only applies to advisory commit- tees that are giving advice in areas that affect the economy. So if it does not affect the economy and small business, then the pro- visions that would require representation of small business are not involved. So, all we are saying is that the advisory committees created for purposes of making recommendations that affect the economy are going to have business representation on them. That is what they are made up of. We are saying they must be made up of a fair proportion of small business and not just big business. Senator PERCY. Wouldn't the environmentalists and consumers have the same argument and say: "If it affects the economy, that is us?" `We have consumers certainly who would want to have something to say about it. Shouldn't they have representation? I am just a little worried about our structuring these things by statute, because then every group is going to come in and exert pressure to get their specific rights embodied in the statute rather than urging and encouraging a broad enough representation to make committees really representative. Senator NELSON. It may be that you have to take a hard look. The problem now is that the only representation for all practical purposes is big business. The bill focuses on committees created for purposes of giving advice on some aspect of the economy. All we are saying is that if you are going to have a business advisory committee, let's have fair representation of small business as well as large business. Senator METCALF. I think that during our discussion, Senator Percy, with Mr. Lynn and tomorrow with Professor Steck, we will have a development on this matter of balance. It is a very difficult matter to talk about. You have discussed it in your full statement, Senator Nelson. I don't know whether you can just say quota system. But I would certainly resist such a quota system that we would have one mem- ber of organized labor, and one member of some environmental organization, and one member of a consumer group, and so forth, on every advisory committee, because some of them are very special- ized, such as this Business Advisory Council on Federal Reports. PAGENO="0039" 33 So we have to talk very generally about balance, and then we have to inquire as to whether or not the committees are actually balanced. It would seem to me. however, that this small busmess repre- sentation on this so-called BACFR committee would be better achieved by the regular app~intrnent process, rather than having a self-perpetuating organization, such as big business people, continuing to make recommendations for appointment, even though 0MB has made contributions on the other side. Senator NELSON. Thank you. Senator METCALF. Thank you very imicli for coming. Thank you for your help. [The prepared statement of Senator Nelson, with additional material submitted for the record, follows:] PREPARED STATEMENT OF HbN. GAYLORD NELSON, A U.S. SENATOR FROM THE STATE OF WISCONSIN Mr. Chairman, members of the, Subcommittee, I appreciate the opportunity to testify on proposals to improve access of small business and citizens to the governmental process through advisory councils, and particularly on those proposals embodied in 5. 3085 introduced last week by Senators Nunn, Javits, Brock, Weicker, Culver and myself. S. 3085 would amend the Federal Advisory Committee Act of 1972 and the Federal Reports Act of 1942 to direct that small business be fairly represented 011 Fe(leral advisory committees, boards, commissions, panels. and task forces. The objective of this bill is to give the small business community a greater voice in formulating actions of federal departments and agencies which affect the economy. As Senator Metcalf noted in the opening statement of his October 10 hearings, these actions affect their ability to survive. Smaller and medium-sized independent business are important to the economy and to our democractic society. Abbut 97% of the 13 million U.S. businesses are small by the definitions formulated by the Small Business Administration or by any other definition. This .97% accounts for 43% of the business out- put, one-third of the Gross National Product, and over half of all significant industrial innovation. In fact, there are only about 6,000 U.S. corporations large enough to have their stock nationally traded, to, reach national capital and credit markets, and to be able to afford national advertising. Yet, the viewpoints of smaller and independent business are chronically overlooked when federal departments and agencies make their decisions on policy, regulations, and reporting forms. STUDY OF SMALL BUSINESS PARTICIPATION IN THE REPORTS CLEARANCE PROCEDURE For example, in March of 1975, there was a study of the small business par- ticipation in the advisory bodies utilized by the President's Office of Man- agement and Budget. As you know, the responsibility under the Federal Reports Act of clearing any questionnaire or form which is intended to be sent to more than 10 businesses or citizens was conferred on 0MB by the Federal Reports Act of 1942. To assist 0MB in this clearance procedure, there is a Business Advisory Council on Federal Reports (BAOFR), which considers general issues, and smaller advisory panels w-hich are convened to consider particular proposed re- port forms. In its report entitled, "Small Business Reporting Burden," the Peat, Mar- wick, Mitchell & Co. accounting firm stated: 1 1 `Small Business Reporting Burden,'~ prepared for Executive Office of the President's Office of Management and Budget, by Peat, Marwick-, Mitchell & Co., March 1975, p. A.6~. PAGENO="0040" 34 "Small business has very limited representation on the Council. * * * * * * * "In practice the panels, too, have tended to be dominated by representation from large business-a natural consequence of the difficulty experienced by small businesses in giving the time and absorbing the expense involved in sitting on (such) panels." Indeed, the statement about "very limited" small business representation may be a classic understatement. There are 13 corporations represented on the BACFR. One is a smaller business corporation having $1 million sales and 45 employees. The remaining 12 corporations have an average of $5-½ billion in sales and 167,000 employees. Of the 10 associations represented, only one could be characterized as a small business organization.2 The 0i~iB report noted also that the Small Business Administration does not participate in the deliberations of panels reviewing forms, and there is no policy encouraging them to do so. These are the conclusions of OMB's own report. The lack of access by smaller businessmen to executive branch decisions was confirmed again and again in the 63 days of hearings held during the past year by the Senate Select Committee on Small Business in such areas as pension reporting forms, occupational health and safety regulations, and energy programs. My remarks to the Senate accompanying the introduction of S. 3085, on March 4, give details of several of these situations. I would like to include this material as an exhibit to my testimony. CHANGING THE 0MB ADVISORY BODIES Insofar as existing mechanisms for obtaining outside opinions-the advisory committees and panels under the Federal Reports Act of 1942 need to be modified so that the views of smaller and independent business are more likely to be heard. As this subcommittee is aware, a long series of hearings by the Select Com- mittee on Small Business beginning in 1972 has documented that 0MB has not adequately discharged its responsibilities under the 1942 Act. Clearance of forms adding to the mountain of federal paperwork is rarely if ever denied. To the committee's knowledge, there has never been a hearing by 0MB, as contemplated by that Act for the purpose of avoiding duplication among fed- eral forms. The primary impact of this non-performance has fallen upon small business. By way of improvement, the 1975 0MB report suggests: "~ * that much more can be done to make it easier for small business to participate. Reim- bursement under the Federal Advisory Committee Act is one possibility." This matter of funding of the 0MB committees and panels is highly im- portant. Funding of any decision-making or advisory body by those affected by their decisions Li, in my view, very questionable. Senator Percy, in intro- ducing proposed amendments to the Advisory Committee Act on February 23, called attention to some 17 committees advising the federal government which are entirely supported by non-federal funds.2 I would hope this Sub- committee could obtain the records and discover if the funds supporting BACFR, for instance, and other advisory bodies are provided disproportionately by big business. Several observers who have examined this situation thus feel that small business and their spokesmen should be serving on 0MB bodies which affect the business community in proportion to the importance of small enterprise to the economy-approximately 50 percent of the membership. To make this pos- sible, I would recommend that participants be reimbursed as the 0MB study recommends. In any case, the funding of these bodies should be consistent with 2 "Efforts to Reduce Federal Paperwork," Hearing before the Subcommittee on Over- sight Procedures and Subcommittee on Reports, Accounting and Management Govern- ment Operations Committee, U.S. Senate, Oct. 10, 1975, m 71-2. Introduction of 5. 3013, remarks of Sen. Percy, Daily Congressional Record, Feb. 23, 1976, page S2104. PAGENO="0041" 35 all other advisory committees. Our bill, S. 3085, offers a basis for such consistent treatment. DEPARTMENTAL ADVISORY COMMITTEES As to departmental and agency advisory bodies, there is a need to strike a balance between the formal requirements of the Advisory Committee Act on one side, and the ability of these groups to function effectively in providing timely advice. The Advisory Committee Act was enacted in 1972, as a result of outstand- ing efforts of the Senator from Montana (Mr. Metcalf). It recognizes the bene- fits of advisory committees as "frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the federal govern- ment." I agree with the Chairman and members of the Subcommittee that this is an appropriate time, after three years of experience, to review the operations of this Act, and to modify it as circumstances indicate. We have received nuiner&us complaints from business people that a desire of some executive agencies to comply with the Act may be inhibiting the con- tacts of businessmen and other citizens with government officials. I think the Committee could make clear that the Advisory Committee Act w-as not meant to prevent meetings of concerned citizens with the personnel of the executive branch in Washington, especially when these meetings are "one shot" meet- ings, such as are initiated by an outside group visiting the nation's capital. If the meetings are regular or periodic the act should clearly apply. In be- tween, there should be discretion. The publication of forms for pension reporting, during 1975 provided a laboratory where the existing advisory committee mechanism was tested. It should be noted first that even a~ to the EBS-1 form, which was publically acknowledged to be a "monster,' there was 0MB clearance without any ob- jection. The Pension Reform Act of 1974 established an advisory council on ERISA in the Department of Labor. How-ever, this Committee does not have any small business members and it did not prevent the massive small business l)roblems with the major ERISA reports. A small business advisory committee to the Commissioner of the Internal Revenue Service was established in 1974 by Commissioner Alexander. This latter committee has gotten high marks from its participants despite the in- evitable growing pains. The idea of departmental or agency advisory committees along the lines of the IRS committee, which can assist in the development of report forms, among other matters, drew favorable comment in both the 0MB report and the recent General Accounting Office recommendations on information collection proposal, published in the Federal Register on March 5~4 Advisory committees on this level have the advantage of contributing ideas at a stage where the forms or regulations are still in formulation, and they can, it appears, be very effective. We would envision that fair representation for small business in the decisional~ process could be assisted through the use of panels like the IRS Committee. There are certainly problems in allowing such bodies, even those selected according to principles of fair representation, access to agency forms and regu- lations in a preliminary state. I think that this Committee can assist the cause of small business by pro- viding for the utmost flexibility by those departments and agencies seeking the advice of advisory groups and concerned citizens in carrying forward the governmental process. In doing so, the Committee will have to address the role of members of the public w-ho are not appointed to these groups, but never- theless wish to participate and even publish their results, including portions of proposed forms. In my view, it would be most helpful if the committee could deal with such matters in its report rather than in legislation at this time, to provide maxi- Vol. 41, Federal Register, No. 45, p. 0570, "Clearance of Information Collection Pro- posals." PAGENO="0042" 36 mum latitude for working out the difficult problems of balances which are involved. SMALL BUSINESS CONTACTS AT EXECUTIVE DEPARTMENTS AND AGENCIES There is also before the Government Operations Committee S. J. Res. 177 which I introduced with the same cosponsors last week.5 This proposal is, in a sense, complementary to S. 3085. It would designate at least one person in each agency concerned with economic and business matters to become know- ledgeable in small business problems. This person would be contact point for small business groups and could be a spokesman in the decision-making pro- cess where the small business community is affected. The Small Business Administration cannot possibly be knowledgeable in the day-to-day operations of any federal agency, let alone all federal agencies. Its staff devoted to advocacy and agency representation totals 5 professionals and 3 clerical personnel. For example, this Subcommittee has been interested in energy advisory committees. The Energy Research and Development Ad- ministration. is presently administering $9~/2 billion in research and develop- ment contracts. In drawing up the national solar energy plan, it obtained the participation of 14 other agencies. but did not even invite SBA, despite a provi- sion of its authorizing statute specifically encouraging such consultation. A small business expert is urgently needed at ERDA, and similarly in other Federal departments and agencies. I thank the Subcommittee for this opportunity to present these views stem- ming from the work of the Senate Small Business Committee. [From the Congressional Record-Senate, (S2S11) March 4, 1976] B~ MR. NELSON (FOR HIMSELF, MR. NuNrc, Mn. BR0CK, AND MR. WEICKER) S. 3085. A bill to insure fair and equitable representation for smaller and medium-sized businesses on Federal advisory committees. Referred to the Com- mittee on Government Operations. FAIR REPRESENTATION FOR SMALL BUSINESS ACT Mr. NELSON. Mr. President, I introduce for appropriate reference the Fair Representation for Small Business Act, a bill to provide for equitable represen- tation for small businesses on the advisory bodies which~ are utilized by the Federal Government. The bill would amend the Federal Advisory Committee Act of 1972 and the Federal Reports Act of 1942 to provide an explicit direction that small busi- ness-which accounts for 97 percent of the number of U.S. businesses; 43 per- cent of the business output; a third of the gross national product; and over half of the significant industrial innovation in the U.S. economy-be fairly represented on Federal advisory committees, panels, and task forces. The ob- jective of this bill is to give the small business community a voice correspond- ing to its importance in formulating the actions of the Federal Government. NEEDS OF SMALLER FIRMS IGNORED IN ISSUING FORMS To my knowledge, there is no authoritative study of the small business repre- sentative on advisory committees which serve all of the various departments and agencies under the Advisory Committee Act. However, in March of 1975, there was a study of the small business participation in the advisory bodies utilized by the President's Office of Management and Budget. 0MB has the re- sponslbility under the Federal Reports Act of clearing any questionnaire or form which is intended to be sent to more than 10 businesses or members of the public. To assist this clearance procedure, there is a Business Advisory Council on Federal Reports-BACFR-which considers general issues, and smaller advisory panels which are occasionally convened to consider particular proposed report forms. ~ The Resolution and accompanying introductory remarks are also attached as a second exhibit to this statement. PAGENO="0043" 37 The Peat, Marwick, Mitchell & Co. accounting firm, in its report to 0MB en- titled the "Small Business Reporting Burden," Stated:' * * C * * * * `In practice the panels, too, have tended to be dominated by representation from large business-a natural cOnsequence of the difficulty experienced by small businesses in giving the time and absorbing the expense involved in sitting on (such) panels." Indeed, the statement about "very limited" small business representation may be a classic understatement. There are 13 corporations represented on the BACFR. One is a small business corporation having $1 million sales and 45 employees. The remaining 12 corporations have an average of $51/2 billion in sales and 167,000 employees. The 0MB report also notes that the Small Business Administration does not participate in the deliberations of panels reviewing forms, and there is no policy encouraging them to do so. Is it any wonder that the interests of small business have been at the bottom of the list when decisions about Federal reports are made by the Office of Management and Budget and the White House? PENSION REPORTS A GLARING EXAMPLE A recent instance of this neglect is the issuance of pension reporting forms by the Department of Labor pursuant to the Pension Reform Act. In April 10Th, the Department published a basic description form-EBS--1, which was between 16 and 20 pages long, depending upon the number of required schedules and appendices. Each of the 685,000 small and medium-sized employee benefit plans was expected to fill out this EBS-1. The Senate Small Business Committee, after hearing testimony about this and other pension reporting forms on February 2 and 3, concluded that this form would have cost the small business community a minimum of two-thirds of a billion dollars in additional accoUnting, legal, and other professional fees, not counting the time required by management. Fortunately, under a hail of public critisim, this form was withdrawn and after extensive revision, a substitute six- page form was republished in the Federal Register on October 10, 1975. On the basis of almost 2,000 public comments on the second version of the EBS-1, and the companion annual report-Form 5500, both forms were again reconsidered and reduced in size. Final versions are expected to be distributed in a short time. Curbing the excess of these reports w-ill thus result in the saving of sub- stantial money. But, why was a form which the Labor Department admits is a "monster," and has resulted in the expenditure of untold time and effort by the small business community in opposing it, published in the first place? Section 512 of the Employee Reporting Income Security Act-ERISA-sets up an advisory council for employee welfare and pension plans consisting of 15 members from various groups, including employee organizations, members of the general public, and recipients of pension plans and financial funds. There is no requirement that anyone representing the 680,000 small businesses having employee plans-or the thousands of smaller accountants, actuaries, or pen- sion administrators-be represented on this advisory council. Until recently, the smaller businesses were not in fCct represented on this body. Now, one of the public members is suppose to function as a "representative of small business," although small businesses constitute the overwhelming ma- jority of the numbers possessing.plans and administering them. I think that if w-e are going to preserve the character of our society and avoid seeing giant bureaucracies take over every area of our national life, that kind of thinking must be changed. Beyond the area of reporting forms, small business also lacks adequate input to the regulatory and policy~ decisions of Federal departments and agen- cies. 1 "Small Business Reporting Burden," prepared for Executive Office of the President's Office of Management and Budget, by Peat, Marwick, Mitchell & Co., March 1975, p. A65. PAGENO="0044" 38 INSENSITIVITY TO SMALL BUSINESS IN FORMULATING REGULATIONS While most legislative enactments are taken only after public hearings, a printed record, and a lapse of time during which spokesmen can make them- selves heard, formulation of regulations and policy decisions in the executive agencies do not generally follow this pattern. On the regulatory level, for example, the Occupational Safety and Health Administration published a 330-page book of regulations with which the small businessman was expected to comply under pain of substantial fines. I doubt whether many, or any, small business persons were consulted in the prepara- tion of that kind of burdensome package. LACK OF CONSULTATION ON POLICY MATTERS An extreme example on the policy level is the exclusion of the Small Busi- ness Administration from the formation of the National Plan for Solar Energy Heating and Cooling. When the Energy Research and Development Act was being considered 2 years ago, an amendment was inserted to encourage the Energy Research and Development Administration_ERDA-Which presently administers $91/2 billion in contracts, suggesting consultation with the Small Business Administration so that the resourcefulness of the small business community could be brought to bear in solving the Nation's energy problems. Small business generally ac- counts for more than half of all industrial innovation, and enjoys particular advantages in the solar energy field where little capital is necessary for entry or development. Yet, even in the face of the consultation amendment, ERDA ignored the SBA when it conferred with 14 other agencies to draw up the national solar energy plan. ADDITIONAL STEPS REQUIRED TO OBTAIN SMALL BUSINESS ADVICE It therefore appears that additional congressional action is needed to assist the small business community of this country in making its views known to Federal officials at all levels of the formulation of executive policy and ad- ministration of the laws. The Advisory Committee Act was enacted in 1972, as a result of outstanding efforts of the Senator from Montana (Mr. METCALF). It recognizes the benefits of advisory committees as "frequently a useful beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government." During the last 3 years there have been several developments in the advisory committee field, including the establishment of the Department of Labor's ERISA Advisory Council, the Small Business Advisory Committee to the Commissioner of the Internal Revenue Service, and the Commission on Federal Paperwork. The IRS Committee was mentioned favorably in the Peat, Marwick, Mitchell report, and has by all accounts been an excellent vehicle for gaining helpful advice on the paperwork and reporting problems of small businessmen in the tax and pension areas. In any event, it is an appropriate time to review the advisory committee mechanism. Senator METCALF himself has introduced a series of amendments to the act. We understand that the Senate Government Operations Com- mittee expects to hold hearings on these matters beginning next week, which would be an occasion for more amendments to be considered. I exuect to testify at these hearings to advocate as strongly as possible the necessity for greater and fairer representation for the small business communi- ty on existing and future advisory councils. Mr. President, I ask unanimously consent that the text of the bill be printed in the RECORD. There being no objection, the bill was ordered to be printed in the RECORD, as follows: PAGENO="0045" 39 D4TH CONGRESS 2D SESSION S. 3085 IN TilE SENATE OF THE UNITED STATES Mi~ricri 4, 1976 Mr. NELSON (for himself, Mr. Bao~K, Mr. Nnicx, and Mr. WEIcKER) introduced the following bill; which was read twice and referred to the Committee 011 Government Operations ABILL To insure fair and equitable representation for smaller and me- dium-sized businesses o~i Federal advisory committees. 1 Be it enacted by the Senate and House of Representa- 2 tires of 1/ic United States of America in Congress assembled, 2 That this Act may be cited as the "Fair Representation for 4 Small Business Act". 5 Si~c. 2. (a.) The Congress finds that small and inde.pend- 6 ent businesses are an important part of the United States 7 economy and that their needs and concerns should be fairly S represented on policymaking levels in the Federal Govern- 9 ment. 10 (b) The Congress further finds and declares that- 11 (1) economic, governmental, and other pressures 11 PAGENO="0046" 40 2 1 on all businesses, and particularly small business, are 2 mounting as reflected by steep increases in the number 3 and size of bankruptcies; 4 (2) executive departments and agencies, particu- 5 larly those having economic policy and regulatory func- 6 tions, should take into account the impact on smaller 7 and medium-sized businesses of such policies, regulations, 8 and forms, and the ultimate effects upon industrial struc- 9 ture, competition, and the free enterprise system; and 10 (3) equitable and fair representation of the private, 11 small business sector of the economy on Federal Advi- 12 sory Committee within Federal executive agencies whose 13 policy decisions and regulations affect smaller and me- :14 dium-sized businesses is thus essential to the health an~l 1.5 well-being of the Nation's economy. 16 SEC. 3. (a) Section 4 (h) of the Federal Advisory Corn- .17 mittee Act is amended to read as follows: 18 "(b) Nothing in this Act shall be construed to apply to 19 any advisory committee established or utilized by the Cen- 20 tral Intelligence Agency.". 21 (b) Section 9 of the Federal Advisory Committee Act 22 is amended by adding at the end thereof the following: 23 "(d) Each advisory committee which is established by 24 the President or by an agency head as provided in this Act, PAGENO="0047" 41 `3 1 and which is concerned ~vith matters affecting the economy 2 or business community shall contain fair and equitable rep- 3 resentation of the small business sector of the economy, in- 4 chiding individuals who, by reason of experience or training 5 have expertise and familiarity with the unique concerns and 6 needs of small and inbdium-sized businesses, particularly 7 with respect to such establishing authority's responsibilities S and Federal form and paperwork requirements.". Si~c. 4. (a) Chapter 35 of title 44, United States Code, 10 is amended by adding at the end thereof the following new 11 section: 12 "~ 3513. Advisory committees; small business representa- 13 tion 14 "Each advisory committee which is established by the 15 President or by an agency head as provided in the Federal 16 ~\dvisorv Committee Act and which is concerned with mat- 1.7 ters aflecting the ecoilomy or business community shall con- 18 tam fair and equitable. representation of the small business 19 sector of the economy, including individuals who, by reason 20 of experience or training, have expertise and familiarity with 21 the unique concerns and needs of small and medium-sized 22 businesses, particularly with respect to such establishing 23 authority's responsibilities and Federal form and paperwork 24 requirements.". PAGENO="0048" 42 4 1 (b) The table of sections of such chapter is amended 2 by adding at the end thereof the following: "3512. Information for independent regulatory agencies. "3513. Advisory committees; small business representation.". PAGENO="0049" 43 [From the Congressional Itecórd-Senate, (S2816) March 4, 1976] By Mr. NELSON (for himself, Mr. NUNN, Mr. BROOK, and Mr. WEICKEB): Senate Joint Resolution 177. A joint resolution requiring each executive de- partment and agency to designate a small business specialist. Referred to the Committee on Government Operations. A RESOLUTION TO CREATE SMALL BUSINESS EXPERTS IN FEDERAL AGENCIES WHICH REGULATE SMALL BUSINESSES Mr. NELSON. Mr. President, I introduce for appropriate reference a joint resolu- tion that aims at increasing awareness by Federal Government officials in the problems and potential of small and independent business elements of the U.S. economy. This community accounts for about 52 percent of all private employ- ment, 43 percent of business output, and approximately one-third of the gross national product. Moreover, every serious study of the past decade confirms that more than half of all innovations, including major industrial inventions, processes, and services, are originated by individual inventors and small businessmen. Social scientists have documented, that smaller, locally owned businesses are strong supporters of local charities and social and educational institutions such as churches, hospitals, and libraries. Despite these marvelous resources, and the benefits they can bring to our economy and society, small business, has been at the bottom of the priority lists of nearly everyone in Washington for a generation. WHAT THIS PROPOSAL WOULD DO This resolution seeks to reverse this neglect by designating at least one per- son in each of the Federal departments and agencies to become an expert in the problems of the small business community. WHY IT IS NEEDED There are only about 6,000 corporations, out of a total of 13.8 million U.S. businesses, which are large enough to, have their stock nationally traded. These businesses tend to be generously supplied with specialists of all kinds and are able to organize rapidly and well to present their views to Government or to take advantage of any Government program In contrast, the owner of a small business must do everything himself, and faces an almost impossible task in attempting to organize an effective response to a particular Government action on the part of millions of small firms. The Small Business Administration, which could help in some representative situations, has a puny budget of less than $10 for each small business in the country. It cannot assign any more than a handful of employees to the repre- sentative or advocacy function, and even in areas where the agency's partici- pation would be of the greatest use, they are often completely and pointedly ignored. Among the many examples of neglect of small business problems which could be cited are the estate and gift tax exemptions which have been limited to SG0.000 and $30,000, respectively, since 1942. Farm spokesmen have told us re- peatedly that these obsolete limitations are forcing the sale of many family farms. Small business representatives have complained that the present system makes mergers with conglomerates the only practical alternative for business owners nearing the end of their careers. Yet, these laws have been unrevised and largly unexamined in 34 years, while inflation has raised the price of busi- ness and farm assets over 289.3 percent. Another instance in the tax field. The corporate income tax remained largely as it was structured in 1950, until it was changed in 1975 for a temporary period of a year and a half only. During the last 3 years alone, our Canadian neighbors have increased their "small business deduction" from $30,000 to $100,000 and enacted several other tax provisions making operating a small business in Canada more profitable and more attractive than in the United States. 70-426 0 - 76 - 4 PAGENO="0050" 44 Because of this nonexisting priority of small business in the tax-writing in- stitutions of our country, I introduced on November 20, 1975, Senate Resolution 306, which would designate a person in the Treasury Department and another on the congressional staff of the Joint Tax Committee, to study long-range tax simplification and reform for 97 percent of the U.S. businesses which are classi- fied as "small businesses." But lack of attention to small business problems has been a characteristic of most departments and agencies of the Federal Government. SMALL BUSINESS IGNORED IN SOLVING ENERGY PROBLEMS For example, energy development is certainly of primary importance to both industry and consumers. In this field, small business has had the door slammed in its face. When the Energy Reorganization Act was considered 2 years ago, several members of the Small Business Committee inserted an amendment that the Administrator of the new Energy Research and Development Administra- tion should "consult with the Small Business Administration" so that the re- sourcefulness of the small business community might be brought to bear on the country's energy problems. Several days of public hearings by the Select Committee on Small Business during 1975 made clear the special potential of small business in the field of solar energy where large amounts of capital are not required for entry into the field. What happened? When the Energy Research and Development Administra- tion, which is presently administering about $91/2 billion of contracts, came to draw up the national plan for solar heating and cooling, the Small Business Administration was never consulted although 14 other agencies did participate in developing this plan. Iii another field. that of occupational safety and health, a mammoth, 330-page volume of regulations was issued to every small business owner, who was expected to read, understand, and comply with the applicable solutions under penalty of substantial fines. In the pension area, 1975 was an incredible year during which the Labor Department issued 20-page forms to the 680,000 small pension plans. Conse- quently, these forms were w-ithdrawn because of their length, complexity and poorly designed structure. These are but a few examples of Federal actions on policy, regulation, and forms which too often have taken an unreasonable toll of the time, energy, funds, and patience of the small, independent segment of our private enter- prise economy. In my view, the widespread nature of this problem cries out for a greater sensitivity to the problems of the businesses which make up the majority of our economy, and which do not possess the legions of technical and managerial experts with which our large corporations are generously supplied. This resolution would take a small step in the direction of institutionalizing such increased awareness. It would designate at least one appropriate person in each department and agency to become familiar with the problems of smaller businesses. This person would serve as a point of contact when a regulation, form, or deadline has a serious impact on a significant number of small firms. Thus, the proposal could increase the possibility that there would be in Wash- ington at least one official in each department or agency who could quickly become knowledgeable about the small business implications of proposed poli- cies and regulations and impart them in the policy councils where decisions are made. Unquestionably, designating such small business experts would not solve all of the problems of small business. But, it certainly will contribute to more systematic reasoning on the part of the Federal Government agencies which have a daily impact on small business. In my view, a compelling case has been demonstrated for this kind of action, and I urge that the resolution be speedily considered and passed. Mr. President, I ask unanimous consent that the text of the joint resolution be printed at this point in the RECORD. There being no objection, the joint resolution was ordered to be printed in the RECORD, as follows: PAGENO="0051" 45 94TH CONGRESS 2n Srssiox * . ~ 1 77 IN THE SENATE OF THE UNITED STATES MARCH 4, 1976 Mr. NEr.~sox (for himself, Mr. BRoc1~, Mr. NUNN, and Mr. WEICKER) introduced the following joint resolution; which was read twice and referred to the Committee on Government Operations JOINT RESOLUTION Requiring each executive department and agency to designate a small business specialist. Whereas small arid independeiit business is an important part of the United States economy, accounting for 52 per centum of private employment, 43 per centum of all business output, 33 per centurn of the gross national product, and nearly 13 million of the 13.3 million businesses in the United States; Whereas small businesses and individual inventors have ac- counted for more than half of all innovations, including a majority of major industrial inventions; Whereas there is an acute shortage of equity capital for smaller firms and especially for new ventures, as indicated by the fact there have been only eleven stock issues sold by medium- sized businesses in the twenty-three months ending Novem- ber 1975; II H PAGENO="0052" 46 2 Whereas smaller businesses are at a marked disadvantage in ob- taining loans and other forms of credit, especially in periods of restrictive monetary policy; Whereas regressive business income tax rates inhibit small and medium-sized businesses from raising capital through retained earnings; and the estate tax structure, which has not been overhauled since 1942, promotes the demise of locally owned businesses and family farms; Whereas regulation and paperwork by an increasing number of Federal departments and agencies have added substantial burdens in time and costs for smaller firms; and Whereas total pressures on all business, and particularly small business, are increasing, as reflected by a dramatic increase in the number and size of bankruptcies in the year ending June 30, 1975: Now, therefore, be it .1 Resolved by the Senate and House of Representatives 2 of the United States of America in Congress assembled, 3 That in order to institutionalize the resources for long-range 4 preservation of small business and maximize its contribution 5 to the free private enterprise system and the overall economy 6 of the Nation, the head of each executive department and 7 executive agency shall designate at least one employee of 8 that agency whose assigned responsibilities shall include- 9 (1) acting as a liaison with the small and independ- 10 ent business community in matters of policy relating to U small business; and PAGENO="0053" 47 3 1 * (2) conducting an analysis of the differential effects 2 of department or agency policies on new, small, and 3 medium-sized independent businesses, as well as their 4 particular needs undérthe free private enterprise system. PAGENO="0054" 48 Senator METCALF. Now, Mr. Lynn, I am very pleased that you are here with members of your staff who are working on this. As I said in my opening statement, I compliment you on the activity, the interest, and the concern that you have shown intrying to enforce this act. We don't have you up here for criticism so much as for advice and guidance and counseling, so that you can help us make it more effective and get rid of some of these useless committees and make this other advisory committee procedure more useful to the Govern- ment and get more money for the dollar spent. Senator Percy, do you have any comments? Senator PERCY. Does Mr. Lynn have a statement? Senator METCALF. Yes, he has a statement. Senator PERCY. No further comments. Senator METCALF. Go right ahead. TESTIMONY OF JAMES T. LYNN, DIRECTOR, OFFICE OF MANAGE- MENT AND BUDGET, ACCOMPANIED BY DAVID CAYWOOD, STA- TISTICAL POLICY DIVISION; WILLIAM BONSTEEL, CHIEF, COM- MITTEE MANAGEMENT SECRETARIAT; CLIFFORD GRAVES, DEPUTY ASSOCIATE DIRECTOR FOR EVALUATION AND PROGRAM IMPLEMENTATION; AND ROBERT BEDELL, ASSISTANT GENERAL COUNSEL Mr. LYNN. Mr. Chairman, I will, of course, abide by the com- mittee's wishes as to whether they wish me to read my statement in full. Frankly, what I would prefer to do, knowing it will receive careful consideration by the committee, is ask to have the full statement incorporated in the record so as to save the time of this committee and allow maximum time for questions. Let me just state a few words, some of which are in my statement and some of which are not, by way of an introduction to the subject from our point of view. Senator METCALF. Thank you very much. Unless there is an objection, then we will have the statement incorporated in the record, as if read, at the conclusion of your testimony. It is a brief statement. But I would prefer to have you summarize and add some other comments that may have occurred to you this morning after the discussion with Senator Nelson and our own open- ing statements. Would you identify your colleagues at the desk? Mr. LYNN. Yes, I will. I have with me today-I think you know him-Mr. Clifford Graves who is our Deputy Associate Director for Evaluation and Program Implementation. I also have Mr. Robert Bedell, who is an Assistant General Counsel; and Mr. William Bonsteel who is well known to the committee. He is the Chief of our Committee Management Secretariat. As you mentioned, we also have Mr. Oaxaca, who takes a back seat for no man, figuratively, but literally, I guess, decided to lurk in the background. Senator METCALF. He has been a witness before this committee, and a very valued witness. So we are delighted to have you all PAGENO="0055" 49 here at this budget-making prOcess on the Hill. We are honored you have taken the time out to appear at this hearing. Mr. LYNN. Thank you, Mr. Chairman. It is a pleasure to appear. I look upon this as important business. I would like, as a little aside, on BACFR., or whatever the pro- nunciation is, to just mention, if I might, a couple of facts with respect to BACFR~ that may be of interest. The Chairman of BACFR is a gentleman by the name of Carl Beck, who runs a~ company with less than 50 employees. There are six sponsoring organizations, and there are three people appointed from each one. That means 18~ out of the 26 total members. One of those sponsoring Organizations is the National Small Business Association, which is a contributing member. Also, the National Association of Manufacturers is another. It has 13,000 members. Twenty percent of them have less than 20 employees. Fifty-five percent of them have less than 100 em- ployees. And 88 percent of them have less than 500 employees. I believe the Chamber of Commerce is* another also sponsoring member, and the Chamber, of course, has a wide variety of sizes of firms among its membership. I think this year at least, where all of the meetings are on paperwork, that body is being supportive of what we are trying to do in 0MB and what the Paperwork Commission that was established by Congress is trying to do. As I understand it, there has been complete unanimity that, although it is true that the larger business can surely cope with it easier than the smaller one can, paperwork is considered to be a terrific problem for both large and small business. I should add that as I occasionally get out across the country, I find the big business groups equally vocal to the small ones in saying, "Isn't there some way we can cut down on the paperwork?" Senator METCALF. I want to especially thank you for that sum- mary and analysis of the composition of this Business Advisory Council. Mr. LYNN. Thank you, sir. As I say, I will put my statement in the record. Let me just give you a couple of random~ thoughts, if I might, some of which are in the statement and some of which are not. Some of this goes back to my days at HUD and my days in Commerce. I am not a strong advocate of advisory committees in general. I found as a manager of a department that rarely was the prob- lem that I was facing encompassed exactly by the membership of any advisory committee. Any particular advisory committee, given a particular problem or set Of, problems, had a nucleus of people on it that would be useful to consult on that problem, but it would have other people who really didn't have much interest or much expertise. Conversely, in each one of those problems or groups of problems there were people who were not on the advisory committee whose expert advice you wanted. :1 So during the period that I was there, if I recall correctly, I think we disposed of one or twO or three. PAGENO="0056" 50 I must say as a practical matter it is very difficult, I found, to dispose of advisory committees because it is looked upon as a signal that you don't care, that you don't love somebody. After all, if a given advisory committee has been there for 4 years, and you try to dispose of it, does this mean you are now downplaying the importance of the advice from a given sector? You get into almost actual pleading by people-"Please, our position in the world is being degraded if you don't have an ad- visory committee in our area of endeavor." My reply always was, "Not at all." What I would prefer to do is consult one-on-one with people whose advice I admire. If there is a need for advice on a broader basis, go to public hearings. I found in HUD that the hearing approach was an approach that was very, very useful. I started with public hearings on lead- based paint poisoning-which everyone told me I remember-they told me, "You can't hold hearings on this. It is too sensitive an issue. The world will collapse." The truth of the matter is the hearings were welcome by all of the various groups interested in the subject. I think the hearings were handled fairly; and they helped both us in HUD and the public generally to better understand that the problem was one that needed solution but that there weren't any easy solutions. Also some options were identified at the hearings that we con- sidered carefully, and we adopted one or two. I would say that I will consider my accomplishments great during the period of time that I am in 0MB if I can get department heads and agency heads to think automatically about holding hearings with regard to important issues before they make policy or programmatic decisions. Whether it is an issue facing an agency head or an options paper going to the President, I believe that executive hearings, by allow- ing all interested parties to be heard, can make an important con- tribution to the decisionmaking process. As you pointed out, Mr. Chairman, we should have balance; executive hearings are a good way to achieve this objective. The hearing provides the best forum, it seems to me, to get that kind of balance. So I must admit I have no love affair with ad- visory committees generally. Does that mean I think they all should be abolished? Of course not. I am just saying I think an agency or department should be put to the proof as to whether an advisory committee is the best way to approach a given matter. Having said that, I also believe that when we identify problems in the management of advisory committees, that we should not amend the statutes without. first experimenting with different ap- proaches to solving those problems. It is in that spirit that in a number of instances we respectfully disagree with the need or desirability for legislation in some of the areas that are covered by various bills that have been pre- sented. But by the same taken, I would hope that we in 0MB, working with the Subcommittee, could identify areas where we should take PAGENO="0057" ~51 action on changes in the guidelines or changes in approach to see whether that will do the job. Doing it that way has a large advantage. One, it is very difficult to anticipate in advance the exact way an overall prescription or requirement will apply to every one of a 1,000-plus committees. On the other hand, if we do some of these things by administra- tive guidelines, you have the flexibility as you work along in time to make needed modifications, without requiring legislative change; and you also can treat it more or less as a test tube to see what works and what dosn't work. Then, having begun that challenge, if problems still persist, I think you have to lower the boom and~ seek a legislative solution. Let me say that some of the amendments we have here have a very direct relationship, of course, to "government in the sunshine." Certainly what happens in a closed meeting of an advisory com- mittee relates to that overall topic. I have to say to you my general view is that to open up the processes of government is a very good thing. That is why I like the executive hearings that I have talked about earlier, because I think it gives an opportunity; whether it is for small business, big business, environmentalists,, consumer groups, professors or just interested citizens, to come forward, to speak. On the other hand, I really have become a little concerned lately as to some of the kinds of things that Senator Percy was talking about, but a. different aspect of it. I don't want to see us become so rigid in our rules with respect to open and closed meetings that we cut off a phenomenon that I have seen happen in some advisory groups that I have had advise me, or the Secretary in Commerce and in HTJD-the phenomenon that occasionally some member, of an advisory group will have the courage to break from the pack, so to speak. In a. public meeting, members will not usually break with the group, break from the traditional views of that particular group. In a. closed meeting or in a private discussion, however, some per- son will come up to us and say, "This is what the group is saying, but I am telling you that is a~ lot of bunk, and there really isn't a te6hnological barrier in our performing thus or so." I really don't know the answer to that question. I do know one thing, that if we go too far toward open meetings, dissenting views may not be voiced. On the other hand, I would guess we could still get the views because you get an awful lot àf unsolicited advice, whether you are at a place where you are giving a speech and people come up to you afterward or on a social occasion. I think the chairman and Senator Percy have had this experience in common with me. They will say, "Look here, on such and such a matter you fellows don't know what you~ are doing," or, on the other hand, "We really herald what you are doing in that regard." So we ought to realize that whatever we do in the formal areas, there is still that large informal area out there which has its bad side but also has a good side-of people, in one-on-one situations, telling us what they really think rather than what they are willing PAGENO="0058" 52 to have appear in the public press where they will be sometimes ridiculed by their peer group. There is a balance in there, and I have to say to you frankly, I don't know where it is. But I think that is a set of issues we have to keep in mind as we go along. With that background, I think, Mr. Chairman, I would be happy to answer your questions. I think that is the way I can be most helpful. Let me add one other thing. You praised our efforts at 0MB to some extent. There is room for criticism, as we well know. Where the praise lies is really with my staff. It is very nice as a head of an agency to take credit for good things. But I think we have had staff in 0MB that by prodding us at the top of the agency, has made real progress. Senator METCALF. Thank you very much, Mr. Director. I think Senator Percy suggested in his amendment the attitude of all of us on the committee in introducing legislation. The reason we have hearings is to have your comment on such legislation and perhaps, when we see corrections that we feel should be made, discuss directives, or Executive orders, or some other remedies as well as amendments. That, of course, is what we are looking to achieve in the next couple of days in this discussion. I am trying to grope to find out just where the problem is and where we can answer the problem that you have suggested. People continue to come in and say, "These people on the advisory coni- missions will be inhibited if they are in an open session." That is what they said about opening up committees of the Congress or executive sessions of the Congress. We have opened up more than 90 percent of them in the last couple of years. I have not noticed any inhibition except for the first 2 or 3 days of the hearings. And, of course, people who are of the stature of advising the President or the members of the Cabinet are men and women who are not inhibited by public appearances and so forth. In fact, I think some of them are most uninhibited. But I appreciate your suggestion about getting rid of some of these advisory committees and having hearings and getting people in and experts testifying on the specific problem that is involved rather than just having people who are general experts. I hope that your staff, which is excellent, will meet with ours and maybe we can work something out in that area. During the next couple of days I know that we are going to have some suggestions. I just can't ask you some questions today. I think that you have directed, and ~ may give credit to your staff, if you will-and I will give them credit, too-but I think that you have set up a staff that has tried to carry out the spirit of our act. So we are going to try to inquire in the next couple of days as to how we get rid of some of these comniittees, how we prevent 107 people from serving on 4 different advisory committees in a country as large as this, how 47 persons serve on 5, 21 on 6. Why do we have to have that limited sort of representation? PAGENO="0059" 53 It seems to me that in a few cases, just as with ex-Members of Congress, in a few cases some people make a career of serving on advisory committees. As I say, ex-Members of Congress are making a career of running for President. And it seems to me we could find some way to have more representation than that. Mr. Lyxx. If I might speak to that. Senator METCALF. Please do. Mr. LYNN. I think it is one worth looking into. I think it is one that should be looked at as to what may be in it for the bad, but what also may be in it for the good. Let me give you an example. I find great pressure sometimes- and sometimes through my own generation-from people saying, "Jim, I think you should be on this and that committee within the executive branch, and the reason being that 0MB has a contri- bution to make in that p~irticu1ar committee." As I say, many times I am not fighting it, and many times I am fighting to get on it, because the work of the committee can have some kind of a budgetary implication to it. But there may very well be cases there, and I would suspect it would be true, that the person is there because of the fact that it is useful to have someone who has the experience from one set of activities-including other advisory committee experience-on this advisory committee. Am I saying that when you go through this you are going to find such a neat package? Of cOurse you aren't. But there may well be good reasons to have people on more than one advisory committee. Senator METCALF. The second thing that you have suggested is that it is very difficult to get rid of these advisory committees because people say, "This is a ~ery unfriendly thing to do to us. We have been advising you for 4 years, and we would like to continue." I think Senator Percy and I agree that we should have that button that lie calls a self-destruct. Maybe we should put an end to them automatically every 4 years, or so, and make them come in and justify. Then Congress with its relatively larger constituency could just say, "Well, we don't see any use for these any more." Again I am groping to see how we can turn that chart back and get rid of some more of these people that it seems to me are proliferating government. Mr. LYNN. Mr. Chairman, on that point, you touched on a very important issue. A number of times, in the Congressional Record and here again today, you said, I think, that of almost 50 percent of the committees that we have, only 20 percent are mandated by Congress, but another 29 percent, roughly, I think, are authorized by Congress. Of course, I can say as a practicing manager in the government, the minute a committee is authorized, the pressures from every place-sometimes including the Congress `~itself, I might add, or staff-to appoint are very great. PAGENO="0060" 54 I think one of the things that would help hold down the com- mittees substantially would be not just the kinds of thii~gs you gentlemen have been discussing about not having automatic clauses for advisory committees in legislation, but, also, as each authoriz- ing committee holds oversight on particular issues, to have that authorizing committee get into the particular advisory committees for that department or agency and put their feet to the fire relative to whether or not particular advisory committees are really neces- sary-whether or not they are still needed. Now we are going one step at a time. You said we were a traffic manager more than a policeman. I believe that was the quotation. I admire it. It was a pretty good one, and not too far from hitting the mark; although I think I have detected our being more police- man over the last month than before. We are going to be revising our guidelines, based on the ex- perience we have had this past year. As I said, we look forward to working with the committee closely. But I really do believe that if the authorizing committees in the Congress-and the Appropriations Subcommittees for that matter-would take as one of their agenda items when they get to the particular area where they know an advisory committee still exists, call in the advisory committee perhaps and ask them abQut what they have been doing or ask the Secretary or Under Secretary or Assistant Secretary, "What advice did you get?" or "How useful has this advisory committee been?" I have a hunch the good work this subcommittee is trying to do and the work we are trying to do in 0MB could be enhanced tremendously if the authorizing committees would do that. We are going to continue our efforts. We will continually move to put agencies and departments more to the proof. But I think that would be useful. Senator METCALF. For a long, long time Senator Ellender took it upon himself to inquire into the appropriations of every com- mittee and subcommittee of the Congress. When the Rules Committee came and made the legislative ap- propriation, Senator Ellender always asked some of these signifi- cant questions. I suppose maybe some member of the Senate should assume some of those duties, too, and say to every advisory com- mittee, or inform tue Appropriations Committee, or somebody of that sort, "Well, what is the usefulness ?" And as you say, "What advice did they get?" If they got a broad spectrum of advice from a committee that was useful, of course, it should be continued. Otherwise maybe your idea of just executive hearings on specialized needs is a lot better than the creation of a committee. Mr. LYNN. I think there is room for both. I really do believe that there are areas where advisory committees make sense. But I think we have had a lot more of them than is necessary. Let me say one thing, if I might, a little further. Senator Percy mentioned keeping a scorecard. As you know, our report form to the agencies and departments has questions that are aimed at a scorecard approach in the sense of, "Tell us what value you think PAGENO="0061" 55 this committee has given you in the course of the last year; have you taken any of their recommendations," and so on. I believe, Cliff, isn't that in tl~e, form we use? Mr. GRAVEs. Yes. Mr. LYNN. I will tell you what is worrisome to me-I am a neophyte at this by some measure, but I guess I am also an old man after 7 years in Government-if we start doing it oii a score- card basis. A committee will make sevei~ recommendations. I will be absurd about it, but it will get the idea~~ across. One will be to change the format on the letterhead. The next one may be to change a person's title. The third one may be something else that is inconsequential. The fourth one is the big one. Now on the report at the end of the year, it notes that 3 out of 4 recommendations of the committee were accepted. That tells you nothing as to whether the committee was good or not. I would also say that perhaps in 3 years they didn't come up with one idea that was acceptable. But if that committee in the fourth year comes up with a really good idea that helps the people we are all trying to serve ii~ this country, solves a pi'oblem or gives the glimmer of hope for solution, then that committee was worthwhile. So I think it is very hard to have a scorecard as such. Senator METCALF. I am not, talking about a scorecard. I know Senator Percy is not talking about a scorecard when he said well, they should come up and justify themselves periodically. Four years has been suggested. Maybe that is too short a time. But I agree that one justified and valued piece of advice that would save paperwork, save money. create efficiency, or something of that sort-rather than as you say just change t.he format of the letterhead-would justify the continuance of a committee. But there are more than 1,000 of them. Some of them can't justify their wants. Would 4 years be, in your opinion, a legitimate time to automatically make them come back and justify their existence? Mr. LYNN. I think, Mr. Chairman, we are trying to do it every year. So far we have been more traffic manager than policeman. But the forms are intended, in our current organization and the way we have been moving in t.he organization, to allow 115 to inquire more on an annual basis. However, I am always disturbed about automatic review dates. As you know, the number of advisory committees came down from the high point in October and we ended up the year with 1,267. There were 272 formed that year, so we had a net loss. By that I mean a loss from the way I view this picture. We have 25 more committees, I think it was, than we had at the beginning of the year. Among those 1,267 are some that ought probably to be reviewed every year. There are some that you would look at once and 6 years later you would find they are still justified and will continue to be justified as long as a certain set of laws are on the books. Since I am constantly aware of how much paperwork we already have in the Government, I worry about automatic provisions that PAGENO="0062" 56 would apply across the board to 1,267 advisory committees-hope- fully less than that next year. Automatic reviews cause extra paper- work and take time of personnel, where it may not be necessary. Senator METCALF. Senator Percy, this is a matter you and I both had concern about. Do you want to get into this for a minute? Mr. LYNX. I would say, though, that we ought to take a look in the same way-and there are some relevant bills currently pending in the Senate-at overall programs and the need to review them. Some of these bills talk about zero-based budgets-that every year you should make every department justify every program that it has. There are others that say each program shall terminate at the end of 4 years. I believe the Senator has that kind of bill before the Senate. I say this: I welcome the spirit of all of this because it does mean that the Congress, as well as we in the executive branch, are paying more attention to getting rid of programs that don't work to make room for those that do and terminating programs that have just outlived their time. I think that basic approach is very useful. Senator PERCY. I would be most interested in having Mr. Lynn pursue the thought that he started out with, that at HUD lie had a lot of advisory committees he had to deal with that weren't really helpful to him, weren't really serving the national interest, and yet he wasn't able to get rid of them. Let's just assume now that there would be a desire- Mr. LYNN. I am not sure. I would have been better prepared if I had done my homework on them. I would be embarrassed if I went back and found out they were gone. I am advised by Cliff I did a~ very good job. But I was just saying it wasn't easy, Senator. Senator PERCY. Could you take one example, just out of the air, of an advisory committee and tell us how it was structured, what you found when you had it, how useful or useless it was. Mr. LYNN. My recollection was that I had a General Advisory Committee, I think, for IHUD. Senator PERCY. You had what? Mr. LYNN. A General Advisory Committee to HUD. It had a wide range of people on it. But my problems at HIIJD were with such matters as: Should I be selling all of these defaulted proper- ties I was acquiring "as is," which means don't fix them up and just sell them in the market; or should I spend an average of $15,000 per house, fix them up, put in a refrigerator, a new stove, and so on, and take-with Government procurement requirements being what they are-anywhere from 8 months to 14 months to do it where that house stays blighted in the community, hurting - the neighborhood it is in, and sell it rehabilitated. Now, in that kind of an issue it is just a heck of a lot easier to do one of two things: establish an ad hoc committee of people or do, frankly, what I did. When I was speaking to the mayors or Governors, I would ask mayors whose judgment I admire, one-on-one, what they thought of this, or a Governor what he thought of it, or if there was a builder whose judgment I respected, get his judgment. PAGENO="0063" 57 It was a terrific tug of war~ among a number of competing interests. Senator PERCY. How many advisory committees did you have atHUD? Mr. LYNN. It used to be six. We now have two I understand in }I[JD. Senator PERCY. That is all in BUD? Mr. LYNN. That is all HUD has. Senator PERCY. Committees on such things as housing and mass transit? Mr. LYNN. Mass transit isn't in HTJD. But in RED you have, for example, disaster programs~ I don't mean that humorously. At one point someone said all the programs were disasters. But I mean natural disaster programs. You have a wide range of community development programs, old ones like urban renewal and model cities, and so on and the new community development bloc grants. You have a diversity of housing programs. You have programs such as section 8 housing for lower income families. You have the tandem plan, that is not directed at lower income families, but at helping middle-income families acquire credit in a time of a credit crunch. I could go on and on. There is a diversity of issues before the Secretary and Under Secretary and Assistant Secretaries at all times that require different approaches. Let me give you an example of an executive board hearing process: Carla Hills, the }IIJD Secretary, held a set of hearings on condominium conversions. That is a very complex, very difficult issue-particularly as it affects elderly people being driven out of apartment houses as they are converted to condominiums. On the other hand, one must balance the question of what a person may do with his own property. This again was a situation where there~ had been comment within HUD that, "You really shouldn't hold hearings on that. That is a dynamite kind of issue." After the public hearing, however, I heard from people at HIZJD that those were extremely valuable hearings. HUD officials learned things in those hearings they hadn't heard before, things which will undoubtedly affect their judgment on the matter. Let me raise another approach and question. `When is an ad- visory committee an advisory committee? There is now a group called The New Coalition. It consists of Governors, county officials, and mayors. `We met with them and their staffs in 0MB constantly during the budget process this year to get their views on health programs, on education programs, and so on. These officials come to town~ regularly and on their visits to the city they will come to see us. Their staff will sit down with us almost weekly. Are they an advisory committee? The Governors Conference frequently has a group of people come in and meet with us on a given issue. It is a group of Governors chosen from their larger group. They advise us usually in a question and answer period-just give and take-without formal recommendations. Is this an advisory committee? Yet the truth of the matter is, that is exactly the kind of advice I want to get at 0MB. PAGENO="0064" 58 Senator PERCY. I have a couple of specific questions on the legis- lation before us. On 5. 2947, this legislation expands coverage of the act to include advisory committees serving agencies of the legis- lative branch of government, such as the Congressional Budget Office and General Accounting Office and others. This would give 0MB management authority over these agencies. Is there a precedent for this kind of an arrangement where the executive branch has a management authority over the legislative branch, and do you see any constitutional problems involved on that and the separation of powers? Mr. LYNN. I am not aware, Senator, of a good precedent for this. Secondly, I must admit that I have some fear and trepidation about giving that kind of authority to the executive branch. \\Te ran into, as the Chairman knows, the question in connection with the formation of the Commission on Paperwork. There the problem was solved by the Commission itself agreeing to follow the act in substance, but without acknowledgement or desire on our part for 0MB to have the responsibility with respect to it. I do think that is an issue to be addressed. There are some never-never lands as the Commission on Paperwork shows very well. For example, there the Commission reports to the President. It also reports to the Congress. Now, does the act apply or not? There could well be constitu- tional questions, but it. has been 7 years since I practiced law and I had better not try to speculate. Senator METCALF. If the Senator will yield, a recent decision on the Federal Election Commission has opened up grave problems in this whole area of appointment of commissions that have some relation to the Executive and, at the same time, have congressional duties. So none of us know right now just what this is. Mr. LYNN. I think that is right, Mr. Chairman. As you know, there are some functions in GAO and elsewhere in the legislative branch that are operational. They are more or less of an executive branch nature. I think the recent Supreme Court decision will require all of us to take a look as to whether those are proper or not. I have no opinion at this point, but I think, in light of that decision, there has to be a review of a number of things. Senator METCALF. I filed a brief in that case, an amicus brief, and read that very lengthy decision. But it seems to me that it has much more far-reaching implications than just on the Federal Election Commission. It is going to involve every one of our agencies that we said, well, it will be appointed with the advice of the Speaker of the House of Representatives, or some of those things. I think, Senator, you have raised a very serious question for all of us. The Supreme Court hasn't completely resolved it. It is sort of an ambiguous decision. Mr. LYNX. I think that is right.. Senator PERCY. My only other question on 5. 2947 is raised simply because in your own testimony you questioned the need for the requirement in that bill to report a list of the names and affiliations PAGENO="0065" 59 of persons employed as experts and consultants by the executive branch. The testimony is thát~ there are some 15,000 such people. Here is a rather hefty report called the Index to the Membership of Federal Advi~oi~y Committees. If I want to find out who is on the Tobacco Advisory Committee I can quickly determine who the readers are and what their interests are and so forth. We don't want to proliferate reports. However, I suppose, as Senator Metcalf is thinking, we cannot get a handle on these things unless we know who th~ people are. If anyone wants to know which of these we should eliminate, I would hate to be Earl Butz. I hadn't read this when I was with him Saturday. I don't know~ how he could, anyway. He has an advisory committee for ever~ aspect of every single agricultural crop we have. I don't know how he could follow that advice, much less listen to all of it. Mr. Lyxx. I think on that, Senator, we might take a look at the statutes at the same time to see how many of them are at least contemplated by the legislation that has come out of the agricul- ture committees. My guess would be it is a fair number of them. Senator PERCY. It may well be required right in the statute. But. do you have any idea how much it would cost to compile the information on these so-called estimated 15,000 people? That was the question you raised in your testimony as to whether it was really worthwhile. Maybe you could supply that for the record. Mr. LYNN. Let us supply that, sir. Senator PERCY. Give us a chance to evaluate it. Mr. LYNN. And against the~ benefit of it. That is the only thing we ask on each one of these-what are the kinds of pay dirt that may come out of them. That is all we ask. [The information follows:] ESTIMATED COST OF REPORT ON EXPERTS AND CONSULTANTS EMPLOYED BY THE EXECUTIVE BRANCH The Civil Service Commission estimates the costs for meeting the data require- ment of 5. 2947 pertaining to experts and consultants employed by the Federal Government as follows: Estimated number of individuals 12, 000 Estimated Commission costs for compiling and printing the data $6, 000 Responding agency cost-approximately $3 per consultant 36, 000 Total governmentwide costper survey 42, 000 This estimate of costs is based on providing, in addition to the number of experts and consultants, their names, employing agency, and business affiliation. Since the business affiliation is not one of the data elements in the Commission's Central Personnel Data File, a survey would be necessary to capture this information each time the data is required. Senator PERCY. If I read your statement correctly, we seem to be basically in agreement on the policies underlying 5.. 3013, that information on nonappropriated funding of Federal advisory com- mittees should be reported in a public manner and some better measure of workload and product of each advisory committee ~s 70-426 0-76-5 PAGENO="0066" 60 necessary if we are to operate oversight of these bodies. Are we in gen'~ral agreement in princinle? Mr. LYNN. As to the principle, we certainly have no ob~ection, and certainly on the second one we are very, very affirmatively disposed toward having a better job done. Senator PERCY. Again we get into cost effectiveness. Mr. LYNN. Exactly. And also rules that apply across the board to a thousand committees where they may require a lot more customizing as to what we do. Let me say on the conflict of interest, I really am a little puzzled by that because again, as a manager of a department, I always knew when I was getting advice from a business person or an environmentalist or whoever else it might be, where that infor- mation was coming from. And whether or not that business group pays for its own secretariat or not, you take advice from a business group that is advising you as advice from the business sector. You would hope that over a period of time you get to know the people who will tell you where the warts are with respect to their arrangements and the ones that are just giving you completely a brief for their position. But there is a conflict of interest in every case of advice in this sense: They have a responsibility to the organization that they work for. We have a different responsibility-we that are receiving that advice-you gentlemen up there-and a person sitting and running an executive department. You would hope that the advice you are getting is as much consonant with the public interest as possible. But I don't think one should ever assume that the person is going to put as much emphasis on the side of the argument that may represent a differ- ent aspect of the public interest, as the side of the argument that is totally wrapped up in his own business. So, whether or not they pay for the secretariat, I don't think you eliminate the conflict of interest, in the broad sense, by the funding. Now whether or not there should be disclosure as to which ones are providing dues or fees, I would think, frankly, that could be handled by administrative action, if that is thought important. *But what worried us about the statute, for example, is the ques- tion of the value of a person's time where a company allows a person to spend appreciable amounts of time on the advisory com- mittee? That is a thing of value. Or suppose there is a waiver of certain kinds of fees and they serve without a fee. Do you deduct that? I think, broadly stated, we could find ourselves counting the number of angels on the head of a pin. If there is a dues mecha- nism or the like, that wouldn't be hard to accomplish. But I would ask, what do we have when we know that? Senator PERCY. Yes. And what are you going to do with it? Mr. LYNN. Yes. Senator PERCY. I think your cost effective test is a very good one. Is it possible that for the record you could estimate what you PAGENO="0067" 61 would project the possible cost involved would be; what it may cost in staff time, in dollars ? Mr. LYNN. By this information you mean using the example used, whereby an assessment basis or a charge basis or a contri- bution by a foundation, there is money paid that way affirmatively- cash- Senator PERCY. Right. Mr. Lxxx [continuing]. To defray the expense of the operation? Senator PERCY. I don't think you would have to take time into account. Mr. LYNN. We can certainly try to do that. It would be very small. There are very few, at least that we are aware of, that are committees of that nature. [The information to be furnished follows:] ESTIMATED COST OF REPORT, ON USE OF NONAPPROPRIATED FUNDS BY FEDERAL ADVISORY COMMITTEES It is estimated that the cost to 0MB and the departments and agencies of a one-time report on the names and number of Federal advisory committees re- ceiving nonappropriated funds, and the amounts, would be less than $1,000, including 80 hours of professional and clerical staff time. We would be glad to discuss with committee staff the feasibility of such a report. Sentor PERCY. Finally, th~ feasibility has been questioned of having an agency keep count of recommendations they have re- ceived because some are, as you have said, informal and loosely structured; are they recommendations or not? In 5. 3031 we have tried to define committee recommendations to deal with this problem. Is that an adequate definition from your standpoint or could you offer any suggestions for improving the definition? Mr. LYNN. I must start, as a threshold answer, to say I am con- cerned about this idea of a report every year as to where each recommendation cumulatively stands. Again, I see a massive amount of paperwork. I really do believe that the effort should be customized more than that. On the definitional point, let me turn to Mr. Graves. Mr. GRAVES. Senator, the definitions are still quite broad. But it does clarify the existing situation. To pick up on Mr. Lynn's point, I don't see it as a problem for the agencies to maintain this information. Any agency having a significant number of committees should be doing this anyway. I think the concern that we have is the mechanical problem of aggregating all of that information, compiling it into a report and regularly submitting it. But probably a more customized approach would be to require that agencies maintain these records and make them available to the Congress, to 0MB, or to anyone else who would have a right to it. Senator PERCY. Mr. Chairman, I was intrigued by the comments made by Mr. Lynn as to how many of these committees are directly under jurisdiction of the executive branch itself and how many are required by statute. PAGENO="0068" 62 I think it would be very helpful to us if we are to scale down this operation and get it down to size if we know to whom they are responsible. No one is going to do anything between now and November to eliminate anything. But maybe we could take a mutual bipartisan pledge that after November when you have clear sailing for a couple of years that we could really move and do something. If we are to eliminate from the statute a requirement of a lot of things; laws are enacted and we throw in a couple of advisory committees here and there. Are they really serving their purpose? Isn't this a way to clutter up the Government rather than effi- ciently and effectively run it? I would like to work with 0MB to see where we could put the responsibility or take it ourselves, if we see we can. I talked to Ed Banfield a number of years ago. He was serving on two advisory committees. He jets into Washington. His trans- portation is paid for. He always has other things he is doing. He says~ "The only reason I am staying on is to see whether I can't eliminate them." He says, "So far as I am concerned, they don't do a thing." I just looked through the "Index" and I found, 5 years later, that he is off of both of them. I will have to go back and ask him whether he gave up in exhaustion and they are still going or whether he actually did get rid of them. I doubt the latter. Mr. LYNN. Just two, comments in response, Senator. One, I would much rather see the automatic provision going in with appropriate blanks as to how often it should be done with respect to evaluation of the programs. Senator Brock has introduced bills to do this. I don't know that we agree totally with that approach, but it is certainly in the right spirit. The other thing the chairman has done, I read carefully your remarks on the floor, Mr. Chairman, pointing out to your col- leagues the number of bills that were introduced in this session alone that called for advisory cori~mittees, or at least bills which would authorize advisory committees. What was it? Seven hundred, I think. I think that is useful. We both have a job to do. Let me tell you, I frankly take every occasion-at Cabinet meetings-in my one-on-one meetings with the Secretaries-to just keep pursuing it. I really do believe as a manager that there are many instances, by no means all because there are advisory committees that are useful and good, where a Cabinet officer or an agency head would be well advised not to have an advisory committee because the advisory committee never fits the particular problem you get. Now if they get a problem, a task to be done, and you want to appoint a group of people for a period of time and have meetings with them, fine; and the act should be applicable and is applicable to that. If you have that kind of an ad hoc committee~ as I under- stand it, the act is to be followed in those cases. But to have permanent advisory committees, a committee for all seasons, so to speak, the problems in the department very often don't fit that arrangement. PAGENO="0069" 63 Senator METCALF. Maybe we should have an advisory committee to advise us whether or not not we should continue to have ad- visory committees. Senator Brock? Senator BROCK. No questions. Senator METCALF. Senator Brock, as you know, has some legis- lation and has had a continued interest in this area, too. Mr. Lynn, I agree that Congress just automatically creates a whole lot of these advisory ôommittees, or authorizes them. You say we authorize it and immediately a whole lot of people come in and say, "We want to be on that advisory committee." We don't have to create a~dyisory committees, do we? Mr. Lyxx. No, sir. Senator METCALF. If you want to have an advisory committee to carry out some of the provisiOns of the act, for instance, Mr. Butz wanted an advisory committee on a policy of setting the prices of wheat or beef prices or something, lie could create that, couldn't he, without special statutory authority? Mr. Lr~N. I can't think of any case where that wouldn't be true, Mr. Chairman. There may be some, but I sure can't think of them. Senator METCALF. I don't know, maybe we should adopt a policy of just not having any of that boilerplate language to create advisory committees. Let you create the ad hoc ones downtown. Then one could come up and say, "Look. explain why those committees were created," rather than saying, "Congress authorized them and all we did was follow through." Mr. Lyxx. As I say, I think there are some that, as standing basis, do make some sense. I will say that I detected among the Cabinet members, at least as I talked to them on this issue-and I have checked about six things that I usually raise whenever I am with one of them on a one-on-one situation in a conference or airplane, and this is one of~ the things-I detect they are becoming more sensitive to this, if oñi~ because they know now every year they have to report to us. They look at the justifications as they are stated. After all, it has only been 2 years that we have really had this in effect. I have seen sometimes that they go back to their groups and say, "Look, I will sign it this year, but over the course of the next 3 to 4 months I want to know the reason why it is going to continue." As I say, I think we are going to see some improvement-even beyond what we have had. We have made some progress and I give this committee a lot of credit for that. But I think we are going to see more. Senator METCALF. Thank you very much for your appearance. I know that I don't have to emphasize that your staff, your excel- lent staff, will continue to work with ours in trying to at least do a little bit in this area of eliminating some of the proliferation of people and paperwork in Government. Mr. LYNN. Thank you very much, Mr. Chairman. It has been a pleasure to be here. [The prepared statement of Mr. Lynn follows:] PAGENO="0070" 64 EXECUTIVE OFFICE OF THE PRESIDENT ~i) OFFICE OF MANAGEMENT AND BUDGET WASHINGTON, D.C. 20503 FOR RELEASE ON DELIVERY Expected at 10:00 a.m. Monday, March 8, 1976 STATEMENT OF JAMES T. LYNN DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET BEFORE THE SUBCOMMITTEE ON REPORTS, ACCOUNTING, AND MANAGEMENT OF THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS Mr. Chairman and Members of the Subcommittee: I am pleased to be here today to offer testimony on the Federal Advisory Committee Act Amendments of 1976 (S.2947). While the amend- ments reflect areas of mutual concern in the management of advisory committees, I believe the spirit in which they were offered, and the hearings begun today, will point the way to the nost effective resolu- tion of those concerns: mutual discussion, agreement on means and objectives, and cooperative efforts to accomplish those objectives. A great deal has been accomplished since 0MB last testified before this subcommittee on the subject of advisory comtnittees. Your subcommittee, and its staff, have been very helpful at all stages in improving the effectiveness of the implementation of the Act. Within 0MB, we have increased the staff of the Committee Management Secretariat (CMS) from one professional position, to five; and procedures have been established and are being utilized so that each agency proposal to establish or renew an advisory committee, and the annual reviews of committees, are reviewed by both CMS and the program and budget PAGENO="0071" 65 -2- divisions. Administrative guidelines and procedures have been issued to the agencies and departments, and seminars held with agency Committee Management Officers and staff. We -- as well as this subcommittee -- have monitored the compliance with such requirements as those for publishing timely notice of meetings in the Federal Register (and the percent of notices in violation of such requirements has fallen from 47% in July 1974 to 3% in Dece~nber 1975). The Annual Report of the President on Federal Advisory Committees, prepared by the General Services Administration, has been made more complete and accurate, and the back-up data has been made more widely available to the public and other interested persons at a reasonable cost, on microfilm. And the more than 60 departments and agencies which are the major users of advisory committes have become more aware of, and responsive to, the requirements and intent of the Advisory Committee Act. I am not satisfied, however. As you may know, I am personally concerned about the number of advisory committees: I am not convinced that advisory committees are always the most effective means of obtaining expert advice, ideas, and diverse opinions for the Federal Government; and I am not convinced that we really need 1,267* committees. The automatic response to every problem should not be "let's form a committee." Other alternatives should be considered, such as greater use of "in-house" capability, public hearings, solicitation of comments from the public, use of contracts and experts and consultants. *Data from President's Annual Report, to be released March 31, 1976. PAGENO="0072" 66 -3- We believe our reviews, and those of the agencies, have helped hold down the total number of committees. The fact that more than 500 committees have been merged, terminated, or allowed to expire in the last two years indicates that committees are being evaluated and terminated when no longer necessary. While the Act is having a substantial impact, committees were created faster than they were terminated during 1975. As you have pointed out, Mr. Chairman, that is a problem of both the executive and legislative branches. Your listing of 750 bills affecting advisory committees introduced before the last August recess is one measure of the problem. If we are to substantially reduce the number of committees, the agencies, 0MB, and the Congress must all work at it. I would like to indicate where we plan to go from here. Now that 0MB and the departments and agencies have passed through a period of education on the requirements of the Act, and have developed procedures for meeting those requirements, we can turn to a more systematic review of advisory committee management activities. For example, the annual reviews of advcsory committees, now being con- ducted by the agencies for submission to 0MB by April 1, will provide qualitiative assessments and recommendations for further terminations of unnecessary and marginal committees. We are also planning -- based on the experience gained under the Act, and on discussions such as this hearing -- to revise and update the guidelines and directives for advisory committee management. We believe that these actions can have a substantial impact on the concerns we all share. PAGENO="0073" 67 I think it fair to say, Mr. Chairman, that we are in general agreement on the intent of the Advisory Committee Act, and understand the concerns that are reflected ix~ the proposed amendments. However, I am not convinced that it is necessary to amend the Act now in order to address many of those concerns, for a number of reasons. Most importantly, I believe that there is sufficient authority in the Act, and its assignment of responsibilities, to deal with many of the problems through new or revised guidelines, and through improved oversight. Practically, I think we should be very aware of the dif- ficulties of imposing provisions aimed at a limited number of committees, but which must be applied -- inflexibly -- to all of the more than 1,200 committees with widely di~fering compositions and substantive areas. I also see a real possibility that the cost of the administrative burdens imposed may outweigh the anticipated benefits. Finally, we believe that to the maximum extent possible, operating responsibilities and decisionmaking should be delegate~ to the heads of the various agencies, mandating those agencies to carry out the policies established by the President, and using the Executive Office of the President in a policy-setting and oversight role. I am seriously concerned about the degree of centralization of Authority and responsibility implicit in some of the proposed amendments. Let me discuss the amendments in general groupings: PAGENO="0074" 68 _5. 1. ~~nsion of coverage of the Federal Advisory Committee Act. It may be that the U.S. Po~tal Service, the Federal Reserve System, and the National Railroad Passenger Corporation should be included under the Act. However, we want to pursue the views of those organizations, as well as the views of the Committees of Congress having general oversight, before deciding on this. We do not believe, however, that the executive branch can or should exercise responsibility over entities advisory to the legislative branch. Whether or not the Congress wishes to establish within the legislative branch additional means of oversight of such groups is, of course, a matter for the Congress to determine. The issue of ad hoc groups has been troublesome since the inception of the Act. They are now covered, however, and I anticipate that many questions can be resolved by clearer definitions (one objec- tive of revising the present directives) of "ad hoc," "advisory," "operational," "administrative," and "executive." The latter three functions are not advisory, and what is appropriate for advisory commit- tee management may not be appropriate for such bodies. FACA cannot coverall fronts without diluting its central purpose. 2. Increased reporting requirements. S.2947, and S.30l3 proposed by Senator Percy, would add significantly to the present reporting and paperwork requirements of the Federal Advisory Committee Act. For example, indexed lists of committee members were prepared -- through your subcommittee's efforts -- for members reported in the Annual PAGENO="0075" 69 -6- Reports for 1972 and 1974. The last listing and index filled more than 1,400 pages. The amendments would require that such lists be kept current with respect to all past and present members, indexed, and made a part of the annual report by the Committee Management Secretariat. The proposed requirements for constantly updated member- ship information and its inclusion in the Annual Report, vastly in- creases the workload and costs, without, in our judgement, a comparable increase in the usefulness of the data. The amendments also call,~ for: -- an annual report to the Congress by the Presidei~it of the names and affiliations of all experts and consultants. No such listing now exists, and it is estimated that there are more than 15,000 persons in those categories; -- an annual report by the Attorney General on cases arising out of the proposed procedures concerning closed meetings; -- extending the requirement for one follow-up report within a year after a Presidential advisory committee makes recommendations, to reports until all the recommendations have been carried out to the extent practicable within the President's authority; -- including in the Annual Report the source and amount of any non-appropriated funds (which would affect perhaps two dozen committees) or "anything of value" received (which might include the value of every member of an advisory committee who is not paid or reimbursed for travel and expenses); PAGENO="0076" 70 -7- -- a tabulation in the Annual Report of the number of recommendations made, adopted, rejected, and pending, for each committee. As an agency head, as the recipient of a number of specific responsibilities under the Federal Advisory Committee Act, and as a member of the Federal Paperwork Commission, I am troubled by this apparent emphasis on the gathering and reporting of quantitative information, without full consideration of whether the possible improve- ments in committee management sought by these amendments are outweighed by the administrative burden and costs such additional requirements impose. 3. Closed meetings of advisory committees. This is another areas in which we have more quantitative information than qualitative. For example, in 1975 nearly half of all meetings were closed or partly ~closed. In January, 24 agencies announced a total of 156 meetings, all open; 13 other agencies and departments announced 148 meetings of which 81 were to be closed or partly closed (23 on the basis of national defense or foreign policy). Again, this appears to be an area where ~specific problems can be addressed by administrative action without imposing inflexible and hard-to-administer legislative requirements across the board. The amendments would require that if the initial decision to close a meeting was made by someone to whom that authority was delegated, that there be a procedure for an appeal to the agency head or the President, as appropriate, and a decision on that appeal within PAGENO="0077" * 71 -8- forty-eight hours. A meeting would be delayed if a decision had not been made. We agree that the approach of having an internal appeal procedure could cut down on unn~cessary litigation and result in more considered decisions. However,~ we believe that a change in the guide- lines may be a more appropriate mechanism for establishing it. Agencies, of course, currently have the authority to establish internal appeal procedures for determinations on closed meetings. Similar procedures have been used in both the Freedom on Information Act and in the Privacy Act of 1974. We do not believe that an appeal should be required to be determined within forty-eight hours or that a meeting, possibly scheduled thirty days~in advance, be postponed to accommodate an appeal on the thirtieth day. The amendments would also eliminate use of one of the Freedom of Information Act exemptions incorporated into this Act as a basis for closing the meetings of advisory committees. Under this exemption, a meeting may be closed if it ~iould disclose "interagency or intra- agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." We oppose the elimination of this exemption. Although this exemption may be the most troublesome of the nine used as a basis for closing advisory committee meetings, the solution, in my opinion, is not simply the deletion of the exemption. There are many examples of legitimate situations currently protected by this exemption. While at first glance it may appear that this exemption could indeed "swallow" the PAGENO="0078" 72 -9- purposes of the Act, such has not been the case either in its application or in the courts. The fact that eighty percent of all advisory committee meetings for calendar year 1975 were open to the public, or partially open, is ample evidence that this exenption has not swallowed the Act. Furthermore, while there are some differ- ences of opinion in the courts as to the applicability of this exemption, we expect that these proceedings will result in a useful and understandable exemption. 4. Administrative role of the Office of Management and Budget. As I indicated earlier, and as you know Mr. Chairman, we have carried out our responsibilities under the Act in part by placing maximum responsibility on the heads of the various agencies and departments, and using 0MB in a policy-making and oversight role. We continue to believe that this is the proper approach. Change in that approach is implicit in the proposed amendments. I am strongly opposed to any major expansion of OMB's role. Most advisory committees are formed to provide advice or recommendations to agency heads or their delegates. Those officials, in most cases, are appointed by the President, and confirmed by the Senate, as are their legal counsel. I believe that primary responsibility for managing am advisory committee -- determining whether it should beestablished or continued, deciding on the scope of its functions, ensuring that it complies with both the letter and intent of the Federal Advisory Committee Act -- must rest with the official utilizing the committee. PAGENO="0079" 73 In sunartary, significant progress has been made toward achieving the objectives of the Federal Advisory Committee Act. Working together, the Congress (especially this subcommittee) and the executive branch have established a system of advisory committee management. We can now focus on improving the administration of that system, and thereby achieving further progress within the present legislative framework. In short, we have not reached the limits of the Act. In my opinion, amending the Act now would be more disruptive, and less productive than a continued, cooperative effort to make the system work. Mr. Chairman, as requested in your letter of invitation, I am attaching to this statement a brief discussion of the procedures used for selecting members of advisory committees utilized by 0MB. I will be glad to discuss these further, if you wish. Mr. Chairman, this concludes my prepared statement. PAGENO="0080" 74 ATTACHMENT MEMBERSHIP OF 0MB ADVISORY COMMITTEES March 8, 1976 The Office of Management and Budget utilizes six groups to provide advice and recommendations, on a range of subjects, to the Statistical Policy Division, Managenent and Operations. We are now reviewing these groups, as a part of the annual comprehensive review, to determine whether they should be continued, revised, merged, or terminated. This review should be completed by April 1, 1976. The members of the groups have been selected in two different ways, reflecting the differences in the groups (and their functions) themselves: 1. The membership of three committees (Advisory Committee on Gross National Product (GNP) Data Improvement, Advisory Committee on the Balance of Payments Statistics Presentation, and the Advisory Committee on. Social Indicators) is wholly determined by 0MB. After surveying the scope and objectives of a particular committee, staff identify persons with the needed expertise, and contact them to determine if they are interested in, and available to serve on, the committee. A list of the available candidates is given to the responsible Deputy Associate Director, who makes final recommendations to the Director. The Director, 0MB, makes the final appoint- ments. PAGENO="0081" 75 -2- 2. Three committees are representative of non-Federal groups which are utilized to provide advice and recommendations to 0MB (American Statistical Association (ASA) Advisory Committee on Statistical Policy, Labor Advisory Committee on Statistics, and the Business Advisory Council on Federal Reports). The Labor Advisory Committee represents organized labor, and each of the major unions designates its represen- tative (usually the research director) on the Committee. The ASA Advisory Committee on Statistical Policy's members are selected in the following manner: the Executive Director and Board members of ASA nominate prospective members, the Deputy Associate Director for Statistical Policy reviews the nomina- tions in consultation with the Executive Director and Board members, and makes recommendations to the Director, 0MB, who makes the final appointments. Membership on the Business Advisory Council on Federal Reports is determined by its constitution and by-laws: each of the six sponsoring organi- zations (American Retail Federation, American Society of Association Executives, Chamber of Commerce of the U.S., Financial Executives Institute, National Association of Manufacturers, and the National Small Business Association) names three members; eight members-at-large are selected by a Membership Committee of the BACFR (which includes both sponsoring organizationand at-large members); and finally, 70-426 0 - 76 - 6 PAGENO="0082" 76 -3- there are three past chairmen active in BACFR, who are not considered ~to represent either sponsoring organization or at-large categories. 0MB does not select the members of this utilized advisory group. We believe that the rnerri~rship of 0MB' s advisory committees meets the requirements of the Federal Advisory Committee Act. However, this is a factor that is being considered in the annual comprehensive review, and if our current review indicates that changes are indicated, we will take appropriate action. PAGENO="0083" ~77 Senator METCALF. We are honored to have as our next witness the Honorable Mary C. Lawtoñ, Deputy Assistant Attorney Gen- eral of the Office of Legal COunsel of the Department of Justice. We are glad to have you before the committee again. We en- joyed your testimony in the past. We are glad to have you with us. TESTIMONY OF MARY C. LAW~ ON, DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE; ACCOMPANIED BY DAVID MARBLESTONE, ATTORNEY, OFFICE OF LEGAL COUNSEL; AND JOHN FITCH, ATTORNEY, OFFICE OF LEGISLATIVE AFFAIRS Ms. LAWTON. Thank you, Senator. Mr. Chairman and members of the committee, given the hour and the highly technicai nature of our testimony, I would propose not to go through all of the details, but to submit the statement for the record. Senator METCALF. Fine. The complete statement will be incor- porated in the record at the conclusion of your testimony. You have commented on special bills that are before this committee as far as the Department of Justice is concerned. So I appreciate that you are going to highlight yourstatement. Ms. LAWTON. Thank you, Senator. As the committee requested, a description of the methods of selection of Department of Justice advisory committees is attached to my prepared statement. May I first. introduce David Marblestone of our staff who has worked with this committee for some time; and John Fitch of the Office of Legislative Affairs. One of the points made ii~ the testimony, Senator, is one that was alluded to earlier here today, and that is the problem of separation of powers when committees advising the Congress and advising the legislative branch entities are incorporated into the present structure of the Federal Advisory Committee Act. The problem arises primarily because of the oversight functions which the act places in 0MB and the new provision that would put disciplinary responsibility in the Civil Service Commission. We think it raises serious separation of powers problems if the Civil Service Commission is to exercise disciplinary responsibility over individuals who are advising the Congress or advising entities of the Congress. Indeed, we question whether the scope of Civil Service Commis- sion jurisdiction would reach~ such individuals since, by definition in the Advisory Committee Act, they are not Government employees. Those are two of the problems we have with the amendments in their present form. It seen-is to us that if entities advising the legislative branch are to be incorporated into the concept of the Advisory Committee Act, it might best be done by a parallel piece of legislation that would resolve these separation of powers prob- lems; picking up the concept of openness and the concept of reporting, but nevertheless not encompassing executive branch over- sight of legislative branch business. Senator METCALF. Let me c~mment on that. I know you make some lists. You say well, these are the problems, and send them PAGENO="0084" 78 over to the legislative counsel. A bill comes back and it is intro- duced and we have hearings. The whole purpose of the hearings is to probe that legislation. I think you have raised a question that disturbs me. I think that it is disturbing enough that it would seem there would be no point in jeopardizing some of the provisions of the legislation by including that. I would just suggest that we have a mutual agreement right now that that issue would not be taken up, because I think there are much more important things involved in some of the legislation than that. Ms. LAWTOX. We noticed, Senator, that at the outset when in- troducing this bill you referred to it as a discussion draft. It was in response to that really that we addressed so many of the technical points. We have no policy problem with the concept of the Advisory Committee Act or with your identification of some of the ways that the bill addresses them. But obviously you do as well. So we hope to be of some help in suggesting alternative ways to reach the same end. Senator METCALF. There is some talk about sanctions and so forth and discipline. I think the problems of open meetings and standing to sue and things are much more deep-seated than these problems that do relate to separation of powers. I am glad you pointed them out. I just think that we will just have an agreement that we will eliminate that from the legis- lation. Ms. LAWTON. One of the other problem areas, as you note, in the legislation is this whole question of the appropriate exemptions for closing portions of advisory committee meetings. I think perhaps the problem stems in part from the use of the cross-reference device to describe the standards for closing the meetings rather than addressing the underlying issues that are appropriate with regard to advisory committees, as distinguished from Federal agencies acting under the Freedom of Information Act. One of our suggestions is that perhaps the committee might wish to consider recasting the exemptions in the Advisory Committee Act in a form tailor-made to advisory committees-that is, specify- ing the areas that ought not to be addressed in closed meetings and those which should be properly closed, and laying those out in the act itself rather than attempting to incorporate by reference- Senator METCALF. In the Freedom of Information Act. Ms. LAWTON [continuing]. In the Freedom of Information Act. That presents problems because these are difficult issues, of course. There is a body of case law under the Freedom of Infor- mation Act that might be lost in the process. Still, it seems to us that a legislative examination of each and every one of those grounds for exemption might be helpful at this time because advisory committees are different from Federal agencies. Senator METCALF. We thought about that. The subcommittee discussed that very problem. The subcommittee came to the con- clusion that the Freedom of Information Act, which did have some case law, as you suggested, and did have some precedents, would be better to be incorporated by reference. PAGENO="0085" ~79 We have a few cases that ha~ie arisen under the Advisory Com- mittee Act that perhaps we should relook at, because as you say, advisory committees are different from some of the other Federal agencies. But don't you think it is a grave question that more than half of the advisory committees ha.~e been closed here, when we are able to legislate with only one executive session of the Senate in the whole 2 years, and more than 9O~ percent. of our committee meetings, both markup and hearings, are open? Ms. LAWTOX. The statistics definitely do not look good. I don't have sufficient familiarity with the wealth of advisory committees to make any individual judgments. We don't have very many in the Department of Justice. WTe don't have very many closed meetings. It is hard for *me to assess what some of these other committees in other agencies, with which I am not familiar, might use as a basis for justification. But I would agree with you that the figures on their face raise a question as to whether closing was necessary in all of those instances. Senator METCALF. So nearl~ half, 48 percent were closed and 52 percent were open. I just think that the business of government involves so many things that it is very questionable to me whether or not the statute that permits closure of that many of the com- mittees should not be amended or should be enforced in some different, direction. Ms. LAWTOX. Yes. I agree that we have an obvious problem on the surface of those statistics. I can think of types of committees where it might be entirely appropriate to have a high percentage of closed meetings because they were perhaps valuating grant - applications by individuals who provide a curriculum vitae that may raise privacy implications. But there are some other instances where I would have some questions. The only committee that I have direct familiarity with serving our Department, to my knowledge, has never closed a meet- ing. `When the question has been raised, the response of the Fed- eral representative has been: "Technically we might close the action, but why should we? What harm does it do to leave it open? It seems to me that that ought to be the question that all advis- ory committees ask themselves: What harm is there in staying open? I don't propose to go into any more of the specific provisions, Senator. Senator METCALF. I want to talk with you a little bit about standing to sue. Some of the case law that has been developed has been developed because a consumer agency, or environmental group, or labor irnion, or somebody such as that has gone into court and said: "Well, we want to attend a meeting. It is closed. We don't think there is justification for closure." They have standing to do that, go into court. It seems to me that has to be contained. We don't just want to have somebody coming off the street and say: "I am going to file a lawsuit against a committee." PAGENO="0086" 80 But we have to have broader standing to sue, I think, than the Department- of justice recommends. Would you tell us just where you think we should draw the line on the ability of an organiza- tion or a group of people, whether we should just say Ralph Nader and Common Cause have a standing to sue, or who can bring these questions up? Ms. LAwTON. Two of the suggestions in our testimony, Senator, attempt to address that. One is the concept that the Administra- tive Procedure Act now uses of party aggrieved, which is admit- tedly not a precise concept. The other suggestion that we make deals with the question of an individual who has first, if you will, exhausted administrative remedies-that is, a person who has re- quested participation, questioned the closing of a meeting, and has been denied, and who then would have standing to sue. Senator METCALF. I tried to get involved in a suit because I was interested in oil policy, and I am over there on the Interior Com- mittee and working with energy, and on the Special Committee on Energy, and so forth, and tried to go in and challenge the composition of the National Petroleum Council. At least preliminarily they say: "The United States Senator hasn't any standing to sue." How can I get my legislative standing for a Member of Con- gress who is concerned and who is interested and who is working in that area? Do we have to amend the statute? Ms. LAWTON. You have, of course, filed an appeal, Senator. I propose we wait to see what the court of appeals says. Senator METCALF. I think we are going to appeal. Ms. LAWTON. You have me in an awkward position. It is a pend- ing suit. We are both involved. On pages 11 and 12 of our testimony, we discuss the question of standing. As I said, we suggest the two alternatives that standing be limited to a person who had filed a complaint about the c'osing of a meeting and was turned down and then has standing to sue, or that there be use of the Administrative Procedure Act concept of party aggrieved. We have no objection to the inclusion of a judicial review pro- vision as such in the legislation. Given the amount of litigation without one, I could argue that perhaps it is not. necessary at this stage. But still I think it would clarify the existing law. And those are two proposals we make on the question of standing. One of our concerns, not just with this legislation but with many proposals, is the combination of standing and venue throughout the United States. WTe worry about constant suits in different districts challenging a single action, because venue is very broad now under the general Federal statute and the possibility of conflicting de- cisions concerning, perhaps, in this context, the same meeting. What do we do if one district court says it is fine to go ahead with the closed meeting and the other one says no, it is not. fine to go ahead. This could result when different. plaintiffs in different districts have filed suits concerning the same meeting. PAGENO="0087" 81 Senator METCALF. It happens to us all the time. Ms. LAWTON. Of course it does. But we would rather not encour- ageit. Senator METCALF. I am not going to get involved with you today in another proposition that 1 felt was so important out in the State, such as the State of Montana, that we should have a right to go into our own district court rather than having to come back here and fight our suits in the busiest court, the District of Co- lumbia. court. We should be able to go down to the ninth circuit rather than the district court of appeals. But there is some merit in the contention. There should be one special science for filing such a claim since they are national in scope and somebody from San, Francisco could file one kind of a suit and that district could ~vould give a decision that would be different than the one in Alabama, for instance. Ms. LAWTOX. There are, of course, mechanisms in the Federal Rules for deferral and so forth. Senator METCALF. Sure there are. Ms. LAWTOX. The problem is where the suits are filed seeking a temporary restraining order, and it may be handled by a U.S. attorney here and another one there. Because such suits move so rapidly, the court order may be out before we have any informa- tion on it or the fact there are three or four suits relating to the same issue. It is not something that can be eliminated entirely, of course. Concepts such as standing help to some extent in reducing the problem. Senator METCALF. Senator Brock? Senator BROCK. No, I just was sitting here musing, Mr. Chair- man. I would like to resolve this thing because I am so tired of the paranoia in this country. 1 think it is time we open the process and let the people in this country know things are not so bad. I am not going to argue the question of standing. That is for you lawyers. I don't have any expertise on that. Senator METCALF. The question of standing has come up, and I think Miss Lawton would agree, some of the most useful explana- tions of the act have arisen because people or organizations that feel their rights have been infringed upon have come in, and we have had some good definitions of what some of the broad language means. That is how in our legal process we do process a whole system of laws that we just can't run into statutes. Senator BROOK. I think if we can open up committees, and I think you and I both would like to do that, or advisory groups, we would solve a whole lot of these problems before we even had to go to court. That is the way to do it. I am tired of people suing each other. I am tired of some busi- nessmen looking under every bed for an environmentalist and vice versa. Senator METCALF. It depends upon the environmentalist who is in tl1e bedroom. I am in complete accord. I think that the most serious proposition here is that half of these meetings are closed. PAGENO="0088" 82 It seems to me we have two things. If we have broad represen- tation and we have open meetings, our other problems are just automatically taken care of. If a whole lot of these people that are on advisory committees are inhibited in participating in open meetings, maybe that is one way to get rid of some of these advisory committees. It would seem to me that we in the Congress would welcome assistance of the Department of Justice in opening up the meetings and insuring that the very generaJ language that we have to make about broad representation is enforced. Ms. LAWTON. Of course, it is likewise to our advantage, as you noted, Senator, because if advisory committees don't close meetings, we don't have litigation problems. Senator METCALF. That is right. Ms. LAWTON. So it is definitely to our advantage. Senator METCALF. Of course, the best answer Senator Brock and I could give is to not have any advisory committees at all. Then they don't have to have any meetings. Senator BROOK. That is the ultimate dream, Mr. Chairman. Senator METCALF. Of course, they are useful. They have grown so much because there was a great use for advisory committees. They were created, and then all at once, as I said, we just auto- matically write them into every statute we create, and every new Cabinet officer says, ~WTell, I will get myself a couple of advisory committees around," and all at once we have them proliferating all over the place. Ms. LAWTON. Fortunately for the Department of Justice, most of our legislation does not call for advisory committees. There are a few in the LEAA statutes. Otherwise we don't have statutory com- mittees. We haven't created very many on our own. One that is currently operating is on false identification. It is a single study project. I would not assume that it would stay in ex- istence beyond the completion of the study. So, we as an agency don't have a proliferation of these. As the attorneys for agencies who do, we of course are very much aware of the problem. Senator BROCK. I do not want to extend the hearing with fur- ther discussion over the proliferation of committees. Regretable though it may be, politicians have a predisposition to establish any committees to appoint their contributors to. That is part of the problem, too. Senator METCALF. Just like the postmasters, you know. They have 10 applicants and 1 ingrate and 9 enemies. Thank you very much for coming up. Thank you for the tech- nical and special suggestions. As you understand, and it has been said before here today, this is only exploratory legislation. Perhaps much of the material can be dev&oped by discussion and executive directives and so forth. Any legislation has to have the probing that you have given us. Ms. LAWTON. We will be heppy to work with the committee. Thank you. [The prepared statement of Ms. Lawton follows:] PAGENO="0089" 83 ~Prepared Statement of Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel) Mr Chairman and Members of the Subcommittee: I am pleased to presen~ the views of the Department of Justice regarding amendmEnt of the Federal Advisory Committee Act. Mr. Chairman, when you introduced S. 2947 on February 6, you stated that~ it was offered tith the spirit of a discussion draft." In,~ bur view, the present bill addresses most of the main problems raised by the Federal Advisory Committee Act. However, we are unable to sup- port many of the bill's key~ provisions. I will discuss the reasons for our opposit~ion and, in addition, will suggest alternative approaches. A number of the provi- sions of S. 2947 and of Senator Percy's bill, S. 3013, prescribe reporting or othe~r~requirements ~fnich would entail substantial administ~r~tive burdens. In general, problems of that type will ~t be dealt with in ray state-' rnent, because, with regard to them, we defer to0~ll3 and other agencies more directly, involved. A. The Act's Coverate S. 2947 would amend the Act's provisions regarding coverage in several significant ways. 1. At present, the Act applies to groups which provide "advice or recommendations" to the President or PAGENO="0090" 84 1/ executive or independent agencies. Section 2 of the bill would extend the Act's coverage to any group, not composed wholly of full-time officers or employees of the Federal Government, which: provides advice or information to or is utilized by the United States Postal Service, the General Accounting Office, the Library of Congress, the Office of Technology Assessment, the Government Printing Office, the Congressional Budget Office, the Architect of the Capitol, or the National Railroad* Passenger Corporation. It would also cover any other such group which "provides information to or advises the Congress." One difference between the above provisions and the present definition of "advisory committee," § 3(2) of the Act, is that the latter does not encompass groups whose sole function is to provida information. Our main difficulty with the proposed extension of coverage is the separation-of-powers problems which would result from covering advisory committees of Con- gress and arms of Congress, such as the Congressional 1/ We have interpreted the Act as applying to committees which advise both Congress and the President. -2- PAGENO="0091" 85 Bucl~ct Qffic~ nuci the GAO. The Act assigns various regulotory functions co the P~esident or to 0MB. In our v~i, it would not be appropriate to make legislative brench odvisory comnittees subject to regulation by the executive. If there is a n~e~ to regulate the creation and operation of legislativ~ branch advisory committees, we suggest that it be accomplished by means other than amending the Federal Adviso1~y, Committee Act, for example,. by enactment of a separate statute. 2. S. 2947 would also bring under the Act advisory committees of the Postal Seryice, the Federal Reserve System and the National Rai1~oad Passenger Corporation. With regard to the desirability of Such coverage, we defer to the affected agenci~s. 3. Section 2 of the bill would add to the defi- nition of "advisory committee'1 an express reference to "any ad hoc groups." We ha~ interpreted the existing Act as applying to ad hoc, as well as continuing, advisory committees. See § 6(c) of the Act. The ques tion here is the meaning of "ad hoc group." One possible interpretation, though not the one we have followed, is that the term includes a one~tin~e, informal meeting between a Federal ofhcial and a group composed. of private persons. If this is ti,~e intent of the. amend- iner~t. we object to it:. PAGENO="0092" 86 Such informal meetings do not involve a "committee or similar group'S in the ordinary sense of those words. It is not uncommon for a Federal agency to convene, on a one-time basis, an informal meeting for the purpose of obtaining the individual views of knowledgeable persons. To make that kind of meeting subject to the Act's re- quirements of chartering and so forth would probably make them unfeasible. Due to the ephemeral nature of such groups, bringing them under the Act would serve little purpose. 4. In this regard, it might be beneficial for agencies and the public if, through amendment of the Act or legislative history, the meaning of "committee" were clarified. We have continued to follow standards similar to those set forth in the original 0MB-Justice guide- 2/ lines. Another matter which might be darified is the 2/ Under our interpretation of the Act, in general, for a group to come within the coverage of the Act, it must have all or most of the following characteristics: - (1) fixed membership (including at least one person who is not a full-time Federal officer or employee), (2) a defined purpose of providing advice to a Federal official or agency regarding a par- ticular subject or subjects, (3) regular or periodic meetings, (4) an organizational structure (e.g~, of fi- cers) and a staff. PAGENO="0093" 87 olenulLIg of `ueilizcd." On June 29, 1973, then Assistant AL ~oLney General Robert G. Dixon sent you copies of van- ous letters and me::~onandums~ ~repared in our office, regorcling ehe Act, including a memorandum setting forth our i. lews on the coverage of `utilized" advisory corn- mi~eees. 5. One element of the Act's definition of t!advisory committee" is a list of typ~s of groups ("committee, board, commission . . . [etc.]"). Section 2 of S. 2947 would add to this list the ~llowing: any group which has any responsi- bilities of an administrative, executive, or operational natur~ within an agency other than providing~ advice and information. The purpose of this amendme~t is not clear. Would it mean, for example, that any~ operational group (whose membership includes at least one person who is not a full- time Federal employee) which provides any advice to a Federal agency would he subject to the Act? If so, would all of the group's activiti~s be covered or only its ad- visory activities? On the basis of the Act's legislative history and § 9(h), we have taken the position that, generally speak- ing, operational bodies (bodies which siake or implement a~:e no~ ~uh~eot Là th~ Act. LTndon our inter- -3- PAGENO="0094" 88 pretatlon) where a group provides some advice to an agen- cy, but th~ advisory function is incidental to and inseparable from non-advisory functions, the Act does not apply. If the amendment is intended to change the Act in this respect, we suggest that the matter be dealt with more clearly. Moreover, we question the desirability of such an extension. The phrase "responsibilities of an administrative, executive or operational nature" appears in section 6 of the bill; that provision also seems unclear. B. ci~g, Advisory Co~itte~ee~ing~ 1. One of the most difficult issues presented by the Act is the use of Exemption (5) of the Freedom of Inform- ation Act, 5 U.S.C. 552(b)(5), the exemption for "inter- agency and intra-agenCy memorandums or letters . . .," as the basis for closing a meeting of an advisory committee. This matt~r has resulted in several lawsuits and one of them, Aviation Consumer Action Pqj~q~ v. Washburn, is now before the U.S. Court of Appeals for the District of Columbia Circuit. Section 9 of S. 2947, which amends section 10(d) of the Act, would eliminate Exemption (5) as a possible basis for closing an advisory committee meeting. We oppse this a:~~cndmeat. -6- PAGENO="0095" 89 From the outset, we hake rejected the view that Exemption (5) could be used to close virtually any ad- visory committee meeting. On the other hand, given the language of section 10(d) of the Act and pertinent decisions of courts of appeals, we have not accepted, as a proper general rule, th~ view that Exemption (5) can never be used as the b~sis for closing a meeting. Our basic position has been that that exemption can be used, but only in carefully limited circumstances. Of course, the present issue is whether section 10(d) should be amended by eliminating Exemption (5). Our opposition to this amendment rests upon the fact that there are circumstances~ in which there are com- pelling reasons for closing all or part of an advisory committee meeting, but in which the only applicable exemption is Exemption (5) Examples are as follows: (a) a meeting or portion consisting of an exchange of opinions concerning positions which may or should be takenì by the Government with respect to negotiations~ with other countries; (b) a meeting or portion consisting of eval- nation of the qua1ifi~ations or competence of persons or institutions applying for Federal grants; -7- PAGENO="0096" 90 (c) a meeting or portlon regarding possible regulatory action where premature disclosure could have substantial effects upon a particu- lar comoany or industry, or upon the effective- ness of whatever regulatory action may be taken; (d) a meeting or portion devoted to final. preparation of a report which (when written) will be exempt from disclosure. We suggest that alternatives to total elimination of Exemption (5) be considered. One possibility would be to set forth in the statute special restrictions upon the use of Exemption (5). Another approach would be complete revision of section 10(d). That is, instead of relying upon the exemptions of the Freedom of Inform- ation Act, the Advisory Committee Act might set forth the types of subjects which would warrant closing all or part Of a meeting. Let me point out that eliminating Exemption (5) as the basis for closing meetings would have effects upon implementation of the Freedom of Information Act. Courts have held that certain documents prepared by advisory committees come within Exemption (5). E.g., Washing~ ~ v. HEW, 504 F.2d 238 (D.C.Cir., 1974), ~ denied, 421 U.s. 964 (1975). Exemption of a document would haVe little meaning if the public had a right to attend the rrieeting at which Lhe document was prepared -8- PAGENO="0097" 91 2. Section 9 of tl~e bill would add a requirement that a recording be made pf every closed meeting of an advisory commit,t~e and that such recordings be deposited with the Library of Congr~s. H If such requirements ~re to be imposed, the bill should set forth limits oh access to recordings that are held by the Library of Cohgress. Otherwise, substantial legal issues, including separation~of-powers issues, would be raised. It should be remembered that a closed meeting may be an integr~i part of the decision-making process of the executive branch. Also, the requirement that recordings be made would result in substantial co~t. Regarding the question whether such cost can be justifidd, we defer to the views of O~ and other agencies. 3. Sbction 9 of the bill would add a requirement that any determination t~ close a meeting be published in the Federal Register, at least 30 days before the meeting. The current ONE circular regarding advisory committees provides that an advisor~ committee which -- seas to have a meeting closed must provide written notice to the agency head at least 30 days in advance. However, there is no requirement that the agency head1s determina- tion to close a meeting be made 30 days in advance or that the determination as such be published in the Federal Re~ister. 70-426 0 - 76 - 7 PAGENO="0098" 92 It might be desirable for the bill to provide that, in appropriate cases, e.g., in emergency situations, the requirement of 30-days advance publication may be modi- fied. C. Review of Closed Meetings 1. Section 9 of S. 2947 would add the following pro- vision to section 10(d) of the Act: (3) Any such determination [to close a meet- ing] made by a delegate of the President or a delegate of the agency head shall be reviewed by the President or the agency head as the case may be, upon application of any person, not later than forty-eight hours after such application is received. If any such application for review is received later than forty-eight hours before any such meeling, such meeting shall be delayed to permit the review and determination by the President or the agency head and notification of the person applying for such review. * * * We assume that this provision does not mandate review by the agency head or the President himself. Presumably, the review function could be delegated, so long as the delegate is a superior of the official who made the closed-meeting determination. - 10 - PAGENO="0099" 93 As it now stands, this~ provision of the bill would be unworkable. A blanket requirement that review be accom- plished within 48 hours is not realistic; merely obtaining nece~;sary information couldrequire more time than that. We sea no justificationfor a requirement that a meeting be delayed whenever a request for review is received within 48 hours qf, the date of the meeting. This would work unnecessary ha~dship upon agency personnel and advisory consrtittee members. If notice of the determina- tion to close a meeting is published in the Federal Register 30 days in advan~e, requests for review should be filed as promptly as possible after that notice. The question of delaying a meeting should be within the dis- cretion of the agency head, subject to possible judicial review. 2. The matter of ji~dicial review of determinations to close meetings is also~ dealt with in § 9 of the bill. Despite the fact that~ the Act contains no provision authorizing judicial review and that such, a provision was deleted in 1972 by the cthiference committee, the district courts have exercised jurisdiction over cases challenging the closing of advisory committee meetings. We do not object to adding to the Act an appropriate provision auth~vizing such review, However, the judicial-review 11 - PAGENO="0100" 94 provisions of the present bill are deficient in several respects. First, the matter of standing is not addressed. Standing should be limited to-persons who had filed an administrative complaint or at least to persons aggrieved by the determination in question. Second, under the bill, the Government would have ten days in which to file its answer, unless the court granted an extension "for good cause." Ordinarily, the Government has 60 days in which to respond to a complaint; even under the Freedom of Information Act, the time is 30 days (sub- ject to extension for good cause). -The ten-day limit would, in most cases, put an unreasonable burden upon the Department of Justice and defendant agencies and would also burden the courts with requests for extensions. Under Rule 65 of the Federal Rules of Civil Procedure, a party who makes a proper showing may obtain a temporary restraining order or a preliminary injunction. If judicial review of determinations to close advisory committee meet- ings is to be authorized, these provisions for extra- ordinary relief would be available. Of course, the various prerequisites, e.g., a showing of irreparable injury, would have to be met. My point is that the prob- lem of pro-meeting relief can be dealt with on the basis of existiag procedures, procedures which do not depend - 12 - PAGENO="0101" 95 upon the filing of the Cov~ernment's response to the complaint. Third, the bill sets forth provisions concerning attorney fees, disciplinir~g, agency employees and contempt of court that are similar or identical to provisions of the Freedom of Informatior~ Act as amended in 1974. We question the need or the ~ppropriateness for many of these provisions. For example, the Federal courts have inherent author- ity to punish contumacious conduct. There is no need for the statute to deal with this matter. In our view, the fact that the Freedom of Information Act now contains provisions concerning possible discipli- nary action is not a reason to add such language to the Advisory Committee Act. We are not aware of facts which show the need for inclusio~ here. In particular, it would no~ seem appropria~e to have the Civil Servièe Com- mission investigate the conduct of advisory committee members who are not Federal employees or, indeed, who are members of advisory committees serving only the legisla- tive branch. Nor does there appear to be a basis for the Department of Justice's taking "corrective action" against such persons. - 13 - PAGENO="0102" 96 3. We have no objection to requiring the Attorney General to submit an annual report concerning litigation under section 10 of the Act. However, there should not be a requirement that the reports describe "efforts by the Department of Justice to encourage agency compli~~ ance with this section." The Act assigns to 0MB, not to the Department of Justice, responsibility for overseeing compliance. D. Selection of Advisory Committee Members 1. Section 4 of the bill would amend section 5(b) of the Act by requiring that legislation establishing or authorizing the establishment of any advisory committee include requirements that the membership of the com- mittee be "publicly solicited" and that at least one-third of the members "be drawn from citizens in private life who shall represent the interests of the public It shoulc~ be noted that section 5(c) of the Act states that the requirements of section 5(b) shall, to the extent that they are applicable, "be followed by the President, agency heads, or other Federal officials in creating an advisory committee." Presumably, the bill's, provisions concerning advisory committee membership are intended to apply not only to committees established by statute, but also to those created by the executive branch. If so, we question the -. 14 - PAGENO="0103" 97 appropriateness of that r~suit. There may be situations in which, due to the sensitive nature of an advisory corn- mittee's work or due to t~e~ need for prompt commencement of its activities, public solicitation of members would not be feasible. As you know, in 1972, ~he Senate committee decided against including a publi~-interest membership require- 3/ ment. We believe that effective enforcement of the existing and more generaL `~balanced membershipt' require- ment should suffice. One aspect of the Act~ which might be clarified is the applicability of secticn 5(b)'s balanced-membership requirement to advisory corirnittees created by the exec- utive branch, before the Act took effect. As noted pre- viously, section 5(c) refers only to executive action creating advisory committeds, not to selection of members for pre-existing committees. 2. Mr. chairman, you requested information on procedures used for seledting members of Department of Justice advisory committees. Our Department has a small number of advisory committees. There is no uniform selection method. I have prepared a memorandum describ- ing the methods used and will be happy to offer it for inclusion in the record. 3/ See S. Rep. 92-1098, p. 16. - 15 - PAGENO="0104" 98 E. Other Matters 1. Section 14 of the Act deals with termination of advisory committees. Clarification of the provisions. concerning termination of advisory committees established by statute would he desirable. Our interpretation of this section is discussed in a memorandum which Mr. Dixon submitted to the subcommittee on June 29, 1973. 2. The Act appears in an appendix to Title 5 of the United States Code. We suggest that the amendments provide for inclusion of the Act in Title 5 itself. 3. Section 5 of the bill would require annual reports on Government use of consultants and experts. This subject has little relation to *the Advisory Committee Act. It seems doubtful thafl the expense of preparing such a report could be justified. Mr. Chairman, that concludes my statement. I will be pleased to answer any questions you may have. - 16 - PAGENO="0105" 99 Selection of Members for Department of Justice Advisory Committees 1. According to our information, as of March 5, 1976, the Department of Justice had membership-selec- tion responsibility with regard to six advisory commit- tees. Four of the committees were within the jurisdic- tion of the Law Enforcemer~t Assistance Administration; the Criminal Division and the FBI eaëh had responsibility with regard to one committee. The methods of selecting members vary from commit- tee to committee. There follows information furnished by the three components of the Department regarding their respective selection procedures. PAGENO="0106" 100 2. Law Enforcement Assistance Administration Presently, LEAA has four advisory committees: the National Advisory Committee for Juvenile Justice and Delinquency Prevention, the Private Security Advisory Council, the National Advisory Committee on Criminal Justice Standards and Goals, and the Advisory Committee Of the National Institute of Law Enforcement and Crimi- nal Justice.* National Advisory Committee for Juvenile Justice and Delinquency Prevention This advisory committee was established pursuant to Section 207 of the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601 et ~ Pub. L. 93-415. The membership selection procedure of the com- mittee is found at Section 207(c) which provides: The regular members of the Advisory Com- mittee, shall be appointed by the President from persons who by virtue of their training or experience have special knowledge concern- ing the prevention and treatment of juvenile delinquency or the administration of juvenile justice, such as juvenile or family court judges, probation, correctional or law en- forcement personnel; and representatives of private voluntary organizations and community- based programs. The President shall designate the Chairman. A majority of the members of the Advisory Committee, including the Chairman, shall not be full-time employees of Federal, * This committee is scheduled to terminate on March 6, 1976, and indications are that it will not be renewed, at least not in its present form. -2- PAGENO="0107" 101 State, or local governrrents. At least seven members shall not have attained twenty-six years of age on the date of their appointment. The Offic'e of Juvenile Justice and Delinquency Pre- vention of LEAA,submitted recommendations to the White House. The list was composed of prominent persons with diversified experience in the juvenile area. Recommen- dations also came from other sources such as congressional leaders. Final membership~ selection is reserved to the President. This procedure~ applies both to the selection of the initial membership and the filling of vacancies. Private Security Advisàry Council This advisory committee was established by LEAA pursuant to Section 517(b) of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3701 et ~ as amended (Pub. L. 90-351, ~s, amended by Pub. L. 93-83 and Pub. L. 93-415). Section 517(b) provides in pertinent part that: The Administration is authorized to appoint, without regard to the civil service laws, tech- nical or other advisory committees to advise the Administration with respect to the admin- istration of this title as it deems necessary. The charter of the Council provides that: Membership of the Council and its committees will be drawn from LEAA, other concerned Fed- eral agencies, public law enforcement agencies, private security businesses, manufacturers of products used for private security, institu- tions and businesses~ concerned with private -3- PAGENO="0108" 102 security, and representatives of the general public who are not necessarily identified with any of the foregoing. LEAA staff composed a recommended list of prominent persons in the private security field. This list was compiled by an informal process of contacting persons known by LEAA to have experience in the area. The list was submitted to the Administrator who made the final decision as to the membership. This procedure applies to the selection of the initial membership and the fill- ing of vacancies. National Advisory Committee on Criminal Justice Standards and Goals This committee was established pursuant to the Section 517(b) authority. The membership as stated in the charter isto consist of prominent State and local officials, representatives of the private sector, and the academic community with functional expertise in the area of standards development. Regional diversification was also a concern for the membership of the committee. In addition to in-house suggestions, LEAA staff informally solicited names to be placed on a recommended list that was submitted to the Administrator for final approval. Among those groups contacted were the National Governors' Conference, the National Conference of State Legislatures, and several State planning agencies. This -4- PAGENO="0109" 103 procedure applies to the selection of the initial member- ship and.the filling of vacancies. Advisory Committee of the National Institute of Law Enforcement and Criminal Justice This committee was established pursuant to the Section 517(b) authority. Membership, as indicated in the charter, was to include LEAA employees, officers and employees of criminal justice agencies, representatives of the research and academic community, social scien- tists and others involved~in the administration of all aspects of criminal justiàe. An initial list of nine prospective committee members was drawn up by the Director of the National Institute of Law Enforcement and Criminal Justice and submitted to the Administrator for his final approval. The list was composed of names suggested by other offices in LEAA and the Department of Justice. This same pro- cedure was utilized several times until the committee achieved its present composition. The Administrator on occasion did refuse to approve names that were submitted to him by the Director of the Institute. This procedure applies to the selection of the initial membership and the filling of vacancies. -5- PAGENO="0110" 104 3. Criminal Division The Federal Advisory Committee on False Iden- tification is under the auspices of the Criminal Division of the Department of Justice. The following procedures were utilized in the selec- tion of Committee members: Because the false identification problem was so broad and concerned not only Federal, state, and local government officials but commercial and private interests as well, every effort was made from the inception of the Committee to provide a "balanced" Committee membership pursuant to 0MB Circular A-63 Revised, Section 6. In particular, the greatest attention was given to insure the full participation of the public and public interest groups, such as privacy organizations, on the Committee. Letters of invitation from the Department of Justice were sent, therefore, not only to Federal, state and local agencies and business groups, but to ~such groups as the American Civil Liberties Union, Common Cause, and Ralph Nader's group, inviting these organizations to be- come working partners and members on the Committee. Each organization was allowed to nominate its own participants but only one voting member was permitted per each agency. -6- PAGENO="0111" 105 Following the Attorney General's public announcement of the formation of the Committee in a speech in October, 1974, the announcement of the Committee's first meeting and the charter of the Committee were placed in the Federal Register as required by the Federal Advisory Com- mittee Act to alert the public to its creation. In addition, the Committee's announcement of meetings in the Federal Register have continually carried this paragraph: The meeting is open to the public. The Committee welcomes a~broad spectrum of ideas from the public to aès~ist the Committee in its efforts to increase individual privacy and to aid in preventing the criminal use of false identification When responses from the above-cited invitation letters were received, a tentative list of five Committee Task Force Chairmen and lists of members on each Task Force were compiled by Criminal Division staff for use at the organizational meeting. Committee members were chosen solely on the basis of their expertise in the areas of Committee investigation; the need to balance membership with all levels~of government and the private sector; and the expressed intention of members to work. There are no honorary members on the Committee. Members who have failed to come to meetings have been dropped. Since the first meeting of the Committee, all persons from the public requesting membership on the Committee PAGENO="0112" 106 have been granted it; all meetings have been open to the public; and indeed, all votes taken by the Committee to date have been taken by a show of hands not just of members, but of all persons who have attended each of the public sessions of the Committee. PAGENO="0113" 107 4. Federal Bureau of Investigation The National Crime Information Center (NCIC) Advisory Policy Board reports to the FBI. There are 26 members on the Advisory Policy Board, 20 of whom are elected by agencies participating in the NCIC system with equal representation from each of four NCIC geo- graphic regions of the country. There are six members from the criminal justice community appointed by the Director of the FBI. There are two each from the prose- cutive, the judicial, and the corrections sectors of this community. Th~ elected members serve two-year terms commencing on January 5, 1975. The appointed members serve indefinite terms at the pleasure of the Director of the FBI. The Regional Chairman of each of the four NCIC Policy Board regions conducts elections in November and December of each even year for membership on the Board. Balloting is held ~ each state control terminal agency to nominate one state-level representative and one local-level representative to serve on the NCIC Advisory Policy Board. Nominees are top-level criminal justice administrators capable of providing substantial input to the deliberations of the Policy Board. A list of nominees is then prepared by the Regional Chairman and furnished to the state control terminal agency. 70-426 0 - 76 - 8 PAGENO="0114" 108 The state control terminal agency then votes for five state and two local representatives out of which the top four state and one local representative are chosen. There is only one vote per state. The four nom- inees receiving the highest number of votes for the state- level openings and one receiving the highest number of votes for the local opening are elected to the Board from that region. Any vacancy on the Board (with the exception of the six members selected by the Director of the FBI) is filled by appointment by the Regional Chairman wherein that vacancy was created utilizing the next highest vote totals from the prior election. The person appointed is of the same category (state, county, municipal) as the member vacating that position. This appointment is for the unexpired term of the member vacating that position. - 10 - PAGENO="0115" 109 Senator METCALF. The committee will be in recess until tomor- row at 10:30 in room 6202, at which time we will continue these hearings. [Thereupon, at 12:05 p.m., the subcommittee recessed, to recon- vene at 10:30 a.m. on Tuesday, March 9, 1976.] PAGENO="0116" PAGENO="0117" TO AMEND THE FEDERAL ADVISORY COMMITTEE ACT-P.L. 92-463 TUESDAY,~ MARCH 9, 1976 U. S. SENATE, StTBCOMMrVrEE ON REPORTS' ACCOUNTING, AND MANAGE- MENT OF THE CO~r~rirrEE ON GOVERNMENT OPEIL&TIoNs, lVashingtom, D.C. The subcommittee met at 11 a.m., pursuant to recess, in room 3302, 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; Gerald Sturges, professional staff member; Jeanne McNaughton, chief clerk; James George, minority, professional staff member. Senator METCALF. This is the second of 3 days of hearings by the Subcommittee on Repo~ts, Accounting, and Management, on two bills to amend the Fedérál Advisory Committee Act. They are 5. 2947, introduced by Senator Hatfield and me, and 5. 3013, in- troduced by Senator Percy. Today's scheduled witnesses are Professor Henry Steck, of the department of political science, State University of New York at Cortland, and Mr. Reuben Robertson, legal director, Aviation Con- sumer Action Project. The testimony Professor Stéck has prepared makes a number of excellent points. I agree with his observation that, despite the Federal Advisory Committee Act, we really do not know very much about the advisory committee process. I welcome his suggestion that the second generation task for thu act is a close and critical look at the advisory process. Professor Steck also reminds us that advisory committees are lobbying with a difference, "since membership on advisory groups is cloaked with the mantle, of institutional legitimacy and public authority." He adds: "Such is the danger presented by the mili- tary- industrial complex, perhaps the preeminent example of the merger of public and private ower." This would be a suitable moment to summarize the results of a subcommittee staff study of the representation of the top 100 de- fense contractors 1 on Department of Defense advisory committees in1974.Inbrief: Twenty-nine of the top thirty defense contractors are represented on DOD advisory committeës~ Of the top 50 companies, only 13 are not represented on them. 1 See p. 312. (111) PAGENO="0118" 112 Lockheed, the top defense contractor, has 11 employees on 12 DOD advisory committees. Boeing, No. 2, has 12 employees serving on 13 DOD advisory committees. The leader is 14th ranked A.T.&T., with 19 employees serving on 21 DOD advisory committees. What the numbers alone do not reveal is that a good many of these contractor representatives are old recycled Pentagon hands- retired generals, former high-ranking civilian officials of the De- fense Department or the individual services, and former congres- sional staff. The subcommittee intends to publish the study, which names the contractors, their representatives, and the advisory committees on which they serve. It will also include biographies of some of them such as Willis M. Hawkins of Lockheed, and Barry J. Shillito of Teledyne-to show the clubbiness of the Pentagon, its contractors, and its advisers. Now we will call on Prof. Henry Steck, who has a prepared statement. TESTIMONY OP PROP. HENRY ~1. STECK,' STATE UNIVERSITY OP NEW YORK, COLLEGE AT CORTLAND Senator METCALF. Professor, are you a doctor? Professor STECK. Yes. Senator METCALF. Do you want to be called a doctor? Professor STECK. Professor will be fine. Senator METCALF. All right. Professor Steck, we are delighted to have you here. You have made several reports on this very question, so we recognize you as an expert to give us some advice and counsel as to where we go from here. Go right ahead. Professor STECK. Thank you. It is a pleasure to be here. The Federal Advisory Committee Act (FACA) is a significant addition to a series of legislative enactments designed to broaden the administrative process. Such successive measures as the Ad- ministrative Procedures Act, the Freedom of Information Act, section 102 of the National Environmental Policy Act, and the proposed Government in the Sunshine Act have all reflected a con- gressional determination to open the administrative process to pub- lic view, to enlarge puplic access to the arenas of administrative decisionmaking, and to instill into the administrative process the procedural and participatory rights and opportunities available in the legislature and the courts. Even before Watergate, a strong current flowed in the direction of greater public accountability on the part of administrative agencies. Whereas reformers of a bygone era focused on the dangers of concentrated economic power, contemporary reformers are as responsive to the dangers of unregulated and exclusionary bureau- 1 Dr. Henry 3. Steck is a professor of political science at the State University of New York, College at Cortland. Professor Stack received his l'h. D. from Cornell University and has taught at Vassar College and the University of British Columbia as well as at SUNY Cortland. A former chairman of the department of political science, Professor Steck is the co-author of a book, Our Ecological Crisis: Its Biological, Economic, and Political Dimensions (Macmillan, 1974). He has written several papers on advisory committees, including "Private Influence on Environmental Policy: The Case of the National Indus- trial Pollution Control Council," in 5 Environmental Law 241 (Winter 1975). PAGENO="0119" 113 cratic structures. FACA can best be appreciated against the broad sweep of the history of liberal democratic institutions toward the progressive opening of the doors of State power. It is addressed to the manner in which government agencies con- duct themselves. It demands revisions in agency procedures in the direction of greater disclosure, public participation, administrative accountability, and responsible management procedures. FACA's significance lies squarely in its effort to control the institutional nexus between the public and private sectors. Whereas the classic textbook principles of liberal democracy enshrine a separation of State and society, the reality is that the functions of modern government are too far ranging, too penetrating, and too complex for the passive watchman State of yesteryear. State and society are not ineluctably mixed. In its largest terms, FACA is a legislative response to this situation: it seeks to im- pose liberal principles on an illiberal situation. It does so in part by recognizing that administrative decisions depend upon highly specialized forms of informatiOn and expertise. Like the Administrative Procedures Act and the Freedom of In- formation Act (FOTA), FACA seeks to formalize the channels of information and to compel government to disclose to the maximum extent possible the informational basis of its decisions. Like the proposed Government in the Sunshine Act it seeks open meetings so as to restrict cx parts contacts:by interested parties. The act's significance lies squarely in its efforts to control the institutional connection between the public and private sectors by regulating the manner in which agencies receive advice, informa- tion, and cooperation. As Senator Metcalf said in opening the hearings that led to the passage of FACA, informatiàn is the "bedrock of government de- cisionmaking." Advisory committees are a~ ëommon but little publicized device employed by Federal agencies to tap the expertise of the private sector, to solicit the advice of private parties in formulating poli- cies, to gain the benefit of fresh ideas, to secure the cooperation and assent of affected groups in administering programs, and to pro- vide a measure of public l)articipatiOn. Despite routine complaints: about the proliferation of such com- mittees, their utility is repeatedly acknowledged by both adminis- trators and Congressmen. In 1974, for example, a new èommittee was created roughly every 1.06 working days while the number of new committees has in- creased since FACA's enactment in 1972. The responsibility for this continuing growth is not, however, the sole responsibility of ad- ministrative officials. Responsibility for establishing or authorizing the existing 1,242 committees is evenly shared by Congress and the agencies. The 93rd Congress alone enacted, 53 laws establishing, authorizing, or affecting Federal advisory committees. Scarcely a day goes by when a bill is not introduced creating a new advisory committee. Overall, then, the system of advisory committees is a major longstanding institutional method for linking private interests and private ex- pertise to the administrative process. PAGENO="0120" 114 Despite the widespread reliance upon advisory committees by Congress, the President, and individual agencies, Congress has never felt comfortable with either the untidy growth and weak management of the advisory committee system or with the potential for improper influence inherent in the close and closed relationships characteristic of the system. For more than 15 years, Congress and the Executive Intermit- tently sought to come to terms with the system. By 1970 pressure began to develop for a legislative solution to the problem of ad- visory committees. Tn 1970, the House and Senate Government Operations Commit- tees initiated what proved to be 2 years of extensive hearings cul- minating in the enactment of FACA in 1972. As the hearing record grew, Congress was told what had been plain since the first hear- ings in 1955. The advisory committee system was overgrown, mismanaged, and largely invisible. The committees were ill-managed and ill-tended. Many committees, and especially such peak industry committees as the National Industrial Pollution Control Council (NIPCC), the National Petroleum Council (NPC), and the Advisory Committee on Federal Reports, not to mention their lesser cousins, were closed to the public and indifferent to the requirements of accountability that sound administrative practices require. Finally, the committees were all too frequently the private pre- serve of corporate interests and thus a legitimized government- supported form of high level administrative lobbying. As consti- tuted, the system provided no opportunity for a wider public to have input when decisions, based on committee advice, were being made and policy administered. The system came to be regarded as a shadowy fifth branch of government. Without tracing the full legislative history of the act, suffice it to say that FACA combined two distinct sets of congressional con- cern. First, Congress believed that the system was another example of an ever-growing and irresponsible bureaucracy. It therefore sought to subject advisory committees to tighter, more effective, and most accountable executive management requirements and congres- sional oversight. Second, there was an equally deep concern with the power of advisory committees, with the nature of representation on such committees, and with public accessibility to the advisory process. Congress thus sought to open committees to the sunshine of public view and to the healthy winds of public participation. As it stands and as I read the act, it seems to me to consist of five different purposes. First, the act is a committee management law designed to create an orderly set of standards and uniform procedures for regulating the establishment, operation, administration, duration, termination, cost, and recordkeeping of advisory committees. To ensure that these management requirements are met, the act establishes clear oversight and control responsibilities for Congress, the President, the Office of Management and Budget, and agency heads. It seeks to insure, inter alia, that advisory committees perform only author- PAGENO="0121" 115 ized, well-defined, and necessary functions, to check the growth of advisory committees, to establish uniform procedures for the char- tering and functioning of advisory committees, and to provide a set of administrative guidelines and management controls for advisory committees. Second, the act is a sunshine law requiring that meetings be open and that Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees. In this respect, the act provides for the maintenance of public records concerning the work of advisory committees, for the sub- mission of regular reports by, the President and by committees, for publicly advertised and open meetings of advisory committees, and for public participation in the work of advisory committees. By reference to the Freedom of Information Act (5 U.S.S. 552), the act contains exemptions to the openness mandate. `While it was not perhaps the best stroke of draftsmanship to in- corporate the thicket of problems inherent in FOTA's exemptions, there can be no doubt that as between the competing values of dis- closure and openness and of confidentiality and privilege, FACA places the greater weight on the former. The Senate report accom- panying FACA stated in no uncertain terms that section 10 is one of the key sections in the legislation and is to be liberally con- strued. Third, the act is a fair balance law. It requires that the mem- bership of advisory committees be fairly balanced in terms of the point of view represented and the functions to be performed. As I argue below, this provision, is central to the overall purposes of FACA. Fourth, the act is a public participation law. It provides not only that committee be open to public observation, but to public par- ticipation as well. The public is regarded by the law not as an audience of silent spectators but as invited participants with the right to appear before, and file statements with, an advisory com- mittee. The act incorporates withOut statutory specificity elements of the public hearing and public comment processes already routine under APA. This provision seems to establish an affirmative obligation for agency officials to make such public advice part of the record upon which agency decisions are based. Finally, the act seeks to insure that functionally advisory com- mittees are advisory only and that their activities are controlled by responsible officials of the Federal Government. After 3 years, what gains have been generated in the advisory committee system? Clearly, FACA has changed the rules of the game and under prodding from public interest groups, the courts, and this committee, agencies are learning the new rules. But be- cause old habits die hard, it is probably still too early to reach a balanced accounting of FACA's full impact. That will not be possible until the rules are routinely followed and until we have more information about the system than we have now. At this point, then, we are still confronted with the normal PAGENO="0122" 116 sluggishness, uncertainty~ and diehard habits that inevitably persist following the passage of any new reform legislation. To the degree that FACA offends the old regime its full effects will be delayed. I believe, however, that we can conclude that we have come to the end of the initial stage of FACA's implementa- tion. Permit me first to specify three of the positive gains that FACA has produced. First, the committee system is being opened to the public. The days are behind us when advisory committees were closed, when secrecy shrouded the deliberations of the more important commit- tees, and when access to committee work was blocked by a maze of obstacles and no trespassing signs. Meetings are increasingly open to the public. In 1974, 55 per- cent of all meetings were open, 20 percent were closed, and 25 percent were partially closed. No doubt, these figures could be im- proved in light of Congress' intention that the standard of open- ness be liberally construed and that meetings be closed only under very specific and well-defined circumstances. But my impression is that the bias is now running in the direc- tion of openness and disclosure. While 45 percent may seem to be a high percentage of closed meetings, it should be emphasized that two-thirds of all reporting agencies and departments held no closed or partially closed meetings. A third of all meetings that were totally closed were concentrated in the Department of Defense while the bulk of the remaining totally or partially closed meetings were concentrated in those agencies that deal either with financial matters or with the review of grant-type proposals, for example, the National Science Foundation, National Institutes of Health~ National Endowment for the Arts, and the like. With good grace or not, agencies are accepting the congressional mandate that openness prevail over claims of confidentiality. This is not to say that problems do not exist. I shall turn to these shortly. But cases of bureaucratic evasion and subterfuge seem less common than 3 years ago. Meetings are generally noticed within 15 days; agenda are pub- lished; the right of the public to speak and make written submis- sions is recognized; bureaucrats are as often as not contrite when chastened by a tart letter from the distinguished chairman of this committee. Nothing more clearly illustrates this acceptance than the differ- ences between OMB's first guidelines dated November 1972, and its March 1974 guidelines. Whereas the former interpreted FACA's purposes as designed to insure only that "adequate information is provided" and that "adequate opportunities for access by the pub- lic" be made available, the 1974 guidelines stress that "the emphasis should be on the free flow of information." In sum, FACA has imposed on agencies what many of them once regarded as the unthinkable. And doing the unthinkable has not produced the chamber of horrors that bureaucratic conservatives once predicted. In general, it seems to me with good grace or not, agencies are accepting the congressional mandate that openness prevail over claims of confidentiality. PAGENO="0123" 117 Second, FACA has resulted~ in more effective management of the advisory committee system. Agencies have designated advisory com- mittee management officers and formulated FACA guidelines. 0MB has simplified its guidelines in line with the spirit of the act. The annual report and the accompanying materials permit Con- gress, interested groups, and scholars to take an upclose look at the dimensions and cost of the system. Above all, FACA has resulted in a stepped up rate of extinction for committees. Whereas only 187 committees were terminated in 1972, 390 and 299 committees disappeared in 1973 and 1974, respectively, including some that are familiar to this subcommittee, such as the National Industrial Pol- lution Control Council and the National Business Council on Con- sumer Affairs. To some extent, then, FACA~ has reversed the natural law of the persistence of bureaucratic forms. Certainly some of the commit- tees sank without .a trace. Others may have been forced out of ex- istence because they were not willing to play the game by the new rules. NIPCC is a case in point. In its 3-year lifetime, NIPCC was a prize example of all the evils Congress sought to prevent: its members were drawn exclusively from the corporate sector; the public was shut out of its meetings; it enjoyed a still unmeasured degree of ex parte contact with administrative decisionmakers; it became an arena for lobbying and corporate public relations at Government expense. NIPCC responded to the openness of FACA with ill-disguised bad grace. LTnwilling to open itself to the public in a meaningful manner or to broaden its membership, the NIPCC structure was allowed to wither away. The coup de grace, of course, was admin- istered by Congress itself whei~ it refused to appropriate funds for NIPCC. Against the background of Watergate, the administration was in no position to fight for, its survival. NIPCC passed quietly away under the provisions of section 14(a). That an advisory council designed to deal with a policy area of great importance to the business community and the Government was allowed to fade away reveals rather sharply the extent to which NIPCC was less a conduit for expert advice than an arena of influence and patronage that provided the corporate sector with access to the corridors of agency decision making. One may be per- mitted to speculate on how many other of the nearly 700 expired groups fell into a like category. Finally, as FACA enters its next stage, I believe we can discern two developments that may prove significant. I shall be certainly yielding to excessive optimism; but there are two points of specu- lation and prediction. The. first relates to the quality of advice pro- vided by the advisory committees and to the quality of manage- ment control and the second to the forms of public involvement in the advisory process. Let *me take as a text a portion of the Department of Commerce memorandum dated March 20, 1975: The need for prudent management is quite clear: heads of operating units must make a concerted effort to reduce the number and the costs of advisory committees. To this end, the following actions and options should be considered. * * * .~ * * * * PAGENO="0124" 118 2. If a committee is not meaningfully and productively achieving its purpose, revamp it or terminate it. * * * * * * 4. As a substitute for committees which are not especially active, as well as for committees which have proven to be more informative than advisory by nature, consider the medium of public symposia or conferences-which indi- vidual invitations to public sector specialists. This avoids the costs of formal chartering, of numerous reports, or periodic reviews, and of many other statu- tory requirements associated with advisory committees. The same tone was struck partially yesterday in Director Lynn's comments. But Secretary Dent last year, and Director Lynn yesterday, cast the problem of advisory committees in very constructive benefit- cost terms. The memorandum reveals a readiness by an administrator to evaluate advisory committees in unadorned and hardnosed cost-ef- fective terms. This approach is an oddity since administrators and Congress alike have tended to assume a priority that advisory com- mittees are a good thing. Casting the problem in benefit-cost terms is precisely the ap- proach that FACA should be encouraging on the part of both administrators and Congress. Significantly, Secretary Dent also recognizes, elsewhere in the memo, that "open meetings * *~ * re- quire much less paperwork than closed meetings." Raising the question of costs and benefits also raises the corollary, namely, whether there exists ir1 some situations a less costly alter- native to advisory committees? In suggesting as much with its ref- erences to conferences and public symposia, the memorandum looks in the direction of public participation in a manner consistent with FACA's openness mandate. It may well be that in certain kinds of policy area the advisory committee structure as such can be dismantled and other techniques of advice developed. Both developments, I would think, would be all to the good. Let me turn now to some of the defects in the administration of the act. Despite the undoubted if incremental advances under FACA, there is still much to be done before the purposes of Congress arc met on a more or less continuing basis. Some of the persisting difficulties are commonplace, having been examined extensively in earlier hearings. Others are emerging as second generation concerns of great im- port. Failure to deal with them would reduce FACA's goals to little more than an ambitious set of rituals. My review of these is necessarily impressionistic: it would be a major research undertak- ing to enalyze systematically the use of 1,242 committees by over - 60 agencies, 22,000 advisers and $40 million. In this context, one might note that section 7(b) of the act calls upon 0MB to prepare a "comprehensive review of the activities and responsibilities of each advisory committee" with a view to- ward making determinations about the effectiveness, administration, and continuation of those committees. This review is required annually and appears to call for a set of findings by 0MB that would provide qualitative effectiveness PAGENO="0125" 119 studies about committees. Unless I am mistaken, there has been no comprehensive 7(b) report of the type envisioned by the act. Con- sequently, oversight has necessarily fallen to the watchdoggrng of this committee's staff and the persistence of public groups nad private litigants. For what they are worth, then, my own impressions persuade me that the proposed amendments to FACA are both timely and pertinent. This ties in, of course with a number of the amendments you have proposed and it ties in with my comments about the necessity for cost-effective examination of~ the system. Allow me to concentrate on what I see as three critical problem areas: first, continuing negligence if not evasion in the administra- tion of the act; second, clear indifference and avoidance of the fair balance provision of the act and the related statutory failure to deal with the problem of advisory committee selection; third, the need for a close and extended study of advisory committees on a case-by-case or agency-by-agency basis. First, despite the undoubted ~ains under FACA, even the most casual review of agency compliance reveals practices that are at variance with the spirit and letter of the act. Protestations to the contrary, old habits persist and take new form. Although these practices are not universal in scope, they surface frequently enough to suggest the need for remedial action. FACA's regulatory scheme of openness, it must be recalled, requires the performance of a. related set of duties on the part of agencies. No doubt FACA's requirements are costly, time-consuming and, one regrets to say, involve the multiplication of paperwork. But these are lesser values. As the Calvert Cliffs court said of the more onerous agency duties under NEPA: Considerations of administrative difficulty, delay or economic cost will not suffice to strip the section of its fundamental importance. That seems to me to be a relevant and generalized enjoinder that could well adorn FACA. What are the duties that FACA requires of an agency? They require, inter alia, that: (1) timely public no- tice of meetings be given; (2)~ informative agendas be published; (3) meetings be held in accessible locations with adequate space provided for public attendance; (4) full opportunity be given the public for written or oral presentations; (5) full and detailed de- terminations be written and available for the closing of meetings under exemptions provided in 5 U.S.C. 552(b) (1-9); (6) fully informative minutes be kept of meetings; (7) complete records be maintained in a publicly available manner; (8) annual records be filed. Although these requirements are not difficult, Senator Metcalf's correspondence with agencies throughout 1975 demonstrates a slug- gishness at best in the administration of the act's provisions. A re- view of the Federal Register for January of this year confirms that strict compliance has still not been achieved. Longtime com- mittee watchers will share my jaded lack of astonishment at the examples of administrative inadvertence that repeatedly turn up. On the matter of timely meeting notice, for example, one finds that although most meetings are noticed 15 days or more prior to PAGENO="0126" 120 the meeting date, a sizable minority receive less than 15 days no- tice: a number of the individual State advisory committees to the Civil Rights Commission clearly gave less than 15 days notice. More to the point, uninformative and skimpy agendas appear all* too frequently. Persons wondering whether to attend the February 5 meeting of the Bicentennial Committee of the National Council on the Arts would have learned from the Federal Register only that the meeting would consist of "a discussion of general outlook on Bicentennial program and * * * a general discussion of specific programs." The adequacy of minutes is called into question by the plainly cursory minutes of the top-level Labor Management Committee. Nor do the agencywide failures in recordkeeping inspire confidence in the quality of records throughout the Government. One wonders, to take one example, whether the fact that the FDA submitted "grossly inaccurate cost estimates" for its cornniittees is idiosyn- cratic on the surface of an iceberg of bureaucratic failure. More crucial to FACA's success, however, is the nature of com- pliance with FACA's openness mandate. As I have indicated, the openness rate is about 55 percent with the bulk cf the closed 45 percent being located in a small number of agenci es. To some ex- tent, we must be cautious in interpreting this figure. It may well be t.hat sound policy reasons exist for closing many of those meetings. It may be plausible to look not at the rate of closed meetings but at the kinds of matters discussed by those closed meetings. The news may be better than the raw percentages would indicate. But there is unquestionably bad news with respect to closed meet- ings. For example, some agencies appear to believe that a meeting by any other name is not a meeting. One might recall the unseemly instance of LEAA's National Advisory Committee on Criminal Justice Standards and Goals' Organized Crime Task Force being advised by a Federal employee to avoid FACA's tough require- ments by meeting in unnoticed off-the-record dinner meetings. This practice is probably more common than we think. The FEA's Consumer Affairs/Special Impacts Advisory Committee em- ployed an informal caucus to discuss possible resolutions for the consideration of the full committee; when attendance nroved slack at monthly evening caucuses breakfast meetings were proposed. As for the CAB, its Industry Advisory Committee on Aviation Mobilization has not met since 1968 and conducts its business through the mail. More pernicious is the technique openly used by the new-departed NIPCC. Following FACA's passage, I was told by NIPCC officials that FACA would cause no real problem be- cause NIPCC members would simply begin using personal contacts and the phone to do business. Indeed, in 1973 NIPCC converted its increasingly rare plenary meetings into sterile and ritualized public sessions that did nothing while NIPCC members went un- derground. As public NIPCC meetings dwindled to a precious few in 1973, 1156 meetings were held that were informal consultations with in- dividual members. On a priori grounds, I believe that the use of PAGENO="0127" 121 informal meetings, sub rosa get-togethers telephone chats, and the like, represents an important and innactable question. Unfortunately, our knowledge of such matters must remain in- tuitive and based upon the few cases that do surface. As a discuss shortly, I believe there is a way to make openness work and work well. The greatest threat to FACA's openness mandate, however, has been the use and abuse of FOTA exemptions and most notably ex- emption b (5). The story of the last 3 years is by now familiar: whereas FOlk 552(b) was used as a point of reference for defin- ing exceptions to 10(a), agencies began to use it, and especially (b) 5, to close committee meetings indiscriminately. The prodding of this committee paralleled by a string of court cases ought by now to have reduced FOlk claims to a minimum. Courts have successively rejected claims that committees are agencies, that committee deliberations are agency deliberations, that committee documents are agency documents, that advisory com- mittee members are functionally equivalent to Federal employees, and the like. Most recently, the D.C. district court ruled that (b) (5) "is in- herently inapplicable to advisory committees." While the finding is less sweeping than this language suggests-documents that are "an integral part of the deliberative process" of an agency are still entitled to the protection of (b) (5)-the decided cases unequivo- cally hold that "Congress has expressly ordered the door be open except on the rarest occasions," and that a heavy burden, is on the Government to prove otherwise in specific terms. One would have thought that this was the end of it and that all (b) (5) claims would be accompanied by very precise, very rea- soned explanations. This is not the case. Exemption (b) (5) is alive and well in the pages of the Federal Register. Speaking as a nonlawyer, it appears to be the case that current (b) (5) exemptions are still employed: (1) in conclusionary ways that are unsupported by reasoned explanations or references to the intergovernmental documents that trigger the (b) (5) claim; (2) in ways not consistent with FOTA, FACA, or the decided FACA cases, the latter at most having limited (b) (5) claims to a narrow set of documents; (3) in a "in numbers there is safety" theory that yokes (b) (5) to other section (b) claims in a manner that leaves the reader unable to determine the grounds of the determination- hence. unable to know from the record how to mount a legal attack; (4) in ways that assume still that committee members are functionally analogous to Federal employees such that their verbal exchanges re- ceive (b) (5) protection. As an example of the catchall use of (b) (5), consider that on January 16, 1976, FDA partially closed 12 meetings with the fol- lowing (b) (5) formula: "This portion of the meeting will be closed to protect the free exchange of internal views" (5 U.S.C. 552(b) (5)). A more general explanation stated with respect to (b)(5): A portion of a meeting may also be closed if the Commissioner determines: (1) That it involves interagency or intra-agency memoranda or discussion and deliberations of matters that, if in writing would constitute such memoranda, PAGENO="0128" 122 and which would therefore, be exempt from public disclosure; and (2) that it is essential to close such portion of a meeting to protect the free exchange of internal views and to avoid undue interference with agency of (sic) com- mittee views. From my reading of the Gates, Nader, Washburn, and Wash- ington research project, and Wolfe decisions, the only possible re- maining legitimate use of (b) (5) exists when a given interagency or intra-agency document that has been interjected into committee deliberations remains part of the agency's decisional process. Not being a lawyer, I hope I am not treading where I shouldn't go. Senator METCALF. Not being a lawyer helps. Professor STECK. Very good. The Washburn decision suggests at the outer boundaries that (b) (5) cannot be invoked, that is, the privilege is waived, when documents are disclosed by the agency to committee members who are not full-time Federal employees. In no cases, however, can (b) (5) be used as a generalized technique for closing meetings. It can only be used, if then, in very narrow circumstances. Certainly, it cannot be used simply to protect "the free intercha.nge of internal The nondefense agencies, 552(b) (2), (4), (6) exemptions form a second line of defense. Although those proficient in the arcane mysteries of FOTA litigation may find me mistaken~ I do not believe that (b) (2), (4), (6) claims are being currectly used. Con- sider the following explanation for the closing of the Federal Pre- vailing Rate Advisory Committee meeting. The notice provides that the meetings will be closed on the basis of 5 U.S.C. 552(b) (2). It *then states: The closing is necessary in order to provide the members with the oppor- tunity to advance proposals and counterproposals in meaningful debate on is- sues related solely to the Federal Wage System with the view toward ultimately formulating advisory policy recommendations for the consideration of the Civil Service Commission, These discussions relate to a general matter of public policy, that is, the compensation system for civil servants, involving the Gov- ernment as a whole. It is not related, to quote (b) (2) "solely" to the "internal personnel rules and practices of an agency"; nor is it related to the kinds of situations suggested either by the House report interpretation of (b) (2) or the more narrow Senate inter- pretation that has been favored by the courts. tTse of (b) (2) to cover meetings of Civil Services Commission committees is one thing. But (b) (2) turns up in the strangest places. Consider this notice of the Commission of Fine Arts: Preliminary discussions of design studies for the west end of Pennsylvania Avenue similarly require a frank and uninhibited exchange of tentative view as exempted from disclosure by Subsection 552(b) (2) of Title 5 . . . The Free- dom of Information Act authorizes the exemption from disclosure of inter and intra-agency memoranda and letters where the documents are not final determinations and such exemptions are necessary to prevent the inhibition of predecisional processes (5 U.S.C. 552(b) (2). The deliberative process by which the Commission of Fine Arts arrives at independent judgments is a prede- cisional process which must remain uninhibited and thus undisclosed in order that the Commission may effectively perform its statutory functions. PAGENO="0129" 123 While this particular meetifig may legitimately have been closed, (b) (2) was not the way to do it. There are other questions with respect to exemptions as well. Exemption 2 has been used~ in ways which seem to me not quite legitimate. It should be noted that committees and advisory committees re- viewing grant applications are tending to use an all-purpose for- mula composed of (b) (4) (5), and (6). Of all the questions facing FACA. the question of grant decisions and peer review is, to my mind, the most difficult.~ On the one hand, it is not clear that exemptions (b) (4), (5), (6) collectively work: research or artistic applications may not invoh~e financial or commercial matters; ex- changes between non-Feder~d employees seem not to be covered by (b) (5) ; and while (b)~(6) may cover part of a committee's work. for example. evaluati~oñ of recommendations, it is not clear that. it covers other parts, for example evaluation of a curriculum vitae. It do not think the question of peer review is an easy one to settle. The competing values are several and, in my judgment, openness may not always o~tweigh the need for an honest decision on the scientific or artistic. merits of a project; nor does openness seem on first glance the right cure for the deficiencies of the sys- tern; nor, on the other, are closed meetings appropriate for other aS})ects of the peer review process. Since Congress has givem~ its stamp of approval to the existing peer review system in section 110 of the National Cancer Act, hasty formulations of the relationship of FACA to peer review ought. to be avoided. Perhaps our attention ought. to be properly addressed to finding a way to balance the public's right to know, the public's right to accountability, and the imperatives of an effective grant review system. On this issue I would agree with Prirnack and von Hippel in their chapter "Toward an Open Advisory System" in "Advice and Dissent.: Scientists in the Political Arena.": A proper respect for the privacy of the individual researcher must be balanced against society's concern that the taxpayers' money be well spent. It is difficult to decide this balance on general principles. It may be that statutory exemptions ought to be built into FACA itself in this and other cases where FOTA exemptions work so poorly. Senator METCALF. May I interrupt you right t.here. Profe.ssor STECK. Yes. Senator METCALF. I know that you were here yesterday. It was suggested by Ms. La.wton, from the Department of Justice, that perhaps, instead of incorporating by reference the Freedom of In- formation Act, we should, spell out the statutory guidelines our- selves in the legislation, or let. the Department of Justice or some- one else to spell them out. \Vould you comment on that while we are on that subject? Professor STECK. I think~ that might. be one approach. I have tried to read the cases. It seems to me that. might. be a very plau- sible approach to take. My impression is that. when a case goes to 70-426 0 - 76 - 9 PAGENO="0130" 124 court, what seems to happen is that all of the Freedom of Infor- mation precedents are brought along into the litigation and one begins to find the courts and the lawyers trying to make distinc- tions whether it is a Freedom of Information case or an Advisory Committee case. In the Washington research project, the court makes dicta in a footnote and you begin to wonder what is going on. In that case, one is not quite sure if the court is fully aware of the meaning of the Advisory Committee Act. If you throw out exemption 5, there still may be cases. I think grant review is a difficult one which needs very close study. You may want to build advisory committees exemptions into the act itself simply to avoid in the future agencies coming along whenever they feel it convenient and saying: "Well, we know ex- emption 5 is to be used rarely." As Judge Greene put it: "On the rarest occasion," but here is a rare occasion and then you are back into court. So it might be well to devise very, very strict guide- lines covering certain categories of cases. I hope I am not engaging in special pleading on peer review. But having served on committees which make research awards, it is a very complicated business and you are dealing with different kinds of data. A man's credentials and abilities is one. Such matters involve, in a certain sense, a personnel or privacy decision. Second, the na- ture of his proposal, is another aspect and that might be partially open, and then, third, the question of whether this kind of research ought to be supported at all and that becomes a fully open question. Congress also has recognized peer review partially in section 110 of the National Cancer Act, which comes after the Advisory Committee Act. So I can well see certain problems arising in the future out of that. It might be well to build exemptions into the act by amendment or by guidelines if your committee will have a heavy hand in writ- ing them rather than to continue with this drafting process. Senator METCALF. You heard me say that we initially felt that the body of case law that had been developed in the Freedom of Information Act would be useful by reference in the Advisory Committee Act, but perhaps the time has come when we should develop some case law of our own, and make some distinctions, and so forth. Perhaps your suggestion and the Department of Justice sug- gestion is that this is an area where we should have an amendment. Professor STECK. Yes. Also because the Freedom of Information act talks about documents and here you are talking about discus- sion, often verbal. Then they come up with a formula covering dis- cussion, which if it is reduced to writing-but it is not-on the part of Federal employees ought to be exempt. You begin to get into a set of Chinese boxes with that question. Mr. T1TRNER. Isn't there a distinction, Professor Steck, between a Government document and a group composed of non-Government people together with Government people? In other words, if the Freedom of Information Act is to obtain a document from the PAGENO="0131" 125 Government, which, is its do~uthent, and make it public and certain exemptions were attached, but over here you have a meeting going on with people who are not full-time Government officials but are from the outside, from the private sector, because there would be a distinction between a Government document and a meeting-that might justify the kinds of separate types of exemptions that you are talking about. Professor STECK. I have thought a great deal about this because it is a very touchy problem. It seems to me that Congress has made the distinction in the act between advice and deliberation. The tug a.nd pull now is that when an exempt document under exemption 5 is introduced into a.n advisory comittee, let's say on the most narrow grounds conceded-I might think in Nader v. Dwnlop- you in effect pull the advisory committee into the deliberative process. If you say that is legitimate, then you can go forward legiti- matelv and say there are cases where you need frank and open discussion. It seems to me that what Coiigress has said in the act is we don't want deliberative discussion taking Place in au advisory committee. It is simply advisory discussion. In other words, I said at the outset of my statement that the act sought to strike at the institutional connection between public and private, and exemption 5 precisely raises that general issue. Even if you apply exemption 5 on the rarest and most prudent. and legitimate occasions, you are still pulling the advisory com- mittee into the deliberati~e process. It seems to me Congress wants to keep them separate. Iii that case, I think there is probably a very strong argument to be made for the amendment you propose. Now. it will make things difficult. Speaking with a lawyer yes- terdav. I was told that: ¶`What will result is that the agency officiaTs will resort to one-on-one appointments and phone calls for his advice." That may be true, but Congress's judgment is that if advice that comes from the private sector, that is from the private sector organized in public advisory committees, that ought to be open to all nongovernmental persons to hear and to throw in their 2 cents worth. So here you are saying there is a balancing. It is not an open- and-shut case, but on balance the decision is for openness. The grant review committees are very, very tough because they are used in an extremely important way. The Government, in effect,.' is the major supporter of research in this country, I think some 60 percent since World `War II. If they are going to use in NIH 400 committees in the grant review process, either you set up separate legislation or, in my judgment, you write that exemption and any others you might come up with into the act. " I don't even know whether the peer review committee falls under the umbrella of an operational committee. I don't feel competent to judge that.. Senator METCALF. Thank `ybu; go ahead. Professor STECK. Finally,,' a consideration of the openness pro- visions of FACA leads to one further conclusion. Like the National PAGENO="0132" 126 Environmental Policy Act, FACA was apparently meant to be a self-enforcing statute. The act itself provided no enforcement means that could be utilized against a recalcitrant agency. Hence, again like NEPA, the enforcement of FACA fell to the courts, in the first instance and Senator Metcalf in the second. Neither solution is altogether satisfactory. By the time litigation is underway the committee meeting in dispute may be over. The courts can correct continuing violations, but they cannot return the horse to the barn. FACA's statutory scheme needs to be fleshed out, therefore, by a provision that allows for speedy resolution of contested decisions to close meetings and for a mechanism of sanctions that will dis- courage administrators from begcoming sloppy or playing hide- and-seek with FACA. Second, openness is not the only issue. A consideration of FACA's effectiveness since 1973 suggests that ~ major defect in its scheme lies in the linked problems of selection of advisers and the ambiguous meaning of the "fairly balanced" mandate of section 5(b) (2). Given the prescience of the committees that originated FACA and given the hardhearted skepticism of its drafters toward ad- visory committees, it is astonishing that tE e act contains no pro- visions for the selection of advisory committee members nor any precision in the term "fairly balanced" or the accompanying stand- ard-or standards-of "points of view represented" and *"the functions to be performed by the advisory committee." The issues of selection and balance are critical in reaching to the ultimate purpose of FACA. This purpose in large measure is to pre~vent a biased single-in- terest between the private and public sectors. Efficiency of manage- ment, high quality advice,~ and openness are all important statutory values. But the achievement of these values would be for naught if the political character of the advisory system were a closed and exclusionary one in policy terms. A key question for political analysis, of course, is who has access to decisionmakers and who has influence over them? In drafting FACA this committee in particular and Congress in general recog- nized that advisory committees represented one element in the in- creasing convergence and fusion of public authority and private power-and especially corporate power. Advisory committees were seen to provide the means for groups representing common if not identical interests and sharing similar views about policy to acquire inordinate and one-sided influence over various arenas of policy. The 1970-71 hearings revealed that in case after case committees such as NIPCC, the National Petroleum Council, the Defense In- dustrial Advisory Committee, the Advisory Committee on Federal Reports and others spoke with a common voice and filtered infor- mation to decisionmakers through a common filter. Advisory committees are not, of course, the only vehicle for access and influence. But they are one and one that is fundamental, given the low visibility that decisionmaking has for most citizens. PAGENO="0133" 127 The pages of the Federal Register and not the headlines of the New York Times or the urgent tones of the late night news tell the real story. From the outside it is virtually impossible even for the well-rn- formed citizen to understand the labyrinthine bureaucratic politics that characterize the Washington scene. The inner motives of agency decisionmaking are obscure and the niceties of the rule- making and adjudicatory pi~ocesses arc impenetrable to any but those with the financial, legal, and scientific resources needed to play the game. Through advisory committees organized groups can master the inflow of the raw data necessary for decisions touching on our lives. If some sectors of society are able to control the flow of advice and irnowledge to tho~e, who make policy and if the system of expertise and advice is closed, the system cannot be regarded as neutral and therefore impersonally and impartially open and re- sponsible. It is lobbying with a difference since membership on advisory groups is cloaked with the mantle of institutional legitimacy and public authority. Such is the danger presented by the military-in- clustrial complex, perhaps the preeminent example of the merger of public and pri\rate Power. Twenty years ago this year, the danger inherent in the advisory system was described by a subcommittee of the House Judiciary Committee in a. report on WOC's and advisory groups that warned against "the problem of undue influence exercised by groups or individual factions from strategic vantage points within the vari- ous departments or agencies" and "the dangers of utilizing men" with economic allegiance outside the Government." I would submit that the key to minimizing these dangers can lie only in an effective . internal structuring of advisory committees such that an interested combination of groups do not. prevail in some hegemonic fashion. There needs to be a structuring of men and motives such that a check on evasions of FACA's provisions comes from within the committee system itself. The system of selection shOuld be opened up; "fairly balanced" should be defined in terms of a diversity of qualified opinions and interests wherever possible. in this wa a system of built-in checks will render attempts to cii~cñmvent FACA's openness procedures less likely on crucial issues. There has been enough said to demonstrate beyond question that very rough politics are often played with respect to advisory com- mittee appointments. Committee watchers with long memories will recall that 4 years ago Ralph Nader was dropped from a Depart- ment of Transportation Motor Vehicle Safety Advisory Council that seemed to tilt in industry's favor. More recently, we have been treated to a number of reports de- tailing the extent to which high-level NIH committee vacancies multiplied because suggested nominees did not have political cre- dentials acceptable to the Nixon and Ford White House. Those who suspected that the very high level advisory councils were con- vocations of the political faithful had some of their suspicions PAGENO="0134" 128 confirmed, if only circumstantially, by several pertinent post- Watergate revelations. There was, for example, some evidence that the NIPCC was closely linked to Maurice Stans' role as a fund raiser for Mr. Nixon and that membership on the Council was an incentive offered to businessmen who gave until it hurt. That is from the Government side. From the other side of the table, the importance of membership for particular interests is well testified to by the efforts of the American Medical Association to establish an elaborate referral system designed "to channel into 315 Federal health advisory panels doctors who agree with the philosophy of the association." I might parenthetically add that in yesterday's discussion with Director Lynn the two of you seemed at times to be downplaying the role of committees as ineffective. I think that is one hypothesis and one end. I think groups like the AMA and others take these committees seriously. The other hypothesis is that some committees are very, very potent, hence the need for greater study. However defined, politics plays a part. Under these circumstances, it is doubtful that a fair balance can be readily achieved. One need only thumb through the index of advisory committees to develop a healthy suspicion that in all too many cases a fair balance has not been achieved. The attached charts1 which do not pretend to scientific exactitude but only to a rough hand count, illustrate the point with respect to selected advisory committees dealing with energy matters. I suspect that the results could be multiplied in many other instances as well, for example, in the case of the Department of Defense. In light of this, I believe there is a prima facie case that widespread violations of FACA's fair balance provisions do exist. No doubt it is a difficult question. Neither section 5(b) (2) nor the legislative history adequately define "fair balance" and the questions that might be raised in litigation are numerous: does "fair balance" refer to some mathematical proportion? Is a fair balance different from an equal balance? How many consumer representatives are needed to offset labor or industrial representatives? What would "fair balance" mean with respect to a scientific committee whose subject matter may be beyond the reach of all but a handful of highly trained scientists? How are "points of view" to be defined and representation de- termined? Does "fair balance" extend to affirmative action type considerations? Furthermore, does the phase "in terms of the point of view represented and the functions to be performed by the advisory committee" constitute a one-test or two-test standard? This provision is the bedrock on which FACA rests and answers to these questions will not come easily. I note that the 0MB guidelines do stress the importance of agencies meeting their fairly balanced obligations, but I do not note a wholesale vamping of committees as a result. Finally, as a nonsmoker, let me close with a moment of special pleading and ask whether nonsmokers are 1 See p. 139. PAGENO="0135" 129 fairly represented on the Department of Agriculture's National Tobacco Advisory Committee? Finally, despite FACA, I do not believe that we generally know very much about the advisory committee process. All of us who gather periodically at these most valuable hearings have bits and pieces of data and our favdrite stories about this hero or that villain. But we do not have the kind of information that would permit us to analyze the advisory cOmmittee process systematically and in depth. We know, for exathple, that there are various kinds of committees: scientific and technical committees, industry commit- tees, grant making committ~es, general advisory committees, task force commissions, and the like. What we do not know is whether some do a better job of providing advice to decisionmakers thai~ Others. Nor do we know what various advisory committees do well or not well. We know relatively little about the relationship between agency personnel and committees: in some eases. committees appear to be little more than a nuisance or a kind of symbolic gesture to organized interests: in other cases, advisory groups appear to have substantial formal or informal influence. The years of hearings are filled with differing and often conflicting conclusions~ hypotheses, and case studies. Yet in some ways we are no farther ahedd now than we were 3 years ago. What is needed are carefuT studies on the functional cost effective- ness of advisory committees and on the manner in which the public interest is served by advisory, committees. We have at least two excellent examples. One is the House Gov- ernment Operations Committee report on the FDA committees. I suggest to all who have doubts about the effectiveness of these committees that they study those findings very carefully. They are extremely disturbing. We also have the study of committees in the foreign relations field. I think those types of studies are needed to a much greater degree. In fact, it might be worth having the GAO look into it. These thoughts are suggested in part by my feeling that we have yet to receive, as I have mentioned, the kind of report that section 7(b) calls for. But it is also suggested by the research findings of a few scholars, by the recent Congressional Research Service study of the role of advisory committees in foreign policy and, above alL by the House Committee on Government Operations study of the use of advisory committees by the Food and Drug Administration. The two studies are models of the kind of analysis that we require. The latter especially is perhaps the most danming analysis ever made of the relationship between agency and advisory committees. Consider some of the findings of the subcommittee chaired by Representative Fountain: The number of FDA advisory committees has increased substantially since FACA was enacted but the evidence does not show that the extensive use of such com- mittees has contributed to a more effective regulation of new drugs; the FDA is using advisory committees improperly for nonessential purposes: FDA advisory cinmittee use has contributed to a lower- ing of drug approval standards; FDA use of advisory committees is often motivated by a desire to obtain support of the medical PAGENO="0136" :1:30 profession ~for regulatory decisions; FDA improperly influenced advisory committees by injecting legal issues into their consider- ation of scientific evidence; FDA's management of advisory com- mittees has been lax, resulting in inefficiency and waste; FDA submitted grossly inaccurate cost estimates for FDA advisory com- mittees; FDA routinely disregards statutory requirements for open advisory committee meetings. In light of these findings, I would repeat my suggestion that a second generation task for FACA is to look critically at the advisory process in a close manner. If the FDA situation is widely repre- sentative, then we may need a far more extensive reform of the system than FACA projects. FACA, after all, takes the system as it exists and seeks to improve it in terms of management and openness. It does not question the existing use of advisory committees as such. As a first step, then, to such an approach, I strongly urge this committee to undertake a careful review of the system under FACA. I think a useful first step would be to commission a series of studies by the General Accounting Office of the system either by types of committees or by an agency-by-agency study. I wish now to turn to the amendments contained in S. 2947 and to amendments that I understand may be proposed by Senator Percy. In light of what I have said thus far, I believe firmly, that, on balance, the proposed amendments are timely and should strength- en FACA considerably. I shall turn first to various provisions in 5. 2947. This extremely significant amendment to the act is not without its difficulties. The requirement that public solicitation be used in the selection is commendable and I would like to see that enacted. (1). Section 2: This section extends FACA to two sets of com- mittees left unmentioned in the original statute: operational groups and ad hoc groups. Extending the act to cover these categories is a constructive move. FACA is directed at committees composed of private persons partaking of the public business in an advisory capacity. The heart of the matter lies in the mixed public-private character of such committees. From this point of view, it is quite. sensible to extend FACA to cover public-private committees that functionally are operational in character or have administrative or executive responsibilities. The same considerations that led to the adoption of FACA in the first place apply to these groups with no less force. My only query is whether additional change is needed in~ section 9(b) which holds that advisory committees shall be utilized solely for advisory functions. Unless we assume that operational functions of an administrative or executive character are essentially advisory in character, existing section 9(b) should be modified lest so-called operational groups be inadvertently abolished by a wave of the definitional hand. It might be added that this amendment would prevent groups from exempting themselves from the force of the act on the grounds that they are operational rather than advisory in character. PAGENO="0137" 131 As for ad hoc groups, it ~ well to bring them under the act's requirements. Presumably, the intention of this amendment is, first, to guarantee that formalized short term committees (for example, the Ad Hoc Advisory Group on Reserpine and Breast Cancer) are covered and, second, to clamp a lid on the use of informal meetings between public officers and private citizens to avoid the require- ments of FACA. . $ On the latter problem, th~ difficulty lies in deriving a defirntion of "ad hoc" that adequately draws the line between one- or two- time meetings between an officia.l and outsiders and informal meet- ings that have all the charaaeristics of a committee (for example, purpose, stability, duration, and so forth) except a formal desig- nation. The language as it stands may not give precise guidance to an agency official, but it does put him on notice that regularized off the record meetings with a stable group of persons cannot escape FACA's mandate. (2). Section 4: This extr~thely significant amendment to the act is not without difficulties. The requirement that public solicitation be used in the selection is commendable. The expanded reporting requirements contained in ~ection 4(B) (4) and section 8(4) of S. 2947 are very much overdue. Without full knowledge of the character of advisory committee members and their backgi~ounds, interested persons and groups are at a loss to understand the configuration of interests that deter- mine the parameters of public policy. It is simply not enough to be told that members of Interior's State multiple use advisory boards are ranchers. Enactment of these two sections will cast even more light on the workings of the system. The difficulty of this section lies with the section 4(1) (A) re- quirement that at least one-third of the membership of all advisory committees be drawn from private citizens who represent the in- terests of the j~ublic. The spirit of the amendment is exemplary. But the precise formulation causes several sticky problems. The quota-like formulation and the broad sweep of its critical terms creates certain reservations~. 1 do not find it an easy matter to construe the term "represent the interest of the public with respect to the subject matter" in operational terms, yet this is the key statutory formula in this section. Further, I seem to detect a change in direction over the existing language in section 5(b) (2) and (c). The existing language re- quires (a) that a committee be fairly balanced, that is, contain a good measure of diversity among somewhat comparable groupings; (b) that this balance must be among diverse points of view, that is, contrasting and alternate positions on policy; and (c) that the membership also be balanced in terms . . . of the functions to be performed, that is, in terms~ of qualifications. Members are to be selected on the grounds that they represented distinct views and had the qualifications to serve. This reading is supported by the Sena.te report on FACA which states that: "Membership of the advisory committee shall be repre- sentative of those who have a direct interest in the purpose of the committee." PAGENO="0138" 132 The original formulation represented sound policy and would exist if it were complied with. In this context, it might be worth considering applying it to committees in existence when the act was passed and not simply committees that will be formed from 1973 forward. Indeed, the existing wording of section 5 (b) (2) and (c) would suffice on its own terms if firmly complied with. The fault lies not in the statute, but in its lack of implementation. The proposed amend- ment raises such difficulties that if enacted it might well leave mat- ters worse off than they now are. Although application of a one-third formula might give the ap- pearance of solving a problem, it is far from clear that matters would be better off. Nor can we dispel the apprehensions that arise from contemplating the tangled situation that would result from the bewildering collage of interpretations that bureaucrats, public interest groups, special interests, and the legal profession would cre- ate with the concept of represent the interest of the public with respect to the subject matter before the advisory committee. Beyond such speculative considerations, two situations might plaus- ibly arise from this solution to the problem of breaking the policy biases of the existing system and instilling a healthy diversity of views. First, the appointment of citizens in public life to represent the public interest is an open door to a more extensive use of politi- cal patronage. I have seen too many appointments of politically creditable or socially respectable do-gooders to public bodies to have any faith that this provision would be used as it is meant to be. We want per- sons on these committees who are representative of the broad array of views and competencies that have, to return to the language of the Senate report, "a direct interest in the purpose of the committee." The amendment as proposed does not even suggest that such citizens be qualified. In the modern world, competency to deal with arcane questions of science, technology, medical judgment, and the like, is a valuable resource. Ralph Nader is not only a public citizen; he-and all those scien- tists, lawyers, ecologists modeled after him-also possesses a high degree of technical competence. If the amendment is allowed to stand, the words "well qualified by reason of education or experience" s1'ould be added before the words "citizens in Private life." The second and related danger is that of tokenism. Patronage and resnectability as~de, administrators may well comply with the pro- visions by appointing persons who may represent the public but lack the qualifications to do the job well. Although I believe I could speak for the public interest, I do not, for example, know what use I could be on the High Energy Laser Review Group of the Department of Defense, nor am I confident that I could identify and defend the public interest on these matters. But I would trust a qualified scientist whOrn while sharing exper- tise with Pentagon scientists, might bring a different policy outlook to bear. Nor am I sure that I would necessarily want nonqualified persons passing judgment on research or artistic grant proposals: the congressional flap over the NSF's support of "Man: A Course of Study" illustrates the point. PAGENO="0139" 133 I suppose we differ in that do not share the Jacksonian premises that underlay this section, nor do I agree that there is a single identifiable public interest. Perhaps, then, it would be better to devise a scheme for assuring the implementation of section 5 (b) (2) and (c) as it was originally written. Let me suggest another scheme for assuring the implementation of section 5 (b) (2) and (c) as it was originally written. Rather than setting up the one-third quota, perhaps we could work on the agency officials in the, following fashion. When a committee is newly chartered or an existing committee rechartered, the re- sponsible agency official should be required to publish a fair balance statement specifying the nature of his compliance with the fairly balanced requirement of section 5. This would dovetail with the requirement of the proposed new section 5 (b) (6). This reasoned determination could thus form the basis for a challenge to the membership of the committee. Such a challenge would be lodged first with the head of the agency-if his subordinate chartered the committee-or to the courts by a direct statutory right, of action should the agency head deny his appeal. This would parallel the appeals procedures of FOIA and of section 9 of these amendments. It would also permit a working out of the meaning of "fairly balanced" in a way that would be attentive not only to the purpose of FACA but to the everyday ,~ work of advisory committees. You may get somebody on the committee who seems to be at first blush, for example, let us say, a large rancher but when you look more closely lie may also be the president of a State Sierra Club. You would get your balance in point of view. The difficulty with the balanced provision~ Senator METCALF. That will never happen. Professor STECK. Pardon?~ Senator METCALF. You can dream though. Professor STEcIc. What I am driving at is what you really want. I was thinking of some of .~ the more arcane scientific committees. For example, the High Energy Laser Committee in the Department of Defense. You are not going to get a diversity of persons with qualifications to sit on that committee. If I were put on the commit- tee it would be window dressing for compliance with the Act. But what you may find in the university community is a qualified scientist in high energy laser matters, a qualified scientist who, none- theless, takes a different point of view with respect to, say, to the sorts of policies that that committee will be called upon to judge. As it now stands, we are talking about two things: balance in terms of points of view, which is one question, and balance in terms of functions which I read to mean in terms of qualifications. I think the better approach might be to work with the existing language which I find very sound and try to find ways to strengthen it rather than to bring in the one-third possibility. Let me raise one or two more questions. Three: Section 5: With One exception, I believe this amendment is most salutary. Section (2) (B) in particular begins the work I have mentioned of providing the data so as to allow Congress, the PAGENO="0140" 134 executive, and the public to judge whether advisory committees are in fact effective elements in the decisionmaking process. Section (2) will simply shift to the executive the responsibility for producing the exemplary indices that this committee has produced. My one reservation is with the new section 6(d) proposed in sec- tion 5(2) of 5. 2947. I do not speak with any authority on the role of consultants in the administrative process. I do know enough, how- ever, to appreciate the mushrooming significance of consultants and the well-established institutional role consultants play and have played in recent years. I believe the subject is important and complex enough that it calls for a separate set of legislative hearings with an eye toward drafting separate legislation. It is not a simple topic and I do not believe that it should be approached in a piecemeal fashion. I have had colleagues who have done consulting work. I have watched the way in which they move easily between industry, uni- versity, and government consulting. I think that the subject is important enough and also complex enough, that I would suggest to you, sir, that it might be a better course of action not to write a provision relating to consultants into the Advisory Committee Act but instead, rather, first, to hold separate hearings on it and begin to derive separate legislation. We don't know how many there are, where they come from, how much it costs, how they are used, what the impacts are, and so forth. Looking back on the 2 or 3 years of hearings on advisory commit- tees and what they turned up in the late sixties and early seventies, I think it might be worth paralleling that course with respect to consultants. Some firms, for example, the Rand Corp., we know something about. But if you go through the advisory committee index you will find a lot of consultant firms there. It would be very interesting as a so- cial scientist simply to know what role they are playing in govern- ment policymaking. So in that sense, I think it might be better to approach it in along a separate avenue, rather than through the back door of the Advisory Committee Act. Four: Section 9: This section seeks to close the chinks in the onenness provisions of FACA. It strikes down exemption 552(b) (5'). Considering both the misuse of exemption (h~ (5) and the steady line of decided cases narrowing its applicability, this amendment puts an end to the legal thicket that has grown up around exemption (b'~ (5') and to its misuse. It leaves the way open for closing advisory committee meetings for legitimate. reasons, for example, elements of the peer review sys- tem. At the same time it provides a speedy system of review of determinations to close meetings, allows those appealing such determi- nations adeouate time to make the apneal and~ with the provisions for electronic recordin~r of meetings. allows the horse to be returned to the barn. In modeling the anneal system on that contained in FOIA. S. 2947 proposes a familiar system. for example, with the provision for in camera review of the subiect matter of a committee meeting. PAGENO="0141" 135 The amendment also shrew~ly builds in a set of sanctions against both the Government and the agency official who arbitrarily and capriciously closes a meeting. This section, I think, remedies two defects in the original bill: It provides for a method of contesting agency determinations for closing meetings and it provides an exter- nal system of incentives to offset the otherwise self-enforcing char- acter of the act. The hitter remedies may be harsh but the stakes are often very high. As James Madison writes in the Fifty-First Federalist Paper: "It. may be a. reflection on hui~an nature that such devices should be necessary to control the. abuses of government. But. what is govern- ment itself but. the greatest reflection on human nature?" Five: Senator Percy's amendments: These deal with two separate problems. The first, which provides for the disclosure of advisory committees support by priv~ite sources, is simply a step toward eliminating the conflicts of interest that are naturally inherent in the mixed nature of advisory committees. Since there may be cases where outside private support is desirable, this amendment, seems like a prudent, first step in dealing with the question. The second provides for a reporting and evaluation system of recommendations on the agency level similar to that created for the President by section 5 of S. 2947. The. two complement. each other and. as I have argued. begin to create the means for evaluating the advisory committee system in a comprehensive manner. I think the discussion yesterday on looking at these things from a scorecard as versus a qualitative approach suggested a sound distinction. Some committees may not make formal written recom- niendat.ions. They may sit down with a government official and work at a common problem and work through solutions or options without reducing tlìeir advice to writing. It may be a more valuable committee than one which, as you suggested yesterday, may conieup with four recommendations where three of the trivial ones are accepted and the fourth important one is not. So I would go back to my~ prior suggestion; namely, that a very, very careful cost-effective qualitative study be made of committees, either on an agency-by-agency or committee-by-committee basis. In sum, then, FACA has been and continues to be a strong element in making government more efficient, more accountable, and more accessible. The proposed amendments, if enacted, should, with some exceptions, do a great deal toward furthering its historic purposes. I think that concludes the summary of my remarks. Senator METCALF. Thank von very much, Professor Steck. As I have heard you testify, I think your statement about fair balance, in making an analogy with requiring a statement on fair balance similar to the statement on closing or opening the committee, is a very important one. I don't know how to achieve balance. I was glad to have you make the analogy with a jury. We have been able to find that we get people on a iury who are from all walks of life, none of whom have special technical ability and at the same time. by and large, they arrive at a decision which is just and enforce- able. PAGENO="0142" 136 It would seem to me that if we could just get some peonle who have a different point of view, so that that point of view would be heard, if they were skilled or technically trained, then it might be a catalyst for some useful activity on a committee, especially if it were open and public. I think that we should explore this. When the committee is created, as I understand it, the appointing authority would come up and say; "1,Ve have X, Y, and Z and they are technical experts, and M, N, and 0 are people who are working in some of the trades, and so forth~ and somebody else is representing consumers and labor unions, or John Birch Society, or Common Cause, or some other organizations, so that we had a spread." Then we can say, yes and no, we do have or we don't have balance. I know that you are familiar with my attempt to get some balance in the Railway Act. I had required that some of them be representa- tives of the public, and some of the public members actually were stockbrokers who handled railroad securities and bankers who loaned money for the railroads, and so forth, none of whom really repre- sented the public that I was thinking about. Anyway, it seems to me that is a very interesting suggestion that we should explore. We will ask you to continue to work on it. Yesterday I asked why have legislative authorization for these corn- inittees at all? Would you comment on that? Professor STECK. In terms of the possible motives? Senator METCALF. No. I just asked why create advisory committees at all by legislative authorization? Mr. Lynn suggested that he thought any Federal agency had a right to set up an advisory com- mittee if it was deemed desirable, without legislative authorization. He said sometimes we have to create such a committee when it is especially authorized and we don't really want it. Why shouldn't we just say to each Cabinet officer and to each ex- ecutive department, "when you create an advisory committee, come in and justify it," and not write that boilerplate legislation, that "there shall be a committee of 9 or 12 or 13 fairly balanced," and so forth. Professor STECK. This is an interesting problem. I don't think a day goes by when a bill isn't introduced that contains an advisory com- mittee provision. Just reach on the shelf and pull off the Clean Air Act, the Water Pollution Act, and the like, and you can find provisions for new ad- visory committees. It seems to me that the role of sound policy might be for Congress to exercise some self-restraint in the matter and leave it up to the agencies if the agencies feel a distinct need to get the advice of a cer- tain segment of society. It seems to me that the forces giving rise to this congressional re- flexive action is probably at least threefold. I think ~enera1!v there is a somewhat built-in distrust on the part of Congress towards bureau- crats in general. Moving forward from that, I think Congress wants to make sure the public is involved. They want to give a signal to certain groups in society that their views are going to be listened to. This is a kind of "we love you" syndrome that Director Lynn referred to yesterday. PAGENO="0143" 137 There is an uneasiness on the part of Congress that the agency may not have access to all the right kinds of hardnosed advice and gen- eralized opinion. I think it would be perfectly plausible to leave it up to the ad- ministrators to create their own committees, because I have been told by enough of them that they i~egard them as a nuisance and wish they wouldn't. be imposed on them. I think the route might b~ from the congressional end of simply withdrawing from this instinct. But I don't know how one could get Congress to do that. Senator METCALF. One of the ways is for some one of us to just stand up and, every time a~n advisory committee is incorporated in a bill, move to strike it and require that whoever is handling the bill justify the creation of a new committee. Professor STECIc My quest.iàn would be whether it derives out of the. hand of the drafter or wh~ther these are put in by concrete rep- resentations on the part of eff~ctive groups. Senator METCALF. If somebody could justify it, of course~ it would go through. If it couldn't be justified, it would be a healthy sort of thing to eliminate it. Yesterday Senator Percy suggested that he didn't see how Secretary Biitz did any work because of, all the advisory committees he had. I don't, know of anybody in the Government who needs more advice than Secretary Butz. but. most of those advisory committees he has are legislative in origin and have been created and are required by the Congress. Maybe it. would be useful t~d reduce some of those. Professor STECK. Many of those are not to the Secretary himself, of course. They are to the rñiddle-level and lower-level people. And that is where the difficulty is. Senator METCALF. Of course some advisory committees are the kind the BLM has established, which are grass roots sorts of things. Professor STECK. Some grass roots. It is the strongest, biggest trees, not the grass. Senator METCALF. They are the beginning of grass roots. I am look- ing forward to the day whei~ we have one of those big ranchers who is also President of the Sierra Club. Maybe that will be grass roots out of the BLM. Those are local committees which work at a local level, which is. I think, different than the thing we are talking about. Professor STECIc. Not exactly, Mr. Chairman. Because there the fair h~alance provision really has to he. looked at very carefully, even- especially-at the local level.' Senator METCALF. The balance is awfully important. We have to have somebody representing, the fish and wildlife interests. We have to have someone representing the interests of the Government, of course, the grazing interest, and somebody representing soil conserva- tion as well as just the general public. Your concept is that we are appointing a committee of 5 or 7 or 13 or whatever they are, and the following members of the committee have the following qualifications. Then anyone who looks can find out what the balance is. Professor STECK. May I add, by way of a~ question, on my sugges- tion. I wonder if it would be' plausible not simply to say to the of- PAGENO="0144" 138 ficals, "You have to publish a statement setting forth how your pro- posed membership meets the balance," but whether it would also be plausible to ask the official to put it into the Federal Register and sub- ject it to the usual notice and comment procedures, maybe 60 days. Not simply setting a statement that you have to go to court to chal- lenge but you can challenge through something analogous to the regular rulemaking procedures of the APA. Senator METCALF. It has been our experience that this question of balance is one of the most difficult to meet. It is even more difficult than the openness provision. Yesterday, the Department of Justice said that it took the attitude that when people came in and said, "We would like to close the meeting," then it would ask "What harm would it do to leave it open?" If you take that attitude, then the burden of the proof changes, doesn't it? Professor STECK. Yes. Senator METCALF. I think that you have made a distinct contribu- tion in making that suggestion. Maybe just by enforcement or by continued writing of letters that my staff sends to me every day after reading the Federal Register, which is so voluminous, we will provide a nuisance or an irritant to the administration that is less costly than public hearings. I am concerned about consultants but maybe consultants would be the answer. I agree with you that consultants should be the subject matter of other hearings on other legislation. We should be concerned, as you suggest, about the cost-benefit ratio as we are with other things. Do we get our money's worth out of a committee? Maybe we should make the various agencies file a cost-benefit statement every year with the Appropriations Committee. Is the advice obtained worth the amount of money that we have to expend to get it? You have raised some very interesting questions. We will look for- ward to working with you to try to develop either executive orders or further legislation. Do you have a question, Mr. Turner? Mr. TrIRNER. Just a short comment. With the fair balance statement, I think there should be accompanying that a rather detailed list of the affiliations of each of the members-similar to our interlocking direc- torate study of our committee- of the businesses and other profes- sional affiliations so you can get an idea of whether the individual- Professor STECK. That is exactly what I had in mind, because if you look through the index now, you keep coming up with people who are listed just as lawyers or accountants or ranchers or professors, and you really don't know where their other interest lies. This dove- tails with the consulting aspect of it since we know on certain kinds of committees you may have university scientists who are nonetheless heavy consultants for a particular pharmaceutical or food firms, and whatnot. Senator METCALF. Thank you very much. We will continue to look to look to you for counsel and advice in working out some of these matters in continued oversight in this area. Professor STECK. Thank you very much. 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L~ C I cc 12 I I I 3 N~ET~OC. --~~ 2. 32. 2 3 1C 23 PETh~L-V 2i ~Ac.tN1~ 3 2 1 3 ~_L ~4 `1 (a I 9 TO1AL 1 07 22 133 N 3 ~p c ~~JjcFS TAcIXEIS 7 3 II I 1 23 -Cc e4 3 7 ----~ -TAcF I 27 2 5~ 22 1 q i -3P1U 2. I 13 3 (a 35_ -T~c(5 3 Ic I 2+ - T~c~ q ~ NGS -Cc 2 *CTF 4 7 I 22 12 -3TAC ~ 2. 3 2 3I* i --.~- `3 2 - _______ _________ I 3A C _______ TOTAL ____ ____ ____ ~ ~ ~ ~ a. t~u-}er t-~ ~J;VJ~IS rr Cf ~I2'~'-. CC~ oJ17 Ji~IJa. \i2_-9t~~~. 0..1 c t)e;3Cd *-~!Oi.:*il~ .3.1Cc 1'~0. Ex~-pkt c~- ~-4,.ssfmaJI \ -i-I~j c11e5c,y ca. c~1Icr~"ys, ~ ~ CCI ia, o.ccraiAcli, rmc.3.~. , -I.(r-u feo11e ICVnIvl im ct ~- -fl-~~L cc .~I~e1ri((3. Ale -~kj.I Cue. crytni24iic.t 1,m'1,4,ad ~y tCuP'CS, Lcc.., A4k-, D,,-~er. Z(-a. p~i, Accc~I~, a.ri !~~)t~~i1. C ~ Cm GeJern~iIn~ Cp~l?o4~- ca. 2~'~y ~ &~44c~ - ~ ~ ~3 SeN. Auj~+ 1, 1q75. PAGENO="0147" 141 Senator METCALF. Our next witness is Mr. Reuben B. Robertson m. He is a member of the Public Citizen Litigation Group in Washing- ton, D.C., and the legal director of the Aviation Consumer Action Project. TESTIMONY OP REUBEN B. ROBERTSON III, MEMBER OP THE PUBLIC CITIZEN LITIGATION GROUP IN WASHINGTON, D.C., AND LEGAL DIRECTOR OP THE AVIATION CONSUMER ACTION PROJ~ECT Senator METCALF. Mr. Robe~t~on appeared as a witness before the subcommittee's hearings on advisory committees in 1971, as well as our 1974 hearings on corporate~disclosure. The Aviation Consumer Action Project has provided us with much useful and valuable information on relations between and among reg- ulated companies and the Federal regulatory agencies, particularly in the field of aviation. i\'Ir. Robertson has had extensive professional experience in litiga- tion before the Federal courts in matters of administrative law and procedure, including several important cases which have arisen under the Federal Advisory Committee Act. He has also been a member of various advisory panels, including the Civil Aeronautics Board's Advisory Committee on Procedural Re- form and its Consumer Affairs, of which he was chairman, so his first- hand experience from that perspective is also of great interest to these hearings. Without any further comment, we welcome you back to the com- mittee again for comment, advice, and counsel on this question. Mr. Robertson? Mr. ROBERTSON. Mr. Chairman and members of the subcommittee, I greatly appreciate the opportunity to participate in these hearings to consider amendments to the Federal Advisory Committee Act. In the slightly more than 3 rears since it took effect, the significance and wisdom of that act, and of its policy against secrecy in the ac- tivities of thousands of groups advising the Government, have become increasingly apparent. That is not to say. however, that the spirit or letter of the law have been complied with throughout the Government. Although some agen- cies-and some advisory committees-have conscientiously sought to live up to its requirements, others have seized upon loopholes and ambiguities in the act-and the absence of any effective sanctions or enforcement process-to flout and resist the congressional mandate. In my view, some revisions and clarifications of the act are now in order, and the proposals of Sehator Percy and the Metcalf-Hatfield bill. S. 2974. are definitely on the right track. One particular problem has arisen in the administration of the FACA to which I would urge your most immediate attention, because PAGENO="0148" 142 it seriously undercuts the principle of openness that is at the very core of this legislation. The problem is the abuse of the fifth exemption of the Freedom of Information Act. In reviewing my testimony last night, it seemed that I hadn't suf- ficiently emphasized in the prepared statement how strongly I feel that the Government's argument on this fifth exemption point is wrong and frivolous. I don't think Congress ever intended that the fifth exemption could be used in the context of the Advisory Committee Act, because the fifth exemption applies only to internal documents in the Govern- ment. The advisory committees, by their very definition, are made up of outsiders. If their members were all inside the Government, they wouldn't constitute advisory committees. Senator METCALF. May I interrupt? Mr. ROEERTSON. Yes, sir. Senator METCALF. Doesn't the very fact that we have private indi- viduals participating in the discussion of advisory committees elim- inate the use of section 5, which is, a.s you suggest, for internal official governmental documents where Government officials of the executive department are solely concerned? Mr. ROBERTSON. That is absolutely right, Senator Metcalf. Every court that has decided this question so far has said that exemption 5 is inherently inapplicable to advisory committees. Yet what happens? The Government continues to press this silly ex- emption claim. They simply force people to go to court if they want to have redress. I don't think the law is unclear. In my view tl~e law is clear, but it is being abused by the Government. That is why I think the Congress should correct this situation right away, to take the load off the courts if nothing else, and certainly to improve the administration of the Act. This exemption was designed to protect internal Government docu- ments which would not generally be available to a private party through discovery in civil litigation against an agency. As the Supreme Court noted last term, Congress specifically had the Government's executive privilege in mind in adopting exemption 5, with the purpose of preventing injury to the quality of agency de- cisions through inhibition of frank internal discussions of legal or policy matters.1 Various of the agencies are now asserting, hosvever, that the incor- poration by reference of exemption 5 into section 10(d) of the Ad- visory Committee Act expanded executive privilege, so that it is not only available to persons within the Government, but also to outsiders who serve on advisory committees. Ignoring entirely that exemption 5 on its face applies only to inter- agency and intraagency matters, it is contended that by analogy the 1National Labor Relations Board v. sears, Roebuck ~ Co., 421 U.S. 132, 150-51 (1975). PAGENO="0149" 143 exemption is also available to shield the discussions and deliberations of advisory committees from public scrutiny. Otherwise, the agencies say, they might not get candid and honest advice from their advisers. Of course the answer to that is to get advisers who will give candid and honest advice even if the public is watching. The problem with the agencies' argument is that, if the executive privilege rationale could properly be applied to any advisory com- mittee proceedings, it would equally apply to all of them. To close any meeting, the agency head would merely have to assert that it was considered necessary to enhance the candor and quality of diseuss~ons. The essential function of any advisory committee, after all, is the consideration, formulation, and rendering of advice to an agency. If that function were in and of itself considered sufficient grounds for closing the proceedings, the open meeting requirement would be a nullity. The exception, in sho~t~ would swallow the rule. Just a glance at recent Federal Register publications shows how widespread the blanket invocation of this exemption has become. In the Register for March 3, for example, the Air Force announced a closed executive session of a subgroup of its Scientific Advisory Board to evaluate the information received in earlier presentations, discuss preliminary findings and write initial draft inputs for possible in- clusion in a final report, which are said to concern matters listed in exemption 5. The Veterans Administration, on a single page of the March 2 Reg- ister. gave, notice of a meeting of the Geriatric Research and Clinical Centers Advisory Committee and 22 other advisory boards engaged in evaluating research being done by VA investigators-all closed under exemption 5. I don't think there is any good basis for this theory in the statute or its legislative history. Yet time after time the Government and its agencies are asserting it as a basis for keeping me and you and other people out of these meetings. Perhaps the most outrageous example of the abuse of this exemption is the conduct of the Food and Drug Administration. In a case brought by my colleague Dr. Sidney Wolfe, director of the Health Research Group, the U.S. District Court for the District of Columbia ordered the release of transcripts of closed meetings of the FDA's over-the-counter drug review panel on antac~d drug products.1 District Judge Richey firmly rejected the FDA's claim that the transcripts were exempt under exemption 5 because they reflected in- ternal deliberations of the panel, and he explicitly held that exemp- tion 5 is inherently inapplicable to advisory committees. FDA chose not to appeal Judge Richey's decision, and it released the particular transcripts invOlved in the litigation. Nevertheless, incredibly, FDA officials then made it known that they would ignore the ruling as to future advisory committee proceedings. 1 Wolfe v. Weinberger, 403 F.Supp. 238 (D.D.C. 1975). PAGENO="0150" 144 In correspondence with us, and finally in a notice published in the Federal Register on December 15, 1975, the agency said it intended to continue closing committee meetings, and withholding transcripts of them, under exemption 5. I would like to submit copies of the relevant documents for the hearing record. [The documents referred to follow:] PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., December 2, 1975. Re: Wolfe v. Weinberger, Civ. No. 74-454 (D.D.C., Oct. 31, 1975). THOMAS SCARLETT, Esq., Food and Drug Administration, Department of Health, Education., and Welfare,. Washin.g~on., D.C. DEAR MR. SCARLETT: This letter is to memorialize the telephone conversation which you initiated yesterday with Ms. Anita Johnson, one of the undersigned. In this way we wish to insure that there will be no misunderstanding as to our respective positions in connection with the above-entitled case. You informed Ms. Johnson that the Food and Drug Administration (FDA) has decided not to appeal Judge Richey's opinion, and that the FDA will shortly make available to us the transcripts of the OTC Antacid advisory committee meetings as directed to do by the Court. How-ever, you alSo stated that the FDA intends to continue to withhold the transcripts of all other FDA advisory committees on the ground that their deliberations are protected from disclosure b~ 5 U.S.C. § 552(b) (5). Thus, according to the FDA, if we want access to either the tran- scripts or the meetings of any other advisory committees, we must initiate a new lawsuit for that purpose. If the foregoing does not accurately reflect your statements, or if your state- ments do not accurately reflect the FDA's position, please inform, us at once. We w-isli to lodge a strong protest against the FDA's decisions to continue to claim 5 U.S.C. §552(b) (5) as a basis for withholding advisory committee transcripts and (probably more important in view of the FDA's efforts since the filing of this suit to discourage advisory committees from making transcripts) to continue to close advisory committees to the public. We find the FDA's decision neither to appeal nor to obey the rule of law proclaimed in Wolfe to be indefensible. We remind you of Judge Richey's explicit holding that: "This Court rejects defendant's assertion that the Federal Advisory Committee Act recognizes the applicability of 5 U.S.C. §552(b) (5) to the advisory committees and finds that the (b) (5) exemption is inherently inapplicable to advisory committees." We hope that the FDA will reconsider its unfortunate decision. Yours truly, LARRY P. ELLSWORTH. ANITA JOHNSON. U.S. DEPARTMENT OF JuSTICE, OFFICE OF THE U.S. ATTORNEY, Washington, D.C., December 9, 1975. Re: Sidney Wolfe v. F. David Mathews, Civil Action Number 74-454. Ms. ANITA JOHNSON, Public Citizen Litigation Group, Washington, D.C. - DEAR Ms. JOHNSON: Please be advised that we are in receipt of a copy of your * letter to Thomas Scarlett, Esquire, Food and Drug Administration, dated December 2, 1975. Although we will not now take issue with your interpretation of Judge Richey's decision as applicable to other cases, we wish to clarify that PAGENO="0151" 145 transcripts of the OTC Antiacid panel's meetings have been available for your inspection and copying at the FDA since Monday, December 2, 1975. Sincerely, EARL J. SILBERT, UJ~. Attorney. ROBERT N. FORD, ________ Chief, Civil Division. FFrom the Federal Register, Vol. 40, No. 241-Monday, December 15, 1975] FOOD AND DRuG ADMINISTRATION [Docket No. 75N-0357] OTC DRUG REVIEW PAI~EL ON ANTACID DRUG PRODUCTS AVAILABILITY OF CERTAIN TRANSCRIPTS OF CLOSED SESSIONS On March 20, 1914, Dr. Sidney~ Wolfe, Director of the Health Research Group. filed suit in the United States District Court for the District of Columbia to obtain copies of verbatim transcripts of closed sessions of the over-the- counter (OTC) drug review panel on antacid drug products. Wolfe v. Wein- berger, No. 74-454. The suit Was based on the Freedom of Information Act (5 U.S.C. 552) and the Federal Advisory Committee Act (5 U.S.C. App. I). The Food and Drug Administration had denied access to the transcripts on the ground that they reflected internal deliberations of the antacid panel, and so were exempt from disclosure under both Statutes pursuant to exemption 5 of the Freedom of Information Act (5 TJ.S.C. 552(b) (5)). On October 31, 1915, the District Court (Richey, J.) ordered the transcripts to be produced. The court held that the transcripts are not exempt under 5 U.S.C. 552(b) (5). However, since all but one of the panel's meetings had oc- curred before January 5, 1973, the court expressly declined to reach any issue involving the Federal Advisory Cdmmittee Act, which was not effective until that date. For this reason, and because the issue of the availability of exemption 5 to close deliberative sessions of advisory committees (and, by implication, to pro- tect advisory committee transcripts) under the Federal Advisory Committee Act is presented in a case now pending in the United States Court of Appeals for the DistricC of Columbia Circuit (Aviation Consumer Action Project v. Wash burn, No. 75-1085), the Government has decided not to appeal the District Court's decision in Wolfe v. Weinberger. Moreover, the transcripts at issue were made available to the staff of the Subcommittee on Intergovernmental Rela- tions and Human Resources of the House Committee on Government Opera- tions. As a result, substantial portions of the transcripts about which some controversy had developed were introduced into the public record of hearings held before the subcommittee on Máy~ 9 and 12, 1975. Accordingly, although no appeal of the narrow ruling in Wolfe will be taken, and the antacid panels transcripts are therefore now available, the Commis- sioner of Food and Drugs does not regard the decision as necessitating a modi- fication in existing policy, and where necessary and appropriate, will continue to authorize the closing of the deliberative portions of advisory committee meetings pursuant to exemption 5. The basis for this policy has been set forth numerous times: see, e.g., Notice of Meetings of Food and Drug Administration Advisory Committees published in the FEDERAL REGISTER of February 5, 1973 (38 FR 3345, 3347). The Department of Justice has advised the Food and Drug Administration that, because the decision in Wolfe is explicitly not based on the Federal Advisory Committee Act, the agency may adhere to its existing policy and, if necessary, defend that policy in court. Dated: December 8, 1975. SA~r D. FINE, Associate Commissioner for Compliance. PAGENO="0152" 146 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, PUBLIC HEALTH SERVICE, FOOD AND DRUG ADMINISTRATION, Rockville, Md., December 29, 1975. Ms. ANITA JOHNSON, Public Citizen, Health Research Group, Washington, D.C. DEAR Ms. JoHNsoN: This is in response to your letter of December 5, 1975, received in the Food and Drug Administration's Public Records and Documents Center on December 9, 1975, requesting the release of the transcripts of closed sessions of FDA's Neuropharmacology Advisory Committee meetings where the drug product Cylert was discussed. This information which you previously re- quested, was denied on March 27, 1975. However, as a result of the opinion of the court in Wolfe v. Weinberger you have again requested this informtion. I must again deny your request. The verbatim transcripts of the closed advisory committee sessions you have requested reflect internal deliberations of the committee and thus are exempt from disclosure pursuant to Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b) (5), the Federal Advisory Committee Act, 5 U.S.C. App. 1, and the Public Information Regulations of the Food and Drug AdministratIon, 21 CFR 4.62. As you know, Judge Ri~hey of the U.S. District Court for the District of Columbia, in Wolfe v. Weinberger, No. 74-454, ordered certain transcripts of closed sessions of the Over-the-Counter Drug Review Panel on Antacid Drug Products to be produced, holding that the transcripts were not exempt under 5 U.S.C. 552(b) (5). Because the Wolfe case did not reach any issue involving the Federal Advisory Committee Act, and because the issue of availability of Exemption 5 to closed deliberative sessions of advisory committees (and, by implication, to protect advisory committee transcripts) under the Federal Ad- visory Committee Act, is presented in a case now pending in the United States Court of Appeals for the District of Columbia (Aviation Consumer Action Project v. Washburn, No. 75-1086), the Government has decided not to appeal the Wolfe decision. Nonetheless, the FDA, with the concurrence of the Depart- ment of Justice, does not regard the Wolfe decision as necessitating a change in existing policy. Where necessary and appropriate, the Commissioner of Food and Drugs will continue to authorize the closing of deliberative portions of advisory committee meetings pursuant to Exemption 5, and the FDA will, accordingly continue to deny requests for verbatim transcripts of the closed deliberations pursuant to 5 U.S.C. 552(b) (5). This portion of the release of advisory committee closed session transcripts w-as published in the Federal Register of December 15, 1975 (40 FR 58165). Copy enclosed. Subpart G of the Department's regulations, 45 CFR Part 5, sets forth the procedures to be followed should you choose to appeal this decision not to pro- vide you w-ith the document you have requested. Any such appeal should be filed within 30 days and addressed to the Assistant Secretary for Health, Department of Health, Education, and Welfare, 330 Independence Avenue, SW., Washington, D.C. 20201. Sincerely yours, JOHN T. WALDEN, Assistant Commissioner for Public Affairs. Enclosures as indicated. PAGENO="0153" 147 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE Food and DrUg Administration ADVISORY COMMITTEES Notice of Meetings This notice announces forthcoming meetings of the public advisory committees of the Food and Drug Administration. It also sets out a summary of the procedures governing the committee meetings and the methods by which interested persons may participate in the open public hearings conducted by the committees. The notice Is issued under section 10(a) (1) and (2) of the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770-776 (5 U.S.C. App. I)). The following advisory committee meetings are announced: Committee name Date, time, and place Type of meetIng and contact person 1. Panel on Review of Feb. 2 and 3, 9 sen., floors Open pnlltc hearing Feb. 2, 0 to 10 sin.; open corn- Dental Devices. 5109, 11 EW-N, 3&) In- mute tisciLcaton Feb. 2, 10 sm. to 4 p. en.; Open dependence Ave. SW., public hearing Feb. 3. 1 am. to 4 p.m.; D. Gregory Waduington, D.C. ~`)ngieton, D.D.S. (IrFK-100), 1757 Georgia Aye;, Silver Spring, Md. 20910, 031-427-723g. General function of the~ conimittec. Reviews and evaluates available data con- cerning the safety and effectiveness of devices currently in use and makes recom- mendations on their regulation. Agenda-Open public hearing. Interested parties are encouraged to present Infor- mation pertinent to the classification àf pit and fissure sealants and oral implants to D. Gregory Singleton, D.D.S., executive secretary. Submission of data relative to tentative classification findings is also Invited. Open committee discu.ssion. Discussion of current literature concerning cyano- acrylates; discussion of electrosurgical Unit standard; discussion of subcommittee formation; discussion of the classification of pit and fissure sealants and ultraviolet lights. Committee name Date, time, and place Typo of inciting and contact person 2. Psychopharmacological Feb. 5 ani 6, 0:30 am., Ojen liblic hiring Fib. 5, 9:31) to 10:30 an.; open Agents Advisory Com- Conference Itoomn M, ronuitteo dtscus~ion Jib. 5, 10:30 am. to 12:31) pm.; mnittoe. I'arkiawn 3311g., 5500 closed committee (letIterations Fit). 5, 2 ta 4:30 pu.; Fishers Lane, Itockvllle, open committee discussion Feb. 6, 9:30 sm. to 1 Md. pin.; Stephen C. (iroft (11 F1)-120), 5509 Fishers Lane, Rock cub, Md. 20852, 301-4 13-3~00. General function of the committee. Reviews and evaluates available data con- cerning safety and effectiveness of marketed and Investigational prescription drugs for use in the practice of psychiatry and related fields. Agenda-Open public hearing. During this portion of the meeting any interested person may present data, information, or views, orally or in writing, on Issues pend- ing before the committee. PAGENO="0154" 148 NOTICES 2661 Open committee discussion. Discussion of antlpsychotlc guidelines-box warning for long term use of antianxiety and antidepressant drugs; hypnotic drug guidelines. Closed committee deliberations. Discussion of Lorazepam NDA 17-794. This por- tion of the meeting will be closed to permit the free exchange of internal views and formulation of recommendations (5 U.S.C. 552(b) (5)). Cracliico name Date, time sod place Type otoseeting and contact person a. Paroina Ilcoiccent Urn- Fob. 1,8 n.m., Room 1137, Open public hearing 8 n.m. to 3:30 p.m.; Mnrk F~ oral and Placlic Ear. hEW-N, 330 lodepoa.1 Pnerish, Ph. D. (IIFK-400), 8757 GeorgIa Ave., gory Dcvlceo. deane Ave. Sly., Wash. Sliver Spring, hid. 20010, 301-427-7230. legion, D.C. General function of the committee. Reviews and evaluates available data con- cerning the safety and effectiveness of devices currently In use and makes recom- noendations on their regulation. Agenda-Open public hearing. The general and plastic surgery panel has made a preliminary classification of the following devices into the Class 1.1 regulatory cate- gory-standards: arterial graf is, biological and synthetic; electrosurgical units and accessories; endoscopes, fiberoptic. Following this preliminary recommendation, an interpanel ranking of devices has resulted in the placement of the above devices among those judged by all classification panels to most urgently require the develop- ment of standards. The panel, having made their preliminary recommendations, wishes now to re- examine the above listed devices, specifically addressing: (1) any potential for hazard in their use and their efficacy and (2) whether the development of standards will be an effective and appropriate method to reduce potential hazards and ensure the e~cacy of these devices. The panel invites the participation of representatives of the concerned medical devices industries. Comncii iecnac:e Dale, lime, and place Typo of needing and contact person 3 Opbtloalocin Drags Ad. Feb. 5, 5 ass., C nntcernce Open ublic hearto S to 10 n.m.; open roocmltter die- ol000y Ceocoililce. iioo,oC,i'aeklaa'n 1114g., nosaioa 10a.m. tol:sop.m.;rlnredcooclaiiirOdnlibee. 2000 Plsbees Lane, Ilock~ aclc,eo 330 in 4:30 in.; Mary K. Beach (liFi)-140), Mile, lid. ScOne Fishers Lose, ilocksille, Nd. 20052, 301-443- 4310. General function of the committee. Reviews and evaluates available data con- cerning the safety and effectiveness of. marketed and investigational prescription drugs for use in diseases of the eye. Agenda-Open public hearing. During this portion of the meeting any interested person may present data, information, or views, orally or in writing, on issues pend- ing before the committee. Open committee discussion. Discussion of alternative plans for post-marketing surveillance of new contact lenses; review of approved guidelines (clinical and man- ufacturing) for new contact lenses; clinical use of fluorescein strips. Closed committee deliberations. Discussion of subjects in agenda for open session. This portion of the meeting will be closed to permit the free exchange of internal views and to avoid undue interference with agency operations (5 U.S.C. 552(b) (5)). `oeeeceitlcc ((acne tIde, ticoe, and place Typo ntnceetiag and cnataot person 4. l',.ti:c(rle lid oococill,r P~l'. 9, 0:30 0.111., 1100(0 (lyon pobli brariec 8:30 n.so. to 5:30 pta.; Sobs C. ci lie icO boll aide a- 141r1. 511-n, 2001' Si. 218'., (`helm' (ii Pi)~i2li), 5000 Fiobera I.aoc, ilcckvillo ce.lego~1 Ape a ,hdai- Ivoobicglco, 11.12. lid. 21802, 301-413 3000. olOyCO(dtcItiec'. General function of the committee. Reviews and evaluates available data con- cerning the safety and effectiveness of marketed investigational prescription drugs for use in'the practice of psychiatry and related fields. Agenda-Open public hearing. Discussion of phenothiazines for the nonmentally retarded; pediatric guidelines report; long term protocol report; uniform labeling of neuroleptics; and atarax review. During this portion any interested person may present data, information, or views, orally or in writing, on issues pending before the ccmmittce. Cc,oaaittc'c eeoc Dale, 11(1cc, sod lace Typo ohoeellng and coolant heroIc 5. hotel no Bcaic'cc of `cleat Sob. 15 sod 11, 10 ass., Open pablio bearing Feb. 10, 10 to it nrc.; npes coos- Voecic cc and 11500cc- 1000cc 121, Nut, Ilolidleg ((litre disoosolonc bob. 10 ii n.m. to 2:30p.roc.;nldnul clot Vaccio'o.. 20, 8000 iieehvlflc Pike, read ndilco de5beealioos tort. io, 2:30 to 4:30 p.m., iicllcc'oda, 914. Feb. 11, tO one. to 4.30 pro.; Jock Oeeircg IDE - 11-51, 8000 llcckvillc Pike, Bethesda, Md. 20014, 301-400--PolO. General function of the committee. Reviews and evaluates available data concern- ing the safety and effectiveness of biological products. Agenda-Open jsublic hearing/open committee discussion. Presentation and dis- cussion of previous meeting's minutes; review and discussion of communications received; comments and presentations from interested persons on issues pending before the committee; continued presentations of staff members on the bureau's hepatitis program. Closed committee deliberations. Discussion of panel report on bureau's hepatitis program; discussion of panel report on the safety and effectiveness of licensed viral FEDERAL REGISTER, VOL. 41, NO. 12-MONDAY, JANUARY 19, 1976 PAGENO="0155" 7. Deroctolory Attatotoy Frh. 17, 0 rio.. Contereoco Opec labile iteoriog it to 10 act.; pro to roOter tic- Cocootitiro. ithoto A,l'oekkro-rrlltdg., rrrooicc 10 etc. to 2:30 pro.; tiorttt 5(40 steers Lace, Rock- flttt'crticco 2:30 to 4:30 pro.; Mary K. torch (tt Pt)- nit)., Md. 40), OCtet }iohtrs Lace, liockeilie, lId. 2(052, 3(t)- 4t3-13t0. General function of the committee..Revjews and evaluates available data concern- ing the safety and effectiveness of presently marketed and new prescription drug products proposed for marketing for use in the practice of dermatology. Agcn&z-Opeti public hearing. During this portion of the meeting any interested person may present data, information, or views, orally or in writing, on issues pend- ing before the committee, Open coir.mittcc discussion. Discussion of the use of Psoralens ultraviolet light in treatment of psoriasis. Closed committee deliberations. Use of Psomlens and ultraviolet light in the treatment of psoriasts. This portion of the meeting will be closed to permit the free exchange of internal views and to avoid undue interference with agency opera- tions (5 U.S.C. 552(b) (5)). Cotototttee name Dale, Itmo, and place Typo nI rceettcg tint contract peecttt 8. Eedooetttciogy otcl Me. }rbnuaev 19 stint 20, 0 ant., Opec public tcatitn~ Fib, Ct, (to to attn.; ttp:'o rota- ttr)cthittt Atirirocy (nntttt'ceoco Itoom 0-It, ttt)ttt'e tI)ot'ttcetnntt I'.').. itt. tO tn.ttt. to IS Cetntmtttoe. t'aektnen lttdg.. cr00 oootettttet- ti,'lit:eettiittcs I ott. It. I to trot.; 9'tehnm Lane, ltnckc-itle, perot-tn muon itt tam Fib. 20. t3t) unto. to 12 nc; inn. . ciccit cutctc (tire dt'iltteenut.ttote 1:1. 20 1 to 4 pitt.; A. `F. (tregotet-, l'h. It. (ttFD 13(t). 4)00 F)nht'en Lane, Jtoe.kettle, mitt. 20052, Ittt-4t3-J5ttt. General function of the committee. Reviews and evaluates available data concern- ing the safety and effectiveness of marketed and investigatIonal pi~escription drugs for use in endocrine and metabolic disorders. Agenda-Open public hearing, During this portion any Interested person may present data, information, or views, orally or in writing, on issues pending before the committee. Open committee discussion. Proposed labeling for lipid lowering drttgs; review of proposed guidelines for lipid-lowering drugs, Phases I through III; FDA objectives of Phase IV lipid-lowering drug investigations. Closed presentation of data. Presentation by tile sponsor on 2ND 11-200 (Euro- pean Chemicals Co., Inc.). The committee will consider the drug's safety and efficacy, which involves the discussion of individual patient's response to therapy. This por- tion of the meeting will be closed to protect the confidentiality of medical files (5 U.S.C. 552(b) (6)). Closed committee deliberation, This portion of the meeting will be closed to permit the free exchange of Internal views and for formulation of recommendations (5 U.SC. 552(b) 05)). 149 NOTICES and rickettsial vaccines. This portion of the meeting will be closed to permit the free exchange of Internal views, formulation of recommendations, and to avoid undue Interferencewith committee operatIons (5 U.S.C. 552(b) (5)). Committee name Date, time, and place Typo olanneflng and eontact peroua 5. IeDA/NTDA Dni~ Abuen Feb. 12, 0030 ant., Billing! Open poitite heating 8:30 to 003)1 n.m.; open committee Re.eareh Advisory Auditorium, National Lt- dteeontton 820 am, to 12:00 p.nt.; eiooo.ct cootonttine Committee. leroy of Medicine Na- deiitteeattono SOloS p.m.; John A. Setgi)otto. lb. D. Ueeailno0totrreliieatth, tttFD-12)fl, 5000 1°bhi-ei Lobe, Iletebrille, Md. 2)032, 0.tetbcida, Old. : : 30t-44325it4. General function of the committee, Advises the Food and Drug Administra- tion on action to be taken with respect to investigational use of substances with abuse potential. Advises the National in- stitute on Drug Abuse on snpplles of sub- stances for clinical studies and on quan- tities of substances for animal and in vitro studies. Advises FDA and NIDA on development of broad outlines for studies of substances with abuse potential and on new methods and tests in animals and man by which the dependence liability of investigational drugs may be estimated. Agenda-Open public hearing. During this portion any interested person may present data, information, or views, orally or in writing, on issues pending before the committee. Cotsmtttne name 1)aIe, time, and plato Open committee discussion. Discussion of scientific merit of research protocols; reordering of Schedule I substances for approved INDs; instructions for licen- sure, drug procurement and 2ND subnais- sions; expediting advisory committee minutes release to public; meeting dates for calendar year 1976; "Toxline" and "The Toxicology Data Bank"; and re- port on "Chronic Cannabis Use" confer- ence. Closed committee deliberations. Re- view of 2ND applications (new and amendments); review of preclinical staff action. This portion of the meeting will be closed to permit the free exchange of internal views, to as-old undue interfer- ence with committee operations, and to permit tile formulation of recommenda- tions (5 U.S.C. 522(b) (5)). Tatte elmreUttg atutl ectntoet net-con FEDERAL REGiSTER, VOL 41, NO. 12-MONDAY, JANUARY 19, 1976 PAGENO="0156" 150 NOTICES Conocoittee name Date, time, and place Type of meeting and oo87aet pereon 9, Panel on Review of Ob. Feb.23nnd24,9a.m. Room Open public bearing Feb. 23, 9 to 10 n.m.; open oem- sietrlcal nod Gyoeco5 5821 F13-8, 200 C ft. SW., nOtice diocnoolon Feb. 23, 10 a,m. to 4 p.m.; open ogy Dyvkcs. \VacfIgio, D.C. public bearIng Feb. 24,9 to lOam.; open committee eiiecovion Feb.24,loa.m.tol2m.;closede000mlttee deliberations Feb. 24,1 to 3 tm.; Liiiiao Yin, PieD. (IIFK-.409J), 8757 Georgia Ave., Miner Spring, hid. 20510, 301-4.27-7230. General function of the committee. contact person listed above, either orally Reviews and evaluates available data or in writing, prior to the meeting. Any concerning the safety and effectiveness person attending the hearing who does of devices currently in use and makes not in advance of the meeting request an recommendations for their regulation, opportunity to speak will be allowed to Agcnda.-Open public hearing. Inter- make an oral presentation at the hear- ested parties are encouraged to present ing's conclusion, 1.1 time permits, at the Information pertinent to the develop- chairman's discretion. mont of specific performance standards Persons interested In specific agenda of those devices that have been tenta- items to be discussed in open session may tively classified in the standards cate- ascertain from the contact person the gory, approximate time of discussion. Open committee discussion. The panel The Commissioner, with the concur- will identify specific device hazards and rence of the Chief Counsel, has deter- will consider specific performance stand- mined for the reasons stated that those ards for those devices that have been portions of the advisory committee meet- classified in the standards category. Dr. Ings so designated in this notice shall be Melvin Sikov will report to the panel on closed. Both the Federal Advisory Corn- the Biologic Effects of Ultrasound Sub- mittee Act and 5 U.S.C. 552(b) permit committee meeting of January 22 and 23, such closed advisory committee meetings 1976. in certain circumstances. Those portions Closed committee deliberations. The of a meeting designated as closed shall, panel will discuss and deliberate the Rio- however, be closed for the shortest time logic Effects of Ultrasound Subcommit- possible consistent with the intent of the tee's recommendations on the classifica- cited statutes. timi of the obstetrical-gynecological di- Generally, FDA advisory committees agnostic ultrasound devices. This portion will be closed because the subject mat- of the meeting will be closed to permit ter is exempt from public disclosure un- the free exchange of internal views and der 5 U.S.C. 552(b) (4), (5), (6), or (7), to avoid undue interference with agency although on occasion the other exemp- or committee operations (5 U.S.C. 552 tlons listed in 5 U.S.C. 552(b) may also (b) (5)) apply. Thus, a portion of a meeting may Each public advisory committee meet- be closed where the matter involves a ing listed above. may have as many as trade secret; commercial or financial in- four separable portions: (1) An open formation that is privileged or confiden- public hearing, (2) an open committee hal; personnel, medical, and similar files, discussion, (3) a closed presentation of disclosure of which could be an unwar- data, and (4) a closed committee delib- ranted invasion of personal privacy; and eration. Every advisory committee meet- investigatory files compiled for law en- ing shall have an open public hearing. forcement purposes. A portion of a meet- Whether or not it also includes any of ing may also be closed if the Commis- the other three portions will depend upon sioner determines: (1) That it involves the specific nseeting involved. The dates inter-agency or intra-agency memo- and tinses reserved for the separate por- randa or discussion and deliberations of tions of each committee meeting are matters that, if in writing would con- listed above. stitute such memoranda, and which The open public hearing portion of would, therefore, be exempt from public each meeting shall be at least 1 hour long disclosure; and (2) that it is essential unless public participation does not last to close such portion of a meeting to that long. It is emphasized, however, that protect the free exchange of internal the 1 hour time limit for an open public views and to avoid undue Interference hearing repoesents a minimum rather with agency or committee operations. than a maxinsuns time for public partic- Exansples of matters to be considered ipation, and an open public hearing may at closed portions are those related to last for whatever longer period the cam- the review, discussion, evaluation or niittee chairman deternsines will facill- ~~0~1f grant applications, the review late the committee's work. ds'ugs or devices; the deliberation and Meetings of advisory committees shall voting relative to the formation of spe- be conducted, insofar as is practical, in cific regulatory recommendations (gen- accordance with the agenda ptiblished oral discussion, however, will generally in this FEDERAL REsIsTER notice. Changes be done during the open committee dis- in the agenda will be announced at the cussion portion of the meeeting) ; review beginning of the open portion of a of trade secrets or confidential data; nseeting. consideration of matters involving FDA Any interested person who wishes to investigatory files; and review of medical be assured of the right to make an oral records of individuals. presentation at the open public hearing Examples of matters that ordinarily portion of a meeting shall inform the will be considered at open meetings are 2663 those related to the review, discussion, and evaluation of general preclinlcal and clinical test protocoLs and procedures for a class of drugs or devices, consideration of labeling requirements for a class of marketed drugs and devices, review of -data and information on specific iayesti- gatlonal or marketed drugs and devices that have previously been made public, and presentation of any other data or information that is not exempt from pub- lie disclosure. Dated: January 14, 1976. SHERWEN GARDNER, Acting Commissioner 0/ Food and Drugs. [FR Doc.76-1455 Filed i-le-78;8:45 am) FODERAL REGISTER, VOL. 41, NO. 12-MONDAY, JANUARY PAGENO="0157" 151 FDA told us bluntly that if we~want access to other FDA advisory committee meetings, or their transcripts, we would have to bring new litigation for that purpose. Last month, as Professor Steck pointed out, FDA used exemption 5 to exclude interested members of the public from proceedings of such groups as the Psychophar- macological Agents Advisory Committee, the Ophthalmic Drugs Advisory Committee, the Panel on Review of Viral Vaccines and Ricketsial Vaccines, the FDA,~NIDA Drug Abuse Research Advi- sory Committee, the Dermatology Advisory Committee, the Endo- crinology and Metabolism Advisory Committee, and the Panel on Review of Obstetrical and Gynecology Devices. Mr. Chairman, these advisory committees are dealing with issues of health and safety that are of great importance to the citizens of this country. The FDA officials who are responsible for these committees, in closing these meetings, however, exhibit a contemp- tuous attitude toward the public's right to know and the mandate of the Federal Advisory Committee Act. Secrecy is necessary, they say, "to permit the free exchange of internal views, to avoid undue interference with committee opera- Tions, and to permit the formulittion of recommendations." What `imdue interference" do these bureaucrats have in mind? How is the presence of public as observers going to interfere with legiti- mate committee activities? Why is the "free exchange" of opinions and the "formulation of recommendations" by FDA's advisers not possible unless the public is fenced out, and even prevented from reviewing the transcripts later? Contrary to the claimed public interest in excluding the public, the GAO's recent report and the Fountain committee reports in the house underscore the problem of conflict of interest and the urgent ae~'d for openness in these FDA meetings. I know that you are going to have officials of the HEW come in tomorrow and testify. I hope~ that during these hearings you will he s-e the opportunity to have them or responsible FDA officials answer these and other relevant questions. It would be very instruc- tive to reveal how such an utterly erroneous view of the agency's responsibilities under FACA came to be adopted-particularly in light of Judge Richey's ruling~ in the Wolfe case that exemption 5 is inapplicable to advisory committees. The courts have repeatedly rejected the argument that exemption 5 may be used in the advisory Committee context. Still the agencies continue to invoke it on a whOlesale basis, and the Justice and Com- merce Departments are vigorously urging the U.S. court of appeals to rule that advisory committCe~ meetings may be closed whenever it is considered by the agency head that the candor of discussions might be facilitated by keeping out the "sunshine" of public scrutiny. I had the opportunity to review the testimony given yesterday by Miss Mary Lawton, who is the Deputy Assistant Attorney General in the Justice Department, Office of Legal Counsel. I was very inter- ested to compare what Miss Lawton was saying yesterday with a sta.tement that she gave 11/2 years ago at a forum on secrecy in government. PAGENO="0158" 152 Mr. Chairman, I will provide relevant excerpts from the transcript of these 1974 proceedings for the record. You may wish to look at this, because it is very interesting as far as the Government's po- sition is concerned. [The information referred to follows:] STATEMENT OF MARY LAWTON, DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. JUSTICE DEPARTMENT, AT THE FORUM OF SECRECY IN GOVERNMENT, SPONSORED BY GOVERNMENTAL RESPONSIBILITY, FRIDAY, MAY 10, 1974 (AFTERNOON SESSION), WASHINGTON, D.C. (Transcript of Proceedings, pp. 80 et seq.) * * LAWTON. If I can get into that, please? The Federal Advisory Committee Act, I don~t think to the best of my knowledge, that the administration did have any hand or pressure in that because it's my recollection is that we woke up one morning and there it w-as. And the first reaction on looking at the Advisory Committee Act was, "Good Lord, it self-destructs !" It says that advisory com- mittees will be open, public meetings except where Freedom of Information Act exceptions apply, one of which Ron alluded to, which is this inter-agency memoranda, the content of which, basically, are the giving of advice. But when the advisory meetings are open to the public except when they're giving advice, you have just seif-destructed the Act, which was a distinct problem with it. Rather, than, now I grant you, some agencies have attempted to make this fight, but our immediate reaction was, "Let's not play games with the Con- gress; it is not what they meant," and we w-orked with the Office of Manage- ment and Budget to get out a set of guidelines for federal advisory committees telling them, in effect, "Look, that's not really what they mean with exemption five; this does not self-destruct; you're supposed to live with it." And we are getting out another set of guidelines, and when I say guidelines, I'm talking about a big, thick you know, "You can't close the meeting unless" set of instructions. We have attempted, now when I say we, I'm talking about the Justice Department, more specifically our office, which happens to have this bailwick, too. It is a problem. There is resistance; there is resistance in interesting quarters. The Act applies to advisory committees both created and utilized by the gov- ernment. One committee utilized by the Department of Justice is the American Bar Association's Committee on Judicial Selection and Qualification, you know w-here they rate the judges. The good American Bar Association was not happy to be informed that they're covered by the Advisory Committee Act. In fact, they're still screaming as far as I know. But that's the way we read the Act. And we have attempted, now here we don't have or at least have not tried to exercise the same club w-hich we used in the Freedom of Information Act, which is, "Unless you consult us, we won't defend you," partly because we're in an awkward position there; the actual administration of the Act is vested in the Office of Management and Budget and not in us, therefore we're hardly in a position to say that to the other agencies. But all I can say to you, Ron, is we're trying. PLESSER. Not to cross-examine you, I don't like to do that. But the guidelines do say, Mary, there's no question about it, the guidelines say-the last versions that I've seen-say that a meeting, perhaps, and you shouldn't do this too often, they say that you can close advisory committee hearings to protect the internal deliberations of the advisory committee. Now, those guidelines do say that. LAWTON. They have to be cleaned up. One of the things they're talking about there is when the National Science Foundation is passing upon the qualification of this scientist to carry out such and such a meeting. PLESSER. That's a different issue. LAwTON. That would pick up two exemptions. PLESSER. The Justice Department is already litigated to pay the expenses of government attorneys litigating just this point in three cases. LAwTON. Yes, I grant you that, but you know we don't pick our clients, or their cases. * * * * PAGENO="0159" 153 Mr. ROBERTSON. According to~ what Ms. Lawton said in this May 1974 forum, their first reaction at Justice Department in looking at the text of the Advisory Committee Act was , "Good Lord, it self destructs." To quote her: "It says that advisory committees will be open, public meetings except where Freedom of Information Act exceptions apply, one of which Ron [Plesser, another panelist] alluded to, which is this inter-agency memoranda, the content of which, basically, are the giving of advice. But when the advisory meetings are open to the public except when they're giving advice, you have just self destructed the Act, which was a distinct problem with it. Ms. Lawton continued, however: Now I grant you, some agencies have attempted to make this fight, but our immediate reaction was, "Let's nOt play games with the Congress; it is not what they meant," and we worked with the Office of Management and Budget to get out a set of guidelines for federal advisory committees telling them, in effect, "Look, that's not really what they mean with exemption five; this does not self destruct; you're supposed to live with it." I might add, those detailed guidelines have never been issued. And as you can see from the Federal Register publications, the agencies do continue to take the position that the Federal Advisory Committee Act. essentially self-destructs under exemption 5. Mr. TURNER. On that particular point, Mr. Robertson, Ms. Lawton testified yesterday: There are compelling reasons for closing all or part of an advisory committee meeting and in which the only applicable exemption is Exemption 5. So she does see compelling reasons. She goes on to talk about negotiations with foreign governments and qualifications of persons and a mee.ting for premature disclosure and such. Some of these look to me like they involve other exemptions. But the ,Justice Department stated to us yesterday that there are specific. reasons where exemption 5 should apply. I sent you a copy of this and I think you read that. Would you comment on that? Mr. ROBERTSON. Yes, Mr. Turner. Because they made a strong pitch here, I think it is useful to go through these one at a time so there will be no mistake on the record as to what is applied to where. First of all, Ms. Lawton says: Exemption 5 is needed where you are discussing U.S. negotiating positions for international negotiations. It should be pointed out that exemption 1 may be involved for this kind of discussion, and I think properly so in certain limited circumstances involving sensitive national defense or foreign policy considerations. Then it can certainly be closed under the terms of exemption 1. Senator METCALF. Would you stop right there? Mr. ROBERTSON. Yes, Mr. Chairman. Senator METCALF. I went this morning down to the National Oceanic Association to talk about deep seabed mining. That is a subject for negotiation at the Law of the Sea Conference, which is coming up in New York in the middle of this month. Prior to that, of course, I asked the members of the industry who are concerned with deep sea mining, Mr. John North and Mr. Moore and his group who are concerned with representing the United PAGENO="0160" 154 States at this international conference, Mr. Lee Ratina, who was a representative of our Government, to testify at an open hearing be- fore the Interior Committee: What is the difference between such a hearing for negotiations which is com- pletely open-the government is there, industry is there, the academicians are there, the people who want heritage of mankind for the Law of the Sea are all there-what is the difference between that and an advisory committee when they are all there telling the government what to do when they go up to nego- tiate with the other countries in the United Nations? Can you comment? Mr. ROBERTSON. The fact of the matter is there are very few nego- tiations in which the U.S. position is developed totally in secret. There are lots of negotiations in which the U.S. policy is formulated through open public procedures. This I think is a pretty good example, the law of the Sea Con- ference. If you are negotiating a trade agreement, where it is give- and-take, it is really like a business proposition, where you might be discussing elimination of a tariff or a nontariff barrier in exchange for something else, and you want to keep your bottom line position hidden until the right moment. That might be a case for confi- dentiality. But I think that is quite a different situation than the Law of the Sea conferences. Senator METCALF. But. the advice of people who are skilled and concerned should be given frankly and freely in open meetings. Then, of course, whether they follow that advice or not in their negotiating sessions back and forth with the other country is an- other thing. Mr. ROBERTSON. Right. Senator METCALF. But. it would seem to me in a trade agreement, when ou call upon people to come up and tell you about the way their business operates and whether there should be a tariff set aside or something, it would seem to me that that cannot imperil the gov- ernment's negotiating position. Mr. ROBERTSON. What you are saying I agree with. But there is a law to the contrary on trade agreement negotiations. Senator METCALF. I understand. Mr. ROBERTSON. The Trade Act of 1974, specifically covers these. Senator METCALF. But if it is an advisory committee on that- Mr. ROBERTSON. The Trade Act of 1974 in fact does specifically cover the advisory committees. Senator METCALF. Does it overrule the Advisory Committee Act? Mr. ROBERTSON. Yes, so far as those particular committees are involved. I'm certain it would be considered a specific statutory ex- emption from mandatory disclosure, within the meaning of exemp- tion 3. So again, Ms. Lawton was not accurate in saying that these sensitive negotiating positions would have to be disclosed unless ex- emption 5 is available. As a policy matter. Mr. Chairman~ I agree with you that most advisory committees ought to operate in the open. But if it involves very sensitive negotiations relating to foreign policy or national se- curity, properly classified under an Executive order as set forth in exemption 1, or if it comes under the Trade Act or some other PAGENO="0161" 155 statute under exemption 3, then those laws ought to be complied with. But you certainly don't need exemption 5 for this purpose. The next item Ms. Lawton~ discusses is grant applications. She says that you have to close meetings when an advisory committee is reviewing the qualifications~ of institutions or individuals to re- ceive Federal money under grants. I certainly don't agree that the public interest requires these pro- ceedings to be closed. These people on the committees are essentially making the decisions as to whd is going to get the Federal grant money and why. I think that is a very public type of decision. I would think that those meetings should be open so that the public can know who is saying what about who, and evaluate the operations of the committees. There are serious potential conflicts of interest in these peer re- view councils and grant application review committees. It can get into a "you scratch my back and I'll scratch yours" type of situation if von are not careful. Suppose there are t.rade secrets involved in the sense of a specific research regime set forth in a specific grant. proposal or applic~t.ion. If it. is not. truly trade secret. information whose disclosure would cause substantial and unfair competitive injury, then it should not be kept. secret from the public which needs this information to evalu- ate proposals. Exemption 4 would cover that sitaut.ion. although my experience is that little, if any, of this information is of the com- mercial type protected by the fourth exemption. Or in case it. is considered a .~ matter of invading somebody's per- sonal privacy, the agency could assert the exemption for personnel and similar files. So it. is not. correct to say there is no other exemption that can cover these things. In fact, if yOu look back to the discussion by Ms. Law-ton in 1974 she says so h~rself. Starting on page 81, she is dis- cussing the situation when the National Science Foundation is pass- ing upon the qualification of a particular scientist to carry out such and such a project. And she says, on page 82: "That would pick up t.wo exemptions." Yesterday she came in and said that only one exemption would apply to such a case, and that is exemption 5. I don't think she has told the whole story a.bout it.. Senator METCALF. Did ~ put into the record t.his excerpt from the testimony? Mr. ROBERTSON. Yes, sir. Senator METCALF. When it is printed I hope that pages 80, 81, and 82 are set forth so that we can identify what you are referring to here. Mr. ROBERTSON. The next case Ms. Lawton cited in her testimony is the situation where possible regulatory action is to be discussed which might affect the interests of a company or an industry or someone's financial interests if prematurely publicized. First of all, she doesn't tell us what regulatory action she is talking about. If she is referring to some kind of rulemaking about to be undertaken, the Administrative Procedure Act says that that has to be open. Rulemaking is not to be conducted in secret. 70-426 0 - 76 - 11 PAGENO="0162" 156 There should be equal access for the public to information about what is going on there. If she is talking about an enforcement case of some kind, then you have the exemption that applies to investigatory records that are compiled and used for law enforcement purposes. That con- ceivably might apply to a portion of a meeting in an appropriate case. If she is talking about regulatory action affecting a financial in- stitution, there is an exemption for that. I don't think that this is a situation where exemption 5 has to be used. Finally, Ms. Lawton says that if the meeting involves discussion or preparation of a final report that would be exempt on its own, then you would have to use exemption 5. I don't know why. If it is exempt on its own for some reason under the Freedom of Information Act, then is would seem to me that the relevant exemption would equally apply to the discussions and documents that go into the making up of the exempt report. You certainly don't have to use exemption 5 for that purpose. What the Justice Department people are saying, basically, Mr. Chairman, is that they think exemption 5 should be used to protect the privacy of internal discussions of the advisory committees. That is all. In each of the cases mentioned, there are other exemptions for appropriate circumstances to protect anything that is legitimately secret. I hope that will shed some further light on the testimony on that question. Mr. TURNER. Except that on (d), I don't want to belabor this, but this raises a matter at least in counsel's mind. She says: A meeting devoted to the final preparation of a report which, when written, will be exempt from disclosure. Does that mean that private citizens will be sitting and preparing a final report which, when written, would be subject to the exemption 5? In other words, private citizens are making an interagency or an intraagency memorandum, and non-Government people would be making that kind of a document. That is what that statement would indicate to me. Mr. ROBERTSON. It is very vague, Mr. Turner. I can't tell what she is really talking about-under what basis would this report be exempt. But supposing you are right, I think that that is what she is suggesting. Mr. TURNER. Intra or interagency memorandums, that is the only exemption, government-to-government relationship there. Mr. ROBERTSON. As I read it, I thought she was suggesting that if, for example, a report when comnleted would be classified under exemntion 1. the discussions and final preparation of that report should also he classified or closed. That is not a totally unreason- able position. However, I think that the right to answer to it is that the legiti- mately covering exemption would also apply to the discussions, because section 10(d) refers to meetings "concerned with" matters PAGENO="0163" i57 that would fall within the exemptions of the Freedom of Informa- tion Act. So I think that the covering~ exemption would probably apply to the preparation of the document. Exemption 5 is not needed here. This exemption 5 situation, I think, can be resolved most speedily and completely by a very simple clarifying amendment to the Ad- visory Committee Act, to eliminate or reduce the burden on the courts caused by continued improper application of exemption 5 to advisory committees. And the burden on individual citizens who are interested in going to these meetings or at least knowing about them. This would not. as Ms. Lawton suggested yesterday, take anything legitimately out of the act that was ever meant to be there, as she herself recognized in the 1974 speech. Section 9(2) (B) of 5. 2947 ~Ould do this with respect to meetings, but I would also urge that appropriate language be added to make clear that exemption 5 cannot be used to shield advisory committee records from public disclosure. I would like to turn to th~ procedures for closing meetings. I think this is a very important issue and a very important part of the proposals. Some agencies. from the time of enactment of the Advisory Com- mittee Act, have been so hostil~ to its spirit and purpose that almost any pretext. has been considered acceptable for excluding the public from their advisory committee meetings. A case in point is the National Advisory Committee on Oceans and Atrnosphere-NACOA-of the Department of Commerce, which had six meetings during 1973 entirely or partially closed to the public, according to a report. filed under section 10(d). I have provided a copy of the complete report tO the subcommittee staff. The first. meeting was closed, simply on the ground that no one had told the Commerce Depar~ment that. this committee had to com- ply with the Advisory Committee Act, and it had not yet received 0MB guidelines. The nexf meeting was closed in its entirety under exemption 1, which covers national defense and foreign policy matters as to which secrecy is specifically required by Executive order. Nonclassified items covered at that meeting included the agency's response to certain committee recommendations, review and discus- sion of draft renort chapters~ and a staff memorandum on "Federal Priorities and Problems." Thus. while the exemption involved ap- Plied only to a part of the prOceedings. it nevertheless was used to close the entire meeting. Committee members were prepared for the discussions by receiv- ing, among other things, a summary of certain laws enacted by the 92d Congress, and copies of an address by Arthur Godfrey to the Florida Audubon Convention. The rest of the closed meetings during 1973 were under cover of exemption 5. I think you get a good idea of the general thrust of these closing determinations from the following report on the September 27 closed session: PAGENO="0164" 158 The closed session was devoted to a discussion of pending legislation affecting the organization of oceanic and atmospheric affairs in order to establish the substance of a NACOA position to be prepared in anticipation of public testi- mony before Congress by selected NACOA members. The information used in formulating a position was considered privileged under exemption 5 and the position itself was treated as privileged until it was conveyed to the Congress. Matters such as these, involving the development of national poli- cies affecting the Government's support for marine and atmospheric research, are of immense interest to the institutions represented in the makeup on NAOOA-at least seven major universities, plus the Woods Hole Oceanographic Institution, Virginia Institute of Marine Sciences, the Rand Corp., Marine Science Center, Holcomb Research Institute, Ocean Systems, Inc., and Global Marine, Inc., not to mention such firms as Lockheed, Cabot Corp., Eastern Airlines, and International Nickel of Canada, all of whom have tremendous inter- est in what kinds of resources are devoted to these matters by the GovernmenL Moreover, the members of NACOA also serve at least 18 other Federal advisory committees, including the State Department's Ocean Affairs Advisory Committee-four interlocks; the National Science Foundation's Advisory Panel for International Decade of Ocean Exploration-three interlocks; the National Petroleum Coun- cil, the Navy Resale System Advisory Committee and Navy Oceano- graphic Advisory Committee, and the Sea Grant Advisory Panel of the Commerce Department, which makes its own determinations of who should be receiving Federal funds for research in the sea area. Mr. Turner, a few minutes ago in your discussion with Professor Steck, you pointed out the need for a disclosure statement by the head of the agency when committee memberships are appointed. I think that these interlocking patterns with other advisory com- mittees also should be included on that disclosure statement, because the Government keeps getting the same advice from these people through different agencies. It is not unfair to suggest that at least some of these advisers would stand to benefit from expansion of the Government's commit- ment to and support for research in their chosen fields of endeavor, just as they would suffer from a termination of that support. Yet these are the very people who advise the Government on its priorities and budgetary matters, who recommend what kind of re- search should be done and by whom, and who even engage in legis- latii e activities. There is an inherent conflict of interest here, or at least the ap- pearance of one, and the problem is magnified by the pattern of interlocking committee memberships that assures a1l agencies will be getting substantially similar advice, and further compounded by mounting a wall of secrecy around committee deliberations. The absurdity of some of this secrecy is exemplified by minutes of the Sea Grant Advisory Panel's closed 1973 meetings that were recently provided to me, but only after being censored by Commerce Department officials to eliminate "sensitive" information and pre- vent identification of the participants. Even the editor of the White House tapes could not have done a more thorough job of censorship. Still, it is apparent from the PAGENO="0165" 159 remaining shreds of text that m~ich of the discussion is of legitimate public concern and should not have been cloaked under the mantle of secrecy. Thus, for example, the panel in October 1973 discussed the rela- tionship of the sea grant program to the coastal zone management program (see minutes pages 34-~-35). Much of this discussion was blanked out by censors, however, leaving only such tidbits as the following exchange on page 35: [Paragraph deleted. nanie deleted]~~~Why don't you suggest to [deleted] that they insi~t, that all meetings be held jointly? [Name deleted]-Wouldn't it be fair for us to ask [deleted] to clarify it: for us? [Name deleted]-You haye power and connections in Congress and they are in a perfect position to ask [deleted]. [Name deleted]-The Office of Coastal Environment is ready to announce their own advisory panel. [Name deleted]-This panel is in a perfect position to ask [deleted] to clarify this. [End of minutes]. Senator METCALF. Every year we have a whole volume of such in- teresting material emanating from the hearings of the Defense Ap- propriations Subcommittee. If you want to read some deleted mate- riaL I sugge~that. you get that. and read it. Yes. dele~. Answer from Admiral so-and-so, Mr. Chairman, the balance deleted, and so forth. So~the advisory committee in that case is responding to very appropriate congressional examples. Mr. ROBERTSON. It is absolutely fascinating reading. Senator METCALF. Yes; I think that excerpt should be an enter- taining item for the record. [The material follows:] EXCERPTS FROM MINUTES OF uc OCTOBER 1973 MEETING OF THE SEA GRANT ADVISORY PANEL [Deleted]-I think it's perfectly salvageable. [Deleted]. I think YOU have to put this into the perspective of a transition period in management. [Deleted] There hadnt even been a trial run in the oral presentation. He is especially burdened because he is not only director of the SG program but the entire A&M Marine Science program. I think he hasn't yet been able to make a proper evaluation of it. His initial reactions were to defend everything. [Deleted] they are a real contrast. I think that under the circumstances you should give him a chance. He is certainly a person with ability. [Deleted]-Not so with 0515. [Deleted.] [Deleted.] I agree that the program should l)e given a chance to reform. I found [deleted] written comments very helpful. It would he more helpful if the projects~ numbers had been followed by a brief title and the amount. UNIVERSITY OF HAWAII [Deleted]-Hawaii is a well managed program with excellent people. They have an interesting education program including an experimental underwater agronomy course. The seaweed aquaculture program is an outstanding program. The aquaculture program is run by a strong individual who wrote an authori- tative book on aquaculture. The program in the past has been a little too diverse and the program proposed, while it has abandoned some species, is still too diverse. It includes a shrimp aquaculture program which none of the re- viewers felt should be in it. [Deleted~] The program we had most difficulty with was engineering. [Deleted.] The projects as presented were not supportable. We agreed [Deleted]. PAGENO="0166" 160 [Deleted]-Why don't you suggest to [deleted] that they insist that all meet- ings be held jointly? [Deleted]-Wouldn't it be fair for us to ask [deleted] to clarify it for us? [Deleted]-You have power and connections in Congress and they are in a perfect position to ask [deleted]. [Deleted]-The Office of Coastal Environment is ready to announce their own advisory panel. [Deleted]-This panel is in a perfect position to ask [deleted] to clarify this. Mr. ROBERTSON. I have given your staff copies of the entire minutes, so you will have them for your enlightenment or ignorization, which- ever the minutes provide. Senator METCALF. Almost anybody can write that kind of material. Mr. ROBERTSON. The point is that there is no good reason for closing most of these discussions, yet the addiction to secrecy remains despite the Advisory Committee Act. Perhaps the answer is to make the re- quirements for closing a meeting much more rigorous, so that it will only be attempted when there is a truly compelling need. The ap- proach to this problem in S. 2947 is good, and I would suggest some further refinements for your consideration. For one thing, it might be provided that no meeting could be closed by an agency head without the approval of the Attorney General, based upon a written determination that secrecy is necessary and proper under section 10(d). The determination should be supported by a full statement of facts and reasons from the Agency, including a certification by the agency head that the meeting will involve no actual or potential conflict of interest. If closing is approved by the Attorney General, the determi- nation should be promptly published in the Federal Register at least 30 days before the meeting. I was glad to see that Ms. Lawton and the Justice Department and we agree on at least one thing, which is that the 30-day rule is not a bad idea. All supporting documentation should immediately be placed in the committee records and made available for public inspection and copy- ing. Moreover, the act should explicitly provide that only the portion or portions of a meeting directly involving matters requiring secrecy may be closed, and all other portions must be open. A verbatim transcript should be kept of each session that is closed or partially closed to the public. These procedures, I believe, would heTp assure that agencies be more conscious of the requirements of the act, and less likely to abuse the public's right to observe advisory committee proceedings. They would also tend to obviate the need for administrative appellate procedures within the Agency as contemplated in S. 2947 and permit more prompt legal action if necessary. A related problem is the availability of timely judicial relief from improperly closed meetings and other violations of the act's pro- visions. This is underscored by the FDA's outrageous conduct, which, after losing a suit involving the antacids review panel, told the Health Research Group that it would have th start new litigation to get access to any other FDA committee meetings or records. Litigation, as FDA well knows, and as the Justice Department knows, is expensive and time consuming, and their attitude is a sneer- ing affront to the public's rights. PAGENO="0167" 161 The approach of S. 2947 on this matter essentially tracks the recent Fredom of Information Act amendments, for purposes of challenging determinations to close, meetings and for imposing sanctions on bureaucrats who brazenly defy the law. I am seriously concerned, however, about the provision for in camera proceedings in the courts and the possibility that this may lead to efforts by the Government to conduct ex parte litigation from which the plaintiff is excluded~ as has been done under the FOTA.1 I will furnish copies of the two recent district court decisions in which this Problem was involved. If it is ever necessary to allo~v litigation of such matters in secret, the. statute should fully spell out the circumstances in which that would be permissible, and it should specifically include a provision for adversary participation b~ all affected parties. I would also hope that the amendments will provide for standing and jurisdiction to challenge other violations of FACA, in addition to the improper closing of meetings. Otherwise, these abuses may go un- remedied. as you know from your litigation involving the balanced membership requirement. in which it was held-at least in the district court-that outsiders. even Members of Congress, don't have standing to enforce the provision of the Act.2 Moreover, there are some technical drafting problems involved in assuring that. the FOTA concepts are Properly adapted to the suhsf an- tive and procedural context of FACA. My colleagues aiid I will be happy to work with the subcommittee staff on these matters if we can be. of assistance. One important thing S. 2947 will do is eliminate some of the agency exemptions and generally broaden the scope of coverage by FACA. It is entirely proper, for example, that outside groups advising the Federal Reserve Board-certainly one of the most secretive and im- portant. of all Federal agenciesL-should T)e subject to the same re- porting. management and disclbsure requirements as those of any other agency. I would suggest one particular revision to substantially enlarge the act's coverage by simply adopting the new definition of "agency" set forth in last year's FOIA amendments, rather than the old APA definition. This would automatically and very simply bring in such Govern- ment-owned or Government-controlled corporations a.s the U.S. Postal Service and Amtrak, an entirely appropriate amendment in light of the many strong parallels between FACA and FOIA. Of course, the committee should also provide for the inclusion of non-executive l)ranc.h a clvisorv committees. S. 2947 focuses on the question of public notice in connection with closed meetings. and I would certainly agree that at least 30 days is needed to afford sufficient opportunity t.o obtain a judicial determina- tion of the legality of closing.. There is also a problem with notice of meetings that are not closed in a. formal sense, but which interested persons are not able to attend beca.use they a.re not given timely information. 1Pliillinpi v. CIA, CA. 73-1265 (D.D.C. Dec. 1, 1075) ; but cf., Military Audit Project v. Bush, CA. 75-2103 (D.D.C. March 5, 1976). See, e.g., Lee Metcalf v. 2cational Petroleum Council, CA. 75-307 (D.D.C. Feb. 0, 1076). PAGENO="0168" 162 Several years ago the situation was so bad that the director of the Federal Register had to announce that notices of meetings that had already been conducted would no longer be published. [The document referred to follows:] GENERAL SERVICES ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS SERVICE, Washington, D.C., November 13, 1972. MEMORANDUM FOR CHIEF LEGAL OFFICERS OF FEDERAL AGENCIES From: Director of the Federal Register. As you know, in accordance with Section 13 of Executive Order 11671, each Federal agency is required to publish in the Federal Register notices of meet- ings of certain advisory committees (after January 4, 1973, Executive Order 11671 w-ill be replaced l)y Public Law 92-463). Our office has received a number of complaints because these notices are frequently published only a day or two before the announced meeting or, even worse, in some cases after the meeting has already been held. It is understandable that for a new requirement, such as that imposed by Executive Order 11671, it w-ould take time for an agency to establish internal procedures to ensure that documents are signed and delivered to this office sufficiently in advance of the announced meeting for timely publication. How- ever, some agencies apparently are still having problems in this regard. Section 10 of Public Law 92-463 requires that "timely notice of each such meeting shall be published in the Federal Register' (emphasis added). While this office would not presume to try to decide how much advance notice is "timely," we see no point in publishing documents that announce meetings that have already been held. I would appreciate your help in establishing adequate procedures within your agency to avoid such problems in the future. If I can be of any assistance in this regard, please let me know. FRED J. EMERY. Mr. ROBERTSON. OMB's guidelines now generally require that no- tice be published at least 15 days in advance of a meeting, but, that rule is not always observed. One recent example is a meeting of an EPA advisory subgroup on the effects of pesticides on farm workers, which came to our at- tention only a few hours before it was scheduled to take place, be- cause no notice at all had been published in the Federal Register. The agency finally canceled the meeting altogether when legal action under the FACA was threatened, but there was no promise that it would not try the same thing in the future. Another case which recently came to light involves the Sea Grant Panel, which printed a notice in the February 19 Register of ai~ "open" meeting to be held 5 days later. The agency claimed that this was merely a "continuation" of an earlier meeting, and so it considered that 5 days' notice was sufficient under FACA. Nothing in that law or in the 0MB guidelines to my knowledge provides for a continuation loophole. [The materials referred to follow:] 15.5. DEPARTMENT OF JUSTICE, Washington, D.C., March 4, 1976. RUEBEN B. ROBERTSON, III, E5Q. Washington, D.C. Re: Aviation Consumer Action Project, et al. v. Washburn, et al. (C.A.D.C., No. 75-1086). DEAR MR. ROBERTSON: Enclosed please find a copy of a letter dated March 2, 1976 from Alfred Meisner, Assistant General Counsel for Administration in which he sets forth the circumstances of the February 24, 1976 meeting of the Sea Grant Panel. We believe that the Panel's procedure was in full accordance PAGENO="0169" 163 with the law, and trust that the enólOsed letter will answer any questions you may have on this matter. Very truly yours, JUDITH S. FEIGIN, Attorney Appellate Section, I Civil Division. Enclosure. GENERAL COUNSEL OF THE U.S. DEPARTMENT OF COMMERCE, Washington, D.C., March 2, 1976. LEONARD SCHAITMAN, ESQ., Assistant Chief. Appellate Section. Ciril Dirision, U.S. Department of Justice, Washington., D.C. Re: ACAP v. Washburn (C.A.D.C. No. 75-1086) Your ref. LS :pac 145-9-253. DEAR Mn. ScIIAITMAN: This is in response to your letter of February 22, 1976, requesting further details about the meeting of the Sea Grant Advisory Panel noticed in the Federal Register on February 19, 1976, and held on February 24, 1976, noted in Mr. Robertson's letter on February 24 to Ms. Feigin. The relevant facts can be summarized as follows. On January 5, 1975, the Department published a Federal Register notice (copy enclosed) of a special open meeting~ of the Sea Grant Advisory Panel to be held on February 10, 1976. That meeting was held as scheduled, however, the Panel was unable to complete the first item of business on its agenda since some im- partant sea grant legislative propo~als were not yet completed by the time of the meeting. although it was anticipated that they would be at the time the meeting was scheduled. Since it was vital that the Panel discuss these proposals and make its recom- mendations thereon prior to the commencement of legislative hearings, scheduled for early March. it was decided to ednlinue the meeting in two weeks, by when it was expected that the other legislative proposals would be ready for dis- cussion. and to publish notice thereof in the Federal Register. This notice appeared on February 19 (copy enclosed). This decision was made by Dr. Abel. Director of the Sea Grant program, after consultation with my .)ffice. We considered the February 10 meeting as being recessed to continue with the same agenda on February 24. It was not thereby a new meeting to which we considered the emergency provision and the 30 day advance notice of the court order applicable. It w-as an unusual situation, and the February 19 notice in the Federal Register was deemed an appropriate explanation. In effect, although no formal declaration of~emergency n-as made, we are of the opinion that the circumstances as indicated could be considered as such if the order is to be so narrowly construed. The order is silent on adjournment for completion of an original agenda, and the February 19 notice was in accord with the spirit and letter of Judge Bryant's order. (Although the notice was signed in the Department on February 12, for some reason its filing with the Federal Register was delayed until February 18.) The continuation n-as announced w-hen the meeting was recessed at the close of the February 10 meeting, and the February 19 notice reflected this fact. with the identical agenda. The continued meeting was completely open. Finally, it should be pointed out that while no one from the public attended the Feb- ruary 10 meeting. there was some public attendance at the February 24 continuation. If this office can be of any further assistance, please do not hesitate to contact me. Sincerely, ALFRED MEISNER, Assistant General Counsel for Administration. Enclosures (2). [From the Federal Register, Vol. 41, No. 2-Monday, January 5, 1976] NATIONAL OCEANIC AND AT~rosPHERIc ADMINISTRATION SEA GRANT ADVISORY PANEL Notice of Public Hearing Pursuant to Section 10(a) (2) of the Federal Advisory Committee Act, 5 U.S.C. Appendix I (Supp. III, 1973), notice is hereby given of a special meeting PAGENO="0170" 164 of the Sea Grant Advisory Panel on Tuesday, February 10, 1976. The meeting will commence at 9:00 a.m. in Room 6802, Department of Commerce. The meet- ing will be open to the public. Approximately 30 seats will be available to the public on a first-come, first served basis. The agenda for the meeting will be as follows: 9:00 a.m.-Sea Grant Legislation. 2:00 p.in.-Review of New Criteria for Sea Grant College Designation. 5:00 p.m.-Adjourn. Interested persons may submit written statements relevant to the Panel's areas of interest before or after the meeting or by mailing such statements to the Executive Secretary atIhe address below. Inquiries regarding the Panel or the meeting may be directed to the Executive Secretary, A. G. Alexion, National Oceanic and Atmospheric Administration (SG), Page Building 1, 3300 Whitehaven Street, N.W., Washington, D.C. 20235, (Telephone: 202/634-4019). Dated: December 30, 1975. T. P. GLEITER, Assistant Administrator for Administration, National Oceanic and Atmospheric Administration. [From the Federal Register, Vol. 41, No. 34-Thursday, February 19, 1976] NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION SEA GRANT ADVISORY PANEL Notice of Public Meeting In the matter of continuation of February 10, 1976 meeting. Pursuant to Section 10(a) (2) of the federal Advisory Committee Act 5, U.S.C., Appendix I (Supp. III, 1973), notice is hereby given of a continuation of the February 10, 1976 Special meeting of the Sea Grant Advisory Panel on Tuesday, February 24, 1976: As announced when the meeting was recessed, the meeting will fë~ume at 9 :00 a.m. in the Penthouse Conference Room (5th floor), Page Bldg. No. 1, 2001 Wisconsin Avenue, N.W., Washington, D.C. and will be open to the public. Approximately 30 seats will be available to the public on a first-come, first-served basis. The agenda for the meeting will be as follows: 9:00 a.m.-Sea Grant Legislation. 2:00 p.m.-Review of New Criteria for Sea Grant College Designation. 5:00 p.m.-Adjourn. Interested persons may submit written statements relevant to the Panel's areas of interest before or after the meeting or by mailing such statements to the Executive Secretary at the address below. Inquiries regarding the Panel or the meeting may be directed to the Execu- tive Secretary, A. G. Alexion, National Oceanic and Atmospheric Administration (SG), Page Bldg. No. 1, 3300 Whitehaven Street, N.W., Washington, D.C. 20235, (Telephone: 202/634-4019). T. P. GLEITER, Assistant Administrator for Administration, National Oceanic and Atmospheric Administration. FEBRUARY 12, 1976. Mr. ROBERTSON. I would suggest that the act be amended to pro- vide that public notice of all meetings must be published in the Fed- eral Register as soon as practicable, and no less than 30 days prior to the meeting. I do think it would be sensible, however, to provide for exemption from these limits on an emergency basis, pursuant to a written determination by the agency head, so that needed flexibility will not be lost. Another proposal that deserves the subcommittee's favorable con- sideration, in my view, is the suggestion of Senator Percy to provide for reporting of all advisory committee recommendations and the agency's response thereto. PAGENO="0171" 165 All too often, valuable committee recommendations are simply ignored by the agency, and substantial efforts and expenditures are essentially wasted. This proposal would at least force the agencies to account for their inaction. The Advisory Committee Act has brought about definite improve- ments in the management and procedures of thousands of these ad- visory groups. The amendments now under consideration would eliminate some important gaps and loopholes, and generally improve the act. There are, no doubt, other problems in FACA that will need resolution in the future, but the subcommittee's present efforts are steps in the right direction. Particularly with regard to the exemp- tion 5 issue. I would urge the subcommittee to move ahead as promptly as possible, hopefully during this session, by reporting out and obtaining passage of an amendment to resolve that problem once and for all. Thank you very much, Mr. Chairman. Senator METCALF. Thank you: very much, Mr. Robertson. Would you comment on Prolessor Steck's suggestion for fair bal- ance, to have publication in th~ Federal Register of the members of the Commission who were appointed and the justification for bal- ance or something of that sort, analogous to the way that we have required them to justify closu~e of meetings. Mr. ROBERTSON. I think that is an excellent suggestion. It makes the agency head go through a mental process and write down on paper and publish his rationale for why various people have been selected. I must say I am a little troubled by the idea of an automatic one- third public membership, because who is a member of the public? What. would probably happen, as in similar situations, where such requirements have been imposed, is to get the spouses of agency officials, or the spouses of big-time corporate bureaucrats or union bureaucrats, appointed to advisory committees, as so-called public members. Senator METCALF. You better not appoint my wife or they will get in some trouble, if they think that she is going to think the same way as I do, because she doesn't.: Mr. ROBERTSON. There are lOts of ways to get around a requirement that there be one-third members from the general public. But I think forcing the agency heads to rationalize on paper who they are ap- pointing so that everybody can: see it, and forcing them to spell out the qualifications, background and connections of these people, is a very important process. Senator METCALF. Yes, I think so. Perhaps that would be the most important part of it, to require the appointing authority himself to justify the balance. Mr. ROBERTSON. I think that is right. It is an excellent suggestion. Senator METCALF. As I told Professor Steck, you have worked with the committee and of course you have been involved in some of the suits that public interest groups have brought to clarify and amplify some of the provisions of the act. We have appreciated your testimony here today. We will appreci- ate your continued cooperation with us in trying to work out this act. PAGENO="0172" 166 It may be that we will try to work it out, as was suggested by Mr. Lynn and Ms. Lawton, with an Executive order or something of that sort. We may be able to arrive at the same conclusion. I have always felt that it is better to put things into a statute, but some things can't be written into a statute. As you say, a one- third quota is sort of inflexible, so that may be where an Executive order would help. Mr. ROBERTSON. Mr. Chairman, in reviewing Mr. Lynn's testimony and Ms. Lawton's testimony, they keep saying in effect: "Don't pass any law on this because we will take care of all these problems. We are aware of all of them." Well, they have been aware of them for 3 years, and they haven't issued any Executive orders to deal with and resolve these grievous problems. They do have guidelines which are generally vague. In some of these areas-like the exemption 5 issue-where they are suggesting an Executive order, I think that you ought to move ahead with a legislative resolution right now, because the Government has made clear that it is going to continue with its position on exemption 5. Talk is cheap, in other words. Mr. TuRNER. There was the recommendation that we eliminate the reference to the Freedom of Information Act and start over again to list our own exemptions. I would be interested, particularly because of your experience in litigation, of your response to that suggestion. Mr. ROBERTSON. I must say that it was a very intelligent legislative shortcut just to adopt the freedom of information exemptions. But as we have gained experience in litigation and communications with the agencies, we find that they have different ways of inter- preting these things. No one would have seriously suggested in 1973 that advisory committees could use exemption 5. That was only for internal documents. But they did. So I think there may be some validity to the point that the time has come to look at these exemptions one by one and see whether they make any sense anymore. What about trade secrets? How are outside advisers to the Gov- ernment getting privy to other people's or competitors' trade secrets or confidential financial information? It is unclear why these would ever be legitimate issues of discussion. These are issues that can be explored in the future. It may make some sense to redraft the exemptions more narrowly than under the Freedom of Information Act. Senator METCALF. In the statement to which you referred of Ms. Lawton's on May 10, 1974, which has been included in the record, she said, "We are getting out another set of guidelines." `When I say guidelines, I mean a very precise legal sort of a statement. When I say guidelines, I am talking about a big, thick, you-can't- close-the-meeting-unless set of instructions. We have attempted now-and I am talking about the Justice De- partment and our office- to see what happens in this bailiwick, too. Did they ever get out those guidelines-that set of big, thick you- can't-close-the-meeting-unless sort of thing? PAGENO="0173" 167 Mr. ROBERTSON. My understanding is that they did not. Senator METCALF. I think probably they would be a little more credible in coming in to say, "We are able to do this by executive decision," if they had gotten out the guidelines that they suggested they were going to do more than~a year ago. Mr. ROBERTSON. They may be having some serious problems with working out some of these so-called guidelines. For example, on exemption 5, they all keep saying they don't want to use exemption 5 to swallow up the act, to use it for everything. But. on the other hand, they can't draw the line as to when exemp- tion 5 could be properly used. Senator METCALF. You are saying we here in Congress should give them a little, help? Mr. ROBERTSON. That is right. Mr. T~TRNER. Just a few questions, Mr. Chairman. Back to the litigation phase. Yesterday the Department of Justice witness stated: Any standing of persons seeking judicial review should be limif~d to those who were aggrieved and who had exhausted their administrative remedy. It would seem that this was a rather restrictive suggestion on the part of the Department as to the t.ype of standing that they would support for Advisory Committee ~neetings. `Would you care to comment dn, the present state of the art in terms of standing and whether or not you feel at. this time, in your viewing of the cases, that there would be any necessity for Congress to look at that and to come up with its, own specifications or statut.ory re- quirements with respect to standing relating to advisory committee matters? Mr. ROBERTSON. Yes. I think it would be very useful for Congress to put this into the act. As far as cases involving challenges to closed meetings, the Justice Department basically hasn't raised the standing issue. As far as violations of other provisions of the act, they have definitely taken the position that people who merely want to see the law enforced, who have an interest in seeing that, for example, mem- bership is ba.lanced on these cOmmittees, have no right to complain in the Federal courts about these violations. I would think that the stafute could very simply spell out that any person has the right to file a complaint in court concerning vio- lation of the act. This is done in many other statutory contexts. It. would clarify for the courts how they should respond. I cer- tainly think it should be a more liberal approath to standing than that suggested by the Justice Department. I think any person should be able to sue here, because the~ act contains a presumption that all citizens have a legitimate interest in what is going on in these ad- visory committees. They might even be appointed to a committee. As far as the aggrievement question is concerned, this should be defined in the statute. It should assure, for example, that anyone ex- cluded from a meeting could sue. I think a general provision that any person has a right to bring an action for violation would be sufficient. As far as exhaustion of remedies is concerned, if this should be required, the procedures and timing for available administrative PAGENO="0174" 168 remedies should be spelled out in the statute so that the litigants aren't required to be exhausted, rather than the remedies. Mr. TuRNER. I don't know of any definition of standing that in- cludes the exhaustion of remedies. Does that come later? Mr. ROBERTSON. They are two separate concepts. They are related but separate concepts. As a practical matter, the courts tend to be more comfortable if the person suing has actually asked the agency to cure its own violation before coming to court. In some cases there is not time to do that, or it would be futile to do it. Mr. TURNER. FOIA provides for administrative appeals procedure at the administrative level with respect to their quest for documents. If the agency fails to comply with those administrative procedures, the petitioner is deemed in the act to have exhausted his administra- tive remedies for purposes of going to court. Given the 30-day period between notice and the holding of the closed meeting, does it make any sense to provide for such agency appeal procedures? I mean shouldn't a party for cause be able to go to court at any time after that notice to close the meeting without getting entangled in administrative redtape or being faced with the requirement that he exhausts administrative remedies? He has 30 days and it is going to be a closed meeting. He may not only be exhausted, but the meeting may well be closed and have happened before he ever achieved his administrative remedies. Mr. ROBERTSON. Yes, this is right. I think the agency's decision to close a meeting should be a very carefully considered one. There should be internal safeguards on this decision. So the need for ad- ministrative appeals at various levels should not even exist when it comes to closing meetings. As I suggested, you might consider using such safeguards as ap- proval by the Attorney General, based on a written determination by the agency head, with a certificate that there is no conflict of in- terest involved. Procedures like that would certain abnegate any need for further administrative procedures before going to court. If I can say something about the freedom of information pro- cedures, these have tl1emselves been too burdensome, I think. These procedures can take months to complete before you can even go to court-literally months. They frequently involve two different levels of administrative re- view within the agency. Some agencies require a written request even to initiate the process. Generally, I think it has not worked out as speedily as was originally intended. Mr. TURNER. I think the point I wanted to make, and this is my final point, is that when you go so far as to put a notice of a meeting in the Federal Register, and the Federal Register knows the meeting is going to be held and it is going to be closed, that that in fact is a final order. Mr. ROBERTSON. That would be my view. Yet, as a practical matter under the present law, when you are litigating these cases, if you have the time, you do try to get a separate response from the agen- cis so the court is satisfied that you have done everything you could before you came to the court. PAGENO="0175" 169 I think if the statute dealt with this, it should spell out precisely what is required, if anything. I think that your interpretation is the best one with respect to determinations to close meetings. Mr. TURNER. Thank you. Mr. ROBERTSON. A different c~ise arises when you are talking about other kinds of violations of the act-balance of membership, and so forth. I think it makes a lot, of sen~e to go to the agency, to have a pro- cedure for going back to the agency and saying, "Look, you really didn't do the balanced rnember~hip very well here." But. when on are talking abdut. closed meetings the die is cast, and the meeting is going to go foi~~ard, and time is of the essence. So I would certainly hope that. there wouldn't be a lot of burdensome extra procedures to go through.~ Senator METCALF. Thank you ver much for your help and your assistance. Mr. Robertson. As I said, we look forward to continuing to work with you on our continuous attention to this special problem. Mr. ROBERTSON. Thank you. Senator METCALF. The sub~ommit.tee will be in recess until 10 o'clock tomorrow. We will go back to our meeting room 3302. (Whereupon. at. 12 :55 p.m.~ the subcommittee recessed, to recon- vene at 10 a.m.. Wednesday. March 10, 1976.) PAGENO="0176" PAGENO="0177" TO AMEND THE FEDERAL ADVISORY COMMITTEE ACT-P.L. 92-463 WEDNESDAY, MARCH 10, 1976 U.S. SENATE, SUBCOMMITTEE ON REPORTS, ACCOITNTING, AND MANAGEMENT OF THE COMMIrrEE ON GOVERNMENT OPERATIONS, Wa.shington, D.C. The subcommittee met at 10 a.m., pursuant to recess, in room 3302, Dirksen Senate Office Building, Hon. Lee Metcalf (chairman of the subcommittee) presiding. Present: Senators Metcalf and Percy. Also present: I/ic Reinemer, staff director; E. Winslow Turner, chief counsel; Gerald Sturges, professional staff member; Jeanne McNaughton. chief clerk; James George, minority, professional staff member. Senator METCALF. The subcommitee will be in order. Today is the third of 3 days of hearings by the Subcommittee on Reports, Accounting, and Management on two bills to amend the Federal Advisory Committee Act, S. 294~ and S. 3013. Witnesses from the Department of Health, Education, and Welf are and Department of the Interior will be heard today. Recently, I point.ed out that it has never been formally determined whether the National Council on Educational Research is or is not subject to the Federal Advisory Committee Act. The Council, which is part of the National Institute of Education, was listed initially as a Federal Advisory Committee and then removed from the list. I am pleased to announce that the Chairman of the National Council on Educational Research, John E. Corbally, has written to inform me that, through officials of the National Institute of Educa- tion, he has directed that the question of the Council's status under the act be properly presented to the Office of Management and Budget and the Department of Justice for a formal determination. Without objection, this l&ter will be placed in the record at this time, along with a prior letter to me from Dr. Corbally. [The information referred to follows:] (171) 70-426 0 - 76 - 12 PAGENO="0178" 172 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE ~ NATIONAL INSTITUTE OF EDUCATION ~ WASHINGTON. D.C. 20208 ~ ~ February 25, 1976 Honorable Lee Metcalf Chairman, Subcommittee on Reports, Accounting, and Management Committee ~,, 9" on Government Operations United States Senate Washington, D. C. 20510 Dear Senator Metcalf: I have read your statement in the February 6, 1976 Congressional Record discussing the relationship between the Federal Advisory Committee Act (FACA) and the National Council on Educational Research (NCER). The Council was created by the Congress as you stated to "establish general policies for, and review the conduct of," the National Institute of Education (NIE) as well as to perform advisory roles. You also noted that the Director of NIE "shall perform such duties and exercise such powers" as the Council "may prescribe." Thus the Council has substantial statutory responsibilities not characteristic of advisory committees. The Council1s policy-making responsibilities have been the focus of our attention, Occasionally it is necessary for the Administration to provide information not available to the public. Without such information the Council cannot make informed and timely policies. This is especially true in the lengthy process of preparing the budget which is central to the effectiveness of general policy. The Council's regular policies and practices are consistent With the spirit of the FACA and with the posture of the NCER as a body which is coordinate with the lIE Director and which initiates policy actions as well as reviews executive decisions. Our record of the past year for the announcement, conduct and reporting of meetings is a good one, although it is not unblemished, as you have noted, We certainly strive, in light of our responsibilities, to conduct our business in a public manner and have benefited from substantial public attendance and participation at our meetings. In 1975 the Council held seven general meetings for a total of forty-four hours, of which twelve hours, or twenty-seven per cent, were in closed session (with seven of those hours during a two-day meeting in January, 1975). In each closed session either the FY 1976 or 1977 budget and program ,~ere considered as a. matter for policy action. Coring two of the seven meetings, the Council did not have any closed sessions. We have proceeded under guidelines established upon the recommendation of the lIE Director who was informed by consultation with authorities in the Department of Health, Education & Welfare. I understand that the Council is also acting in accord with the pertinent statements about the FACA issued by the Department of Justice and by the Office of Management and Codget regarding policy-making bodies, PAGENO="0179" 173 Honorable Lee Met,calt ..2 - February 25, 1976 To further clarity the current situation I have asked the NIH Director to cooperate fully with Administration officials in reviewing the matter and to advise the Council at its upcoming meeting on March 26 of any further steps which are needed to resolve satisfactorily the issues you have raised. The Council's records show that in 197k the NIH and HEW staffs provided your staff with information about Council policies and practices in the areas how under discussion. I will have similar current information provided to your staff on the Council's behalf. Sincerely, E. corbally coalrman on Educational c. Dr. Hodgkinson Dr. Gerber PAGENO="0180" 174 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE NATIONAL INSTITUTE OF EDUCATION WASHINGTION, D.C. 20208 March 5, 1976 NATIONAL COUNCIL ON EDUCATIONAL RESEARCH Honorable Lee Metcalf Chairman, Subcommittee on Reports, Accounting, and Management Committee on Government Operations United States Senate Washington, D.C. 20510 Dear Senator Metcalf: On February 25 I wrote to you in response to your comments on the need for the National Council on Educational Research to secure a formal determination of its relationship to the Federal Advisory Committee Act. I am now writing to inform you that upon receiving further information through officials of the National Institute of Education I have directed that the question be properly presented to the Office of Management and Budget and the Department of Justice. This is to be done in concert with the Department of Health, Education and Welfare. We are confi- dent that the findings will be consistent with the Council's predomi- nant policy-making functions provided in current legislation and reauthorization bills developed by the appropriate committees in both the Senate and House. I have further instructed the Director of NIE to insure that your staff is kept informed about the progress of our efforts to resolve this issue. Sincerely, hn E. Corbally Chairman PAGENO="0181" 175 Senator METCALF. This m~r~iing, the first witness is Hon. Marjorie Lynch, Under Secretary of the Department of Health, Education, and Welfare. You are accompanied by two of your colleagues, Madam Secretary. We are delighted to have you here and to hear your testimony this morning. If you will identify ~our colleagues, then go right ahead. TESTIMONY OP MARJ~ORth LYNCH, UNDER SECRETARY OF HEALTH, EDUCATION, AND WELFARE; ACCOMPANIED BY DR. DONALD S. FREDRICKSON, DIRECTOR, NATIONAL INSTITUTES OF HEALTH, AND DR. DUANE J~. MATTHEIS, EXECUTIVE DEPUTY COMMISSIONER OP EDUCATION; WILLIAM S. BALLENGER, AS- SISTANT TO THE SECRETARY; SAM D. FINE, ASSOCIATE COM- MISSIONER FOR COMPLIANCE, FOOD AND DRUG ADMINISTRA- TION; THOMAS SCARLETT, ASSOCIATE COUNSEL, FOOD AND DRUG ADMINISTRATION Ms. LYNCH. Thank you, Mr. Chairman. I am pleased to appear before you today to testify on S. 2947, amendments to the Federal Advisory Committee Act of 1972. We have provided the committee with a full statement of our detailed comments which cOver the points raised in your letter of invitation. With your permission, I would request that the statement, and inserts for the record referred to therein be included in the record and that I be permitted to summarize the key points. Senator METCALF. Please go ahead. It is so ordered. Your prepared statement and additional material will be entered at the conclusion of your testimony. Ms. LYNCH. I am~ as you know, vitally interested in advisory committees. Because of my previous experience and involvement with them as a State legislator, I believe the Department faces a challenge to do a better job of informing committee members of their respon- sibilities under the Federal Advisory Committee Act, conflict of interest statutes, and other la~ss affecting their behavior as members. I am sure you will be pleased to know that HEW already requires advisory committee members to read a pamphlet on conflict of inter- est and to file a confidential statement relating to financial interests and other employment. However, I am deeply concerned that several of the provisions of this bill would have a serious negative impact on our ability to ade- quately conduct reviews of scientific and technical proposals. I have reference to the am~ndment which would open all sessions of our scientific review panels and thereby inhibit free and candid consideration of proposals. No organization can manage its affairs effectively without certain degrees of confidentiality in the development of proposals, the steps taken to refine them, and the discussions leading to decisions~-~de~ cisions which should be made and then be opened to the public along with the reasons which support them. This policy was recognized by the Congress initially with the enactment of exemption (b) (5) of the Freedom of Information Act, and again when Congress incorporated this exemption, along with eight others, into the Federal Advisory Committee, Act. The proposed amendments appear to eliminate or excessively con- strain the preservation of confidentiality in the process of weighing PAGENO="0182" 176 sensitive and delicately balanced evidence in the course of reaching a decision and we, therefore, oppose them. Mr. Chairman, I should like to address a number of specific pro- visions in the proposed legislation under consideration today. S. 2947 would amend section 10(b) of the Federal Advisory Com- mittee Act by requiring a complete audio or audiovisual recording of each closed meeting. Every such recording shall be deposited with the Librarian of Congress not later than 24 hOurs after the meeting has been completed. Any committee member may request that the recording be reduced to typescript. Mr. Cl~airman, the cost of complying with this provision would come to approximately $500,000 each year for the National Institutes of Health alone. It might be more than $1,250,000 each year for the whole Department. The 24-hour rule appears to be rather arbitrary and harsh. The bill does not specify whether the recording, filing, and transcription also requires public disclosure. We assume that it does not. But the existence of such tapes will probably generate a number of costly lawsuits demanding their release. Such a costly procedure for tapes not intended for Public release seems to be unwarranted. A similar provision was considered by the House-Senate conference on this act in 1972, at which time it was modified for some of the above-mentioned reasons. 5. 2947 would amend section 10(d) by eliminating exemption (b) (5) of the Freedom of Information Act as a basis for closing a meeting. The Department believes that the deletion of exemption (h) (5) would not be in the public interest~ because it would effctively under- mine the peer review system, which is justified by the fact that it is considered the best available method of obtaining high quality re- view of research grant applications and contract proposals. The preservation of candor and confidentiality is equally vital to the process of regulatory decisionmaking. If we are to produce sound regulatory programs, it is essential that the agency have the discre- tion to close a portion of a meeting. The agency should be permitted to close a meeting when the clos- ing is essential to the free exchange of views of a committee involved in a regulatory matter, and necessary to avoid undue interference with agency or committee operations. The courts and the Congress have long recognized the importance of preserving the integrity of the deliberative process of an agency. This policy should be main- tained. If advisory committee meet.ings in which research applications are evaluated should be opened to the public, the resulting premature disclosure of the contents of research designs would constitute a strong disincentive to scientists to submit their research concepts. Both individuals and institutions submitting such applications have a proprietary interest in them-at least until they are funded by public money. If the confidentiality of the peer review process should be breached, investigators may be inhibited with consequent loss to public welfare. The Public Health Service agencies have made extensive efforts to open their advisory apparatus to the public in all areas in which they can do so without diluting the quality of advice provided by PAGENO="0183" 177 advisory committees and without compromising the rights of appli- cants. Exemption 5 is in most instances the only exemption of the Free- dom of Information Act that the courts have allowed as applicable to advisory bodies reviewing grant applications. The courts have ruled that exemption 4-trade secrets-does not apply to the review of research proposals-with the possible exception of initial un- funded applications. `While the courts have not spoken to the applicability of exemption 6-unwarranted invasion of personal privacy-this exemption would not apply to persons whose applications are under review. The Department is convinced that the deletion of exemption 5 would seriously impair the peer review system which has served the public so well for so many years. Another very serious affeèt, of removing exemption (b) (5) as a basis for closing advisory meetings would result in the removal of the legal basis for preventii~g~ premature disclosure of clinical trial data. Premature release of such data could cause the trial to be aborted, the desired information not to be obtained, and in some cases inferior or harmful treatment to remain unexamined. Such disclosure can hardly be said to be in the public interest. In some instances, it may work harm or injustice on the patients in- volved in the trial. Only exemption 5 is presently available to close committees which provide safety monitoring for trials involving human subjects. `We believe~ this matter is so serious that it alone would justify retention of exemption 5. Mr. Chairman, this summary states the major concerns of our Department with this bill. I~ will be pleased to answer any questions that you or the members of your subcommittee may wish to ask. Dr. Donald S. Frederickson, Director, National Institute of Health, and Duane ~J. Mattheis, Executive Deputy Commissioner, Office of Education, will provide specific examples of how the pro- posed amendments could hamper them in the conduct of their re- sporsibilities. Senator METCALF. Dr. Frederickson, do you have something to add? Dr. FREDERICKSOX. Mr. Chairman, I would like first of all to en- dorse with enthusiasm the remarks of Madam Secretary in regard to this legislation and to indicate that I do regard several aspects of the proposed amendments as matters deserving urgent attention and raising two special problems for us. They are: Preservation of the peer review system, which is now about a quarter of a centur~ old, which was established at the Na- tional Institutes of Health, and the smaller but significant problem of the protection of information relative to clinical trials, to which Madam Secretary alluded. If you should desire, sir, I would be glad to provide amplification in any way you might wish. Mr. MArruETs. Mr. Chairman, on behalf of the Division of Edu- cation, our primary concern would be the section with regard to peer review as well. `We heartily endorse the comments of Madam Secretary and indicate that Our concern would be the same as that expressed, in that the peer review process would be substantially hampered by the opening up of these activities with regard to re- search proposals in the National Institute of Education. PAGENO="0184" 178 Senator METCALF. Thank you very much for your summary and for your statement, Madam Secretary. How many advisory committees do you have in HEW? Ms. LYNCH. Mr. Chairman, I have been with the Department a little over 3 months. What I would like to do, if I may, is ask Mr. Ballenger to reply to some of those questions for me, if you would give me that privilege. Senator METCALF. Surely. Mr. BALLENGER. Mr. Chairman, your question is how many ad- visory committees there are in the Department at this moment? Senator METCALF. Yes. Mr. BALLENGER. At the present time~ Mr. Chairman, there are 321 advisory committees housed within HEW altogether. Senator METCALF. 321? Mr. BALLENGER. Yes. Senator METCALF. Senator Percy has to leave. I am going to defer to him at this time and then we will come back with some other questions after Senator Percy is through. Senator PERCY. Thank you very much, Mr. Chairman. Secretary Kissinger is testifying before the Foreign Relations Committee this morning and I will have to leave. But I wanted to be here first to welcome you. This is the first time I have had an opportunity to have you testify. Madam Secretary, and your dis- tinguished colleagues as well. \~Te are going to reach out and ask for your help in this regard. I would like to relate to you our relationship with the Federal Re- serve Board. In disclosure of adequate information to protect the public inter- est, we had a talk with the Fed~ and we respected the fact that cer- tain discussion of matters that were confidential had to be kept confidential, that it would be contrary to the public interest to have such discussions open, and that we could develop proof that it would be contrary. Others dealing with matters that affected consumers, however, ought to be known because those discussions involve rates of money or interest rates or confidentiality of banks. There were sometimes sensitive matters, but affecting the con- sumer. And the Fed agreed with us that they had been too stringent in saying that everything they do should be put under a cloak. We are not asking that anything be done that we haven't done. The thought was abhorrent to some members of this committee that we should open up our markup sessions. Why, for us to sit there and discuss in the open the give-and-take of legislation, of writing provisions in the law, and so forth, why it is a calamity, the roof -would fall in. Yet a few of us fought tenaciously for the right to have the public see how laws are really made. It has been a wonderful experience. We have had better attendance. The members show up on time. We have not had an outbreak. Sometimes we have had more people than the room could accom- modate, but we were glad of that. We didn't have apathy about it. It has strengthened the process of legislation. It has speeded it up. It has helped us enormously. So what we thought we couldn't do has been done. PAGENO="0185" 179 Certainly in this regard, I can see that where you have peer review, where you are depending on the candor of one specialist, a scientist, a professional, to comment on the qualifications of an ap- plication or something for another, and it has to get into the capabil- ity and the quality of work done, and so forth, I think we can understand that. I would support an exemption for such reviews. You cannot, in fact, refuse the request to go into immediate executive session when the qualifications of people are discussed when it could do injury to the reputation of an individual to have the meeting open. That, I think, we would be very willing to exempt. So I would ask that you really try to go back and strain to put yourself in our shoes and the public's shoes in saying let's open this process up, not dangerously so, not to restrict the flow of information but let's be awfully careful that we don't just try to cling to the past. Those days are over. Wmatergate ended them. A lot of things ended the days of secrecy. We are going to tear more of those signs down "closed to the pub- lic," on our Senatorial and House meetings. I think the executive branch has to do the same thing. For us to record everything, I can see the cost is going to be exorbitant. Who is going to read all this material? There are cer- tain discussions that go on that don't need to be recorded, but cer- tainly there are some that go on, where a record can and should 1)e made. It should be available for review. I have in this area gotten into deep discussions with the President on covert activity. I happen to think we shouldn't undertake a covert or major intelligence action not committed to writing. The President has agreed. In fact, lie says that if the action is major he is going to have to sign it before we undertake it as a Government. We ought to have the right to go back and review the record and take a look at it and participate in oversight as to whether a good decision was made. So, again, I ask that you try to think through what should be there available for oversight, to look back and scan that record. That is sensible. But certainly we are not trying to look for ways to create paper. We are participating on a paperwork commission to eliminate work. We don't want to, on the one hand, eliminate it and then, on the other hand, needlessly pile up paperwork. I would like to reach out to try to see your point of view and you reach out to try to see ours. * Go back again :and see whether or not you can't submit to us for a final entry in the record-and I would ask unanimous consent that it be kept open for another week so that that could be done- to see where there is a middle line that could be fully iustified. I ask unanimous consent that a letter I received-I think most committee members probably have-from Jo Anne Brasel, be inserted in the record because I think Dr. Brasel makes a very good point about certain meeting topics that can and should not be opened up and the possibility of others that should be. [The prepared statement of Marjorie Lynch with attachments follow:] PAGENO="0186" 180 Qotunthia ~inibcr.~itp QZoUe~e of 3~Ijp~irian~ an~ ~ur~con~ ~1(J INSTITUTE OF HUMAN NUTRITION OFFICE OF THE DIRECTOR 511 WEST 166th STREET NEW YORK, N. Y. 10032 212-568-6162 March 3, 1976 Senator Charles H. Percy United States Senate - Washington, D.C. 20510 Re: S.29147 Dear Senator Percy: I am writingto express my concern regarding the changes in the Federal Advisory Committee Act (P.L. 92-1463) proposed by Senator Metcalf. The bill has been referred to Senator Metcalf's Subcom- in~ttee on Reports, Accounting and Management, but presumably will be considered by the Committee on Government Operations at some point. I fully support "sunshine" laws in general and airt in favor of opening up the advisory committee selection process. As a current member of an NIH Study Section (Nutrition) and a recipient of NIH support, granted before becoming a member of the study section, I have grave concerns about the amendment which would delete exemption 5 of the Freedom of Information Act. If deleted, it will no longer be possible to close a study section meeting on the basis of inter-agency or intra-agency memoTanda. If it is not possible to close a study section meeting by memorandum or some other reasonable means, one of the greatest strengths of the peer review systemwill be seriously affected. This strength is the frank, crItical review and honest appraisal given the rese ations with the kn~~ ~ 1 no e ~ ~~tU~?ê~ion. In speaking f~7~ys~T~, and I expect othe~ ~ I take the responsibility of reviewin~ applications very seriously; I feel obliged to be critical and honest and make judgements which will result in spending tax dollars in ways which hopefully will benefit society at large and not just one scientist's research bperation. There are many long hours of work involved which are not even laughIngly compensated by the consultant fee of $100 per day at the actual meetings; instead there is satis- faction in participating in any orderly system of high integrity whic) has resulted in scientific discoveries the U.S. can justly take pride in. But study section members are only human with the usual frail- ties and opening up the meetings or the reviews so they can be traced will significantly reduce t ~ f the review . This does not mean to say tha~ ~y sections do not ~ee accountable or ~i~h total anonymity. Our names are a matter of public record and we take responsibility for and feel accountable for our actions PAGENO="0187" 181 taken as a group. The group decision made after discussion, multiple input and presentation of conflicting views is the more valid for these reasons and would likewise suffer if exemption 5 is deleted from the FOIA. I have long felt that more op~r!e~s of the review process is desirable from the applicant's point of view and would like to see the "pink sheets" which represent a summary of the study section's deliberations forwarded automatically to the applicar~t. Although I can only speak for~myself as an applicant in the past, I can say I would like to seethe "pink sheets" related to my applica- tions, that I feel the peer review system is an excellent way to have one's ideas judged and assessed, but that I would strongly object to having my research grant and the stud sec n ~ to ~ ee equa ly ~trongly about thë~ reléa~~t~ t.~e publj~ of re~ea:~ch roto~ols which have no bearing on patient safety or que ~.io o e ca considerations, but that is a different matter unrelated to S.29147. In summary, as an applicant for research support and.as a member of an NIH advisory committee, 1 urge that st berat ons remain closed to ~ ~b,~~prI fee that the disclosure of the would be to the detriment of ~ system of research_ao~~~t~~~nd, secondarily in the long run, ~ ~caii5~''~~. scientific research. Thank you for your considerations of my comments. Please do not hesitate to contact me If 3tou feel further discussion would be of assistance in reaching a decision on this matter. Sincerely, ~4~A Jo Anne Brasel, M.D. Associate Professor of Pediatrics JAB:tc . PAGENO="0188" 182 [Prepared statement of Marjorie Lynch~ MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: I am pleased to have the opportunity of appearing before you to testify on S. 2947, a bill introduced for the purpose of amending the Federal Advisory Committee Act, P.L. 92-463 sjqned on October 6, 1972. I appreciate your sharing with the Department your con- cern regarding the selection of candidates to serve on HEW advisory committees. I am, as you may know, vitally interested in advisory committees, because of my previous experience and involvement with them as a state legislator. During my short time with HEW, I have already met with some committees and hope to get together with many more in the coming months. I am particularly interested in improving the training and com- munication HEW provides to the members of advisory committees. I believe the Department faces a challenge to do a better job of informing members of their responsibilities under the Federal Advisory Committee Act, conflict of interest statutes, and other laws affecting their behavior as members. I am sure you will be pleased to know that HEW already requires advisory committee members to read a pamphlet on conflict of interesi~ and to file a confidential statement relating to financial interests and other employment. This Department has long subscribed to the general prin- ciple that the interests of the citizens of the United States are best served by making information regarding the affairs of Government readily available to the public. The Department PAGENO="0189" 183 Page 2 neither believes in nor condones secrecy. Nevertheless, one must distin~uish between secrecy and confidentiality. Secrecy is an attempt to conduct business without allowing the public to know that deliberations are taking place or what decisions are reached~. Confidentiality is the conduct of discussing~ in private, but with public know- ledge that discussions are taking place. and with open publica- tion of decisions reached. No, organization can manage its affairs effectively without certain degrees of confidentiality in the development of proposals, the steps taken to refine them, and the discu~sion~ leading to decisions~~decisions which should then be opened to the public alon~ with the reasons which support them. This policy was recognized by the. Congress initially with the enactment of exemption (b) (5) of the Freedom of Information Act, and again when Congress incorporated this exemption, along with 8 others,: into the Federal Advisory Committee Act. The proposed amendments appear to eliminate or excessively constrain the preservation of confidentiality in the process of weighing sensitive and delicately balanced evidence in the course of reaching a decision, and we therefore oppose them. : You have asked me to disàuss today the Department's pro- PAGENO="0190" 184 Page 3 cedure which is used for selecting members of advisory committees. Let me begin by noting that there are presently some 321 advisory committees housed within HEW. Of this number, 62 are policy advisory committees whose candidates for appointment are sub- mitted to the Secretary: 15 are appointed by the President and 47 by the Secretary. The remaining 259 are technical and grant or contract review committees appointed by the Assistant Sec- retary or the head of the appropriate agency. The total membership on committees appointed by the President (for which the Secretary provides recommendations) and the Secretary is approximately 992 -- between seven and 21 members per committee (an average of about 15) with one-third or one-fourth of the membership terms expiring each year. Thus, in a normal year, with memberships kept current, the Secretary should fill about 245 vacancies and recommend persons for appointment to approximately 85 vacancies on com- mittees appointed by the President. Beginning in 1969, the appointment procedure was refined, improved and expanded to incorporate not only increased responsiveness to substantive considerations, but also presidential (and, later, statutory) mandates for increased representation of women, minorities, and young people on committees. In its present form, the system works as follows: First, members of the Secretary's staff are responsible for developing and nominating slates of candidates for the Secretary's appointments to policy advisory committees and for making Secretarial recommendations to presidentially-appointed committees. PAGENO="0191" 185 Page 4 These staff members, situated in the Secretary's Office of Special Projects (OSP), receive nominees for policy ad- vi~;ory committees from the following sources: 1. Heads of the Department's component agencies (FDA, NIH, etc.); 2. Other government sources (the Congress, the White House, state and local units, etc.); 3. Professional and public interest groups with which the mission of the Department is concerned (AMA, Easter Seal Society, etc.); 4. Intra-Departmental groups (Special Concerns, Women's Action Program, etc.) 5. Individual requests to serve. Some four months prior to, the time when the vacancy occurs, the slate of candidates is reviewed in terms of candidate availa- bility, geographic distribution, program objectives, and other ~tatutory and administrative requirements. The evaluation process also considers the membership composition (women, minorities, student-youth) of the committee. A memorandum, nominatin~ the slate, is prepared for the Secretary. In many instances, however, one or more of the original agency nominations may not prove~ to meet the established criteria. Names of candidates on file in OSP are then presented as alternate choices to the agency. When proposed substitutions are found, they are forwarded to the appropriate agency for agreement. PAGENO="0192" 186 Page 5 After the Secretary has made the final decision, the appointees receive letters of invitation and the appropriate agency is notified of the Secretary's appointments, as are other organizations and parties interested in the committee membership. At this point, further processing of committee membership be- comes a routine administrative matter handled by the agencies and the DCMO. You expressed some concern, Mr. Chairman, in your letter to the Secretary of February 16, over past delays in appointing advisory committee members. As you may be aware, great progress was made in filling all Departmental advisory committee vacanices during 1975. On January 6, 1975, there were 107 vacancies on Secretarially- appointed councils and committees, 71 of these in NIH alone. As of today, with the exception of several newly chartered committees, no regularly scheduled vacancies on chartered com- mittees appointed by the Secretary remain. Last November, Senators Edward M. Kennedy and Jacob K. Javits expressed similar concern over the staffing of HEW advisory councils and committees. Secretary Mathews sought to give the Senators as complete a report as the Department's re- cords would provide. The Department also cooperated fully with an investigation of the advisory council and committee appointment process undertaken by the General Accounting Office at the behest of the Senators. PAGENO="0193" 187 Page 6 On February 3, 1976, upon receiving Secretary Mathewst response and the Department's report, and upon completion of the GAO investigation, Senators Javits and Kennedy wrote to *the Secretary an~ expressed~ their satisfaction with the Department's procedures in this regard. With your permission, Mr. Chairman, I would like to provide, for the record, a copy of the Department's report on which the Senators' reply is bás~d as well as a copy of their February 3, 1976 letter to the Secretary.' I would like to comment, Mr~ Chairman, on your amendments which would require annual publication of the names of all advisory committee members, indexed by business affiliation and occupation. All of HEW's agencies currently produce mem- bership lists, complete with business addresses, which are available upon request. In the' Office of Education, an annual list is part of the Commissioner's Annual Report to the Congress. Some of our agencies also publish",a booklet periodically which includes brief information about each committee in addition to the roster of membership. We, would hope to be able to extend this kind of publication to include all of the agencies in HEW. It would also be possible to add an index of.business affiliations, although we question the value of publishing the names and business affiliations of past advisory committee members, or, as your proposed amendment would require, submitting this information in an annual report from 0MB. 70-426 0 - 76 - 13 PAGENO="0194" 188 Page 7 As for your statement, Mr. Chairman, in the Con~gressiona1 Record of February 6 about the applicability of the Federal Advi- sory Committee Act (FACA) to the National Council on Educational Research (NCER), I am pleased to report that the Chairman of NCER has instructed the Director of the National Institute of Education to commence the process of obtaining the opinion of HEW's General Counsel and, if needed, the advisories of the Office of Management and Budget and the nepartment of Justice on this topic. For your information, we note also that since its creation in 1972 the Institute has utilized some 15 public advisory committees, all chartered and administered in accordance with the requirements of the FACA. The Institute has terminated these committees upon completion of their assigned duties. Public Health Service ~encies: Before addressing other specific provisions of the proposed legislation, I should like to describe in summary fashion the advisory committee system of the Public Health Service Agencies which comprises approximately 80% of the advisory committees within the Department. The National Isrstitntes of Health Advi~~ Coii~~ The mission of the Public Health Service and National Institutes of Health is to improve the health of all Americans. To this end, NIH conducts research in its own laboratories; provides grants to non-profit organizations f Or research and PAGENO="0195" 189 Page 8 research trni.ninq; supports research in both nonprofit and )IffljL-m~1kJn(; iil!;Lit:Lltions by~means of eontracts; supports the lmprovement or construction of library facilities; and, through a variety of instruments, encourages communication of biomedical information. The major portion of the NIH effort is directed toward support of research being carried out in other than Federal laboratories. NIH uses approximately 160 public advisory committees composed of over 2,~0Ô0 members, of whom approximately 1,800 participate in the review of grant proposals. The pri- mary purpose of such committees is to assist us in achieving and maintaining the highest possible quality for NIH programs by obtaining expert advice on those research grant applications and contract proposals that offer the best hope of providing information which will improve~ the health and well-being, not only of the American people, but of populations in every part of the world. This committee system, commonly called the peer review system, is based on the premise that individuals best qualified to pass on research proposals are those scientists most knowledgeable in~ the specialized fields in which the proposals fall. Because research proposals are con- cerned with possible future results, no objective criterion is entirely adequate for evaluating proposed research. We must rely on trained, experienced, and tested scientists for advice on such matters. PAGENO="0196" 190 Page 9 The NIH peer review system has been evaluated on at least eight occasions by Presidential and Congressional committees. At the present time, under the direction of Congress, the President's Biomedical Research Panel authorized by P.L. 93-352 is again scrutinizing this system which is, and must continue to be, accountable to the public. In addition to external evaluation, the NIH itself is conducting a study (including evidence obtained from public hearings) of its own peer review system. When that study is completed, it will be made available to the public. This study is being conducted as one step in the ongoing process of review and monitoring of the peer review system. Many NIH committees operate with no attendance restric- tions, and portions of every NIH advisory committee meeting are open to the public. All policy issues that come before such committees are dealt with in open forum. Those por- tions of NIH committee meetings that are closed are properly announced in the Federal Register. These sessions are usually closed to review research applications. The names and organiza- tional affiliations of all committee members are published at least twice each year. When a research grant application is funded, a public notice of the decision is promptly published and the content of the application (except for patentable material) is made available to anyone on request for inspection and copying. PAGENO="0197" 191 Page 10 The purpose of each of these steps is to make the peer review system accountable to~ the public while at the same time preserving a sufficient degree, of confidentiality to allow the committee to function effectively. Alcohol, Drug Abuse, and Mental Health Administration Advisory Committees: The Alcohol, Drug Abuse, and Mental Health Administration has 31 chartered committees composed of approximately 360 mem- bers. Of these, 24 committee~s are initial review groups that review research, training, an~ service grant applications and contract proposals. The Alcohol, Drug Abuse, and Mental Health Administration committees follow essentially the same procedures as those described above for the National Institutes of Health. Food and Drug Administration Advisory Committees: The Food and Drug Administration (FDA) employs 61 public advisory committees to assist the agency in its regulatory deliberations. The total nurnk~er of members who sit on these committees is 509 with an average of 7 to 9 members per com- mittee. FDA advisory committees met a total of 312 times during calendar year 1975. FDA has comprehensive regulations governing the use of advisory committees. The regulations provide that no advisory committee meeting shall be closed entirely no matter what is being discussed. Also, a determi- nation to close a portion of ameeting must restrict the closing to the shortest possible time. As at NIH, however, a large percentage of FDA advisory committee meetings also include Closed sessions. Most of PAGENO="0198" 192 Page 11 these sessions were closed because they were dealing with idc secret tuaterlile -- manufacturinq inforneitlOn, ~r~ty and efficacy reports, etc. -- submitted to the agency in connection with and pursuant to its authority to approve new drugs for marketing. However, several sessions, most notable those of panels preparing recommendations on the marketing of over-the-counter drug products were closed to protect the deliberations of the panelists. FDA believes that such closing facilitates candor and open frank discussion in the formulation of final advice on very sensitive regulatory issues, and affords the Commissioner an opportunity to consider such advice before making a final decision. Both of these purposes are, we believe, consistent with Congress' rationale for enacting exemption (b) (5) to the Freedom of Information Act. Other Health Agencies The Center for Disease Control, the Health Service Adminis- tration, and theHealth Resources Administration have a total of approximately 25 committees. They function in open format most of the time except when they are reviewing grant applica- tions and contract proposals. Amendments to Federal Advisory Committee Act Now, with your permission, Mr. Chairman, I should like to address a number of specific provisions in the proposed legislation under consideration today. PAGENO="0199" 193 Page 12 S. 2947 would amend paragraph (2) of Section 3 of the Federal Advisory Committee Act by including `any ad hoc group" in the definition of an advisory committee. Although the bill does not define an "ad hoc' group, we are aware of at least three kinds of groups that are sometimes referred to as "ad hoc". (1) Unchartered, standing advisory committees which have been used on occasion for the review of grant applications. Mr. Chairman, you referred to the use of these committees in your remarks on page S. 1867 in the February 18, 1976 Congressional Record. We believe that such committees should be chartered and should be subject to the provisions of the Federal Advisory Committee Act. (2) "Ad hoc" advisors are occasionally utilized to provide review of an application for which no chartered committee exists. They are also used to~ avoid conflict-of-interest situations when, for example, the scientific review of an application of a member of a chartered committee cannot be reviewed by his own committee. The U.S. District Court for the Northern District of California has recently praised the use of "ad hoc" groups in such:situations (see Grassetti v. DHEW). PAGENO="0200" 194 Page 13 To require a charter for such groups would remove flexibility from the review process, create delays, and generate conflict-of-interest situations in the peer review system. While we have no objection to reporting the existence and function of "ad hoc groups, we feel that a simple post-factum reporting requirement would provide for accounta- bility and meet the spirit of the Act without crippling the day-to-day ability of agencies to conduct their business. (3) Finally, individuals, including Congressional staff, consumer groups, and professional organizations are often asked for opinions and, in effect, are used as `ad hoc' advisors by virtually every office within the Department in the day-to-day conduct of business. Sometimes these informal advisors are utilized through use of the telephone and the mails, while at other times, they provide advice in person. To charter committees for every such situation and require them to conform to the Federal Advisory Committee Act would be patently impractical. If the Department's agencies were required to charter all such groups, the business of the Department would be seriously impeded, and the number of committees enormously increased. Even to keep an accurate list of all such persons would consti- tute a heavy administrative burden. We do not believe this is what is intended by the "ad hoc" provision. This provision needs to be dropped or extensively revised and clarified. S. 2947 would amend Section 10(h) ofithe Federal Advisory Committee Act by requiring a complete audio or audio-visual recording of each closed meeting. Every such recording shall PAGENO="0201" 195 Page 14 he deposited with the Librarian of Congress not later than 24 liouin ~fter the meeting has been completed. Any committee member nay request that the recording be reduced to typescript. Mr. Chairman, the cost of complying with this provision would come to approximately $500,000 each year for the National Institutes of Health alone. It might be more than $1,250,000 each year for the whole Department. The 24-hour rule appears to be rather arbitrary and harsh. The bill does not specify whether the recording, filinge and transcription public disclosure. We aasume that it does not. existence of such tapes will probably generate a costly lawsuits demanding theirrelease. Such a cedure for tapes not intended for public release unwarranted. A similar provision was considered by the House-Senate Conference on this Act in 1972, at which time it was modified for some of the above mentioned reasons. 5. 2947 would amend Section 10(d) of the Act so that, upon request from an outside party, justification for closing a meeting would be reviewed by the head of an agency within 48 hours. If the request came only 48 hours before the meeting, the meeting might be postponed Ofl short notice at considerable cost to the Government and inc6nvenience to the members. also requires But the number of costly pro- seems to be PAGENO="0202" 196 Page 15 S. 2947 would also amend Section 10(d) by eliminating exemption (b) (5) of the Freedom of Information Act as a basis for closing a meeting. The Department believes that the deletion of exemption (b) (5) would not be in the public interest, because it would effectively undermine the peer review system, which is justified by the fact that it is considered the best available method of obtaining high quality review of research grant applications and contract proposals. In May 1975, the members of the Advisory Committee to the Director, NIH, met with representatives from Advisory Councils of the various Institutes which comprise the National Institutes of Health, and endorsed a statement which I quote in part: The peer review system is a fair and equitable process which serves the public interest by providing an impartial evaluation of research grant applications and contract projects. This system, which has been effectively employed for more than a quarter of a century by the National Institutes of Health and National Institute of Mental Health, offers a variety of expertise, an efficient mechanism at minimal public expense, and a quality of review that surpasses all other devices that have been utilized for evaluation of competitive research applications. The system has been endorsed by the United States Congress as well as by the scientific community in the United States and abroad. If the con- fidential aspects of this system should be damaged or destroyed, the benefits to the public accruing from PAGENO="0203" 197 Page 16 such review may be placed in jeopardy. Mr. Chairman, with you~ ~ermission, I should like to place in the record the entire statement of the Advisory Committee to the Director, NIH (which was developed in an open meeting), because it addresses many of the questions associated with the bills under discussion. The preservation of candor and confidentiality is equally vital to the process of regulatory decisionmaking. If we are to produce sound regulatory programs, it is essential that the agency have the discretion to close a portion of a meeting. The agency should be permitted to close a meeting when the closing is essential tb the free exchange of views of a committee involved in a regulatory matter, and necessary to avoid undue interference with agency or committee operations. The courts and the Congress have long recognized the importance of preserving the integrity of the deliberative process of an agency. This policy should be maintained. If advisory committee meetings in which research applica- tions are evaluated should be opened to the public, the re- sulting premature disclosure of the contents of research designs would constitute a strong disincentive to scientists to submit their research concepts. Both individuals and institutions submitting such applications have a proprietary interest in them -- at least until they are funded by public money. If the confidentiality of the peer review process should be breached, investigators may be inhibited with consequent loss to public health and welfare. PAGENO="0204" 198 Page 17 Even more important than the effect it would have on scientists who submit applications is the deleterious effect that deletion of exemption 5 of the Freedom of Information Act (inter- and intra-agency memorandums) would have on the quality of peer review. As presently constituted, the closed review provides a suitable climate for obtaining a candid, informed, personal opinion from expert advisors concerning the capabilities of investigators and institutions to undertake and safely execute research designs. Such informed opinions can best be obtained under conditions in which the confiden- tiality of the individual opinions will be respected. The Department believes that there are times when con- fidentiality is a necessary prerequisite to public decisions for p~ic benefit. We are striving to find the golden mean between the extremes described by Attorney General Levi who recently observed: `A right of complete confidentiality in government could not only produce a dangerous public ignorance but destroy the basic representative function of government. But a duty of complete disclosure would render impossible the effective operation of government." The Department is aware that the dicta in Wolfe. v. Weinberger, held that the (b) (5) exemption is "inherently inapplicable" to advisory committees. However, in developing that decision, Judge Richey of the U.S. District Court for the District of Columbia distinguished it from a case involving confidential review of research grant applications. PAGENO="0205" 199 Page 18 He cited the case of Washington Research Proj~j~, Inc. v Weinberger in which the D.C. Circuit Court of Appeals held that the documents in question, and therefore the NIMH advisory committee meetings in which the documents are reviewed, are entitled to the pr~tection afforded by the (b) (5) exemption. Moreover, in the Wolfe case, the issue was the release of transcripts not the closing of meetings, and the court expressly declined to reach any issue involving the Federal Advisory Committee Act ~n deciding the case. The narrow ruling in Wolfe, the dicta notwithstanding, does not bar the closing of the deliberative portions of advisory committee meetings pursuant to exemption (b) (5). The issue of the availability of exemption (b) (5) to close deliberative sessions ie squarely before the D.C. Circuit Court of Appeals in Aviation Consumer At~ ~gject v. Washburn. The Public Health Service agencies have made extensive efforts to open their advisory apparatus to the public in all areas in which they can do so without diluting the quality of advice provided by advisory committees and without compromising the rights of applicants. Exemption 5 is in most instances the only exemption of the Freedom of Information Act that the courts have allowed as applicable to advisory bodies reviewing grant applications. The courts have ruled that exemption 4 (trade secrets) does not apply to the review of research proposals (with the possible exception of initial unfunded applications). While the courts have not spoken to PAGENO="0206" 200 Page 19 the applicability of exemption 6 (unwarranted invasion of personal privacy), this exemption would not apply to persons whose applications are under review. Consequently, it is probable that the deletion of exemption 5 would open all or most of the research review process to the public. The Department is convinced that the deletion of exemption 5 would seriously impair the peer review systen which has served the public so well for so many years. Another very serious effect of removing exemption (b) (5) as a basis for closing advisory meetings would result in the removal of the legal basis for preventing premature disclosure of clinical trial data. Only exemption 5 is presently avail- able to close committees which provide safety monitoring for trials involving human subjects. The cost of funding such trials amounts to over sixty million dollars each year. Premature release of such data could cause the trial to be aborted, the desired information not to be obtained, and in some cases inferior or harmful treatment to remain unexamined. Such disclosure can hardly be said to be in the public interest. In some instances, it may work harm or injustice on the patients involved in the trial. We believe, this matter is so serious that it alone would justify retention of exemption 5. However, the Department would welcome consumer or public representatives for service on such safety committees. Mr. Chairman, I would like to address one further provision in the proposed legislation. S. 2947 would amend Section PAGENO="0207" 201 Page 20 5(b) of the Federal Advisory Committee Act to require that one-third of the membership of each âornmittee "be drawn from citizens in private life who shall represent the interests of the public. . ~1 This section needs some defini- tional elaboration. Many if not most persons claim to be acting in the public interest. Present practice requires that participants on advisory committees not have any personal conflict of interest in the matters on which they advise. If anything further than this is intended in the bill, it should be specifically stated. This amendment might apply to our 62 policy advisory committees, but we question requiring that one-third of each of our 259 technical and scientific committees be composed of consumers. We believe this would have an extremely questionable benefit and would probably be counter productive. A technically trained individual independent from government and industry would be better able to stake a meaningful contribution to the committee. For all of the above-listed reasons, we recommend that S. 2947 not be enacted in its present form. Mr. Chairman, I will be pleased to answer any questions that you or the members of your Subcommittee may wish to ask. PAGENO="0208" 202 May 2, 1975 Statement of the Advisory Committee to the Director, NIH RESOLUTION The members of the Advisory Committee to the Director, NIH, meeting together with representatives from Advisory Councils of the Institutes which comprise the National Institutes of Health agree to and endorse the following state- ments: I. The peer review system is a fair and equitable process which serves the public interest by providing an impartial evaluation of research grant applicationa and contract projects. This system, which has been effectively employed for more than a quarter of a century by the National Institutes of Health and the National Institute of Mental Health, offers a variety of expertise, an efficient mechanism at minimal public expense, and a quality of review that surpasses all other devices that have been utilized, for evaluation of competitive research applications. The system has been endorsed by the United States Congress as well as by the scientific community in the United States and abroad. If the confidential aspects of this system should be damaged or destroyed, the benefits to the public accruing from such review may be placed in jeopardy. II. A. The peer review system provides for frank and honest evaluations by experts of the merits as well as. the shortcomings of the scientific quality of research designs. B. The peer review system also provides a suitable forum for obtaining a sensitive and intimate spectrum of informed personal opinion from expert advisors concerning the personal capabilities of investigators and institutions to undertake and efficiently and safely execute `the research designs contained in their proposals. Such informed subjective opinions can be obtained only under conditions in which the confiden- tiality of the opinions will be respected. We believe, therefore, that it is in the public interest to develop legislative safeguards to protect the confidential aspects of the peer review system. III. Scientific creativity in the area of health research is of enormous public value. Incentives to such creativity should be given the highest priority. To this end, a highly competitive research system has been developed which stimulates scientists to embody in their grant applications and contract proposals their most innovative creations. Before such creative concepts are submitted to a funding agency, they require substantial investment of time and professional effort. Premature disclosure of the contents of research designs would constitute a strong disincentive to scientists to candidly submit their creative concepts. Clearly, both individuals and insti- tutions submitting such applications have a proprietary interest in then. Furthermore, the career advancement of an investigator depends, PAGENO="0209" 203 2 in many cases, upon his or her ability to obtain an award and to test the validity of the research concepts contained in the application. If the confidentiality of the peer review process should be breached, the free presentation of investigators might well be inhibited, with consequent loss to the public welfare. IV. In the case of grant applications and contract projects proposing to involve-human subjects, the multiple steps of review which include participation by public representatives as well as scientists offer the best available protection of the rights and well-being of such subjects. At present, the National Commission for the Protection of the Rights of Human Subjects of Biomedical and Behavioral Research is considering additional measures to safeguard the rights of human subjects. We believe that the systen for protecting the rights of human subjects is and must remain open to pub34~c scrutiny. However, th~ occasional intervention by members of the public would introduce a sporadic and random element into the orderly review of these applications and offers little protection for the rights of subjects. V. In order that the public may be further assured that its interests are being served, we believe it is appropriate to release any research design to the public, on request, provided that the researcher has had the reasonable period of twelve months after funding to develop his ideas. However, we believe that the rights and well-being of human subjects who participate in research outweigh the rights of the investigator to retain exclusive control of his research design. Furthermore, because research in which human subjects play an active role is ordinarily concerned with the application of concepts that are already fairly well develOped, the need to protect the investigator's concepts is not as great as it is in the case of more basic research. Therefore, we recommend that research applications and proposals which, under existing regulations, are subject to review by institutional review committees should be relOased to the public on request at the time that the proposed research is funded. - The final step in the development of a research project is the publication of the research in a responsibly edited and refereed journal. This final vigorous evaluation provides yet another assurance to the public that their interests are being served by means of a careful review process. 70-426 0 - 76 - 14 PAGENO="0210" 204 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE OFFICE OF THE SECRETARY WASHINGTON. ~.ç, 2Q201 January 16, 1976 MEMORANDUM TO: The Secretary FROM: William S. Balle Assistant to the ec eta for Special Proje ts SUBJECT: 1975 Year-End Repprt o e retarially- appointed and Presidentially-appointed National Advisory Councils and Committees of the U.S. Department of Health, Educa- tion and Welfare I. General Information Tab A: Women Tab B: Minorities Tab C: Student/Youths Tab D: Geographics (including census data and a map) Tab E: Listing of all Presidentially-appointed and Secretarially-appointed Advisory Councils' and Committees PAGENO="0211" GENERAL 205 INFORMATION As of December 19, 1974, there were 53 HEW Advisory Councils and Committees operating under the jurisdiction of P.L. 92-463 -- 16 Presidentially-appointed (upon recommendation of the Secretary) and 37 Secretarial1y-appoin~éd -- comprising a total of 980 Council positions, 883 of them encumbered. During calendar year 1974, the President and the Secretary, aided by the Office of Special Projects (OSP), filled 279 (28.5%) of those 980 posi- tions. Of the 279 appointments, at least 111 (56% of all Secretarially-appointed members and at least 39.8% of members appointed by both the President and the Secretary*) were nomina- tions originated by one of the following Departmental agencies or Assistant Secretaries: National Institutes of Health Health Resources Administration Health* Services Administration Alcohol, Drug Abuse, and Mental Health Administration Social Security Administration Center for Disease ContrOl *Food and Drug Administration National Institute on Education * Office of Education Assistant Secretary for Human Development : Assistant Secretary for Education, or Assistant Secretary forPlanning & Evaluation. Of the 1974 year-end total of 980 positions, there were included three councils created during 1974 embracing 32 new positions. All the remaining positions were on Councils and Committees whose membership carried over from previous years. As of December 31, 1975, there were 62 HEW Advisory Councils and Committees operating under the jurisdiction of P.L. 92-463 -- 15 Presidentially-appointed and 47 Secretarially-appointed comprising a total of 992 council positions. During calendar year 1975, the President and the Secretary filled 457 (46.1%) * of the 992 positions. Of the 457 appointments, 264 (57.8%) were nominations originated by an agency, or Assistant Secretary. Of the 1975 year-end total of 992 positions, 155 were new posi- tions spread over 10 new Councils chartered during 1974. Vacancies that existed as of Deàember 19, 1974: 97 Vacancies that existed as of January 6, 1975: 107 * Vacancies that existed as of December 31, 1975: None Following is more detailed information on the increasing participa- tion of women, minorities, and student/youths on Departmental Advisory Councils. and Committees during 1975, as well as improving geographical balance. * *Data for Presidentially-appointed committees ~or 1974 is incomplete. PAGENO="0212" 206 Page 2 WOMEN As of December 19, 1974, there were 226 (25.6%) women in encumbered positions on HEW Advisory Councils and Committees appointed by the President and Secretary: 162 (25.4%) on Secretarially-appointed 64 (26.1%) on Presidentially-appointed As of December 31, 1975, there were 302 (30.4%) women on such Councils: . 254 (34.0%) on secretarially-appointed 48 (19.6%) on Presidentially-appointed In 1975, 31.5% of the 457 committee appointments made by the President and Secretary were women. Their p~~icipatiofl on * Advisoi~y Councils has thus increased 4.8% (from 25.6% to 30.4%) iii 1975. ~1oreover, had all the Secretary's nomii~iUons to the White House for Presidentially-appointed Councils been accepted, there would have been 55 (22.4%) women on HEW Presidentially- appointed Councils, or 309 (31.1%) altogether. PAGENO="0213" 207 Page 3 MINORITIES As of December 19, 1974, there were 179 (20.3%) minority representatives in all categories -- Black, Asian-American, ~anish-Speaking, and American Indian -- in encumbered positions on HEW advisory Councils and Committees appointed by the President and Secretary. By December 31, 1975, there were 234 minority representatives overall (23.6%) appointed to Councils and Committees by the President and Secretary. There was therefore an increase of 3.3% (from 20.3% to 23.6%) ininortEj ~presentaETonon ~ advisory committees ~Tng ~Iindar year 1975. Furthermore, 5T~d all .of~the Secretary~s ~ommend~i~ns to the White House been accepted, there would have been 258 (26.0%) minority representatives altogether -- an increase of 5.7%. A. Blacks As of December 19, 1974, there were 84 (9.5%) blacks in encumbered positions on HEW Advisory Councils appointed by by the President and Secretary: * 55 (8.6%) on Secretárially-appointed 29 (11.8%) on Presidentially appointed As of December 31, 1975, there werelli (11.2%) blacks on such Councils: 86 (11.5%) on Secretarially-appointed 25 (10.2%) on Presidentially-appointed * During 1975, 61 (13.3%), of the 457 Committee appointments made by the President and Secretary to HEW Advisory Councils and Committees were blacks. Black ~~4cipation on advisorj Councils has thus increased 2~6% (from 8.6% to 1l~%Fduri~ 1975. Ha~lI~e~ecretary'nOmi~i0fl5 to the White ~3iThe been accepted, there would have been 26 blacks (10.6%) on Presidentially-appointed HEW Councils and Committees -- a total of 112 (11.3%) altogether. PAGENO="0214" 208 Page 4 B. Asian-American As of December 19, 1974, there were 30 (3.4%) Asian-AmeriCans in encumbered positions on HEW Advisory Councils or Committees appointed by the Presi~ent and Secretary: 18 (2.8%) on secretarially-appointed 12 (4.9%) on Presidentially-appointed As of December 31, 1975, there were 34 (3.4%) Asian-Americans on such Councils: 30 (4.0%) on Secretariallyappointed 4 (1.6%) on.PresidentiallyaPPOinted During 1975, 23 (5.0%) of the 457 Committee appointments by the President and Secretary were Asian-American. Asian- America~ participati~i~ thus increased .03% (from 3.39% to 3.42%) in~l975. There was n~difference between the number and percentage of Asian-Americans recommended by the * Secretary to the White House and the number and percentage actually appointed by the President. C. * ~panish-Speakii~9~ * As of December 19, 1974, there were 44 (5.0%) spanish-speaking Americans in encumbered positions on PresidentiallyaPpointed * and secretariallyappoiflted HEW Advisory Councils and Committees: 26 (4.1%) on Secretariallyappoiflted * * 18 (7.3%)on Presidentially-appointed As of December 31, 1975, there were 64 (6.5%) spanish-speaking Americans on such Councils: 52 (7.0%) on secretarially-appointed 12. (4.9%) on Presidentially-appointed PAGENO="0215" 209 Page 5 During calendar year 1975, 38 (8.3%) of all HEW Council/ Committee appointees selected by the President and the Secretary were Spanish-speaking. ~nish-speaking parti cipation on Advisory Councils thus increased 2.0% in 1975 (from 5.0% to 7.0%Y. Had all EEé Secretary's.recom- mendati~ to the wi~ite House been accepted, there would have been 14 (5.7%) Spanish-speaking members on Presi- dentially-appointed HEW Councils and Committees -- a total of 66 (6.7%) altogether. D. American Indians As of December 19, 1974, there were 21 (2.4%) Indians in encumbered positions on HEW Advisory Councils and Committees appointed by the President and Secretary: 10 (1.6%) on Secretarially-appointed 11 (4.5%) on Pre.sident~iálly-appointed As of December 31, 1975, there were 28 (2.8%) Indians on such Councils: 21 (2.8%) on Secretariàlly-appointed 7 (2.9%) on Presidentially-appointed During calendar year 1975,22 (4.8%) of the 457 Committee appointments were Indians. Indian participation on Advisory Councils thus increased .4% ~(from 2.4% to 2.8%) in 1975. Had all the Secretary's nominations to~Ee White House ~ accepted, there would have been five Indians (2.0%) on Presidentially-appointed HEW Advisory Councils and Committees for a 26 (2.6%) total, or two (0.2%) less altogether. PAGENO="0216" 210 Page 6 STUDENT/YOUTH As of December 19, 1974, there were 40 (4.1%) student/youths in encumbered positions on HEW Advisory Councils and Committees appointed by the President and Secretary: 28 (3.8%) on Secretarially-appointed 12 (4.8%) on Presidentially-appointed * .As of December 31, 1975, there were 60 (6.1%) student/youths on * such Councils: 49 (6.6%) on.Secretarially-appointed 11 (4.5%) on Presidentially-appointed During calendar year 1975, 30 (6.6%) of all Committee appoint- ments made by the President and Secretary were student/youths. Student/youth participation on Advisory Councils therefore in- creased from 4.1% to 6.1%. between 1974 and 1975. Had all the ~cretary's n~ina~Tons to the White House been accepted, there would have been 13 (5.3%) student/youths on Presidentially- appointed HEW Advisory Councils -- 62 (6.3%) altogether. PAGENO="0217" 211 GEOGRAPHY Page 7 In striving to attain a geographical balance on all Departmental Advisory Councils and Committees appointed by the President and the Secretary, OSP has divided the country into four distinct geographical regions: Northeast, South/Southwest, Midwest, and Far West. The states in each region are as follows: Northeast South/Southwest Midwest Far West Alabama Arkansas Florida Georgia Kentucky Louisiana Mississippi New Mexico Connecticut* Delaware Maine Maryland Mas sachusetts New Hampshire New Jersey New York Pennsylvania Rhode Island Vermont District of Col. Puerto Rico. Virgin Islands Illinois Indiana Iowa Kansas Michigan Minnesota Missouri Nebraska North Carolina Oklahoma South Carolina Tennessee Texas Virginia West Virginia Alaska Arizona California Colorado Hawaii Idaho Montana Nevada Oregon Utah Washington Wyoming North Dakota Ohio South Dakota Wisconsin According to the Census Bureau on these regions is mid-decade census figures released by the U.S. Dec. 12, 1975, the total population for each of as follows: Northeast: South/Southwest: Midwest: Far West: 58,045,000 63,869,000 57,669,000 36,732,000 As of December 19, 1974, the peràentage of members by region of Departmental advisory councils and committees appointed by the President and Secretary was as follows: Northeast: 29.9% South/Southwest: 26.1% * Midwest: 23.2% Far West: 20.8% As of December 31, 1975, the percentage of members by region of Departmental advisory councils and committees appointed by the President and Secretary was as follows: Northeast: 29.2% * South/Southwest: 24.9% * * Midwest: 23.7% * Far West: 22.2% PAGENO="0218" 212 Page 8 As of December 19, 1974, the number* and percentage of all' Presidentially and Secretarially-appointed Departmental Advisory council and committee members by state was as follows: *Melpbership figures by state for 1974 are incomplete because some data, particularly for Presidentially-appointed councils, is missing. It is doubtful, however, that the percentages by state would differ significantly from the above if geographical data onall mentherswereavailable. Alabama 15 2.3% Nevada 1 .1% Alaska 5 .6% New Hampshire 2 .3% Arizona 13 1.9% New Jersey 17 2.6% Arkansas 4 .6% New Mexico 12 2.2% California 64 16.8% New York 51 8.0% Colorado 9 1.4%. North Carolina 13 2.0% Connecticut 7 1.1% North Dakota 3 .4% Delaware 1 .1% Ohio 20 3.1% Florida 14 2.2% Oklahoma 12 1.9% Georgia 11 1.7% Oregon 5 .7% Hawaii Idaho `Illinois 4 1 20 .4% .1% 3.1% Pennsylvania . . Rhode Island South Carolina 29 2 3 . 4.6% .3% .4% * Indiana 6 .9% South Dakota 9 1.4% Iowa 6 .9% Tennessee l4* 2.2% Kansas 8 1.2% Texas * . 31 4.9% Kentucky 9 1.4% Utah 9 14% Louisiana 4 .6% Vermont 2 .3% Maine 1 .1% Virginia 18 2.8% Maryland Massachusetts 21 29 3.1% 4.4% *Washington 17 West Virginia 2 2.6% .3% Michigan 27 4.2% Wisconsin 5 .7% *Minnesota 21 3.3% Wyoming 1 .1% * Mississippi 2 .3% District of Col. 21 3.1% Missouri 13 2.0% Puerto Rico 4 .6% Montana 2 .3% Virgin Islands 1 .1% Nebraska. 9 1.4% PAGENO="0219" 213 *Menthership figures by state for 1974 are incomplete because some data, particularly for Presidentially-appointed councils,. is missing. But it is doubtful that the percentages by state would differ significantly from the above if geographical data on all members was available. Page 9 As of December 31, 1975, the :,n~er* and percentage of all Presidentially and Secretarially-appointed Departmental advisory coun~i1 and committee members by state was as follows:. Alabama Alaska Arizona Arkansas `California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho. Illinois Indiana Iowa Kansas Kentucky. Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska 22 2.9% 7 .9% 17 2.2% 5 .7% 76 10.1% 12 1.6% 6 .8% 4 .5% 18 2.4% 8 1.0% 5 .6% 2. .2% 27 3.6% 8 1.0% 7 .9% 14 1.8% 7 .9% 8 1.0% 3 .4% 28 3.7% 29 3.8% 27 3.6% 19 2.5% 2 .2% 13 1.7% 1 .0% 10 1.3% Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming District of Col. Puerto Rico Virgin Islands 1 1 20 17 64 15 7 22 11 9 33 2 5 9. 13 33 11 4 21 21 2 10 1 20 4 1 .1% .1% 2.5% 2.2% 8.1% 2.0% .9% 2.9% 1.4% 4.4% `3% .6% 1.2% 1.7% 4.4% 1.4% .5% 2.8% 2.8% .2% 1.3% .1% 2.6% .5% .1% PAGENO="0220" 214 Page 10 During calendar year 1975, the President and Secretary appointments to Departmental * Of these 457 appointments, the ~was as follows: . advisory councils and committees. number and percentage by state .* Alabama .. 13 .2.8% Nevada 2 .4% * Alaska 2 .4% New Hampshire 2.5% Arizona 6 1.2% Arkansas 1 .2% New Jersey 12 New Mexico 15 3.2% California 56 11.0% New York* 30 5.4% Colorado . 8 1.7% North Carolina 6 1.2% Connecticut 9 1.9% North Dakota 3 . .6% Delaware 4 .8% Florida . 12 2.5% Ohio -. *l3 2.8% Oklahoma 4 .8% Georgia 9 1.9% Hawaii 4 * 8%~ Oregon * 9 1.9% Pennsylvania 19 4 * 1% Idaho * 3 .6% Rhode Island .2%. 1.2% Illinois 20 4.3% South Carolina 6' Indiana 7 1 * 5% South Dakota * 3 * 6% 1 9% Iowa * 6 1.2% Tennessee * * Kansas 8 1.7% Texas 21 4.5% Kentucky . . 5 1.0% Louisiana 4 .8%* Utah 3 .6% Vermont 3 * 6% * Maine 3 .6% Maryland 21 * 4.5% Massachusetts Il 2.3% Michigan 22 4.7 Minnesota 9 2.3% Mississippi . 1 .2% Missouri 7 1.5% * Virginia 16 3.4% Washington 15 3.2% West Virginia 1 .2% Wisconsin 9 * 1.9% Wyoming 2 * .4% District of Col. 6 1.2% Puerto. Rico 4 .8% Montana 1 .2% Nebraska 6 1.2% Virgin Islands . . * * . PAGENO="0221" 215 Page 11 According to the Census Bureau, as mid-decade census figures released of July,, 1975, the population of by the U.S. the U.S. by state was as follows: . Alabama 3,614,000 Nevada 592,000 Alaska 352,000 New Hampshire 818,000 Arizona 2,224,000 New Jersey 7,316,000 Arkansas California 2,116,000 21,185,000, New Mexico New York 1,147,000 18,120,000 Colorado 2,534,000, North Carolina 5,451,000 Connecticut 3,095,000 North Dakota 635,000 Delaware Florida . 579,000, 8,357,000 Ohio Oklahoma 10,759,000 2,712,000 Georgia Hawaii 4,926,000 865,000, Oregon Pennsylvania 2,218,000 11,8;7,000 Idaho 820,000~ Rhode Island 927,000 Illinois Indiana 11,145,000 5,311,000 South Carolina South Dakota 2,818,000 683,000 Iowa 2,870,000 Tennessee 4,188,000 Kansas 2,267,000 Texas 12,237,000 Kentucky 3,396,000 Utah 1,206,000 Louisiana 3,791,000 Vermont 471,000 Maine Maryland Massachusetts 1,059,000 4,098,000 5,828,000 Virginia Washington West Virginia 4,967,000 3,544,000 1,803,000 Michigan Minnesota 9,157,000 3,926,000 Wisconsin Wyoming 4,607,000 374,000 Mississippi 2,346,000 District of Col. 716,000 Missouri 4,763,000 Puerto Rico 3,096,000 Montana Nebraska 748,000 1,546,000 Virgin Islands . 95,100 PAGENO="0222" I. :4 DJ1E~1 ADV'CSORY COUNCIL AND COY~MXT~EE REGIONAL BOUND~.P..TE~ North~a~t: NE N4.dwest: *MT~T South"~outh"est: S~T Far West: ~`J. PAGENO="0223" E. List Of All Presidentially-Appointed and Secretarially- Appointed Advisory Councils and Committees OFFICE OF THE SECRETARY Code ~n Date Members * : 018 Board of Advisors to the Fund for the Improvement June 30 15 of Postsecondary Education (Secretary) CASE) 021 Secretary's Advisory Committee on Rights and : June 30 Responsibilities of Women (Secretary) (P~E) 022 Consumer Advisory Council (President) 12 (Office of Consumer Affairs) 025 President's Committee on Mental Retardation Mny 11 21 (President) (LID) 026 Federal Council on the Aging (President) (LID) (PAS) June S is 035 National Planning and Advisory Council 28 (Secretary) (LID) . 036 Advisory Council on Education Statistics CASE) 7 037 Rehabilitation Services National Advisory 19 Committee (LID) - - 038* National Advisory Council on Services and Dec. 31 20 Facilities for the Developmentally Disabled (LID) PAGENO="0224" HEALTH AFFAIRS En din~ Date National Commission for the Protection of Human Sept 10, 1976 Subjects of Biomedical and Behavioral Research (Secretary) National Professional Standards Review Council Ju~te 1, 1976 (Secretary) Health Insurance Benefits Advisory Council Nov. 10 (Secretary) President's Biomedical Research Panel (President) Secretary's Advisory Committee on Population Mar. 31 Affairs (Secretary) * Review Panel on New Drug Regulation * National Drinking Water Advisory Council (EPA) President's Council on Physical Fitness and Sports At the `pleasure of the Pridcnt~~~ Code ii 001 003 004 005 006 007 008 009 Members 11 11 19 7 12 7 15 14 PAGENO="0225" NATIO~1AL INSTITUTES OF III1ALTH Code Ending Da~ !~c~ber~ NIH 036 Advisory Committee to the Director, NIH June 30 16 (Secretary) : 037 Sickle Cell Disease Advisory Committee (Secretary) June ~0 11 040 Board of Regents of the National Library of August 4 * * . 10 Medicine (President) (PAS) 050 National Advisory Environmental Health Sciences Sept. 30 12 Council (Secretary) 053 National Advisory Allergy and Infectious Diseases Sept 30 15 * Council (Secretary) . 055 National Arthritis, Metabolism and Digestive Sept. 30 * 18 J)iseases Advisory Council (Secretary) 057 National Advisory Child Health and Human Sept. 30 . 14 Development Council (Secretary) 062 National Advisory Dental Research Council Sept 30 12 (Secretary) * 063 National Advisory Eye Council (Secretary~' Sept. 3Ô * 12 064 N'~tional Advisory General Medical Sciences Sept 30 ~ 12 Council (Secretary) 066 National Heart and Lung Advisory Council ~Sept 30 18 (Secretary) PAGENO="0226" NATIONAL INSTITUTES OF HEALTH LONT'D ode Ending Date ~iernbers `1111 D67 National Advisory Neurological Diseases and Sept 30 12 Stroke Council (Secretary) 070 National Advisory Research Resources Council Sept. 30 12 (Secretary) 071 National Cancer Advisory Board (President) Wirch 9 18 072 President's Cancer Panel (President) Varies 3 073 National Advisory Council on the Aping Sept 30 17 074 National Coimnission on Diabetes 17 075 National Commission on Arthritis 11 PAGENO="0227" HEALTH RESOURCES ADMINISTRATION Endi~j bate Meinber~ HRA 087 Federal Hospital Council (Secretary) 4 yrs from date 12 of `tcceptance 088 National Advisory Council on Health Sept 30 20 Professions Education (Secretary) National Advisory Council on Nurse Jan. 31 Training (Secretary) National Advisory Public Health Training June 30 Council (Secretary) National Council on Health Planning and Development (Secretary) . National Advisory Council on Regional Medical Nov. 30 Programs (Secretary) 092 093 095 099 .19 12 15 20 PAGENO="0228" HEALTH SERVICES ADNINISTRATION ode ~j~g Date Members ~SA 101 Indian Heal?h Advisory Committee (Secretary) June 30 i 102 National Advisory Council on Health Manpower 1.. :1 June 3~1 15 Shortage Areas (Secretary) . i 103 Interagency Committee on Emergency Nedic-tI Sept 30 5 Services (President) PAGENO="0229" 5~. 9. ALCOHOL, DRUG ABUSE, AND MENTAL HEALTH 1.. Code ADMINISTRATION Ending Date McTnber~ ADA~-IA 077 National Advisory Mental Health Council Sept. 30 * 12 (Secretary) ~078~ ~N~tiö~á)AdviSOr~ Council on Alcohol Abuse, April 30 :.~l2 and Alcoholism (Secretary) 12 079 080 081 National Advisory Council on Drug Abuse Interagency Committee on Federal Activities for Alcohol Abuse and Alcoholism National Panel on Alcohol, Drug Abuse and Mental Health PAGENO="0230" Code FDA 137 FOOD AND DRUG ADMINISTRATION National Advisory Food and Drug Committee (Secret ary) Memb ci's 18. PAGENO="0231" Code SOCIAL SECURITY ADMINISTRATION ~~j~nDa~ flernbcrs SSA 240 Advisory Council on Social Security Ja I (Secretary) U PAGENO="0232" L~is~u~L D'itc `Ju1~7 NATIONAL INSTITUTE OF EDUCATION Code NIE 242 * National Council on Educational Research (President) (PAS) Memb C rs * `15 PAGENO="0233" Advisory Committee on Accreditation and:Ir~stitutjona1 * Eligibility (Secretary) National Advisory Council on Adult Education (President) * National Advisory Council on Indian Education (President) Advisory Council on Developing Institutions (Secretary) NatjonalAdvir~Cbunè~1 for Career Education (Secretary) * Advisory Committee on the Education ofBilingual Children (Secretary) National Advisory Council on the Education of Disadvantaged Children (President) Nnt~onii1 Advisory Council on Education Professions Development (President) Community Education Advisory Council (Secretary) National Advisory Council on Ethnic Heritage Studies * (Secretary) d National Advisory Council on ~ilingual Education OFFICE OP EDUCATION Code OE 145 146 147 148 150 151: 152 153 154 155 i4~ngJ~ate ~bcrs June 30 * 15 Junc 30 15 At the pleasure ~ 15 of the President 7 Nov. 18 12 June30 * 1$ Sept. 15 15 April 26 * 1S Nov. 18 1]. * -~** 15 * ~15 PAGENO="0234" N'ttional Advisory Council on Extension and Jun~.30 12 Continuing Education (President) Advisory Council on Financial Aid to Students June30 21 (Secretary) Advisory Council on Women's Educational Programs 17 (President) (PAS) National Advisory Committee on the Handicappôd June 30 15 (Secretary) National Advisory Council on.Equality of At the pleasure * 15 Educational Opportunity (President) of the President Nation'il Advt'~ory Council on Supplementary Centers Jan 31 12 and Services (President) -~ National Advisory Couneil on Voeationnl flducntion Jan. 17 21 (Pros idonl) ~ `~ National Advisory Council on Environmental 21 Education (Secretary) OFFICE OF EDUCATION CONT'D Code nfl 156 157 159 160 161 167 169 170 PAGENO="0235" `~JCnftc?~ ~fafcz r~crn~fc C0MMITT~ ON LABOR AND PUBLIC WELFARE WASHINGTON D.C. 20510 February 3, 1976 Honorable David Mathews Secretary DeDartment of Health, Education and Welfare 330 Independence Avenue, S. W. Washington, D. C. 20201 Dear Mr. Secretary: Thank you very much, for your letter of December 11th in response to our earlier inquiry relating to appointments to the various national advisory councils, committees, and boards, which serve the National Institutes of Health and the Alcoholism, Drug Abuse, and Mental Health Agency. We have also received the comprehensive report on this subject, dated Januaty 22, 1976, from Mr. William S. Ballen- geT, Assistant to the Secretary for Special Projects, as well as a report from the General Accounting Office. We are extremely gratified to learn that the concerns which we expressed in our letter were unfounded, and that whatever nay have been the situation earlier, you have shown impressive leadership in quickly and effectively filling all outstanding vacancies with able professional and lay members. These advisory bodies play an important role in assisting the National Institutes of Health and ADAMHA in fulfilling their missions, and it is reassuring to us that appointments have been made and will continue to be made in the best public interest. ~ Edward M. Kennedy, ChJir~nan Member Senate Health Suhco~anuittee Welfare / PB~L LAXALT NLV. 229 Jacob P~ankin/~Minority Laborañd ~1uh1ic Connittee 1.8 PAGENO="0236" 230 DEC ii ~975 L1dent~al letter was forwarded to Senator Javits~3 `The 1~norab1o tdward V. ~Zennedy - Chairnan, fonate ilealth ~ubco~ttee Cornri~ittee on Labor and Public Welfare United States Senate Washington. D.C. 20510 Dear Hr. Chairrnari~ - Thank you for your joint letter of ~ovonber 21 also sinned by your colleague, Senator ,T~tcob ~. ~7~vits. I appreciate your sharing with me your concern rac~arding the selection of candidates to serve on Departmental advisory cor~itteef. si't pleased to report that cjreat prooress has boon rtade in filling all D~part.~or~ta1 advisory comuittee vacancies since the L-c»=c~inniug of this year. On January 6, l~73, there ware 107 vacancies on Secrotariallr-eppointod councile and comoittoas, 71 of these in ~;I~I alone. ~s of this writing, only 11 vacancies on all S cretaria1ly~appointed counci1~ and cossi~ittons remain. ~ktle it is true that all 11 of these vacancies arc on a single co~ittee the Mvisory Co~ittee to the Cir~ctor at Nit! this is px~ineipa1ly because there was no p~rr~anent director of ~ZIH for some eight months before Dr * Frederichson was ~orn in last July. it was ths ctrona feelmnq of my predecessor, Casper 11. Weither~er, that no vacancies on the NIt! Director's Mvisox'p Cors~itt~e should be filled before the new Director was arpointed by the President, confirmed, and could mcJ~e his own committee noatmnations * Dr. Frederick non concurred, and he forwarded to me a slate of nominees only last month, which my committee staff! it now processins. I expect to flU. these vacancies in the very near future. I also expect to fill all vacancies on all 57 Socreterially~ eppointed advisory councils and comeittoon onco~passinq several hundred positions whether hea1tb~rolated or otherwise, with equal dispatch. - PAGENO="0237" 231 Page 2 Th~ Honorable Edwa~d. M.2 Keflnedy I kn~ of no ~epartnenta1~ivisory Councils to which n~point-~ r~ents lie-va not been r~e-de in trore than a year's tine after they were authorize-Li by law. All vacancies on all 7DAM~A Ac~visory Councils ~nd Cor~r~ittees have been filled. t rocently, within the 120-dnv tir~o frane for appointir.entg irandated by the Congress, I invit~.l 15 mon and wc~en to serve on the ~ationa1 Advisory Council on ~ As for your other ccricern9,, 1 have asked ny corz~ittee staffing assistant, Mr. ~il1ian S. ~allenger, to give no as'conpiete a rer~rt as his records will provide to forwerd to you. In the neantir~e, the ~iepartmont will cooperate fully with any - i~V~st1~je-tjo~ the Cenoral Accounting Office nay want to unaertake-, I should nention, however, that the Pederal Advisory CoL~nittee Act (P.L. 92-4r3) pn~sed 1~y the Con~r~~, together with ~xecuti.va Order ll7~~, vest rosporiaibjljtjes in the ~)opart~ mont to consider fully the interests of minorities and wonen when the- Secrctary selects oe~'bers for new and existing advisory cce~rd.ttees, The act recuires the ncr~ber&iip of an adviscry Ct .ittect to be fairly balanced in teras of pcints of vinw re~resented and functions to be perforned. Those are political considei~tje-fls which I hope you will agree taunt be weighed. In closing, let ne enohasize that I fully recognize the irportant functic.n ~ serve, and I realize that they nannot be truly eff~ctivo unless the ner~bers are uniquely qualified and actualJy represent the interest of all those concerned, In this regard, I an reviewing our appointnents procedure with the intention of making changes, if necessary, in order to. uphold the dignity of the advisory Com~'itteo system. Cordially, /5/David. Mathews Os Reading 5527N Secretary OSP 4049N * CLO 5443N HEW Files OS~S13ALLENGER/gb 11/28/75 PAGENO="0238" 232 Senator PERCY. I want to thank you very much, indeed, for your testimony this morning. If you would like to comment on that sug- gestion, I would be happy to have your comments. Ms. LYNCH. I would like to, Senator, because I hope you already know that Secretary Mathews has made a very determined effort to open up the workings of the Department to the general public. Not only in the regulatory area but in all areas we are trying to make the Department much more open to the public. We are working with the Governors. We are trying to work with recipients to have a much closer relationship with Congress than we have had in the past. I would like to make a personal comment. During the time I was in the Washington State Legislature I was chairman of a committee and went through exactly what you are going through right now. It was very interesting to see the change that happened when the meetings became open. But there were also times when, for instance, we would be discus- sing questions of tenure, and sitting on my committee were faculty members who were very reluctant to really discuss the question of tenure with some of their own peers sitting in the room. I think we have to be particularly sensitive, as you put it, Senator Percy, to those areas where we justifiably should be in closed session. I can assure you that our department is aware of that, and we are much more conscious of it. Senator PERCY. I am looking forward very much to a forthcoming meeting with Secretary Mathews. I know he is reaching out and doing a fine job, and you are too. Do you believe that if we were to eliminate exemption 5, but retain a specific exemption for peer review meetings and other such specific problem areas, this would be a step in the right direction and you could live with that deletion better if we did retain that. specific exemption? Ms. LYNCH. I think that is essential. Senator PERCY. I would be prepared then to support that position. Thank you very much, indeed. I appreciate your appearance today, all of you. Ms. LYNCh. Thank you, Senator. Senator METCALF. Thank you very much, Senator, for your assis- tance and your continued contribution to this important area. Various materials you submitted will be incorporated in the record at the appropriate place. I was going to lead up to about the same thing that Senator Percy has discussed, Madam Secretary. In this Bicentennial year we haYe to recall that the Declaration of Independence and the Constitution were drafted in closed execu- tive session. The only leaks were such things as old, senile Benjamin Franklin told the parties after the meeting every day, or something of that sort. Today I suppose we would be appalled at the kind of secrecy that they had at that time. Maybe they needed it at that time. But it isn't any excuse to say, "Well, we have had this for 20 years," as Senator Percy pointed out or, "This is the way we have always done it." PAGENO="0239" 233 Because, as Senator Perc~ told you, and as you have experienced, we have gone through that with our own legislative process. We just opened up conference cOmmittees for public viewing. I want to ask how many of your committee meetings have been closed. Can you tell us that? Mr. M~~TTIIEIs. Mr. Chairman, speaking on behalf of the Division of Education. I suspect that all of our committees at some point Hi time have been closed. Ours have been closed, if not almost solely, at. the time they were discu~sing Personnel matters. Other than that, the committees in the Education Division, except for the peel review and NIE, I think, are now literally totally and al)sOlHtely Open. isls. L~xc.ir. I think Dr. Fredrickson would like to comment. Dr. FiiEDRICKSOX. Mr. Chairman, we have about 172 committees in the National Institutes of Health today. because of the highly specific areas of technical expertise that. we are required to use in evaluating biomedical research proposals. These groups had 73 en- tiretv open meetings last. year and 410 were partially closed. They are all open for a. portion of the time. The closed portions have been rigidly held to the instances in which contracts or grants were under review. Senator METCALF. These examples are sufficient to bring out. the pomt. with which we are concerned and I know you are concerned, and with which I know the Secretary himself is concerned. It would seem that. such a, large proportion of meetings of such an agency as Health. EducatiOn, and WTelfare, closed or partially closed, would indicate that. there hasn't been a sufficient compliance with the provisions of the act. I recognize. as Senator Pth'cy dicT, and as other people on this committee do, the force of your argument, Madam Secretary. You are dealing with a great deal of. sensitive material and some of these things should be in executive session. Yet I don't think that people of the stature to advise a Cabinet officer or the President of the Tnited States should be inhibited by the kind of discussion that might. rouse inhibitions about public meetings down at a lesser level. But with such a. high percentage of closed sessions, it would seem to me that you could look at it with a. point of view of opening these meetings instead of with a point of view of closing them. We get along now with about 90 percent of our senatorial markups and other committee meetings open. I would hope that you could try to achieve something similar at your agency, rather than this high percentage of partially closed meetings. Ms. LYNCH. Mr. Chairman, , I am quite sure that the Secretary and I will be taking a look at this. Senator METCALF. In your new year. Ms. LYNCH. Yes. Senator METCALF. I am not making a criticism of your activities or of your administration. Ms. Lvxcrr. It is appropriate that the Department itself should take a look at. what we have been doing. The Secretary has just recently started a new regulatory~ unit in which we are reviewing all of our regulations now. PAGENO="0240" 234 I am quite sure that we will be working with Dr. Fredrickson and will' discuss this with him. But again I have to stress that as a professional person. I think he probably is as well equipped as any- body to make the decision, when it is necessary that they be closed. I can assure you that the Department will make that attempt to take a look at what we are doing. Senator METCALF. I suppose that you have had some of the mem- bers of your agency monitoring these hearings and have been in- formed of some of the discussion about elimination of section 5. Now we have come to the conclusion that instead of incorporating by reference the Freedom of Information Act, we need to have more specific legislation directed at advisory committees. Ms. LYNCH. Yes. Senator METCALF. I don't think any of us on the committee in- tended to eliminate completely the opportunity to make the decision to have an executive session or a closed session or a preferential session to protect trade secrets or personalities that are involved. We have come to a time in which the Freedom of Information 4ct is perhaps no longer a way of action, and maybe we have to have some modification. We would be delighted, with your experi- ence in hundreds of these committees, to have you give us some advice as tO what modifications we can make. Ms. LYNCH. I do not have any specific recommendation at this moment, Mr. Chairman. But I would like to work with the committee. Senator METCALF. I know you prefaced your opening statement by saying you have been here only 3 months. I am delighted to have you here today in the early part of your tenure. But some of your people down there have had some experience in these committees. Ms. LYNCH. I am sure, Mr. Chairman, we would like to submit for the record some recommendations to you if we may? Senator METCALF. Would you do that? Ms. LYNCH. Yes; we will, Mr. Chairman. [The recommendations follow:] Section 110 of the National Cancer Act contains a strong endorsement by the Congress of the peer review system utilized by the Public Health `Service agencies for review of scientific and technical proposals. The Department believes that the continued success of the peer review system depends, in large measure, on creating a climate for discussion which promotes candor, frankness, and the expression of unreserved honest opinions. Such a climate cannot be maintained unless the confidentiality of the views of mdi- viduals can be assured. A survey of the views of persons presently involved in the review of research grant applications submitted to Public Health Service agencies is currently being conducted by the National Institutes of Health. Although the survey is not yet complete and the data has not been fully analyzed, it is already evident that an overwhelming majority of those involved in the system believe that the preservation of confidentiality in meetings held for the purpose of reviewing research proposals is clearly in the public interest. The trend of this preliminary data supports the view that candor and therefore the quality of review would be diminished if such meetings were to be opened to the public. Therefore, we suggest that if exemption (b) (5) of the Freedom of Informa- tion Act is removed as a basis for closing to the public meetings of advisory l)odies, a specific exemption be included in the Federal Advisory Committee Act amendments which will allow agency heads to make a determination to close those portions of advisory committee meetings in which a review of scientific PAGENO="0241" 235 or technical research or research training proposals and a review of the capa- bilities of investigators and technicians to carry out proposed research are being conducted. Furthermore, it is recommended that agency heads be authorized to make a determination that portions of advisory committees be closed to the public when the committee is reviewing information or data which is part of a clinical trial, provided that premature release of such information could jeopardize the pur- pose for which the trial is being conducted, and provided further that the information shall be made available to the public when the trial is completed. Senator METCALF. Here are two other things with which we have been concerned. You mentioned disclosure and recording, and so forth, of broad based committee meetings, and even in the technical committees it seems to me you failed in your agency to give the broad representation that we would like to have for the necessary give and take in advisory committees. Even if it is a closed meeting or an executive session, some inter- change of ideas-rather than simple agreement-would seem to me to be. desirable to the Secretary and his staff, as well as to everyone else. Ms. L~xcii. We are right now. Mr. Chairman, reviewing all of our committees. I am quite sCre that the Secretary feels the same way, that we do need a broader base than we have had. It is my understanding that we have dOne a. better job in this last year than we have done in the past. I think it is particularly important that we review the number of committees we have. I don't think we want to proliferate commit- tees particularly. I think we have to be sure that the people we have serve on the committees really have the technical expertise the con- sumer expertise-or whtever it is we are looking for-to get the kind of information that we need ~s we deliberate in whatever area. is involved. Senator METCALF. You know, it is rather astonishing that you have 373 advisory committees. Mr. BALLENGER. 321. Senator METCALF. 321 advisory committees in one agency. Another suggestion has been made here this week that maybe using open hearings on special matters instead of advisory committees would eliminate some committees and still achieve public and expert input. I hope that, in your reappraisal, you will look into that avenue too. Ms. LYNCH. Mr. Chairman, in the area of regulation reform, we are very definitely going to utilize the method of public hearings. We will in all probability be, having public hearings across the country. It is one of the areas where the Secretary feels we can get input, only from special interest groups, but allow the recipient to be heard. Many times in our programs we don't really hear from the recipient. We get the information from organizations that are interested, but may times we don't really hear from the recipients of our programs. So the Secretary does very definitely intend to do this. Mr. MATTHEI5. If I could add' this, Mr. Chairman. Madam Secre- tary, the advisory committees that we have in the Division of Educa- tion largely are combining the two aspects of the activity that you have just discussed. 70-4260-76-16 PAGENO="0242" 236 I think most of our advisory committees presently have, in some form or other, hearings themselves; so they not only are function- ing and organized with as broad a base as we are ever able to assemble, but they go out across the country and hold what are inter- preted loosely or in some cases very specifically as open hearings to get input from the public itself. Mr. BALLENGER. I am Bill Ballenger, assistant to the Secretary. I would like to add that. as you probably know, the number of com- mittees in HE\~\T has been slashed in half since the Advisory Com- mittee Act was originally passed. There are now just over 300, 321, whereas there used to be over 600. I might also mention that, during calendar year 1975, 17 commit- tees were allowed to expire and 9 more were abolished. The prob- lem is this. I think that to a lot of people who are critical of the advisory committee process and mechanism, it looks like the fabled hydraheaded monster of mythology, when you lop off one, another one springs up in its place somewhere else. The problem is a lot of the committees are not created by the Department. They are created by the Congress. They are created by Presidential directive. In some cases they are created because of pro- gram necessity as a result of various laws passed in the legislation. Senator METCALF. Yes. We have acknowledged here that the Congress is just as guilty as anybody. I know that every time you send a~ proposal over to the legislative drafting office, the legislative draftsman just puts in boiler-plate language for an advisory commit- tee. The language comes back to you with a blank for 5 or 12 or 17 committee members. or whatever, and you just fill it in. \~Te have created them with a fine and lavish hand, just as the agencies have done. \~\Te will have to discipline ourselves. I hope that you will give us some guidelines as to how we can practice self-disci- pline in this area. Dr. FREDRICKSON. Mr. Chairman, may I add one point to the line of thought you developed a moment ago. In the field of bio- medical science and research we too are cognizant of and striving to abide by both the letter and the spirit of the law. I think a new openness between scientists, technologists, and the public has been encouraged from every corner. It is to our advantage, and in fact it is our great responsibility, to see that we encourage and make this possible. Last month we had an open meeting on a highly complex tech- nical subject related to genetic engineering. We found that to open this meeting to the public with public testimony and an extensive hearing record was of extreme~ benefit to both science and to the public in airing this issue. I would like to point out, Mr. Chairman, that most of our com- mittees-and we have a large number-exist without question, for the protection of the public interest. For establishing priorities for the public expenditures wInch are now large in the field of supportive research, it is clear that the public is entitled to the best quality discussion as to where that money should go and who should be supported. PAGENO="0243" 237 It is entirely in the public interest that we have spoken to the issue of preserving confidentiality in the discussion of issues that relate to personalities and individuals. It is entirely at the ad hOminem problem that we are directing our need to close some of these meetings. I can asure you that I agree with Mr. Lynn's statement in part; we do need open and broad hearings. But I feel that our responsibility to the public requires that in many instances we must rely on committees to pro- vide us with maximum quality of review of research applications. If I knew any other way, to get high quality review, without closing these deliberations, I most certainly would espouse that system. But we do feel responsible for, and are receptive to, your sugges- tion that we must be sure we ~1On't abuse this important privilege. Senator METCALF. I want to join Senator Percy in the plea that you can help the Congress, and. we will try to help you in reorganizing that sprawling Department down there at HEW. When I was a sophomore in high school, which is so long ago that I can hardly remember it, the debate subject for the State of Montana was "Resolved: There Should Be a Secretary of Education in the President's Cabinet.." I got to Congress in time to vote for the creation of a Department of Health, Education, and Welfare, and I have seen it grow and develop. I am certainly not regretting that vote, but it is a Depart- ment which I once described to somebody in your agency as un- wieldy. He said, "No, it is wielñy." I didn't know there was such a word. But it is a big new Department and it covers a whole lot of subjects. You do need help and guidance from the public and the public interest requires that people be heard. Sometimes I suppose it requires that they be heard in closed sessions and in confidential meetings. However, we have had less cooperation from your agency than any other. Yesterday, for example, Mr. Reuben Robertson-did some- body tell you about Mr. RobertsOn's testimony? Mr. BALLENGER. Yes. Ms. L~YNcIi. I just heard about it this morning, Mr. Chairman. Senator METCALF. He is legal director of the Aviation Consumer Action Project. He has been conflected with several suits that have attempted to open up some of these committees. He made some charges about section 5 closure of Food and Drug Administration advisory committee meetings. I don't know whether this is the time to have you respond to that or not. Would you like to respond to that? Ms. LYNCH. Mr. Chairman, I do have two members of FDA here with me. Mr. Sam Fine, who is the Associate Commissioner of Com- pliance. and Tom Scarlet.t, who is the Associate Chief Counsel: They would both be very happy to answer any questions now, if you would like to ask them. .~. Senator METCALF. I would like ~. to give you a little more oppor- tunity to read his testimony. Have you had an opportunity to read Mr. Roberston's testimony? PAGENO="0244" 238 Ms. LYNCH. No, sir, and I would appreciate additional time to study it. Mr. FINE. I read it just this morning, right before I came over, Mr. Chairman. Senator METCALF. I wonder if you would, Mr. Fine or someone else, get together with our staff. Mr. FINE. I had a call yesterday afternoon from your staff. Senator METCALF. Would you provide for the record a response to Mr. Bobertson's allegations?. Mr. FINE. We would be 1~to~ do that. Senator METCALF. That wffl b i~oi~porated in the record. I hope you would be able to do it soon because I am informed that Congress- man Moss is going to have some hearings on this same subject next Monday. Could we have it so it would be available to Congressman Moss by then? Mr. FINE. We will do our best. Senator METCALF. Thank you very much. Ms. LYNCH. We will provide it to you, Mr. Chairman. [The information follows:] RESPONSE TO TESTIMONY In his prepared statement. Mr. Robertson objects generally to the use of ex- emption 5 of the Freedom of Information Act, 5 U.S.C. 552(b) (5), as a basis for closing advisory committee meetings. He asserts that Federal agencies, ignor- ing the literal application of exemption 5 to `inter-agency" and "intra-agency" matters, have improperly expanded the concept of "executive privilege" implicit in that exemption to encompass the activities of "outsiders who serve on advisory committees." Noting that the rationale of using exemption 5-to promote candid and honest advice from advisory committee members-could swallow the rule that meetings lie public, Mr. Robertson cites as his principal example the Food and Drug Administrations policy of allowing its advisory committees to hold closed de- liberative sessions. He finds it particularly objectionable that FDA should follow this policy because the Agency was ordered to release transcripts of closed meetings of its advisory committee on over-the-counter antacid drugs by Judge Charles R. Richey. who, in Wolfe v. Win eberger, 403 F. Supp. 238 (P. D.C. 1975), made a number of statements indicating that exemption 5 is not available to advisory committees subject to the Federal Advisory Committee Act. We share Mr. Robertson's concern that exemption 5, which was drafted as part of another statute with specific reference to the written records of Federal agencies, may not be a suitable mechanism for assuring candor and frankness in oral deliberations in appropriate circumstances while permitting maximum public accessibility to advisory committee meetings. We also believe it is appro- priate for the Subcommittee to explore the question of whether provisions should be retained in the Federal Advisory Committee Act to protect the confidentiality of advisory committee deliberations. However, we respectfully disagree with Mr. Robertson's analysis of the legal considerations involved in interpreting the Federal Advisory Committee Act as it is now written. Moreover, he miscon- strues the reasons behind FDA's response to the Wolfe decision. 1. Exemption 5 of the Freedom of Information Act is intended not primarily to reflect the doctrine of executive privilege, but to advance the more general public policy favoring "open, frank discussion between subordinate and chief concerning administrative action," EPA v. Mink, 410 U.S. 73, 86 (1973) (quoting Kaiser Alum. d~ Cbeni. Corp. v. United States, 157 F. Supp. 939, 946 (Ct, Cl. 1958), and to protect the integrity of the decisionmaking process. Montrose Cliem. Corp. v. Train, 491 F. 2d 63, 68-~70 (D.C. Cir. 1974). These policies are equally germane to the proper functioning of advisory committees and Federal agencies. Whether, in the case of advisory committees, they are outweighed by competing considerations favoring openness is a fair question. But that question is not answe~'ed by the Federal Advisory Committee Act, for section 10(d) of that Act incorporates exemption 5 by reference as a basis for closing meetings. PAGENO="0245" 239 2. Although advisory committees are not composed of full-time Government employees, they are not strangers to the agencies they advise. In Washington Research Project, Inc. v. hEW, 504 F. 2d 238 (D.C. Cir. 1974), the Court of Appeals held that advisory committee reports to the parent agency can be pro- tected under exemption 5, a result that could not have been reached if advisory committees possess a status no different from that of the public. 3. Mr. Robertson's related point, that exemption 5 cannot be invoked by an advisory committee because it refers to intra- and interagency matters, requires this response. All nine, exemptions to the Freedom of Information Act apply literally only to matters containe,d in written records of Federal agencies. If advisory committees cannot close meetings based on exemption 5 because it re- lates to "Agency" matters, by the same logic they cannot close meetings on the basis of any of the other exemptions, even to discuss national security matters (w-hich, in Mr. Robertson's view-, would be disclosed to "outsiders" if referred to an advisory committee). MoreOver, the Court of Appeals has recognized in dictum that section 10(d) of the Federal Advisory Committee Act makes exemp- tion 5 available to close advisory committee meetings. Washiii.gton Research Pro ject, Inc. v. HEW, supra at 248 ñ.15. 4. Mr. Robertson's fear that the, exemption could swallow the rule is a valid one. We would w-elcome additional legislative guidance on how the legitimate need for candor in advisory committee deliberations on sensitive matters can be met w-ithout unduly restricting publiC access. But we do iiot believe that striking exemption 5 would be any better a' solution f~r advisory committees than it would be for w-ritten Agency records~ The wisest response would be a more par- ticularized standard that takes into account the problems faced by agencies like the FDA, w-hich often refers critical regulatory matters for preliminary evalua- tion to expert technical advisory committees. The public interest is often better served by maintaining a measure of confidentiality in such proceedi~ to avoid premature disclosure of the Agency's likely course of action, as we~' s to pro- mote uninhibited debate by experts who are often reluctant to ex;~ess them- selves unguardedly on issues whose resolution involves scientific judgment but w-ill also have a significant impact on regulated firms. 5. The District Court in Wolfe ~-.`, Wei'nbcrgcr ordered FDA to release ver- batim transcripts of its advisory committee on over-the-counter antacid drugs. Tile transcripts reflected meetings thiit, with a single exception, took place prior to the effective date (January 5, 1973) of the Federal Advisory Committee Act. The Court based its decision on the Freedom of Information Act; it specifically declined to grant relief to Dr. Wolfe by retroactive application of the Federal Advisory Committee Act. 403 F. Supp. at 243. Judge Richey made it clear, how- ever, that were he required to decide' whether exemption 5 is available to close advisory committee meetings, he would hold that it is not (except, possibly, when an internal agency document is under consideration by the committee). But despite Mr. Robertson's rendition, this was not a holding of the court, but an expression of its view-s. Although the Department of Justice disagreed with the Wolfe decision and believed that Judge Richey's reading of the law- w-as in error, it determined, after consulting with FDA, not to appeal. It arrived at this conclusion reluc- tantly. Because Judge Richey chose nOt to place directly in issue the key ques- tion of the availability of exemption', 5 to close advisory committee meetings under tile Federal Advisory Committee Act, obtaining a reversal, it was felt, would require only that the Court of Appeals hold that the meetings that gen- erated the transcripts in issue were, properly closed under Executive Order 11671, which preceded the Act. A reversal on those terms would have had no precedential value for interpreting the Federal Advisory Committee Act, and further litigation would thus have been required to settle the controversy over exemption 5. Moreover, this very issue is directly presented in the case of Aviation Consumer Action Project v. Washburn, No. 75-1086, w-hich was argued in late January and is currently under advisement before the D.C. Circuit Court of Appeals. Because the Wolfe decision did not squarely invalidate the Agency's interpre- tation of the Federal Advisory Committee Act (thus foreclosing meaningful appellate review of the Court's dicta), `,FDA concluded-with the concurrence of the Department of Justice-that it is not obligated to act as if the decision did. On December 15, 1975 (40 Fed. Reg. 58165), the FDA announced the availability of the transcripts that were the subject of Dr. Wolfe's suit, but explained that PAGENO="0246" 240 the Agency would adhere to its policy respecting the availability of exemption 5 for the reasons noted. 6. Mr. Robertson's questions whether closing FDA advisory committee meet- ings is really necessary to permit the free exchange of members' views, avoid undue interference with committee operations, and permit the formulation of candid recommendations. The factors that led FDA to make this finding are set forth in FDA's letter to you of January 9, 1976. Suffice it to add that the use of advisory committees to assist the FDA in making regulatory decisions has ex- panded public access to the Agency's activities by providing a forum for public participation that would not be available if matters now committed to the ad- visory committee process were instead remitted to the exclusively internal deliberations of full-time Agency staff. That this forum is not as open as Mr. Robertson thinks it sl1ould be does not negate this fact. That the process FDA follows can he more open is a goal toward which we intend to work. Mr. TURNER. Mr. Chairman, the staff has prepared some of its own questions, apart from the statement of Mr. Robertson. Perhaps if we could get together we could work together on this. Senator METCALF. Could you give Mr. Fine your questions and the copy of Mr. Robertson's statement and try to get a response, so that if there are any further questions on the House hearing we will cooperate and try to work with them? Ms. LYNCH. We will do that, Mr. Chairman. Senator METCALF. I want to thank you for your appearance today. I know that it takes quite a while to get adjusted down in that. large agency. I hope, along with Senator Percy and my other colleagues who have worked so hard on this legislation, that we can continue to work together and show further improvement in getting rid of some of these committees that really aren't productive, or which have a cost-benefit ratio, similar to what we apply to public construction, that isn't satisfactor~. At the same time, we can try to get a broader base, more disclosure and more attendance, and then we will see where the legislation goes. Ms. LYNCH. Thank you very much, Mr. Chairman. I want to reiterate to you the Secretary's desire to make our Department more open and certainly anything we can do to assist you in that effort we would be more than happy to do. Senator METCALF. Thank you. We look forward to continue to work with you and your staff. My staff is available to you, too, for assistance and help at any time. Thank you for coming. Ms. LYNCH. Thank you, Mr. Chairman. Senator METCALF. Mr. Fine, Mr. Turner, and Mr. Reinemer will be available when it is convenient to you. Mr. FINE. Thank you, Mr. Chairman. [Information referred to and supplied for the record follows:] TESTIMONY OF RICHARD R. HITE, DEPUTY ASSISTANT SECRETARY, MANAGEMENT, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY MOODY R. TIDWELL, III, ASSOCIATE SOLICITOR, GENERAL LAW; AND TIMOTHY S. ELLIOTT, ASSISTANT SOLICITOR, GEN- ERAL LEGAL SERVICES Senator METCALF. We are pleased to have Hon. Richard Hite, the Deputy Assistant Secretary for Management of the Department of Interior. PAGENO="0247" 241 I am glad to have an InteH~r witness over here on my Government Operations Committee. I have some of your agents so many times over on the Interior Committee, on which I also serve. We are pleased to have you here. You have a statement, Mr. Secretary. If you will, identify your colleagues and go right ahead., Mr. HrrE. Thank you, Mr. Chairman. It. is a pleasure to be here. With me at the table on my right our Assoc.iate Solicitor for General Law. Mr. Moody Tidwell; and on my left, Assistant Soiicitor for General Law, Timothy ElliOtt. Mr. Chairman, I have a prepared statement. At your pleasure, I can read it in the record or simply summarize it for you, sir. Senator METCALF. It is your decision. You are here and you may testify in any way you wish. If you want to summarize the state- ment., it will be put in the record as if read at the conclusion of your testimony. Mr. HITE. Thaiik you, sir. I will briefly summarize it. In our statement, Mr. Chairman, we enumerated the number of advisory committees that we. have active now: 111. This is down from a total of 132. committees in 1973 when Public Law 92-463 was enacted. This reduction is attributable to the enactment of the FACA and a review of the committee system throughout the Department, particularly in the Bureau of ~ Land Management. We have dwelled in the prepared statement at considerable length on the BLM revampment of its, advisory system, sir. We did empha- size that, in addition to the impetus supplied by the enactment of public law, this revampment. was attributable to the Bureau's motive to reconstruct the committees,' pursuant to their multiple use concept of land, which has evolved over the past several years. With respect to the review of 5. 2947 itself, we basically recom- mended that it not be enacted, Mr. Chairman, as presently presented. We have five particular points. First, we have observed that enforcement of the basic Public Law 92-463 has increased costs to the Department, at least indireétly in terms of man-hours necessary for that enforcement. More specifically, we are concerned about the amendment to sec- tion 5(b) of the basic act which would provide for public solicitation and one-third representation from the general public on our advisory boards. I would like to emphasize, sir, that most of our boards are func- tioning in very specific disciplines and we feel that our efforts are most positive now to provide adequate counterbalance and repre- sentation on these boards. We also have a reservation, Senator Metcalf, on the amendment to section 10, which sets up a rather involved process to permit the inhibition of closed meetings. The Department had no closed meetings in 1975. We do not envi- sion a great number of closed meetings, but we would suggest to the committee that that option should be preserved. Our final reservation pertains~ to S. 3013, sir, in Senator Percy's second amendment, which would, institute a rather complex tracking PAGENO="0248" 242 system with respect whether the recommendations of the various committees were affirmatively regarded or rejected. In our instance at least, Mr. Chairman, the tracking system would be difficult to enforce inasmuch as with the decision processes in- volved, it may take a number of years to come to fruition. It is very hard to say that advisory board recommendations were voted up or down specifically by the Secretary. Those are ~he major points in our prepared statement, Mr. Chair- man. Of course we would be pleased to answer any questions that you have. Senator METCALF. Thank you very much. I want to compliment the Department of Interior for having no closed advisory committee meetings last year. However, I want to remind you that one of. the reasons why some of those committee meetings were not closed is because the commit- tees didn't meet. One such committee is the Emergency Petroleum Supply Committee. Another is the Foreign Petroleum Supply Committee. They not only didn't meet `ast year, but didn't meet the preceding year. When a committee doesn't. meet for 2 years or even 1 year, isn't it about time to eliminate it, to abolish it? Mr. RITE. We agree with that, Mr. Chaii~man. These two commit- tees that you specifically refer to were created in support of func- tions which have since been spun off from the Department and are under the purview of the FEA. You are quite correct, they have not met for 2 years. It is our plan to either terminate these committees before their statutory ter- mination date or phase them out at that time. The decision hasn't been made, but with this stimulus I will report back to the Secretary and see what action can be taken. I will submit, sir, that the committees which don't meet-and we have a few more that meet very seldom, one that particularly came to mind in the Park Service, the. Preservation of Archeological Artifacts Board-do not cost the taxpayer when they are not meeting. In some cases the mission is such that they would only meet on call of the Secretary or the Bureau Chief involved. Secretary METCALF. I understand that it is well sometimes to have a st.a.ndby committee. I suppose a year or so could go by without such a standby committee meeting. It would seem to me that you would at least reappraise and reevaluate the continued necessity of having that committee on pa.per and then eliminate it, if possible. Mr. HrVE. WTe agree with that, Mr. Chairman. Senator METCALF. Another suggest.ion I have-and I still compli- ment you on the things you have done in BLM-is based on the fact that some of your committees haven't the balance which the act requires. The Foreign Petroleum Supply Committee that didn't meet., the National Petroleum Council, and so forth, consist almost entirely of representatives of the large oil companies. PAGENO="0249" 243 There hasn't been any compliance with the act.. I remember you wouldn't even put Chuck Luce ~. of Consolidated Edison on one of our petroleum committees a few: years ago. Mr. Him. Mr. Chairman, I am sure my Counsel here will recom- mend that I don't address my: remarks specifically to the National Petroleum Council because it is still a subject of litigation. But on the general subject., sir, our position-and it is a subjective one, I admit-is that we have: made sincere efforts to supply each committee with a balanced spectrum of opinion. However, our universe is generally limited, depending upon the function that the committee serves. We have to take the position, Mr. Chairman, t.hat the identification with large industry in a particular area. doesn't necessarily constitute conflict of interest because we are seeking a spectrum of opinion in order to advise the Secretary in a balanced fashion. Senator METCALF. That is correct. However, when you have just t.he large oil companies represented and large consumers-such as Consolidated Edison-not represented, and no independent compa- nies or distributors represented or very inadequately represented, then you have a very narrow range and narrowly based committee. It would seem to me that yOu: are getting advice from just one segment. of the industry. Especially in such areas as energy, it would seem to me, consumers have a great. need for at least a voice on the committee. Mr. Him. I personally think your point is well t.aken, Mr. Chair- man. Senator NETCALF. We have pro,vided in the act that members of the advisory committee may be compensated. We had testimony from Senator Nelson about the need:: to compensate people from small business who otherwise can't afford to participate in an advisory committee, whereas big business has enough money to compensate its advisory committee representatives. How are your Interior advisory committee members compensated? Mr. HITE. Let me refer this, sir. Senator METCALF. You have 111 committees, you say. Mr. HITE. Their expenses are only travel and per diem in all insta.nces. Senator METCALF. They all receive travel and per diem? Mr. HITE. Yes, sir. I am advised, there are a few exceptions where there is no compensation, but I ~. would sa.y across-the-board the travel and per diem costs are paid. Senator METCALF. How much per diem do they receive? Mr. HITE. It. is a standard Government rate. It was $25 a day. It has gone up, sir. and I really don't know what it is right now. I would be glad to submit. specific details for the record, if you would like me to, Mr. Chairman. Senator METCALF. Yes; it would be valuable if you would supply some of that material for the record. [The information follows:] Of the 111 Department of Interior ath~isory committees, 93 provide travel and per diem for committee members. Additionafly, lout committees with membei- PAGENO="0250" 244 ships comprised of Federal, State and public (or State and public) members, provide travel and per diem for Federal and public members only. Members of four committees received $100 a day plus travel and per diem. These committees are: National Advisory Council on Historic Preservation (statutory) ; Federal Metal and Nonmetal Mine Safety Advisory Committee (statutory) ; Advisory Committee on Coal Mine Safety Research; and Office of Water Research and Technology Advisory Panel. Members of ten advisory committees are not compensated from Federal funds. These committees are: Bonneville Regional Advisory Council; Defense Electric Power Administration, Committee to the Industry Advisory; Migratory Shore and Upland Game Birds, Conference for Annual Regulations; Natural Gas, Emergency Advisory Committee for; Petroleum Advisory Committee, OECD; Petroleum Council, National; Petroleum Supply Committee, Emergency; Petro- leum Supply Committee, Foreign; Water Research and Education Advisory Committee; and Waterfowl Advisory Committee. Senator METCALF. iou talked about exceptions. What are the exceptions Mr. RITE. Sir, there are a few exceptions. I am advised the National Petroleum Council membership is not compensated. A coal mine advisory board, which operates under the aegis of our Mine Enforcement Safety Administration constituted by the statute, received $100 a. day when it is in session, pursuant to that statute. This is really what I wanted to also get down for the record, if I can Supply the data, Mr. Chairman, so if there are other exceptions that haven't been brought to my attention I can put. them before you. Senator METCALF. I am told that you have three committees that aren't. compensated, the National Petroleum Council and two other petroleum supply committees. They are the most unbalanced com- mittees. They are the committees where you call upon the industry to pay the expenses of the committee members. They are the com- mittees which have the representation of only the large oil companies Mr. RITE. Yes, sir. Senator METCALF. It would seem to me that the failure to com- pensate the members of these committees is part of the reason for the imbalance-for not. getting independents and distributors and consumer representation on such a committee. I don't know whether counsel will let you respond to that. Mr. RITE. Mr. Chairman. I am in an awful position. I am advised that I should let this pass. I will make a personal comment though. I see what your point is on the equity. I would so advise the Secretary of that conversa- tion. Senator METCALF. I am going to respect the advice of your counsel. I hope that, informally at least, you will tell the Secretary about our conversation. Mr. Him. I shall, sir. Senator METCALF. In the area with which I have had some famil- iarity-that is the Bureau of Land Management-you have done very well in opening up and having a broad representation. I told your representative this morning that you had a wide range of representation in the BL~'i. You have hikers andi rock hounds and sheepherders and cattlemen and wildlife interests and all those represented on your advisory PAGENO="0251" 245 committees, and you have ask~d, the public to help nominate some of these representatives. You said in your statement that this restructuring was taken, and I am going to quote you,, "In response to a~ demonstrated need arising from the Bureau's multiple use functions." But then you say, "The particular actions taken by BLM cannot be employed elsewhere in a meaningful manner." My question is. why not? Mr. Hii~. What we were attempting to present to you in the pre- pared statement., sir, was the fact that the Bureau of Land Manage- ment has, we feel-and I think Director Berklund would concur- evolved into a. truly comprehensive land management agency through the multiple-use concept which necessitated a change in the compo- sit.ion of the committees at the, District, State. and Federal level every bit as much as the enactment. of the public law in 1973 did. The Taylor Grazing Act was the basis for the constitut.ion of these committees for years. I think the broader based representation was mandated by the changes that occurred in the land management field. ~\That we are saying is such radical change in mission hasn't really occurred in the other agencies of, the Department. We feel, sir, that we have in consonance with the act taken a close look at the consti- tution of the balance of the committees within the Department. But we haven't achieved the change in mix that BLM has. We don't. see the possibility for such a radical change. Most of the reduc- tion in our committee-the quantitative numbers of committees from 13~ to 111-was achieved in the Bureau of La.nd Management area. Senator METCALF. I am not gOing to agree that it was a radical change. I think it was a change which was long overdue and~ because of the structure and the multiple use of the BLM, it had to take place. There are other agencies in :the Department of Interior which have the same broad base and multiple use. It would seem to me that the excellent job you have done on BLM you can do on some of these other agencies and not just say, "MTe can't do it in a mean- ingful manner." The BLM has become almost an energy agency rather than a grazing agency in recent years. As you know, as well as I, most of the coal and most of the oil in America are on BLM land. Nevertheless, you have other commit- tees in Interior which have the wildlife impact. The Park Service has a consumer impact in travel. The Bureau of Indian Affairs and all those bureaus with advisory committees should have the same broad base, it would seem to me. Again I think you have done an excellent job in structuring your BLM committees. Mr. HITE. I appreciate your comment., sir. Please understand, I meant radical in terms of significant change and happening in a condensed period of time. Mr. Chairman, we may not have tangible proof of progress to show you to such a degree in other areas of the Department, but PAGENO="0252" 246 we do feel we are making continuing efforts to achieve a broader base and a better mix. Senator METCALF. I know, and I compliment you on it again. Mr. RITE. Thank you, sir. Senator METCALF. I hope you will continue to work in that direc- tion. You have a new Secretary over there. I have served on an Interior Committee in the Congress for more than 20 years, and I have seen Secretaries come and go. So some of my criticism is leveled at both Democratic and Republican Secretaries of the past. Let me urge you, Mr. Rite, to continue the improvement that you have demonstrated down there in the Department of Interior toward broader based committees and elimination of those that you don't need, and to keep up this openness of advisory committee meetings, which I think is admirable. Mr. RITE. Mr. Chairman, I think I can say for Secretary Kieppe we are highly motivated to this, and we will continue. Senator METCALF. I will refrain from talking about the National Petroleum Council. Mr. RITE. I appreciate that, Mr. Chairman. Senator METCALF. Thank you very much. Thank you for coining. Mr. RITE. Thank you, sir. Senator METCALF. The committee will be in recess, subject to the call of the Chair. This concludes the hearing at the present time. [The prepared statement of Mr. Rite follows:] PREPARED STATEMENT OF RICHARD R. HITE, DEPUTY ASSISTANT SECRETARY, MANAGEMENT, DEPARTMENT OF THE INTERIOR Mr. Chairman. I am pleased to appear before the committee today on behalf of the Department of the Interior and Secretary Kieppe. We appreciate the opportunity to present to you information on the conduct of our advisory committee activities and the operation of the Federal Advisory Committee Act together with our views on the proposed amendments. In response to your letter I would like to summarize the way in which our committees are structured and the methods employed in making appointments to these committees. Currently there are 111 advisory committees administered by the Department of the Interior with a total of approximately 1700 members. In 1973 we had some 132 such committees. Appointments to 55 committees are made by the Bureaus. The Bureau of Land Management makes appointments to 53 committees and the National Park Service to 2 committees. The Department has two committees to which the membership is appointed by the President, one statutory committee to which the membership is appointed by Governors of the states within a specified geographical area and one com- mittee composed of members appointed by archeological organizations. The remaining 52 committees represented a total of 1050 members. Of this number, 316 members are either ex officio or appointed or nominated by sources specified by statute or charter. The remaining 734 members are discretionary Secretarial appointees. If a statute requires a certain number of individuals to be appointed from recommendations made by specific sources with the rest to be discretionary sec- retarial appointees, we solicit the required nominations from those sources. Nominees for discretionary appointments are received from a variety of sources depending on the nature of the committee, including citizens groups, congress- persons. local and national organizations and other parties interested in the function of the committee. There is usually a broad spectrum of recommenda- PAGENO="0253" 247 tions from which to choose members. A review of the proposed appointees is made by the appropriate bureau. It then makes its recommendations for the discretionary appointments to the Secretary of the Interior. These recommenda- tions accompany the statutory nominations so that a review can be made of the entire list of recommendations and sélèctions made. There are administratively-created committees with fixed membership to in- clude nominations from specified sources as well as discretionary appointees. We follow the same procedure for these committees as for the statutory com- mittees. Technical committees are those having representatives of a specified discipline or profession such as archeologists, historians, architects and scientists. It is the responsibility of the bureau to conduct a search for potential members for tech- nical committees and to make recommendations to the Bureau head or Secre- tary. Heavy reliance is placed on a Bureau's knowledge of a particular area of expertise to assure that the committee's function can be performed by its members. As to those committees which may be considered general in nature, it is the responsibility of each bureau to solicit and initially screen recommendations. The solicitation and screening is generally based on the program manager's perception of his needs, but his recommendations are subject to two further levels of consideration by the Washington office of his Bureau and by the Office of the Secretary. In general, these represent the principal methods of selection. There are others which employ a combination of these methods and also include different categories of membership. In any given case, the selection of members varies with the purpose for which a committee is formed. Your letter also inquires about activities of the Bureau of Land Management committees and the possible applicability of its actions to other advisory com- mittees within this Department, In late 1973 the Bureau of Land Management made a systematic study of its advisory hoard system using the Advisory Committee Act as principal guide to examine the role, composition, cost and effectiveness of each board. It was found that with the exception of the grazing boards the evolution of its National, State and 0. and C. boards into multi-interest groups, and the opening of all meetings to the public, had already gradually brought the boards into line with the requirements of the Act. Some re-tailoring of their composition, and develop- ment of more definitive management guidelines were necessary, however. The grazing boards were terminated by the Act. The Bureau then set up multiple use hoards to conform more closely to its other advisory groups. The Bureau of Land Management published new regulations in 1975 that form a basic framework for the creation, operation, and termination of its advisory hoards. They call for representation on every board, balanced membership to meet each hoard's function and require that all meetings will be open to public participation. The Bureau of Land Management's actions to restructure its committees were taken in response to a denionstrated need arising from that Bureau's multiple use functions. The Bureau of Land Management, in the past several years, has become a truly land managing agency. The Bureau of Land Management's actions arose from its own special needs, We do not believe that the same needs exist throughout the Department, that is; the particular actions taken by BLM cannot l)e employed elsewhere in a meaningful manner. I wish to advise you, however, that we have reviewed and continue to review proposed committees' charters, and activities of all our ad- visory committees to insure that both the letter and intent of the Federal Ad- visory Committee Act are followed. Before commenting on the proposed amendments to the Federal Advisory Committee Act, I would like to report to the Committee our experience with one aspect of the impact of the Act, and that is increased costs in the administration of advisory committee programs. We believe these costs are largely due to the recordkeeping and reporting requirements imposed by the Act. The amount of material we are called on to supply requires an enormous amount of man hours PAGENO="0254" 248 and funds. Every additional cross index or list required and record and record- keeping follow-up on recommendations will result in increased costs. We have reviewed S. 2947 which would amend the Federal Advisory Com- mittee Act and strongly recommend that the bill not be enacted. I will comment briefly on those provisions w-hich w-e believe present the biggest problems; however, I am prepared to discuss other aspects of the bill with the Subcommittee and would particularly refer you to our submitted Report on the bill. Sec. 5(b) of the Federal Advisory Committee Act would be amended to pro- vide for public solicitation of members and require at least one-third of the members to be draw-n from private citizens representing the public interest. We have a great deal of trouble w-ith these provisions. Typically, the nature of an advisory committee is such that it is designed to provide advice in particular functional areas. This advice often requires ex- pertise, experience and knowledge of a specialized nature. We believe that public membership and comment can be better achieved in other w-ays. For example the Department of the Interior Advisory committees had no closed meetings in 1975. The public was invited to all the meetings and permitted to apprise itself of the matters which transpired at the meetings. Many of Interior's committees have members representing the general public. To require an absolute percentage or number of members to be drawn from the general public for every committee would, in our opinion cause advisory Com- mittees to become little more than debating societies and would defeat the pur- pose for w-hich many of them are formed. If this amendment becomes law, it would raise a myriad of questions such as, w-hat is meant by "citizens in private life', and "represents the interests of the public?' In summary, we believe that the current Section 5(b) is sufficient to assure meaningful use of advisory committees by the Government without derogation of the public interest. While the Interior committees did not conduct closed meetings last year, we believe that there are situations in w-hich a closed meeting would be necessary and proper. The present statute adequately provides for reporting on closed meetings. The proposed amendment creates a procedure which seems so tortuous as to prevent the closing of any meeting. When coupled with the requirement for a recording of every closed meeting thus essentially permitting the opening of such meeting w-ithin 24 hours, w-e believe the actual effect will be to lessen citizen participation since a federal officer would l)e unlikely to seek advice on some matters in meetings of advisory committees which legitimately ought to be closed but w-hich he anticipates ultimately will be open. You forw-arded to us a summary of amendments which Senator Percy is intro- ducIng. His second amendment causes us particular concern. The nature of the Interior Department and its advisory committees is such that recommendations from the committees cannot always be tracked in "score-card" fashion. In any decision by the Department a multitude of views are presented and it is rare that a decision can be said to have adopted or rejected an advisory committee's recommendation. Furthermore, there may be a period of years which intervenes l)etween the initial advice or recommendation and a final decision to pursue a course of action. During this period, the initial advice, more than likely, tends to lose any recognizable identity. The question of how- many recommendations are acted upon affirmatively is not necesarily indicative of the effectiveness of an advisory committee program. The real issue is whether or not the advice rendered has been heard by those making the decisions or operating the program. The foregoing represents the view of the Department of the Interior. We ap- preciate the opportunity afforded us to appear before you today and we will be pleased to work w-ith the committee and its staff with regard to any of these matters. I will be pleased to answer any question you may have as to our objections to any specific portions of the proposed legislation or any other related matter. Thank you. PAGENO="0255" 249. ~ ASSOCIATION OF AMERICAN MEDICAL COLLEGES SUITE 200. ONE DUPONT CZRCLE. NW.. WASHINGTON. D.C. 20036 MarCh 16, 1976 STATE4~TF FOR ThE WRITrES RECORD BY ThE ASSOCIATION OF AMERICAN MEDICAL COLLEGES ON S. 2947 Mr. Chainoan and members of the coii~nittee: The Association of American Medical Colleges is pleased to be able to present testimony to the Subcoimnittee on Reports, Accounting and Manage~ ment of the Senate Committee on Government Operations, concerning S. 2947, the Federal Advisory Committee Act Amendments of 1976. Naw in its bicentennial year, the AAMC represents the constitutency. of institutions and organizations principally involved in the undergraduate and graduate education of physicians. The Association, originally charged with the task of bringing about changes in medical collçges, has broadened its activities over the years and now serves as a national spokesman for all of the 116 operational U.S. medical schoo]s and their students, 400 of the major teaching hospitals, and 62 learned academic societies whose men- hers are engaged in medical education and research. Through its members, the interests of the Association range far beyond medical education itself. It is because of those broader interests that we would like to make some comiient.s today concerning the relationship of the proposed amendments to biomedical research and the National Institutes of Health. The primary mission of the National Institutes of Health is to improve the health of all Americans through the efforts of biomedical research. Mach of the research work conducted by the NIH is done under the sponsor- ship of federal grants, ~&ith are awarded on the basis of a very well defined Submitted to the Subcommittee on Reports, Accounting and Management of the Senate Committee on Government Operations, March 16,1976. PAGENO="0256" 250 -2- peer review process. The process includes an initial review for scientific merIt by a specified study group followed by another evaluation by an Institute National Advisory Council. All awards are based on the scientific merit of the project, the qualifications and accomplishments of the scientific investigators, and the relevance of the proposal to the Institute's mission. Every grant application, then, before it is funded, is reviewed by both types of groups. Ptesently, those meetings concerned with the review of individual grant applications are closed. The Association of American Medical Colleges is concerned about the proposed amendments and the effect they would have on the peer review process. Our fear is quite similar to that recently expressed by Warren Bennis in a very thoughtful article in Saturday Review (3/6/76): "I am convinced that these well-intended goldfish bowl rules will have unintended results worse than the evils they seek to forestall. They are likely to produce more secrecy, not less (only more carefully concealed), and on top of it, so.harnstring already overburdened administrators as to throw their tasks into deeper confusion ... The disclosure mania will make for more cliques that meet privately beforehand to agree on concerted actions subsequently revealed only at the public meeting." While the Association believes strongly in open government and the public's right to know as an important general principle, we also feel that if not guarded against, this principle can be taken to a deleterious extreme. We understand the Committee's concern with regard to an overabundance of committees throughout the government, the unfortunate consequences of secrecy (as contrasted with confidentiality), and the need to streamline the committee system. None- theless, we feel that the advisory committees used at NIH to evaluate PAGENO="0257" 251 _.)- individual applications for researc1~ support are a unique example of how well the advisory committee system can work. To overregulate the system of advisory corrrnittees would place administrative burdens on the personnel and substantially dilute the original intent of the Federal Advisory Counmittee Act. As Attorney General Levi in the recent past appropriately stated: "A right of complete confidentiality in Government could not only produce a dangerous pul~lic ignorance but destroy the basic representative function of government. But a duty of complete disclosure would render impossible the effective operation of governmen~.T That is precisely the feeling of the Association. If advisory corrmfttee's reviewing grant applications are required to have open meetings, that requirement may be self-defeating and the grant review process could become very bland.. Much of the success of the present process is due to the very' uninhibited and frank discussions of the evaluators concerning the proposal under review. To open up the meetings to the general public might ~~e1l have the effect of curtailing critical and essential discussion on the significant aspects of grant proposals. Thus, one could safely conclude that if open meetings were to be required by law, it could well be the quality of the biomedical research program and hence the general, public that would .lose. When the system of peer.review was designed some twenty-five years ago it was designed with many checks and balances. Thus, for an individual to influence unfairly support for or against a particular application would require collaboration of some twenty people. Conivance to that extent is very unlikely. We believe that the reCord of integrity in the system speaks for itself. 70-426 0 - 76 - 17 PAGENO="0258" 252 -4- Research proposals should be a confidential matter in the interests of both the public and the proposer. To expose an individual's work to the public prior to the award of the grant could well have a detrimental effect on the careers of individual scientists, especially the younger ones as * they seek grant support for the first time. While the individual's career should not be the primary reason for closed meetings, government priorities should not totally disregard individual interests. Another aspect of the issue of premature disclosure concerns the welfare' of patients and therefore the public in general. To release scientific hypotheses prior to the scientist having an opportunity to develop his idea, can result in both retraction by the scientist and public pressure on physicians to begin. applying untried methods. Careful review will help prevent premature and potentially hazardous disclosure of scientific discoveries and hypotheses before they can be tested and proved. Thus it is important to weigh both the public's and government's desire for openness against the need for responsible and adequate scientific evaluation. * The Association believes that in depth scientific evaluation should be the prevailing modus operandi. The Association strongly supports the work of the National Institutes of Health, not only because of the merits of the Institutes alone, but because of the very important relationship between NIH and the academic medical centers of this country. The system of peer review is a major component of the grant and research programs of the biomedical conusunity. To water down that process, which currently is well respected in both the public and private sectors of our society, would present serious drawbacks to continued cooperation and mutual respect. We urge you not to pass the proposed amendments in their present form. - - PAGENO="0259" THE UNDER SECRETARY OF HEALTH EDUCATION AND WELFARE WASHINGTON, D.C. 20201 APR30 ~76 The Honorable Lee Metcalf Chairman, Subcommittee on Reports, Accounting, and Management Committee on Government Operations United States Senate Washington, D. C. 20510 Dear Mr. Chairman: Thank you for your recent letter requesting our response to several questions concerning the use of advisory coniiiittees by the Food and Drug Administration (FDA). I asked the Commissioner, FDA, to review your letter and furnish me with a report. I have received Dr. Schmidt's response, and I am in agreement with the policy expressed in it. A copy of his report is enclosed. Thank you again for providing me the opportunity on March 10 to present the views of our Department on Federal Advisory Committee Act Amendments proposed by you and Senator Percy. Sincerely yours, Marjorie Lynch Under Secretary Enclosure (253) PAGENO="0260" 254 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE PUBLIC HEALTH SERVICE FOOD AND DRUG ADMINISTRATION ROCKVILLE, MARYLAND 20852 REPORT BY THE FOOD AND DRUG ADMINISTRATION RESPONDING TO QUESTIONS ON THE FOOD AND DRUG ADMINISTRATION'S USE OF ADVISORY COMMITTEES SUBMITTED IN THE MARCH 10, 1976 LETTER FROM SENATOR METCALF Alexander M. Schmidt, M.D. Corrrnissioner of Food and Drugs PAGENO="0261" 255 Answers to questions. Senator Metcalf's letter states that the January 16 Federal Register notice lists 13 meetings, all of which were closed at least in part, and that the January 19 notice reports ten other meetings to be closed. The January 16 notice lists two meetings (4 and 14) as entirely open, and the January19 notice lists three (1, "a", and 4). No meeting was entirely closed. Question. "The reasons given for closing these meetings included such statements as to `avoid undue interference with agency operations'; to `permit the free exchange of internal views~'; and `to permit the formulation of reconiiiendations'.~ "OMB's current guidelines permit the closure of meetings only with respect to matters listed in 5 U.S.C. 552(b); the words quoted above do not appear either in the 0MB gui~Jelines or in the Act. Such words did appear in an original Justice Department memorandum, which I understand was superseded by the present 0MB guidelines. "Therefore, would you explain under what authority, and justification, you are closing these meetings fôr~ the reasons stated." Answer. Authority to close~meetings to "avoid undue interference with agency operations," "to permit the, free exchange of internal views," or "to permit the formulation of recommendations," is found in FDA regulations at 21 C.F.R. 2.l20(a)(18)(iii). Some of the same language also appears in the joint Department of Justice-OMB draft memorandum, which was published on January 23, 1973 (38 Fed. Reg. ?306). Both the regulations and the draft memorandum represent an interpretation of the manner in which exemption 5 of the Freedom of Information Act applies to the closing of advisory committee meetings pursuant to section 10(d) of the Federal Advisory Committee Act, which specifically incorporates all of the exemptions in the Freedom of Information Act. The cited regulations are still in effect. They are also substantially identical to the language of the Department's proposed regulation (40 FR Part 11, January 23, 1975). The joint Department of Justice-OMB draft memorandum was superseded by 0MB Circular No. A-63 Rev. (39 Fed. Reg. 12389, April 5, l974.~) The circular repeats the language of section 10(d) of the Federal Advisory Committee Act without elaboration. The circular does not repudiate the guidelines set forth in the draft memorandum, it merely provides none of its own. The Justice Department is currently defending an agency's decision to close an advisory committee meeting in reliance on an application of exemption 5 consistent with those guidelines, Aviation Consumer Action Project v. Washburn, No. 75-1086 (U.S.C.A.D.C.J, and has advised that the FDA may similarly defend in court the interpretation of the Federal Advisory Committee Act set forth in 21 C.F.R. 2.l20(a)(18)(iii). PAGENO="0262" 256 -2- Question. "With respect to each of the aforesaid closed meetings, what do you mean by `undue interference'; `free exchange of internal views', and `formulation of recommendations'." Answer. "Undue interference," "free exchange of internal views,' and "formulation of recommendations," are general terms appearing in 21 C.F.R. 2.120(a)(l8)(iii). They are applied in the context of individual advisory committee meetings as appropriate. "Undue interference with agency or committee operations" includes problems such as premature disclosure of committee members' views that may lead to misinformed speculation about potential regulatory action involving specific products, peer group pressure resulting from unpopular positions identified with individual committee members rather than with the committee as a whole, and efforts to communicate on an ex parte basis with committee members. "Free exchange of internal views" refers to the need to encourage the fullest possible debate on scientific questions that have implications for regulatory action or that may involve criticism of the work of professional colleagues of panel members. If committee members must speak for the public record, they may hedge and qualify their discussion, not because they are reluctant to candidly expose their personal opinions, but because they may believe--with justification--that predictions based on their preliminary, often fragmentary views will have unintended adverse effects on specific companies or will unnecessarily cast doubt on the competence of other workers in their field. "Formulation of recommendations" refers to the process of arriving at a committee consensus on what course of regulatory action should be recommended to the Agency. Question. "Does this concern the interference with, exchange of, or recommendations formulated by, full-time government officials; or advisory committee members, or both?" Answer. "Undue interference" refers to the operations of both advisory committees and the Agency. "Free exchange of internal views" refers to the views of the committee members. "Formulation of recom- mendations" refers to the recommendations of advisory committees to the Agency. Question. "If you are concerned, as you imply, about interagency or intraagency matters, are you classifying the advisory committees as part of your agency function, or as agencies within the definition of the Freedom of Information Act? If not, and they are composed of private persons, outside of government, what reasons justify such persons being given any privileges of secrecy apart from any other nongovernmental persons?" PAGENO="0263" 257 3 - Answer, The FDA regards its advisory committees as part of its Agency function. This relationship was recognized by the Court of Appeals in Washington Research~Project, Inc. v. HEW, 504 F.2d 238, 246- 48 (D.C. Cir. 1974). Although~FDA advisory committees are composed primarily of persons who are not full-time Government employees, most are employed as special Government employees. We do not believe that the Federal Advisory Committee Act supports the position that advisory committee members, even those who are not special Government employees, occupy a status equivalent to members of the public. If they did, there would be no legal basis for closing an advisory committee meeting under any of the Freedom of Information Act exemptions, which are expressly referenced by section 10(d) of the Federal Advisory Committee Act, because each of those exemptions relates to Federal agency "matters," not to matters considered by members of the public. Further, to disclose any Government document,~ including national security records, trade secrets, confidential personnel files, and investigatory files, to an advisory committee whose members had a status no different from that of "non-governmental persons" would immediately destroy the exempt status of any such document, and would iii many cases constitute a criminal violation. None of these results was intended by the Federal Advisory Committee Act. The view that advisory committees consist of "outsiders" who cannot for that reason invoke exemption 5 is untenable. In sum, FDA justifies invoking exemption 5 to close advisory committee meetings on the same basis that it justifies invoking any of the other exemptions to close such meetings, i.e., the exemption is expressly made available by section 10(d) of the Federal Advisory Committee Act. Question. "What is it about the nature of the subject matter of such closed committee meetings in the 16 and 19 January Federal Re9ister that you feel justifies their being closed? What specific issues (with- out identifying trade names or manufacturers) were discussed at the meetings?" Answer. The specific meetings listed in the January 16 and 19 Federal Register notices were closed for the reasons set forth in the notices. ~The reasons are more specifically described in some cases than in others. It is not practical inthe time frame imposed to reconstruct in the particularized fashion requested in your letter the decisionmaking process that led to each determination to close a meeting, although this could be done with some effort and expenditure of time should the Subcommittee so desire. A basis cOmmon to many of the determinations appears to be that issues with a pOssible bearing on the future regulatory status of specific or readily identified products were to be debated and possibly resolved during the closed portions of the meetings; it was concluded that public access would have inhibited full and frank discussion for the reasons previously discussed. It must be emphasized that the PAGENO="0264" 258 -4- purpose of closing meetings for this reason is to preserve the candor of the deliberative process, not to engage in secret decisionmaking. Detailed minutes of all closed portions of meetings are kept and disclosed. Question. "Referring again to your 16 January notice, the general statement distinguished between `closed presentations of data' and `a closed committee deliberation.' What is the distinction between these phrases, and in what way does the exemption under 552(b)(5) apply to such distinction?" Answer. The general statement refers to the FDA's policy of permitting presentations of data to advisory committees by members of the public in closed session where the data involve matters that are prohibited from disclosure pursuant to the provisions of the Agency's Freedom of Information regulations. Members of the public who present data not involving matters prohibited from disclosure must do so in open session. Matters prohibited from public disclosure include trade secrets and personnel and medical files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. See 21 C.F.R. 4.61 and 4.63. These matters are not protected under exemption 5, but under other exemptions in the Freedom of Information Act, specifically exemptions 4 and 6. Meetings closed exclusively on the basis of exemption 5 can be attended only by advisory committee members and b~ Federal employees and consultants. Question. "Referring again to the 19 January FDA notice, why is not the `formulation of recommendations' by the committee precisely what was supposed to be done in open session under the Advisory Coniirittee Act? Why is this a reason for closing the session? Has not Congress already made that determination when it passed the act?" Answer. That a committee meeting involves the "formulation of recommendations" is a necessary but not a sufficient ground for closing a meeting. Only if the other prerequisites to closure specified in 21 C.F.R. 2.l20(a)(l8(iii) are present may a comittee meeting be closed. The legal and policy reasons justifying closed meetings have been previously discussed. We do not believe that Congress determined in the Federal Advisory Corrniittee Act that "formulation of recommendations" is required to take place in public session if a closed meeting is justified for reasons analogous to those that led to inclusion in the Freedom of Information Act of exemption 5, which was expressly incorporated by Congress in section 10(d) of the Federal Advisory Committee Act. Question. "Why is not the `free exchange of internal views' sometFlThg that can take place in open session?" PAGENO="0265" 259 Answer. The `free exchange of internal views" cannot always take place in open session. Advisory committee members are often sensitive to the impact that their statements are likely to have on events. As responsible citizens they will attempt to control this impact as best they can. This may cause them to refrain from engaging in vigorous debate on issues of public importance, with a resulting diminution in the quality of their recommendations. Public access is not always consistent with obtaining reliable and effective advice, a fact Congress recognized in relation to Federal employees when it included exemption 5 in the Freedom of Information Act. The same considerations apply to advisory committees that serve those agencies, as Congress appears to have recognized when it retained exemption 5 as a basis ior closing committee meetings. Question. "Is it your position that when the committees are involved in the process of giving advice or recommendations you feel they should be exempt under Exemption 5V' Answer. Our position is that advisory committee meetings may be close~under exemption 5 when the purpose of the meeting is to formulate advice or recommendations and closing the meeting is necessary to assure the free exchange of internal views and avoid undue interference with Agency or committee operations. Question. "If not, where would you draw the line -- what kinds of deliberations should be covered by the exemption and what kinds should not be covered? What is the basis for such distinction?" Answer. Where to draw the line is the most difficult question faced by the FDA--as any agency--in deciding whether a particular advisory committee deliberation should be closed. Most advisory committees involved in the Agency's over-the-counter drug review have met in closed session for purposes of deliberation, but there is a strong trend away from closing meetings of other advisory committees on this basis. In part this reflects the fact that the over-the-counter drug review committees recommend their advice in the form of regulations that the Agency then publicizes as proposals for public comment. The result of these committees' activities thus more nearly resembles and relates to the Agency's ultimate regulatory stance, and unlimited public access to the preliminary stages of formulating the recommended regulation would have a correspondingly greater disruptive effect on the overall process of developing the final regulation. (We appreciate that advisory committees can only "advise." This does not mean that the advice of an expert committee has no predictive value for the course the Agency will ultimately follow. FDA would not use advisory comittees if it did not intend to listen to them.) PAGENO="0266" 260 -6- The Agency has attempted in its proposed procedural regulations to distinguish between deliberations that will ordinarily be held in open session and those that will not be. See section 2.318(b)(5) and (6), 40 Fed. Reg. 40750 (Sept. 3, 1975). Although possibly broader than, the regulations have a purpose analogous to that of section 201 (b)(7)(B) of S.5, 94th Cong., 1st Sess., the proposed "Government in the Sunshine Act." This bill would require open deliberations of agencies that consist of collegial bodies, except where, inter alia, an open meeting would "disclose information which must be withh~T~from the public in order to avoid premature disclosure of an action or a proposed action by any agency have such disclosure would seriously frustrate imple- mentation of the proposed agency action, or private action contingent thereon." While not an "agency" for purposes of this bill, an advisory committee has the same requirements for confidentiality when disclosure of its activities would prematurely telegraph future agency policy so as to disrupt its development and frustrate its implementation. Question. "The Federal Register notices indicate that the open portions of the meetings invite interested persons to `present data, information, or views, orally or in writing' on pending issues. "Are the open portions of the meetings confined to receiving such presentations or do the committees also conduct their review and evaluations during the open portion? To what extent is the essential work of the~ committee done in open and closed session?" Answer. Whether an open portion of a meeting is confined to receiving public presentations, or also involves deliberations among committee members, depends on the particular committee and the nature of the deliberation. Those meetings listed in the Federal Register notices as entirely open necessarily involved in deliberation in open session. Recent examples of such open advisory committee meetings include FDA's Toxicology Advisory Committee meeting on FD&C Red No. 2 and the meeting on the use of antibiotics in animal feeds by a subcommittee of FDA's National Advisory Food and Drug Committee. Other meetings may also have involved open, as well as closed deliberations. q~stion. "According to 0MB Circular A-63 (Revised), April 5, 1974, determinations to close meetings must be in writing and must be available `on request.' Do you have such written determinations for each of these closed meetings?" "If so, please submit them to the subcommittee for evaluation." PAGENO="0267" 261 Answer. Written determinations to close meetings are available for each closed meeting identified in the January 16 and 19 Federal Register notices, and are attached hereto. Proposed determinations are reviewed in conjunction with the draft Federal Register notice, which contains more detailed information, by the Office of the Chief Counsel, the Office of the Associate Comissioner for Public Affairs, and by the Commissioner of Food and Drugs. The Coninissioner's approval of the Federal Register notice constitutes his approval of the proposed determination. As you can see by the January 16 notice, Commissioner Schmidt signed the notice and in the case of the notice published on January 19, approval was indicated by Sherwin Gardner as Acting Comissioner. PAGENO="0268" 262 \IEMQR ANDUi\'~ DEPARTMENT OF HEALTH, )L~c'~F~OX, AND WELFARE PUOTAC HEAETI[ SIR\ICE FOOD AND DRUG kDMINISrRATIOS Cot~ittee Management Office (HFS-20) DATE: January 2, 1976 IKOM : OTC Panel Administrator - sUaJECT: Notice of Scheduled Panel Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the çpld, Cough, A11~rty. nr~nf1 ~41~--,- ~nd Antihistamine . OTC Review Panel as follows:. Date February 2-3, 1976 Time 9:00 a.m. Place(Building and Room Number) Parkiawn Building, Conference Room I Open Public Hearing: Date February 2, 1976 From 9:00 TojO~QQ_.a.m. ~`O~osed-'P~nel~Dcliherations: Date February 2. 1976 From 10:00 To~j~Qp.m. Date February 3, 1976 From 9:00 To 4:30 p.m. To protect the free exchange of internal views and to avoid undue interference with the Panel's continuing review and and investigation of the ingredients included in Over-the- Counter Drug Products. * . . RoomNo.. 16-85 Telephone 443-4960~.....1 SignatureJ~~1~'t~4 ¶~4k ~ PAGENO="0269" 263 MEMORANDUM t~EPARTMENT OF HEAt.TFI, .)UCATION, AND ~VELFAI~F PUBLIC HEALTH Sf~RVICE -~ FOCI) %\D )RLG tDMI\IsfkVrIO\ To : Committee Management Office (HFS-2O) DATE: January 2, 1976 IROM : OTC Panel Administrator SUBJECT: Notice of Scheduled Panel Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the Miscellaneous Internal OTC Review Panel as follows: Date February 8-9. 1975 Time ~g~pp ar~. Place (Building and Room Nt!aber)idj i~j~ ~ Pnnct Roots !`~ Open Public Hearing: Date February 9, 1976 From_9~p~_ TO j0.00 a.m. `Clo&cd-PanolDelibcrations: Date. February 9, 1976 Fron 10:00 To ~:3O p.m. Date February 8, 1976 From 9:00 *To 4:30 p.m. To prbtect the free exchange of internal views and to avoid undue interference with the Panel's continuing review and * and investigation of the ingredients included in Over-thcs- Counter Drug Products. . .* Room No. 16-85 Telephone 44~496~~ Signature______________________ PAGENO="0270" 264 \ IE\IORANDUM'' DEPARTMENT OF HEALTIl, ~UCATION, ,~ND WELFARE - PUBLIC HL~LT1I SERVICE FOOD AND DRUG ADMINISTRATION coittee. Management Office (HFS20) DATE: January 2., 1976 PROM : OTC Panel Administrator SUBJECT: Notice of Scheduled Panel Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the Internal Analgesic OTC Review Panel as follows: Date February.9-1O, 1976 . Time~9~OO a.m. Place (Building and Room Number) Parkla~'n Building Conference Open Public Hearing: Date February 9. 1976 Prom 9:00 To 10:00 a.m. "Closed -Panel Deliberations: Date February 9, 1976 From 10:00 To~j~Qp.m. Date February 10,. 1976 From.9:O0 To 4:30 p.m. To protect the free exchange of internal views and to avoid undue interEerence with thePanel's continuing review and and investiRation of the ingredients included in Over-the- Counter Drug Products. Room No. 16-85 Telephone 443-49~~ Signature cZt( ~S~t'~,t!~4i PAGENO="0271" 265 MEMORANDUM DEPARTMrcr OF HEALTH~DUCATION, AND FOOl) ;~ND DRUG~ ADMINISIR\TION TO : Cornittee Management Office (HFS-20) DATE: December 29, 1975 ~HRU: Carl N. Bruch, Ph.D., A~ting Director ~ k. ~ Division of Classification & Scientific Eva;luation ~HFK-4OO) FRO~! : Executive Secretary, Panel on Review of Neurological Devices Bureau of Medical Devices & Diagnostic Products (HFK-450) SUBJECT: NOTICE OF SCHEDULED COMMITTEE flEETING FOR FEDERAL REGISTER NOTICE We have scheduled a meeting~of the Biocompatibility Sübcoriunittee of the Panel on Review of Neurological Devices as ~follows: - Place: Roam 6821, FB-8, 200 C.St., S.W., Washington~ 0. C. Open public hem~$r~g: - -~.Oa1e: February 10, 1976 From: 9:00 a.m. to 10:00 a.m. Interested parties are encouraged to present information pertinent to the committee discussions listed in this announcement to James R. Veale, Executive Secretary. Open committee discussion: Date: February 10, 1976 From: 10:00 a.m. to 1:00 p.m. 1. Review of FDA cell culture spectrum analysis research contract 2. Review of status of biocompatibility research contract with University of Tennessee. . - J~'O~1~' Veale PAGENO="0272" 266 \ IE\[ORANDUM DEPARTME~T OF HEALTH, ~UCATION, AND ~VF.LF~\RE * PUBLIC IIE.~LTII SERVICE FOOT) AND DRUG ADMINISTR~TION TO : Cor~ittee Management Office (IWS-2O) DATE: January 2, 1976 OTC Panel Administrator ~UIIJECT: Notice of Scheduled Panel Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the ~ph~ha1m~ V OTC Review Panel as follows: . Date Febrry 13-14, 1976 " Time 9:00 a.m. Place (Building and Room Number) Parklawn Building, Conference Room C Open Public Hearing: Date February 13, 1976 From 9:00. TolO:pp..a.m. ~Closed Panel Deliberations: Date February 13, 1976 From 10:00 To_4:3Qp.m. * * Date February 14, .1976 From 9:00 To 4:30 p.m. To protect the free exchange of internalviews and to avoid undue interference vith the Panel's continuing review and and investigation of the ingredients included in Over-the- * Counter Drug Products. . * Raom No. l685 Telephone 443-4960 Si~ature \(~ ~ PAGENO="0273" 267 \ IETvI)RANDUM DEPARTMENT OF HEALTH, f.JUCATION. AND WELFARE PUBLIC IIF..~1.TII SLRVICE FOOD AND DRUG ~DMINISTR.VtION H 10 Ccittee Management Office (HFS-20) DATE: January 2, 1976 OTC Panel Administrator MBJECT: Notice of Scheduled Panel Meeting for FEDERAL REGISTER Notice ~e have scheduled a meeting of the Antjnjcrpbj~1 IL~ OTC Review Panel as follows: -. - Date February l3~5. 1976 Time~g~pp arn. Place (Building and Room Number) Parklawn Building, Conference Room G Open Public Hearing: Date February 13, 1976 Prom 9:00 To 10:00 a.m. Closed Panel--Deliberations: Date February 13, 1976 From 10:00 To 4:30 p.m. Date February 14-15, 1976 From 10:00 To 4:30 p.m. To protect the free exchange of internal views and to avoid undue interference with the Panel's continuing review and and investigation of the ingredients included in Over-the- Counter Drug Products. Room No. 16-85 Telephone 443-4960 - Signature~,l'~~ 70-426 0 - 76 - 18 PAGENO="0274" 268 \ iEMOR ~N~DUM~~ DEPARTMENT OF HEAUII!,'JtCATIOX, A~D \VELFARF. * * PUBLIC HE.%LTII SERVICE FOOD AND DRUG ADMINISTRATION TO Committee Management Office (HFs-20) DATE: January 2, 1976 OTC Panel Administrator aUflJE~F: Notice of Scheduled Panel Meeting for FEDERAL REGISTER Notice V We have scheduled a meeting of the Oral Cavity OTC Review Panel as follows: Date February 19-20 TIme 9:00 a.m. Place (Building and Room Number) Parklawn Building. Conference Room C Open Public Hearing: Date February 19, 1976 Fron9:OO___ To1O~Qfl~.m. ~C1oscdPane1 Deliberations: Date February 19, 1976 Fromn_~pQ_TO~fl0p.n. Date February 20, 1976 From 9:00 To 4:30 p.m. To protect the free exchange of internal views and to avoid undue interference with the Panel's continuing review and and investigation of the ingredients included in Over-the- Counter Drug Products. Room No. l685 Telephone 443-4960~ Signaturc~~~ ~ PAGENO="0275" 269 4E1~~IORANDU~\ DEPARTMENT OF HEALTH .DLCATION, AND \VELF.~E PUBLIC HE.\LTII SERVICE FOOD :~ND DRUG .~DMINISER~~TION TO : Cornriiittee Management Office (HFK-20) DATE: December 23, 1975 Through: &jr~tor/DDPSR (HFK-200) FROM Executive Secretary, Toxicology Subcommittee, Bureau of Medical Devices and Diagnostic Products SUBJECT: Notice Of Scheduled Subcomitt~e Meeting For FEDERAL REGISTER Notice We have scheduled a meeting of the Toxicology Subcommittee of the Diagnostic Products Advisory Committee as follows: Place: Federal Building Eight (FB-8), 200 `C' Street, SW, Room 1409, Washington, DC 20204. OPEN PUBLIC HEARING . Date: Feb~-uary 23, 1976 From: 9:00 a.rn. to 10:00 a.m. Interested parties are encouràqOd to present information pertinent to in vitro diagnostic products used for the determination of digoxin in serum or plasma to Nabeeh Mourad, Ph.D., Executive Secretary, Toxicology Subcommittee, 8757~ GOorgia Avenue (HFK-200), Silver Spring, MD 20910. Any information pertinent to classification of diagnostic products listed in this announcement should be submitted to S. K. * Vadlamudi, D.V.M., Ph.D., Head of Classification, 8757 Georgia Avenue (HFK-400), Silver Spring, MD 20910, OPEN COMMITTEE DISCUSSION Date: February 23, 1976 * . From: 10:00 a.m. to 5:00 p.m; The Subcommittee will discuss matters pertaining to labeling and per- formance of in vitro diagnostic products used for the determination of drugs of abuse, alcohol and digoxin in biological specimens. In addition, products marketed as kits will be discussed. CLOSED COMMITTEE DISCUSSION Date: February 24, 1976 From: 9:00 a.m. to 5:00 p.m. The Subcommittee will classify the following products used in clinical toxicology laboratories: reagents, instruments, and associated equipment used for the quantitative determination of drugs other than drugs of abuse. PAGENO="0276" 270 Reasons for Closed Comittee Del~ons: to ~lloi Subco~ittde members to have frank discus~i-oil~; to permit the FDA to present all pertinent information, ~psi~of which relates to confidential data; to allow Subcomrnitt~e-rr1embers an opportunity to identify specific product proble~~às which could become regulatory matters. * ~1~I ~4~t4tJ Nabeeh ~ourad, Ph.D. This portion of the meeting will be closed to permit the free exchange of internal views (5 Usc 552(b)(5)). PAGENO="0277" 271 \ IEMORANDUM DEPARTMENT OF HEALTH, L~.JUCAT1ON, ~xn ~VCLFARF PUBLtC I!EALT1~ SCI~~ICE FOOD AND DRUG ADMfNISTRATION Co=ittee Ftanagement Office (HFS-20) DATE: January 2, 1976 OTC Panel Administrator ~BJECT: Notice of Scheduled Panel ~feèting for FEDERAL REGISTER Notice We have scheduled a meeting of the Dent1~rices and Dental Care Agents OTC Review Panel as follows: Date February 24-25, 19Z6 Time 9:00 p.m. Place (Building and Room Nu~nber) Parkiawn Bui1ding~ Conference_Roo~n.~f........ Open Public Hearing: Date February 24, 1976 FrOm9:pp TOJQQp.m. * -`O1osedPenel-De1iberebion~: ~Date February 24, 1976 Zroa 10:00 To4:3qp.m. Date February 25, 1976 From 9:00 To 4:30 p.m. * To protect the free exchange of internal views and to avoid undue interference with the Panel's continuing review and and investigation of the ingredients included in Over-the- Counter Drug Productg. Room No. 16-85 Telephone 443-4960~ Signature~~~ PAGENO="0278" 272 MEMORANDU~- DEPARTMENT OF HEALTh .DUCATION, AND PUBLIC HEALTH SLRVICE FOOD AND DRUG .SDMINISIRATION TO : Committee Management Office (HFS-20) DATE: December 29, 1975 Through: Eloise Eavenson, Ph.D., Acting Directo~~-'~t( Division of Diagnostic Product Standards and Research (HFK-200) FROM : Executive Secretary, Clinical Chemistry Subconriiittee,- Bureau of Medical Devices and Diagnostic Products SUBJECT: Notice of Scheduled Subcommittee Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the Clinical Chemistry Subcommittee of the Diagnostic Products Advisory Committee as follows: Place: Room 1409, FB-8, 200 `C' Street, SW, Washington, DC 20204 OPEN PUBLIC HEARING Da~e: February 25, 1976 From: 9:00 a.m. to 10:00 a.m. Interested parties are encouraged to present information pertinent to * the classification of diagnostic products listed in this announcement to William C. Dierksheide, Ph.D., Head of Classification, Bureau of Medical Devices and Diagnostic Products, 8757 Georgia Avenue (HFK-440), Silver Spring, MD 20910. Submission of data relative to tentative * * classification findings is also invited. CLOSED COMMITTEE DELIBERATIONS Date: February 25, 1976 From: 10:00 a.m. to 5:00 p.m.. - Date: February 26, 1976 From: 9:00 a.m. to 5:00 p.m. The Subcommittee will classify the following categories of in vitro diagnostic products for the analysis of: amines, biogenic; aminoleuvlinic * acid; amino acids; ammonia; bile, acids, pigments; bilirubin, derivatives; carbohydrates; catecholamines; ceruloplasxnin; cholesterol, esters; choline; colloidal gold; citric acid; coenzymes; copper; creatine; creatinine; dye clearance; enzymes; fatty acids, non-esterified; flocculation test; N- formiminoglutamic acid; gases, blood; glutathione; hemoglobin, derivatives; hippuric acid; homogentisic acid; inositol; iodine; insulin; 2-ketoglutaric * acid; ketone bodies; lactic acid; lipids, fecal, phospho-, total serum; maple syrup disease, agents; methylmalonic acid; myoglobin; nucleotides, * cyclic nucleotides; nitrogen, non-protein, total fecal; oxaloacetic acid; pH; phenylpyruvic acid, *derivatives; protein, abnormal, glyco-, lipo-, muco-, normal; pyruvic acid; steroids; thymol turbidity; thyroxine, derivatives, * precursors; triglycerides; urea; uric acid; vitamins, derivatives, pre- cursors; zinc. The session will be closed in order to protect the free exchange of views and to avoid undue interference in Subcommittee operations. (g osc. PAGENO="0279" -2- Char1es~ S. Furfine, Ph.b. Ex~cutive Secretary Cl~nica1 Chemistry Subcommittee 273 Silver Spring Plaza 8757 Georgia Avenue Room l2i9E Silver Spring, MD 20910 (301) 427-7175 PAGENO="0280" 274 \ 1E1~ 10 RAND U ~ DEPARTMEhT OF HF.ALT~-1, ~jUCATi ON AND \VELFAR F. I~UBLIC 2I!:ALT}1 SERVICE FOOD AND ERUG ADMINISTRATION ~ 10 Committee Management Office (HFS-20) DATE: January 2, 1976 ~oM : OTC Panel Administrator sUBJECT: Notice of Scheduled Panel Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the Antiperspirant OTC Review Panel as follows: Date February 26-27, 1976 Time~9~flfLa~g. Place (Building and Room Number) Park1a~Bui1ding~,Comferenc~ Roam F Open Public Hearing: Date Februarv26. J976... From_9~fl__. TOJf~sm ~-.O~oscd Panel De1±berat~ions: Date~g~~ar__26,~976 From l0:QQ._ To~3fl.p.m. Date February 27, 1976 From 9:00. To 4:30 p.m. To protect the free exchange of internal views and to avoid undue interference with the Panel's continuing review and * and investigation of the ingredients included in Over-the- * Counter Drug Products. * * . * ... Room ho 16-85 Telephone 443-4960~ Signature PAGENO="0281" 275 \ IEMORANDUI\'F' DEPARTMENT OF HEALTH, `..)UCATION, AND ~VELFARE PUBLIC HL\LTH SLRVICE FOOD AXI) DRUG AT)MINISTRATION It) : Coralttce Mar.ageccnt Office (HFS-20) IROM : OTC Panel Administrator sUBJECT: Notice of Scheduled Panel Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the _Contreceptives~nd Orher Vaginal Drug~roducts OTC Review Panel as follows: Date February 26-27, 1975 Time 9:00 a.m. Place (Building and Room Number) Parklawn Building, Conference Room H Open Public Hearing: Date February 26, 1976 From 9:00 To_10:00a.m. `CloscdPanelDe1Jberatjoz~s: Date February 26, 1976 From 10:00 To4:~Q..p.m. DateFebruary 27, 1976 From 9:00 To 4:30 p.m. To protect the free exchange of internal.views and to avoid undue interference with the Panel's continuing review and end investigation of the ingredients included in Over-the- Counter Drug Products. - -. DATE: January 2, 1976 Room No 16-85 Telephone 443-4960 Signature_________ JJ~L~C PAGENO="0282" 276 c 4''.-' Committee Management Office (JiPS-2O) Clay Si sk Executive Secretary E'UBUC HE.~LT ;E~v1CE FOOD AND DRUG ~ .IIN!STRATION DATE: Jan~iary 2, 1976 We have scheduled a meeting of the Panel on Revi Advisory Committee as follows: Date February 27-28, 1976 Place (Bldg. and Rm. Open Public Hearing: From_9:00a.m. Feb.27 Open Committee Discussion: From * - * Agenda Items: (1) Minutes of Previous ~Ieeting (2) Cofrmients from the Public ew of Allergenic Extracts pg 121, Bg. 29, NIH 8800 Rockville Pike Number)Bethesda, ID 20014 m 10:00 Feb. 27 -. To * . . . . . (4) (~) (6) * (7) * * (8) .. : . . Closed Presentation of Data: From To_____________________ Closed Committee Deliberations: From 10:00 a.m. 2/27 To 5:00 p.m. 2/27 and from 8:30 a.m. 2/28 until adjournmenl2728 ~~NY CLOSED PORTION OF A MEETING, attach separate page(s) as recuired. List each agenda item to be discussed in closed session and the snecific reason for closing the meeting. Room; No. Rm. 220 Telephone301/496~4545 * Signature________________________ 1: Notice of Scheduled Committee Neeting for FEDERAL REGISTER Notic,g PAGENO="0283" 277 Page 2, Scheduled ?~eeting of the Panelon ~eview of Allergenic Extracts Closed Committee Deliberations. Review of data submissions from allergenic extract producers f~r: 1) Pollen Extracts; 2) Food Extracts; and 3) Epidermal Extracts. This portion of the meeting will be closed to permit discussion of trade secret data and to allow for the free exchange of internal views and formulation of recommendations (5 USC 552(b)(4) and (5)). PAGENO="0284" 278 if P A NJflT_TT\1 DEPARTMENT OF HEALTH, L~CATION, AND ~VELFARE .~ PUBLIC HEALTH SLRVICE FOOT) .\ND DRUG ADMINISTRATION TO Committee Management Office (HFS-2O) DATE: December 29, 1975 THRIJ: Carl N. Bruch, Ph.D., Acting Director `_~.e_ ~ c.u~ Division of Classification & Scientific Evaluation THFK-45O) FROM : Executive Secretary, Panel on Review of Neurological Devices Bureau of Medical Devices & Diagnostic Products (HFK-45O) SUBJEcT: NOTICE OF SCHEDULED COMMITTEE MEETING FOR FEDERAL REGISTER We have scheduled a meeting of the Panel on Review of Neurological Devices as follows: Place: Room 1813, FB-8, 200 C St., S. W., Washington, D. C. ~p~n public hearing: Date: February 27, 1976 * From: 9:30 a.m. to 10:30 a.m.. Interested parties are encouraged to present information or data pertinent to the tentative classification of Neurological Devices to James R. Veale, Executive Secretary. * Open committee discussion. Date: February 27, 1976 From: 10:30 a.m. to 4:00 p.m. Date: February 28, 1976 From: 9:00 a.m. to 4:00 p.m. 1. Discussion of chiropractic devices as related to the Neurological area. - * . . 2. Discussion of electrosurgical unit standard. 3. Discussion of Transcutaneous Electrical Neuro-stimulator report. (Th(I/7 ~ PAGENO="0285" 279 ij~viEi'v1iORANDTJ OF F1L.~LT' ~Duc~1fd~c, ~`~) \V~~p~j~j IUMM: 11E.~LTU SIR~tCE F(X'Y) .~z) una:c .\1)MINLsIR.~TION TO : Cor~iiittee lianagern2nt Office (HFS20) DATE: January 6, 1976 THRU : Carl W. Bruch, Ph.D., Acting Dir~ctorC~ç,~ Division of Classification & Scientific Evaluation (HFK-400) FROM : Executive Secretary, Panel on Review of Dental Devices Bureau of Medical Devices & Diagnostic Products (HFK-460) SUBJECT: NOTICE OF SCHEDULED COMMITTEE MEETING FOR FEDERAL REGISTER NOTICE We have scheduled anieeting of the Panel on Review of Dental Devices as follows: Place: Room 5169, HEW North, 330 Independence Ave. SW, Washington, D( Qpen public hearing. Date: February 2, 1976 From: 9:00 a.m. To 10:00 a.m. Date: February 3, 1976 From: 9:00 a.rn. To 4:00 p.m. Interested parties are encouragedto present information pertinent to the classification of pit and fissure sealants and oral implants to D. Gregory Singleton, D.D.S., Executive Secretary. Submission of data relative to tentative classification findings is also invited. Open comittee discussion. Date: February 2, 1976 From: 10:00 a.m. To 4:00 p.m. Discussion of current literature concerning cyanoacrylates; discussion of electrosurgical unit standard; discussion of subcommittee formation; discussion of ~he classification of pit and fissure sealants and ultra- violet lights. . .T . Room 1352-0, SSP Building Telephone (301) ~ D. Grego~' S~ng1eto/i, D.O.S. Executive Secretar.~ PAGENO="0286" DEPARTMENT OF HE:.~~TH, EDUCATION, AND \VELFARE PUBLIC flr.~LTU sI:Rv;cE FOOD AND DRUG ,3J)MINISTRATZON / DATE: 1-5-76 IBJECT: ~otice of Scheduled Committee Meeting for FEDERAL REGISTER Notice ~4visory Committee as follows: DateF~. 56, 1~76 Place (Bldg. and Bin. Number) Parklawn Bldg. Conf.. Open Public Rearing: From 9:30 NI ~ To 10:30 AM * . . .10:30 AM . ~T2~3O PM(Feb ~ Open Committee Discussion: - . From 9:30 AM To 1:00 Pt1(Fsb 6) Open Agenda Items: (l)Feb. 5th -Antipsychotic.Gtuidelines- - i~ox warning -For Uong~Tëim Use of Jkntianxiety and * - . .. (2)Atltidepressant -Drugs; - (3)Feb. 6th- Hypnotic-0Fug-6uidelines . (4) . ~ -44m~-- (5)RCViCW_O-f-4DA_l 7_79i~.~p-4M~. (6) - .- (FI'~ . . closed Presentation of Data: From_ To__ closed Committee Deliberations: From_2:00_P11 - To~3° PM(Feb.5th) FOR ANY CLOSED PORTION OF A NEETING, attach se~arate eaae(s) as req~red. List each a~enda item to be discussed in closed session and the snecific reason for closing the meeting. Room. ;0,1OB~40 Telephone 443-3800 - Signature - Stephen C. Graft ~ 280 ~`1E~v-IQ RAND u ~-1 D : Committee Management Office (HFS-20) 5O~I : Executive Secretary Re "N' PAGENO="0287" 281 Closed Co~nittee Deliberations: Thursday Feb 5th 2:00-4:30 PM. Discussion of Lqrazepam UDA 17-794 - This portion of the meeting will be closed to -~f6t~ct the free exchange of internal views and ~ formulation of ~ecormendations.(5 USC 552(b)(5)) PAGENO="0288" 282 Coim-nittee Management Office (HFS-2O) DATE: THRU : C. Bruch, Ri.D.Acting Director Division of Classification & Scientific Evaluation (HFK-400) FROM : Executive Secretary, Panel on Review of General & Plastic Surgery Devices Bureau of Medical Devices & Diagnostic Products (HFK-470) SUBJECT: NOTICE OF SCHEDULED CO~1IUEE MEETING FOR FEDERAL REGISTER NOTICE We have scheduled a meeting of the Panel for Review of General and Plastic Surgery Devices as follows: Place: Room 1137, HEW North, 330 Independence Ave., S.W,, Washington, D.C. Open public hearing. Date: February 5, 1976 From: 8:00 a.nr, to 3:30 p.m. The entire meeting will be held in Open Session, The panel will discuss guidelines for the content of future standards for the following types of medical devices: * * Arterial Grafts, Biological and Synthetic Electrosurgical units and Accessories * Endoscopes, Fiberoptic * Ethylene Oxide Sterilizers : * * * High Vacuum Suction Devices * *. * * Silver Spring Plaza Room l352-G * Mark F. Parrish, Ph.D. Telephone: (301 )427-7238 Executive Secretary PAGENO="0289" 283 MEMORANDUM OF HEALTH, EDUCATION, AND WELFAREEJ FOOD AND DRUG ADMIMSTRAT!ON TO : Cotiiittee Management Office (HPS-20) DATE: January 5, 1976 FROM : Executive Secretary SUBJECT: Notice of Scheduled Committee Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the flphfh~mic flri,nc Advisory Committee as follows: Date February 9, 1976 Place (Bldg. and Rn. thmber) Parklawn Building Conf.Rm.'C' * Open Public Hearing: From 4,~ To.j/Jf11 - Open Committee Discussion: From -9--OO A.M. To 3:30 P.M. * Agenda Items: (1) Discussion of XlternativePlans for.V6st_JAarketinn X~z2~~X$i~rvei11ance of.H'ewC~ntáct~t~enses; (2) )~~X Review of,~4~'provedf~tIidelines (6'Iinical and.J-idnufacturinq) .X(~ for)~w.2'o~ntact)(enses * (3) X~~( Clinical Use, of,Ffuor~scein~6ips, (6) (7) (8) Closed Presentation of. Data: From. To__________________ Closed Committee Deliberations: From 3:30 P.M. To~~3O P.M. FOR ANY CLOSED PORTION OF A MF.ETING, attach separate~page(s) as req~4~ed. List each agenda item to be discussed in closed session and the sneciic reason for closing the meeting. Room. No. 12B45. Telephone X34310 * Signature Mary K.~Bruch ~: ~ ~A ~ - ~ ~i r 70-426 0 - 76 -19 PAGENO="0290" 284 Ophthalmic Drugs Advisory Committee Closed Committee Deliberations Discussion of subjectsj shown in open session above. This portion of the meeting will be closed to permit the free e~cbange of internal views and to avoid undue interference with agency operations (5 USC 552(b)(5)). PAGENO="0291" 285 ~ \i DEI'ARTMENT OF HEA~.T~, EDUCATION, AND ~VELFARE PL~5L!C ~!t.Wflf SLRVICE 1~OOD AND D!~UG tDML\3~TRATION 0 Committee Management Office (HFS-20) "7~ ~ Executive Secretary Notice of Scheduled Committee Meeting for FEDERAL REGISTER Notice Ve have scheduled a meeting of the ~ Advisory Comittee as follows: Date ~ iiil, Plac~e (Bldg and Em Number)FO ~ ~` !~i I4"ô~ Open Public Hearing: Prom To ~ * Open Committee Discussio : From To______________________ Agenda Items: (l)L~a~ç~ ;~, /~i~ i'trni (2)_~~2/Z~ ~J~I *~ (3)~1 ~/~i4 7b2~. 7/Ac~/ £e,-~r ..* (4) ~J'~i ~L4~ ~ *: (~ g~ ,~i* L~L12 / (6) . .. (7) .* * . - * * (8) Closed Presentation of Data: From To_____________________ Closed Cmmsittee Deliberations: From. To____________________ FOR ANY CLOSED PORTION OF A MEETING, attach separate gage(s) asreguir~. List each agenda item to be discussed in closed session and the specific son for closing the meeting. Room. No. fO~ g~Telephone~ ~ Signature* de~0~1. ~ PAGENO="0292" 286 `I~MORANDL ~j DEPARTMENT OF ~rE. rH, EDUCATION, AND \v[Lr.Ar~ * PUEUC YItALTI: SERVICE * . FOOD AND DRUG ADMINISTRATION Committee Management Office (HFS-20) DATE~ January 6, 1976 OM : Executive Secretary EJECT: Notice of Scheduled Committee Meeting for FEDERAL REGISTER Notice Panel on Review of Viral Vaccines and We have scheduled a meeting of the R--~a1 \a~t~s * Advisory Committee as follows: Date Februer~j 10-11. 1276 Place (Bldg. and Rn. Number)~T-!. Bldg. 29~ Rccn 121 Open Public Hearing: FromlOOD a.rn. Feb. 10 Töll:OO a.m. Feb. 10 Open Committee Discussion: From 11:00 a.m. Feb. lOTo2:3O p.m. Feb. 10 Agenda Items: (1) Presentation and discussion of trevious resting's minutes. * (2) Review and discussion of ccrmmmicaticns received. (3).Corrrents from observers cresent at the oren meeting. (4).. Continue presentation by staff members on the Bureau's Thepatitis program. (5) * (6) * * * (7) :. (8) .__. * Closed Presentation of Data: From To ** Closed Committee Deliberations: Fr3OP.m._Feb__10 To4:OO p.m. Feb. 11 * FOR ANY CLOSED PORTION OF A MEETING, attach separate vase(s) as reaui~g4. List each acenda item to be discussed in closed session and.the specific reason for cbs the meeting. 219 Telephone 6~5~5 * Signature_________________________ ~. Gertzog PAGENO="0293" 287 SCHEDULED HEElING OF Tr~E PANEL ON REVIEW OF VI~AL VACCINES ~AND RICKEITS]AL VACCINES Closed Conriittee teliberations 1. Discussicn of Panel Repo±~t on Bureau' s hepatitis program. 2. Discussion of Panel Report on the safety and effectiveness of licensed viral and rickettsial vaccines. This oortion of the meeting will be closed to -~~es~ the free exchange of internal views~ fonmilaticn cf~recorr~randaticns, and to avoid undue inter- ference with cor~ndttee operations. (5 USC 552(b) (5)). PAGENO="0294" 288 ~LVLj).~-- \ L' L. J * . - PUDUC ~E.~LTII SERVICE * * FOOD AND DR1JG ADMINISTRATION TO : Committee Managc~cnt Office (HFS-2o) DATE~ ~ January 1976 FROM : Executive Secretary, FDA-UIDA Druc' Abuse Research Advisory Corrmiittee(DARAC) SUBJECT: Notice of Scheduled Committee Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the DARAC Advisory Committee as follows: Date 12 February 1976 Time ~30 to 5:00 PM. Place.(Building and Room Number) flational Library of ~1edicine Pillinc's Auditorium, i~-ieveI, ~it1, tethescia, iid~* Open Public Hearing: * From 0830 To 0930 (Indicate approximate time required.) Open Committee Discussion: From 0930 To 1230 Agenda Itmns: (1) Scientific ~erit of Research Protocols; (2) P.eorderinc' of Schedule I substances for approved I?IDs; (3) Instt~uctions for 1icensure,1nrocur~ent & IT!D submissions; (z~) Expeditinci advisory committee minutes release to public; (~) tleetinn dates for Calendar Year 1976; * (6)"~~x~~" and The Toxicolociv Data Bank" * Renort on "Chronic Cannabis Use" Conference Closed Presentation of Data: From_ ~1~~sJi. To ~ Closed Committee Deliberations: From ``3') P.M. To 5:00 P.M. For any closed portion of a meeting, attac~ separate page(s) as required. List each agenda item to be discussed in closed session and indicate following cmch item the specific reason for closing the meetir.g. Room No.lO B 1~ Telcphonc 33504 ~ PAGENO="0295" 289 Federal Reqister Notice of Ad~lsory Comittee (DARAC) ~ieetinci . 2. Reasons for Closed Session (1) Review o~ IND Arrnlications - New and Amendments -- to protect the free e~chanoe~o~ internal~views and fo~-mulations of recommendations. fiaintain confidential nature of active INDs. (2) Review o~ Preclinical Staff Actions -- to protect the free exchanne of internal views and formulation of recommendations. Review of IND applications (ne~ and amendments); review of preclinical etaff actions. This portion of the meeting will be closed to permit the free exchange of internal views,x~ to avoid undue interference with committee operations, and1 to permit the foraiulation of recom- ~endations (5 USC 552(b)(5)). PAGENO="0296" 290 * .. PUBLIC HE.~J&H SLR'.ICE. FOOD AND DRUG ~WMINISTRATION TO : Committee Management Office (HFS-20) DATE: January 5, 1976 FROM : Executive Secretary SUBJECT: Notice of Scheduled Committee Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the Dermatology - Advisory Committee as follows: Date February 17, 1976 Place. (Bldg. and Rn. Number) Parkiawn Bujldjnq~ Conf. Room `A Open Public Hdaring: From ~`~O /~-i To. /c:co fO Open Committee Discussion: From -&00 AJ~. To 2:30 P.M. - Agenda Items: (1) The.-U~se of Psoralens and 2Ttra-violetklght in-Treatment ~ of..-P~oriasis. (3) (4) (7) (8) Closed Presentation of Data: From To_____________________ Closed Committee Deliberations: From 2:30 P.M. To 4:30 P.M. FOR ANY CLOSED PORTION OF A MEETING, attach separate page(s) as List each agenda item to be discussed in closed session and the sreci~ic reason for closing the neeting. Room. No.~9f 5 Telephone Y34310 ~ ~ ~ - . U PAGENO="0297" 291 Dermatology Advisory Committee Closed Cor~'rittee Deliberations: Use of Psoralens and ultra-violet light in the treatment of psoriasis. This portion of the meeting will be closed. to permit the free e~change of internal views and to avoid undue interference with agency operations (5 Usc 552(b)(5)). PAGENO="0298" 292 PUBLIC HZ.'L .~ SERVICE FOOD AND DRUG ADMiNISTRATION TO : Committee Management Office (HFS-20) DATE: January 7, 1976 FROM : Executive Secretary SUBJECT: Notice of Scheduled Committee Meeting for FEDERAL REGISTER Notice We have scheduled a meeting of the ENDOCRINOLOGY AND METABOLISM Advisory Committee as follows: Date February 19, 20 Place. (Bldg. an4 Rn. Number) Parklawn, G H /O:c~c') Open Public Hearing: From. 9:00 To -9~'3e- Open Committee Discussion: From-910-- `To 12:00 Agenda Items: (1) Proposed labeling for lipid lowering drugs' (2)_Review of prooosed guidelines for lipid-lowering drugs, Phases 1-3 (3)FDA objectives of Phase 4 lipid-lowering ,~rug :~Jnvestigations' 2/20 * Closed Presentation of Data: From 9:~0 ~ 12:00 2/19 1:00 4:00 * Closed Committee Deliberations: From 2/20 1:00 To 4:00 FOR ANY CLOSED PORTION OF A ~ETING, ~ttach senarate page(s) as required. List each agenda item to be discussed in closed session and the specific reason for closing the meeting. . * Room. No.G, H Telephone 443-3610 Signature. PAGENO="0299" 293 Closed presentation of data Presentation by the sponsor on IND 11-200 (European Chemicals Co. Inc.) The committee will consider the drugs safety and efficacy, which involves the discussion of individual patients response to therapy. * This portion of the meeting will be closed to protect the confidentiality of medical files (5 USC 552 (b)(6)). Closed Committee deliberation This portion of the meeting will be closed to protect the free exchange of internal views and for formulation of recommendations. (5 USC 552 (b)(5). * * PAGENO="0300" 294 MEMOKAIN 1) U1~ ~ ~N, AND TO Committee Management Office (HFS.20) DATL THRtJ : Carl W. Bruch, Ph.D., Acting Director ~ \ - Di vision of Classification & Scientific EValuation (HFK-400) FROM : Executive Secretary, Panel on Review of Obstet~9cal & Gynecological Devices Bureau of Medical Devices & Diagnostic Products (HF1~-47O) SUBJECT: NOTICE OF SCHEDULED COMMITTEE MEETING FOR FEDERAL REGISTER NOTICE We have scheduled a meeting of the Panel on Review of Ob-Gyn Devices as follows: Place: Room 6821, FB-8, 200 C Street, S.W. Washington, D.C. Open public hearij~g~. Date: February 23, 1976 From: 9:00 a.m. to 10:00 a.m. Date: February 24, 1976 From: 9:00 a.m. to 10:00a.m. * Interested parties are encouraged to present information pertinent to the development of specific performance standards of those devices which haye been tentatively classified in the standards category. Open committee discussion. Date: February 23, 1976 * .* From: 10:00 alm. to 4:00 p.m. * * * * Date: February 24, 1976. From: 10:00 a.m. to 12:00 p.m. The panel will identify specific device hazards and will consider specific * performance standards for those devices which have been classified in the standards category. Dr. Melvin Sikov will report to the panel on the Biologic Effects of Ultrasound Subcommittee meeting of January 22-23, 1976. Closed committee deliberations. Date: February 24, 1976 From: 1:00 p.m. to 3:00 p.m. PAGENO="0301" 295 -2- The panel will discuss and deliberate the Biologic Effects of Ultrasound Subcorrcnittees recorrmendations on the classification of the Ob-Gyn Diagnostic ultrasound devices. The meeting is closed because it is essential to protect the free exchange of internal views and to avoid undue interference with Agency or committee operations. Silver Spring Plaza, Telephone (301)427-7238 _____________________ ~[i han Yin, Ph.D. / Executive Secretary PAGENO="0302" 296 11 March, 1976 TO: Senator Lee Metcalf, Chairman Senate Subcommittee on Reports, Accounting ~ Management and Representative John Moss, Chairman House Subcommittee on Oversight ~ Investigations FROM: Staff, Senate Subcommittee on Reports, Accounting ~ Management RE: Food ~ Drug Administration compliance with the Federal Advisory Committee Act (FACA) BACKGROUND Your joint letter of 20 November, 1975, to Food ~ Drugs Commissioner Alexander Schmidt posed questions on advisory committees and other matters. Schmidt replied in three parts, and this memo analyzes the third and final part, his letter of 9 January, which.dealt exclusively with advisory com- mittees. This memo is intended to supply the basis for either further cor- respondence or hearings. First, to characterize Schmidt's response: It is clear that the FDA has never fully accepted the fact that Congress passed a law setting standards and uniform procedures for all Federal advisory committees. The FDA was operating advisory committees under its own elaborate set of ground rules when the FACA was approved on 6 October, 1972, and it felt the FACA was something to be accommo- dated rather than obeyed. As a cons~quence, the FDA's explanation of how and why it closes advisory committee meetings is a crazy patchwork of policy statements, determinations, delegations of authority, legal interpretations and other "authorities" owing little, if anything, to the FACA. PAGENO="0303" HEW Secretary Elliot Richardson publishes a "notice of determination~' regarding committee management, issued pursuant to Executive Order 11671 of 5 June 1972. FACA approved HEW Office of the Secretary publishes guidelines for closing advisory committee meetings to the pub- lic. The~notice consists almost entirely of a Sec- retary' s memorandum on the subject, arid includes * this statement: "The new law is substantially the * same as the order and I do not anticipate the De- partment having difficulty in achieving full com- pliance with the intent of Congress in light of our experience under Executive Order 11671." 0MB publishes a proposed revision of Circular No. A-63 on advisory committee management and the draft~ of an 0MB/Department of Justice inem- orandum on advisory committee management, both of them based on the FACA FDA publishes a routine notice of upcoming advisory committee~meetings which includes---as all such FDA notices do- - -a statement of its rationale for clos- ing portions of such meetings. (On 15 December, 1975, FDA will publish a statement on the district court decision in Wolfe v. Weinberger which says FDA "will continuef~iuthorize the closing of the deliberative portions of advisory committee meet- ings. pursuant to exemption 5," contends "the basis for this policy has been set forth numerous times," and cites the meeting notice of 5 February, 1973, as an example.) FDA publishes a revision of delegations of authority from the HEW Secretary to the Commissioner of Food ~ Drugs, amOng them the function to make determinations that advisory committee meetings are concerned with* matters listed in 5 U.S.C. 552(b) and may be closed to the public. The revision says, "This authority is to be exercised in accordance with the require- ments of the Act and only with respect to the follow- ing," one Of which is: "Meetings held for the sole purpose of considering and formulating advice which the committee will give or any final report it will render, Provided: (a) The meetings will involve sole- ly the internal expression of views and judgments of the members and it is essential to close the meeting or portions thereof to protect the free exchange of such views and avoid undue interference with agency 297 -2- The following chronology is, the key to this memo: FDA publishes procedural regulations for classifi- cation of over-the-counter drugs 11 May 1972: 5 October 1972: 6 October 1972: 17 November 1972: 23 January, 1973: 5 February, 1973: 12 March, 1973: PAGENO="0304" 298 -.~. or committee operations, arid such views if reduced to writing would be protected from mandatory dis- closure under section 552(b) (5) of title 5 U.S.C.;" 5 April, 1974: 0MB publishes a revision of Circular No. A-63 on advisory committee management WHICH RESCINDS AND SUPERSEDES THE PROPOSED REVISION OF THE CIRCULAR AND THE 0MB/DEPARTMENT OF JUSTICE MEIVDRANDUM THAT HAD BFE'~ PUBLISHED ON 23 JANUARY, 1973 24 December, 1974: FDA issues final regulations on public information. Point No. 224, dealing with advisory committees, discusses a comment received on the proposed rule making (published 5 May, 1972) which contended that the provision relating to advisory committees "per- petuates the secrecy that has characterized the de- liberations of FDA advisory committees." After listing the items the comment proposed be available for disclosure, FDA said: "The Commissioner will issue in the near future comprehensive new procedur- al regulations in 21 CFR Part 2 that will include provisions governing all aspects of the activities of advisory committees. The Commissioner concludes that detailed consideration of the application of the Freedom of Information Act to advisory committee matters should properly be dealt with in those regu- lations, rather than in these regulations, and an appropriate cross-reference is included in (Sec.) 4.118 for this purpose." 23 January, 1975: HEW publishes proposed rules on committee manage- ment (Sen. Metcalf comments on the proposed rule making in letter of 14 March, 1975, to Secretary Weinberger. The rules have never been made f i- nal) 27 May, 1975: FDA publishes notice establishing administrative practices and procedures, dealing extensively with advisory committees, which are subsequently blocked by court order 3 September, 1975: FDA publishes proposed rules governing adminis- trative practices and procedures (Sen. Metcalf comments on the proposed rule making in a let- ter of 18 September, 1975, to Commissioner Schmidt) 15 December, 1975: FDA publishes notice on the availability of certain transcripts of closed sessions of its advisory com- mittees, saying the Commissioner "does, not regard the decision (in Wolfe v. Weinberger) as necessita- ting a rnodificati6iTii~ existing policy, and where necessary and appropriate, will continue to author- ize the closing of the deliberative portions of ad- visory committee meetings pursuant to exemption 5" PAGENO="0305" 299 -1+- The FDA's position can be summarized this way: The FDA has neither complied with the statutory directives of the Congress with respect to advisory committees nor accepted the court's reasoning in Wolfe v. Weinberger. Instead it has resorted to pre-FACA thinking about advisory committees, based in part on convenient adapta- tions of FOIA cases to meetings, and to ground rules and practices which were meant to serve the agency's own purposes. As a result it has: 1--Adhered to its own reading of FOIA case law even when doing so tends to defeat the letter and purpose of the FACA; 2- -Ignored such FACA court~ decisions as Gates v. Schlesinger having a direct bearing on the use of exemption 5 to close advisory committee meetings; and 3--Fniled to comply with~ section 8(a) of the FACA, which provides, "Each agency head shall establish uniform administrative guidelines and management controls for advisory committees established by that agency, which shall be consistent with directives of the Director (of 0MB) under section 7 and section 10." SQ-L'IIDT' S LETTER On page 4, Schmidt explains that FDA' s written determination to close portions of particular meetings, which initially accompanied FDA's monthly Federal Register armoncement of advisory committee meetings, sets forth some of the policy reasons behind the decision to close por- tions of meetings. It is true the FDA long has been offering a ration- ale for closing meetings---for example, the language he quotes is to be found in the meeting notice FDA published on 5 February, 1973, although it was preceded in that notice by this sentence: 70-426 0 - 76 - 20 PAGENO="0306" 300 In addition, to operate most effectively, the evaluation of specific drug or device products requires that members of commit- tees considering such regulatory matters be free to engage in full and frank dis- cussion. Members of committees have The problems with this FDA policy statement, are as follows: 1--The statement smuggles in FDA's view that advisory committees are part and parcel of the regulatory process. This view reached full flower in Wolfe v. Weinberger, in which the court said that defendant (FDA) submits that the panel (FDA's Over-the- Counter Antacid Drugs Advisory Review Panel) functions "as an integral part of a public rulemaking process" and is a body consisting "of special govern- ment employees whose deliberations are functionally equivalent to those of full-time agency employees who review scientific problems and make recommend- ations for regulatory action." The court rejected this view; 2--The FDA policy statement appears to countermand the public policy expressed in the FACA. While the FACA permits closure of advisory commit- tee meetings which are "concerned with matters" which the FOIA exempts from mandatory public disclosure, the FDA's policy statement contravenes Congressional policy that each advisory committee meeting shall be open to. the public; and 3--It is not clear where the FDA derived the authority to make this policy statement. Neither HEW nor FDA had issued the required FACA regu- lations as of 5 February, 1973- --indeed, neither has done so to this date. The final paragraph of the FDA's statement of 5 February, 1973, asserts: The Commissioner has been delegated * the authority under section 10(d) of the Federal Advisory Committee Act to issue a determination in writing, containing the reasons therefor, that - any advisory committee meeting is con- cerned with matters listed in 5 U.s.c. PAGENO="0307" 301 -6- 552(b) , which contains the exemptions from the public disclosure require- ments of the Freedom of Information Act. Pursuant to this authority, the Coirunissioner hereby determines, for the reasons set out above, that the portions of the advisory committee meetings designated in this notice as closed to the public involve discus- sion of~existing documents falling within one of the exemptions set forth in 5 U.S.C. 552(b), or matters that, if in writing, would fall within 5 U.S.C. 552(b), and that it is essen- tial to close such portions of such meetings to protect the free exchange of internal views and to avoid undue interference with Agency and corruaittee operations. This determination shall apply only to the designated portions of such meetings which relate to trade secrets and confidential information or to committee deliberations. The reference to "matters that, if in writing," is as distinctive as a registered trademark, meaning that it has to have been derived from the 0MB/Department of Justice memorandum published 23 January, 1973. However: a. That does not mean FDA was acting under a proper delegation of authority. b. The FDA version misstates the 0MB/Department of Justice provision in paragraph lOa(3) (c) (iii) (c). 1~1hereas the 0MB/Department of Justice memorandum was rCferring to discussions which, if written, would fall within exemption 5, the FDA rendition applies to all of 5 U.S.C. 552(b). c. Paragraph lOa of the 0MB/Department of Justice memorandum nowhere refers to "committee deliberations." d. If indeed the FDA language was based on the interpretation of ex- emption 5 offered in the 0MB/Department of Justice memorandum, as it appears to have been (and as it should have been to have any legal effect), then it shOuld have been excised promptly---at least as promptly as it had been invoked---after 5 April, 1974, when 0MB published its revised Circular No. A-63 which rescinded and super- seded the 0MB/Department of Justice memorandum. However, it was not, and the language survives in FDA meeting notices in somewhat amended form. If this part of the FDA rationale was properly grounded in February, 1973, it cannot have been properly grounded since April, 1974. PAGENO="0308" 302 -7- On page 4, the final paragraph is a restatement of the FDA's claim that its advisory conndttees perform a regulatory function. The claim can be true only if the agency has abdicated its regulatory responsibilities and illegally conveyed to its advisory comnittees the power to make regu- latory decisions. In any case, neither the FOIAnor FACA recognizes any such category as "law enforcement agency." It remains necessary for FDA or any other agency having enforcement responsibilities to justify use of exemption 7 in each and every instance. Further, staff is not aware that FDA ever has invoked exemption 7 as grounds' for closing an advisory comuittee meeting, although its current standard meeting notice ration- ale asserts the possibility that a meeting might be closed on exemption 7 grounds. On page 5, Schmidt says it has consistently been the FDA position, "and is that of the Department of Justice as well," that exemption 5 "auth- orizes the closing of deliberative sessions not only to consider an other- wise exempt document, but to formulate advice that would be exempt under R)IA if reduced to writing." That remark, and his reference later in the paragraph to the 0MB/Department of Justice memorandum (i.e. "guidelines") published on 23 January, 1973, confirms that he and Justice either are un- aware of, or have chosen to overlook, the fact that the 0MB/Department of Justice memorandum was rescinded and superseded on 5 April, 1974. To repeat: If the FDA/Justice position was built on that memorandum, then it should have been razed when the memorandum was. Schmidt's closing sentence in that paragraph asserts that the HEW guidelines published 17 Noveaber, 1972, and the 0MB/Department of Justice guidelines "make clear that deliberative sessions at which regulatory op- tions are considered and recomuendations made are, in fact, analogous to consideration of inter and intraagency (sic) memoranda." As noted above, however, the HEW guidelines predate the 0MB/Department of Justice inter- PAGENO="0309" 303 -8- "is substantially the same as" Executive Order 11671. It is hard to see how the HB1 guidelines can have any force of themselves, inasmuch as: a. Executive Order 11671 was arguably not the same as the FACA, al- though it was issued after the house had passed its version of the FACA and clearly was intended to discourage action b~ the Senate on its ver- sion. b. Executive Order 11671 became a nullity on 5 January, 1973. Sec- tion 3 of Executive Order 11686,, published 11 October, 1972, declared: Section 8(4) of Executive Order No. 11671 of June 5, 1972, is hereby re- voked and the remainder .of that order shall be~ deemed to be superseded ef- fective as of the expiration of nine- ty days following the date of my ap- proval of the act (FACA). Executive Order 11686 was dated 7 October, 1972, the day after the FACA was approved. Finally, the footnote on page 5 of Schmidt's letter cites two pre-FACA cases, Soucie v. David and Wu v. National Endo~rn~ent for Humanities (sic), dealing with the applicability of exemption 5 of the FOIA to reports from consultants. (For a subcommittee staff comment on whether Congress believed Soucie v. David would be applicable to advisory committees, see page 308 of Energy Advisory Committees, Hearing before the Subcommittee on Reports, Ac- counting ~ Management, August 1,: 1975.) Schmidt confirms his lack of under- standing of the FACA by asserting:~ It makes little sense to treat out- side consultants as "Agencies" for purposes of FOIA, but deny the same protection to advisory committee members. The FOIA defines "agency" as broadly as possible to compel disclosure, while the FACA makes plain that agency-type disclosure is required of advisory committees at the same time that, by definition, they are not agencies. PAGENO="0310" 304 DEPARTMENT OF HEALTH. EDUCATION, AND WELFARE PUBLIC HEALTH SERVICE FOOD AND DRUG ADMINISTRATION ROCKVILLE, MARYLAND 20852 9 JP~ 1976 Honorable Lee Metcalf Chairman, Subcommittee on Reports Accounting and Management Committee on Government Operations United States Senate Washington, D.C. 20510 Dear Senator Metcalf: I have carefully considered the questions posed in your November 20 letter to me. While I found your questions probing, my review has reaffirmed my belief that the Food and Drug Administration' s (FDA) use of advisory~ committees comports with both the letter and the spirit of the Federal Advisory Committee Act (FACA). First, with respect to your question concerning §2.300(b)(5)(i-iv) and (b)(6)(iii) of the proposed FDA procedural regulations, I do not agree with the suggestion that these sections narrow the scope of the Federal Advisory Committee Act or exclude from coverage any group that Congress intended to be treated as an advisory committee. There is no indication in the statute or its legislative history that the Act was intended to cover every meeting between an agency and persons or groups interested in its activities. Indeed, if the Act were so interpreted, it would seriously encroach upon the First Amendment right of citizens to meet with and petition their Government. See Sierra Club v. Butz, 349 F. Supp. 934 (1972). In recognition of this concern, the joint Justice Department-Office of Management and Budget (0MB) memorandum published in the Federal Register to guide administrative agencies on the FACA states in part: [T]he 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. 38 Fed. Reg. 2307 (Jan. 23, 1973). This interpretation of the Act was recently upheld in Nader v. Baroo~y, 396 F. Supp. 1231 (D.D.C., 1975). The Baroody case concerned biweekly meetings held between the White House staff and selected individuals and groups as part of a White House program to exchange views between the Government and the private sector. The attendance at the meetings was by specific invitation to named individuals. During meetings the private PAGENO="0311" 305 Page 2 - Honorable Lee Metcalf participants, sometimes on their own initiative, provided views and recommendations on a variety of subjects. The sole issue raised was whether this series of meetings, or individual meetings viewed separately, created one or mOre "advisory committees" within the meaning of the Act. The district court analyzed the Act's definition of advisory committee: The Act contains a very broad, imprecise definition, and in this respect is not a model of draftsmanship. The very vagueness and sweeping character of the definition permits a reading which could include the ad hoc groups here involved as well as any less formal c~onference of two or more non- government persons who advise the President. A careful rev~iei of the legislative history throws some light on the problem. After discussing at length th~ legislative history of the FACA, the court concluded: That the Act was not intended to apply to all amorphous, ad hoc group meetings is also made clear by judicial construction given the statute since enactment. Nader v. Baroody, supra, at 1232, 1233. The court continued: Examination of the Act as a whole, and the indicators found there, confirms the legislative history, and points to the conclusion that Congress was concerned with advisory committees formally organized which the President~or an executive department or Official directed to make recommendations on an identified governmental policy for which specified advice was being sought. PAGENO="0312" 306 Page 3 - Honorable Lee Metcalf Nader. V. Baroody, supra, at 1234. The FDA believes that §2.300(b)(5)(i) and (iii) and (b)(6)(iii) fall squarely within the holding of the Baroody case. Indeed, if the groups mentioned in these sections had to be considered advisory committees, every person or group that offered its views to FDA on any matter would be an advisory committee. It is similarly clear the consultants and consulting firms hired by the Agency to provide advice are not advisory committees (as stated by §2.300(b)(5)(ii) and (iv)). The legislative history of the Act demonstrates that paid consultants are excluded from the Actts coverage. Conf. Rep. No. 92-1403, 92d Cong., 2d Sess. as reprinted in 1972 U.S. Code Cong. and Admin. News at 3509. That exclusion was affirmed in the recent decision in Lombardo v. Handler, 397 F. Supp. 792, 799 (D.D.C. 1975). Thus, FDA~'s regulations do not narrow the scope of the Act, but simply comply wilh it. I believe\that any citizen or group has a right to meet with the Government in private to exchange views or seek advice from the agency. Since such\ meetings are instigated by outside parties to seek advice from FDA, and a~e not initiated by FDA to seek advice, the FACA does not in my view require such groups to be chartered as advisory committees. If all meetings between FDA employees and nongovernmental personnel were required to comply with the FACA, citizen access to the Agency would be severely restricted. While it is not literally accurate to state that FDA would be precluded from meeting with outside parties at all if FACA applied to every such meeting, it is true that such meetings could be held only if the requirements of sections 9 and 10 of the Act were complied with. Thus, it would be necessary to write a charter for each such meeting, publish notice of it in the Federal Register, and obtain 0MB clearance. Surely, Congress did not intend to place such onerous restrictions on meetings between the public and its Government, and we believe that the language of FACA itself and the cases discussed above bear this out. Second, it is true that FDA in the past has participated in the Coordinating Conference on Health Information (CCHI), a group composed of representatives from several Government agencies, the American Medical Association (AMA) and other private groups concerned with health care. The CCHI was never, however, a formally constituted group convened at FDA's request, and it had no bylaws or organizational structure. Rather, it met on an informal basis PAGENO="0313" 307 Page 4 - Honorable Lee Metcalf~ to provide a forum for the exchange of information among those interested in controlling medical quackery. The CCHI did not advise FDA, nor made recommendations to the Agency. It should be noted that within the last year, CCHI has gone out of existence because of the termination of the AMA's Division of Investigations, which supplied it with much of its information. Third, I remain of the view th~t~the closing of deliberative portions of advisory committee meetings comports with the requirements of the Federal Advisory Committee Act. Our written determination to close portions of particular meetings, which initially accompanied FDA's monthly Federal Register announcement of advisory committee meetings, sets forth some of the policy reasons behind the decision to close portions of meetings: Members of committees have frequently agreed to serve and to provide their most candid advice on the understanding that the discussion would be private in nature. Many experts would be unwilling to engage in candid public discussion advocating regulatory action against a specific product.~ If the committees were not to engage in the deliberative portions of their work on a confidential basis, the conseque~nt loss of frank and full discussion among committee members would severely hamper the value of these committees. The Food and Drug Administration is relying heavily on the use of outside experts to assist in regulatory decisions. The Agency's regulatory actions uniquely affect the health and safety of every citizen, and it is imperative that the best advice be made available to it on a continuing basis in order that~ it may most effectively carry out its mission. Another justification for closing~ deliberative sessions is that FDA is a law enforcement agency. Although many of the decisions it must make have a scientific or medical basis, the final result is a legal determination about what companies can and cannot do, a determination that ultimately is backed by civil and criminal sanctions. Thus, although advisory committees are oriented toward resolving scientific issues, the nature of FDA's role makes it impossible~ to separate the scientific issues from their regulatory significance. The Agendy frequently cannot afford to have the orderly development of its law enforcement policy disrupted by premature disclosure of Agency positions in the context of open advisory committee deliberations. PAGENO="0314" 308 Page 5 - Honorable Lee Metcalf We believe that the Agency's position in this matter can be legally justified. Section 10(d) of the FACA permits an advisory committee meeting to be closed upon a determination that it is "concerned with natters listed in section 552(b) of Title 5." Section 10(b) requires advisory committee records, including transcripts, to be disclosed "subject to section 552 of Title 5." It has consistently been our position, and is that of the Departnent of Justice as well, that exemption 5 of the Freedom of Information Act (FOIA) for intra and interagency memoranda, 5 U.S.C. 552(b)(5), authorizes the closing of deliberative sessions not only to consider an otherwise exempt document, but to formulate advice that would be exempt under FOIA if reduced to writing. The Department of Health, Education, and Welfare's position was set forth in a November 17, 1972 Federal Register notice (37 Fed. Reg. 24453) and then in regulations, 38 Fed. Reg. 6668 (March 12, 1973); 21 CFR §2.l20(a)(18). The draft Justice Department-OMB guidelines to executive agencies on advisory committees were published on January 23, 1973. 38 Fed. Reg. 2306. Both documents make clear that deliberative sessions at which regulatory options are considered and recommendations made. are, in fact, analogous to considera- tion of inter and intraagency memoranda. I am, of course, aware of the District Court's opinion in Wolfe v. Weinberger, C.A. 74-454 (D.D.C. 1975), which held that the antacid advisory committee was not an "agency" within the meaning of FOIA and that the transcripts of the closed sessions of the panel were therefore not exempt from disclosure. The Justice Department, for reasons unrelated to the merits of our position, has declined to appeal the case, and we have complied with the Court's order to release the transcripts. The Wolfe decision remains contrary to the Court of Appeals decision in Washington .Research Project, Inc. v. HEW, 504 F.2d 238 (D.C. Cir. 1974), which implicitly recognized that exemption 5 of the FOIA is a legitimate basis for closing an advisory committee meeting.' This view is shared by the Department of Justice, which has agreed to defend FDA's continued reliance on exemption 5 against any subsequent challenge. 1/ See also Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) and Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972) cert. denied 410 U.S. 926 (1913), where it was held that exemption 5 of the Freedom of Information Act applied to reports from con- sultants on the ground that consultants should be able to give their opinions freely, without fear of publicity. The two courts of appeal treated these written opinions as interagency memoranda. It makes little sense to treat outside consultants as "Agencies" for purposes of FOIA, but deny the same protection to advisory committee members. PAGENO="0315" 309 Page 6 - Honorable Lee Metcalf A case currently before the Court of Appeals for the District of Columbia Circuit poses this very issue. Aviation Consumer Action Project v. Washburn, No. 75-1086. I look forward to clarification of this question by the Court. In the meantime, I have instructed FDA's advisory committees to continue to operate as before, including holding closed sessions in those circumstances where it is essential to permit free and frank deliberations, pursuant to the criteria of 21 CFR 2.120(a)(18). FDA advisory committees are not~ delegated decisionmaking authority. They do make recommendations to the Commissioner on various regulatory actions. While the Commissioner remains free to accept or reject a consultant's advice and recommendations, the Agency does feel it important that the actual deliberation and voting on the recommendations be insulated as much as possible, consistent with FACA, from outside pressures and influences. - Fourth, the decision whether to transcribe advisory committee meetings is left to each advisory committee. This has been the position of the Food and Drug Administration since at least November 1970. Thus, the provisions of proposed 21 CFR 2.314 do not represent any change in Agency policy in this regard. Even where no transcript is made, however, §2.313 requires that detailed minutes of closed portions of advisory committee meetings be maintained. Your final two questions, respecting special Government employees and data supplied to advisory committees considering investigational new drugs and new drug applications~were addressed in my letters to you of December 24 and 5, 1975. We would be pleased to answer any further questions you might have respecting our use of advisory éo~nmittees. Sincerely yours, Alexander M. Schmidt, M.D. Commissioner of Food and Drugs PAGENO="0316" 310 Subcommittee staff study of the representation of the top 100 defense contractors on Department of Defense advisory committees in 1974 Summary: ---Twenty-nine of the top 30 defense contractors are repre- sented on DOD advisory committees. Of the top 50 companies, only 13 are not represented on them. ---Lockheed, the top defense contractor, has 11 employees on 12 DOD advisory committees. Boeing, No. 2, has 12 em- ployees serving on 14 DOD advisory committees. ---The leader is 14th-ranked AT&T, with 19 employees serving on 21 DOD advisory committees. Many of these contractor representatives are retired generals, former high-ranking civilian officials of the De- partment of Defense or the individual services, and former congressional staff. The details follow, along with biographies---supplied by the Department of Defense at subcommittee request---of eight of these advisory committee members. PAGENO="0317" 311 - - -Each of the top 20 companies i~ represented on a DOD advisory committee. Of the top 30 companies, eac1~ is represented, with the exception of the 22nd (Standard Oil of California). ---Of the first 50 companies, only 13 are not represented on DOD advisory committees. - - -Of the second 50 companies (51st through 100th), only 17 are represented on DOD advisory conirnittees. Of the last 20 companies on the list (81st through 100th), only five are represented on DOD advisory committees. NUMBER OF CONPANIES AM)NG TOP 100 DEFENSE CONTR&CTORS PEPPESE~ffED ON DOD ADVISORY CDM~1ITrEES, BY RANK Company Rank No. of Conpanies Representcd 1st through 10th 10 11-20 10 21-30 9 31-40 4 41-50 3 51-60 6 61-70 H 2 71 - 80 4 81-90 2 91-100 3 * Of the top 30 companies, 96.6% were represented * Of the first 50 companies, 74% were represented * Of the second 50 companies, 34% were represented * Of the last 20 companies, 25% were represented PAGENO="0318" 312 TOP 100 CONTRACTORS WITH EMPLOYEES SERVING ON DOD ADVISORY COMMITTEES Numherof Numberof employees serving on advisory Company Rank committees DOD advisory committees on mhich they serve Aerospace 72 9 9 AT. & T 14 19 21 AVCO 60 1 1 Boeing 2 12 14 Chrysler 26 1 2 Computer Sciences 93 1 1 Cutler Hammer 88 1 1 duPont 57 i 1 E Systems 55 2 2 Eastman Kodak 80 1 1 Emerson Electric 74 1 1 Exxon 19 2 2 FMC 40 1 1 Fairchild Industries 34 4 Ford 27 1 1 General Dynamics 6 II 11 General Electric 7 5 12 GenersJ Motors 16 6 Goodyear 46 2 2 Gould, Inc 53 i 2 Grumman Corp s 1 1 Honeywell 23 5 Hughes Aircraft 9 11 11 IBM 18 4 4 ITT 30 5 Johns Hopkins 62 1 1 LTVCorp 17 2 3 Litton 8 1 2 Lockheed 1 11 12 Martin Marietta 20 5 6 MIT 56 13 18 McDonnell Douglas 4 7 8 Mitre Corp 86 2 5 MobilOil 33 2 2 Northrop 12 6 8 PanAm 58 1 1 RCA 25 5 5 Raytheon 11 8 14 Rockwell 10 4 4 Sanders Associates 45 2 4 Signal Company 63 2 4 Singer 32 3 3 Sperry Rand 15 8 9 SverdrupandP.&A 78 1 2 System Development 84 1 1 TRW 24 7 11 Teledyne 29 2 3 Tenneco 28 3 3 Texas Instruments 42 7 10 Textron 13 1 1 United Technologies 3 5 5 Westinghouse Electric 21 5 5 Xerox 97 4 PAGENO="0319" 313 To~ 100 CONTRACTORS Without EMPLOYEES ON DOD ADVISORY COMMITTEES Rank and conipaivij 90th A-T-O 41st Hercules Inc. 77th Algernon Blair 69th Walter Kidde & Co. 35th Amerada Hess 82nd Lear Siegler 49th American Motors 81st Loral Corp. 100th Ashland Oil 6~th Motorola 73rd Atlantic Richfield 89th National Presto 68th Automation md. 52nd Norris Industries 36th Bendix 65th North Americall Philips 85th Burroughs 59th Ogden Corp. 91st Caterpillar 64th Pacific Resources 76th Chamberlain Manufacturing 08th Procter & Gamble 67th Charles Stark Draper Labs 39th R. J. Reynolds md. 96th Clabir Corp. 43rd Santa Fe Engineers 87th Coastal States Gas 83rd Shell Oil 92nd Continental Oil 22nd Standard Oil of California 48th Control Data 50th Standard Oil (Indiana) 79th Day & Zimmerman 99th Tesoro Petroleum 95th General Foods 31st Texaco 38th General Telephone & Electric 54th Thiokol 37th General Tire & Rubber 47th Titan Group 51st Guan Oil & Refining 75th Towne Realty, Woerfel Corp. 71st Gulf Oil 94th Uniroyal 44th Harris Corp. 70th Vinnell Corp. 61st Harsco INDIVIDUAL REPRESENTING DEFENSE CONTRACTORS ON DOD ADvIsORY COMMITTEES, BY COMPANY AEROSPACE CORP. (1) Wni. Barry-Advanced Missile Materials Research Advisory Group. (2) James McCormack-Board of Advisers, Industrial College of the Armed Forces. (3) F. Leverton-Defense Communications Agency Scientific Advisory Group. (4) George Mihlburn-Scientific Advisory Committee. (5) Allen Donovan-Defense Science Board Cruise Missile Task Force. (6) John Travis-Defense Science Board Task Force on Surface Naval War- fare. (7) Wallace Warren-High Energy Laser Review Group-Subpanel on Laser Devices. (8) Robert Cooper-High Energy Laser Review Group-Subpanel on Laser Hardened Materials and Structures. (9) Ivan Getting-USAF Science Advisory Board. A.T. & T. (1) John Debutts-Academic Advisory Board to the Superintendent, United States Naval Academy. (2) Richard Hough-Board of Advisors to the Superintendent, Naval Post- graduate School; also Defense Science Board. (3) Virginins Vaughan-Chief of Naval Operations Industry Advisory Com- mittee for Telcomm. (4) Edward Goldstein-Defense Communications Agency Scientific Advisory Group. AT. & T. SUBSIDIARIES Bell Telephone (1) George Smith-Advisory Group on Electron Devices-Working Group B. (2) Eugene Gordon-Advisory Group on Electron Devices-Working Group C. (3) Robert i~Iiller-Advisory Group on Electron Devices-Working Group D. (4) Eugene Reed-Army 1~Iaterial Acquisition Review Committee. (5) Solomon Buchsbaum-Defense Science Board. (6) Jack Logie-Defense Science Board Anti-Ballistic Missile Systems Task Force. (7) Warren Tyrell-Navy and Marine Corps Acquisition Review Committee. (8) Douglas Burke-Task Force on Modernization of DOD Specifications Standards and Directives. PAGENO="0320" 314 Sandia Labs ~ (1) Carter Broyles-Scientific Advisory Group on Effects (SAGE); also Stemming and Closure Panel. (2) Morgan Sparks-Defense Science Board Task Force on Export of US Tech; Implications to US Defense-Semiconductor Subcomt. (3) Walter Herrimann-Defense Science Board, Systems Vulnerability Task Force. (4) John Wirth-Defense Science Board. Systems Vulnerability Task Force. (5) Weiidell Weart-Stemming and Closure Panel. (6) Thomas Cook-USAF Science Advisory Board. Western Electric (1) Arthur Foster-Chief of Naval Personnel Civilian Advisory Board. AVCO (1) Leonard Henry-Board of Visitors, United States Military Academy. BOEING (1) Oliver Boileau-Army Materiel Acquisition Review Committee; also De- fense Science Board; also Defense Science Board Anti-Ballistic Missile Systems Task Force. (2) Charles Ellis-Army Scientific Advisory Panel. (3) D. E. Strand-Aeronautical Systems Division Aircraft Structural Integ- rity Program, Industrial Advisory Group. (4) Wm. Hamilton-Scientific Advisory Committee. (5) H. W. Withington-Defense Science Board Airframe Subcomt. to Spec. Adv. Comt. on Export of US Tech; Implications to US Defense. (6) Milton Piatok-Defense Science Board Anti-Ballistic Missile Systems Task Force. (7) Ben Plymale-Defense Science Board Anti-Ballistic Missile Systems Task Force. (8) David McColl-Defense Science Board Task Force on Identification Friend, Foe or Neutral. (9) E. H. Boullioun-Military Airlift Committee of National Defense Trans- portation Association. (10) T. E. Wilson-Navy and Marine Corps Acquisition Review- Committee. (11) Robert Sellers-Task Force on Modernization of DOD Specifications, Standards and Directives. (12) Wm. Gray-USAF Science Advisory Board. CHRYSLER (1) George J. Huebner, Jr.-Army Scientific Advisory Panel; U.S. Army Tank- Automotive Command Scientific Advisory Group. COMPUTER SCIENCE CORP. (1) Michael Busch-USAF Science Advisory Board. CUTLER HAMMER (1) E. B. Fitzgerald-Industry Advisory Council. DU PONT (1) John Zapp-U.S. Army Armaments Command Scientific Advisory Group. E SYSTEMS (1) Lloyd Lauderdale-Scientific Advisory Committee. (2 Oliver Kirby-Nat'l Security Agency Scientific Adv. Board Electronics and Data Processing Adv. Panel (SIGINT Systems). EASTMAN KODAK (1) Charles Spoelhof-Scientific Advisory Committee. PAGENO="0321" 315 EMERSON ELECTRIC (1) W. L. Davis-Industry Advisory Council. EXXON (1) George McCullough-Chief of Naval Personnel Civilian Advisory Board. (2) Thomas Barrow-Secretary of the Navy Oceanographic Advisory Committee. FMC (1) Harrison Randolph-National Industrial Reserve Review Committee. FAIRCHILD IND (1) James Early-Advisory Grouj on Electron Devices-Working Group B; also-Defense Science Board Task Force on Export of U.S. Tech: Implications to U.S. Defense-Semiconductor Subcomt. (2) Alfred Esposito-Army Materiel Acquisition Review Committee. (3) Edward Uhl-Industry Advisory Council. FORD (1) Oscar Marx-Defense Systems Management School Board of Visitors. GENERAL DYNAMICS (1) M. Dublin-Aeronautical Systems Division Aircraft Structural Integrity Program, Industry Advisory Group. (2) M. Alexander-Aeronautical Systems Division Aircraft Structural Integ- rity Program, Industry Advisory Group. (3) David Lew-is-Defense Panel on Intelligence; also Industry Advisory Council. (4) Grant Hansen-Defense Sc Bd. Airframe Subcomt. to Spec. Adv. Comt. on Export of U.S. Tech; Implications to U.S. Defense. (5) Leonard Buchanan-Defense Science Board Task Force on Surface Naval Warfare. (6) Edward Heinemann-Navy and Marine Corps Acquisition Review Com- mittee. (7) John Rannenberg-Navy and Marine Corps Acquisition Review Commit- tee. (8) Carleton Shugg-Navy and Marine Corps Acquisition Review Committee. (9) Harold Yost-Navy and Marine Corps Acquisition Review Committee. (10) Douglas MacMillan-Secretary of tl1e Navy Oceanographic Advisory Committee. GENERAL ELECTRIC (1) Rowland Redington-Advisory Group on Electron Devices-Working Group C. (2) Daniel Fink-Army Materiel Acquisition Review Committee; also Army Scientific Advisory Panel; also Scientific Advisory Committee. (3) Burton Brown-Army Scientific Advisory Panel; also USAF Science Ad- visory Board. (4) Jack Hope-Army Scientific Advisory Panel. (5) Robert McBride-Defense Industry Advisory Group-Europe. (6) Fred MacFee-Defense Science Board Special Adv. Comt. on Export of U.S. Tech.; Implications to U.S. Defense-Jet Engine Subcomt. (7) Laddie Stahl-Scientific Advisory Group, Aviation Systems. (5) Richard Porter-USAF Science Advisory Board. (9) Spiridon Suciu-USAF Science Advisory Beard. GENERAL MOTORS (1) Gordon Holbrook-Defense Science Board Special Adv. Comt. on Export of U.S. Tech.; Implications to U.S. Defense-Jet Engine Subcomt. (2) Mflford Barron-Military Airlift Committee of National Defense Trans- portation Association. (3) James Roche-National Committee for Employer Support of the Guard and Reserve; also-Navy and Marine Corps Acquisition Review Committee. (4) Harrison Goodhue-Navy and Marine Corps Acquisition Review Commit- tee. 70-426 0 - 76 - 21 PAGENO="0322" 316 (5) Craig Marks-U.S. Army Tank-Automotive Command Scientific Advisory Group. GOODYEAR TIRE (1) Russell DeYoung-Industry Advisory Council. (2) E. Hartig-USAF Science Advisory Board. GOULD INC. (1) Edw-ard David-Defense Panel on Intelligence; also Defense Science Board. GRUMMAN CORP. (1) Jerry Sandler-Task Force on Moderization of DOD Specifications, Stand- ards and Directives. HONEYWELL (1) Paul Kruse-Army Scientific Advisory Panel. (2) James Renier-Army Scientific Advisory Panel; also U.S. Army Troop Support Command Scientific Advisory Group. (3) Stephen Keating-Industry Advisory Council. (4) Theodor Hueter-Navy and Marine Corps Acquisition Review Committee. HUGHES AIRCRAFT (1) Ira Eaker-Air Force Logistics Command Advisory Board. (2) Nicholas Yaru-Army Scientific Advisory Panel. (3) Thomas WTalker_Defense Industry Advisory Group-Europe. (4) Albert Wheelon-Defense Science Board. (5) Alexander Jerrems-Defense Science Board Task Force on Identification Friend, Foe or Neutral. (6) Lawrence Ryland-Industry Advisory Council. (7) Reynolds Gardner-DOD-Industry ILS Advisory Committee. (8) Robert Hogg-DOD-Industry ILS Advisory Committee. (9) Walter Maguire-Navy and Marine Corps Acquisition Review Committee. (10) Frank Miller-Navy and Marine Corps Acquisition Review Committee. (11) Paul Visher-Task Force on Modernization of DOD Specifications, Stand- ards and Directives. IBM (1) Emanuel Piore-Community College of the Air Force Advisory Committee (2) Bob Evans-Defense Science Board. (3) Charles Johnson-Joint Strategic Target Planning Staff Scientific Ad- visory Group. (4) Raymond Fox-Secretary of time Navy's Advisory Board on Education and Training. ITT (1) Charles Herzfeld-Chief of Naval Operations Executive Panel Advisory Committee; also Defense Science Board; also Defense Science Board, Net Tech nical Assessment Task Force of; also USAF Science Advisory Board. (2) George Arthur-Defense Industry Advisory Group-Europe. JOHNS HOPKINS (1) C. Conley-Department of Defense Hemoglobinopathy Policy Review Committee. LTV CORP. (1) John welch-Defense Systems Management School Board of Visitors; also USAF Science Advisory Board. (2) E. Cvetko-Navy and Marine Corps Acquisition Review Committee. LITTON (1) Herbert K. Weiss-Scientific Advisory Committee of the Ballistic Research Laboratories; also U.S. Army Armaments Command Scientific Advisory Group. PAGENO="0323" 317 LOCKHEED (1) Willis Hawkins-Army Scientific Advisory Panel; also Defense Sc Bd. Airframe Subcomt. to Spec. Adv. Comt. on Exports of U.S. Tech; Implications to U.S. Defense. (2) E. Himmel-Aeronautical Systems Division Aircraft Structural Integrity Program, Industry Advisory Group. (3) 5. Rogers-Aeronautical Systems Division Aircraft Structural Integrity Program, Industry Advisory Group. (4) Frederick Oder-Scientific Advisory Committee. (5) Norman Orwat-Defense Industry Advisory Group-Europe. (6) Stanley Burriss-Defense Science Board. (7) 0. Adams-Defense Science Board Task Force on Training Technology. (8) Daniel Haughton-Military Airlift Committee of National Defense Trans- portation Association. (9) M. Billups-National Industrial Reserve Review- Committee. (10) Donald Wilder-Navy and Marine Corps Acquisition Review Committee. (11) Robert Fuhrman-Navy and Marine Corps Acquisition Review Commit- tee. MARTIN MARIETTA (1) Lawrence Delaney-Army Scientific Advisory Panel. (2) George Mansur-Chief of Naval Operations Industry Advisory Committee for Telecomm. (3) George Bunker-Defense Panel on Intelligence; also Industry Advisory Council. (4) James Carpenter-DOD Industry ILS Advisory Committee. (5) Ralph Bennett-Navy and Marine Corps Acquisition Review Committee. MIT (1) Paul Kelley-Advisory Group, on Electron Devices-Working Group D. (2) Robert Rediker-Advisory Group on Electron Devices-Working Group D; also High Energy Laser Review- Group; also U.S. Army Missile Command Scientific Advisory Group. (3) Gerald Dinneen-Army Materiel Acquisition Review Committee; also Defense Communications Agency Scientific Advisory Group; also USAF Science Advisory Board. (4) John Kirk-Scientific Advisory Committee. (5) Norman Rasmussen-Defense Science Board; also Defense Science Board, Net Technical Assessment Task Force of. (6) Louis Marquet-High Energy Laser Review Group-Subpanel on Propa- gation. (7) Alfred Keil-Naval Research Advisory Committee. (8) Elting Morison-Secretary of the Navy's Advisory Committee on Naval History. (9) Eugene Covert-USAF Science Advisory Board. (10) Jack Kerrebrock-USAF Science Advisory Board. (11) James Mar-USAF Science Advisory Board. (12) John McCarthy-USAF Science Advisory Board. (13) Frederick Frick-USAF Science Advisory Board. M'DONNELL DOTJGLAS (1) Earl Morgan-Army Materiel Acquisition Review Committee. (2) Robert Johnson-Army Science Advisory Panel; also Defense Science Board Airframe Subcomt. to Spec. Adv. Comt. on Export of U.S. Tech; Impli- cations to U.S. Defense. (3) R. Goran-Aeronautical Systems Division Aircraft Structural Integrity Program, Industry Advisory Group. - (4) E. Thrall-Aeronautical Systems Division Aircraft Structural Integrity Program. Industry Advisory Group. (5) James McDonnell-Industry Advisory Council. (6) Robert Hage-Military Airlift Committee of National Defense Transpor- tation Association. (7) Joseph Waidner-Navy and Marine Corps Acquisition Review Committee. PAGENO="0324" 318 MITRE CORP (1) Robert Everett-Defense Communications Agency Scientific Advisory Group; also Defense Science Board Task Force on Independent Research and Development; also USAP' Science Advisory Board. (2) N. Harmon-High Energy Laser Review Group-Subpanel on Laser Hardened Materials and Structures; also High Energy Laser Review Group- Subpanel on Vulnerability and Effects. MOBIL OIL (1) Creighton Burk-Secretary of the Navy Oceanographic Advisory Commit- tee. (2) Dayton Clew-eli-Secretary of the Navy Oceanographic Advisory Commit- tee. NORTHROP (1) Roy Jackson-Army Materiel Acquisition Review Committee. (2) T. Rooney-Aeronautical Systems Division Aircraft Structural Integrity Program, Industry Advisory Group. (3) Geoffrey Parsons-Defense Industry Advisory Group-Europe. (4) Donald Hicks-Scientific Advisory Group on Effects (SAGE); also De- fense Sc!. Bd. Airframe Subcomt. to Spec. Adv. Comt. on Export of U.S. Tech; Impilcations to U.S. Defense; also-Defense Science Board, Net Technical As- sessment Task Force of. (5) Welko Gasich-Joint Strategic Target Planning Staff Scientific Advisory Group. &tbskli.ary-Page Coni.nivnications (1) James i~IcLeod-Chief of Naval Operations Industry Advisory Committee for Telcomm. PAN AMERICAN (1) Wilma Rogalin-Defense Advisory Committee on Women in the Services. RCA (1) Gerald Herzog-Advisory Group on Electron Devices-Working Group B. (2) Ralph Simon-Advisory Group on Electron Devices-Working Group C. (3) David Shore-Army Materiel Acquisition Review Committee. (4) John Williams-Scientific Advisory Committee. (5) F. Paul Henderson-Defense Science Board Task Force on the Middle East. RAYTR:EON (1) L. Clampitt-Advisory Group on Electron Devices-Working Group A. (2) Joseph Shea-Army Materiel Acquisition Review Committee; also De- fense Science Board Task Force on Identification Friend, Foe, or Neutral; `also Defense Systems Management Board of Visitors; also Joint Strategic Target Planning Staff Scientific Advisory Group; also Task Force on Modernization of DOD Specifications, Standards and Directives. (3) Charles Fowler-Defense Science Board; also Defense Science Board Task Force on the Middle East; also USAF Science Advisory Board. (4) Zdzislaw Poznanski-Defense Science Task Force on the Middle East. (5) Thomas Phillips-Industry Advisory Council. (6) John Parent-DOD-Industry ILS Advisory Committee. (7) Donald Earles-DOD-Industry iris Advisory Committee. (8) Brainerd Holmes-Navy and Marine Corps Acquisition Review- Commit- tee. ROCKWELL (1) H. Hoge-Aeronautical Systems Division Aircraft Structural Integrity Program. Industry Advisory Group. (2) Willard Rockwell-Industry Advisory Council. (3) William Roberts-National Board for the Promotion of Rifle Practice. (4) George Messenger-Special Working Group on Hardness Assurance. PAGENO="0325" 319 SANDERS ASSOCIATES (1) John Egan-Chief of Naval Operations Industry Advisory Committee for Telcomm. (2) George Sebestyen-Defense Science Board; also Defense Science Board Task Force on Surface Naval Warfare also Naval Research Advisory Committee. SIGNAL COMPANIES (1) Frank Sanders-Ariny Materiels Acquisition Review Committee; also Na- tional Board for the Promotion of Rifle Practice; also Navy and Marine Corps Acquisition Review Committee. Subsidiary-Garrett Corp. (1) L. Franklyn-Defense Science Board Special Adv. Comt. on Exports of U.S. Tech.; Implications to U.S. Defense-Jet Engine Subcomt. SINGER (U Eugene Ferrand-DOD Industry ILS Advisory Committee. (2) R. DuBois-Navy and Mariiie Corps Acquisition Review- Committee. (3) James Healey-U SAF Science Advisory Board. SPERRY RAND (1) Richard T)anion-Advisory Group on Electron Devices-Working Group A. (2) John White-Army Materiel Acquisition Review Committee. (3) Fred Hoffman-Chief of Naval Operations Executive Panel Advisory Coinnuttee. (4) Thomas Wolfe-Chief of Naval Operations Executive Panel Advisory Coinnnttee. (5) Charles Wolf-Defense Science Board, Net Technical Assessment TaSk Force of. (6) J. Lyet-Industry Advisory Council. (7) Ivan. Sutherland-Navy Resèai~ch Advisory Committee. (S Willis Ware-National Sec~irfty Agency Scientific Advisory Board; also USAF Science Advisory Board. SVERDRFP & PARCEL & ASSOCIATES (1) Leif Sverdrup-Board of Visitors, United States Military Academy; also Military Airlift Committee of National Defense Transportation Association. SYSTEM DEVELOPMENT (1) Jackson Maxey-Defense Science Board, Net Technical Assessment Task Force of. TRW (1) Richard DeLauer-Army Materiel Acquisition Review- Committee; also Defense Science Board. (2) James Burnett-Defense Conimunications Agency Scientific Advisory Group; also Nati. Security Agency Scientific Advisory Board SIGINT Explora- tion Advisory Panel; also Joint Strategic Target Planning Staff Scientific Ad- visory Group. (3) Joseph Gorman-Scientific Advisory Committee. (4) Theodore Jacobs-Scientific Advisory Committee; also U.S. Army Missile Command Scientific Advisory Group. (5) R. Mettler-Defense Panel on Intelligence. (6) Stanley Czerwinski-Defense Science Board Task Force on Exports of U.S. Tech.; Implications to U.S. Defense-Semiconductor Subcomt. (7) Lance Johnson-Task Force on Modernization of DOD Specifications, Standards and Directives. TELEDYNE (1) Barry Shillito-Board of Advisers, Industrial College of the Armed Forces; also Defense Systems Management School Board of Visitors. PAGENO="0326" 320 (2) Ira Nichols-U.S. Army Junior Science and Humanities Advisory Commit- tee. TENNECO subsidiary-Newport News Shipbuiidi~ng (1) A. Cox-Navy and Marine Corps Acquisition Review Committee. (2) C. Dart-Navy and Marine Corps Acquisition Review Committee. (3) R. Stokes-Navy and Marine Corps Acquisition Review- Committee. TEXAS INSTRUMENTS (1) Turner Hasty-Advisory Group on Electron Devices-Working Group A. (2) Harold Toombs-Advisory Group on Electron Devices-Working Group B. (3) Robert Lockerd-Army Scientific Advisory Panel. (4) Fred Bucy-Defense Science Board; also Defense Science Board Task Force on Export of U.S. Technology; Implications to U.S. Defense; also Defense Science Board, Net Technical Assessment Task Force of. (5) Charles Phipps-Defense Science Board Task Force on Export of U.S. Technology; Implications to U.S. Defense; also Defense Science Board Task Force on Export of U.S. Tech; Implications to U.S. Defense-~Semiconductor Subcomt. (6) Mark Shepherd-Industry Advisory Council. (7) Weldon Word-Navy and Marine Corps Acquisition Review Committee. TEXTRON (1) Wm. Miller-Industry Advisory Council. UNITED TECHNOLOGIES subsidiary-United Aircraft (1) Harvey Jolly-Defense Industry Advisory Group-Europe. (2) W. Kuhrt-Defense Sci. Bd. Airframe Subcomt. to Spec. Adv. Comt. on Export of U.S. Tech; Implications to U.S. Defense. (3) Richard Coar-Defense Science Board Special Adv. Comt. on Export of U.S. Tech; Implications to U.S. Defense-Jet Engine Su'bcoint. (4) Win. Gwinn-Industry Advisory Council. (5) Donald Jordan-USAF Science Advisory Board. WESTINGHOUSE ELECTRIC (1) James Hall-Advisory Group on Electron Devices-Working Group C. (2) Donald Povejsil-Chief of Naval Personnel Civilian Advisory Board. (3) Joseph Poux-Defense Industry Advisory Group-Europe. (4) D. Burnham-4ndustry Advisory Council. (5) W'm. Shoupp-Navy and Marine Corps Acquisition Review Committee. XEROX (1) Benjamin Kazam-Advisory Group on Electron Devices-Working Group C. (2) Donald Steininger-Defense Science Board Task Force on Export of U.S. Technology; Implications to U.S. Defense; also Defense Science Board, Net Technical Assessment Task Force of. (3) Steven Lukasik-Defense Science Board, Net Technical Assessment Task Force of. PAGENO="0327" 321 Biographies follow for these eight~members of DOD advisory committees: Ira C. Eaker: Air Force Logistics Con~aand Advisory Board (AFLCAB) Alfred L. Esposito: Army Materiel Acquisition Review Committee (AMARC) Daniel J. Fink: AMARC; Army Scientific Advisory Panel (ASAP); Defense Intelligence Agency Scientific Advisory Committee (DIA-SAC) Grant L. Hansen: Defense Science Bbard Task Force on Export of U.S. Technology: Implications to U.S. Defense (DSB-EUSTIUSD) Willis H. Hawkins: t~B-EUSTIUSD; ASAP Earl J. Mergan: AM~RC Frank Sanders: AMARC; Navy and Marine Corps Acquisition Review Commit- tee (NM2ARC); National Board for the Prommtion of Rifle Practice (NBPRP) To indicate the significance of SQmm of these advisory committees, the biographies are followed by the statemmnt of Chairman Metcalf in the Congressional Record of June 2, 1975, on establishmmnt by the Deputy Sec- retary of Defense of the Acquisition Advisory Group (AAG). The MG was assigned the tas}~ of examining and assessing recoma~nda- tions made in the reports of two other advisory committees, AMARC and NM2ARC, whose mmmbers included somm of the persons listed above. The rosters and annual reports of AMARC and NMCAHC follow Chairman Metcalf's statemmnt. PAGENO="0328" 322 BIOGRAPHICAL DATA LIEUTENANT GENERAL IRA C. EAKER (USAF, RET) General Enker was born in Llano County, Texas, April 13, 1896. He was graduated from South Eastern Normal College, Oklahoma, with an A. B. Degree in 1917. He studied nights at the University of the Philippines 1920-21, and studied law at Columbia University 1923-24 and George Washington University 1924-26. He received an A. B. in Journalism from the University of Southern California in 1933. General Eaker was commissioned a second lieutenant in the infantry, U. S. Army, August 15, 1917, transferring to the Air Corps in November of the same year. He became a rated pilot in September, 1918. He became a captain in the Air Corps July 1, 1920 and advanced through. the grades to brigadier general, January 1942, major general, Septenber 1942, and lieutenant general, September, 1943. General Eaker's-assignments included: acting air officer, Philippine Department, 1921; adjutant, Mitchel Field, 1922-24; Office Chief of Air Corps 1924-26 and again 1939-40. During World War II General Eaker served as commanding officer, 20th pursuit group, 1941; commanding general 8th Bomber Command, 1942; commanding general 8th Air Force, United Kingdom, 1942; commander-in-chief, Mediterranean Allied Air Forces, 1944. General Eaker was deputy commander of the A. A. F. and chief of Air Staff, 1945-1947. He retired in August 1947 to become a vice president. of Hughes Tool Co. 1947-57. In 1957 he became Vice president, Eastern Office, Douglas Aircraft Co., Inc. He became chairman of the Advisory Board, Hughes Aircraft Co. in 1961 - his present position. Business address 1612 K St., N. W., Washington 6, D. C. Hone address 2202 Decatur P1, N. W. Washington 8, D. C. PAGENO="0329" 3~3 -~27 Becerñber-197-3 ~`r:s~*u. L f~'. T~. Name: Alfred L. Esposito NDmc of Compu~: Fairchild ~urns Company Title: Manager Busineas 1\cldress: 1455 Fairchilc~ Drive, Winston Salem, N. C. 27105 Business Telephone: (919) 767-6010 Borne Address: 7022 Leeward Forest Drive, Springfield, Virginia 22151 Borne Telephone: (703) 256-9374~ Legal Voting Residence: Virginia Date and Place of Birth: 26 September 1923, Newark, New Jersey Citizenship: U.S. Marital Status: Married Military Service: U.S. Air Force, 1943-1973 Education: BS Air Force Institite of Technology 1957 MS University of Ccnnccti~t 1963 WORK EXPFRIFNCE General Esposito served in Narsare sunk, ~reen1and, as adjutant and personnel officer with the Greenland Base Command from January 1948 until February 1949, when he was assigned to Headquarters Air Weath~v Service, at Aridrews Aii~ Forc.:e Base, as Assistant Chief, Classification Division. From January to August 1950, he was assigned to Chanute Air Force Base, Ill. , as Chief of Aircrew Classification Testing. He was transferred to Healquarters U. S. Air Force in January 1953 as Chief of Military Recoris Project Office, Air Adjutant GeneraPs Office. From August 1955 to August 1957, General Esposito attended the Air Force institute of Technology at Wrighf-Patterson Air Force PAGENO="0330" 324 Base, Ohio, where he received a bachelor of science degree in acroanutical engineering in 1957. He next was assigned to tIie Air ~ fT:: ~ ~\retfe~rn ~ served first as a nroiect officer in the B~58 Weapon Systems Project Office; in December 1960 became Executive Officer to the Deputy Commander, Systems Management, and in August 1961 was appointed the Assistant for Management. General Esposito returned to Headquarters U.S. Air Farce in September 1963 as the F-ill Sy3tem Officer in the Office of the Deputy Chief of Staff for Systems and Logistics and from March 1966 to August 1968 was the A ssistant for F-Ill System. Program. In August 1968 General Esposito returned to Wright-Patterson ~ir Force Base and was assigned to the Aeronautical Systems Division as Deputy Program Director in the F -111 Program and in October 1969 became the Program Director. In January 1971 he was assigned as the Deputy for Systems, Aeronautical Systems Division. General Esposito became Deputy Chief of Staff, Personnel, Air Force Systems Command, Andrews Air Force Base, Md., in August 1971. In January 1972 he became the Executive Director, Procurement and Production, Defense Supply Agency. General Esposito was appointed in July 1972 by the Secretary of Defense to be the Deputy to the Deputy Assistant Secretary of Defense (Procurement) and Director of Procurement P&.icy. August 2, 1973 - to Present Manager, Fairchild Burns Company PAGENO="0331" 325 27 December 1973 p~:i~so:~i~ T, DATA Name: Daniel 3. Fink Name of Company: General Electric Company Title: \Ti~e President and Gencra~ Manager Business Address: Space Divi~ion, General Electric Company P.O. Box 8555, Philadelphia, Pennsylvania 19101 Business Telephone: (215) 962-1111 Home Address: 1154 Norsam Road, Gladwyne, Pennsylvania 19035 Home Telephone: (215) 527-1810 Legal Voting Residence: Pennsylvania Date and Place of Birth: 13 December 1926, Jersey City, New Jersey Citizenship: U.S. Marital Status: Married Military Service; None Education: B. S. & M. S., Aeronautical Engineering, ~assachusetts Institute of Technology 1948 WORK EXPERIENCE General Electric Company, Valley Forge, Pennsylvania, 1967 to present: Vice President and General Manager, Space Division, 1969; General Manager, Space Systems Organization, 1967-69. Department of Defense, Office of the Secr~tary of Defense, 1963-67: Deputy Director of Defense Research Engineering (Strategic and Space Systems), 1965-67; Aesistant Dii~eètoi 01 Dciaiise Research and Engineering, 1963-65. Allied Research Associates, Inc., Concord, Massachusetts, 1952-63: Vice President, 1959-63; Chief Engineer, 1956-5 9; Chief Project Engineer, 1954-56; Project Engineer, 1952-54. Bell Aircraft Corporation, Buffalo, New York,. 1949-52. Cornell Aeronautical Laboratory, Inc., Butala, New York, 1943. PAGENO="0332" 326 Consultant Positions: Army Scien~Yi .\dvirn~ Panel, 1971-73; DOD Defense Science Board, 1969-72; and Consultant, President's Science Advisory Committee (Strategic Military panel), 1970. Merribershin Bo:~rcis. Committees, and Scientific Societies: Member, American l)efense Preparedness A ssociation~ National Society of Professional Engineers; Corresponding Member, International Academy of Astronautics of the International Astronautical Fcd~ration; AIAA Board of Directors, 1967-6 9; ChairTnan, AJAA Committee on International Cooperation in Space; Space Applications Poard, National Academy of Engineering; National Space Club Board of Governors; and Cosmos Club. PAGENO="0333" SECRETARY OF THE AIR FORCE OFFICE OF INFORMATION COMMAND SERVICES UNIT SOLLINO AFB, D.C. 20332 327 Bk araphy GEANT L. HANSEN ASSISTANT.'SECRETARY OF ThE AIR FORCE (RESEARCH AND DEVELOPME2~T) Mr. Grant L. Hansen became Assistant Secretary of the Air Force (Research and Development) on March 17, 1969. Since 1948 he has been associated with our nation- al space program and milit.ary research and development programs in which he has held engineering and technical program management positions of~increasing responsibility. . He was born in Bancroft, Idaho, on November 5, 1921, and attended public schools in california. During World ~Wer II, he served, in theU.S. Navy from 1940 to 1945 as an electronics technician and, engineer. . After the .war, -h~attended Illinois Institute of Technology where he received a bachelor of science degree in electrical engineering in 1948. He completed advanced studies in engineering and management at the~University of California at Los Angeles and California Institute of Technology. Mr. Hansen went to the Douglas Aircraft Company in 1948 as test conductor for the Mike program at White Sands Proving Grounds and launched 74 of the earliest research and developmentvehicles. He was responsible for the design of Hike launch control and test. equipment. Later, he assumed responsibility for all electrical and electronic engineering for the Mike Ajax, Mike Hercules, Honest John, Sparrow, MB-l, Thor, Thor-Delta, Mike Zeus and Skybolt missile and space systems. He assisted in deployment of the Thor weapon system in England and was technical manager of Sparrow flight testing at the Naval Air Missile Test Center, Point Mugu, California. During his last two years with Douglas Aircraft Company, he was assistant chief design engineer for all missile and space systems. In 1960 he joined the Convair Division of General Dynamics as chief engineer - design, was appointed vice president and program director for NASA's Centaur in 1962, and became vice president, Launch Vehicle Programs, in December 1965. He directed activities located in San Diego, Calif., Vandenberg Air Force Base, Calif., and' Cape Kennedy. OVER (Current as of January 15, 1972) (Local reproduction authorized) ( AV 991-4291 AREA CODE 202/574-4291 PAGENO="0334" 328 Under his management NASA's Centaur high energy upper stage became operational in Project Surveyor and the Atlas space launch vehicle achieved a record of 92 successes in 95 launches and 43 consecutive successful space launches. In 1966 Mr. Hansen was awarded NASA's Public Service Award for leadership and exceptional contributions to the management of the Convair effort in developing and operating the Centaur vehicle system. In 1957 he received a special `recognition award'1 from the Illinois Institute of Technology Alumni Association for "leadership and exceptional scientific and technological accomplishment" in cunmectiom with I~SAs Surveyor I mission. He is a mariiber of the American Astronautical Society; Institute of Electrical and Electronics Engineers; American Institute of Aeronautics and Astronautics, serving on the ~issila Committee, the Eational Board of Directors, and the National Executive Committee; and Tao Beta Pi end Eta Kappa Mu honorary engineering societies. Be is a U.S. National Delegate for the NATO Advisory Group for Aaroapsce Research and Development ~AGARD), U.S. Scientific Committee National Representative for the NATO SHAPE lechnical Centre at The Hague in the Netherlands, and a member of the National Aeronautics and Space Administration Research and Technology Advisory Council. He is listed in "Who's Who in Space" and "Who's Who in America." Mr. Hansen and his wife, the former Iris Beyden of Wilson Township, Ark., have five children. -30- PAGENO="0335" 1 Dècèmber 1913, Kansas City, Mo. - Married, 3~children 329 - January 1975 PERSONAL DATA .. Name:. Willis M. Hawkins Social Security Number:~ 569-07-3808 Name of Company: Lockheed Aircraft Corporation Title: Senior Technical Advisor Business Address: Lockheed Aircraft Corporation P.O. BoxF55l, 2555 No. Hollywood Way Burbank, california 91520 Business Telephone: (213) 847-6448 Home Address: 4249 Empress Avenue Encino, California 91436 Home Telephone: (213). 981-5361 Legal Voting~ California Date and Place of Birth: U. S._Citizen Marital Status: Milita~y Service: None Education: B.S. in Aeronautical Engineering, University of * . Michigan, 1937. . . * WORK EXPERIENCE Company Assignments: Draftsman/Engineer 1937 to 1944, Engineering Dept Manager 1944-1949; Chief Preliminary Design Engineer 1949 to. 1953; Director of Engineering 1953 to 1957; Asst General Manager Missiles and Space Division 1959 to 1960; Vice President 1960 to 1963 all at Lockheed Aircraft Corpor~ation; Assistant SeFcretary of the Army for Research and Development, 1963 to 1966; Vice President Science and Engineering, 1966 to 1974, Lockheed. PAGENO="0336" 330 Willis M. Hawkins Biographica~1 Sketch Page 2 Consultant Positions: NASA, U.S. Army Membership on Boards and Committees: Board of Directors, Lockheed Aircraft Corporation and Wackenhut Corporation; Board of Trustees Riverside Research Institute, Space Program Advisory Council, NASA. Membership in Professional and Scientific Societies: Tau Beta Pi, National Academy of Engineering; Fellow, American Institute of Aeronautics and Astronautic s, Royal Aeronautical Society. Publications Several PAGENO="0337" 331 ~ December 1973 PERSONAL DATA Name: Earl 3. Morgan Name of Company: McDonnell Douglas Corporation Title: E~:ecutive Assi:~tant to Vict~-Prcsident - Eastern Region Business Address: 1150 - 17th Street, N. W. , Washington, D. C. 20036 Business Telephone: (202) 466-4750 Home Address: 7505 Whittier Blvd., Bethesda, Maryland 20034 Home Telephone: (301) 320-3427 Legal Voting Residence: Mary1a~nd Date and Place of Birth: 7 November 1923, Birmingham, Alabama Citizenship: U.S. Marital Status: Married Military Service: US. Army Air Corps 1/3 /42 - 7/9/45 Education (Degrees, Schools, Dates): A.B. 9/46 - 2/50 George Washinaton Univ. 7/46 - 9/46 American University 2/46 - 6/46 Universit~ of Virginia 9/41 - 2/42 Americán~University WORK EXPERIENCE 7/1/73 - to presant Executi~e Assistant to Vice-President, McDonnell-Douglas Corp. 8/1/63 - 7/1/73 Commit~e~ on Armed Services U.S. House of Representatives 2/1962 - 8/1/63 American Machine & Foundry 1025 N. Royal St., Alexandria, Va. 1/1961 - 2/1962 Committee on covernmcnt Operations U.S. House of Representatives 70-426 0 - 76 - 22 PAGENO="0338" Harvey Aluminum Sa1e~ Corp. 1001 Co"necticut Avr~., N.W.; Wa~hinc!ton, 1). C~ Committee on Government Operations U.S. House of Representatives Crown Cbntral Pctroleum Corp. Baltimore, Md. Self employed Federal Bureau of Tnvestigàtion Dept. of Justice, Washington, D.C. Doorkeeper - U. S. House of Representatives Various part-time jobs while in College 332 9/1960 - 1/1961 2/1955 - 9/1960 6/1953 - 2/1955 4/1953 - 6/l95~ 2/1952 - 4/195 3 1/1949 - 2/1952 2/1947 - 1/1949 PAGENO="0339" 333 ~ December 1973 PERSONAL DAIA Name: Frank Sanders Namc of University or Cornpany:~ Logistics Management Institute Title: President Butinx'ss Address: 4701 Sangornôrb Road, Washington, D.C. 20016 Business Telephone: (202) 229-1000 Horns Address: 12413 Over Ridge Road, Potomac, Maryland 20854 Home Telephone: (301) 424-4802~ Legal Voting Residence: Maryland Date and Place of Birth: 30 July 1919~ Tarboro, North Carolina Citizenship: U.S. Marital Status: Married Military Service: 1941-1945 Capt., U. S. Army 1945- Lt.Col., U.S. Army Reserve Education (Degrees, Schools, Dates): Armstrong Junior Cllcge, Savannah, Geo rgia George Washington University Law School WORK XPERIFNC~ University or Company Assignments Mr. Sanders was nominated by President Richard M. Ni:eon to be Assietant Secretary of the Navy (installations & Logistics) and sworn in by Secretary of Def~rise `.i~1vin R. Laird on 10 February 1969. He was subsequently nominated by the President to be Assistant Secretary of the Navy (Financial Management) and sworn in by Secretary Laird on 2 August 1971. President i~ixon nominated him to be Under Secretary of t'nc~Navy in April 1972, and he was sworn in by Secretary Laird on 5~ May 1972. He resigned on 29 June 1973. PAGENO="0340" 334 Prior to the above, Mr. Sanders vine a member bf the Staff of the Committee on Appropriations, Flouae of Rcprcscntativcs, for 19 yrars. I)uri'~ ~ ~aricd ~c v:~:s nssi~ned as staff assistant to Subcommittees particularly involved with appropriations for the various functions of the Department of Defense. Membership on Boards or Committees; Government Procurement Commission Institute for Strategic Studies1 London PAGENO="0341" 335 EW S B UREA U WTELEDYNE `UBLJC ~ELAT1ON5 DEPARTMENT RYAN AERONAU11CAL. 2701 HARBOR DRIVE SAN DIEGO. CALIFORNIA 92112 TELEPHONE (714-291-73111 BARRY J. SHILLITO PRESIDENT, TELEDYNE RYAN AERONATJ~ICAL Residence * Office 555 San Fernando Street 2701 Harbor Drive San Diego, CA 92106 San Diego, CA 92112 - Phone: 714/291-7311 Personal Data Birth Date: January 1, 1921 Place of Birth: Dayton, Ohio Marital Status: Married Edir.ation University of Dayton, B. S. Business Adam. and Economics, 1949 University of California at Los Angeles, postgraduate, 1958 Career Highlights 1942 - 1946 Pilot, U. S. Anay Air Force 1946 - 1949 General Manager, Harris-Lincoln Supply Company (Dayton,~ Ohio) 1949 - 1954 Section Chief-Contracting Officer, Air Material Coimimnd, Wright-Patterson AFB (Dayton, Ohio) 1954 - 1958 Director of Material, Director of Sales, Hughes Aircraft Cbmpany (California) - 1958 - 1962 Executive Vice President, then President, Houston- - Fearless, Company (Los Angeles) 1962 - 1968 President, Logistics Management Institute (Washington, D.C.) 1968 - 1969 Assistant Secretary of the Navy, Installations and Logistics (Washington, D.C.) - 1969 - 1973 Assistant Secretary of Defense, Installations and - Logistics (Washington, D.C.) Feb. 1, 1973 President, Teledyne Ryan Aeronautical (San Diego) PAGENO="0342" 336 Barry J. ~iil1ito Page 2. Professional and Fraternal Associations Aerospace Industries Association Alimrii Associations, Tkiiv. of Dayton and Univ. of California at Los Angeles American Institute of Aeronautics and Astronautics M~rican Legion Armed Forces Management Association Combat Pilots Association (Board of Advisors) Conquistadores del Cielo Defense Systems Management School (Chainnan, Board of Visitors) Electronic Industries Association Fellow Society of Logistics Engineers Industrial College of the Aimed Forces (Board of Advisors) National Alliance of Businessmen (Metro Chairman, 1974-75) National Contract Management Association (Advisory Board) National Security Industrial Association (Board of Trustees) San Diego County United Way Campaign (Chairman, 1975) Young Presidents Organization (1959-1970) Member, Board of Directors: American Defense Preparedness Association Chicago Pneuiiatic Tool Company San Diego Chamber of Coinirerce Science Applications, Inc.. Thiokol Corporation Distinctions Secretary of Defense Distinguished Public Service Medal, presented February 1, 1973: cited as one of the architects of revised policies and procedures for acquisition of major defense weapons systems and single individual most responsible for success of President's Vietnamization program in area of logistics. Secretary of the Navy Distinguished Public Service Award Republic of China Cloud and Banner Medal Republic of Vietnam National Order of Vietnam F~ly Married to the former Eileen Elizabeth Cottnnn of Dayton, Ohio Five children: Barry, Jr., Elaine, Daniel, James and Colleen PAGENO="0343" 337 ~edSutes P Vol.121 (ZOnWCSSIOnZ ROCEEDINGS AND DEBATES OF THE 94 WASHINGTON, MONDAY, JUNE 2, I Rt CONGRESS, F 1975 cord IRST SESSION No. 84 Senate ___________ #94-12 Dr. Flax was an Assistant Secretary AN ADVISORY COMMITTEE RE- of the Air Force. Mr. Brazier was Prin- UNION OF FORMER PENTAGON cipal Deputy Assistant Secretary of De- OFFICIALS fense-Comptroller. Dr. Cook was IDep- Mr. METCALF. Mr. Presldent,~ the uty and Technical Director, Advanced Deputy Secretary of Defense has estab- Surface Missile System Assessment lished an acquisition advisory group- Group, Navy Dephrtment. Mr. Odeen was and chartered it under the Federal Ad_ Principal Deputy Assistant Secretary of visory Committee Act-to review sug- Defense-Systems Analysis. gested changes In the weapon systems Mr. President. notice of establish- acquisition process of the Army, Navy, ment of the AAG appeared In the Fed- and Air Force. eral Register on April 23 and Indicated The AAG has been handed a big re- the AAG was expected to complete Its sponsibility. Defense acknowledges that work within 120 days. Its findings will be' some of the recommendations to be ~- reported to the Deputy Secretary of De- viewed would, if Implemented, "Impinge fense. Its first meeting was announced on the activities, procedures, operations as a closed session on June 3 at the In-' and Interrelationships of the Office of stitute for Defense Analyses Building in Secretary of Defense." It also declares Arlington, Va. that these recommendations "are ex- The AAG has been assigned the task pecteci to improve the weapon systems of examining and assessing recommends.- acquisition process in the military tions made in the reports of two other departments." advisory committees, the Army Materiel Accordingly the Deputy Secretary has Acquisition Review Committee, which re- appointed what he calls "a group of in- pos~d on AprIl 1, 1974, and the Navy dependent but knowledgeable lndivldü- and Marine Corps Acquisition Review als familiar with the duties and respon- Committee, which reported this past sibilities of the various components of January, as well as recommendations of the Office of the Secretary of Defense" the Secretary of the Air Force. to serve on the AAG, explaining they Annual reports for these panels, re- have "been commissioned to assess the qulred by the Federal Advisory Commit- feasibility and desirability of adopting" tee Act, show that AMARC was estab- the recommendations. lished on January 14, 1974, terminated On examining their backgrounds, I on September 26, 1974, and operated at find no reason to regard the appointees an estimated cost of $374,444, while as "independent." In fact, the AAG is NMARC was established on September 4, an advisory committee reunion of former 1974, was scheduled to terminate on Jan- Pentagon officials. uary 31, 1975, and operated at a cost of Here are the AAG members: $400,000. They also show that Mr. `Bows- Dr. Alexander H. Flax, President, Institute her was a member qf NMA.RC. for Defense Analyses, Chairman. When It submitted Its annual advisory Mr. Don R. Brazier, Treasurer, National committee reports for 1974, the Defense Railroad Passenger Corporation. Department attached a memorandum Mr. Charles A. Bowsher, Managing Partner, which offered the following statement: Government Services Division, Arthur Ander- Each DOD advisory committee is composed sen and Company. of members, chosen in accordance with the Dr. Emory J. Cook, Consultant. specific requirements of the committee; from Lt, Gen. W. G. Doivin, USA (Ret.). a cross-section of authorities and experts in Lt. General Glenn A. Kent, USAF (Ret.). the academic, economic, business, industrial, Admiral Thomas H. Moorer, TJSN (Ret.). financial, scientific, engineering, and other Mr. Philip A. Odeen, Vice President, Wil- fields. The committees select members with son Sporting Goods Company. expertise applicable to their Individual prob- The executive director is Vice Adm. lems, and form combinations which are con- ducive to the most excellent attainment of Eli T. Reich, U.S. Navy (retired), and the committees' objectives in the most cx- the secretary of the AAG Is Comdr. Ed peditious and inexpensive method, Each com- ward B. Baker, U.S. Navy. mittee is acutely aware of the constant need PAGENO="0344" 338 Page 2 #94-12 for fresh innovative ideas, and to achieve The Charter of the Acquisition Advisory this, reviews of memberships are conducted Group provides for meeting at periodic in- periodically. DOD advisory committee mem- tervals and Indicates that the total esti- berships are based on the most extensive and mated time required to comolete its purpose careful research and the highest criteria p05- is 120 days. The Group will report its find- sible for maintenance of balanced member- ings to the Deputy Secretary of Defense. ship and efficient use of the committee tool. Because the implementation of the AMARC and NMARC recommendations is Mr. President, the AAG does not ap- proceeding in the Army and the Navy, it is pear to me to represent "a cross-section essential that the Secretary of Defense be of authorities and experts in the aca- provided with recommendations concerning demic, economic, business, Industrial, 0SD procedures as soon as possible to in- financial, scientific, engineering, and sure cohesive interface of the program within other fields," nor as I have said, do its the Department of Defense. In accordance with section 6(a) of 0MB Circular A-63, 0MB members strike me as "independent" in has waived the waiting period between pub- any ordinary sense of that word. Ication of the notice and the filing of the An independent group would conduct c~iarter. an arm's-length review, but that is not MAURtCE W. RocHE, what Is happening here. The AAG is Director, Corresnon'Senca and Directives. made up of insiders, who will be review- OASD (Comptroller). ing recommendations on behalf of pres- P~PRIL 18. 1975. ent and former colleagues. As such, their [FR Doc.75-10592 Filed 4-22-75;8:45 aml review will be anything but an arm's- BrIEF BIOGRAPHIES OF AcQmsrrIoN Asvssosy length transaction. Gaou~ MEMBERS I ask unanimous consent to print in Dr. Alexander H. Flax, Chcsirman: B. Ae. E., the RECORO the notice of establishment New York University, 1910: Ph. D. (Physics). of the AAG, as published-and subse- University of Buffalo, 1958; Vice President quently corrected-in the Federal Regis- and Technical Director, Cornell Aeronautical ter, the biographies of AAG members Laboratory; Chief Scientist of the Air Force. supplied at my request by the Defense 1959-1961. Assistant Secretary of the Air Department, and the annual reports and Force (Research and Development), 1963- rosters for AMARC and NMARC. 1969. Vice President for Re~earch. 1969: Presi- dent, 1969 to present, Institute for Defense There being no objection, the mate- Assalyses. Member various advimry commit- rial was ordered to be printed in the REC- tees on Aerospace and Aero~namics; the oso, as follows: President's Science Advisory Committee; the .OIYICE OF THE SECRUrART: ACQUISITION An-. Defense Science Board; and Chairman and krzsosy GROUP-ESTABLISHMENT, ORGANIZA- National Delegate to NATO (AGIIRD). `TION AND FUNCTIONS Admiral Thomas H. Moorer, USN (Ret.): In accordance with the provisions of Pub. Naval Academy. 1933; Naval Aviator, 1936; L. 92-463, Federal Advisory Committee Act, Naval War College, 1953. Executive Officer notice is hereby given that the establish-. Naval Aviation Ordnance Test Station, Chin- meat of the Acquisition Advisory Group has coteague, Virginia, 1946-1948; Experimental been found to be in the public interest In Officer, NOTS, Inyokern, California, 1950- connection with the performance of duties 1951; Commander, Seventh Fleet, 1962-1964; imposed on the Department of Defense by Commander-in-Chief, Pacific Fleet, 1964- law. The Office of Management and Budget 1965; NATO's Allied Command, Atlklitic, U.S. has also reviewed the justification for this Unified Atlantic Command and U.S. Atlantic advisory committee and concurs with its Fleet. 1965-1967; ChIef of Naval Operations, establishment. 1967-1970 and Chairman, Joint Chiefs of The nature and purpose of the Acquisi- Staff, 1970-1974. tion Advisory Group is set forth below: Dr. Emory J. Cook: B.S. (Chem), 1936; The Acquisition Advisory Group has been Ph. D. (Physics), 1940, University of Chicago. assigned the task of examining and assessing President and Chairman of the Board, Oper- the recommendations made in the reports of ations Research, Inc., 1954-1968; Chairman the Army Materiel Acquisition Review Corn- of the Board, Leasco Systems and Research mittee, dated April 1, 1974, and of the Navy Corporation; Staff General Manager, Con- Marine Corps Acquisition Review Commit- suiting and Systems Services Group, Control tee, dated January 1975, as well as recorn- Data Corporation. Executive Director, Ham- mendations of the Secretary of the Air Force well Commission. Navy Bureau of Ordnance relative to major weapon systems acquisl- 1948; member Advisory Board, Weapons Sys- tions insofar as those recommendations sug- tems Evaluation Group, Joint Chiefs of Staff, gest changes of current procedures or 1951-1954; Deputy and Technical Director, policies of the Secretary of Defense. The rec- Advanced Surface Missile System Assessment ommendations made in these reports are cx- Group, Navy Department. 1985. pected to improve the weapon systems acqui- Lt. General Glenn A. Kent, USAF (Ret.): sition process in the military departments. B.A.. Western State College, Colorado, 1936; Some of the recommendations, if imple- California Institute of Technology (Meteoro- mented, would impinge on the activities, logy), 1942: Naval Post Graduate School, An- procedures, operations and interrelationships napoUs, 1947; University of California at Ber- of the Office of Secretary of Defense. Accord- keiey (Radiological Engineering), 1949; Air ingly, a group of independent but knowi- War College. 1956-1957. Deputy to Director ecigeable individuals familiar with the du- of Research, Kirtland Air Force Base, 1953- ties and responsibilities of the various corn- 1955 Military Assistant to the Deputy Di- ponents of the Office of the Secretary of rector (Strategic and Defense Systems), Defense has been commissioned to assess the DDR&E. OS!), 1962-1965; Deputy Director, feasibility and desirability of adopting such recommendations. PAGENO="0345" 339 Page 3 #94-12 Development Plans, Deputy Chief of Staff, 11. Next continuation date: None. R&D, USAF Headauarters, 1965-1966: Assist- 12. Committee charter revised during ant for Concept Formulation to the Df)~uty year?: No. Chief of Staff, R&D, USAF Headquarters, and 12. Brief statement of function: The Corn- Deputy Chief of Staff for Development Plans, mittes served as an advisory body to the Air Force Systems Command, 1960-1968; As- Steering Group comoosed of the Under Sec- sistant Chief of Staff, Studies and Analysis, retary of the Army, Vice Chief of Staff of the 1968-1972; and Director Weapons Systems Army, Assistant Secretary of the Army Evaluation Group, DDR&E. OSD, 1972-1.974. (R&D) and Assistant Secretary of the Army Mr. Charles A. Bowsher: B.S., University of (I&L) to conduct an indsoendent review of IllinoIs, 1953: University of Chicago, 1956: the Army's materiel acquisition process, to CPA, 1957. Partner, Arthur Andersen and assess the current Army organis~tion and Company, 1956-1967; A.s~istant Secretary of procedures for Materiel Acqui~ition, and to the Navy (Financial Manaccement), 1967- make recommendations for improvement. 1971: Managing Partner, Government Serv- The goal is an Army Materiel Acquisition ices DivisIon, Arthssr ~4nder~en and Comnany, Process which: 1. Is responsive to the needs 1971 to oresent: member Navy Marine Corps of the Army in the field, assuring that equip- Acqui~ition Review Committee, 1974-1975. ment is introduced into the inventory in an Lt. General Welborn G Dolvin, USA (Pet.): efficient and timely manner. 2. Reou1re~ West Point, 1939: U.S. Army Command and fewer personnel and less Army-owned/or General Staff Collese (Ft. leavenworth, operated facilities. 3. Reflects a proper bal- Kansasl, 1950: Army War Collec'e. 1954~ Pro- ance in the di~trihut1on of field and Ilead- gram Manaccer of the Joint United States ccuartOrs personnel. 4. Provides for a proper and Federal Republic of Germany Tank Dc- balance between in-house and contract oper- velopment Procram, l°61-1966; Commanding ations. 5. Will result in the develonment, General, 3rd clrmrred Divi~inn, Chief of Staff fabrication, and user verification of hard- of NATO's Central Army Group and Corn- ware items more closely meeting establi~hed manding General U.S. Army F.1ement. Cen- renscirements prior to the hea~y production tral Army Groun, 1966-1070: Chief of Staff, involvement which has characterized our U.S. Military A~'i~tsnee Command, Vietnam, recent oast history. 1970; Commanding General U.S. Army xxiv 14. Total number of all reoorts submitted Corns, 1971: Com~nnnder U.S. Army, Japan! by the committee during the calendar year: IX Corns, 1972-1975. 1974. Mr. Don H. Bra~ier: B.C.S., M.C.S.. 1952, ~rrLzs AND DATES Benlarnin Franlcfln University. Deouty Report of the Army Materiel Acquisition Cornntroller for Biiclc~et. OAST) (Cornptrollerl, Review Committee (AMARC): 1 April 1974. 1966-1967: Cnmntroller, DefenCe Suoply Volume 1-Precis. Agency, 1967: Density A~~istant Secretcirv of Volume II-Committee Reports. the Army (Financial Mana~ement), 1967; MEETINGS Principal Deputy A~sistant Seere~ary of De- 15. (a) Total number of open meetings: 0. fence (Comotrollerl, 1068-1974: Trealcicrer, (b) Total number of closed meetings: 2. 1974 to present, National Passenger Railroad (C) Total number of partially closed meet- Cornoration. ings: o. Mr. Philin Orleen: BA. (Government), (dl Actual dates of all meetings: 14-16 University of South Dakota, 1957: M.S.~ (P0- Jan 1974 and 18-30 Mar 1974 (Periodically). litiesci r,ciencel, Univereitv of WiccOn'in, 16. Estimated annual man-years of Federal 1959; Graduate work Li'wrnool University staff support for the committee: 550. (Enslandi, 1958. Dsnsitv Avsiqtant Secretary of Defense (Regional ProsTarrl'il. 1969-1970; 17. Total annual cost to the U.S. to fund, Princinal r)ensitv A'~si'tant Sse.retcsry of Dc- supply and maintain the committee: $374,- fevse (Svvteins Analysis), 1970-1871: Direc- 444 (Estimated), tor, Prosrrarn Analvsi'i. National Security 18. Statement of any information excluded Coscn"ii. 1971-1973: end Vies Pre~ident, Pls,n- from this reoort for reasons of national se- nine. Wil~on Sporting Goods Company,~ 1973 curity: No Information excluded. to present. 19. Total number. of committee members: 22. ANNUAL REPORT or FEDERAL ADVISORY COMMTrrEE MEMBERSHIP LIST OF FEDERAL ADVISORY 1. Department or agency: Department of COMMUTER the Army. - 1. Department or Agency: Department of 2. Calendar year: 1974. the Army. 3. Exact name of advisory coornm.ittee: 2. Page 1 of 2 pages. Army Materiel Acquisition Review Cothmlt- 3. Exact name of committee: Army Materiel tee (AMARC). .. Acquisition Review Committee (AMABC). 4. Committee status: (a) New this year~ 4. Calendar year: 1974. (d).Abolished during year. 5. Name and address of chairman: Sell, 5. Establishment authority: (c) Agency Wendell B., Dr., 4323 Arden Drive, El Monte, authority. CA 91734. 6. Specific establishment authority: Estab- lished by Secretary of the Army in accord- 6. Name .and address of Agency represen- ance with P.L. 92-463, as approved by Memo- tative: Farmer, William P., Department of randum, Dsp Asst Sec of Def, 14 Jan .1974, the Army, HQDA (DACS-DMA), Washington, D.C. 20310. Subject: Establishment of Army Materiel Ac- . -- quisition Review Committee. Title: Pres & Chief Exec Officer, Hoffman 7. Committee type: Ad hoc. Electronics Corpoe'ation. 8. Establishment date: 14 Jan 74. H Occupation: Corporation Executive. 9. Last continuation date: None. ... Title: LTC. 10. Termination date: 26 ~ 74 `.:-: Telephone OX-55299. PAGENO="0346" 340 Page 4 #94-12 7. List members alphabetically: White, John P.. Dr., Rand Corporation, 1700 Amile, Thomas S., Dr., Federal Aviation Main Street, Santa Monica, CA 90406, Vice Agency, 600 Independence Ave., SW., Wash- Pres, The Rand Corporation, Research Ana- ington, D.C. 20591, Acting Chief, Advanced lyst/Consultant. Concepts Staff, FAA Staff Director. Wilson, Haskell G., 3902-27 VIsta Campana Boileau, Oliver C., Jr., P.O. Box 3999, North, Oceanside, CA 92054, Retired Civil Seattle, WA 98124, President, Boeing Aero- Service Employee, Consultant. space Company, Company Executive. Camm, Frank A., MG, Department of the ANNUAL REPORT OF FEDERAL ADVISORY Army, DAMO-ZB, Washington, D.C. 20310, COMMITSEE Asst Dsp CotS for Operations & Plans, Dept 1. Department or agency: Department of of the Army. Army Officer. tIle Navy. De Lauer, Richard D., Dr., TRW Inc., One 2. Calendar year: 1974. Space Park, Redondci Beach, CA 90278, Execu- 3. Exact name of advisory committee: tive Vice Pres., TRW Inc., Corporation Exec- Navy and Marine Corps Acquisition Review utive. `Committee (NMARC). Dinneen, Gerald P., Dr., MIT Lincoln La-' 4. Committee status: boratory, Lexington, MA., Director, Lincoln (a) New this year. Laboratory. MIT, Lab Director & Professor of~ (b) In existence at end of year. Engineering. . 5. EstablIshment authority: Agency an- Dorough, Gus D., Jr., Dr., Lawrence, Liver- thoi'ity. more Laboratories, P.O. Box 808, Livermore, 6. Specific establishment authority: CA 94550, Assoc. Dir., Lawrence Livermore 1. DEPSECDEF memo of 29 June 1974. Lab., Univ., of California, Lab Director. 2. SECNAV memo of 1 Aug 1974. Duke, William M., Dr., 15250-Ventura Bou- 3 NMARC Charter, Federal Register, VOL levard, Suite 702, Sherman Oaks, CA 91403, 39, NO. 155, Friday, August 9, 1974. Chairman of the Board, Tasker md., Dyna- ~ Committee type: Ad hoc. sciences Corp., Will Duke and Assoc., etc., 8. Establishment date: 4 Sept 1974. Corporation Executive. 9. Last continuation date: None. Esposito, Alfred L., HG, USAP (Ret.) Fair- 10. TermInation date: 31 Jan 75. child Burns Company, 1455 Fairchild Drive, 11. Next continuation date: None. Winston Salem, NC 27105. 12. Committee charter revised during year: Manager, Fairchild Burns Co., Fairchild, No. md., Company Manager. 13. Brief statement of function: Fink, Daniel J., General Electric Company, The scope of the NMARC is to assess the P.O. Box 8555, Philadelphia, PA 19101, Vice organization, management, staffing and pro- Pres. & General Manager, Space Division, GE, cedures used by the Navy in developing and Business Executive. producing weapon systems. The NMARC is Jackson, Roy P., Northrop Corporation, Air- examining in depth, the development and craft Div., 3901 West Broadway, Hawthorne, production of seaborne and airborne systems CA 90250, Corp. Vice Pres, Program Mgmt, and related subsystems. The objective of the Northrop Corp., YF-17 Program Manager. NMARC is the development of an action plan McCurdy, Richard C., One Weed Lane, Con- which will define changes to Department of tentment Island, Darien, CT 06820, Consult- the Navy basic procedures and organization ant, NASA, Consultant. to Improve responsiveness to operating Fleet Morgan, Earl J., McDonnell Douglas Corp. and Marine Corps requirements. The NMARC 1150 17th Street, N.W., Suite 500, Washing- will not be responsible for the implementa- ton, D.C. 20036, Exec Asst to VP, Eastern tion of the action plan. Region, McDonnell, Douglas Corp., Business The duties of the NMARC Is to examine Executive. ` the organization, management, staffing and O'Neill, Lawrence H., Riverside Research procedures used by the Navy in acquiring Institute, 80 West End Avenue, New York, weapon systems. The NMARC will advise the NY 10023, Pres, Rivcrside Research Institute Secretary of the Navy, by preparation of an Consultant. action plan of recommended steps to be Pickering, William H., Dr., Jet Propulsion taken to improve responsiveness to Fleet and Lab, 4800 Oak Grove Drive, Pasadena, CA Marine Corps requirements. 91103, Director, Jet Propulsion Lab, Cal Tech., 14. Total number of all reports submitted Laboratory Director, by the committee during the calendar year: None. Raviolo, Victor G., 6 Stratford Place, Grosse Point, MI 48230, DIrector. Raviolo Associates, TITLES AND DATES Business Consultant. Report of NMARC is to presented to the Reed, Eugene D., Dr., Bell Telephone Secretary of the Navy about 30 January 1975. Laboratories, Room 3B-411, Whippany, NJ MEETINGS 07981, Exec. Director, Ocean Systems Div., 15. (a) Total number of open meetings: Bell Telephone Laboratories, Laboratory D1 None. rector. (b) Total number of closed meetings: 1. Sanders, Frank, The Signal Companies. 815 (c) Total number of partially closed meet- Connecticut Ave., N.W., Washington, D.C. ings: None. 20006, Vice Pres., The Signal Companies. Inc., (d) Actual dates of all meetings: 31 Oc- Consultant. tober 1974. Shea, Joseh F., Dr., Raytheon Company, to. Estimated annual man-years of Fed- Box AA-11, Wayland, MA 07778. Senior VP eral staff support for the committee: 15. & Gen. Manager, Equipment Dis'., Raytheon 17. Total annual cost to the U.S. to fund, Co , Business Executive. supply and maintain the committee: $400,- Shore, David, RCA, Marne Highway-BIg. 000. 108. MoorestoWn NJ 08057, Div. V. Plans & 18. Statcnsent of any Information excluded Systems Development. RCA Corp., Business from this report for reasons of national se- ExecutIve. curity: None. PAGENO="0347" 341 Page 5 #94-12 19. Total number of committee members: 1~~t.9 Manager. Occupation: Missile Systems 32. Manager. 4. Exact name of committee: Navy ar~d Paget, Richard M., Mr., Cresap, McCormick Marine Corps Acquisition Review Commit- & Paget, Inc., 245 Park Avenue, New York, tee (NMARC), 1974. New York 10017. Title: President. Occupa- 5. Name and address of chairman: Roche, tion: Consultant. James M.. Mr., General Motors Corporation, Rannenberg, John W., Mr., General Dy- General Motors Building, Detroit, Michigan namics, EB Division, Groton, Connecticut, 48202. Title: Director of Contracts. Occupation: Title: Director and retired Chairman of Executive. the Board, Russell, James S., Admiral, USN (Ret.), Occupation: General Motors Executive. 7734 Walnut Avenue, Tacoma, Washington 6. Name and address of agency represents- 98498. Title: Consultant. Occupation: Re- tired. tire: Hopkins, Leroy E., Captain, SO, USN, Sanders, Frank, Mr. Signal Companies, Naval Material Command, Department of 815 Connecticut Avenue NW., Washington, the Navy, Washington, D.C. 20360. D.C. 20006. Title: Vice President. Occüpa- Title: NMARC Study Directorate Secre- tion: Company Executive. tary. Scott, Norman, Mr., American President Telephone: 692-9146. Lines, 601 California Street, San Francisco, 7. LIst members alphabetically: California 94108. Title: President, Occupa- Banks, John V., Mr., National Steel and tion: Executive. Shipbuilding Co., 28th and Harbor Drive. Shoupp, William, Dr., 343 Maple Avenue, San Diego, CalifornIa 92138. Title: President. Pittsburgh, Pennsylvania 15218. Title: Re- Occupation: Executive. tired Vice President for H. & D. Occupation: Bennett, Ralph D., Dr., 204 San Rafael, Consultant to Westinghouse. Belvedere, California 94920. TitIc: Vice Pres- Shugg, Carleton, Mr., No. 2 Starr Street, Ident and Director of Research, Martin- Mystic, Connecticut 06355. Title: Retired Marietta. Occupation: Retired. President, General Dynamics, Electric Boat Bowsher, Charles A., Arthur A~~ersen and Division._Occupation: Consultant. Co., 1660 H Street, NW., Washington, D.C. Stack, J. Wrn., Mr., 230 Park Avenue, New 20006. Title: Managing Partner. Occupation: York, New York 10017. Title: President, Stack Consultant. Associates. Occupation: Consultant. Cox, A. E., Mr., Newport News Shipbuilding, Stanziano Arthur J., Mr., Hazeltine Corp.. 4101 Washington Avenue, Newport N~ws, 2001 Jeffe~n Davis Highway (Suite 811), Virginia 23607. Title: General Manager, CSD. ArU~thn Virginia 22202. Title: Vice Presi- Occupation: Executive, dent. Occupation: Executive. Cvctko, E. F., Mr., LTV Aerospace, P.O. Box Stokes, R. A., Mr., Newport News Shipbuild- 5907, Dallas, Texas 75222. Title: Vice Pres- ing, Newport News, Virginia 23607. TItle: ident, Manufacturing. Occupation: Execu- Director of Engineering. Occupation: Engi- Live. neer. Dart, C. E.. Mr., Newport News Shiphuilcl- ~p~ell, Warren A., Dr., Bell Telephone Labs. ing, 4101 Washington Avenue, Newport News, Murray Hills, New Jersey 07971. Title: Exec- Virginia 23607. Title: Senior Vice President. utive Director, Technical Relations Division.. Occupation: Executive. Occupation: Executive. Dubcs, R. F., Radm, USN (Ret.), 7901 `waldner, Joseph C., Mr.. McDonnell- Birnam Wood Drive, McLean, Virginia 22101. Douglas, P.O. Box d16, Building 1, St. Louis, Titie: Product Line Director, Simulation Mias~i 63166. Title: Program Manager. Products Div., Singer Corporation. Occupa- Occuptaion: Executive. tion: Executive. Wilder, Donald, Mr., 348 Beaumont Drive, Fuhrman, Robert A., Mr., Lockheed Mis- Vista, CalIfornia 92083. Title: Retired Vice sUe and Space Co., P.O. Box 504, Sunnyvale, President. Military Programs-Lockheed. California 94088. Title: Executive Vice Pres- Occupation: Executive. ident. Occupation: Executive. Wilson, T. E., Mr.. The Boeing Company, Goodhue, Harrison M., Mr., R.R. No. 3- p.O. Box 3707, Seattle, Washington 98124, Box 3162, Grayilng, Michigan 49738. Title: Title: Chairman of the Board. Occupation: Retired General Motors Executive. Occupa- Executive. tion: Retired. Word, Weldon, Mr., Texas Instruments, Heinemann, Edward H., Mr., Box 1795, M/S 228, P.O. Box 6016, Dallas, Texas 75222. Rancho Santa Fe, California 92067. Title: Re- Title: Division Manager. Occupation: Exec- tired Vice President, General Dynamics~ Oc- utive. cupation: Retired Executive. Yost, Harold C., Mr., General Dynamics, Holmes, D. Brainerd, Mr., Raytheon Corn- P.O. Box 2507, Pomona, Califprnla 91766. patsy, 141 Spring Street, Lexington, Massa- Title: Vice President of Operations. Occupa- chusett.s 02173. Title: Executive Vice Pres- tion: Executive. ident. Occupation: Executive. _________________ Hueter, Theodor, F., Dr., Honeywell. Inc., 5303 Shilshoie Avenue, NW., Seattle, Wasi~- ington 98107. Title: Vice President, Ocean Technologies. Occupation: Executive. Magitire. Walter W., Mr., Building 261- Hughes Aircraft Co., Mail Station RiO. Ca- `noga Park, California 91304. Title: Assistant ~Division Manager. Occuoation: Executive. Mecum, Dudley, Mr., Peat, Marwick, Mitch- cii & Company, 555 South Flower Street. Los Angeles, California 90071. Title: Priis- cipal. Occupation: Consultant. Miller, Frank, Dr., Hughes Aircraft Co~. Canoga Park, California 91304. Title: Asso- . S 9166 - 69 PAGENO="0348" 342 THE LIBRARY OF CONGRESS Congressional Research Service ENERGY ADVISORY COMMITTEES: SUMMARY OF ACTIVITIES, JUNE ThROUGH DECEMBER, 1975 By Su8an R. Abbasi Analyst Environment and Natural Resources Policy Division February 19, 1976 WASHINGTON, D.C. 20540 PAGENO="0349" ~343 Energy Advisory Committee: Summary of Activities June through December, 1975 A rough total of 126 meetings were held in this period from among the committees being considered by this study. Several of the energy advisory committees held numerous meetings in this period, others held none at all. It should be noted that the Advisory Committee on Reactor Safeguards (ACRS), under the Nucle~r Regulatory Commission, accounts for 53 of these meetings, some 42 perc~nt of the total. The ACRS ~ias a statutory origin, and its duties go beyond the usual advisory functi'ns of the erititie~ advising the other agencies; it has established a very large number of subcommittees to carry out these duties. This is dis-' cussed below under NRC meetings. Of the 126 meetings, 46 were held out of town. The ACRS accounted for 23 of these-'-'some 50 percent. With one exception-'the ERDA Study Group on Field and Laboratory Utilization-'-'the meetings were publicized in the Federal Register two weeks or more ahead of time. By agency, these were the meetings held: Federal Energy Administration A total of 27 meetings were held by 13 committees-'-'17 meetings held in town; 10 out of town. PAGENO="0350" 344 CRS-'2 There were these meetings in town: Coal Industry A.C. (2 June and Oct.) Consumer Affairs/Special Impact (7 each month) Environmental Utilities A.C. (2 July and Sept.) Electric Utilities A.C. (Aug.) Natural Gas Transmission and Distribution (Aug.) LP~'Natural Gas A.C. (Sept.) Food Industry A.C. (2 Oct. and Dec.) Transportation A.C. (Oct.) There were these meetings out of town: Retail Dealer (3 June, Aug. and Oct.) Wholesale Petroleum A.C. (4 July, Aug., Nov. and Dec.) Northeast A.C. (Nov.) Power Plant Productivity (Dec.) Thus, 13 of FEA's 14 energy advisory Committees had meetings in this period. The Consumer Affairs/Special Impact Advisory Committee was one of the most active of all the advisory committees during this period: it met six times, in town each time, on a regular monthly basis, which appears to be its pattern. Top members of the FEA staff attended most of these, including Frank Zarb at least twice. Those FEA committees that met out of town did not ever meet in town, and two of these met several times: the Retail Dealers A.C. met three times out of town, the Wholesale Petroleum A.C. met four times out of town. PAGENO="0351" 345 CRS-'3 Energy Research and Development Administration (ERDA) A total of 14 meetings were held-'~7 meetings were held in town; 7 Out of town. Some review will be required to determine whether all of these com~ mittees are to be included in the final list of energy advisory committees, since they may primarily deal with non-'energy aspects of nuclear research in some cases. Meetings in town included these: Senior Reviewers (a three~ day meeting in July) High Energy Physics Advisory Panel Study Group on Field and Laboratory Utilization (2 Aug. and Oct.; this group was established during the period, and consistently gave notice of its meetings less than 14 days ahead of time) General Advisory (a two'day meeting in Nov.) Historical A.C. (Nov.) Task Force on Demonstration Projects as a Commercialization Incentive (Dec.) Meetings out of town were these: General Technical A.C. (2 July and Dec.) High Energy Physics Advis6ry Panel (Sept.) Study Group on Field and Laboratory Utilization (2 Sept.) Senior Reviewers (Oct.) High Energy Physics Panel~(Dec.) Thus, 7 of ERDA's 10 committees met during this period. PAGENO="0352" 346 CRS-4 Nuclear Regulatory Commission (NRC) A total of 53 meetings were held-'-30 in town, 23 out of town. The NRC has only one advisory committee--the Advisory Committee on Reactor Safeguards (ACRS)~'but this committee functions through some 150 to 175 subcommittees, which account for over 40 percent of all energy advisory committee meetings in this period. Meetings in town include: 6 meetings of full ACRS, each being usually three days in duration 24 subcommittee meetings were held; some of these (6) were more than one day in duration. None of these was an individual plant subcommittee, except one, which was cancelled. Meetings out of town include: 23 subcommittee meetings, by 21 subcommittees. Four of these were of more than one day's duration. Some 14 of these sub- committees were for individual plants, the rest were largely technology-type subcommittees. The ACRS has a statutory basis; it is established in Section 29 of the Atomic Energy Act (42 U.S.C. 2039), and given this function: The Committee shall review safety studies and facility license applications referred to it and shall make reports thereon, shall advise the Commission with regard to the hazards of pro- posed or existing reactor facilities and the adequacy of pro- posed reactor safety standards, and shall perform such other duties as the Commission may request. Section 182(b) specifies that the ACRS shall review each application for a construction permit or an operating license for a facility, an amend- ment to a license, and other specified matters; and the Section says the ACRS "shall submit a report thereon which shall be made part of the record PAGENO="0353" CRS~'5 of the application." Regulations~pursuant to these requirements are in 10 CFR 50.58. To carry out these directives, the ACRS has established a subcommit-' tee for each plant application it~rèceives. Subcommittee members review the application for the various phases of construction and then for operating license. Altogether, several cat~göries of grouping exist in the ACRS: (1) the over-'all ACRS holds meetings; (2) there are numerous individual plant subcommittees; (3) there are technology-'type subcommittees, such as the Emergency Core Cooling System~Subcommittee; and (4) there are regula-' tory categories, such as the Environmental Subcommittee on the Inspection and Enforcement Subcommittee. Therefore it is obvious that this Committee and its Subcommittees are integrated in a very special way in the workings of the parent agency. The NRC reports that 32 full-'time~staff members support the ACRS. In total, the ACRS reports that some 115 subcommittee meetings are held per year. The individual plant subcommittees stay in existence throughout the life of the plant; however, they may meet as rarely as twice, once at construction permit application and once for the operating license applica-' tion. The usual number of meetin~s~is twice at each of these phases, and in the case of a new type of reactor a dozen or so meetings might occur to afford time to review the details~ The subcommittee members are drawn from the 15 members of the ACRS. Each member, it is estimated, spends about 100 days per year on ACRS meetS' ings and business. 70-426 0 - 76 - 23 PAGENO="0354" 348 CRS-'6 Federal Power Cormnission (FPC) In the period surveyed, the advisory committees of the FPC held a total of 5 meetings, all in town. They were as follows: National Power Survey Technical A.C. on Inadequate Electric Power Supply (July) Supply~'Technieal A.C. (Nov.) Finance-'Technical (Nov.) National Gas Survey R & D Technical A.C. (Dec.) National Power Survey Coordinating Committee (Dec.) The advisory committees of the FPC function under the National Power Survey and the National Gas Survey. The committees often cover subject areas for which reports are submitted and printed as subject reports of the power survey or the gas survey. Upon completion of their subject area reports, the subcommittees es-' sentially cease meeting. In the case of the Power Survey, all subcommittees but the one on Inadequate Electric Power Supply had reported, and this was its last meeting, at which the final draft of its report was reviewed in detail. There were 14 subcommittees between the Power Survey and the Gas Survey, of which 5 held meetings in this period. Department of the Interior A total of 14 meetings were held in this period. Meetings in town included: NPC General meeting (Aug.) NPC Subcommittees: PAGENO="0355" ~349 CRS-'7 Emergency Preparedness (2 June and July (2 days)) Energy Conservation (2 July and Aug.) Common Future Energy Prospects (Nov.) Outer Continental Shelf Research Management Board (2 - July and Oct.) Outer Continental Shelf Advisory Board (Oct.) Meetings out of town included: Oil Shale Environmental~A.C. (3 June, Aug. (2 days) and Oct. (2 days)) Bonneville Regional A.C. (Oct. 4 days) Outer Continental ShelfAdvisory Board, Mid-Atlantic Region (Dec.) Thus, 6 of the Interior Department's 11 advisory committees met during this period (not counting in these figures the BLM state advisory boards). Among the advisory committees of the Interior Department is the National Petroleum Council (NPC), which has several subcommittees. The whole NPC and three of these subcommittees met during this period, for a total of 6 meetings. The Bureau of Land Management has~ some 60 regional multiple use advisory boards, and since one of its landr'management responsibilities, among several, is energy resource leasing, these~ meetings do touch on energy leasing issues from time to time. The Alaska board, in particular, focused heavily on the pipeline issue. However, because~ these are not primarily energy advisory committees, they were intially not included in the survey, and their meetings are not covered in this list. They will be considered in the final report. PAGENO="0356" 350 CRS-'8 Department of Commerce A total of 10 meetings were held, seven of which were two~day meetings. All were in town. These were as follows; National Advisory Committee on Oceans and Atmosphere (NACOA) (4 July, Sept., Oct. and Nov., each 2 days) Marine Petroleum and Minerals A.C. (2 Sept. and Dec. (2 days)) Technical Advisory Board (2 Sept. and Oct., each 2 days) Coastal Zone Management (Sept. (2 days)) National Industrial Energy Conservation Council (Sept.) Thus, of the 9 advisory committees on energy in the Commerce Department, five met during this period. Department of the Treasury We listed only one committee for this department, the President's Labor Management Committee. It held one meeting, on November 5, in town. Department of Transportation Two advisory committee meetings were held in this period by DOT committees: In town: Technical Pipeline Safety A.C. Out of town: National Offshore Operations Industry A.C. (Aug.) National Science Foundation One meeting was held in this period; In town, the A.C. on Energy Facility Siting (Oct.) NSF was queried on five adivsory committees, three are definitely, two are possibly energy related. PAGENO="0357" 351 CRS~'9 Council on Environmental Quality(CEQ) The major advisory committee~to CEQ is the Citizen's A.C. on Environ' mental Quality, which met once, in town, in September. This group covers the gamut of environmental problems, and in the process covers energy issues. It's major focus, however, is not energy per se. We queried the CEQ only on the A.C. on Alternative Automotive Power Systems. Department of Health; Education and Welfare (HEW) Two meetings were held by th~ Coal Mine Health Research A.C.~'both in town, June and October. Department of Defense The Natural Resources A.C. of the Defense Department held one meeting, in town, on September 9. PAGENO="0358" 352 Monsour Medical Foundation COMMISSION FOR THE ADVANCEMENT OF PUBLIC INTEREST ORGANIZATIONS 1875 Connecticut Avenue, N.W., Suite 1013, Washington, D. C. 20009 202-462-0505 Memorandum to : 1 March 1976 Senator Lee Metcalf CM 362 Subject: Federal Advisory Committee Records Storage and Availability at the Library of Congress Previous correspondence on the subject: C. Clark letter to Vie Reinemer CL 075, 19 Sept 71~ C. Clark letter to Sen. Metcalf CL 086 25 Sept 71~ (enclosure - C. Clark letter to L. Quincy Mumford CL 083 23 Sept 7~) I will not repeat all we have said previously on the subject of the manner in which the Library of Congress stores Federal advisory committee records, and instead will limit this discussion to their current status, voiced problems and issues to be considered for future Library operations. From the cardboard box the records have come a long way. Annual reports, some minutes of specific meetings, and a few special committee reports are now bound for fiscal year (Fy)73, mostly bound for F! 7l~ and stored in folders placed in alphabetical order in file cabinets for F! 75 and FY 76, in general. For those few agencies which have a small number of advisory committees which in turn produce little documentation over the years, bound volumes have not yet been made. The bound volumes are indexed for each committee - all committees of an agency are listed and those whose documents are in the volume (i.e. were sent to the Library) are so marked. The completeness of each agency's volume varies drastically, as I noted from a cursory check of the indeces. This means that the Library has not yet taken upon itself (nor has anyone else) the task of filling the gaps in the records. I noted that some of the more powerful advisory committees have records missing from theLibrary (for example ~omeof the National Cancer Advisory Board records). Public accessibility to this record system is likely the worst problem. One man, Leonard Beck, curator of the Rare Books Collection, has charge of the Federal advisory committee records in the Library of Congress, in what amounts to only a very small part of his job. I have discussed the records situation with him several times, most recently a few weeks ago, and he agrees that the present situation is by no means a good one. The problems of accessibility are these: The collection is located in a locked room - accessible through Mr. Beck alone (and not near the Rare Books Room). While the reports themselves are bound by agency and year and indexed, getting to that room and to the bound reports takes significant effort. As Mr. Beck points out, because the Federal Advisory Committee Act stipulates the records to be a ¶oollection', they cannot be located with the general Library books; they must be held; i.e. locked up. Also, to find a specific report one must go through the entire prooedure of finding Mr. Beck, going down to the collection room and looking in the specific agency book, as the card catalog has only one listing - Federal Advisory Committee Reports - a card which tells one to find Leonard Beck. Apparently if the language of the law were clarified, this tedious process would be streamlined. Card catalog numbers would be given, the records system publicized and the collection made easily accessible though still in a controlled setting. PAGENO="0359" 353 Monsour Medical Foundation COMMISSION FOR THE ADVANCEMENT OF PUBLIC INTEREST ORGANIZATIONS 1875 Connecticut Avenue,~ NW., Suite 1013, Washington, D. C. 20009 202-462-0505 Memorandum to: Senator Lee Metcalf 27 February 1976 Subject: CM 361 Conflict of Interest Statements for Federal Advisory Committee Members In September and October l971~, the Commission contacted 18 committee management officers of federal agencies by phone, and then several of these by letter, to. ascertain each of their agency's policies on specific issues. These issues included: - if the agency requ.ired a conflict of interest statement from Federal advisory committee members, - the statement's availability (as completed by members of advisory commnittees) to the public - agency policy on `balancing' advisory committees - number of `public' members on advisory committees - method by which openings on advisory committees are filled. Four of the letter responses we received to the above requ.ests pertain to the question of conflict of interest statements. Staff from your Subcommittee on Reports, Accounting and Management requested this specific information from the Commission. From the Treasury Department, William H. Coffman, Advisory Committee Management Staff, Office of Management and Organization, in an undated letter, p.1: "Treasury Department does not require conflict of interest statements from the private members on our advisory committee. Private members only advise and recommend; authority for decisions rests solely with the Secre- tary or senior officials with appropriate delegated authority. Treasury officials on the committee are required to undergo regular conflict of interest processing as part of Treasury employment." From the Department of Transportation, A. B. Virkler Legate, Committee Management Officer, in an undated letter, p.l:~ "1. This Department does not require a conflict of interest type statement from Advisory Committee members." From the Department of State, Mrs. Sue M. Moreland, Committee Management Officer, November 15, l97l~, p.1: "1. It has not been the practict of the Department to obtain such state- ments from all advisory committee members. However, statements of the members of the following committees are either on file or are in the process of being submitted: United States Advisory~ Commission on International Educational and Cultural Affairs, Government Advisory Committee on International Book and Library Programs, National Review Board for the Center for Cultural and Tech- nical Interchange between East and West, and the Advisory Panels on Academic Music, Dance, Drama, Folk Music~and Jazz, and Music. PAGENO="0360" 354 - 27 February 1976 CM ~l page 2 "2. The conflict of interest form is received and maintained by the Office of the Legal Adviser. "3. The conflict of interest data is information exempt from public disclosure under 5 U.S.C. 552(b)(6), which reads `personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.' Its confidential status is maintained in accordance with Section 1~O5 of Executive Order 11222, as amended." (The conflict of interest form is enclosed) From the Technical Electronic Product Radiation Safety Standards Committee of the Department of Health, Education and Welfard, Marshall S. Little, Executive Secretary, October 1~, 1971k, pp. 2 & 3: "Since Section 358(f)(2) of the Radiological Health Act states that payments to members for service on the Committee shall not render them employees of the United States for any purpose, the members are not required to file signed conflict of interest statements. Nevertheless, prior to appointment, each public and government candidate must verify that they have no finan- cial interest in the affected industry and that no conflict of interest exists. I am enclosing, as requested, a copy of the form on which is recorded the conflict of interest questions asked of each prospective member. Al- though this particular form is of recent origin, similar questions were asked of the current membership. The responses quoted here are representative of the written and oral comments on convlict of interest statements we received in response to this request. We were either refused or ignored in all our attempts to obtain cømpleted conflict of interest statements. We received no other copies of conflict of interest forms than those enclosed. I believe we sent you the standard BE~ form previously, but have included it again with the Technical Electronic Product Radiation Safety Standards Committee (TEPRSSC) form. PAGENO="0361" 355 QUESTIONNAIRE FOR BUREAU OF RADIOLOGICAL HEALTH f Prospective Nominee to TEPRSSC~:_________________________________________ This questionnaire should be completed before appointment of an ad~'isory committee member from the. government or public sector. Professional contacting person should complete all questions and sign this questiqnnaire. . I Questions To Be Answered . I 1. Does prospective nominee (spouse, or minor child) own btock or have other financial interests in the electronic product industry? No __________ Yes If Yes, list firms and indicate whether ownership is less than 300 shares. 2. Is prospective nominee a consu!tant to any electronic product industry or firm including an advertising agency engaged in providing service to regulated industry? No. ________- Yes _________ If Yes., list firms _______________ ______________________________ 3. Is prospective norsineets research supported by the electronic product industry? No __________ Yes - If Yes, list all firms and identify research involved _____________-~ 4. Does prospective nominee have ar~y other possible conflicts of interest in his opinien 5. Is prospective nominee employed by other ~overnruent agencies? No __________ Yes __________ Note if full-time, or if less than full-time, list names and locations of other employing gov&rnment agencies with an estimate of the number of days worked in 365 days. - -- . PAGENO="0362" 356 Page 2 - Prospective Nominee to TEPRSSC Questionnaire If on a 1)1IEW Committee, including study groups, obtain name and date appointment is finished --. _______________________________________ Comments (Signature of terviewing Officer) (Date) . PAGENO="0363" COUFID~flAL STATEMENT OF EMPLOYMENT A$b FIMANCIAL INTERESTS (For-usc Icy Special Gott r:ica.nt Ernp~yecsl FART I .70 IcE COMPLE lED BY APPOie:TEE t3efore y~our appointment it is necessary for FDA to ce:tnyic any cor.ncctions you may have with repuloled industry sad to resolve any potential conftict~of interest problems. FDA's regulatory authorities include the foltowing products; foods, drugs, cosmetics, ttrcrapc'utic and medical devices, biologics, and radiation- emitting electronic products. The information c'ou provide in this report will be used for conflict of interest cleecance purposes and mill be held in strict confidence. c Co N ~__OIL E_scJ TO ANY oucsrioo IS ~E5. PROVIDE REQUESTED YES NO TO AI1YTiJESTION IS YEt. PROVIDE REQUESTED ~ . - - ItIFORMATION INIILhL9........_........ 3. Indicate if yea are currently cv'ptoyed asa eon- activitirehuve been furnished to FDA i nconnec - sultant or in any ether Capleity by Federal lion withany pending regutaloey matter or ore likely Gnscrnvect accecies ether than FDA. If yes, list to be subsitred for FDA consideration (a.~., raeh-ngeecy. sypciotwcot periods, locations, and pailicipatrrn -rn Jerovtrgatoe en a acre dreg, sub- rnriwcrtcd sawS-er e! days of ewptvyweot for cries ion Zr a firm of infoemation which is mode each agency dcrringcureent calendar year. partofancrr'drrrgapptical:on.foodaddi(zre - - petition, o ethee matters dealing u-jIb er'gutatory 4. Indicate it yes currently have ncn-Fcdcrul con- crrrtharitiec. t'ecside descriptrco of coy sock sultarcy or other employment retationships ~pajd retationsh.-o you mny hove bud with regulated or oopaid). If yes, list organizations, frequency industries. of your sernice nature of the busi aeon and hied -- cf products marketed. 7. Indicate it you currently are innc.Ined in writing - - - - or editing.ctieitios fur pubtieslions which ore. 5. Indicate if you or yore con-Federal employers sponsored ~.acshole or in port by regulated in- currently arc recipients of Fcdccr;rt t;rants!con. duntry. lfycs, glee detnils. tracts. If yen, list uc-:ardieg Federal agencies, ned . describe relctic'crship of sahjrct ratter to FDA R. Indicate if you, your spouse, minor child, partnree, assigned duties and/nc FDA fasctiees. or ergsniz.cios ccitt, which yon are csoser ted have - - financial itercsts in products regulated by' FDA. 6. todieste if you hose hr-en involved in research or - If yes, lie nones ot ficecs marketing regulated ether acttitics sponsccrd by or undectaken no . prortnels, ke type of major products, and is wtrnse behafi of FDA-regrrlutrd nrganiaatinns. If yes, name the ~acrncial or stochinterest ts held d hh It f h Is ( I! (dot If d) 357 FORM PD 2637 12/Pd) PAGENO="0364" 358 - PARTfl.TOSECOMFLETCDBYAG~J~CY 0 0 7. TYPE Of APPOINTMENT EJ C OI.II.IITTE C/PANEL MELISCR D CONSULTANT :~ EXPERT M P0 10. LIST SAIJC OF FDA COMMITTEE/PANEL. IF APPLICADLE ~ . . 19. CONFLICT OF INTEREST REVIEW/OETERMI?4ATION ~ PART III - INFORMATION FOR SERVICING PESSOIONEL OFFICE 21. EMPLOYEE REPORTED THE FOLLOWING OTHER FEOERAL EI.IPLOYME1IT..' - NONE LISTED RELOII DEPARTMENT OR AGENCY (SUsRI. CII1 ~.d 5MM) PROM TO OF DAYS 22. APPLICADLE 365 DAY PERIOD 24. REMARKS - - - ( 5~2 ) C P MO 23. APPOINTEE IS DESIGNATED AS S~ECI~L GOVT R~GLJLAR GOVT TOTAL PAGENO="0365" STATE-U$IA CONFIDENTIAL STATEMENT OF EMPLOYMENT AND FINANCIAL INTERESTS (For Use By Special Government Employees) PART I. - TO RE rnf.IPLETFr) RY A(~FMCY (.NAME (lest, first, initial) 2. AGENCY AND MAJOR ORGANIZATIONAL SEGMENT OR POST 3. BIRTH DATE (cth, dsy, v~I 4. PERIOD OF APPOINTMENT, THIS AGENCY* Feon: To: Sn. Entimsted Number Of Days~On Which Sernices Are Eopeoted To Br Plotted. (1) ..rth this Açency (2) `jIb other Federal Agencies Sum of (I) ond (2) b. Number 01 Dais Alreody Wotled For This And Other Federal ~ Dutirg Applkoble 36S.doys Period...-. Total Number Of Days (sum ole. attd b.) ..-....-.........-.....-eL..-..........................,.. PART II. -TO BE COMPLETED BY APPOINTEE AGENCY AND LOCATION TITLE 0 I R KIND OF POSITION ~ APPOIN TMENT PERIOD NO.OF ESTIMATED DAYS Peon To 2. NON-PEDERAL EMPLOYMENT. . Matte oIl corpuratict n crguniontions, ottd educotiottol or other institutions in t h tor, eopert, odviser, or consultont, ncith or without cornj e , contponies, fietns, State or locol G overnnten to) orgoniootions, reseoeoh ich you ore serv:ttg os entployeg, officer, rnertluer, onner, trustee, direc- nsotion. If none, write NONE. 4. ACTIONS ON BEHALF OF FOREIGN PRINCIPALS. - H one you ever been on agent or otherwise acted for a foreign principal on- dee the teems of Foreign Agents Registration Art of 1939 ? U Yes :~ No If yes, state details. I CERTIFY i/ut the siatrrrnts I Face code are true, complete, and correct to the best of my knowledge and belief. I UNDERSTAND that if, dcring the period of my appointment, I undertake a new employment, I must promptly file an orended statement, and I must also report any new financial interests acquired during this period. NAME AND KIND OF ORGANIZATION (e.g.,rtnnufocturirg, eesenrch,Insutnno.) 3. FINANCIAL INTERESTS. - Name all csrpnrotinns, camp st thrcugh the ownership of stock, stock options either directlr cr indirectly to ycur duties ond e.sponsi~uiIi NAME OF ORGANIZATION KIND I (manufacturing, LOCATION (CIty, State) TITLE OR KIND OF POSITION es, firms, or other business ent bonds, securities, or other orro iesasascecialGooernntenten rrprises in which you bane ony finon. ngements incloding trusts which relate Ion... F ORGANIZATION tctaç., public utilities, .tc.) NATURE OF INT WHOSE NA EREST AND IN ME HELD 359 1. FEDERAL GOVERNMENT EMPLOYMENT. - List oIl other Federol a gennies and other orguniaational segwnnts of this Agency in which you ore orenently ertnloyed. If ecne. ncrite NONE. (Date) JF.1A (When completed, submit in sealed enselape la your Agency Counselor' Sec. 70.735.702) PAGENO="0366" 360 CONFIDENTIAL STATEMENT OF EMPLOYMENT AND FINANCIAL INTERESTS For me by a special Governmenl employee as required by section 306 of Executive Order 11222, dated May 8, 1965, Prescribing Standards of Ethical Conduct for Government Officers and Employees. GENERAL REQUIREMENTS. The information to be furnished in this statement is required by Executive Order 11222, the regulations of the Civil Service Commission and the joint regulations of the Department of State, the United States Information Agency and the Agency for International Development, issued thereunder and may not be disclosed except as the agency head may determine for good cause shown. The Order does not require the submission of any infor- mation relating to an employee's connection with, or interest in, a professional society or a charitable, religious, social, fraternal, recreational, public service, civic, or political organization or any similar organization not conducted as a business enterprise and which is not engaged in the ownership or conduct of a business enterprise. Educational and other institutions doing research and development or related work involving grants or money from or contracts with the Government are deemed to be "business enterprises" for purposes of this report and should be included. The information to be listed does not require a showing of the amount of financial interest, indebtedness, or the value of real property. In the event any of the required information, including holdings placed in trust, is not kflown to you but is known to another person3 you should request that other person to submit the information on your behalf and should report such request in Part IV of your statement. The interest, if any, of a spouse, minor child, or other member of your immediate household shall be reported in this statement as your interest. If that information is to be supplied by others, it should be so indicated in Part IV. "Member of~your immediate household" includes only those blood relations who are full-time residents of your household. PAGENO="0367" CNO/NIH October 29, 1975 Analyei& of Appointments of PROFESSIONAL Members to NIH Advisory Councils (Thin table excludes lay members entirely) (1965 - 1975) SUMMARY PAGE 1965 1966 1967' 1968' `1969. 1970 1971 1972 1973 1974 1975 Vacancies 19 21 30 26 38 42 39 62 49 51 83* NIH Candidates " 41 49 49 56 78 85 54 112 76 108 139 -` NIH Candidates Approved 21 23 32 27 38 36 25 37 19 10 51 Other Candidates*** 2 1 0 0 1 10 9 11 6 13 7 Invited 23 24 32 27 39 46 34 45 25 18 58 Declined 5 3 2 1 3 6 1 3 1 3 2 NIH Candidates Appointed 16 20 30 26 36 32 24 34 l~ 8 50 Other Candidates Appointed 2 1 0 0 0 8 9 8 5 6 6 Remaining Vacancies 1 0 0 0 2 2 6 20 25 37 27 Total Authorized Professional Positions 72 72 84 100 108 111 114 152 124 118 130 Total Authorized Positions 108 108 120 142 156 160 167 195 183 ` l74** 190 * Represents vacancies held over from 1974 and vacancies created by normal rotation of members. ** Total number of authorized positions dropped in 1974 due to termination of Hypertention Committee (12 members) and addition of three members to the National Advisory Allergy and Infectious Diseases Council. *** Submissions by the Office of the Secretary. PAGENO="0368" Analysis of Appointments of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Director's Advisory Committee Vacancies ne ne 12 0 2 12 2 5 2 8 9 NIH Candidates -- . -- 12 0 2 27 4 9 6 16 18 NIH Candidates Approved -- Other Candidates -- -- -- 12 0 0 0 2 0 10 4 Z 0 4 0 0 0 0 2 0 0 * Invited -- -- 12 0 2 14 2 4 0 2 0 Declined -- NIH Candidates Appointed -- Other Candidates Appointed -- Remaining Vacancies -- Total Authorized Professional Positions-- Total Authorized Positions -- -- 0 12 0 0 12 12 0 0 0 0 12 12 0 2 0 0 12 14 2 8. 4 0 12 14 0 2 0 0 12 16 0 4 0 1 12 16 0 0 0 2 12 16 0 0 2 6 12 16 0 0 0 9 12 16 ne not in existence 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Council on Aging Vacancies ne ne ne ne ne ne ne ne ne ne* 8 NIH Candidates -- -- -- -- -- -- -- -- -- 16 NIH Candidates Approved . -- -- -- -- -- -- -- -- -- 7 Other Candidates -- -- -- -- -- -- -- -- -- -- 1 Invited -- -- -- -- -- -- -- -- 8 Declined -- -- -- -- -- -- -- -- -- 0 NIH Candidates Appointed . -- -- -- -- -- -- -- -- Other Candidates Appointed -- -- -- -- -- -- -- 1 Remaining Vacancies -- -- -- -- -- -- -- -- 0 Total Authorized Professional Positions -- -- -- -- . -- -- -- 8 Total Authorized Positions -- -- -- -- -- -- -- -- 12 * Legislation passed in 1974. Nominat~ions for members not processed until 1975. ** One NIH professional candidate was put into lay slot by Office of the Secretary. PAGENO="0369" 3 Analysis of Appointments of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Cancer Council Vacancies - 3 3 2 2 2 2 1/ na na na na NIH Candidates 7 6 4 4 4 5 -- -- -- NIH Candidates Approved 1 2 2 2 2 1 -- -- Other Candidates 1 1 0 0 0 1 -- -- -- -- -- Invited 2 3 2 2 2 2 -- -- -- -- -- Declined 0 0 0 0 0 0 -- -- -- -- NIH Candidates Appointed 1 2 2 2 2 1 -- -- -- Other Candidates Appointed 1 1* 0 0 0 1 -- -- -- -- -- -- - - - - -- Remaining Vacancies -- 1 - -- ~ O~ - 0 ~O O~ -- ---- -- - Total Authorized ProfessionalPositions 8 8 8~ 8 ~ 8~ -- - ---------- -- - -------- --- - Total Authorized Positions 12 12 12 12 12 12 -- -- -- -- * White House appointment. 1/ White House instructed NCI to hold up all nominations pending implementation of the National Cancer Act. na = Not Applicable. Since enactment of National Cancer Act, all appointments are handled through the White House. 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Heart and Lung Council Vacancies 2 2 2 2 2 4 3 4 2 2 4 NIH Candidates 4 4 4 4 4 7 4 9 4 4 8 NIH Candidates Approved 2 2 3 2 2 4 2 4 1 2 0 Other Candidates 0 0 0 0 0 0 1 0 1 1 0 Invited 2 2 3 2 2 4 3 4 2 2 0 Declined 0 0 1 0 0 0 0 0 0 0 0 NIH Candidates Appointed 2 2 2 2 2 4 2 4 1 2 0 Other Candidates Appointed 0 0 0 0 0 0 1 0 1 - 0 0 Renaming Vacancies 0 0 0 0- 0 0 0 0 0 0 4 Total Authorized Professional Positions 8 8 8 8 8 11. 11 11 11 11 11 Total Authorized Positions 12 12 12 12 12 16 16 18 18 18 18 PAGENO="0370" Analysis of Appointments of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Sickle Cell Committee, NHLI Vacancies tie ne ne ne ne ne 7 . 1 7 2 5 NIH Candidates -- -- -- . -- -- -- 10 1 10. 4 10 NIH Candidates Approved -- Other Candidates 6 1 1 0 3 0 0 1 4 1 Invited -- -- -- -- -- -- 7 1 3 0 5 Declined -- -- -- -- -- -- 0 0 0 0 0 NIH Candidates Appointed . -- -- -- -- -- -- 6 1 3 0 4 Other Candidates Appointed -- 1 0 0 0 1 Remaining Vacancies -- . -- . 0 0 4 2 0 Total Authorized Professional Positions -- ` -~ -- -- 7 7 7 .7 7, Total Authorized Positions -- -- -- 11 11 11 11 11 ne not in existence 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Hypertension Committee, NBLI Vacancies . ne ne tie ne ne tie ne 12 3 na na NIl! Candidates -- -- -- -- -- 22 6 NIH Candidates Approved -- -- -- -- -- -- -- 9 2 -- -- Other Candidates -- -- -- -- -- -- -- 3 1 -- -- Invited -- -- -- -- -- -- -- 12 3 -- Declined -- -- -- -- 1 0 -- -- NIl! Candidates Appointed -- -- -- -- 8 2 -- Other Candidates Appointed , -- -- . -- 3 1 -- -- Remaining Vacancies -- -- -- -- 1 0 -- Total Authorized Professional Positions -- -- -- -- ~, -- 8 8 -- -- Total Authorized Positions -- -- -- -- 12 12 -- ne not in existence tie not applicable--committee terminated 6/30/74. PAGENO="0371" 5 Analysis of Appointments of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Dental Research Council Vacancies 2 2 2 2 2 2 3 2 3 4 5 NIH Candidates 4 4 4 4 5 4 6 4 4 11 8 NIH Candidates Approved 2 2 2 2 3 1 4 1 0 2 4* Other Candidates 0 0 0 0 0 1 0 0 1 0 1 Invited 2 2 2 2 3 2 4 1 1 2 5 Declined 0 0 0 0 1 1 1 0 0 1 0 NIH Candidates Appointed 2 2 2 2 2 1 3 1 0 1 4 Other Candidates Appointed 0 0 0 0 0 0 0 0 1 0 1 RemainingVacancien~- -~ ~OO~ 0 O 0~~l0~ 12 3~ 0 -Total Authoriz~J rrofesaionalPositions8 8~ 8 -----8 8 8 8 -8----- 8 ~8 8 Total Authorized Positions 12 12 12 12 12 12 12 12 12 12 12 Cii * 2 from nominations submitted in 1974. 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Arthritis Council Vacancies 2 2 2 2 2 4 5 9 5 8 9* NIH Candidates 4 4 4 6 3 6 5 14 6 12 6 NIH Candidates Approved 2 2 2 3 1 4 0 7 2 1 9** ether Candidates 0 0 0 0 0 0 0 0 0 2 0 Invited 2 2 2 3 1 4 0 7 2 3 9 Declined 0 0 0 1 1 0 0 0 0 1. 0 NIH Candidates Appointed 2 2 2 2 0 4 0 7 2 1 9 Other Candidates Appointed 0 0 0 0 0 0 0 0 0 1 0 Remaining Vacancies 0 0 0 0* 2 0 5 2 3 .6 0 Total Authorized Professional Positions 8 8 8 8 8 8 11 11 13 13 13 Total Authorized Positions 12 12 12 12 12 12 16 16 18 18 18 * Includes 2 resignations ** Includes 5 nominations submitted in 1974. PAGENO="0372" 6 Analysis of Appointments of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Neurology Council 2 3 4 6 1 2 2 4 3 4 8 7 1 3 2 5 2 4 3 7 8 10 Vacancies NIH Candidates NIH Candidates Approved 2 3 1 2 4 3 1 2 2 0 4 Other Candidates 0 0 0 0 0 1 0 0 0 1 0 Invited 2 3 1 2 4 4 1 2 2 0 4* Declined 0 0 0 0 0 1 0 0 0 0 0 * NIH Candidates Appointed 2 3 1 2 4 2 1 2 2 0 4 Other Candidates Appointed Remaining Vacancies 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 3 0 4** Total Authorized Professional Positions 8 8 8 8 8 8 8 8 8 8 12 Total Authorized Positions * 12 12 12 12 12 12 12 12 12 12 16 . * Includes 3 submitted in 1974. ** 4 new slots only recently authorized. Nominations 1965 1966 submitted 1967 to HEW 9/29/75. 1968 1969 1970 1971 1972 1973 1974 1975 Allergy Council * 2 2 2 . 2 *2 2 4 3 4 6 8 *Vacancies * NIH Candidates 6 5 4 4 4 6 7 6 6 14 9 NIH Candidates Approved 4 2 2 2 2 2 3 0 2 0 9* Other Candidates 0 0 0 0 0 0 0 1 0 0 0 Invited 4 2 2 2 2 2 3 1 2 0 9 * Declined 2 0 0 0 0 0 0 0 1 1 1 NIH Candidates Appointed 2 2 2 2 2 2 3 0 1 0 8 Other Candidates Appointed 0 0 0 0 0 0 0 1 0 0 0 Remaining Vacancies 0 0 0 0 0 0 1 2 3 * 6 0 Total Authorized Professional Positions 8 8 8 8 8 8 8 8 8 10 10 Total Authorized Positions * 12 12 12 12 12 12 12 12 12 15 15 . * Includes 5 submitted in 1974. PAGENO="0373" Analysis of Appointments of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 General Medical Sciences Council Vacancies 3 3 2 2 3 2 2 2 2 2 5 NIH Candidates 6 . 10 4 4 7 3 2 5 4 4 6 NIH Candidates Approved * 5 5 2 2 3 1 1 2 2 0 4 Other Candidates 1 0 0 0 0 2 1 0 0 0 1 Invited 6 5 2 23 3 2 2 2 0 5 Declined 3 2 0 0 0 1 0 0 0 0 0 NIH Candidates Appointed 2 3 2 2 . 3 1 1 2 2 0 4 Other Candidates ~ l O~ 0~O~ 0~ 1 ~l ~O ~O ~0 ~ RemainingVacancies-- ------ ---- 0 0---- 0-- 0- 0 ~-~-- 0 ----0 0 ~0 --2 0 Total Authorized Professional Positions 8 8 8 8 8 8 8 . 8 8 8 8 Total Authorized Positions 12 12 12 12 12 12 12 12 12 12 12 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Child Health Council Vacancies 2 2 2 2 2 3 3 2 2 3 5 NIH Candidates 4 4 4 4 4 6 3 6 5 7 10 NIH Candidates Approved 2 2 2 2 2 3 1 1 0 1 1 Other Candidates 0 0 0 0 0 0 2 0 1 1 1 Invited 2 2 2 2 2 3 3 1 0 2 2 Declined 0 0 0 0 0 1 0 0 0 0 1 NIH Candidates Appointed 2 2 2 2 2 2 1 1 0 0 1 Other Candidates Appointed 0 0 0 0 0 0 2 0 0 0 0 Remaining Vacancies 0 0 0 0. 0 1 0 1 2 3 4 Total Authorized Professional Positions 8 8 8 8 8 8. 9 9 9 9 9 Total Authorized Positions 12 12 12 12 12 12 14 14 14 14 14 PAGENO="0374" 8 Analysis of Appointments of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Environmental Health Sciences Council Vacancies ne ne ne 5 3 3 2 2 4 3 2 NIH Candidates -- -- 12 6 4 2 5 6 6 4 NIH Candidates Approved * -- 5 3 3 1 0 3 2 2 Other Candidates -- . -- 0 0 0 1 0 0 1 0 Invited -- -- 5 3 3 2 0 3 3 2 Declined -- -- -- 0 0 0 0 0 1 0 ` 0 NIH Candidates Appointed -- -- -- 5 3 3 1 0 3 2 2 Other Candidates Appointed ` -- -- 0 0 0 1 0 0 1 0 Remaining Vacancies -- -- -- 0 0 0 0 2 2 0 0 Total Authorized Professional Positions -- 8 8 8 8 8 8 8 8 Total Authorized Positions -- -- -- 12 12 12 12 12 12 12 12 * 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Eye Council Vacancies ne ne ne ne 10 2 2 3 2 3 4 NIH Candidates -- -- -- -- 18 3 2 8 4 6 4 NIH Candidates Approved -- -- -- -- 10 1 1 2 1 0 3* Other Candidates -- -- -- 0 1 1 1 1 1 0 Invited -- -- -- -- 10 2 2 3 2 0 3 Declined -- * -- -- -- 0 0 0 1 0 0 0 NIH Candidates Appointed -- -- -- -- 10 1 1 1 1 0 3 Other Candidates Appointed -- -- -- -- 0 1 1 1 1 * 0 0 Remaining Vacancies -- -- 0 0 0 1 0 3 1 Total Authorized Professional Positions -- -- -- * -- 8 8 8 8 8 8 8 Total Authorized Positions' -- -- -- -- 12 12 12 12 12 `12 12 * All three nominations submitted in 1974. PAGENO="0375" 9 Analysis of Appointments of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Research Resources Council Vacancies 1 2 3 2 2 2 2 2 4 3 6 NIH Candidates 2 6 7 4 6 3 2 2 2 6 16 NIH Candidates Approved 1 3 4 2 2 2 2 0 2 1 4 Other Candidates 0 0 0 0 0 0 0 0 `1 2 2* Invited 1 3 4 2 2 2 2 0 3 3 6 Declined 0 1 1 0 0 0 0 0 0 0 0 NIH Candidates Appointed 1 2 3 2 2 2 2 0 *2 0 4 Other Candidates Appointed 0 - 0 0 0 0 -- O~ 00 102 Remaining Vacancies 0 0 0 0 0 0 0 2 1 3 0 Total Authorized Profeasional Positions 8 8 8 8 8 8 8 8 8 8 8 Total Authorized Positions 12 12 12 12 12 12 12 12 12 12 12 * * * * Both candidates invited in 1974; accepted in 1975. 1965 1966 1967 1968 1969 1970 1971 1972 1973* 1974 1975 Fogarty International Center Advisory Board Vacancies ne ne ne ne ne ne ne 10 ne ne ne NIH Candidates -- -- -- 10 -- -- -- NIH Candidates Approved -- -- -- -- 7 -- -- -- Other Candidates -- -- -- -- 3 -- -- -- Invited -- -- -- -- * 10 -- -- -- Declined -- -- -- -- 1 -- -- -- NIH Candidates Appointed -- -- -- 6 -- -- -- Other Candidates Appointed -- -- * -- 3 -- -- -- Remaining Vacancies -- -- -- -- -- 1 -- -- -- Total Authorized Professional Positions -- -- ~* -- 10 -- -- -- Total Authorized Positions -- -- -- -- 14 -- -- -- * Board abolished 3/30/73. me not in existence. PAGENO="0376" 10 Analysis of Appointments * of PROFESSIONAL Members to NIH Advisory Councils (1965 - 1975) 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 nationai. ~iorary OL aeuiciite Board of Regents S Vacancies na* na* na* 3 2 1 3 3 4 4 5 NIH Candidates -- -- -- 6 7 4 4 6 5 11 14 NIH Candidates Approved -- 3 2 1 1, 0 0 1 0 Other Candidates -- -- -- 0 1 0 2 3 0 1 0 Invited -- -- -- 3 3 1 3 1 0 1 0 Declined -- -- -- 0 1 0 S~ 0 0 0 0 0 NIH Candidates Appointed -- -- -- 3 2 1 1 0 0 1 0 Other Candidates Appointed -- -- 0 0 0 2 1 0 1 0 Remaining Vacancies -- -- -- 0 0 0 0 2 4 3 5 Total Authorized Professional Positions -- -- -- 8 8 8 8 8 8 8 8 Total Authorized Positions -- -- -- 10 10 10 10 10 10 10 10 * Not applicable. Transferred from PHS to NIH on April 1, 1968. PAGENO="0377" CMO/NIII December 31, 1974 Analy~is of I\ppoinbnents of Professional Members of NIH Advisory Councils (1965 - 1973) SUM~1~RY PAGE 1965 1966 1967 1968 1969 `~1970 1971 1972 1973 i9~ 19. 21 30 26 38 42 * 39 62 49 51 49~ ~56 ~78~ ~s s~ ~112 ~76~ iO8~ 2]. .23 32 . 27 38 * 36 25 . 37 19 : 10 2 1~ 0 0 1 10 9 11 .6,13 23 24 32 27 39 46 34 45 25 18** 5 3 2 1' 3 6 1 3 1 3 16 20 30 26 36 32 24 34 19 8 2 1 0 0 0 8 9 8 5 6 1 0 0 0 2 2 6 20 25 37 Total Authorized Po~;it~onn 108 108 142 156 160 167 195 183 174* - Vacancies NIh Caixhclntes NIh! Candidates Approved OLhier Candidates Livited Dcc.1.inec] NI!! Candidates Appointed Other Cariliclaies Appointed Rtnaini.ng Vacancies * ToLal numbcr of authorizcd positions dropped in 1974 due to. termination of Hypertension Committee (12 members) and addition of three members to the National Advisory Allergy and Infectious Diseasea Council. ~ Two NICHI) invitations sent 1/17/75. No replies as yet. PAGENO="0378" Analysis of l\ppointmants of Professional Mzssbers of NIH Advisory Councils (1965 - 1973) 1965 1966 * 1967 196R 1969 1970 1971 1972 1973 1974 2~ec~~or' s Advisory Ccsmittee `/ocancicz ne ne 12 . 0 2 . . 12 2 . 5 2 . 8 I~liI Candidates NI!! Candidates Approved - -~- - - 12 12 , 0 0 2 2 27 4 10 2 9 4 6 0 16 0 Other Candidates - , -~ . 0 0 0 4 0 0 0 2 Invited - - 12 0 *2 14 2 4 . 0 2 Declined -` -~ 0 0 0 2 0 0 0 0 * NI!! Candidates Appointed Other Candidates Appointed -~ - -~ 12 0 0 0 2 0 8 2 0 4 0 0 0 0 2 r?rLmaining Vacancies 0 0 0 0 0 1 2 6 Total Authorized Positions -- - .12 12 1 4 14 16 16 16 16 ne = not in cecistence ` . . Cancer Council . i~~ics 3 3 2 2 2 2 # na . __ na NI!! Candidates 7 6 4 4 4 5 - NI!! Candidates 2'pproi~ed 1 2 2 2 2 1 - Other Candidates 1 . 1 0 0 0 1 - Invited 2 3 2 2 2 2- Declined 0 0 0 0 0 0 Ni!! Candidates Appointed 1 2 2 2 2 1 Other Candidates Appointed 1 1* . 0 0 0 1 - - Hcceaining Vacancies 1 0 0 0 0 0 -~ Total Authorized Positions 12 12 12 12 12 12 -- - -- * Waite House appointeent . . . . # Waite }~ouse instructed 1'X~I to hold up all naninations pending ixnplenentation of National Cancer Act. na = r~t applicable PAGENO="0379" 2 * 1965 1966 1967 1968 1969 1970 1971 1972 l973_j974 Heart and Lung Council Vacancies 2 2 2 2 2 4 3 4 2 2 ND! Candidates 4 4 4 4 4 7 4 9 4 .4 ~NIll Candidates Approved 2 2 3 2 \2 4 2 4 1 2 Other Candidates 0 0 0 0 0 0 1 0 1 1 Invited 2 2 3 2 2 4 3 4 2 2 Declined 0 0 1 0 0 .~. 0 0 0 0 0 ND! Candidates Appointed 2 2 2 2 2 4 2 4 1 2 Other Can(lidatcn Appointed 0 0 0 0 0 0 1 0 1 0 Hciuini.nq Vacancies 0 0 0 0 0 0 0 0 0 0 Total Authorized Positions 12 12 12 12 12 16 16 18 18 18 ~c1:ic Ccii Cuirnittee Vacancies no no no no no no 7 1 . ~ ~ NWCindi.chtes -~ - 10~~ 1~10 4 Nfl! Candiclites Approved - -~ -~ - - 6 1 3 0 OtherCandidates -~ - -~ - - 1 0 0i Invited - . 1 3 0 Declined -. - -~ - 0 0 0 0 NI!! Candidates Appointed ~-` -* - - - 6 1 * 3 0 Other Candidates Appointed - -~ -~ -~ - -~ 1 0 0 0 flenciining Vacancies - . . - - - - 0 0 4 2 Total Authorized Positions -~ -- -- -~ -~ 11 11 11 11 rtens.i on Carniittco . Vicanci.ea . -. no no no no no no no 12 3- na Ni!! Ctndidates . . - 22 6 NIl! Candidates Approved - -~ - - - 9 2 Other Candidates -~ -~ - - . -~ 3 1 -- Invited -~ . - ~- - - - 12 3 Declined - - - . 1 0 Nil! Candidates Appointed -~ -~, . - -~ 8 2 Other Candidates Appointed - - . -` -~ -~ . 3 1 Rcsiaining Vacancies - .- . - 1 0 -- Total Authorized Positions . -~ -~ - 12 12 no not in existence . . . I . ma not applicable--committee terminated 6/30/74 . . . * . - PAGENO="0380" 1965 1966 1967 1968 1969 ` 1970 1971 1972 1973 .1974 ntzil Rencarch Council . . . . . . - Vacancies 2 2 2 2 2 2 3 2: 3 4 NH! Candidates 4 4 4 4 .5 4 6 4 4 11 NI!! Candidates 1~pproved 2 2 2 2 3 1 4 1 0 2 Other Caixliclates 0 0 0 . 0 0 1 0 0 1 0 Invited . 2. 2 2 2 3,2 4 `1 1 2 Declined 0 0 0 0 1 1 1 0. 0 .1 NI!! Candidates Appointed 2 2 2 2 . 2 1 3 1 0 1 Other Candidates Appointed 0 0 0 0 0 0 0 0 1 0 ~ctuining Vacancies 0 0 0 0 0 1 . 0 1 2 3 Totsi Authorized PoeItions 12 12 12 . 12 12 12 12 12 12 12 Arthritis Council . . Vacancies . 2 2 2 2 2 . 4 . 5 . 9 . 5 8 NI!! Candidates . 4 4 4 6 3 6 5 14 6 * 12 NIH Candidates Approved 2 2 2 3 1 . 4 0 7 2 1 Other Caedidates . 0 0 0 0 0 0 0 0 0 . 2 Invited . 2 2 2 3 1 4 0 7 2 3 Declined 0 0 0 . 1 1 0 0 0 . 0 1 NIH Candidates Appointed 2 . 2 . 2 2 0 4 . 0 7 2 . 1 Other Candidates Appointed 0 . 0 0 0 . 0 0 0 0 0 1 Renaming Vacancies 0 0 0 0 2 0 5 2 3 6 Total Authorized Positions 12 12 12 * 12 12 12 16 16 18 18 PAGENO="0381" 4 1965 1966' 1967 1968 1969 1970 1971 1972 1973 1974 Naurolcny Cotuicill! Vacancies 2 3 1 2 4 3 1 2 2 3 NIL! Candidates 4 6 2 4 7 3 5 4 7 NIL! Candidates Approved 2 3 1 2 4. 3 1 2 2 0 Other Candidates 0 0 0 0 0 1 0 0 0 1 Invited . 2 3 1 2 4 ". 4 ` 1 2 2 0 Dcclincd . 0 0 0 0 0 1 0 , 0 0 0 Ni!! Canclidatcs 2~ppointe~ 2 3 1 2 4 2 1 2 2 0 Other Candiclatc.s Appointed 0 0 0 0 0 1 0, 0 0 0 FLc~nzüning Vacancies * 0 0 0 0 0 0 0 0 0 * 3 Total Authorized Positio~ys 12 12 .12 12 12 12 . 12 12 12 12 A11orqvCounci1ll,~ ~ ~ ~``~` ~" ~` ~ ~ ~" ~ Vic'tncies 2 2 2 2 2 2 4 3 4 6 NI!! Candidates 6 5 4 .4 4 6 7 . 6 6 14 NI!! Candidates Approved 4 2 2 2 2 . 2 3 `0 2 0 Ca Other Gandidates 0 ` 0 0. . 0 0 0 0 1 0 0 `Invited 4 2 2 2 2 ``2 3 12' 0. D3clined ` 2 0 0 .0 0 *` 0 0 0 1 ` 1* NIL! Cnncliclatos Appointed 2 2 2 2 2 . 2 3 0 1 0 Other Cendi(latcs j~oi~ted 0 0 0 0 0 0 0 1 0 ` 0 jiaini.na Vacancies 0 0 0 0 0 0 1 2 3 ` 6 Tt'nl Authorized !`ositjons 12 12 12 * 12 12 12 12 12 12 - 15 General ?lcdical Sciences Council# Vacancies 3 3 2 2 3 2 2 2 . 2 2 Ni!! Cen':liclates 6 10 4 4 7 3 2 ` 5 4 4 NI!! Candidates 2~ppravei 5 5 2 ` 2 3 1 1 .2 2 ` .0 Other Caralidatos 1 0 0 0 . 0 2 1 0 0 `0 InVit(X1 6 5 ` 2 2 3 3 2 2 2 0 Declined . 3 2 0 0 0 1 . 0 ` 0 0 0 NI!! Candidates Appointed 2 3' 2 2 3 1 1 . 2 2 0 Other Candidates Appointed 1 0 0' 0 ` 0 1 3. , 0 0 , 0 _.j~ç~maining Vacancies , 0 0 0 0 . 0 0 0 0 0 2 Total Authorized Po5itip0S 12 12 12 12 12 ` 12 12 12 - _~1~ * Invited 1973; declined 1974. PAGENO="0382" 5 1965 1966 1967 1968 1969 1970 1971 1972 19731974 child health Council Vacancies 2 2 2 2 2 3 3 2 2- 3 NIh Candidates 4 4 4 . 4 4 6 3 6 5 7 NIl! Candidates Approved 2 2 2 2 2 3 1 1 0 i Other Candidates 0 0 0 0 0 0 2 0 1 1 Invited 2 2 2 2 2 ~. 3 3 1 0 2* Declined 0 0 0 0 0 1 0 0 0 0 * NIH Candidates Appointed 2 2 2 2 2 2 1 1 0 0 Other Candidates Appointed 0 0 0 0 0 0 2 0 0 0 Panaining Vacancies 0 0 0 0 0 1 0 1 2 * 3 Total Authorized Positions 12 12 12 12 12 12 14 14 14 `14 * Invitations sent 1/17/75. ~iviroroicnLa1 Health Council - . . Vacancies ne no no 5 3 3 . 2 2 4 3 NIH Candidates - -~ -~ 12 . 6 4 2 . 5 6 6 NIH Candidates Approved - 5 3 * 3 1 0 3- . 2 Other Candidates * - 0 0 0 1 0 * 0 * 1 * Invited - * . - 5 3 . 3 2 0 3 3 Dcclincsl -~ - 0 0 * 0 0 0 1 * 0 NIH CanJidatea Appointed 5 3 3 1 0 * * 3 2 Other Candidates Appointed - 0 0 0 1 0 0 1 &niaining Vacancies * 0 0 0 0 2 2 0 Total Authorized Positions -~ -~ . 12 12 12 12 12 12 * 12 no ~ not in existence PAGENO="0383" 6 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 ~je Council ... Verandas ne no no ne - 10 2 2 3 2 3 NIH Cenclidates . - - 18 3 2 8 4 6 NIh Candidates Approv~ - -~ - 10' 1 1 2 1 0 Other Candidates - - - 0 1 1 1 1 1 Invited - - - 10 `~ 2 2 3 2 0 Declincd S. - - 0 0 0 1 0 0 NIH CandidaLes Appointed 10 1 1 1 1 0 Other CrndichLee Appointed - 0 1 1 1 1 0 ~~inThg--Vacancies-- ~-------- ~ 0 0 ~3 C~ Total Authorized Positions -- -- -- -- 12 12 12 12 12 12 no = not in existence * Pending since 5/74 5 Research Resources Council S Vacancies 1 2 3 2 2 . 2 `2 2 4 3 NIH Candidates 2 6 7 . 4 6 . 3 2 2 2 6 NIh Candidates Approved 1 3 4 2 2 2 2 0 . 2~ . 1 Other Candidates 0 0 0 0 0 0 0 0 1 2 Invited 1 3 4 2 2 2 2 0 3 3* Declined 0 1 1 0 0 0 0 0 0 0 NIH Candidates Appointed 1 2 . 3 2 2 2 2 0 * 2 : 0 Other Candidates Anpointed 0 0 0 0 0 0 0 0 1 0 Reiiaining Vacancies 0 0 0 0 0 0 0 2 1 3 Total Authorized Positions 12 12 12 12 12 12 . 12 12 12 12 * Invitations sent 1/9/75. : -: PAGENO="0384" - 1965 1966 1967 1968 1969 1970 1971 1972 1973* 1974 Foc~arLv International Center ?dvi';ory ~oard Vacancies no . no no no no no no 10, ` no ` ne Nil! CarKlidates -~ - -. 10 -- -- NI!! Candidates Approved - . - - - . 7 Other Candidates - -~ - - - -.. 3 - -- Invited - - -- - - - - 10 - -- Daclined - . - - -~ -~ -~ 1 . -- NI!! Candidates Appointed - - - -~ . -~ - 6 ` - -- Other Candidates Appornted -~ -~ . - . . -* ***-. `.3:,....- Remaining Vacancies -~ - - 1 - Total Authorized Positions -~ -~ -~ -~ -~ -. -- 14 -- -- . 9 * i3oard abolished 3/30/73 . , . . . no = not in existence NaL~ona1 Linraly of Modicing ~i33YCi et ltY!efltS Vacnncies nà* na* . na* 3. 2 1 3 3 . 4 . `4 Nil! Candidates - . - 6 7 ` 4 4 6 5 NE!! Candidates Approved - - - 3 2 ` 1 1 . 0 0 1 Other Car~1idates - -- ` 0 1 0 . 2 3 0 0 Invited - - 3 3 1 3 1 0 `1 Declined 0 1 0. 0 0 0 0 NI!! Candidates Appointed -~ 3 2 1 1 . 0 0 1 Other Candidates Appointed - - - 0 0 0 * 2 1 0 0 Remaining Vacancies - - ~.. 0 0 0 0 2 4 3 Total Authorized Positions -- -~ --. 10 . 10 10 . 10 10 10 10 * ~f~ed frat! PHS to NIH on April 1, 1968k , . . PAGENO="0385" Analysis of Appointments of Members of NIH Advisory Councils January 2, 1975 - October 29, 1975 CMO/NIH 10/29/75 Actual 1/ Appts. No. of Positions Vacant Vacant Positions Authorized Members 1/2/75- during Calendar Year as of Positions 10/29/75 10/29/75 1972 1973 1974 3 10 /29/75 Director's Advisory Committee 16 5 0 1 5 11 Council on Aging 12 12 12 - - 12 0 Allergy Council 15 15 11 1 1 6 0 Arthritis Council - - 18 -- - - - 18 -~ -- - - 10 -~ - 1 -5------- -- --- -- 0------ -Child Health Council- 14 9 4 - - 2 3 5 Dental Council 12 12 8 1 - 4 0 Environmental Health Council 12 12 4 - - 1 0 Eye Council 12 9 4 - - 3 3 General Medical Sciences Council 12 12 7 - - 4 0 Heart and Lung Council 18 11 1 - 1 1 7 Sickle Cell Disease Committee 11 11 7 - 1 3 0 Neurology Council 16* 12 6 - - 3 4 Research Resources Council 12 12 9 1 2 3 0 Board of Regents, Library of Medicine 10 3 0 1 1 2 7 TOTAL 190 153 83 5 12 55 37 * Four new positions authorized for this Council. Nominations submitted to HEW on 9/29/75. PAGENO="0386" 380 * - ATTACHMENT A NIH/CMO 1/30/75 * Criteria~, Guidelines and Conditions for Selection of, Members of NIH Advisory Councils Background Advisory Councils are established to advise, consult with, and make recommendations on matters relating to the mission and goals of each of the Institutes which they serve. As required by the Public Health Service Act, the Councils advise on policy matters related to the development and management of grant programs and provide final review for merit and program relevance of applications for grants-in-aid. They provide periodic review and evaluation of grant program accomplishments, help to identify and resolve problems in program development, and guide the program of the Institutes in the context of national health programs, needs, and concerns. Membership in the National Advisory Councils, established by law for each of the Institutes, usually consists of eight professional members, with expertise in the fundamental sciences, medical sciences or education, and four members who are representatives of the public interest. Criteria for Selection of "Lay" Members Individuals who are selected for the "lay" positions are representatives of the public~ with a demonstrated interest in the work of the Institute. These indivi- duals should have knowledge concerning needs and aspirations of society in the areas of the missions of the Institutes and should bring to the Council a broad understanding of the nature of our political process. Criteria for Selection of Professional Members Individuals selected for the professional or scientific positions are chosen from the realm of scientific "statesmen" and therefore are considered to have broad interest in and understanding of how biomedical science relates to the needs of society. Council members will have recognized achievement in a relevant field, other scientific accomplishments, honors and activities. The assessment of appropriate abilities and accomplishments is based primarily on the general recognition by peers in the biomedical area as a broadly based expert in the current and past development and status of a particular field of research. In addition to superior accomplishment, the characteristics of mature judgment, balanced perspective and objectivity are essential. Candidates must have demonstrated the capability of working effectively in a group context as committee members and those who accept appointments are expected to accept responsibility for all work assignments. PAGENO="0387" 381 2 In Selecting Nominees for Approva1~ of the Secretary, the Guidelines and Conditions Below Must Be Considered I 1. Within a given Council, representation of needed medical or scientific disciplines or specialties must permit the attainment and maintenance of a proper balance to cover the range of the mission and goals of the Institute. 2. Whenever possible, selection of candidates will reflect an equitable representation of the geographic regibns of the United States. These considerations, however, do not take, precedence over the appointment of qualified individuals as required in the criteria. 3. No two members of a Council may be appointed from the same institution or organization. 4. No member may be reappointed to the same or any other Council until a lapse .of one year after termination of a prior appointment. No member may serve concurrently on more than one DHEW advisory group. Within the criteria, guidelines and conditions noted above, NIH practice is to utilize the widest available poàlof qualified candidates for advisory service, including equitable representation of well-qualified minorities and women. Procedure for Obtaining Approval of Candidates Selected by NIH The usual procedure is for NIH to nominate one primary candidate and one alternate for each vacancy. (Each vacancy on a Council is usually linked to a specific medical or scientific need--see #1 above.) If neither of the names suggested is acceptable, the Office of the Secretary may request additional nominations and this process is sometimes repeated. An invitation to serve on an NIH advisory Council is sent by the Secretary either to one of those nominated by NIH or to another candidate. The Public Health Service Act directs the Secretary to appoint members to NIH advisory Councils in accordance with the requirements set forth by each of the Sections of that Act which apply to the particular Council. PAGENO="0388" Analysis of Appointments of Members of NIH Advisory Councils July 1, 1974 - January 1, 1975 CNO/NIH 1/30/ 75 Authorized Positions Actual Members 1/1/75 // i Appts. n FY 75 Vacant Positions 111/75 No. Ui'o During sitions Vacant Calendar Year 1972 1973 1974 Director's Advisory Committee 16 7 2 9 1 2 6 Aging Council 12 . 0 0 12 -- -- 12 Allergy Council . 15 7 0 8 1 1 6 Arthritis Council 18 12 * 1 6 -- 1 5 Child Health Council 14 9 0 5 -- 2 . 3 Dental Council 12 7 0 5 1 -- 4 Environmental Health Council 12 11 4 1 -- -- 1 Eye Council 12 8 0 4 1 -- 3 General Medical Sciences Council 12 8 .. 0 4 -~ . -- 4 Heart and Lung Council 18 14 2 4* . -- 4 Sickle Cell Disease Committee 11 7 0 4 -- 1 3 Neurology and Stroke Council 12 9 0 3 -- -- 3. Research Resources Council . 12 6 0 6** 1 2 3. Board of Regents, NLM 10 * 6 0 4 1 1 2 TOTAL 186 111 . 9 75 6 11 58 * 3 appointments made in January 1975 ** 6 appointments made in January 1975 PAGENO="0389" 383 cMOf NIH October 29, 1975 Vacancies on Councils and Boards at NIH October 29, 1975 Council on Aging 12 slots - all filled Allergy Council 15 slots - all filled ArthritIs Council 18 slots - all filled Child Health Council 14 slots - 5 vacancies since 5/75 - 10 candidates submItted 5/5/75 4 additional candidates submitted 8/4/75 Dental Council 12 slots - all filled Environnental Health Council 12 slots - all filled Eye Council 12 slots - 3 vacancies since 5/75 - 6 candidates submitted 5/7/75 1 additional candidate submitted 7/10/75 1 additional candidate submitted 9/16/75 General Medical Sciences Council 12 slots - all filled PAGENO="0390" 384 2 Heart and Lung Council 18 slots - 1 resignation in 1974 - 2 NIH nominations submitted 515/75 5 vacancies since 5/75 - 10 NIH candidates submitted 5/5/75 1 vacancy since 1973 - 2 NIH candidates submitted 5/29/73 2 NIH candidates submitted 6/24/74 - 1 approved but declined 2 NIH candidates submitted 2/27/75 1 NIH candidate submitted 7/2/75 1 OS candidate submitted 9/75 - no action as yet Sickle Cell Disease Committee 11 slots - all filled Neurology Council 16 slots (4 new ones only recently authorized from the former 12~-member council) 4 vacancies - nominations submitted 9/29/75 Research Resources Council 12 slots - all filled Board of Regents, National Library of Medicine 10 slots - 1 vacancy since 1972 - approximately 13 candidates were submitted in 1972 1 vacancy since 1973 - 9 candidates were submitted in 1973 2 vacancies since 1974 - 8 candidates were submitted in 1974 3 vacancies since 2/75 - 6 candidates were submitted in 1975 7 vacancies 36 candidates Advisory Committee to the Director 16 slots - U vacancies - 1 vacancies since 1972 - 2 candidates submitted 4/13/72 2 candidates submitted 9/24/74 2 candidates submitted 9/4/75 3 vacancies since 1973 - 6 candidates submitted 2/7/74 6 candidates submitted 9/24/74 6 candidates submitted 9/4/75 5 vacancies since 1974 - 10 candidates submitted 9/24/74 10 candidates submitted 9/4/75 2 vacancies in 1975 - 4 candidates submitted 9/4/75 2 OS candidates were appointed in 1974. PAGENO="0391" 385 3 NOTE: For both the Board of Regents and the Director's Advisory Conmittee, * the same candidates were sometimes subnitted more than once. Each time a candidate, new or repeat, was formally submitted, it was counted. Therefore, approximately 36 candidates were submitted from 1972 until October 29, 1975 for the Board of Regents, and approximately 48 candidates were submitted for the same period for the Director's Advisory Committee. PAGENO="0392" 386 January 15, 1975 Vacancies on Councils and Boards at NIH Aging Council 12 slots-nominations submitted 10/9/74 (First meeting March 1975) Allergy Council 1 vacancy since 1972. 3 vacancies since 10/1/74 3 new positions since 8/23/74 total-7 vacancies on a 15 nenbar council Arthritis Council 1 vacancy since 1973 2 resignations 1974 3 vacancies since 10/1/74 6 vacancies on an 18 member council Child Health Council 2 vacancies since 1973 3 vacancies since 10/1/74 5 vacancies on a 14 member council Dental Research Council 1 vacancy since 1973 3 vacancies since 10/1/74 1 resignation 1974 5 vacancies on a 12 member council Environmental Health Sciences Council 1 vacancy-l974 (member resigned) - (four vacancies filled December 1974) 1 vacancy on a 12 member council Eye Council 1 vacancy since 1972 3 vacancies since 10/1/74 4 vacancies on a 12 member council Ceneral Medical Sciences Council 3 vacancies since 10/1/74 lvacancy 1974--member deceased 4 vacancies on a 12 member council Heart & Lung Council 1. vacancy-invitee declined Nov. 1974 PAGENO="0393" 1 vacancy since 1973 3 vacancies since 7/1/74 tot~1~4vacancies on an 11 member committee Neurciot.~ Council 3 vacancies since 10/1/74 12 member council Research Resources Council * 1 vacancy since 1972 -2 vacancjes since 1973 3 vacancies since 10/1/74 total-6 vacancies on a 12 member ~ounci1 Due to a telephone conver~ation from Dr. Bates NIH was requested to withdraw the nominees that were in the OS and submit ,a new slate. NIH complied. 1 vacancy since 1972 1 vacancy since 1973 2 vacancies since 3/4/74 : total-4 vacancies on a 10 member Board Advisory Committee to the Director, ~IH es since 197 1 vacancy since 1972 2 vacancies since 1973 * ,~vacancies since 7/1/74 total-9 vacancies on a 16 member committee TOTAL- 71 vacancies on Councils and Boards 387 SkKL~~ Cell Olsease Committee 2 Board of Recients. ~LN at NIH as of January 15, 1975 PAGENO="0394" 388 CMO/NIH 10/29/75 Actions on Appointments to NIH Councils July 29, 1975 - October 29; 1975 Lay or OS or Date Date Council Professional NIH Invited* Accepted Allergy Prof. NIH 8/27/75 8/30/75 Allergy Prof. NIH 8/27/75 9/2/75 Allergy Prof. NIH 8/27/75 9/4/75 Allergy Prof. NIH 8/27/75 9/4/75 Allergy Lay NIH 8/27/75 9/3/75 Dental Prof. NIH 9/26/75 9/30/75 Dental Lay OS 9/26/75 9/30/75 Dental Prof. 05 9/26/75 - 9/29/75 Dental Prof. NIH 9/26/75 10/1/75 Environmental Health Lay OS 8/5/75 - 8/27/75 Environmental Health Lay NIH 8/5/75 8/29/75 Environmental Health Prof. NIH 8/5/75 8/18/75 Environmental Health Prof. NIH 8/5/75 8/18/75 Sickle Cell Prof. NIH 8/28/75 9/4/75 Sickle Cell Prof. NIH 8/28/75 9/12/75 Sickle Cell Prof. OS 8/28/75 9/3/75 Sickle Cell Prof. NIH 8/28/75 9/2/75 Neurology Prof, NIH 9/22/75 9/29/75 Neurology Lay NIH 9/22/75 9/26/75 Neurology Lay OS 9/22/75 9/25/75 * The Secretary invites all candidates for Council membership. PAGENO="0395" 389 2 Lay or OS or Date Date Council Prof ession2'. NIH Invited Accepted Research Resources Prof. NIH 9/29/75 9/30/75 Research Resources Prof. NIH 9/29/75 10/17/75 Research Resources Lay NIH 9/29/75 10/1/75 Arthritis Council Prof. NIH 9/3/75 9/8/75 Arthritis Council Prof. NIH 9/3/75 9/18/75 Arthritis Council Lay NIH 9/3/75 9/12/ 75 Arthritis Council Prof. NIH 9/3/75 9/8/75 PAGENO="0396" 390 Actions on Appointoents to NIH Councils January 1, 1975 - Present Lay or Os or Date Date Council Professional NIH Invited Accepted Aging Lay NIH 3/14/75 3/22/75 Aging Prof. NIH 3/14/75 3/18/75 Aging Prof. NIH 3/14/75 3/18/75 Aging * Prof. NIH 3/14/75 3/24/75 Aging Prof. NIH 3/14/75 5/28/75 Aging Lay OS 3/14/75 4/21/75 Aging Prof. NIH 3/14/75 3/17/75 Aging Lay NIH 3/14/75 4/2/75 Aging Lay NIH 3/14/75 3/18/75 Aging Prof. NIH 3/14/75 3/27/75 Aging Prof. OS 3/14/75 3/19/75 Aging Lay NIH 3/3.4/75 3/19/75 Allergy Prof. NIH 2/20/75 2/24/75 Allergy Prof. NIH 2/20/75 2/24/75 Allergy Lay NIH 2/20/75 2/24/75 Allergy Prof. NIH 2/20/75 2/27/75 Allergy Prof. NIH 2/20/75 2/24/75 Allergy Prof. NIH 2/20/75 Declined Allergy Lay NIH 2/20/75 * 2/26/75 PAGENO="0397" 391 Lay or OS or Date Date Professional NIH Invited Accep~~ Arthritis Prof. NIH 3/26/75 4/3/75 Arthritis Prof. NIH 3/26/75 4/5/75 Arthritis Prof. NIH 3/26/75 4/2/75 Arthritis * Prof. NIH 3/26/75 3/29/75 Arthritis Prof. NIH 3/26/75 4/1/75 Arthritis Prof. NIH 3/26/75 3/31/75 Arthritis Coission Prof. NIH 3/27/75 3/31/75 Arthritis Coission Prof. NIH 3/27/75 3/31/75 Arthritis Coission Prof. NIH 3/27/75 4/1/75 Arthritis . Coission Prof. NIH 3/27/75 3/31/75 Arthritis Coission Prof. NIH 3/27/75 4/2/75 -Arthritis Coiasion Lay 05 3/27/75 4/5/75 Arthritis - Coission Lay NIH 3/27/75 4/1/75 Arthritis * Cc~ission Lay OS- 4/22/75 4/25/75 Arthritis Ccission Prof. OS * 3/27/75 3/31/75 Arthritis S * Coatission Lay NIH 3/27/75 4/1/75 Arthritis - - .. Coaxnission Prof. * NIH 3/27/75 3/31/75 Arthritis . - Co~nission Lay NIH 3/27/i5 Declined PAGENO="0398" 392 Lay or OS or Date Date Council Candidate Professional NIH Invited Accepted Child Health Lay OS 1/17/75 1/30/75 Child Health Prof. NIH 1/17/75 1/22/75 Child Health Prof. OS 1/17/75 Declined Child Health Lay NIH 1/17/75 1/22/75 Dental Lay OS 3/7/75 3/10/75 Dental Prof. NIH 2/27/75 3/5/75 Dental Lay OS 2/27/75 3/3/75. Dental Prof. NIH 2/27/75 3/4/75 Eye Prof. NIH 2/21/75 2/25/75 Eye * Lay OS `2/21/75 2/25/75 Eye Prof. NIH 2/21/75 2/25/ 75 Eye Prof. . NIH 2/21/75 2/25/75 General MedicaL Sciences - Lay OS 1/29/75 2/4/75 General Medical Sciences Prof. NIH 1/29/75 2/4/75 General Medical . Sciences Prof. NIH 1/29/75 2/7/75 General Medical Sciences Prof. NIH 6/19/75 6/23/75 General Medical . . . Sciences Prof. NIH. 6/19/75 6124/75 General Medical . . . . $ Sciences Prof. , OS 6/19/75 6/24/75 General Medical Sciences Lay NIH 6/19/75 7/1/75 PAGENO="0399" Council Candidate 4* OS or Date NIH Accepted ~39~3 Lay or 1 Date Invited Burt . Lay NIB 2/21/75 2/27/75 Neurology Prof. NIB 2121175 311175 Neurology * : * NI~ 2/21/75 5/9/75 Neurology. .* Prof.' NIB 2/21/75 2/26/75 Research * Resour~ces Prof. ` OS 1/9/75 1/13/75 Research Resources . Lay NIB * 1/9/75 1/16/75 Research Resources * . Lay OS * 1/9/75 1/20/75 Research Resources : * * Prof. * NIH - 1/9/75 1/21/75 Research Resources * Prof. OS 1/9/75 1/17/75 Research Resources Prof. NIH 1/9/75 1/16/75 Sickle CeU Sickle Cell Sickle CeU Lay Lay * Prof. NIH OS * NIH 5/16/75 5/16/75 5/16/75 5/22/75 5/24/75 -613&[75- PAGENO="0400" 394 A DESCRIPTIVE ANALYSIS OF THE ATrITtJDEs, MAKE -~UP, FuNCrION, AND UTILIZATION OF ADVISORY COUNCILS TO TIlE UNITED STATES OFFICE OF EDUCATION March 1, 1976 Gerald J. Kluernpke PAGENO="0401" 395 This report is a surr~aary of a doctoral dissertation to be presented to The George Washington University in March 1976 by Gerald 3. Kluempke, 3800 North Fairfax Drive, Arlington, Virgiria, 222O3.~ 70-426 0 - 76 - 26 : PAGENO="0402" 396 INTODUCfIC~ In recent years there has been increased emphasis on using advisory committees to the Federal Government. These committees are used for a variety of purposes, but chiefly they are designed to tap the experience and knowledge of individuals who are will- ing to devote their time and energy to improve the administrative operations and programs of the Federal Government. Advisory committees provide a means for involving citizens in the decision-making process. The most capable and experienced leaders in business, the professions, and in our society are frequently called upon to serve. Sixteen statuatory public advisory councils and committees were serving the U.S. Office of Education on June 30, 1975. Mem- bers of these organizations are appointed by the President; the Secretary of Health, Education, and Welfare; or the U.S. Coasnis- sioner of Education, and are required by law to advise these of- ficials and/or the U.S. Congress. The following advisory councils were serving the United States Office of Education on June 30th and serve as the basis of this study: 1. Accreditation and Institutional Eligibility, Advisory Committee on 2. Adult Education, National Advisory Council on PAGENO="0403" 397 2 3. 4. 5. Bilingual, Advisory Coimñittee on the Education of Career Education, Natior~al Advisory Council for Corrnnunity~Education, Advisory Committee for Developing Institutions,~ Advisory Council on Disadvantaged Children, National Advisory Council ~i the Education of 6. 7. 8. Education Professions De~telopment, National Advisory Council on 9. Eq~uaUty of Educational bpportunity, National Advisory Council on 10. Extension and Continuing Education, National Advisory Council on 11. Financial Aid to Students, Advisory Council on Handicapped, National Advisory Council on the 12. 13. Indian Education, National Advisory Council on 14. Supplementary Centers and Services, National Advisory Council on 15. Vocational Education, National Advisory Council on WomenTs Educational Programs, National Advisory Council for 16. Advisory councils have contributed substantially to the ef- fectiveness of the Federal Government; however, as the function of government has become more complex the role of advisory councils has become less clear. As a result of the rapid growth of councils, insufficient attention has been paid to their development. This paper, therefore, will mainly address itself to three questions: Who serves on advisory councils? (2) How do council members perceive their roles? and (3) How can advisory councils improve their effective- ness. PAGENO="0404" 398 3 Although appointments to advisory committees are asually considered to be prestigious--members are sometimes asked to serve without being given a clear explanation of their role. This, accord- ing to Cronin and Thomas in a February 1971 article often leads to "frustration and ambiguity."1 Each year the Federal Government spends more than two million dollars on committees which are called upon to advise the U.S. Office of Education. In spite of this large expenditure, council members are sometimes appointed without being given adequate information, staff, and other resources required to accomplish the objectives stipulated in the legislation. As a result of these failures, committees are often looked upon as being unnecessary and expensive. Advisory committee members complain that the Congress fails to consider their recommendations, and that programs are considered on political rather than educational merit. Federal officials occasionally criticize the Congress for introducing councils that, in their opinion, are not needed and have reacted by failing to appoint members, refusing to provide adequate staffing and other resources, and by ignoring the recommendations submitted by the councils. Advisory council members and governmental leaders are seeking to clarify the role and function of avisory councils. This study is designed to assist in this important effort. PAGENO="0405" 399 REVIEW OF THE LITERATURE The researcher employed~the services of Xerox's Comprehen- sive Dissertation Query Service, Lockheed's Information Retrieval Service, and the Educational Researèh Information Center (ERIC) in an attempt to locate relevant research~studies on such topics as "advisory council," "Committee," and "educational policy making." This section of the report includes a comprehensive review of the literature on admisory courtcils. Five studies, one by Carl Marcy in 1945, another by David S.~ Brown in 1954, a third by Thomas E. Cronin and Norman C. Thomas in 1969, a fourth by Frank Popper in 1970, and a fifth by the National Academy of Sciences are foundational to this study, and, are therefore, included in this section. The third section of this report, Historical Development of Educational Advisory Councils, incWdes literature related to federal hearings, reports, and legislation. It is included in a seperate section to show tha historical development of advisory councils. The 1945 Study of Presidential Commissions In 1945 Columbia University released a study of Presidential advisory commissions by Carl Milton Marcy which addressed itself to the councils created between the years~l900 and 1940.1 The report was divided into nine major sections: (1) the importance of Presidential commissions, (2) the legal basis of Presidential commissions, (3) methods of appointing and financing Presidential commissions, (4) fact- finding and opinion- guiding commissions, (5) boards of inquiry, (6) procedure of Presidential commissions, and (7) the future of Presidential commissions. 1Carl Milton Marcy, Presidential Commissions (New York: King's Crown Press, 1945). - PAGENO="0406" 400 5 According to Marcy there were seven sources of Presidential authority for the creation of coranissions at the time his research was conducted. These included the President's (1) responsibility to take care that the laws be faithfully executed, (2) power to estab- lish a cabinet, (3) authority as Commander in Chief of the Army and Navy of the United States, (4) authority to use war and emergency powers, (5) position of chief foreign agent, (6) authority given by special Congressional grant, and (7) authority given under a general grant of power by the Congress.1 Marcy pointed out that his research suggests the wisdom of giving greater consideration to the "more frequent use of the capa- cities of men of recognized ability, experience, and fairness."2 He suggests that this need is especially called for in times when pressure groups have strength enough to bend many Congressmen and government officials to their will. He said "It has often been noted that our government system does not make the best use of the experience of the outstanding men of our day."2 "For too long the idea has been generally accepted that the executive branch can get along without reorganizational changes until it begins to creak and groan...." Marcy said. He emphasized that reorganization of administrative practices of the government should be a constant process. To some extent, he pointed out, the Bureau of the Budget serves that purpose, but it tends to be immersed in administra- tive detail, which although important, leaves administration on the grand scale unattended." This job, he said, can best be done by Presidential commissions.3 1lbid., p. 4 3lbid., p. 88 p. 69 PAGENO="0407" - 401 H 6:' The 1954 Study of thePublic Advisory Board in the Federal Government In October 1954, Dr. David Brown, who is presently a Professor of Public Administration at The George Washington University, Washingtpn, D.C., submitted a dissertation, entitled "The Public Advisory Board in the Federal Government," to the faculty of the Graduate School of Syracuse University.1 Dr. Brown's dissertation analyzes the "organization, functions, activities and relationships" of the Public Advisory Board of the Economic Cooperation Adminiscrat~ion. In the Introduction to Dr. Brown's report, he points Out that "In spite of the growing interest in advisory boards in the Federal Government, there has been no overall examination of the subject within the government itself."2 Further- more, he emphasized that "Nost o~ the material on advisory boards is unorganized and, of course, widely dispersed among agencies."3 This statement appears to be just as accurate in 1975 as it was more than 20 years ago when Dr. Brown reported his findings. Viewpoints of the various administrators and members of the Public Advisory Board of the Economic Cooperation Administration and the character of the Board under various leaders were major items of concern in Dr. Brown's study. The study also emphasized the adminis- tration, organization and staffing of the Board.4 1David S. Brown, "The Public Advisory Board in the Federal Government" (Ph.D. dissertation, Syracuse University, 1954). 2lbid., p. 1. 3lbid., p. 4. 4lbid., p. 1. PAGENO="0408" 402 7 In his concluding statement, Dr. Brown pointed out that (1) members of Congress sometimes see advisory boards as a means of curbing adminis trators and sometimes as a means of encouraging them, (2) an administrator may regard a board as a means of "selling" his program to the country, (3) the representatives of interested groups who are invited to sit on advisory boards value these invitations because it gives them the opportunity to discuss important problems within the framework of government, and (4) some members of the public fear the bureaucracy and, therefore, have great faith in advisory boards.1- The 1969 Study of Educational Policy Advisers In 1969, Dr. Thomas E. Cronin, then a research political scientist at the Brookings Institution in Washington, D.C., and Dr. Norman C. Thomas, a professor of political science at Duke University in Durham, North Carolina, undertook a study which examined the in- dividual role definitions and the personal attitudes toward advisory processes of the members of 26 councils and committees which were advising the Department of Health, Education, and Welfare during the years 1966 to 1969. - The focus of the study was on educational policy. Most of the data presented in the study, which was presented in a February 26, 1971, article in Science, resulted from a questionnaire which the re- searchers mailed to citizens serving on 26 educational advisory p. 449-454. PAGENO="0409" 403 8 councils in early 1969. The authors gave the following report of their findings: Approximately 60 percent of the sample held doctoral degrees, more than 80 percent were teachers or educational administrators, and 88 percent were over 40 years old. Fifty-seven percent said they were Democrats, as opposed to 12 percent who said they were Republicans, and almost all the respondents said they favored an active federal government role in education and the domestic program initiatives of the Great Society. Most of the respondents viewed thennelves as educational policy makers, or at least as educational researchers and civic leaders knowl- edgeable about education.1 In summary, Drs. Cronin and Thomas recommended: (1) that govern- ment officials specify as precisely as possible the exact function or functions of councils, (2) more thoughtful Congressional appreciation of advisory councils, (3) that advisory councils should not be estab- lished if staffing must be inadequate and meeting time insufficient, (4) that the membership composition be designed in the light of the specified functions the council is expected to serve, and (5) that since a spectrum of options concerning advisory councils is available to federal officials no one format should become fixed as the model.2 The 1972 Report on Advisory Committees to the National Academy of Sciences In 1968 the National Academy of Science formed a special study commission entitled Committee on the Utilization of Young Scientists and Engineers in Advisory Services to Government for the purpose of 1Thomas E. Cronin and Norman C. Thomas, "Federal Advisory Processes: Advice and Discontent," Science, February 26, 1971, p. .771. . 2lbid . . . PAGENO="0410" 404 9 examining the question of selecting members for Academy advisory com- mittees. The major objective of the study committee was to determine how councils could more effectively recruit and appoint young scientists to membership on Academy coinmittees;~however, the coamiission, which released its report in 1972, broadened its study to include other significant questions regarding the status of advisory committees.1 If a committee fails to "achieve its best," according to the report, it can usually be understood by reference to one or a combina- tion of the following: administrative weaknesses in the requesting, appointing, or supporting machinery; the nature of the task assigned to the committee; the conditions under which the committee has to work; or deficiencies among the mainbers thenselves.2 The following are some of the recommendations made in the committee report: 1. That the nominal term of service on a continuing committee be not more than three years and that extension be given only infrequently and for compelling reasons. 2. That proposing and appointing agencies internally review the status of every committee at least once each year, ask thenselves why the committee should not be terminated, and act promptly and decisively if they do not find convincing answers. 3. That federal agencies and private foundations give support to well-planned and imaginative research projects by competent investigators in the area of committee process, small-group dynamics, and the advisory function. 4. That greater precision and descriptiveness be used in the nomenclature for science committees. 1National Academy of Sciences, The Science Committee (Washington, D.C.: National Academy of Sciences, 1972) p. iv. 2lbid., p. 5. PAGENO="0411" 405 10 5. That appointing agencies throw the net more widely in seeking nominees for committee service; particularly, that more younger people (35 years old and younger), women, and mem- bers of ethnic minorities be included in committee memberships; and specifically, that every committee, unless there is corn- peiling reason to the contrary, include at least one younger person of ability and promise as a way of providing experience and education for the oücoming generation of advisers. 6. That committee memberships be balanced, so as to include both experienced, seasoned people and those newer to committee work, so that opportunities exist for progression in com- mittee service. 7. That the larger appointing agencies, such as the National Research Council and the larger federal agencies, assign * to central offices the responsibility of finding qualified persons for committee assignments. 8. That sponsoring agencies experiment with conferences on topics of special interest and potential significance, which * often lead to important committee studies, stimulate interest in committee service, and serve to identify highly motivated people with the potential of becoming unusually able advisers. 9. That appointing agencies clearly define the functions of committees, prepare guidelines for the conduct of committee activities, and see that every member is acquainted with them. 10. That the performance and justification for continuance of committees be evaluated regularly and frequently by the sponsoring agencies and by the committee members. 11. That sponsoring agencies~ provide timely and adequate support- ing services so that each committee can make the most ef- fective use of its members' time and energies. 12. That sponsoring agencies make determined efforts to keep committee members informed about the results of their work, such as decisions taken or difficulties encountered, policy changes, awards made, and new progress or institutions cre- ated. Such feedback should continue during the lifetime of the committee and for a reasonable period after its discharge. 13. That sponsoring agencies pay greater attention to recognition of committee service. 14. That an ethic of counnittee service be generally accepted: A person should serve as a member of a committee only if he is convinced of the value of the advisory task and is able to provide the time and effort that it requires)' pp. 9-24. PAGENO="0412" 406 11 According to the National Academy of Sciences report the govern- ment now relies heavily on the advice of committees; therefore, the "health and effectiveness of the advisory structure should be a matter of concern throughout government at all levels of executive and legis- lative responsibility.1 The authors of the report point out that related to the task of keeping a continuing committee fresh and independent in its viewpoint is the crucial problem of terminating it. They say: Committees develop lives of their own. Even with periodic influxes of new members, they can dig ruts that unnecessarily limit their scope and effectiveness. In general, it is much more difficult to terminate a committee than to form one. Even ~hoc committees have been known to continue long after the tasks for which they were originally created have been com- pleted. Sometimes, of course, long life for a committee is desirable. Examples can be cited of committees that have remained lively, creative, critical, and useful for many years. By the same token, there are examples of moribund committees that have finally been terminated and unlamented, or that have been replaced by new committees under new lead- ership that has then succeeded in pumping fresh life into pro- grame of great importance. The greatest wrong is to continue a committee out of administrative lethargy or out of reluctance to put an end to it when its real value no longer makes its continuation worthwhile * 2 The report concludes that "the most important steps that can be taken to renew the vitality of the system and to reinforce its effective- ness lie in the area of selection and recruitment." The authors suggest several methods of identifying potential members: the "snowball tech- niques ," whereby selected persons nominate colleagues who would in turn be requested to nominate other colleagues, compilation of a roster of nominators, use of records of research grants, use of lists of recipients of prestigious fellowships or other awards, solicitation of nominees ~Ibid., p. 7. p. 8. PAGENO="0413" 407 12 from professional societies and the heads of graduate schools, and review the lists of those who have already served on committees.1 ~~odicals_ and Books In 1970 the Twentieth Century Funa released a report. by Fr ink Popper who researched Presidentia3~ commissions. Although. Nr, Popper's research was restricted to Presidential commissions, his report offers insightful comments on the streng~hs and weaknesses of commissions. In response to the question "Why commissions?" Mr. Popper points out that all Presidents need disinterested expert advice to "supplement the narrow view of federal agencies, Congress, the press, local govern- ments, and interest groups." For this reason, he says, Presidents have frequently turned to commissions--a hoc, nonpartisan groups of men not involved in the day to day operation of the government.2 Presidential commissions, according to Popper, "do not form a clique, but, with their other public responsibilities with their access to print and publicity, and with their positions, directorships, awards, club memberships, and honorary degrees, they are more like 1lbid.,p. 16. 2Frank Popper, The President's Commissions (New York: Twentieth Century Fund, 1970) p. 5. PAGENO="0414" 408 13 each other than they are like their constituents." He further suggests that most members are administrators who are "used to working in conznittees On the subject of how coumdssions function Mr. Popper says: The task force collects notions-good, bad, and indifferent- from its members. Some have been around for a long time and never tried-they may have been in reports of the task forces four years back, and even eight years back-and some are being tried on a small scale, and some are being tried somewhere in the recesses of the government and the task force doesn't even know about it (but that's not too likely). And the ideas come from everywhere.... The task force is like a huge broom-it picks up ideas that are around, does some brief and crude initial evaluation, and puts it down in its report.2 The role of the executive director of a council is a difficult one according to Popper. He says that once the director has hired his staff he is caught in the middle between the commissioners and the staff. He points out that "Commissioners, staff members, and directors all describe commission-staff relations as `acerbic,' `tense,' and `guarded."3 This position is reinforced in an article by Elizabeth Drew entitled, "On Giving Oneself a Hotfoot: Government by Commissions." She says: The staff is often composed of young, less experienced people who think the world can and should be changed; the commis- sioners know better.... So the policy alternatives go up from the staff, and policy directives come down from the com- missioners, and seldom the twain meet, except in the person of the exhausted whipsawed executive director."4 p. 18. p. 23. ~Ibid, 4Elizabeth B. Drew, "On Giving Oneself A Hotfoot: Government by Commissions," Atlantic Monthly, May 1968, p. 45. PAGENO="0415" 409 H 14 Popper says that "On any~cónmiission, the executive director must, as one staff member said, ~be good at getting compliance or si- lexice from people while pretendit~g, to get their advice." He further states that the executive director must prevent the commissioners from taking the coimnission in contradictory or irrelevanf directions. Ac- cording to Potter the executive director: .has the nearly impossible task of making commissioners and staff members regard the commission as a cohesive group, and not as a fragmented ~nd temporary collection of individuals. But, above all, he must infuse both the commissioners and the staff with a sense of urgency)- An interesting insight ir~to the difficulties of working within the constraints of the Federal Gc~vérnment is offered by Adam Yarmolinsky in an article entitled "Ideas into Prograna." He says: The bureaucrat's cons tant~ concern is to keep the system moving, and he, more than anyone else, is aware of its enormous in- ertia, and the difficulty of changing course or starting up again if it is stopped even momentarily. Bureaucrats realize better than anyone else 1~bw difficult it is to get anything done in government, and they adopt the devices of routinizing and systematizing-and bureaucratizing if you will--in order that certain things, at least, will be done.2 A 1972 editorial in U.S. News and World Report quotes Alexander Heard, Chancellor of Vanderbilt University and advisor to Mr. Nixon on education affairs as saying that people expect advisory commissions to come up with an instant solution to a complex problem nobody else has managed to solve. According to the article Mr. Heard said: "I think the test is what contribution does the study commission make to 1Frank Popper, The President's Commissions (New York: Twentieth Century Fund, 1970). p. 5. 2Adam Yarmolinsky, "Ideas into Programs," in The Presidential Advisory System, ed. Thomas E. Cronin and Sanford D. Greenberg (New York: Harper & Row, 1969) p. 92. PAGENO="0416" 410 15 the education of the nation as a whole and of public officials--What kinds of ideas does it stimulate on issues, how much forward does it advance consideration of problems and steps toward solution?" Much of the literature on advisory councils emphasizes the in- portance of selecting capable people who are willing to *devote their time and energies to council activities. The importance of a President surrounding himself with capable people was emphasized in 1969 by Thomas E. Cronin in The President's Commissions when he said: "A President committed to excellence in education and seeking to strengthen his leadership in the educational policy system has many resources, but none is more important than attracting qualified people for top govern- ment posts and key advisory spots."2 In "The Policy Nakers and the Intellectual" Henry Kissenger offered the following insights on what he considered to be a major deficiency of advisory councils: .Many organizations, governmental or private, rely on panels of experts. Political leaders have intellectuals as advisors. Throughout our society, policy-planning bodies proliferate. Research organizations multiply. The need for talent is a theme of countless reports. What, then, is the difficulty? One problem is the demand for expertise itself. Every problem which our society becomes concerned about--leaving aside the question of whether these are always the most significant--calls into being panels, committees, or study groups supported by either private or governmental funds. 1"Washington Worry: All Those Advisors," U.S. News & World Report, July 17, 1972, p. 79-80. 2Thomas E. Cronin, "The Presidency and Education," in The Presi dential_Advisory System, edds. Thomas E. Cronin and Sanford D. Greenberg (New York: Harper & Row, 1969) p. 229. PAGENO="0417" 411 - 16 Many organizations constantly call on intellectuals for advice. As a result, intellectuals with a reputation soon find themselves so burdened that their pace of life hardly differs from that of the executives whom they counsel. They cannot supply perspective because they are as harassed as the policy makers. All pressures on then tend to keep then at the level of the performance which gained them their reputa- tion. In his desire to be helpful, the intellectual is too frequently compelled to sacrifice what s~ould be his greatest contribution to society~~ is creativity. In recent years the Federal Government has become deeply involved in American Education. As a resu]~t of the Higher Education Act and the Elementary and Secondary Acts, it ~ould be difficult to find a classroom that is not in some way affected by the government's interest and fi- nancial assistance. As a result of this commitmont to better education more and more people have been involved in determining education policy. James Bryant Conant was critical of the methods used in shaping educa- tion policy in 1964 when he said: As we have seen, educational policy in the United States has been determined in the past by the more or less haphazard interaction of (1) the leaders of public school teachers, administrators, and profes~ors of education, (2) state edu- cation authorities, (3) a multitude of state colleges and universities, (4) private èolleges and universities, and (5) the variety of agencies of~the Federal Governmsnt, through which vast sums of money have flowed to individual insti- tutions and the states. It is my thesis that much a jumble of influential private and public bodies does not;correspond to the needs of the nation in the 1960's. Som~ degree of order needs to be brought out of this chaos, primarily for the benefit of the on-coming generation, but also, to achieve a more effective use of public and private moneys.2 3Henry A. Kissenger, "The Policy Makers and the Intellectual," in The Presidential Advisory System, edds. Thomas E. Cronin and Sanford D. Greenberg (New York: Harper & Row, 1969) p. 162-163. 2James B. Conant, Shaping Educational Policy (New York: McGraw- Hill, 1964). 70-426 0- 76 - 27 PAGENO="0418" 412 17 Representative Albert H. Quie (L, Minn.) in "The View from the Hill" an article printed iti~Thé Future In the Maki~g, a publication of the American Association for Higher Education, was also critical of the performance of the education community in providing the Congress with needed information. The ranking nether of the Education and Labor Committee said: Members of the higher education community are probably well aware of the criticism Congress has leveled at higher education in recent months. The criticism comes mainly from members of Congress who were most involved in the three-year consideration of the Education Amendments of 1972, signed into law last June. We found that there was very little discussion within the higher education community about legislation. The few who communicated with Congress provided us too little information, and when they did it was not at the time we needed it most. One key member of our Education and Labor Committee with close ties to many universities has said publialy that he was absolutely embarrassed by the scope änL quality of information provided by the higher education community. It seemed to me the major educational associations chose to concentrate on the politics of getting one-particular formula for institutional aid adopted, while l~eaving most of the necessary data-gathering and analytical work to the Congress.1 Education advisory councils are frequently called upon to testify before the Congress on matters relating to legislation and appropriations. The views of the members are usually welcomed by the Congress because of the advisory councils' unique role in federal affairs * Members are "insiders on the outside" representing various viewpoints which are periodically researched, analya~d, and coalesced for various reports and statements. Not all members of councils have.professional training in the areas they serve the government. The advantage of a council obtaining 1Albert H. Quie, "The View from the Hill," in The Future in the, Making, ed. Dyckman W. Vermilye (San Francisco: Jossey-Bass Publishers, 1973) p. 3-4. PAGENO="0419" 413 18 a "public membars" viewpoint was summarized by Dr. David S. Brown when he testified before the Senate hearings on advisory councils: I would like to share with~ this committee my own experience as a public member of a select committee in the Office of Education several years ago. We were dealing with the subject of school guidance and counseling progranu about which at the time I had very little specific knowledge. I explained this to those who asked me to serve and was assured that this was one of the reasons for my choice. As the meetings pro- gressed, however, I began to realize that I and the other two `public members were performing a useful service by focusing upon points which there was disagreement among the experts, calling attention to the significant public issues involved, and on a number of occasions helping to achieve a consensus by the types of questions we asked and the manner in which we sought to bring the varying views to- gether.' I am pleased to report how well I felt about my assignment, and how well I think my associates felt about having me and the other public members there.1 For the purpose of this study, education advisory councils have been defined as those councils which are advisory to progranu of the U.S. Office of Education. Many councils serving other agencies of the Federal Government, however, are also education oriented. The following councils are examples of councils serving other agencies: (1) the National Advisory Council on Child Nutrition of the U.S. Department of Agriculture, (2) the National AdvisOry Council on Health Professions Education of the Department of Health, Education, and Welfare, and (3) the Advisory Committee for Science Education of the National Science Foundation.2 In the field of international education,., there were eleven in- formation and educational exchange advisory councils at the beginning 1U.S. Congress, Senate, Hearings before the Subcommittee on Inter Governmental Relations of the Committee on Government Operations of the U.S. Senate, 91st Cong., 2d sess., 1970. 2U.S. President, Federal Advisory Committees (Washington, D.C., Government Printing Office, March 1975). PAGENO="0420" 414 19 of 1973. The number was reduced to eight in 1975 according to testi- mony in April 1975 on the Role of Advisory Councils in Foreign Policy.1 In presenting testimony for the State Department, a representa- *tive said: The relatively large number of advisory committees in this field is probably accounted for by two factors. First, the major legislation in the field established some advisory committees and authorized the appointment of additional ones as deemed necessary by the executive branch. Second, the programs deal with the public and involve matters not directly related to the formulation of foreign policy, making them2 particularly suitable for the use of advisory committees. Although the Federal Government spends well over $75 million annually on advisory councils, the subject remains a relatively under- researched function of government. Nearly every researcher on the topic including Carl Marcy in the 1940 `s, David Brown in `the 1950's, and Thomas Cromin in the 1960's has called for greater attention to the topic. Recemt emphasis on government reports, the passage of the Federal Ad- visory Committee Act, and an upswing in public interest indicates that the subject will be given much more attention during the next decade. 11LS. Senate, Committee on Foreign Relatioms, The Role of Advisoy Committees in U.S. Foreign Policy (Washington, D.C.: Government Printing Office, April 1975). 2lbid. PAGENO="0421" 415 HISTORICAL DEVELOPMENT OF EDUCATIONAL ADVISORY COUNCILS The first federal advisory commission was appointed by Presi- dent George Washington in 1794 to settle "The Whiskey Rebellion," an uprising of Pennsylvania distillers against the federal liquor tax) During the 19th century most Presidents sought the advice of commissions. President Van Buren,: for example, appointed a number of important commissions including otie which studied the European postal system. Commissions, however, did not play a major role in government until 1901 when Theodore Roosevelt~ became President.2 President Roosevelt appoin~ted a number of commissions to make legislative proposals nxre palatabJe to the Congress. The Aldrich Commission, which led to the establishment of the Federal Reserve Sys- tem was probably the best kn~n of~ the Roosevelt Commissions * A special report for the Library of Congress, entitled, Federal Commis sions, Committees and Boards lists~ 490 Presidential Committees for 1Thomas E. Cronin and Sanford D. Greenberg, The Presidential Advisory System (New York: Harper and Row, 1969) p. 7. 2Library of Congress, Federal Commissions, Committees and Boards (Washington, D.C.: U.S. Government Printing Office, n.d.) p. 132. PAGENO="0422" 416 21 the period beginning with Roosevelt's Presidency in 1901 and continuing through Calvin Coolidge's term which ended in 1929. The summary is included in Table 1, Page 21.1 TABLE 1 Presidential Commissions, Committee~ and Boards for the Period 1901-1929 President Term Number of Committees Theodore Roosevelt 1901-1905 37 Theodore Roosevelt 1905-1909 . 70 William H. Taft 1909-1913 63 Thomas W. Wilson 1913-1917 64 Thomas W. Wilson 1917-1921 96 Warren G. Harding 1921-1923 44 John C. Coolidge 1923-1925 43 John C. Coolidge Total 1925-1929 75 492 On February 23, 1917 President Wilson signed into law federal legislation on vocational education which provided for~a Federal Board for Vocational Education designed to (1) promote vocational education in agriculture, the trades, and industries, (2) cooperate with the states in the preparation of teachers of vocational subjects, and (3) regu- late the expenditure of money appropriated by the act.2 llbid. PAGENO="0423" 417 22 The board consisted of the Secretary of Agriculture, the Secre- tary of Labor, the U.S. Commissioner of Education, and three citizens of the U.S. appointed by the President by and with the consent of the Senate. One of the "citizen" members was to be a representative of the manufacturing and commercial interests, another was to represent agriculture, and the other labor.1 The provisions of the Federal Board for Vocational Education which called for "citizen" participation forned the framework for many advisory councils which were to be appointed during the Presidencies of John Kennedy, Lyndon Johnson, and Richard Nixon. Although the U.S. Office of Education came into existence on March 2, 1867, when President Johnson signed into law "An Act to Estab- lish a Department of Education," tt played a rather insignificant role in educational affairs because of~the strong feeling among many Amer- icans that the Federal Government should not "meddle" in education affairs. ~st citizens and legislators considered education to be a function of the individual states and were strongly opposed to any attempt by the Federal Government to usurp the role assumed by local and state education agencies. In The Unfinished Journey, Issues In American Education by the John Day Company, the early role of the U.S. Office of Education is discussed as follows: Actually Congress voted the new department only $25 ,000 for its first year of operation. Henry Barnard, the first Commissioner of Education, received a salary of $4,000. Two years later his salary was reduced by the Congress to PAGENO="0424" 418 23 $3,000, and his staff was cut to two. The Department of Education became the Office of Education and was quietly submerged in the Department of the Interior under a secretary whose immediate predecessor had ob- served, `there is no necessity of anyone knowing any- thing whatever about education.' There it remained until 1939 when it was transferred to the now-defunct Federal Security Agency, an asylum for waif and orphan offices and bureaus of the government. In 1953 the Office of Education found its present hone~in the Department of Health, Education, and Welfare.1 The establishment of the Federal Board for Vocational Educa- tion did not trigger a change in national education policy. Although public officials frequently praised the schools, they continued to emphasize the strong local role * On February 25, 1926, President Hoover made the following comments to the National Education Association. About one-fourth of the whole population of our country is always simultaneously engaged in the same occupation-- the job of going to school. It is the largest group in any one employment. To use a term of Ceasar, it is truly a "gainful occupation." Moreover, as nearly the whole people have worked at it at one time or another, no matter how diverse their life may become, they all have a common memory of the schoolyard and the classroom, and they all have a lasting affection for some teacher.2 The question of a Federal Department of Education was a concern of many Americans in the nineteen twenties and on June 6, 1929, Presi- dent Hoover appointed a citizen's committee of leading educators to consider the question. The committee reported on November 16, 1931. The committee's opinions on the Department question were divided but i~t was emphatic that the Federal Government should not invade the public schools. `The John Day Company, The Unfinished Journey: Issues in Amer~ ican Education (New York: The John D~y Company, 1968) pp. 14-15. 2Roy Lyman Wilbur and Arthur Mastick Hyde, The Hoover Policies (New York: Charles Scribner's Sons, 1937) p * 75. 3lbid., ~* 79~ PAGENO="0425" 419 24 The 52-person committee had been asked: by President Hoover to make the "first comprehensive sur~rey of federal Educational activities.' The following recommendations were made by the committe~ in its October~ 1931 report: (1) the immediate creation of a Department of Education~ to coordinate federal education programs; (2) further studies bythe Office of Education to determine whether federal `f1ñ~encial support for education was needed; and (3) elimination of special Education grants, especially those for vocational eduèation. If vocational education was to be subsidized, the committ~e reported that it should be sup- ported by general federal grants i.ised at the discretion of the states. In response to the committee's report President Hoover took the follow- ing action, according to Frank J. M~inger and Richard F. Fenno., Jr., in National Politics and Federal Aid to Education: Of all the recommendations: of the Advisory Committee on Education, President Hoov~r chose only to follow the suggestion that the vocational education program be terminated. As a part of his economy program to meet the economic crisis, he suggested in 1932 that all vocational funds be suspen~ded for one year. This proposal was rejected by Congress. The struggle was renewed by his successor, President Franklin Roosevelt who also sought to reduce appropriations for vocational education in the states. Instead of accepting Roosevelt's proposed reductions, Congress sought an increase, and in 1936 passed a measure enlarging the appropriation. President Roosevelt signed~ the bill. In 1936 President Roosevelt appointed a Committee on Vocational Education to review the vocational education program. The committee 3-Frank J. Munger and Richard F. Fenno, Jr., National Politics and Federal Aid to Education (Syracuse: Syracuse University Press, 1962) pp. 100101. : PAGENO="0426" 420 25 was later re-named the Advisory Committee on Education and given juris- diction over all aspects of the relationship between the Federal Govern- ment and education.~- The advisory committee submitted its report in February 1938 recommending a program of federal aid to education that would have amounted to $140 million in general aid by the sixth year, plus $62 million in various special grants. President Roosevelt accepted the council's report but did not endorse it.2 Federal aid to education was a major issue in the thirties because of the depression. The forties, however, brought World War II and America's preoccupation with winning a war. In 1948 President Truman sponsored the first White House Conference on Education which was the forerunner for conferences in the Eisenhower and Johnson Presidencies. The friends of federal aid to education in attendance at the 1955 White House Conference on Education won an unexpected victory when President Eisenhower proposed a school construction program. According to Munger and Fenno the presidential proposals were relatively complicated in character, involving three alternative forms of assistance-purchase of local school bonds, federal backing for the bonds of state school building authorities, and, where nothing else would work, federal matching grants. The N.E.A. and other educational groups objected to the form of the education bill, 1lbid., p. 100. 2lbid. PAGENO="0427" 421 26 protesting both that it provided t~o little federal assistance and that it imposed too many conditions on the aid authorized. Accordingly, the mid-fifties witnessed a series~of annual struggles among supporters of different kinds of school construction bills.1 In 1965 the White House again sponsored a conference on edu- cation. The conference was described as follows by Senator Wayne Morse, chairman of the Subcommittee on Education of the Senate Com- mittee on Labor and Public Welfare: The White House Conference on Education called by President Johnson, July 20-21, may well be a mile- stone in the history of education. The scope of the area of concern for the conference ranged from preschool education througl-i postgraduate research. The discussion spared the gamut of educational problems from education of the handicapped and disadvantaged to education of the talented. The objective of the conference was to bring together approximately 500 American citizens, from the ranks of the professional educators, government, and the American public to ponder and discuss the problems and promise of American education. The emphasis was on innovation.2 1lbid. 2U.S. Senate, Subcommittee on Education of the Committee on Labor and Public Welfare, White House Conference on Education: A I~ilestone for Educational Progress (Washington, D.C.: U.S. Government Printing Office, August 1965) p. v. PAGENO="0428" 422 27 The 1959 Executive Order on Advisory Committees In 1957 the Government Operations Committee of the U.S. House of REpresentatives held hearings on advisory councils and reported on a bill, H.R. 7390, which contained various measures of control over the creation and utilization of committees. The bill died in the Senate; however, the "Senate Government Operations Committee, in lieu of acting on the bill, encouraged the Bureau of the Budget to review operations of advisory committees in the executive branch and report back to the committee."1 The study report, "Standards and Procedures for the Utilization of Public Advisory Committees by Government Departments and Agencies," released on February 2, 1959 was used as the framework for Executive Order No. U007, released by President John F~ Kennedy on February 26, 1962.2 The Sixties--A New Era for Education Advisory Councils In 1960, John W. Gardner, then President of the Carnegie Cor- poration, became chairman of the "Task Force on Education" of President Eisenhower's Commission on National Goals. Gardner contended that ed- ucation was the key to improving the "quality of life in the American society."3 As chairman of the task force on education, he became one of the nation's leading supporters of federal aid to education. 1Hearings before a Subcommittee of the Committee on Government Operations of the U.S. House of Representatives, 91st Congress, 2nd Sess. (1970) p. 41. 2Stephen K. Bailey and Edith K. Mosher, ESEA, The Office of Education Administers A Law (New York: Syracuse University Press, 1968) p. 6. 3lbid. PAGENO="0429" 423 28 Stephen K. Bailey and Edith K. Mosher describe this important period in developing national education policy as follows: In the field of federal school aid, the half decade 1960-64 was filled with political inventiveness and some major break-~ throughs in cognote legislative areas.... The decade began with a presidential campaign which pitted the Eisenhower-Nixon philosophy of indirect aid-for-school- construction-only against the Kennedy-Democratic-Congressional philosophy of general aid for both school construction and teachers' salaries. The Presidential victory of Senator John F. Kennedy, Democrat of Massachusetts, in November 1960, presaged the beginning of a struggle whose resolution was ultimately to be the Johnson Administration's triumph of ESEA. In the summer of 1964 President Johnson appointed the Task Force on Education which was chaired by John Gardner. The task force was asked neither to resolve basic conflicts nor to write legislation but to bring together varying s treams of educational thought to form the basis of a fresh, dialogue. According to a report prepared for the Subcommittee on Education, of the Cotthnittee on Labor and Public Welfare of the U.S. Senate, the task force was instructed "to `think big' without public constraint or professional bias Cronin and Greenberg gave the following insights into President Kennedy's use of Commissions in The Presidential Advisory System: President John F. Kennedy was very fond of using task forces, particularly for promoting `and refining provocative new projects. He viewed these as part of the `theater of govern- IlEmt' and did not appear to' uiind if they called for legis- lative action which went beynd that which he knew he could 1lbid. 2U.S. Congress, Senate, Subcommittee on Education of the Corn- inittee on Labor and Public Welfare, Notes and Working Papers Concerning the Administration of Programs Authorized Under Title III of Public Law 89-10. the Elementary and Secondary Education Act of 1965 As Amend~4~y1 Public Law_89-750, 90th Cong., 1st sess. (1967) p. 15. PAGENO="0430" 424 29 secure. Kennedy valued the task force process both for long- range planning and for educating more people to the major problems that faced our government. He enjoyed meeting with the outside task forces and was clearly at hone among their participants 1 The passage of the Elementary and Secondary Education Act in April 1965, which resulted in part from the work of the task force, provided for the appointment of three advisory councils: (1) the Na- tional Advisory Council on the Education of the Disadvantaged, (2) the Advisory Committee on Supplementary Centers and Services, and (3) the Advisory Council on State Departments of Education. Members were appointed to these councils by President Johnson on April 11, 1965. The Higher Education Act (1964), the Economic Opportunity Act (1964), and the Elementary and Secondary Education Act (1965) encouraged citizen involvement in government through active participation on committees and councils. Members were appointed to an unprecedented fourteen education councils during 1965 alone (see Appendix C). Cronin and Thomas suggest that "two significant developments during the l96Os. resulted in. the proliferation of advisory bodies at all levels of American government." They describe these developments as follows: . First, expansion of federal domestic programs into all aspects of American life prompted a demand for better under- standing of "real needs" and better indicators of program impact. Secondly, with the coming of "the war on poverty" and the pursuit of "the Great Society," it was generally held that all sectors of soriety must be taken into account, consulted, involved, and, above all, "listend to." As 1Thomas E. Cronin and Sanford D. Greenberg, The Presidential Advisory System (New York: Harper and Row, 1969) p. xvi. PAGENO="0431" ~425 30 the Great Society's legislation on education moved to a series of successful triumphs on Capitol Hill, the Johnson administration established council after council to review progress on programs, develop suggesti~ns for their expansion, and assess their effectiveness. In 1968 the U.S. Office ~f Education published Public Advisory Committees which showed a subs tantial increase in the number of councils during President Johnson's administration. The nas~s and addresses of 250 members and descriptions of the following councils were included 2 in the publication: 1. Accreditation and Institutional Eligibilit~~, Advisory Com- mittee on 2. Adult Basic Education, National Advisory Committee on 3. College Library Resources, Advisory Council on 4. Developing Institutions~ Advisory Council on 5. Educational Laboratories, National Advisory Committee on 6. Education of Disadvanta~ed Children, National Advisory Council on 7. Education Professions Development, National Advisory Council on 8. EvaluatIon of Training in Vocational Schools, Advisory Committee for the 9. Exchange of Teachers, National Advisory Committee for the 10. Extension and Continuing Education, National Advisory Council on 11. Graduate Education, Advisory Committee on 12. Graduate Fellowship Program, Advisory Committee on the National Defense 1Thonas E. Cronin and Norman C. Thomas, Educational Pol~y Ad visors and The Great Society (Washington, D.C.: The Brookings Insti- tution, 1970) p. 559. 2U.S. Office of Education, Public Advisory Committees (Washington, D.C.: U.S. Governn~nt Printing Office, 1968). PAGENO="0432" 426 31 13. Guidance and Counselip~g, Advisory Committee on 14. Handicapped Children, National Advisory Committee on 15. Health Occupations Training, National Advisory Committee on 16. Instructional Technology, Commission on 17. Insured Loans to Students, Advisory Council on 18. Insured Loans to Vocational Students, Advisory Council on 19. Library Research and Training Projects, Advisory Committee on 20. Mexican-American Education, Advisory Committee on 21. Publication of Copyrighted Materials~ Advisory Committee on the 22. Research Advisory Council 23. State Departments of Education, Advisory Council on 24. Supplementary Centers and Services, National Advisory Coun- cilon 25. er Corps, Advisory Committee on the 26. Vocational Education, Advisory Committee on Only seven of the 26 councils described in Public Advisory Com mittees were in operation on October 1, 1975. The seven remaining in- cluded: (1) Accreditation and Institutional Eligibility, (2) Developing Institutions, (3) Education of Disadvantaged Children, (4) Education Professions Development, (5) Extension and Continuing Education, (6) Hand- icapped Children, and (7) Vocational Education. General Provisions Concerning Education Act On April 13, 1970 President Nixon signed the General Provisions Concerning Education Act which required the U.S. Office of Education to follow certain policies relating to program planning and evaluation, PAGENO="0433" 427 32 the collection and dissemimation~ of information, and criteria on the operation and administration of advisory councils.1 The section on advisory councils authorized the Commissioner "to create, and appoint members of, such advisory councils as he deter- mines in writing to be necessary...." The legislation further stipu- lated that the Conrnissioner could use these councils for advice concern- ing (1) the organization of the ~ffice of EducatIon and its conduct in the administration of applica1~le programs, (2) for legislation re- garding education programs and the means by which the educational needs of the nation may be met, and (3)~ to get advice on special problems and areas of special interest in education.2 The Act (1) reqv.ires the commissioner to report annually on advisory councils, (2) stipulates that councils shall report by March 31 of each year, (3) establishes guidelines for the compensation of advisory council members and staff,~ (4) requires councils to meet "not less than two times each year," and (5) requires written minutes of each meeting.3 (See Appendix E.) Federal Advisory Committee Act The Federal Advisory Committee Act was drafted following hear- ings which took place in the House of Representatives and the U.S. Senate during 1970 and 1971. The hearings, which began in the House of Representatives, were conducted before the Special Studies Subcommittee 1Gemeral Provisions Concerning Education Act, Public Law 91-230, *Sec. 401(a) (10), 84 Stat. 171 (1970). . S 3lbid. S S 70-4260-76-28 5 PAGENO="0434" 428 33 of the Committee on Government Operations, chaired by Representative John S. Nonagan, a Democrat from Connecticut. In opening the hearings, Chairman Monagan said: The hearings stem from a preliminary study by the subcom- mittee staff which concluded that it is virtually impossible to compile a complete list of Presidential committees because the methods of creating Presidential committees range. from the formality of an Act of Congress or an Executive Order to the informality of an oral conversation and there is no index or directory of such cournittees. The Committee on Government Operations is charged with overseeing the efficiency and econ- omy of operation of the departments and agencies of the exec- utive branch of the Government.... The role of the council, committee, or commission~as~a govern- mental advisory function in the operation of the e~ecutive branch of the U.S. Government has never been fully reviewed. The theory underlying the use of advisory committees appears to be fundamentally sound. However, a review is warranted to assure that the advisory committees are efficiently utilized and their activities are directed to legitimate objectives.1 During the hearings, which began on March 12, 1970, the subcom- mittee received testimony fromseven witnesses. Mr. George Fortwengler, Supervisory Systeme Accountant f~om the General Accounting Office, was the first witness to appear befoteT~the subcommittee. Mr. Fortwengler discussed a questionnaire which had been sent to all agencies of thé~federal government requesting "information on such items as name óf~committee, date of origin, functions--duties, authority, men1bers,~ staff estimated annual cost, et cetera... ." He said that the questionnaire was ". . . designed to provide information which would enable the subcommittee to develop data on the administration 1U.S. Congress, House of Representatives, Hearings before the Subcommittee of the Committee on Government Operations, 91st Congress, 2nd Sess., March 12, 17, and 19, 1970, p. 1. PAGENO="0435" 429 34 and guidance provided to the committees, the availability of committee minutes and reports, and the overlapping of committee functions."1 In his testimony, Mr. Fortwengler stated that the "estimated annual operating cost of the 1,519 committees amounted to $64,647,98l.~T2 He suggested that this figure was understated by approximately 15 per- cent because some councils failed~to report. He suggested that the actual amount spent on an estimated 1,573 committees was approximately $74 million. He summarized his comments by saying: As far as we could determine, there is no accurate inventory of all the advisory and interagency committees in the Federal Government. Guidelines for the management and operation of some committees do exist; however, in many instances there are no disbandment provisions in the origin, of committees to prevent the continuance of obsolete committees, nor are there any provisions to prevent the undue proliferation of new committees which may perform duplicate or overlapping functions.3 Mr. William D. Carey, Senior Consultant, Arthur D. Little, Inc., and a former Assistant Director of the Bureau of the Budget, appeared before the committee on March 19 and discussed the need for information by federal officials who are charged with policy making responsibilities. He said: In my view, government is not well organized to make major policy decisions nor to plan and evaluate their execution with sufficient knowledge. The art of maximizing the advisory process was developed on a massive scale in the Johnson years, when it took the form of task forces. The term itself suggests a temporary strike force to deal with a well defined problem and then * disband. In the beginning, the task forces tended to be 1lbid., p. 4. * 2lbid. 3lbid., p. 161. PAGENO="0436" 430 35 made up of persons outside the government. Later, when it was not so easy to get outsiders, government people were seconded to the task groups. In the last months of the administration, task forcing had been carried to the point where one could distinguish between first and second class task forces, some of then being the authenic product while others were simply clusters of upper-tier adminis- trators assigned to problems of rather mode~t priority.1 Mr. Carey proposed that all standing committees, other than statutory ones, automatically go out of business at the close of a - Presidential term, that a White House secretariat for Presidential ad- visory committees be established, and that the "President should have at his disposal a fund of perhaps $5 million a year to support inde- pendent White House studies and advisory bodies."2 On October 6, 1970, seven months after the House of Representa- tives conducted its Hearings on advisory councils, Senator Lee Metcalf (D.Mont.), Chairman of the Subcommittee on Intergovernmental Relations, Committee on Government Operations, opened the Senate Hearings on advisory councils with the foflowing statement: The subcommittee has before it S.3067, which I introduced, a bill to broaden membership of the Budget Bureau advisory committees. I hope witnesses do not limit their comments to this bill. It is one approach--and not necessarily the best one, to substantive issues--the collection of infor- mation by the government and the processes by which govern- ment obtains and reacts from nongovernmental parties of interest. I should emphasize that the manner of collection of infor- mation goes to the heart of policymaking and law enforcement-- Congress tends to generalize in its instructions to agencies and commissions. They are told to gather what information they need and are left to their own devices until someone fears the agency is collecting too much--or not enough-- information * ~Ibid., p. 162. 2Ibld., p. 164. 3U.S. Congress, Senate, Hearings Before the Subcommittee on ~ Committee on Government Operations ~he T.LS~ Senate, 91st Cong., 2nd Sess., 1970, p. 1. PAGENO="0437" 431 36 One of the first witnesses to appear before the Committee was Dr. David S. Brown, Professor of Management, Department of Public Admin- istration, The George Washington University, Washington, D.C. He said: Few institutions, it seems to me, are as little honored, as little understood, and as poorly used as the advisory committee. It suffers,~as your own inquiry, Mr. Chairman, has helped to establish, from a variety of difficulties. These may be explained impart, by the variety of functions it is asked to perform, in part by the failure to distin- guish between them. Few institutions are asked to take on such a variety of functions and few are as quick to be criticized when they fail to come up to expectations.1 On December 11, 1970, the Committee on Government Operations of the U.S. House of Representatives sent to the Committee of the whole House a report on its findings and recommendations on advisory councils. The committee made 20 recommendations which were classified into four categories: (1) philosophy and policy, (2) reporting and follow-up, (3) federal organization and man~agement, and (4) committee management. The 20 recommendations which were to be instrumental in the development of the language for the Federal Advisory Committee Act were as follows :2 1. The Congress should spell out in public law the philosophy behind and need for advisory bodies and definitely establish policy and administrative criteria for their use at all levels of government. 2. When considering creation~ of an advisory commission, committee, or council, Congress should recognize that much of the explor- ation of facts can be performed either under the auspices of the standing committees of the Congress or by existing agency advisory committees. 3. In creating a temporary or ad hoc public advisory body the Congress should provide it with adequate guidelines and policy criteria. 1lbid., p. 28. 2U.S. Congress, House, The Role and Effectiveness of Federal Advisory Committees, H. Rapt. 91-1731, 91st Cong., 2d Seas., 1970. PAGENO="0438" 432 37 4. In the absence of general statute, the executive branch of the Federal Government should update, revise and restate its advisory and interagency committee policy to insure that adequate administrative guidelines and policy criteria exist. 5. Presidential advisory and interagency committees in existence for more than two years with a budget and staff should secure authorization from the Congress for continuation and be sub- ject to review by the budget and the app,ro~riations process. 6. The President should establish responsibility with the Domestic Council for evaluation and follow-up action, if appropriate, of the public reports made to the President by interagency or advisory groups, not related to national security matters. 7. The President should submit to the Congress within one year of receipt of the public report of an advisory group made to the President his views on the conclusions and recommendations, and state either his proposals and actions or his reasons for nonaction. 8. The President should make an annual report to the Congress, which can be directed to the Committee on Government Operations, on the activities, status and changes in the compositon of interagency and advisory bodies. The report should list statutory committees, interagency and advisory, which the President recommends abolishing and the reasons for such recommendations. 9. The Office of Management and Budget should be strengthened as to its committee management mission. This would necessitate the creation.within the Office of Management and Budget of a Committee Management Secretariat. There should be an annual systematic review by the Office of Management and Budget and department or agency heads of the current need for all inter- agency and advisory committees. This should also include a review of membership and staff. 10. The Office of Management and Budget should help to improve the performance of committees through education and training programs. 11. The Office of Management and Budget together with the Civil Service Commission should study the varying rates of payment per day for consultant members of advisory bodies and establish uniform government rates for comparable services. 12. Departments and agencies should establish fixed procedures and responsibilities for committee management and reporting. De- partments and agencies should maintain complete and accurate records of all committees. PAGENO="0439" 433 38 13. The Office of Management~ and Budget should promptly consider the recommendations contained in the annual reports concerning committees submitted by the agencies and departments and should act expeditiously upon them. This should aid in the prompt elimination of committees for which a need no longer exists. 14. A permanent depository within the Legislation Reference Ser- vice of the Library of Cbngress should be created where the public reports of advisory~ groups would be available. All commissions and committees, should be required to forward a copy of their reports and appropriate background papers from consultants to the depository in the Library of Congress. 15. Public advisory committees dealing with public policy issues should be as independent~ as possible and free from influence from the source of their~ appointment. 16. The scope of the mission of a committee should be defined clearly. 17. Advisory groups should be provided balanced and broader repre- sentation through appointment of members from varying social and economic constituencies. 18. Congress should provide advisory groups with the funds to publish their work when it, involves public studies and reports. 19. The. Office of Management and Budget with the departments and agencies should make certain that appointment to continuing advisory committees be for~ a limited period of time. 20. Adequate procedures should~be established for the termination of all committees, both interagency and advisory, created by statute or other means. In June 1971, the Subcommittee on Intergovernmental Relations of the Committee on Government Operations of the U.S. Senate continued its hearings on advisory committees which had begun in October 1970. In his opening statement, Senator Metcalf said: Hearings on this subject began last fall. The bill then under consideration was S.3067. It would have broadened the mem- bership of some 16 committees, composed of industry representa- tives, which advise the Office of Management and Budget. In those hearings we soon discovered that there are numerous, powerful, industry committees acting as official advisers to other governmental agencies~ often meeting in secret. So the legislation which I introduced this year has been revised to PAGENO="0440" 434 39 establish congressional standards and guidelines for all government advisory committees and open then to the public. That bill is S.1637. The other bill before this subcommittee and subject to this hearing is S. 1964 which was introduced by our colleague Senator Roth. His bill would authorize 0MB to establish a ~system governing the construction and operation of federal advisory committees and authorize congressional and executive departments review of committees in existence to determine which should be merged or abolished.' As a result of the Hearings in the House of Representatives and the Senate, Public Law 92-463 emerged and was signed into law by the President on October 6, 1972. The legislation which became known as the "Federal Advisory Committee Act" (see Appendix F), authorized the "es- tablishment of a system governing the creation and operation of advisory committees in the executive branch of the Federal Government, and for other purposes."2 The legislation emphasized that: 1. The need for many existing advisory committees has not been adequately reviewed, 2. new advisory committees should be established only when they are determined to be essential and their number should be kept to the minimum necessary, 3. advisory committees should be terminated when they are no longer carrying out the purposes for which they were established, 4. standards and uniform procedures should govern the establish- ment, operation,. administration, and duration of advisory committees, 5. the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees, and 6. the function of advisory committees should be advisory only, and that all matters should be determined, in accordance with law, by the official, agency, or officer involved~3 Congress, Senate, Committee on Government Operations, Hearings Before the Subcommittee on Intergovernmental Relations of the Committee on Government Operations on S.1637, S.l964, and S.2O64, 92d Cong., 1st sess., 1971. 2Federal Advisory Committee Act, P.L. 92-463, 86 Stat. 770 (1972). 3lbid. PAGENO="0441" ~435 40 Commissioner of Education and Presidential ktnual Reports on Advisory Councils Reports of the Commissioner of Education The U.S. Commissioner of Education reported that 18 statutory advisory councils to the Office of Education existed on December 31, 1972. In his comments on advisory councils, the Commissioner said: The Office of Education finds that advisory committees are, at times, a useful and beneficial means of furnishing ex- pert advice, ideas and diverse opinions. On the other hand, it is the policy of both ~ Congress.and the Administration to reduce the number of such groups to the level of absolute necessity. The Commissioner intends to use the services of advisory councils and committees only when absolutely neces- sary to the performance of duties assigned to the agency. During calendar year 1972, according to the Commissioner's re- port, three councils were terminated--the Advisory Council on College Library resources, the Advisory Committee on Library Research and Training Projects, and the National, Commission on School Finance.1 During the same period foür~councils were added to the list of Office of Education Advisory Committees. They were: the Advisory Coun- cil on Library Research, Training, and Resources; National Advisory Council on Equality of Educational Opportunity; National Advisory Council on Ethnic Heritage Studies; and the National Advisory Council on Indian* Education. As a result 18 advisory councils were serving the Office of Education at the end of the fiscal year. In his report, the Commissioner said that "critical examinatipn of the advisory committee structure during 1972 has revealed a need ~"for 1U.S. Department of Health,: Education, and Welfare, A al,i~e~po~ of the U.S. Commissioner of Education: Fiscal Year 1972 (Washington, D.C. ::` / Government Printing Office, 1973) : pp. 47-48. PAGENO="0442" 436 41 several mc)difications." The Commissioner recommended four changes in accordance with the provision of the General Education Provisions Act. He recommended that: (1) the National Advisory Committee on Education of the Deaf and the National Advisory Committee on Handicapped Children be consolidated, and (2) that the Advisory Council on Graduate Education, the Advisory Council on Research and Development, and the Advisory Council on Environmental Education be abolished.1 In the Fiscal Year 1973 report released l~arch 31, 1974, the Commissioner reported that the following Councils were in existence at the end of the calendar year, January 31, 1973: 1. Accreditation and Institutional Eiigibility, Advisory Committee on 2. Adult Education, National Advisory Council on 3. Bilingual Children, Advisory Committee on the Education on 4. Developing Institutions, Advisory Council on 5. Disadvantaged Children, National Advisory Council on the Education of 6. Education Professions Development, National Advisory Council on 7. Equality of Educational Opportunipy~, National Advisory Council on 8. Ethnic Heritage Studies, National Advisory Council on 9. Extension and Continuing Education, National Advisory Council ou 10. Financial Aid to Students, Advisory Council on 11. Handicapped, National Advisory Committee on the 12.. Indian Education, National Advisory Council on 13. Library Research, Training, and Resources, Advisory Council on 1u.s. Department of Health, Education, and Welfare, Annual ~p~rt of the U.S. Commissioner of Education (Washington, D.C.: Govern- ment Printing Office, 1974) p. 38. PAGENO="0443" 437 42 14. Quality in Education, National Council on 15. Supplementary Centers and Services, National Advisory Council on 16. Vocational Education, National Advisory Council on Reports of the President In March 1973, Federal Advisory Committees: First Annual Report of the President, was released by President Nixon.~- In his report, the President stated: Of the 1439 advisory committees in existence on December 31, 1972, 251 or about 18 pe~cent were created by statute. Dur- ing calendar year 1972, 211 new committees were created of which 19 were statutory. In the sane year, 187 cominitt~es were terminated, making a~ net gain of 24 committees.... The President reported that $25,215,882 was spent on the councils during calendar year 1972 and that individual council costs ranged from nothing to $1,750,000. The ai~erage annual cost per committee in calendar year 1972 was $15,508, according to the report.3 In March 1975, President Gerald R. Ford sent a publication, Federal Advisory Committees: Third Annual Report of the President, to the Congress of the United States.4 The President estimated the federal costs of operating councils in 1974 at $42,380,636. He also reported that during 1974, 239 new 1U.S. President, Federal Advisory Committees: First Annual Re port of the President (Washington, D.C.: Government Printing Office, 1973). p. 2. 3lbid. 4U.S. President, Federal Advisory Comm±tthes: Third Annual Re- port of the President, March 1975. PAGENO="0444" 438 43 committees were formed and 299 committees expired or were terminated. In 1974, according to the report, 12 departments or agencies had more than 40 committees as shown in Table 2, Page 43,1 TABLE 2 NUMBER OF NATIONAL ADVISORY COMMITTEES BY AGENCY OR DEPARTMENT FOR CALENDAR YEARS l972_l974l Agency/Department * * Number of Committees 1972 1973 1974 Health Education and Welfare 367 286 299 Agriculture 172 136 163 * Interior 126 129 126 Defense 95 81 97 Commerce 76 41 72 Small Business Administration 66 66 67 Commission on Civil Rights 51 51 51 National Science Foundation Total 41 43 45 944 833 920 The Status of Advisory Councils in 1975 As a result of differences in expenditures, functions, number of council and staff members, and in reporting responsibilities each advisory council is a unique organization. Several councils have narrowly defined functions such as the National Advisory Council on Financial Aid to Students while other councils, such as the National Advisory Council on Indian Education, deal with problems that encompass nearly every aspect of American education. PAGENO="0445" 439 44 In addition to giving the year the council was organized, Table 3, page 44, shows the diversity of the 16 councils in two key areas: size of the staff and approximate cost to operate the council on an annual basis.. The budget amounts are based on fiscal year 1975 estimated expenditure. TABLE 3 ¶IHE YEAR OF ORGANIZATION, SIZE OF STAFF, AND APPROXIMATE ANNUAL OPERATIONAL COST OF~l6 USOE ADVISORY COUNCILS DURING FISCAL YEAR 1975 Name of Coirnittee Organized Size of Staff Approx~.mate Annual Cost Accreditation and Institutional Eligibility 1970 1.0 $ 40,000 Adult Education 1969 6.0 226,000 Bilingual Education 1968 1.5 115,000 Career Education 1975 4.5 200,000 Cocmiunity Education 1975 1.3 110,000 ~veloping Institutions 1970 1.5 65,000 Disadvantaged Children 1966 8.5 190,000 Education Professions Development~ 1968 5.5 193,000 Equality of Educational Opportunity 1972 4.5 170,000 Extension and Continuing Education 1969 5.5 135,000 Financial Aid to Students 1968 1.5 75,000 Handicapped 1968 1.0 . 65,000 Indian Education 1973 4.5 230,000 Supplementary Centers and Services 1968 5.0 225,000 Vocational Education 1968 13.5 335,000 Women's Educational Programs . . 1975 4.5 290,000 Total . 63.9 $2,664,000 PAGENO="0446" 440 PROFILE OF MEMBERSHIP, ADMINISTRATIVE LAND ATTITUDINAL ~1ARACTERISTICS OF ADVISORY COUNCILS A major purpose of this study, as outlined in the Introduction, was to analyze through the use of a questionnaire, the membership char- acteristics and attitudes of the members serving on national education related advisory councils. To supplement the data received from advisory council members, a second questionnaire was submitted to executive directors and program directors of advisory councils in November 1975. The results compiled from these questionnaires are analyzed in this chapter. Advisory Council Member Questionnaire The advisory council member questionnaire which serves as the basis of the first section of this chapter was mailed to 212 members serving on advisory councils in June 1975. The questionnaire and a copy of an accompaning letter were mailed on June 30th (see Appendicies A and B). A follow-up letter was mailed on July 31, 1975 (see Appendix C). Completed questionnaires were accepted until October 1, 1975 at which time 137 had been received for a return rate of 65 percent. The questionnaire was used to determine the answers to four basic questions: 1. Who serves on national advisory councils? PAGENO="0447" 441 46 2. What are the organizational characteristics of the councils? 3. How do council members perceive their roles? 4. How can advisory councils improve their effectiveness? L~LL~ Citizens are appointed to~ national advisory councils by the U.S. Commissioner of Education; Secretary of Health, Education, and Welfare; or the President of the United States. Nembership terms are normaUy for three-year periods except for initial appointments which are on staggered terms of one, two, or three years. The size of the membership of the 16 councils, the authorizing legislation, and the name of the fe~ierAi official designated to appoint members is given in Table 4, Page~47. The membership of the 16 councils, which serve as the basis of this study, range from 9 members serving on the Advisory Council on Developing Institutions to three councils with 21 members; the National Advisory Council on Extension and Continuing Education, the Advisory Council on Financial Aid to Students, and the National Advisory Council on Vocational Education. Eight of the 16 councils have 15 members. As shown in Table 4, three of the councils are appointed by the U.S. Commissioner of Education, four by the Secretary of Health, Education, and Welfare, and nine by the President. Ten of the councils are primarily concerned with elementary and secondary education while six primarily deal with higher education. PAGENO="0448" 442 TABLE 4 THE LEGISLATIVE AUTHORIZATION, MEMBERSHIP SIZE, AND ThE FEDERAL OFFICIAL CHARGED WITH MAKING APPOINTMENTS TO NATIONAL ADVISORY COUNCILS Accreditation and Ins titu- tion Eligibility Adult Education Bilingual Education Career Education Community Education Developing Institutions Disadvantaged Children Education Professions Development Equality of Educational Opportunity Extension and Continuing Education Financial Aid to Students Handicapped Indian Education Supplementary Centers and Services Vocational Education Women's Educational Programs* Veteran's Readaj us tment Assistance Act Adult Education Act Bilingual. Education Act Special Projects Act Special Projects Act Higher Education Act Elementary and Secondary Education Act Higher Education Act Emergency School Aid Act Higher Education Act Higher Education Act General Education Provi- sions Act Indian Education Act Elementary and Secondary Education Act Vocational Education Amendments Special Projects Act Seer. Pres. Secr. Seer. Secr. Commr. Pres. Pres. Pres. Pres. Commr. Commr. Pres. Pres. Pres. Pres. Council INo. of Members Legislative Authorization Appointing Official 15 15 15 12 11 9 15 15 15 21 21 15 15 12 21 17 *The questionnaire was not nailed to the 17 members serving on the Advisory Council on Women's Education Programs because of the relatively short time members had served when the questionnaire was nailed. Appointments to the Council did not become effective until May 9, 1975. PAGENO="0449" 443 48 In response to the question, "Who was the first to question you regarding your availability for membership on the advisory council?" 40.1 percent of the respondents said an employee of the Department-of `Health, Eduction, and Welfare, .32.1 percent said a White House staff person, 8.8 percent said a staff person of the U.S. Congress, 2.2 percent, a nether of the advisory council, and 16.8 percent said "soneone else." A majority of the members who selected the "someone else" category indicated that the initial~ contact regarding their availability to serve cane from a state educatio~ official or the executive director of the advisory council (see Table ~` Page 48.) TABLE 5 OFFICIAL AND/OR AGENCY RESPONSIBLE FOR DETERNING MEMBERS AVAIlABILITY TO SERVE ON A~ NATIONAL ADVISORY COUNCIL First Person to Contact Member Number Percent Employee of the Department of Health, Education, and Welfare 55 40.1 White House staff person 44 32.1 Staff person of the U.S. Congress 12 8.8 Member of the advisory council 3 . 2.2 Someone else Total . ~ 23 16.8 137 100.0 70-426 0 - 76 - 29 PAGENO="0450" 444 49 The length of tinE members had served on a council ranged from a minimum of two months to a maximum of 72 months (6 years). Approx- imately one-fourth (26.3%) of the mambers indicated that they had served less than one year, 24.1 percent reported having served for 12-23 months, 27.0 percent said 24-35 months, 13.1 percent indicated 36-47 months, 4.4 percent said 48-54 months and 5.1 percent reported having served for more than 55 months (see Table 6, Page 49.) TABLE 6 LENGTH OF SERVICE OF COUNCIL MEMBERS Months Served Number Percent 1-11 36 26.3 12 - 23 33 24.1 24 - 35 37 27.0 36 - 47 18 13.1 48-54 6 4.4 55-over Total 7 5.1 137 100.0 PAGENO="0451" 445 50 Age Only three of the 137 respondents indicated that they were under 25 years of age and two out of every three u~mbers reported being over 45 years of age. A breakdown of~the age of council members is given in Table 7, Page 52. In 1968 members of education advisory councils were slightly older according to the findings ôfCronin and Thomas. They reported that 12 percent of the members were under 40 years of age, 24 percent were between the ages of 40 and 49, 43 percent between the ages of 50 and 59, and 20 percent over the ~ge of 60.1 In the 1969 study of advisory councils to the National Academy of Sciences, it was reported that only 3 percent of science advisers were 35 years old or younger. "At the same time," according to the report, "`old' scientists were heavily `overutilized,' 50 percent of the advisers being older than 50~years, a range that included only 22 percent of the doctorate holders."~ The report describes the reason for the underutilization of the young and overutilization of the old as follows: First is the fact that appointment processes... depend heavily on multiple~chains of personal acquaint- anceship. The better known the individual becomes in his field, the more likely he is to come under consider- ation for an advisory appointment; and the more favorably he becomes known professionally, the more likely he is to be actually appointed. ]-Thomas E. Cronin and Norman C. Thomas, Educational Policy Advisors and the Great Society (Washington, D.C.: The Brookings Insti- tute, 1970) p. 668. 2National Academy of Sciences, ~ppendixes to the Science committee (Washington, D.C.: National Academy of Sciences, 1972), p. 53. PAGENO="0452" 446 51 Second, there is unquestionably a preference among appointing authorities for appointees.who have matured and become seasoned in their fields. It is probably a sound preference, based on the feeling that if a person is to be depended upon to judge larger. affairs, he should be expected to have demonstrated sound judge- ment for a period of years in his own career as it has developed and broadened. An individual's professional and personal reputation among his colleagues takes tine to build; and the circle widens with the years, especially the early years * 1 The Advisory Council on Women' s Educational Programs is an example of a council which requires student membership. The legisla- tion stipulates that the council shall be composed of "seventeen in- dividuals, some of whom shall be students, who shell be appointed by the President, by and with the consent of the Senate.. ."~ Sex Eighty eight or 64.2 percent of the members indicated that they are male and 49 or 35.8 percent indicated that they are female (see Table 7, Page 52.) Education Members of national advisory councils tend to be highly edu- cated. Nearly half (45.3 percent) have Doctoral degrees and 70.1 percent have completed at least a Master's degree. Table 7, Page 52, provides the breakdown. Annual Personal Income ~re than half of the respondents (54.1%) indicated having an annual personal income of $25,000 and above, 27.7 percent reported an 1lbid. 2Women's Educational Equity Act of 1974, P.L. 93-380, 20 U.S.C. 1866, sec. 408, 88 Stat. 554, 556 (1974). PAGENO="0453" 447 52 TABLE 7 PROFILE OF COUNCIL MEMBERS Background Characteristics Nunber Percent - A. Age: Under 25 years 3 2.2 25-34 15 10.9 35-44 32 23.4 45-59 63 45.9 60-Over 23 16.8 Not Ascertained 1 .7 Total 137 99.9 B. Sex: Male 88 64.2 Female 49 35.8 Total 137 100.0 C. Education: Ph.D., Ed.D., M.D. etc 62 45.3 Masters degree 34 24.8 Bachelors degree 28 20.4 Associate of Arts 3 2.1 12th grade (high school) 9 6.6 Eighth grade 0 0.0 Not Ascertained 1 0.7 Total 137 99.9 D. Annual Personal Incon~ Under $7,000 4 2.9 $7,000 - $14,999 18 13.1 $15,000 - $24,999 38 27.7 $25,000 and above 74 54.0 Not Ascertained 3 2.2 Total 137 99.9 PAGENO="0454" 448 53 income between $15,000 and $24,999, 13.1 percent indicated a personal income of $7,000 - $14,999, and only 2.9 percent said their annual in- come was less than $7,000 (see Table 7, Page 52). In 1970 Cronin and Thomas said "What is interesting about the advisors is the level of their afluence. Over one-third of them earned over $30,000 a year, and fully two-thirds at least $20,000. Their incomes and ages indicate that for the most part the advisors were people who `have it made."1 Area of Employment The majority of the members are employed in the field of education (62.8%). Relatively few of the members are employed in areas such as law (0.7%), medicine (2.9%), media (1.5%) or in the area of cultural resources such as museuma (0.0%). A complete breakdown of areas of employment is given in Table 8, Page 54. In the "other" category (see Table 8), most of the members wrote "retired," several said "farming," and two said "educational consultants," Political Preference Sixty percent of the respondents indicated a preference for the Republican party as illustrated in Table 9, Page 55~ Cronim and Thomas reported in 1970 that 57 percent of the advisors in 1968 were Democrat, while only 12 percent were Republican, 1Thomas E. Cronin and Norman C. Thomas, Educational Pol `~ Advisors and the Great Society (Washington, D.C.: The Brookings Institute, 1970) p. 669. PAGENO="0455" 449 54 TABLE 8 COUNCIL ME~ERS' FIELD OF EMPLOYMENT Type of Employment Number Percent of Council Members in Category Higher Education 48 35.0 Public preschool, elementary or 24.1 secondary 33 Business and Industry 17 12.4 Public non-education agencies 8 5.9 Medicine 4 2.9 Private preschool, elementary, 3 2.2 or secondary Home 2 1.5 Media 2 1.5 Student 2 1.5 Law 1 0.7 Cultural resources such as museum 0 0.0 Labor Unions 0 0.0 Other 17 12.4 Total 137 100.1 PAGENO="0456" 450 55 30 percent Independent, and 1 percent not ascertained. On the subj ect of political, preference, Cronin and Thomas said: These "Great Society" advisors, however, can be viewed as at least partially the product of the type of adniin- istration in power. In other words, it is not likely that the policy orientations of a moderately liberal Democratic administration's advisory network will be identical to the policy preferences and counterparts selected to serve a moderately conservative Republican administration (although we suspect that the circulation of members and points of view works in such a way as to produce not too great variation). Among the Johnson educational advisors, about 80 percent of the council members denied that the federal government "is providing too many services that should be left to private enter- prise." This is noteworthy in light of the Nixon cam- paign pledges which stressed turning more functions over to private sectors and trying to stimulate social reform on either a volunteer or a state basis. Not so with the Great Society advisors. No better illustra- tion of their views on these matters can be cited than their attitude toward national expenditures for educa- tion. Eighty-one percent observed that there should be much more federal money.3- TABLE 9 COUNCIL MEMBERS' POLITICAL PREFERENCE Political Party Number Percentage Democrat 23 16.8 Republican 82 60.0 Independent 24 17.5 Other Total 8 5.8 137 100.1 `Ibid., p. 763. PAGENO="0457" 451 56 Racial Group Minority groups are well represented on national advisory councils. Many of the black, Spanish surnamed, and Indian-American council members, however, serve on~ councils which deal with programs concerning education for special groups such as Indian or bilingual education, or equality of educational opportunity. Table 10, Page 56, gives the breakdown of the ethnic br racial group of the council mem- bers responding to the questionnaire. TABLE, 10 EThNIC OR RACIAL GROUP OF COUNCIL MEMBERS Group Number Percent Negro American 14 10.2 Spanish Surnamed American 11 8.0 Indian American 12 8.8 Oriental American 6 4.3 . Other than Above 87 63.5 Not Ascertained Total 7 5.1 137 99.9 PAGENO="0458" 452 57 Council Administration Orientation of Members Only seven percent of the members reported that they had not been supplied with orientation materials upon their appointment to a national advisory council. Most members, however, indicated that they were supplied with a history of the program, a statement of the goals of the council, and a copy of the legislation as illustrated in Table 11, Page 57.. TABLE 11 ORIENTATION MATERIALS SUPPLIED TO MEMBERS UPON THEIR APPOINTMENT TO A NATIONAL ADVISORY COUNCIL Item Number Percent A history of applicable programs 101 73.7 A review of current operations including descriptions of projects in operation 103 75.2 Information concerning the goals, policies, and procedures of the advisory council 117 85.4 A copy of the legislation 114 83.2 None of the above 10 07.2 N 137 PAGENO="0459" 453 `2 58 Nearly all council members reported that they "had enough understanding of the purposes andL problems of the progran to be able to contribute to the resolution of broad policy questions" after attending four meetings or less. In response to this question, 33.6 percent of the members reported having a good working knowledge of the program when initially appointed, 41.6 percent said it took one or two meetings of the council before they contributed to the resolu- tion of broad questions, 18.2 percent said 3. to 4 meetings, 3.6 per- cent said five to six meetings and 2.9 percent indicated that they "still feel unable to contribute ~O the resolution of the broad policy questions of the program." Tab1e~12, Page 58, gives the breakdownS TABLE 12 TIME NEEDED TO CONTRIBUTE TO ThE RESOLUTION OF POLICY QUESTIONS Length of Time Number Percent Quite familiar at time of appointment 1 - 2 meetings of the council 46 57 * 33.6 41.6 * 3 - 4 meetings of the counil 25 18.2 5 - 6 meetings of the council 5 3.6 7 or more meetings 0 0.0 Still unable to contribute Total 4 2.9 137 * 99.9 Nl37 . PAGENO="0460" 454 59 Meetings The average member attended four council meetings during the period July 1, 1974 to June 30, 1975. Table 13, Page 59, gives the breakdown of meetings attended during the fiscal year. Assuming that* the average meeting was two days in length, the 137 council members spent a combined total of 1154 days attending council meetings. TABLE 13 COUNCIL }IEETING ATTENDANCE Number of Meetings Number Responding Percent 1-2 27 19.7 3-4 60 43.8 5-6 30 21.9 7-8 13 9.5 9-12 Total 7 5.0 137 99.9 PAGENO="0461" 455 H 60 Eighty-four percent of the members said that they "knew what issues the council would vote on" prior to attending meetings~ Six- teen percent, or 22 of the respondents, said they "did not know what issues the council would vote (or take formal action) on" before arriving at a council maeting (see Table 14, Page 60). TABLE 14 KNOWLEDGE OF ISSUES PRIOR TO COUNCIL MEETINGS Number Percent Knew what issues would be voted upon prior to maeting 115 83.9 Did not know what issues would be voted upon prior to meeti~ng Total 22 16.0 137 99.9 PAGENO="0462" * 456 61 ~nbers report that serving on a council requires that they devote a considerable amount of time to reading and writing reports and in analyzing council materials between meetings. Seventy-one percent reported spending from six to twenty-one hours each month working on council matters, exclusive of time spent while attending meetings. Table 15, Page .&1, summarizes the responses to the question "On the average, approximately how many hours of outside advisory council work (reading, writing, analyzing) do you do each month?" TABLE 15 OUTSIDE ADVISORY COUNCIL WORK Number of Hours Number Percent 0-5 35 25.6 6-10 38 27.7 11-15 23 16.8 16-20 21 * 15.3 21 - over 15 11.0 Not Ascertained Total 5 3*7 137 * 100.1 PAGENO="0463" 457 62 Council members frequently express their views to the Congress, President, and to agency officials. Fifty-six percent of the respondents indicated having personally communicated (written or orally) with a member of the U.S. Senate or House of Representatives on advisory coun- cil matters, 14 percent communicated written or orally with the President, and 67 percent reported having communicated with a federal agency on council matters. (See Table 16, Page 62.) TABLE 16 CONTACIS BWIWEEN COUNCIL I'EHBERS AND FEDERAL OFFICIALS /AGENCIES Off icial Number Members of Cou Making ncil Contact Percent Visited Washington, D.C. 118 86.1 Federal Official/Agency 92 67.2 U.S. Representative or Senator 76 55.5 President of the U.S. 19 13.9 None of the Above 9 6.6 Not Ascertained . 3 2.2 N137 PAGENO="0464" 458 63 Roles and Responsibilities Most nEmbers say they are honored to serve on a national advisory council. They say they enjoy the opportunities to travel, to participate in decisions that sonetines have major impact on education policy at the national level, and they say that being as- sociated with other leaders in the field is an advantage in their professional pursuits. Members frequently define their role on the council as being a "supporter" of the progran or as an "advisor" to the Commissioner. They also say they were selected to represent a particular constituency such as a racial, ethnic, educational, or cultural group. A large number of the respondents emphasized that they were appointed to the council because of certain qualifications or expertise that they brought to the assignment. One member who considers his field of employment to be important to the work of the advisory council offered the following comment: "I see my role as providing government officials with the experienced viewpoint of a person who actually deals with their programs on a day to day basis in the field." Another member emphasized the "watch-dog" role in defining his work with the council. He suggested that his role was to "advise the President and the Congress on the usefulness of legislation passed and whether or not the monies appropriated are spent in the most efficient and responsible way." A woman serving on the National Advisory Council on Education Professions Development emphasized a role that Congress probably had PAGENO="0465" 459 64 in mind when establishing the council. She gave the following descrip- tion of her assignment: I see my role as serving as an evaluator indetermining the weaknesses and strengths of items and proposals before the council. I do not feel that I was appoit~ted to become a blind advocate or suppOrter of the programs. Basically: Are the programs meaningful academically? Can .they be im- plemented with rather guaranteed success? Are they finan- cially wasteful. The following statements are representative of the views of msmbers who represent special groups of Americans: I see my role on the council as articulating the needs and concerns of minority groups, in general, and Asian Americans, specifically, as they relate to t5~e responsibilities of the advisory council. My role on the council ~ to advise the President, Congress, and the Commissioner of Education as to Indian education programs, operations and appropriations. Further, to keep the American Indian people appraised of what programs are available and how to utilize then. My major responsibility to the U.S. Government as an ad- visory council member is to give a student's point of view as a consumer of educational services in the formulation and administration of educational legislation so it is responsive to needs which~ arise. Only 40.1 percent of the respondents said that "advisor" best described his/her role as a council member. Other responses included: advocate, 18.2 percent; evaluatôr~l3.9 percent; administrator, 10.9 percent; supporter, 8.8 percent; critic, 5.9 percent; lobbyist, 0.0 percent, and not ascertained, 2.2 percent. The breakdown is given in Table 17, Page 65. 70-4260-76-30 PAGENO="0466" 460 65 TABLE 17 HOW ADVISORY COUNCIL MEMBERS PERCEIVE THEIR ROLE Number Percent Advisor 55 40.1 Advocate 25 18.2 Evaluator 19 13.9 Administrator 15 10.9 Supporter 12 8.8 Critic 8 5.9 Lobbyist 0 0.0. Not Ascertained 3 2.2 Total 137 100.0 PAGENO="0467" .461 * . 66 In a February 197]. article, Drs. Cronin and Thomas reported on a survey in which they asked 176 members of educational advisory councils to rank six functions~ as being "characteristic" or "not characteristic" of the work of~ the council. In the analysis of their findings the authors report that "council members almost unanimously say they should advise on program priorities and should review guide- lines and regulations."1 The author's findings were very similar to those published by Cronin and Thomas in 1971. The major differences between the two groups, as ShoWn in Table 18, Page 67, related to legislation and lobbying. Council members apparently considered these functions to be of slightly greater importance in 1969 than in 1975. Table 19, Page 132, illustrates how members serving on 15 councils spend their time. Members were asked to estimate the time that they devoted to council activities in six areas: (1) the advisory coun- cil's internal affairs, (2) progran goals and policies relating to the program the advisory council was established to review, (3) U.S. Office of Education activities, (4) legislation and appropriations, (5) re- ports, and (6) areas other than those mentioned in items 1 - 5. The council members generally say they spend the least amount of time on USOE activities (11.4%) and legislation (13.2%) and the most time on program goals and activitIes (28.3%), council internal affairs (21.5%) and on reports (20.2%). Among the activities members cited in the "other" category were projeèt~ visitations and attending meetings of state and local education agencies. 1-Thomas E. Cronin and Norman C. Thomas, "Federal Advisory Processes: Advice and Discontent," Science, February 26, 1971, p. 771. PAGENO="0468" 462 TABLE 18 FUNCTIONS PERFORMED BY COUNCILS AS PERCEIVED BY MEMBERS2 (In Percent) 67 Function . haracteris tic 1969 1975 Not characteristic .1969 1975. No Opinion 1969 1975 Advise on program priorities 93 P1 6 7 1 2 Review guidelines and regulations 93 88 6 8 1 4 Work out new legislation 60 45 30 41 10 14 Make managerial decisions 57 57 32 30 11 13 Work on publicity and support 40 38 49 49 11 13 Do lobbying work 33 17 58 68 9 15 1969 N = 176, 1975 N = 132 The question was presented as a close-ended format: "There are many functions characteristic of advisory councils. Are the following functions (1) characteristic, or (2) not characteristic of the council of which you are a member." Drs. Cronin and Thomas' results are listed under column heading 1969. PAGENO="0469" 463 68 TABLE 19 ALLOCATION OF COUNCIL TINE (In Percent) Council Program Goals & Policies Coundiij - Internàl Reports Affairs - - . Leg. & Approp. USOE Other Activiti~s Accreditation 32.1 30.6 13.5 2.8 15.2 5.8 Adult Ed. 33.1 17.9 17.1 20.4 7.6 3.9 Bilingual 27.8 19.2 18.4 10.5 11.5 12.6 Career Ed. 25.1 47.O~ 13.8 9.2 3.9 1.1 Cotini. Ed. 47.8 14.2, 9.9 13.0 13.0 4.1 Dev. Inst. 17.9 14.1 33.0 15.8 12.2 7.0 Ed. of Dis. 26.7 20.0 16.3 17.2 9.1 10.7 Ed. Prof. Dev. 19.8 l9.l~ *35.6 8.1 14.2 4.6 Equal Ed. 16.8 l5.2~ 24.1 20.0 11.0 12.9 Ext. & Cont. 43.1 l2.3~ 29.0 9.2 6.4 1.0 Aid to Students 40.8 l4.6~ 19.9 9.9 12.9 .9 Handicapped 17.0 23.0~ 27.4 13.8 17.7 2.2 * Indian Ed. 25.1 22.9 15.1 21.0 12.0 3.9 Supp. Cent's. 25.9 24.0 18.1 12.1 13.9 7.0 Voc. Ed. 25.0 29.1 12.1 15.0 9.9 8.9 Average 28.3 21.5 20.2 * 13.2 11.4 5.5 N 137 PAGENO="0470" 464 69 The majority of the respondents considered their council's impact to have been "significant" or "moderate" in areas relating to: the U.S. Congress (52.3%), legislation (59.0%), policy implementation (75.7%), the Commissioner of Education (78.0%), and other USOE off ici- als (81.0%). The members appear to be satisfied wit~1 their impact on the Commissioner and other Office of Education officials, however, the councils' influence on the President and the Congress appears to be much less significant. Table 20 illustrates how the n~mbers of 15 councils see their success in influencing government officials and agencies. TABLE 20 COUNCIL MEMBER PERCEIVED IMPACT ON FEDERAL OFFICIALS, AGENCIES, AND POLICIES (In Percent) Significant Moderate Limited or None No way of Knowing USOE officials other than Commissioner 42.7 38.3 13.0 6.0 Policy Implementation 37.8 37.9 16.2 8.1 U.S. Commissioner 33.5 45.0 16.2 5.3 Legislation 30.1 28.9 28.0 13.0 The U.S. Congress 20.2 32.1 27.8 19.9 The President Average 2.0 * 10.9 34.1 53.0 27.7 32.2 22.6 17.5 N137 PAGENO="0471" 465 H 70 Since some councils, such as the Advisory Commission on Accreditation and Institutional Eligibility, were not established to advise the President, it would be unrealistic to expect the council to have a significant impact In, this area. Problems which R~duce the Effectiveness of Councils Members frequently criticized the U.S. Office of Education when asked to comment on the "most significant problem which reduced the effectiveness of the advisory council during the past 12 months." They* also cited such problems as lack of staff, insufficient information to make valid decisions and t1~e practice of delaying the making of appointments to councils. The members of the Advisory Commission on Accreditation and Institutional Eligibility were especially concerned about their ever increasing work-load. Two members of the council also referred to Congressional and other outside interference in their decisions * The following were typical of the commants made by members of the council: the schedule was too crowded, and there was not enough time to discuss and contemplate decisions. political pressures from interested parties hindered the work of the council. not enough meetings, lack~of time. The overload of preparation or "hearings" and the number of decisions which an enlarged committee and a limited staff, both at an awkward position in the hierarchy, must handle. One member of the council suggested the following improvements: (1) more time to consider policy issues, (2) more involvement in de- veloping legislative initiatives,(3) more staff support to follow- through on developing information bases for the committee, and PAGENO="0472" 466 71 (4) more opportunity for dialogue with the Commissioner by the chair- man and/or small groups from the committee. A member of the National Advisory Council on the Education of Disadvantaged Children commented on a problem that also concerned men- bers serving on the National Advisory Council on Indian Education and the National Advisory Council on Vocational Education. She said: Bureaucratic hassling over council administration with HEW took an inordinate amount of time. We had an efficient, economical system which was changed by HEW to a less efficient, more expensive system and our staff had to spend hours negotiating. This by the way is a yearly process A member of the National Advisory Council on Indian Education had similar thoughts about a change in the administrative structure of the Council: The most significant problem resulted from placing council staff personnel under the strict guidance of the Office of Education by making them civil service employees. Also, just as important was the lack of adequate funding for council activities. Members of the National Advisory Council on Supplementary Centers and Services were especially critical of the U.S. Congress in their - responses. The council members listed the following among the "most significant" problems during Fiscal Year 1975. The most significant problem was the attitude of Congress. Lack of political base. The reluctance of the Congress to heed recommendations made by the council for continuing innovative programs in education and the non-existent recognition by the President of these recommendations. This writer's findings seem to correlate closely with Cronin and Thomas who wrote in 1971: "Despite the fact that most advisory council members feel flattered at being asked to participate in PAGENO="0473" 467 72 national policy deliberations, many of them are not altogether pleased with the quality of the process. Some express bitter resentment over the quality of the process." Many members, however, did not offer critical comments about the process, the council, or the Federal Government.. Instead they suggested that (1) the council had made tremendous progress in recent years, (2) they did not know of any significant problems, or (3) they suggested that the problems were caused because of the action, or lack of action, of a particular employee of the U.S. Office of Education, the chairman, or a member(s) of the council. In recorrrnending ways of "improving the council" members often rephrased the problem statements. The following are representative of several hundred recommended improvements suggested by members. Prompt appointment announcements. (Member, National Ad- visory Council on Education Professions Development.) Careful organization and policy to require serious effort from members and preclude undue influence from staff. Actually the council I served on was in excellent shape when my term expired; excellent staff, strong and fair chairman, interesting and diverse membership. (Member, National Advisory Council on~ Education Professions Development.) The council probably could be mere helpful if it were given very narrowly defined issues to consider within each of its average two-day meetings. Prior to the meeting USOE staff should prepare and mail to council members an analysis of theissues at hand and also provide the council members with some "pro's and con's" of var- ious alternatives for actiôn~on the issue. (Member, Advisory Council on Financial Aid to Students.) My guess is that most national advisory councils need a much sharper definition Of focus, purpose--beyond 1Thomas E. Cronin and Norman C. Thomas, "Federal Advisory Processes: Advice and Discontent,"1Science, February 26, 1971, p. 771. PAGENO="0474" 468 73 the goal of simply existing, meeting, and going through all the rituals of self-perpetuation and self-justification. State advisory councils, though less prestigious, are probably much more interesting, because they have a direct and significant involvement in the funding, politics and personnel related to the program. On the national level, things are so big and complex that the advisory council is obviously of minor importance in terms of effect. Thus local and state committees tend to be much ax~re "purposeful" and serious and less frustrating. (Member,National Advisory Council on Supplementary Centers and Services.) More time allowed between council meetings for study and preparation for the group meeting. Better balance of background experience of touncil members. I would also recommend continuity insofar as it is possible in the selection of staff council members. (Member, National Advisory Council on Financial Aid to Students.) Better selection of advisory committee members. In striving for minority, group, sex and consumer representa- tion, talent and ability are compromised. (Member, National Advisory Council on the Handicapped.) To be able to work and meet out in the field, receiving input from various programs and administrations and students throughout the country. (Member, National Ad- visory Council on Adult Education.) To work more dilingently toward gaining greater confidence and recognition by those whom the council is mandated to advise and to increase activities in the areas of eval- uation and dissemination. (Member, National Advisory Council on Supplementary Centers and Services.) Councils should not be composed primarily by people in a particular profession. A greater cross-section of interests should be included. (Member, National Advisory Council on Education Professions and Development.) Better selection of members--higher quality. Better ad- vanced information on what is expected of us at meetings. Office of Education officials should guide committee work ~re effectively. This deficiency improved greatly the second year. A smaller committee would be desirable. (Member, Advisory Committee on Financial Aid to Students.) Substantial increases in funding of council activities. (Member, National Advisory Council on Extension and Continuing Education.) PAGENO="0475" 469 74 Our advisory council has been deligent and thorough. I would like to think that somebody knew we existed. An opportunity to meet with the President and/or Congressional members directly connecte.j with legislation in our field would be extremely helpful. (Member, National Advisory Council on Equal Educational Opportunity.) More involvement of council members at the government level, i.e., testifying in person before Congressional committees, working in concert with staff of the Office of Education on matters of council interest and more contact with the Domestic Council. (Member, National Advisory Council on Adult Education.) It seems to me that the effectiveness of an advisory council will depend on the caliber of its members. My recoutnendation would be a careful selection o~ membership and chairman.~ (Member, National Advisory Council on EqualiCy of Educational Opportunity.) The Commissioner of Education provide the proper funding for the council as required by law to be able to provide the needed technical assistance to Indian people as well as carry out its other functions. (Member, National Advisory Council on Indian Education.) Advisory council members~ take their responsibilities seriously. It is because of this sense of responsibility and accountability to the Federal Government that members often express their annoyance over such issues as the lack of~ funding for council activities, the lack of available data for decision making, and the failure of the system to properly respond to ti~e council's recommendations. The advisory council process, in spite of its limitations, is an innovative technique of getting citizens involved in program evaluation, dissemination of proven practices and programs, reporting, and the development and improvement of legislation~. This rather recent thrust in government is almost certain to gain momentum as councils gain the expertise to deal with the vei~y major responsibilities mandated to then in various legislative acts. PAGENO="0476" 470 75 Executive and Program Director Questionnaire Fourteen executive and program directors of education councils were asked to complete and return an unsigned questionnaire in November 1975. Since the National Advisory Council on Supplementary Centers and Services was terminated in June 1975 and the Advisory Council on Women's Educational Programs did not employ an executive director until November 1975 these councils were not included in the survey. Nine of the fourteen director's returned the questionnaire for a 64 percent return. (See Appendix D.) The questionnaire was used to supplement the data discussed in the first section of this Chapter which was received from advisory council members. The instrument was designed on the basis of the literature, the researcher's knowledge, interviews with executive and program directors, and discussions with other knowledgeable people in the field. A complete list of names and directors of the Presidential advisory councils and of the U.S. Office of Education program directors is given in Appendix H. Of the nine questionnaires returned 5 were from executive di- rectors of Presidentially-appointed councils; 3 were from program directors of councils appointed by the Secretary of Health, Education, and Welfare; and one was from a program director of a council appointed by the U.S. Commissioner of Education. All of the Presidentially- appointed council respondents said that the President should continue to appoint members to their respective councils; however, two of the three program directors of councils appointed by the Secretary suggested PAGENO="0477" 471 H 76 that the members should be appointed by the Commissioner. The program director of the Commissioner appointed council suggested that the members be appointed by the President. Several of the executive anc program directors referred to the quality of membership appointnents~to councils. The following are representative comments: -~ Would also welcome improvement in the quality of appointments to councils. Too many appointees are without either expertise, knowledge or interest in the fields the law requires them to advise on. Recommend new selection procedures which would assure appoint- ment of outstanding representatives of the profession, without regard to political affiliation. Six of the nine directors reported that the chairman of the council was appointed. Seven of the nine directors suggested that the present method was preferred with a two-t'o-one.margin preferring that the chair- man be appointed. Re-appointments of members to councils which have been in oper- ation for more than three years ranged from a low of five percent to a high of twenty-five percent. Eight of the nine councils use standing committees. Most of the councils have an executive committee and a legislative committee. Other committees include: evaluation, federal programs, government relations, program planning, government inter-agency, research and publications, student assistance, guaranteed loans, and the committee on the annual report. Most executive and program directors tend to be rather critical of the performance of federal agencies with which they have dealings. PAGENO="0478" 472 77 The directors were asked to respond to the following question: "The legislation which establishes your advisorycouncil mandates certain advisory and reporting responsibilities that necessitate a working relationship with various agencies of the Federal Government. How would you rate the performance of the following agencies in fulfilling their responsibilities to your council?" The five executive directors of Presidentially-appointed councils gave the Committee Management Office of the U.S. Office of Education a rating of fair (2.0). Two of the five rated the office as poor (1). The poorest overall per- formance record was given to the Secretary of Health, Education, and Welfare with a fair (1.9) rating. (See Table 21, Page 77,) TABLE 21 PERFORMANCE RATING OF FEDERAL AGENCIES AND OFFICIALS BY EXECUTIVE AND PROGRAM DIRECTORS OF NATIONAL ADVISORY COUNCILS Perfcrmance Ratin~~g~ Very Poor Fair Good Good Excel Avg. 1.0 2.0 3.0 4.0 5.0 -- USOE Program Officer U.S. House of Representatives U.S. Senate Committee Management Office U.S. Commissioner of Educ. Executive Office of the Pres. Secretary of H.E.W. N 9 1 0 0 3 1 3 4 2 2 2 1 3 0 2 1 3 4 3 3 1 1 1 1 0 3 1 1 1 4 0 0 0 0 1 0 3.5 2.8 2.7 2.5 2.5 2.5 1.9 PAGENO="0479" 473 78 The following are representative of the comments nade by the mine executive and program directors who responded to the questionnaire: Take the management awa~ from USOE/Office of Committee Management and give councils federal grants to perform duties on federal contracts or interagency agreements. Would also strongly recommend more complete independence from all Office of Education "assistance." Remove from TJSOE active management. The effectiveness of the, council was greatly reduced when the "letters of agreement" were dissolved and committee manage- ment (TJSOE) was given responsibility for handling council accounts. Make it possible for the Committee Management Office to be truly supportive. Make councils completely~ free of agency. Greater administrative assistance, logistical support, and other routine assistance~ (should be given) from Committee Management. Several directors also commented on the subsistence budget that councils, in their opinion, are awarded, frequent changes in ad- ministrative guidelines, substantial staff turn-over, and the lack of direction the staff gets from the council. One director commented: Would welcome clearer understanding of council's staff to exercise own judgment and clearer understanding of staff's on-going relationship to~cóuncil. Staff should have better directives from council atbeginning of year regarding what council expects of it over twelve month period and, once given, be able to carry out long-term responsibilities under its own steam. As it now is, too often each meeting of council means a new set of~directives from council to staff. The executive directors of ?residentially-appointed councils, almost without exception, commented on their preference for the inter-agency agreement which the councils operated under until 1973. Under the inter-agency agreement, each council received a grant which PAGENO="0480" 474 79 was deposited in a local bank account--the council assumed responsi- bility for all payments such as travel, honorarium, salaries, office supplies, and consultant services. Under the present arrangement all payments are processed by the U.S. Office of Education which, according to the directors, results in "long delays and red-tape." The importance of councils receiving adequate assistance from the sponsoring agency was stated as follows in the report, The Science Committee, by the National Academy of Sciences:j The supporting services provided by sponsoring agencies are usually crucial to the success of any committee. Often this applies not only to the preparation and presentation of material and to the making of effective arrangements for brief- ings, meetings, field visits, and the like, but also to the preparation of the committee's report and to its reception and effect within `the requesting agency. Services beyond staffing are often required. Committees that deal with unusually complex problems or with those for which informa- tion must be collected on a large scale require many kinds of services (e.g., collection of original data, data processing, literature searches) that should not be expected of otherwise busy volunteer committee members, Much valuable time is wasted and the response time in providing advice is lengthened when committees and their professional staffs struggle ~ith logistical problems that should be handled for them. A major criticism voiced by executive directors and advisory council members related to the "myriad number of administrative changes" the councils have experienced in recent years. They frequently say that a far to great a proportion of their tine is devoted to these problems which relate to appointments, budgets, travel orders, and other problems which are commonly associated with the federal bureaucracy. 1National Academy of Sciences, The Science Committee: A Report ~y the Committee on the Utilization of You gScientists `and Eng~neg in Advisory Services to GoveLnment (Washington, D.C.: National Academy of Sciences, 1972) p. 21. PAGENO="0481" 475 SUNMARY, CONCLUSIONS AND RECOMMENDATIONS Summary Advisory councils have assisted the Federal Government since the earliest days of the Republic. Through the use of committees, governmental agencies can call upon experienced leaders from the professions, business and industry, the arts and humanities, and from the ranks of the millions of Americans who are the consumers of services provided by the Federal Government. Although councils have madesubstantial contributions to better government, some have been poorly conceived, inadequately funded and improperly administered. In spit~ àf these inadequacies nearly all members take the role seriously arid are pleased to contribute to the development of govermmemtal policy and programs. The frustration which council members often feel is related to their determination to contrib- ute and the failure of federal agencies to use councils effectively. In the President's March 1975 report on advisory committees, it is pointed out that during calendar year 1974 there were 1,242 national advisory committees. The Department of Health, Education, and Welfare had the greatest number with 367 of which 17 were U.S. Office of Educa- tion councils) 1U.S. President, Federal Advisory Councils: Third Annual Report of the President. (Washington, D.C.: Government Printing Office, 1975), p. 1. 70-426 0 - 76 - 31 PAGENO="0482" 476 81 The federal costs to operate and support advisory connnittes in 1974 was reported to be $42,380,636. This amount is said to include "such items as salary, travel, and per diem allowances for committee members; staff support costs (including salary and other allowances for federal employees supporting the committees); consultants' fees; and printing and supplies."1 Since the U.S. Office of Education, with 17 councils (only 1.5% of the total) spends in the vicinity of $3 million annually on councils, it is likely that the figure is grossly under- stated. Also, the President's estimate, which is taken from reports submitted to his office, does not accurately take into consideration the administrative support given to councils. The Federal Advisory Committee Act, which was signed into law on October 6, 1972, has made a significant addition to government because it requires open meetings, provides for an annual inventory of councils, and establishes a committee management secretariat with responsibilities for all matters relating to advisory committees. It also requires Con- gressional committees to survey the advisory councils in their area of jurisdiction and to seek ways of improving the committee system. Although advisory committees have been around for nearly 200 years, they are still in the process of evolving. Each council, which is advisory to the U.S. Office of Education, is unique because of dif- ference in mission, membership, budget, and administration. The value of a council was aptly stated by Professor David S. Brown when he made the following statement during Senate Hearings on `Ibid., p. 2. PAGENO="0483" 477 82: advisory councils: An advantage of the professional coinnittee is, of course, that it makes available to government talents which would be unavail- able in other ways. Men an~d women whose professional careers are tied to other institutions and who would not be available as either full-time employees or as consultants can be induced to give several days a year (sometimes more) in pursuit of objec- tives which they share with~ government. For their part, there is the satisfaction in being involved in programs of personal interest as well as of national moment)- Councils contribute by ~~uestioning, evaluating, advising, and recommending. These tasks can only be accomplished through extensive cooperation between the agency ~nd the council. If the council is ineffective it is usually because the governmental agency doesn't have the know-how to take advantage of~ the experience, knowledge, and energy of the members. Conclusions and Recommendations Membership Characteristics of C~uncils There is a general feeling within the U.S. Office of Education and among the staff and membership of national advisory councils that appointments to councils should be less dependent upon the politics of nominees. They also believe that~councils should be more diversified on the basis of age, sex and occ~upations of members. According to this researcher's findings, sixty-three percent of the members of national advisory councils are. over 45 years of age* and seventeen percent have passed the age of sixty, while only 2 percent are less than 25 years of age and~l3 percent less than age 35. Since Congress, Senate, Subcommittee on Government Operation, Advisory Committees, 91st Cong., 1st sess., 1971, p. 31. PAGENO="0484" 478 83 councils should be broadly representative of the educational, cultural and industrial resources of the nation, there should be greater emphasis placed on appointing a larger number of younger citizens to education councils. In its 1971 report to the President and the ~Congress the National Advisory Council on Supplementary Centers and Services said: Another important segment of society which is requesting a greater role in determining the direction of educational pro- grams is the student... Students can play an important part in the development and improvement of educational programs, and many states have taken steps to ensure adequate representation of America's youth on advisory councils and commissions. Young people are directly associated with the schools and are in excellent position to make a contribution to educational reform and innovation. Full par- ticipation of all segments of the community is a requisite if educational reform is to become a reality.' More than a third (34%) of the members of national advisory councils are employed in higher education while only six percent reported working in the combined areas of the legal and medical professions, media, and cultural resources such as museums. Minority groups including Negro Americans (11%), Spanish Surnamed Americans (8%), Indian Americans (9%), and Oriental Americans (5%) appear to be well represented on councils. One third of the members responding to the questionnaire reported being members of a minority group. A major determinant for council membership apparently relates to the political preference of the member. Nearly four times 1U.5. National Advisory Council on Supplementary Centers and Services, Educational Reform Through innovation (Washington, D.C.: The George Washington University, March 1971), p. 9. PAGENO="0485" 479 H & as many Republicans serve on co~incils as do Democrats (60% vs. 17%). This information is similar to a finding of Cronin and Thomas in a 1969 survey of Office of Education council members appointed during the Demo- cratic Presidency of Lyndon Johnson. Cronin and Thomas reported that "fifty-seven percent said they were Democrats, as opposed to 12 percent who said they were Republicans. J In a population that is richly diversified it is impossible to be totally equitable in appointing members to advisory councils. It is possible and necessary, however, to occasionally analyze the member- ship of councils to insure that various segments of the population are represented. It is also import~nt to insure that every effort is made to identify individuals who are capable, energetic and willing to con- tribute to the improvement and development of American education. Willingness to serve was~ considered of crucial importance in the report entitled The Science Committee released in 1972 by the National Academy of Sciences: The committee said: Finally, we wish to emphasize that motivation is of the greatest importance to effective performance, no less in a committee than elsewhere. If motivation is lacking in a mem- ber or prospective member he should not serve. Thus self- selection must play a role in the choice of members of com- taittees. The individual who is asked to serve should evaluate the proposed advisory assignment with regard to (a) its worthiness as an activity in which he will invest his time, and (b) its match with his interests and available time and energies. The sponsoring agency must fulfill its responsi- bilities in this assessment by providing the prospective member with sufficient infornatlon so that he can make those judgments.2 `Thomas E. Cronin and Norman C. Thomas, "Federal Advisory Processes: Advice and Discontent," Science, February 26, 1971, p. 771. 2National Academy of Sciences, The Science Committee (Washington, D.C.: National Academy of Sciences, 1972), p. 24 PAGENO="0486" 480 85 The following recommendations, if adopted, would lead to a strengthening of the advisory council process. It is recommended: That greater attention be given to the appointment of national advisory council members with particular emphasis on appoint- ing students, wonen, elementary and secondary classroon teachers, and representatives of the cultural resources of the nation such as museums. That United States Congressnen, officials of the U.S. Office of Education, college presidents, chief state school officers, and other officials and representatives of citizen groups and organi- zations be encouraged to submit the names of individuals for con- sideration and possible appointment to the membership of an advisory council. Council Member Roles and Responsibilities Each advisory council is a unique organization with responsibilities that are somewhat different from any other council. Some are asked to eval- uate programs, others to disseminate information on model or successful projects, and others to provide citizen input on critical issues. Each council is mandated to advise either the Commissioner, the Secretary, the President,-and/or the Congress on various aspects of program administration or legislation. The members are not overly impressed with their impact on agencies or officials as Table 20, page 69; shows. Only 28 percent of the members considered their impact to be significant in areas relating to legislation, policy implementation, the President, the U.S. Congress, the U.S. Commis- sioner of Education, and other U~OE officials. Only two percent of the members considered their impact to be significant on the President while forty-three percent considered it to be significant on USOE officials other than the Commissioner. Thirty-two percent of the members considered their impact to be moderate in the six areas while twenty-two percent PAGENO="0487" 481 86 said limited or none and eighteen percent said there was no way of knowing. Members are not in agreement as to their major role as council members-only 40 percent said it was advisory while a surprisingly large number, 43 percent saw their major role. in terms of being either an advo- cate, an evaluator, or an administrator. To ensure that members are fully informed as to their responsibilities it is recornmen~1ed: That advisory council members be furnished with copies of (1) the appropriate legislation, (2) the council's operational plan for the year, (3) a history of the program, and (4) the by-laws of the council (if av~ilabie). That new members be given an àrientation session conducted by the council staff in cooperation with experienced members of the council. That the chairman of each council keep the members informed as to their legislatively mandated responsibilities a~id make every effort to insure that these guidelines be followed. That councils develop (1) guidelines for their operation which could be in the form of by-laws, and (2) that they establish a written 12-month operational plan at the beginning of each fiscal year. Termination and Consolidation of Councils Congressmen write councils into legislation to serve as "watchdogs," "supporters," or "advisors," This is especially true of new legislation which may not have the support of a natural constituency. Congressman John Brademas' (Dem., md.) support for an Advisory Council on Environmental Education or Congresswoman PatsyNink's (Dem., Ha.) support of a National Advisory Council for Women's Education Programs are prime examples. PAGENO="0488" 482 87 In some cases councils cultivate support in the Congress to insure that their programs and interests are given a fair review. Rep- presentative Albert Quie (Rep., Minn.) has taken a special interest in the concerns of the National Advisory Council on Vocational Education and Sen. Edward Kennedy (Den., Mass) has frequently been a spokesman for the interests of the National Advisory Council on Indian Education. These cooperative working relationships are often in the best interest of the program, the council, and the Congress. Most councils are established for a three te five year period at which tine Congressional hearings are held and the authorizing legis- lation is either terminated, extended, or revised. As a result, council members are periodically concerned with the status of the legislation and of the continuation of the program and the advisory council. There has been a substantial turn-over in the number of councils which are advisory to the U.S. Office of Education. In 1968 there were a record number of 28 councils, in 1972 the number had been reduced to 22 and in June 1975 only 16 advisory councils were in operation. During the summer of 1975, the National Advisory Council on Supplementary Cen- ters and Services was terminated and members were appointed to two new councils, the National Advisory Council on Ethnic Heritage Studies and the National Advisory Council on Environmental Education. The Federal Advisory Committee Act states that "the need for many existing advisory committees has not been adequately reviewed;" and furthermore, that "advisory committees should be terminated when they are no longer carrying out the purposes for which they were established." 1Federal Advisory Committee Act, Public Law 92-463, 86 Stat. 770, (1972). PAGENO="0489" 483 88 In presenting testimony ~ the March 1971 House hearings on advisory councils Mr. William Ca~ey of Arthur D. Little and Company said: The elimination of atrophied~or redundant committees will never cone easily. Prestigious committees at the Presiden- tial level acauire, over time,~a liturgical untouchability. They outlast Presidents and administrations. If their mis- sion or usefulness is in doubt~ the time to put them.to rest is in the first months of a new administration. We recall that President Kennedy did this with understandable zest. I would suggest that all standing committees, other than statu- tory ones, automatically go out of business at the close of a Presidential term unless they are explicitly extended and reconstituted. You could call this a 4-year flush)- The termination of a council is frequently resisted by the membership but most federal off icials and Congressional leaders agree that it is a healthy practice. Since councils are innovations in them- selves, they should have built-in processes for renewal and change which includes periodical changes in consultants, staff, and in council mem- bership. A strong case can be presented for a greater emphasis on "task-force" type councils which would operate for a six, twelve, eighteen, or twenty-four month period. These committees would have specific research, evaluation, arid reporting responsibilities and would complete their assignments at least a year before the program (legisla- tion) was scheduled to terminate. Committees of short duration would be especially helpful to the Congress and to the Commissioner when new legislation is passed. It is recommended: 1U.S. Congress. House of Representatives, Hearings Before the Subcommittee of the Committee on GOvernment Operations, 91st Cong., 2nd sess., March 12, 17, and 19, 1970, p. 163. PAGENO="0490" 484 89 That the U.S. Commissioner of Education, under the authority of the General Provisions Concerning Education Act which author- izes the commissioner to establish advisory councils, consider the advantages of appointing members to short term (6.18 months) committees for the purpose of investigating special areas of national interest with particular concern for making improve- ments in educational legislation. Council Administration The need for a committee is usually clearly stated in the creating legislation, but this is certainly not a guarantee that the committee can perform satisfactorily. Committee members are usually busy people accustomed to working efficiently and productively; there- fore, problems before the committee should be properly defined, inform- ation should be readily available, and the committee should be assured that its report will be received with interest. Meetings The average member attended four council meetings during fiscal year 1975 and more than a third of the members (37%) attended at least five meetings during the sane period. Effective, well-planned meetings are important to the over-all development of councils. Meetings bring together a variety of individ- uals for the purpose of providing information, analysis, and feedback in addition to providing two-way communication with other educators and citizens in the field. This spirit of communication was summarized as follows in a report entitled the Appendices to the Science Committee by the National Academy of Sciences: In a sense the advisory structure constitutes a superuniversity, one in which experts are called upon to teach and learn as they advise on topics on which the nation seeks understanding. The "professor" whose advise is requested--whether he comes from PAGENO="0491" 485 90 academia, industry, or a government laboratory--finds among his students, cabinet officers and~Congressmen, generals and White House aids. The nation has learned much from the professors, and the professors also have been educated and stimulated. But we still have much to learn ábàut the ~urriculum and teaching methods of this nationwide university. Although the meeting is t~he chief source of communication for council members, it frequently is a major source of irritation. Members complain that more information o~ time is needed to make decisions at meetings, they suggest that they should be given a greater voice in the councils' deliberations, and they say that their advice is ignored by federal officials. The following recommendations are being made to improve council meetings. It is recommended: That federal agencies and/or private foundations give support to research projects in the area~ of committee process, small group dynamics, and the advisory function. That advisory councils investigate methods of encouraging communication among members, the use of guest speakers and other resource people, and methods of evaluating meetings by using questionnaires or process observers. Reports Each advisory council is required to submit an annual report according to law. The Federal Advisory Committee Act specified that "at least eight copies of each report~made by every advisory committee, and, where appropriate, background papers prepared by consultants" shall be deposited in the Library of Congress. The Act further specifies that "The Librarian of Congress shall establish a deposito~y for such reports 1National Academy of Sciences, `Appendices to The Science Committee (Washington, D.C.: National Academy of Sciences, 1972), p. 27. PAGENO="0492" 486 91 and papers where they shall be available to public inspection and use."1 The Library of Congress is only beginning to comply with the requirements in the Federal Advisory Committee Act. In November 1975 the reports were not yet available to the public. In 1970 the Committee on Government Operations of the U.S. House of Representatives reported that: Many reports are not available. As many committees are created to repeat or restudy the same or a similar issue, it would indeed be helpful if there were assurance that such materials were avail- able. Much effort could be saved. Indexing, programming and retrieval of records has progressed to such a poin~ that a large part of what has been created can be readily used. Advisory council reports, along with the council charters, are on file in the Committee Management Office of the U.S. Office of Education. The libraries of the Department of Health, Education, and Welfare; the U.S. Office of Education; and the National Institute of Education do not keep the reports on file. National advisory council reports are, more often than not, inadequately researched, poorly organized, and printed in a casual fashion by the Government Printing Office or in some cases on an office reproduc- tion machine. Reports frequently are released after March 31, the due date established by law, and are, according to this researcher's findings, usually ignored by policy makers at all levels-the Commissioner, the Secretary, the Congress, the President. 1Federal Advisory Committee Act, P.L. 92-463, 86 Stat. 770. 2U.S. .Congress, House, Committee on Government Operations, The Role and Effectiveness of Federal Advisory Committees, H. Rept. 91-1731, 91st Cong., 2d sess., 1970, p. 18. PAGENO="0493" 487 H 92 On the subject of advisory council reports, Frank Popper in The President's Commissions said The writing in commission r~ports needs considerable improvement, most are not read closely, and for good reason~ . . . distant dead- lines might produce better, more intelligible writing by people with literary experience. Host reports should be shorter; 30,000 words is a reasonable upper limit. Some could be as short as 5,000 words.1 Although this study did not include a comprehensive review of advisory council reports, it became apparent to the researcher that the reporting functions of councils are in need of vast improvements. Since councils are established to advise federal agencies it seems to follow that their advice should be prop~erly reviewed and responded to by appro- priate federal officials and stored in a manner that will permit public inspection and review. It is recommended: That the U.S. Commissioner of Education respond in writing to the chairman of each council regarding the councils' recommenda- tions in each annual report.~ That the U.S. Office of Education's Committee Management Office draft suggested guidelines for the consideration of councils in developing, publishing, and storing annual reports. That the library of the U.S. Office of Education and/or the library of the National Institute of Education be designated as a public source of advisory council reports. That the U.S. Office of Education's Committee Management Office assume the responsibility of submitting all advisory council reports to Educational Research Information Center (ERIC) to insure that they are available to education researchers and * other interested citizens. * That councils in cooperation~with program and executive directors place greater emphasis on improving the quality of. the ~ annual reports. ~rank Popper, The President's Commissions (New York: Twentieth Century Fund, 1970), p. 61. PAGENO="0494" 488 93 One of the major problems concerning Presidentially appointed councils results from the requirement that councils report to the Pres- ident and to the Congress which sometimes results in councils by-passing the U.S. Commissioner of Education who is responsible for the administra- tion of federal education programs. A Presidential]y appointed council submits a report directly to the President who is responsible for for- warding it to the Congress. This procedure sometimes results in a second printing of a report after the White louse has attached a few paragraphs of meaningless comments. It is therefore recommended: That the U.S. Commissioner of Education review the procedure that councils follow in reporting to the Executive and Legis- lative branches of government and recommend improved strate- gies. Each council is a unique entity and must be evaluated on its own merits; however, the one over-riding weakness of councils relates to the frequent failure of councils to adequately record and report their find- ings. A circle has evolved: poor reports, no attention, poor reports... If advice, as recorded in the annual reports, is a major product of coun- cils one would surely question the present annual multi-million dollar expenditure. The majority of the reports submitted by councils are clearly inadequate and may be the major reason for the U.S. Office of Education's less than enthusiastic support of the advisory council process. Support Services Advisory councils provide the U.S. Office of Education with the means of acquiring information on a continuing basis. In addition to the advisory function, members serve as resource people or ambassadors for federal agencies since they provide two-way communication between the PAGENO="0495" 489 94 Federal Government and educators and citizens in the field. This is a function that federal officials often fail to appreciate and, therefore, fail to utilize effectively. The U.S. Office of Education could improve its image considerably with councils by strengthening its Committee Management Office. Three out of nine executive and program directors rated the performance of the Office of Committee Management as "poor." (See Table 21, page 77.) Advisory council members were hess concerned about the Office of Educa- tion's management strategies; however, many members suggested that greater support of councils by the Office of Education would make their jobs noi~e meaningful and less difficult. Although council members and staff say they need more assistance, they also say they need more independence from the administration of the U.S. Office of Education. Nearly all directors said they would prefer having an independent grant that would allow the council to administer its own funds subject to government~ regulations and audit. The importance of insuring the independence of councils was emphasized in the 1970 report of the Committee on Government Operations of the U.S. House of Representatives: Presidential advisory groups created by the Congress or the President are necessary to provide independent ideas free of the vested positions of the~agencies and their clientele. Department and agency advisory groups in order to render more independent judgments should also be made less depen- dent on the agency to which they give advice. The members and staff of an advisory group need also to be free from vested interests and obligations which would impair the judgments and decisions of the committee. They must be able to examine programs in a fresh and critical way and reach PAGENO="0496" 490 95 conclusions that agencies might not. Separate budgets and research staffs--even though limited, can contribute to the desired objective of the advisory process.1 Advisory councils should be as independent as possible from the agencies they advise. It is difficult to imagine, for example, how the members of the National Advisory Council for Career ~Education or the Advisory Committee for Community Education can be free to fulfill their legislative responsibilities when they use staff of the U.S. Office of Education. It is recommended: That the U.S. Commissioner of Education provide greater support and incentive to councils by (1) recognizing the contributions of councils, (2) improving communications between the U.S. Office of Education and the councils, and (3) by sponsoring training sessions as encouraged under the provisions of the Fed- eral Advisory Committee Act. Although council members and staff criticize the U.S. Office of Education for their "lack of independence," it appears to this researcher that the Federal Advisory Committee Act has strengthened the committee process immeasurably since its passage in 1972 and that councils have acquired a great deal of independence. The problem does not appear to be with the structure, but with the way the program has been administered over the past decade. The problems of councils all too frequently relate to "How do we deal with the bureaucracy?" rather than "How do we deal with our legislatively mandated responsibilities?" Some Final Thoughts Advisory councils are an indication that federal officials realize that they don't have a monopoly on information and ideas--they provide the 1U.S. Congress, House, Committee on Government Operations, The Role and Effectiveness of Federal Advisory Committees, H. Rept. 91-1731, 91st Cong., 2d sess., 1970, p. 18. PAGENO="0497" 491 96 means by which the government can acquire the services of able, know- ledgeable, and dedicated citizens at a relatively nominal cost. Failure of councils to perform at an acceptable level is usually attributable to one of the following: a deficiency among the members, poor staff support, lack of funding, or a failure of the sponsoring agency to clarify the council's mission. Each council is a unique and separate organizatiàn and must be evaluated on its own merits. Nost are productive organizations which make available t9 the government talents which would be unavailable from any other source. The advisory council role needs both greater cultivation and greater reward. It is sometimes referred to as the fourth branch of gov- ernment, and, as such, has not received the attention that its importance and influence warrant. 7O-42OO-76-~2 PAGENO="0498" 492 APPENDIX A Letter to Advisory Council Members PAGENO="0499" 493 98 ~1~---- ~:-] __~`\ `~1 ii ~ June 30, 1975 Dear Advisory Council Member, Enclosed is a questionnaire on advisory councils which we hope you Will complete and return promptly to The George Washing- ton University, Washington, D.C. The information compiled from the questionnaires will be used in developing a report on the 16 advisory councils serving programs funded by the U.S. Office of Education during the past Fiscal Year. The information should be helpful to advisory council members and to the~ Executive and Legislative branches of Govemunent. The intention of the study is to compile membership char- acteristics of the councils, review the roles and responsibili- ties of members, and to consider suggestions or counents members have for strengthening the advisory council concept. The study is concerned with the 216-member population and will not make comparisons between the 16 councils involved in the study. A nunber has been assigned to each council member for the purpose of a follow-up, should one be necessary. Information will be held in the strictest confidence. Coiranents expressed in the questionnaires and used in the report will be used anonymously. The questionnaire should take approximately 15 minutes to complete. Your prompt response will be greatly appreciated. Thank you. Sincerely, /1 ,,/~jj~9 ~ Le Gerald~ . Kluempke jd Enclosures Department of Education THE GEORGE WASHINGTOX UNIVERSITY ~ D.C. O~O~ PAGENO="0500" 494 APPENDIX B Questionnaire sent to Advisory Council Members PAGENO="0501" (1) Democrat -. (2) Republican (3) Independent (4) Other (Please list) (1) Eighth Grade (2) 12th Grade (high scbool) (3) Associate of Arts . . (4) Bachelors Degree . .* (5) Masters Degree (6) Ph. D., Ed.D., M.D., etc. 495 - 100 NATIONAL ADVISORY COUNCIL ME~ER QUESTIONNAIRE Membership Information 1. Approximately how many months have you been (or, were you) a member of a national advisory council? (Please place the number in the box provided here.) (1) f~~] 2. How many council meetings (please exclude subcommittee meetings) were you able to attend during tk~is fiscal year (July 1, 1974 to June 30, 1975)? . (2) L~J 3. Who waé the first to question you regarding your availability for membership on the advisory council? (Please mark an "X" in the box for one of the following alternatives.) A. Amember of the advisory council 3 (A) B. An employee of the Dept. of H.E.W. or U.S.0.E (B) C. A member or staff member of~ the U.S. Congress (C) D. A White House Staff person CD) E. Someone else (E) 4. The following questions are designed to assist in analyzing membership characteristics of councils. A. Please mark an "X" in the box~by your age bracket. (1) Under25years . . . 4A(1) (2) 25 - 34 years (2) (3) 35 - 44 years (3) (4) 45 - 59 years (4) (5) 60 and above . ... . * (5) B. Please mark an "X" in the box next to your political preferance. 4B(1) (2) (3) (4) C. What was the highest diploma or degree you received? (2) (3) (4) PAGENO="0502" G. Your ethnic or racial group. (1) Negro American (2) Spanish Surnamed American (3) Indian American (4) Oriental American (5) Other than above Meetings/Council Administration 5. Which of the following orientation materials, if any, did you receive when you first became a member of your advisory council? (Please mark all responses which are applicable.) A. A history of the applicable program 5 B. A review of current operations including descriptions of projects in operation C. Inforsiation concerning the goals, policies, and procedures of the advisory council D. A copy of the legislation E. None of the above 6. When you joined the advisory council, how long did it take before you bad the feeling that you had enough understanding of the purposes and problems of the program to be able to contribute to the resolution of broad policy questions? (Please mark one of the responses.) A. Before I joined the council, I was already quite familiar with the program 6 B. 1 to 2 meetings of the council C. 3 to 4 meetings D. 5 to 6 meetings E. 7 or more meetings F. I still feel unable to contribute to the resolution of the broad policy questions of the program 496 D. In which of the following areas have you been primarily employed? (Please mark one of the foliowin .) (1) Business and industry . (i) (5) Media (2) Labor unions . . . . . (2) (6) Home (3) Law (3) (7) Student (4) Medicine (4) (8) Higher Education (9) Public preschool, elementary, or secondary education . (10) Private preschool, elementary, or secondary education . (11) Public non-education agencies (including legislature) . (12) Cultural resources such as museoms, music, literary or artistic organizations, etc (13) Other (Please describe) ____________________________________ E. Sex: (Please check below.) (1) Male (2) Female 101 (5) (6) * * (7) (8) * . (9) (10) * (11) (12) _(l3) F. Your (1) (2) (3) (4) annual personal income bracket. Under $7,000 $7,000 to $14,999 $15,000 to $24,999 $25,000 and above 5 (1) (2) F (1) (2) (3) (4) G (1) (2) (3) (4) (5) (A) EJ (B) ~J (C) (0) (E) (A) (B) (C) (B) (E) (F) ~ PAGENO="0503" 497 102 7. Usually, before arriving at a council meeting (Please mark one of the res~onses.) A. I knew what issues the council would vote (or take other formal action) on (A) EJ B. I did not know what issues the council would vote (or take other formal action) on (B) [~~J 8. On the average, approximately how many hours of outside advisory council work (reading, writing, analyzing) do you do each month? (Include in this figure all activities you engaged ~n outside of council meetings . **-, (~) [~J 9. Please attempt to distribute, among the six areas listed below, the time that you have been preoccupied with matters as a council member. That is, in your activities related to this program, what percentage of your total time as a council member was devoted to each of the areas listed below (total should add up to 100R). A. The Advisory Council's Internal Affairs (Total time spent on activities related to defining the role of the advisory council, its goals, objectives, policies, procedures, practices, and activities, etc.) . 9 (A) B. Program G~a1s and Policies Relating to the Program Advisory Council was Established~to Review (Total time given to activities related to defining program goals and objectives, resolving policy questions such as the determination of nonpublic school involvement, the distribu- tion of administrative funds, the criteria for funding new or operational programs.) . (B) C. U.S. Office of Education Activities (Total time spent on activities relating to the internal administration of the program by the U.S. Office of Education . (C) r::~~ D. Legislation and Appropriations (Discussing legislative projects and appropriations allocated to the program.) . . . . (D) E. Raports (Time spent discussing and/or preparing and reading annual and/or other reports to the U.S. Office of Education, the Congress, and/or the Président.) (E) F. _______________ . (F)~ Areas other than mentioned above Please list: PAGENO="0504" 498 10. In your capacity as an advisory council member, have you undertaken since July 1974, any of the ~l1owing activities? (Please mark all responses which apply.) A. I have personally cormunicated (written or orally) with the President of the U.S. .on advisory council matters .. . . . 9 (A) B. I have personally cormunicated (written or orally) with a U.S. Representative(s) or a Senator(s) on advisory council matters (B) C. I have visited Washington, D.C., on advisory council business (C) D. I have personally coimnunicated (written or orally) with a federal agency on council natters (B) E. I have done none of the above (E) Roles/Responsibilities 11. tThich one of the following terms best describes your role as a council neither? (Please place your answer in the box at the right.) A. Administrator E. Evaluator (11) r:i B. Advisor F. Lobbyist C. Advocate G. Supporter D. Critic 12. There are nany functions characteristic of advisory councils. Are the following functions (I) characteristic or (2) not character istic of the council of which you are a member. If you have no opinion nark (3). Place your answer in the box at the right. Function A. Advise on program priorities 12 (A) B. Do lobbying work .. . ,.. . ~. . (B) C. ?4ake managerial suggestions (C) D. Review guidelines and regulations (B) E. Work on publicity and support (E) F. Work out new legislation (F) 13. Would you note your council's impact in the following areas as (1) significant, (2) moderate, (3) limited or none yet, or (4) no way of knowing. Please place your answer in the box at the right. A. Legislation 13 (A) B. Policy Implementation (B) [~j C. The President (C) [~J D. The U.S. congress (D) E. The U.S. Coimnissioner of Education (E) [~J F. U.S.0.E officials other than Connaissioner (F) PAGENO="0505" Cotrzmentsf Suggestions 499 SI 104 14. What do you see as your major responsibility to the U.S. Government as an advisory council member? . . . . 15. What in your opinion was the most significant problem which reduced the effectiveness of the advisory council during the last 12 months? 16. What actions do you reconxnend to improve your advisory council in the. coming year? * Additional comments may be written on the back of this page if you wish. Return questionnaire to: Gerald J. Kluempke, Department of Education, The George Washington University, Washington, D.C. 20052. PAGENO="0506" 500 APPENDIX C Follow-up Letter Sent to Advisory Council Members PAGENO="0507" 501 ___ 106 July 30, 1975 Dear Advisory Council Member, On June 30th a questiorit~ ire pertaining to your role as a national advisory council member was mailed to you. It would be greatly appreciated if you would return the question- naire as we are anxious to compile the results. If you have already returned the questionnaire please accept our appreciation. If you did not receive the June 30th correspondence and need the qmiestionnaire send us a note and we will forward one promptly. Thank you for your attention to this matter. Sincerely, jd Department of Education THE GEORGE WASHINGTON UNIVERSITY ~ D.C. 20006 PAGENO="0508" 502 APPENDIX D Questionnaire Sent To Executive And Program Directors of National Advisory Councils PAGENO="0509" 503 108 ~ECUTIVE AND PROGRAM DIRECTOR QU~TIONNAIRE As you know, I an writing a report on advisory councils/coTrnrtittees to the U.S. Office of Education which will seve as my doctoral dissertation at the George Washington University~ I would appreciate it if you would provide me with some information on your council. Please complete this form and return it to me in the enclosed uranarked, self-addressed, and stamped envelope. Select the letter that most accurately completes the sentence. 1. The official responsible for making appointments to this council 1. - is (A) President, (B) Secretary of Health, Education, and Welfare, (C) Assistant Secretary for Education, (D) U.S. Commissioner of Education, (E) ________________________________________________ 2. In my judgenent, members should be appointed to this council by (A) sane as above, (B) ______________________________________. 2. 3. The chairman of the council is (A) appointed, (B) elected by the menbers. 3. - 4. In my Judganent, the chairman of the advisory councils/cosanittees should be (A) appointed, (B) elected. Completion. 5. ApproxImately what percentage of the members now serving on your advisory council were re-appointed after serving their first term? ([f council has been in operation less than 3 years, mark N/A). 7. The legislation which establishes your advisory council mandates certain advisory and reporting responsibilities that necessitate a working relationship with various agencies of the federal gov- erranent. How would you rate the performance of the following agencies in performaing their responsibilities to your council? Place the letter which best describes the agencies performance in the space to the right: (1) poor, (2) fair, (3) good, (4) very good, (5) excellent. A. USOE Program Officer (council delegate) B. Committee Management Office C. U.S. Commissioner of Education D. Secretary of Health, Education, and Welfare E. U.S. House of Representatives F. U.S. Senate G. ~cecutive Office of the President . -. 6. Does the advisory council have any standing sub-committees? (A) yes, (B) no. If your answer is "yes' please list titles below: 4. 5. 6. * .7-A ....B C ...D ...F ...G PAGENO="0510" 504 109 Executi~ie and Program Director Questionnaire Page 2. 8. What in your opinion was the most significant problam which reduced the effectiveness of the advisory council/coirnnittee during the last 12 months? (Add another page if more space is needed.) 9. What actions do you recommend to improve your advisory council/committee during the coming year? 10, What actions would you suggest to improve the over-all administration and operation of advisory councils (there are presently 17)? I~eturn to G. S. Klueiapke, 3800 North Fairfax Drive, Arlington, Virginia, 22203. PAGENO="0511" 505 APPENDIX E Part C of Public Law 91-230 Advisory Councils PAGENO="0512" 506 111* "PArrr C-ADvIsoRY CouNcn.s UDErINrno~s "Sac. 431. As used in this part, the term- "(1) `advisory ceunnil' meaiis any committee, board. comrnis- sion, council, or other similar group (A) etablished or ormtnized pursuant to any appl;cable stature, or (B) established under the authority of section 432: b;ir such term dons not, include State advisory councils or commissions established pursuant to any such statute; "(2) `statutory advisory council' means an advisory council established by. or pursuant to, stature to advise and make recom- .mendations with rc~pect to the administration or improvement of an applicable pro~r~m or ~ther relatecr matter: "(3) `nonstntur.i:v advis3rv co':n~ii' means an advisory council which is (A) est~b~ished under the tuithority of section 432. or (B) established to .~ivise and make recommendations with respect to the approval of applications for grants or contracts ~ required by statute; "(4) `Presiclcntiai advisory councti' means a statutory advisory ~uncil, the members `~f which are armointed by tha President: "(5) `Secretarial advisory council' means a statutory advisory council, the members of which are anpointed by the Secretary: "(6) `Commissioner's advisory council' means a statutory ad- visorv council, the members of which are appointed by the Com- missioner; "(7) `applicable statute' means any statute (or title, part, or section thereof) which authorizes an applicable program or con- trols the administration of any such program. PAGENO="0513" 507 112 April 13, 1970 - 51 - Pub. Law 91-230 ~ STAT. 171 - AtTifORlZ,~TIOF FOR NE&EI'SARX ADVISOIlY COUNCILS ~SEc. 4:3~. (a) The Commis~oner is authorized to create, and appoint, the mei.:OeN of. such advisory ~ouncils as lie determines in wrltingto 1)0 ne&'e~sary to i(iVi~e him with respect t~- (1) t lie orjaiiization of the Oiiii'é of Education and its con- duct iii rite aditiiuist ration of ~~miicat'le programs; `(~) recontittetidations for ie~isiat it regarding education pro- grants aol the nteiuis by which the educational iteeds of the Nation itut he met and "(8) special iircldens and areas of special interest in education. "(I)) Etch advisors' council t're:tted under the authority of subsec- tion (a) ~hiaii teintiiiate tot l:iter thin one rear from the date of its creation unless rite (`onintissiune" dctermil~es in writing not. more than titii~v days pru~i to tie expuatJnn of sta'hi one year that its existence for an tddiiion:ti iterod. not to `sceeti one year, is necessary in order to complete the rcconlniend:ttioIH or reports for which it. was created. (c) `rile Contiiiissioner sitail tiehtide n~ his reI)ort submitted pursu- ant to set't!On 4dS a statement on all advisory councils created or cxtenthed under the authority of this section anti their iictiviti~. "3tF.3UiF.~SU1C AND RF.N)RTS `F STATUTORY ADVISORY COUNCILS ~SEc. 433. Xotwithstanding arty other ~rovision of law unless cx- pressly in limitation of tile pr~v~ois of ibis section. each statutory n(lvisorv council- "(1) shi:itl be composed o~' the nu!iiI~er of members l)rOVidCd by statute ivhto univ be appitutci. without regard to Cite provisions of title'S, lnitetl States (`ni-. ~- y~riutti~ appointnuent in the com- petitive service, and 511:111 ~srve for r~rms of not to exceed three rears, which in the cisc of initial members, shah! be staurgered: ~nd "(~) shall make an annul report of its activitire. ~tidIings and Repo~ to recommendations to the Congress tint hater than M:trcii :11 of each Cor~ress. e'aletieiar year, which shall he submitted with the Commissioners annual report. The Conintissiotier shall not serve as a member of any such advisory council. - "CUMI'ENSATION (15' MF.MOF.RS OF ADVISORY COUNCILS "Ste. 434. Members of all advisory councils to which this part is applicable who are not in the re.rular full-time. enipioy oldie United - States shah, while attending iiue-titigs or conferences of the advisors' council or otherwise eng:uured in due business of the ndvisor~- council, be entitled to receive couiltuensation at a rate tixed `us' thte Commis- stoner, hut not exceeding the rate soccified at rite time of such service for grade GS-l~ in sectiolt 333~ of tithe 5. United States (`ode, inclnd- 34 F.R. 9605. lug tr:ivelt one, and while so serving on the business of the advisory 5 USC 5332 council away from their homes or regular b)haCee of business. they may rate. be allowed travel expenses. including per dkm itt lieu of subsistence, as nutlmrtzcd liv section ST)3 of tithe 3, United States (`ode, for persons 80 Stat. 499; employed interznittently in the Government service~ 83 Stat, 190. ~I'i(OFF.SSiONAI., TECHNICAL, AND (`LERICAt. StIFF; TEChNICAL ASSISTANCE. "SEC. 435. (a) Presidential advisory councils are authorized to appoint, without regard to the provisions of title 5, United States Code, governing 11)1101 ntnients in the conul)et itiveservice. or otherwise ol)tain the Services of, such professional, technical, and clerical personnel as max- be necessary to enable them to carry out their functions, as pre- scribed by law. 70-426 0 - 76 - 33 PAGENO="0514" 508 113 64 3?~~ 172 Pub. Law 91-230 - 52 - April 13, 1970 "(b) `l'he Commissioner shall engage such personnel and technical a~istaiice a~ may be required to permit Secretarial and Corrunis- * sioliet's advis3ry councils to carry out their functions as prescrtbad by law. * "(c) Subject to regulations of the Commissioner. l'residentral advi- sory councils are authorized to procure temporary and intermittent services of such personnel as are Iieee~s:ery ro the extent authorized by so stat. 415. section 3109 of title ~, United States Code. but at rates not to exceed the rate specihed at the time of such service for grads' (iS-is in section 34 P.R. 9505. a33~of such title. 5U365332 "~IEETIN(;S OF .iOVISORY COUNCILS "SEc. 436. (a Each statutory advisrey council shall meet at the call of the cluirnous thereof l)ut not lCcS than two times earls year. * Nonstntutorv atinsory curinils shailmeet in accorclaie with segula- tions proton f~rre ii ;y the (cnunissioner. "(b) Miiiut.'~ of C:W1 trivet rig of each advisory council shall t~ kept and shrill Co~itzliji a record of the per~ons l;tesent, description of mat. ters diss'ussil `rid conclusions seached, and copies of all reports received. issr:ci. or appro~ ccl by tire asivi~ory council. The accuracy of all minutes ~hia11 be cerr iricd to liv the chairman of the adsisorv council. ~Atf)lTiNG .iNI) r.evn:w or .`~iViSORY COUNCIl. .%CTIVITIES "Sac. 437. (a) Each strrtutorv advisory council shall lie subject to souls ~enerai re~rulations as tIre ( omn!is~ liter may prrrrilrrrrte respect- ing the governance of st;rtutorv advisor councils and shrill keel) such records of its activities as will frril~ dis:lose the dispos~tion of any funds which may ire at its ,lis~rc::ii no.1 tIre nature and extent of its activities in carrying out it ñrrrcrirors. GAO &udit. (b) `fire (`o;rrprr.rller Usrerirl or tire tinted States, or any of his duly authorized representatives, shall have access. for the purpose of * audit and exanrinatton, to any books, documents, papers, and records of each statutory adviory Coerurri. * ~RFJ~IiT ItT TIlE COMMISSIONER OF FDUC.iTION Repo~ to "Sac. 438. (a) Not later than March 31 of each calendar year after corrgres3!or~1 1970, the Commissioner shall submit, as a part of the Coznrniissioner's e~ttters. annual re')ort. a report en tIre activities-of tire advisory councils which are subject to this part to tIre Committee on Labor ami Public Welfare * * of tire Senate arid tire Committee on Education and Labor of the house * of Representatives. Such report shall crrntairr. at least. a list cf all such * advisory councils, the nantres anne! afiiliitions of their members, a * * description of the function of each rrclvisory council, and a statement of tine dates of the meetings of each such adcisorv council. * Abo11e~ent, "(b) If tire Commissioner cleterminres that ii statutory advisory council is mint needed or that the fruretions of two or more statutory * * advisory councils should be combined, Ire `hail inchide in the report a recommendation that such advisory council be ahnhi~hed or that such * ` functions be conrhinccl. Unless there is air objection to such action by either the Senate or tire House of Rep~resenrtatives icithin ninety days after the submission of such report, the Commissioner is authorized * to abolish such advisory council or roml,ine the functions of two or snore advrnrv conrnrcils as reccrmmenclecl in such report.". R~pea1. (b) Sections 1207, 1208, 1209, and 1210 of tIne Higher Education 62 Stat. 1051. Act of 19i35 (as added by Publrc Law 90-575) are superseded by part * 20 US~ 1147- A of title IV of Public Law 90-247 and are hereby repealed. 1150. ~ p. 166. PAGENO="0515" 509 APPENDIX G Education-Related Advisory Councils Established by the President and/or Congress 1956 - 1975 PAGENO="0516" 510 123 EDUCATION-RELATED ADVISORY COUNCILS ESTABLISHED BY THE PRESIDENT AND/OR CONGRESS 1956 - 1975 President's Committee on Education Beyond High School, Public Law 84-813 appointed July 26, 1956. Advisory Committee on New Educational Media, Public Law 85-864, September 2, 1958. United States Advisory Commission on International Educational and Cultural Affairs, Public Law 87-256, September 21, 1961. Advisory Committee on Training of Teachers of the Deaf, Public Law 87-276, September 22, 1961. Committee on ?ublic Higher Education in the District of Columbia, September 23, 1963. National Advisory Council on Education for Health Professions, Public Law. 88-129, September 24, 1963. Advisory Committee on Graduate Education, Public Law 88-204, December 16, 1963. Advisory Committee on Vocational Education, Public Law 88-210, December 18, 1963. National Advisory Council on Nurse Training, Public Law 88-581, Sep- tember 4, 1964. Advisory Committee on Supplementary Centers and Services, Public Law 89-10, April 11, 1965. Advisory Council on State Departments of Education, Public Law 89-10, April 11, 1965. National Advisory Council on the Education of Disadvantaged Children, Public Law 89-10, April 11, 1965. National AdvIsory Committee on Education of the Deaf, Public Law 89-258, October. 19, 1965. Advisory Council on Insured Loans to Vocational Students, Public Law 89-287, October 22, 1965. PAGENO="0517" 511 124 National Advisory Council on Medical, Dental, Optometric, and Podiatric Education, Public Law 89-290, October 22, 1965. Advisory Committee on Administr~t1ve Costs for the National Defense Student Loan Program, Public~Láw 89-329, November 8, 1965. Advisory Committee on Library R~search and Training Projects, Public Law 89-329, November 8, 1965. Advisory Council on College Library Rasources, Public Law 89-329, November 8, 1965. Advisory Council on Developing Ins titutions, Public Law 89-329, November 8, 1965. Advisory Council on Insured Loans to Students, Public Law 89-329, November 8, 1965. Advisory Council on Quality Teacher Preparation, Public Law 89-329, November 8, 1965. National Advisory Council on Extension and Continuing Education, Public Law 89-329, November 8, 1965. Task Force on. Handicapped Children and Child Development, An~nded July 4, 1965. National Advisory Commission on Libraries. Executive Order 11301. September 2, 1966. President's Committee on Libraries, Executive Order 11301, September 2, 1966. National Advisory Committee on International Studies, Public Law 89-698, October 29, 1966. National Advisory Committee on Adult Basic Education, Public Law 89-750, November 3, 1966. Task Force on Educational Television in the Less Developed Countries, November 26, 1966. National Advisory Council on Educational Professions Development, Public Law 90-35,. June 29, 1967. Advisory Committee on Education of Bilingual Children, Public Law 90-247, January 2, 1968. National Advisory Council on Supplementary Centers and Services,~Public Law 90-247, January 2, 1968. PAGENO="0518" 512 125 Advisory Council on Financial Aid to Students, Public Law 90-575, October 16, 1968. Advisory Council on Graduate Education, Public Law 90-575, October 16, 1968. National Advisory Council on Vocational Education, Public Law 90- 576, October 16, 1968. President's ThskForce on Priorities in Higher Education. Presidential Announceu~nt, October 6, 1969. Cabinet-bevel Committee on School Desegregation. Presidential State- ment, February 16, 1970. President's Commission on School Finance, Executive Order 1513, March 3, 1970. Advisory Council on Research and Development, Public Law 91-230, April 13, 1970. National Advisory Committee on Handicapped Children, Public Law 91- 230, April 13, 1970. National Advisory Council on Adult Education, Public Law 91-230, April 13, 1970. National Commission on School Finance, Public Law 91-230. April 13, 1970. National Council on Quality in Education, Public Law 91-230, April 13, 1970. President's Panel on Non-Public Education, Presidential Announcement, April 21, 1970. National Advisory Council on Child Nutrition, Public Law 91-248, May 14, 1970. President's Commission on Campus Unrest, Executive Order 11536, June 13, 1970. Cabinet Committee on School Busing, Created by the President, February 14, 1972.. National Advisory Council for Drug Abuse Prevention, Public Law 92- 225, March 21, 1972. National Advisory Council on Indian Education, Public Law 93-380, June 23, 1972. PAGENO="0519" 513 126 Advisory Council on Environmental Education, Public Law 93-278, May 10, 1974. National Advisory Council for Career Education, Public Law 93-380, August 21, 1974. Advisory Comnittee for Connnunity Education, Public Law 93-380, August 21, 1974. National Advisory Council for Women's Educational Programs, Public Law 91-380, August 21, 1974. PAGENO="0520" 514 APPENDIX H Names and Addresses of National Advisory Council Chairmen, Executive Directors, and Program Directors PAGENO="0521" 515 128 N~~S AND ADDRESSES OF NATIONAL ADVISORY COUNCIL CHAIRMEN, EXECUTIVE DIRECTORS, AND PROGRAM DIRECTORS Accreditation and Institutional Eligibility, Advisory Committee on. Chairman: Dr. George L. Grassmuch, Professor of Political Science, University of Michigan, Ann Arbor, Michigan 48104. Office of Edu- cation Program Director: Mr. JOhn Prof fitt, Director, Accreditation and Institutional Eligibility Staff, U.S.O.E. Regional Office Build- ing, Room 4068, 7th and D Street, S.W., Washington, D.C. 20202 (245-2263). Adult Education, National Advisory Council on. Chairman: Dr. Brent H. Gubler, Coordinator of Adult Education, Utah State Board of Education, Salt Lake City, Utah 84111. Executive Director: Dr. Gary Eyre, 425 13th Street, N.W., Suite 323, Washington, D.C. 20004 (376-8892). Bilingual Education, National.Adv~isory Council on. Chairperson: Mrs. Rosita Cota, Project Director, Bilingual Multricultural Pro- ject, Dist. 1, P.O. Box 4040, Tucson, Arizona 85717. Office of Education Program Director: Mr. John Nolina, Acting Director, Office of Bilingual Education Regional Office Building, Room 3600, 7th and D Street, S.W., Washington, D.C., 20202 (245-9579). Career Education, National Advisory, Council for. Chairperson: Dr. Sidney P. Narland, Jr., Président, College Entrance Examination Board, 20 West 64th Street, #25-H, New York, New York 10023. Office of Education Program Delegate: Dr. John Lindia, Deputy Director for Career Education, U.S. Office of Education Regional Office Building, Room 3100, 7th and D~Street, S.W., Washington, D.C. 20202 (245-2284). Community Education, Advisory Council.. Chairperson: Hon. Martin W. Essex, Supt. of Public Instruction, State Office Building, 65 South Front Street, Columbus, Ohio 43215. Office of Education Program Delegate: Ms. Julie Englund, Director, Community Education Program, U.S. Office of Education Regional Office Building, 7th and D Street, S.W., Room 5622, Washington, D.C. 20202 (245-0691). Developing Institutions, Advisorv~Counci1 on. Chairman: Dr. Samuel Nabrit, Executive Director, Southern Fellowship Foundation, 795 Peach- tree Street, Suite 484, Atlanta,,Georgia 30308. Office of Education Program Delegate: Dr. Preston Valien, Director, College University Unit, Office of Deputy CommissIoner for Postsecondarv Education, U.S. Office of Education, Regional Office Building, Room 4682, 7th and D Street, S.W., Washington, D.C. 20202 (245-8082). PAGENO="0522" 516 129 EducatiOn of Disadvantaged Children, National Advisory Council on the. Chairman: Dean Owen Peagler, Pace University, Pace Plaza, New York, New York, 10038. Executive Director: Mrs. Roberta Lovenheim, 425 13th Street, N.W., Suite 1012, Washington, D.C. 20004 (382-6945). Education Professions Development, National Advisory Council on. Chairman: Mr. Walter Tice, President, Yonkers Federation of Teachers, 35 Grassy Sprain Road, Yonkers, New York 10710. Executive Director: Dr. George Arnstein, 1111 20th Street, N.W., Suite 308, Washington, D.C. 20036 (382-8712). Equality of Educational Opportunity, National Advisory Council on. Chairman: Dr. Dale Parnell, Chancellor, San Diego Community College District, 3375 Camino del Rio South, San Diego, California 92108. Executive Director: Mr. Leo Lorenzo, 1325 G Street, LW., Suite 710, Washington, D.C. 20005 (382-7985). Ethnic Heritage Studies, National Advisory Council on. Chairman: Hon. Ralph J. Perk, Mayor of Cleveland, Ohio 44114. Office of Edu- cation Program Delegate: Dr. William H. Martin, Chief, Ethnic Her- itage Studies Branch, U.S. Office of Education Regional Office Building, Room 3907, 7th and D Street, S.W., Washington, D.C. 20202 (245-9506). Extension and Continuing Education, National Advisory Council on. Chairman: Mr. Newton 0. Cattell, Director, Federal Relations, Pennsylvania State University, University Park, Pennsylvania 16802 Executive Director: Dr. James A. Turman, 425 13th Street, N.W., SuIte 529, Washington, D.C. 20004 (376-8890). Financial Aid to Students, Advisory Council on. Chairman: Dr. John X. Jainrich, President, Northern Michigan University, Marquette, Michi- gan 49855. Office of Education Program Delegate: Mr. Warren Trout- man, Education Program Specialist, Bureau of Postsecondary Education, U.S. Office of Education, Regional Office Building, Room 4669, 7th and D Street, S.W., Washington, D.C. 20202 (245-2354). Handicapped, National Advisory Committee on the. Chairperson: Miss Jean S. Garvin, Director, Special Educational and Pupil Personnel Services, State Department of Education, Montpelier, Vermont 05602. Office of Education Program Delegate: Mr. Lee Goodman, U.S. Office of ~Education Regional Office Building, Room 2604, 7th and D Street, S.W., Washington, D.C. 20202 (245-2303). Indian Education, National Advisory Council on. Chairman: Mr. Theodore George, Route No. 6, Box 6326, Poulsbo, Washington 98370. Executive Director: Mr. Lincoln White, 425 13th Street, N.W., Suite 326, Wash- ington, D.C. 20004 (376-8882). PAGENO="0523" 517 130 Vocational Education, National Advisory Council on. Chairperson: Dr. Duane Lund, Superintendent of Schools, Staples, Minnesota. Executive Director: Mr. Regingld Petty, 425 13th Street, N.W., Suite 412, Washington, D.C. 20004 (376-8873). Women's Educational Programs, Adi.~isory Council on. Chairperson: Dr. Bernice Sandler, Director, Project on the Statos and Education of Women, Association of American Colleges, 1818 R Street, N.W., Washington, D.C. 20009. Execut~ive Director: Mrs. Jay Simonson, 1832 M Street, N.W., Room 821, Washington, D.C. 20036 (382-3861). PAGENO="0524" 518 APPENDD~ I - Sources Consulted PAGENO="0525" 519 132. SOURCES CONSULTED Argyris, Chris. Management and Organizational Development. New York: McGraw-Hill, 1971. Bailey, Stephen K., and Nosher, Edith K. ESEA The Office of Education Administers a Law. Syracuse: Syracuse University Press, 1968. Bell, Gerald D., ed. Organizations and Human Behavior. Englewood Cliffs, N.J.: Prentice-Hal1~, 1967. Bennis, Warren G. ç]~pging Organizations. New York: McGraw-Hill, 1966. _______ ed. American Bureacracy. Chicago: Aldine Publishing Co., 1970. Blechman, Barry N.; Gramlich, Edward N.; and Hartman, Robert W. Setting National Priorities: The 1975 Budget. Washington, D.C.: The Brook- ings Institution, 1974. Campbell, D.T,, and Standley, J.C. Experimental and Quasi-Experimental Designs for Research. Chicago: Rand-McNally, 1963. Conant, James Bryant. Shaping Educational Policy. New York: McGraw- Hill Book Company, 1964. Cronin, Thomas E., and Greenberg, Sanford D. The Presidential Advisory ~ystern. New York: Harper and~ Row, 1969. Cronin, Thomas E., and Thomas, Norman C. Educational Policy Advisors and The Great Society. Washington, D.C.: The Brookings Institution, 1970. Dexter, Lewis Anthony. Bow Organizations Are Represented in Washington. New York: The Bobbs-Merril1~Company, Inc., 1969. Furry, Willithn S. A Study of ESEA title III State Advisory Councils. Washington, D.C.: The George Washington University, n.d. Gardner, John W. Excellence: Can We Be Equal and Excellent Too? New York: Harper and Row, 1961. -. Excellence and Self-Renewal. New Yoric: Harper and Row, 1963. PAGENO="0526" 320 133 Janis, living L. Victims of Group Think. New York: Houghton, Miff un and Company, 1972. Keppel, Francis. The Necessary Revolution in American Education. New York: Harper and Row, 1966. March, 3. C. and Simuon H. Organizations. New York: John Wiley and Sons, 1958. Marcy, Carl Milton. Presidential Commissions. New York: King's Crown Press, 1945, Lif ton, Walter N. Groups: Facilitating Individual Growth and Societal Change. New York: John Wiley and Sons, 1972. Lippitt, Gordon L. Organizational Renewal. New York: Appleton-Century- Crofts, 1969. Likert, Rensis. The Human Organization: Its Management and Value. New York: McGraw-Hill, 1967. McGregor, Douglas. The Human Side of Enterprise. New York: McGraw-Hill, 1967. Maslow, Abraham H. Eupsychian Management. Chicago: The Dorsey Press, 1971. Mills, Theodore M. The Sociology of Small Groups. Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1967. Popper, Frank. The President's Comiriissions. New York: Twentieth Century Fund, 1970. Skinner, B. F. Beyond Freedom and Dignity. New York: Alfred A. Knopf Publishing Co., 1971. Taylor, Herbert A. Dynamics of Groups at Work. Chicago: University of Chicago Press, 1954. This, Leslie E. The Small Meeting Planner. Houston: Gulf Publishing Company, 1972. Vermilye, Dyckman W., ed. The Future in the Making. Jossey-Bass Publishers, 1973. - Dissertations Allen, Fleet Devotion. Advisory Committee Organization, J~ole and Utili- zation. Unpublished doctoral dissertation, North Carolina State University at Raleigh, 1971. PAGENO="0527" 521 134 Brown, David S. "The Public Advisory Board in the Federal Government." Ph.D. disseration, Syracuse University, 1954. Johnson, Willys George. A Comparisbn of Advisory Committee Member, Administrator, and Faculty Attitudes Toward the Functions of the Minnesota State Junior Colleges. Unpublished doctoral dissertation, University of Illinois at Urbana-Champaign,: 1973. Periodicals - Cronin, Thomas E., and Thomas, Norman C. "Federal Advisory Processes: Advice and Discontent." Science, February 26, 1971, pp. 771-773. Golde, Roger A. "Are Your Meetings Like This One?" Harvard Business Review, January-February, 1972, pp. 66-67. Drew, Elizabeth B. "On Giving Oneself a Hotfoot: Government by Commissions." Atlantic Monthly, May, 1968, p. 45-49. "Washington Worry: All Those Advisors." U. S. News and World Report, July 17, 1972, pp. 79-80. Interviews Ayers, Martha. Chairman, National Advisory Council on Supplementary Centers and Services. Private interv~iew held on June 13, 1975. Bailey, Ann. United States Of fice~ of Education Committee Management Off 1- cer. Private interview held b~ August 26, 1975. Bonsteel, William. Committee Management Secretariat, Office of Management and Budget. Private interview held on September 18, 1975. Goodman, Lee. Program Delegate, National Advisory Committee on the Hand- icapped. Private interview held on November 13, 1975. Lorenzo, Leo. Executive Director of the National Advisory Council on Equality of Educational Opportunity. Private interview on November 12, 1975. - Mattheis, Duane, Executive Deputy~Cbmmissioner of Education of the U. S. Office of Education. Private~ interview held on November 12, 1975. McCarthy, Richard. Associate Director of the National Advisory Council on Extension and Continuing Education. Private interview held on November 10, 1975. PAGENO="0528" 522 135 Petty, Reginald. Executive Director of the National Advisory Council on Vocational Education. Private interview held on November 11, 1975. White, Liiicoln. Executive Director of the National Advisory Council on Indian Education. Private interview held on November 12, 1975. West, Robin. Associate Director of the Presidential Personnel Office, The White House. Private interview held on September 18, 1975. U.S. Government Publications U.S. Advisory Committee on Accreditation and Institutional Eligibility. "Annual Report for the Year 1974." Washington, D.C.: Department of Health, Education, and Welfare, 1975. (Typewritten.) ________* "Annual Report for the Year 1973." Washington, D.C.: Depart- ment of Health, Education, and Welfare, 1975. (Typewritten.) U.S. Advisory Council on Developing Institutions. Strengthening Developing Institutions: Title III of the Higher Education Act of 1965 Annual Report. Washington, D.C.: Government Printing Office, 1974. ________* Strengthening Developing Institutions: Title III of the Higher Education Act of 1965 Annual Report. Washington, D.C.: Government Printing Office, 1975. U.S. Community Education Advisory Council. "1974 Annual Report." Washington, D.C.: Department of Health, Education, and Welfare, n~d. (Typewritten.) U.S. Congress. House. Committee on Education and Labor. A Compilation of Federal Education Laws. Washington, D.C.: Government Printing Office, 1971. U.S. Congress. House. Subcommittee of the Committee on Government Opera- tions. Presidential Advisory Committees. Hearings Before a Sub- committee on Government Operations, 91st Cong., 2d sess., 1970. U.S. Congress. House. Committee on government Operations. The Role and Effectiiieness of Federal Advisory Committees. Washington, D.C.: Government Printing Office, 1970. U.S. Congress. Senate. Subcommittee on Budgeting, Management, and Expend- itures. Oversight Hearings Before the Subcommittee on Budgeting, * Managenent, and Expenditures of the Committee on Government Opera- *tions onP.L. 92-463. 93d Cong., 1st and 2d sess., 1973 and 1974. PAGENO="0529" 523 136 U.S. Congress. Senate. Subcommittee on Education of the Committee on Labor and Public Welfare. Notes and Working Papers Concerning The Administration of Programs Authorized Under Title III of Public Law 89-10, The Elementary and Secondary Education Act of 1965 As Amended by Public Law 89-750. Washington, D.C.: Government Printing Office, 1967. U.S. Congress. Senate. Subcommittee on Intergovernmental Relations. Advisory Committees. Hearings Before the Subcommittee on Intergov- ernmental Relations of the Committee on Government Operations on S.1637, S.1964, and S.2064, 92d Cong., 1st sess., 1971. U.S. Department of Health, Education, and Welfare. Annual Report of the U.S. Commissioner of Education. Washington, D.C.: Government Print- ing Office, 1973. ________ Annual Report of the U.S. Commissioner of Education. Washington, D.C.: Government Printing Office, 1974. _________ "Charter of the Advisory Committee on Accreditation and Institu- tional Eligibility." Washington, D.C.: Department of Health, Education, and Welfare, May 7, 1974. (Typewritten.) ________ "Charter of the Advisory Council on Developing Institutions." Washington, D.C.: Department of Health, Education, and Welfare, Janu- ary 3, 1975. (Typewritten.) ________ "Charter of the Advisory Council on Women's Educational Programs." Washington, D.C.: Department of Health, Education, and Welfare, March 31, 1975. (Typewritten.) ________ "Charter of the Community Education Advisory Council." W~ ..hing- ton, D.C.: Department of Health, Education, and Welfare, January 23, 1975. (Typewritten.) ________ "Charter of the National Advisory Committee on the Handicapped." Washington, D.C.: Department of Health, Education, and Welfare, Octo- ber, 9, 1973. (Typewritten~)~ ________ "Charter of the National Advisory Council on Adult Education," Washington, D.C.: Department of Health, Education, and Welfare, May 7, 1974. (Typewritten.) ________ "Charter of the National Advisory Council for Career Education." Washington, D.C.: Department of Health, Education, and Welfare, Novem- ber 19, 1974 (Typewritten.) * * . "Charter of the National Advisory Council on Equality of Educa- tional Opportunity." Washington, D.C.: Department of Health, Education, and Welfare, August 20, 1975. (Typewritten.) 70-426 0 - 76 - 34 PAGENO="0530" 524 137 ________ "Charter of the National Advisory Council on Extension and Continuing Education." Washington, D.C.: Department of Health, Education, and Welfare, July 16, 1975. (Typewritten.) - "Charter of the National Advisory Council on Financial Aid to Students." Washington, D.C.: Department of Health, Education, and Welfare, January 3, 1975. (Typewritten.) . "Charter of the National Advisory Council on Indian Educatipn." Wasnington, D.C.: Department of Health, Education, and Welfare, Octo- ber 9, 1973. (Typewritten.) . "Charter of the National Advisory Council on Education Prof es- sions Development." Washington, D.C.: Department of Health, Education, and Welfare, March 5, 1975. (Typewritten,) . "Charter of the National Advisory Council on Supplementary Centers and Services." Washington, D.C.: Department of Health, Edu- cation, and Welfare, December 20; 1975. (Typewritten.) . "Charter of the National Advisory Council on Vocational Education." Washington, D.C.: Department of Health, Education, and Welfare, May 22, 1975. (Typewritten.) Public Advisory Committees. Washington, D.C.: Government Printing Office, n.d. U.S. National Advisory Committee on the Education on Bilingual Children. ,`!First Annual Report." Washington, D.C.: Department of Health, Edu- `cation, and Welfare, March 25, 1974. (Typewritten.) U.S. National Advisory Committee on Education of the Deaf. Basic Educa tion Rights for the Hearing Impaired. Washington, D.C.: U.S. Depart- ment of Health, Education, and Welfare, June 1973. U.S. National Advisory Committee on Handicapped Children. Third Annual Report 1970. Washington, D.C.: Department of Health, Education, and Welfare, June 1970. U.S. National Advisory Committee on the Handicapped. First Class Citizen ship for Handicapped Children. Washington, D.C.: Department of Health, Education, and Welfare, March 1974. U.S. National Advisory Council on Adult Education. Annual Report. Washington, D.C.: Government Printing Office, 1974. . 1975 Recommendations. Washington, D.C.: Government Printing Office, 1975. U.S. National Advisory Council for Career Education. "Annual Report." Washington, D.C.: Department of Health, Education, and Welfare, 1975. (Typewritten.) PAGENO="0531" 525 138 U.S. National Advisory Council on Education Professions Development. "Annual Report." Washington,~ D.C.: Department of Health, Educa- tion, and Welfare, January ]975. (Typewritten.) * . Gatekeepers In Education: `A Report `on `Institutional Licensing. Washington, D.C.: Departnent of Health, Education, and Welfare, April 1975. _________ Staffing the Learning Society: Recommendations for Federal Legislation. Washington, D.C.: Department of Health, Education, and Welfare, April 1975. _______ `Teacher'Corps: Past or~Prologue? Washington, D.C.: Department of Health, Education, and Welfare, July 1975. U.S. National Advisory Council on~ Equality of Educational Opportunity. Third Interim Report. Washington, D.C.: Department of Health, Education, and Welfare, June 1975~ U.S. National Advisory Council ôn~Extension and Continuing Education. ~quity of Access: Continuing Education and the Part-Time Student. Washington, D.C.: U.S. Government Printing Office, 1975. ________ Program Evaluation: Title I of the Higher Education Act. Washington, D.C.: Government Printing Office, 1975. ________ The `Importance of Sei~vice: `Federal Support for Continuing Education. Washington, D.C.: U.S. Government Printing Office, 1974. U.S. National Advisory Council on~Indian Education. Through Education: `Self-Determination--A Bicentennial Goal for American Indians, Wash- ington, D.C.: U.S. Government Printing Office, March 1975. U.S. National Advisory Council onSupplernentary Centers and Services. A'Final Report by the National Advisory Council on Supplementary Centers and Services. Washington, D.C.: Department of Health, Edu- cation, and Welfare, June 1975. U.S. National Advisory Council on Vocational Education. A National Poli- ~çy on Career Education. Washington, D.C.: Department of Health, Education, and Welfare, September 1974. U.S. President. Federal Advisory Committees. Washington, D.C.: Gov- eminent Printing Office, May 2, 1973. U.S. President. Federal Advisory Committees: First Annual Report of the President. Washington, D.C.~: Government Printing Office, March 1973. U.S. President.' Federal Advisory Committees: Third Amnuhl'Report of the President. Washington, D.C. :~ Government Printing Office, March 1975. PAGENO="0532" 526 THE flIIIERICH11 11111 VERSITY 111111 REVIEW SYMPOSIUM ON THE 1974 AMENDMENTS TO THE FREEDOM OF INFORMATION AcT Ralph Nader Robert G. Vaughn Morton Halperin Larry P. Ellsworth Barbara Tuerkheimer THE PERSONAL ACCOUNTABILITY OF PUBLIC EMPLOYEES Robert G. Vaughn A LEAP OF FAITH: SOME OBSERVATIONS ON LAW'S EFFECT UPON THE EARTH'S NATURAL RESOURCES Jan G. Laitos THE FEDERAL TRADE COMMISSION AND EQUITABLE REMEDIES Eugene Kaplan CONTRIBUTION AND THE DISTRIBUTION OF Loss AMONG TORTFEASORS United States v. Hudson AND EXPUNGEMENT IN THE DISTRICT OF COLUMBIA ~~i1 VOLUME 25 FALL 1975 NUMBER 1 PAGENO="0533" 527 VETO BY NEGLECT: THE FEDERAL ADVISORY COMMITTEE ACT* BARBARA W. TUERKHEIMER** INTRODUCTION While the Freedom of Information Act (FOIA)1 has become well known as an instrument for, making the inner workings of govern- ment more visible to the private citizen, it comes as a surprise, even to those knowledgeable in the area, that FOIA has a little brother - the Federal Advisory Committee Act (FACA or "Act")2 - born six years later in 1972. Unlike most younger brothers, however, this one does not suffer from too' much attention or overindulgence; on the contrary, it suffers from neglect. This neglect is unfortunate since FACA has the potential to be an extremely potent and effec- tive weapon for forcing government to deal openly with the public. Although relatively few have used it so far, there is hope that large numbers will soon start to exploit the explosive power of both FACA and the FOIA. For example, last summer, Ray Gallant, managing editor of the trade paper Food Chemical News, brought suit under FACA against the United States Treasury Department's Bureau of Alcohol, To- bacco and Firearms,3 When he was told by Treasury officials that * Copyright Center for Study of Responsive Law, Freedom of Information Clear- inghouse. This article is based on a speech given at the Freedom of Information Conference, February 6, 1975, in Washington, D.C. The views reflected in it are the author's and do not necessarily~répresent those of the Clearinghouse. ** From June, 1974, until August, 1975, the author was employed by the Free- dom of Information Clearinghouse, a task force of Ralph Nader's Center for the Study of Responsive Law. She was responsible for the project of monitoring govern- ment compliance under the Federal Advisory Committee Act. The project was under the overall supervision of Alan B. Morrison, chief attorney for the Public Citizen Litigation Group, and under the immediate supervision of Ronald L. Ples- ser from June, 1974, through October, 1974, and Larry P. Ellsworth from October, 1974, until the present. Their assistance and encouragement are gratefully ac- knowledged. 1. 5 U.S.C.A. § 552 (Supp. 1, 1975), amending 5 U.S.C. § 552 (1970). 2. 5 U.S.C. App. I (Supp. III, 1973), as amended, 5 U.S.C.A. App. I (Supp. 1, 1975). 3. Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048 (D.D.C. 1974). 53 PAGENO="0534" 528 54 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 several meetings they were having separately with representatives of distilling companies and consumer groups to decide whether to require labelling of chemical additives in liquor would be closed to the press and the public, Gallant obtained a court order prohibiting the Bureau from closing future meetings to him and, presumably, to anyone else. * In finding that the Act prevented the government from conduct- ing its business "behind closed doors," the district court in Food Chemical News viewed the right under the Act to report on the manner in which government conducted its business "as among this nation's most sacred protections against tyranny and oppression at the hand of the Executive . . . ."~ Thus, the significance of Gal- lant's victory reaches beyond him and the Treasury Department since it establishes a clear precedent for opening to public scrutiny meetings between private lobbyists and government bureaucrats. This article will present an overview of the Act's background and provisions and a discussion of the primary problems and issues that have arisen under it, including an examination of the case law. Finally, there will be a consideration of certain changes in the Act which its two year history suggests are needed, and a brief proposal of other recommendations necessary for achieving the objectives of the Act. I. BACKGROUND Since it is impossible for anyone in government to possess all the knowledge and expertise in a particular field, it has become routine for government officials to seek and obtain advice from the private sector before making decisions. Often they turn to groups for advice. Advisory bodies are not a new phenomenon; perhaps the first federal advisory body or committee was used by President Washington to assist him in dealing with the Whiskey Rebellion.5 Today such com- mittees are a common feature of our government; there are pres- ently over 1200 in existence, dealing with subjects as diverse as peanut growers, wild free-roaming horses and burros and Viet Nam refugees. Many play a major and powerful role in setting govern- ment policy. During the 91st Congress subcommittees in both the Senate and House began evaluating the use of ~dvisory committees by the fed- 4. Id. at 1052. 5. See Sixth Annual Address by President George Washington, Nov. 19, 1794. PAGENO="0535" 529 1975] FEDERAL ADVISORY COMMITTEE ACT 55 eral government.6 An investigation bythe Special Studies Subcom- mittee of the House Committee on Government Operations revealed that there were at least 2600 and possibly as mahy as 3200 intera- gency and advisory committees in the federal government costing the taxpayer about $75 million annually, with a total membership of about 20,000 individuals and an assigned staff of approximately 4400 persons.7 Many had such an impact on decisionmaking that they were referred to as the "fifth arm" of the government,8 existing alongside the constitutionally-created executive, legislative, and judicial branches and regnl~atory agencies. These advisory councils often met in sessions that were closed to the public and the press, and frequently it was impossible to even find out when these meet- ings were scheduled. It w~s~ also discovered that many advisory committee reports were ignored or forgotten, that many committees existed in name only and that there was substantial duplication of responsibilities. Even reports of Presidential commissions, some costing well over $1 million to develop, were ignored.9 In addition, it was learned that the advisory committee system, as it was then structured, allowed special interest groups to use and abuse their predominant membership on advisory committees to unduly influence government decisionmakers and promote their pri- vate concerns. As the Senate Committee pointed out, "[t]he lack of public scrutiny of the activities of advisory committees was found to pose the danger that subjective influences not in the public inter- est could be exerted on the Federal decisionmakers."° Members were frequently appointed to advisory committees for the sole pur- pose of ratifying decisions already made by agency officials. To remedy this situation, Congress passed the Federal Advisory 6. At the same time, the Office of Management and Budget also became con- cerned with the proliferation and lack of coordination of advisory committees. During hearings in the 91st and 92d Congresses, 0MB informed both the House and Senate Committees that it was in the process of developing a new executive order dealing with management of advisory committees. On June 5, 1972, after the House had passed H.R. 4383, and after the Senate Subcommittee on Intergovern- mental Relations unanimously reported S. 3529, each the forerunner of FACA, the President proclaimed Executive Order 11671. This Order contained to some degree concepts embodied in H.R. 4383 and S. 3529, although it was much less inclusive. 7. H.R. REP. No. 1731, 91st Cong., 2d Sess. 14-15 (1970). 8. Hearings on Presidential Advisory Committees Before the Subcomm. on Spe- cial Studies of the House Comm. on Gov't Operations, 91st Cong., 2d Sess., pt.2, at 1, 2, 54, 107 (1970). 9. H.R. REP. No. 1731, 91st Cong., 2d Sess. 10-17 (1970). 10. S. REP. No. 1098, 92d Cong., 2d Sess. 6 (1972). PAGENO="0536" 530 56 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 Committee Act on October 7, 1972. The Act had six basic purposes: first, to establish standards and uniform procedures to govern the creation, operation and termination of federal advisory committees; second, to insure that whenever possible, advisory committee meet- ings would be accessible and open to the public; third, to streamline the process, both in terms of numbers and cost of committees; fourth, to provide for balanced membership on committees, thereby eliminating the prevalent practice of having private interests be the sole spokesmen on advisory bodies making recommendations affect- ing those interests, and preventing agencies from appointing advi- sory committees with the sole objective of having them ratify con- clusions already reached; fifth, to keep the public and the Congress informed with respect to the number, purpose, activities, member- ship and costs of advisory committees; and sixth, to assure that the function of advisory committees be advisory only, so that all deci- sions would ultimately be made, in accordance with law, by a re- sponsible government official." II. P~ovisioNs FACA provides for a system governing the establishment, opera- tion, administration and duration of advisory èommittees utilized by agencies and departments in the Executive Branch.'2 The Act contains direct requirements, delegates responsibility to designated bodies of government and directs the Office of Management and Budget to promulgate guidelines for implementation of the Act by departments and agencies.'3 Each will be discussed in turn. A. Direct Requirements The Act has several key provisions. Any "committee, board, com- mission, council, conference, panel, task force, or other similar group"4 composed of members who are not full-time officers or employees of the Government, established or utilized for advice or recommendations by the President or any federal agency or depart- 11. 5 U.s.c. App. I, § 2(b) (Supp. III, 1973). 12. The independent regulatory agencies also come under the Act's coverage. For an interesting discussion in opposition to including these agencies within the pur- view of the Act see H.R. REP. No. 1017, 92d cong., 2d Sess. 18-19 (1972) (individual views of Representative John E. Moss). 13. 5 U.S.C. App. I, § 7(c) (Supp. III, 1973). 14. Id. § 3(2). PAGENO="0537" 531 1975] FEDERAL ADVISORY COMMITTEE ACT 57 ment'5 must hold its proceedings open to the public.'6 Adequate advance notice of the meetings must be given by an announcement in the Federal Register,'~ and any member of the public is given the right, subject to reasonable regulations, to attend, file a written statement, or appear before ~ny advisory committee.'8 Detailed minutes of each meeting, including a record of the persons present, a complete description of matters discussed and conclusions reached, and copies of all reports utilized or written by a committee, must be kept.'9 Except in cei~tain narrowly defined situations, the records, transcripts, minutes, working papers or any other docu- ments utilized or prepared by any advisory committee must be made available for public inspection and copying.2° Transcripts, if kept, must be made available to any person at actual cost of dupli- cation.2' In addition to these operational standards, the Act, through a reporting and charter filing requirement,22 requires identification of the location, functions and objectives, annual operating costs, num- ber of meetings and termination date of every advisory committee. It also requires that those committees in existence be specifically justified or be discontinued, and setsup procedures for the termina- tion, continuation and renewal Of advisory committees.23 To accommodate its concern that special interest groups might use their membership on advisory committees to influence govern- ment decisionmakers and promote their private concerns without any input from competing interests,24 FACA requires a balanced representation of points of view on advisory committees,~5 requires a designated federal official to, chair or attend each meeting26 and 15. An advisory committee can be established by statute or reorganization plan, by executive order or proclamation, or by an agency or department. Id. 16. Id. § 10(a)(1). 17. Id. § 10(a)(2). 18. Id. § 10(a)(3). 19. Id. § 10(c). 20. Id. § 10(b). 21. Id. § 11(a). 22. Id. § 9(c). 23. 5 U.S.C.A. App. I (Supp. 1, 1975) amending 5 U.S.C. App. I (Supp. III, 1973). 24. Compare S. REP. No. 1098, supranote 10, at 6, with H.R. REP. No. 1017, supra note 12, at 6. 25. 5 U.S.C. App. I, §~ 5(b)(2), 5(c) (Supp. III, 1973). 26. Id. §~ 10(e), (f). PAGENO="0538" 532 58 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 specifically limits the role of advisory bodies to giving advice only,27 thereby resting the ultimate responsibility for decisionmaking in the hands of accountable public officials. As is the case with all laws, Congress recognized that there must be some exceptions, and that, in certain circumstances, the public interest may require that some meetings of advisory groups be closed to the public and that committee records and documents be withheld. To accommodate this concern, the Advisory Committee Act incorporates by reference the nine exemptions of the Freedom of Information Act and makes these the only legitimate bases for closing a meeting.28 However, to close all or part of a meeting, the President or the head of the agency to which the advisory committee reports, must determine, in writing, that the meeting will be con- cerned with one or more matters covered by the nine exemptions.29 27. Id. §~ 2(b)(6), 9(b). 28. Id. § 10(d). The nine exemptions to the Freedom of Information Act, found at 5 U.S.C.A. § 552(b), (Supp. 1, 1975), amending 5 U.S.C. § 552(b) (1970), include matters that are: (1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national secu- rity intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; (8) contained in or related to examination, operating or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, con- cerning wells. 29. 5 U.S.C. App. I, § 10(d) (Supp. III, 1973). PAGENO="0539" 533 1975] FEDERAL ADVISORY COMMITTEE ACT 59 If such a determination is made, the committee must issue an an- nual report3° summarizing its~ activities so that, in no event, is the public completely in the dark about the committee. It is clear, how- ever, that Congress intended that closed advisory committee meet- ings be the exception and not~the rule and that, in the words of the Senate Report, "the standard of openness and public inspection of advisory committee records is to be liberally construed."3' B. Responsibilities Delegated Under The Act The specific standards and procedural requirements set forth in FACA are complimented by the delegation of certain responsibili- ties to the President, the Congress, agency heads, the Library of Congress and the Director of the Office of Management and Budget. The responsibilities of the President under the Act32 include re- porting to the Congress about the President's action with respect to recommendations contained in public reports of presidential advi- sory committees33 and the preparation of an annual comprehensive report to the Congress on the activities, functions, status and mem- bership of advisory committees.34 The Act also directs each standing committee of the Congress to make a continuing review of the functions and responsibilities of each advisory committee und& its jurisdiction.35 Agency heads are responsible under the Act for, among other things, establishing uni- form administrative guidelines and management controls for their advisory committees3' and for designating an Advisory Committee Management Officer37 who, in turn, supervises the operation of the agency's committees.38 In addition, FACA establishes the Library of Congress as a depository for advisory committee reports and papers in order that they be centralized and available for public inspection 30. Id. 31. S. REP. No. 1098, supra note 10, at 14. 32. 5 U.S.C. App. I, § 6(a) (Supp. III, 1973). By Executive Order 11,686, issued on October 11, 1972, the President delegated the functions vested in him by the Act to the Director of 0MB. Exec. Crder No. 11,686, 3 C.F.R. 351 (1974). 33. 5 U.S.C. App. I, § 6(b) (Supp. III, 1973). 34. Id. § 6(c). Executive Order 11,769, issued on February 21, 1974, delegated responsibility for preparation of the Annual Report to the Administrator of the General Services Administration. Exec; Order 11,769, 39 Fed. Reg. 7125 (1974). 35. 5 U.S.C. App. I, § 5(a) (Supp. III, 1973). 36. Id. § 8(a). 37. Id. § 8(b). 38. Id. § 8(b)(1). PAGENO="0540" 534 60 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 and use.39 To combat the existing problem of a lack of central control and responsibility, the Act establishes within the Office of Management and Budget the Committee Management Secretariat with general responsibility for overseeing the advisory committee system.4° The Committee Management Secretariat has a broad mandate: aside from seeing that the intent of the Congress in enacting the Act is effectuated, the Secretariat has the specific responsibility for pro- mulgating administrative guidelines and management controls for committees4' and for conducting an annual comprehensive review of the activities and responsibilities of each advisory committee42 to assist the President with his annual report to the Congress. C. 0MB Guidelines Pursuant to its oversight obligations, 0MB drafted Circular No. A-6343 which purports to provide guidance to federal agencies and departments for implementation of the Act. After stating the gen- eral tenets that advisory committee meetings should be open to the public, that exceptions should be kept to the minimum, carefully grounded in law and explained in detail, and that the emphasis should be on the free flow of information to the public,44 the guidelines discuss general responsibilities under the Act and then detail certain procedures dealing with the operational requirements of the Act. For the most part, the guidelines are vague, general and ineffective in terms of setting concrete standards for agencies to follow. Specific sections will be referred to below in the discussion of the problems and issues that have arisen under FACA. 39. Id. § 13. 40. Id. § 7(a). The Committee Management Secretariat is located in Manage- ment and Operations under the Evaluation and Program Implementation Division. As of February 1, 1975, the staff was made up of two senior professionals, one junior professional and a secretary. There was no attorney on the staff. The Director of 0MB delegated his functions under the Act and under the Executive Order 11,686 to the Committee Management Secretariat in 0MB Circu- lar No. A-63, Revised December 26, 1972, and the 0MB/Department of Justice Memorandum on Implementation of the Federal Advisory Committee Act, 38 Fed. Reg. 2306 (1973). 41. 5 U.S.C. App. I, § 7(c) (Supp. III, 1973). 42. Id. § 7(b). 43. 0MB Circular No. A-63, Revised March 27, 1974, on file at Center for Study of Responsive Law {hereinafter cited as 0MB Guidelines]. 44. Id. § 3(a). PAGENO="0541" ~535 1975} FEDERAL ADVISORY COMMITTEE ACT 61 III. PROBLEMS AND ISSUES UNDER THE Ac'r Before considering the problems and issues that have arisen under the Act, it is important to initially acknowledge that some agencies are making a strong and good faith effort to conform to the provi- sions and spirit of FACA. For example, the Consumer Product Safety Commission publishes the weekly Public Calendar which notifies the public of the daily activities of its advisory committees.45 In addition, the Calendar gives advance notice of all meetings, even though they may not technically be advisory committee meetings, involving substantial matters~ of interest between members of the agency staff and outside parties. Almost every meeting is open; closed meetings are possible only under restricted conditions. Simi- larly, the Corps of Engineers has recently revamped certain of its procedures so as to comply with the law.46 Generally, most advisory committee meetings are now being pub- licly announced, many of them~ are open, and public awareness of their activities is on the rise. However, after one year of monitoring government compliance under the Act, the author has reached the disturbing conclusion that the Government is far from the kind of reform that Congress had in mind when it enacted the law. FACA, designed to open the advisory committee process to the public, has been undermined and eroded by non-administration, non-use and ingenious bureaucratic techniques of evasion. In short, it has been vetoed by neglect. A plethora of evasive techniques and subterfuges designed to flout the Act's requirements have developed during the two years FACA has been in existence. Many agencies are defying the Act by system- atically and routinely ignoring~ its purposes and violating its provi- sions. This defiance is encouraged by the approach of the new Direc- tor of the Advisory Committee Secrertariat at 0MB, who has said that because the Act is only two years old agencies must be given time to learn how to live with ~ The absurdity of this statement speaks for itself; the Government should not be granted a two-year grace period before complying vith federal law.48 45. Consumer Product Safety Commission Public Calendar, published weekly by the Consumer Product Safety Comriiission, Washington, D.C. 46. Letter from Col. James L. Trayers to Barbara W. Tuerkheimer, Jan. 14, 1975. 47. Interview with William Bonsteel, Director, 0MB Committee Management Secretariat, in Washington, D.C., 1975. 48. If it takes two years to comply with the law, we have been wasting the $31 PAGENO="0542" 536 62 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 Statistics demonstrate the problem of government noncompli- ance. Two years after the enactment of a law which requires that "each advisory committee meeting shall be open to the public,"49 more than 45 percent of the 932 advisory committee meetings an- nounced in the Federal Register over a three-month period (August through October 1974) were closed in whole or in part.5° To make matters even worse, approximately one-third of the closed meetings were closed without reference to any exemption to the Freedom of Information Act, as FACA and 0MB guidelines specifically re- quire.5' It taxes credulity to believe that a bureaucrat requires two years to learn that a reason must be given when a meeting is closed. An examination of concrete examples of agency avoidance tech- niques follows. A. The FOIA Exemptions One of the greatest problems that has arisen under FACA is that many agencies are illegally hiding behind overbroad interpretations of the FOIA exemptions. FACA requires that all advisory committee meetings be open to the public unless one or more of the nine FOIA exemptions is applicable. These exemptions, which were designed to protect written documents and are themselves the subject of considerable dispute, cause serious problems when applied to advi- sory committee meetings and have thus been frequently used by resourceful agency administrators as tools to keep committee doors unnecessarily sealed. For example, exemption one52 has been subject to abuse by agen- million spent annually to implement this legislation. See 2 FEDERAL ADVISORY COMM. ANN. REP. (1973). 49. 5 U.S.C. A. I, § 10(a)(1) (Supp. III, 1973). 50. Statistics compiled by the author. See 39 Fed. Reg. 27,787-37,049 (1974). Out of approximately 932 meetings, 423 were closed in whole or in part. 51. The Federal Advisory Committee Act requires that a determination to close a meeting must be in writing and contain the reasons for such determination. 5 U.S.C. App. I, § 10(d) (Supp. ifi, 1973). The 0MB guidelines require that the determination be in writing and state the specific reasons for closing all or part of the meeting. A memorandum from Frederick V. Malek, Deputy Director of 0MB, to the heads of executive departments and agencies concerning these guidelines, states that exceptions to open meetings should be held tothe minimum, carefully grounded in law, and explained in detail. Memorandum from Frederick V. Malek on file at Center for Study of Responsive Law. 52. 5 U.S.C.A. § 552(b)(1) (Supp. 1, 1975), amending 5 U.S.C. § 552(b)(1) (1970). PAGENO="0543" 537 1975] FEDERAL ADVISORY COMMITTEE ACT 63 cies looking for a loophole. The label "national security" is often routinely stamped on any "sensitive" material even though national security is really not involved.53 It is not uncommon to find that members of an advisory committee whose meetings are closed on national security grounds do ñôt even have a security clearance. The general public has equal right tO be privy to "classified" information as any non-cleared committee member. Exemption two applies to "matters that are . . . related solely to the internal personnel rules and practices of any agency"54 and was designed to cover such adminjstrative matters as the personnel's use of parking facilities or regulation of lunch hours,55 but it is the shield behind which the Civil Service Commission's important Federal Pay Council and Federal Prevailing Rate Advisory Committee56 hide. Exemption four shields "trade secrets and commercial or finan- cial information obtained from a person and privileged or confidential information."57 Meetings are frequently closed on the basis of exemption four when the members of the advisory commit- tee itself are all concerned, major competitors. A meeting may be closed under exemption four if the documents involved contain in- formation that would be likely to cause substantial harm to the competitive position of the submitter of the information.58 Reliance on this exemption when all interested members of the public are at the meeting ignores the basis and intent of the exemption. Whatever 53. In light of the recent February amendment to exemption 1 of the FOIA, it may be more difficult to illegally hide behind this exemption. See note 52 supra. Prior to the amendment, the only requirement was that a document be specifically authorized under criteria established by an executive order to be kept secret inthe interest of national defense or foreign policy. There is now the additional require- ment that the document be in fact properly classified pursuant to such an executive order. 54. 5 U.S.C. § 552(b)(2) (1970). 55. 5. REP. No. 813, 89th cong., 1st Sess. 8 (1965). 56. The Federal Prevailing Rate Advisory committee studies the process of com- paring and adjusting the federal pay rates of wage-board or blue-collar workers with the pay rates in private enterprise and ultimately formulates policy recom- mendations for the Civil Service Commission. The Federal Employees Pay Council advises the Commission on a wide variety of issues relating to the comparability of the wage levels paid to government employees with those paid for similar levels of responsibility and job characteristics in private enterprise. 57. 5 U.S.C. § 552(b)(4) (1970). 58. National Parks and Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). PAGENO="0544" 538 64 THE AMERICAN UNIVERSITY LA W.~EVIEW [Vol.25:53 residual~and ~p.inimal jnterest in confidentiality remains after major competitors have evaluated the information does not warrant clos- ing the meetin~ / The greatest ~roblem,~ however, both in conceptual and practical terms, is the role of exemption five of the FOJA when applied in a FACA setting. The fifth exemption covers "inter-agency or intra- agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."59 Approximately one-sixth of all closed meetings have relied on this exemption.6° This figure is remarkable since in the five cases where the legitimacy of this exemption under FACA was in issue, the courts have uniformly held that exemption five cannot be invoked to protect advisory committee deliberations.6' Both the statutory language and common sense support this as the only correct result. Exemption five protects "inter- and intra-agency" communications, but advisory committees are not agencies and clearly committee documents are not agency documents. The transfer of a bona fide agency document to an advisory committee, composed of members who are not full-time officers or employees of the federal govern- ment, constitutes a waiver of governmental privilege for secrecy. Any other result would create a senseless loophole through which an agency always could push an internal document and thereby close the meeting.62 Several agencies have also established the practice of closing 59. 5 U.s.c. § 552(b)(5) (1970). 60. Of approximately 423 meetings closed in whole or in part announced in the Federal Register during the three month period, 67 relied on exemption 5. See note 50 supra. 61. Aviation consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974), appeal docketed, civ. No. 75-1086 (D.C. cir., Feb. 3, 1975); Don't Tear It Down, Inc. v. Sampson, Civ. No. 74-381 (D.D.C., April 16, 1974); Nader v. Dunlop, 370 F. Supp. 177 (D.D.C. 1973); Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973). The most recent is Wolfe v. Weinberger, Civ. No. 74-454 (D.D.C. Oct. 31, 1975). 62. This seems to have been what the Department of Commerce did in Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974). In its appellate brief (at 4), the government admits that even though it does not believe that a written memorandum was necessary in order to close the meeting on the basis of exemption 5, it took the "precautionary measure" of preparing a memorandum to make certain that they were complying with FACA. The court in Gates also recognized the possibility of this abuse. The court stated, "To allow the `concerned with' language to be so broadly construed would allow the sponsoring agencies to close all advisory committees to the public by placing some `internal matters' on the agenda." 366 F. Supp. at 799. PAGENO="0545" ~539 1975] FEDERAL ADVISORY COMMITTEE ACT 65 meetings because a written transcript of the discussion would fall within exemption five; those agencies argue that it is essential to close the meeting "to protect the free exchange of internal views and to avoid undue interference ~ith the operations of the Council,"63 or in order to have "frank and open discussion"64 or to protect an "exchange of opinions of the Subcommittee members and internal deliberations and formulation of recommendations."65 When it 63. Determination made on July 19,1974, by Robert R. Garvey, Jr., Executive Director, Advisory Council on Historic Preservation, to close a portion of meetings of the Council on August 7 and 8, 1974. See also 39 Fed. Reg. 39,110 (1974), where a notice states that a Veterans Administration Advisory Committee meeting will be closed because "ExemptionS (5 U.S.C. § 552(b)(5)), of the Freedom of Informa- tion Act, protects the candid exchange of views anticipated in this subcommittee's deliberations." 64. 40 Fed. Reg. 1753 (1975). 65. 39 Fed. Reg. 35,701 (1974). The~fdllowing explanation was given for invoking exemption 5 to close an "executive session" meeting of the Civil Service Commis- sion's Advisory Committee on Federal Pay: The Committee consists of experts in the field of labor relations and pay policy; since they are generally recognized for their impartiality, their initial views may well be diverse. In order to facilitate the development of consensus recommendations, the members must be free to take tentative and subjective positions, to be frank and candid about their views, to negotiate, make as- sumptions, and reach conclusions árguendo. Only in a closed meeting can the Committee have this freedom because an open meeting would inhibit mem- bers; it would encourage complete consistency across numerous issues, which militate against bargaining and compromise. These deliberations of the Committee are analogous to the development of policy within an agency exercising specific functions. The development of policy frequently involves a similar exchange of viewpoints and ideas which would be inhibited by public disclOsure. 39 Fed. Reg. 31,544 (1974). These explanations originate from the 0MB Guidelines which provided the agen- cies with a series of rationales that permitted or encouraged agencies to disregard FACA's open meeting requirements and to invoke exemption 5 at will. This section, which provided in pertinent part as follows, is no longer in effect: (C) If a meeting will be such that neither (A) nor (B) above furnishes a basis for closing it, the meeting shall be open to the public (unless paragraph lOa(3)(c)(i) relating to national security applies): Provided, That such a meeting (or portion of a meeting) may be closed if the agency head, or the Director (in the case of a Presidential advisory committee) determines that the meeting (or portion) will consist of an exchange of opinions, that the discussion if written would fall within exemption (5) of U.S.C. 552(b) and that it is essential to close such meeting (or portion) to protect the free exchange of internal views and to avoid undue interference with agency or committee operation. 0MB/Department of Justice Memorandum on Implementation of the Federal Ad- visory Committee Act, supra note 40, § 10(c)(iii)(C). 70-426 0 - 76 - 35 PAGENO="0546" 540 66 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 passed the Act, however, Congress made the basic policy decision that to whatever extent "open meetings" conflicted with "frank and open discussion," openness was more important. It is totally beyond the lawful powers of a bureaucrat to reverse these priorities. Allow- ing an agency to close meetings because of the alleged inhibiting effect of open meetings would enable the exemption to swallow the rule and emasculate FACA. For these reasons, the unanimous judicial view that exemption five is inapplicable to FACA should not be surprising. In Gates v. Schlesinger the Department of Defense argued that its Defense Ad- visory Committee on Women in the Service (DACO WITS) was itself an agency or part of an agency, and sought to protect an "exchange of views in policies"66 which, if written, would fall within exemption five. The court responded that DACOWITS did not fit the defini- tion of an agency and that the committee was not an internal organ, but, by its very nature, a group of "outsiders" called upon because of their expertise to offer views and comments that would be un- available within the agency. The opinion voices the concern that an acceptance of the Defense Department's broad interpretation of exemption five "would clearly fly in the face of Congressional in- tent."67 More recently, the court expanded the temporary injunction into permanent relief, declaring that exemption five "cannot be used to prohibit plaintiffs and the public from attending and ap- pearing before any DACO WITS meeting or session."68 The court in Nader v. Dunlop69 likewise found that the Cost of Living Council's use of exemption five to hide discussions of the Food Industry Advisory Committee, the Food Industry Wage and Salary Committee, and the Health Advisory Committee was incom- patible with FACA and concluded that it "would not allow the door to close on these meetings when Congress has expressly ordered the door be open except on the rarest occasions."7° 66. 366 F. Supp. at 798. 67. Id. at 799. 68. Civ. No. 73-1864 (D.D.C., June 18, 1974). 69. 370 F. Supp. 177 (D.D.C., 1974). 70. Id. at 179. Two former senior officials of the Cost of Living Council (the defendant in Nader v. Dunlop) have recently authored a law review article which is critical of that and other similar decisions. Perritt and Wilkinson, Open Advisory Committees and The Political Process: The Federal Advisory Committee Act After Two Years, 63 GE0. L.J. 725 (1975). They suggest that exemption 5 need not be given an all or nothing interpretation - either allowing the closing of all meetings or being unavailable as a justification for closing any meetings. Instead, they pro- PAGENO="0547" 541 1975] FEDERAL ADVISORY COMMITTEE ACT 67 In Don't Tear It Down, Inc. v. Sampson7' the court rejected the Advisory Council on Historic Preservation's reliance on exemption five to close its meetings and brdered production of the tape record- ing and transcripts of a closed executive session.72 In Aviation Con- sumer Action Project v. Washburn73 the Department of Commerce Travel Advisory Board was prohibited from invoking exemption five as a basis for closing any of its meetings or to protect an intra- agency memorandum which was voluntarily disclosed by the agency to an advisory committee.74 Each of these opinions is a district court opinion. The government has, however, decided to appeal Aviation Consumer Action Project. If the District of Columbia Circuit follows the lower court decisions, the government will have an even weaker claim for invoking exemp- tion five than at present. B. The Ad Hoc and ~lnforma1 Subgroup Dodge Statistics showing that almost half the meetings are still closed in whole or in part do not, however, fully reveal the extent to which FACA has been ignored. Statistics are based on known meetings. fess faith in the ingenuity of courts in making delicate distinctions. Unfortunately, they failed to suggest any discernable basis for making such distinctions, except perhaps the importance of the committee's discussions to the agency's decision- making process. Id. at 744-45. 71. Civ. No. 74-381 (D.D.C., April 16, 1974). 72. The court neatly summarized the reasons for rejecting the agency's exemption 5 defense: First, it would seem that the A~1visory Council [on Historic Preservation] is not an agency within the meañiñg of [FOIA] cases cited by defendants. Second, the Council was under an obligation to meet in open rather than closed session pursuant to the Federal Advisory Committee Act, 5 U.S.C. Appendix I, § 10 (a)(1). It is the conclusion of this court, that where the Advisory Council has met in closed session, plaintiffs are entitled to the tape recording of those proceedings. This conclusion is supported by § 11 of the Advisory Committee Act, which requires advisory committees to make avail- able to any person transcripts of meetings. Id. 73. Civ. No. 73-1838 (D.D.C., June 18, 1974). 74. Id. In response to a number of specific abuses, the district court broadly declared that the Department of Commerce can not close any advisory committee meetings on the basis of exemption 5; before closing meetings on other grounds it must publish in the Federal Register a written determination of its reasons; all meetings must be announced in the Federal Register at least 30 days before the meeting; and a verbatim transcript must be kept of all meetings of the Travel Advisory Board. PAGENO="0548" 542 68 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 Some groups do not even bother to publish an announcement in the Federal Register, oftentimes because they consider themselves "merely" subcommittees or groups not subject to the Act. Two cases have squarely held that the Act embraces more than those committees "established" by the Executive Branch or com- mittees dealing regularly with the Executive. In Aviation Consumer Action Project v. Yohe75 the district court declared an ad hoc CAB meeting with airline representatives, called to deal with but one specific problem, to be subject to the notice and openness require- ments of the Advisory Committee Act, and enjoined CAB from holding such unannounced meetings in the future. The court in Food Chemical News76 held that the two separate "informal" ad hoc meetings between Treasury Department officials and consumer and distilled spirits industry representatives were meetings of "advisory committees" utilized to obtain advice within the meaning of section 3(2) of FACA and that they were therefore subject to the Act. In- deed, any other result would fly directly in the face of the statute which includes in the definition of advisory committee "any com- mittee . . . panel. . . or other subgroup thereof. . . which is. utilized by one or more agencies in the interest of obtaining advice or recommendations. . . . C. Restricted Access Techniques The statistics also veil the subtle practice of restricting access to a meeting which on its face appears entirely open. Phrases such as "attendance is limited to space available"78 - which in many cases is clearly inadequate - and "facilities and space for accommodat- ing members of the public are limited, and persons will be accom- 75. Civ. No. 73-707 (D.D.C., June 24, 1974). 76. Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048 (D.D.C. 1974). 77. In Nader v. Baroody, Civ. No. 74-1675 (D.D.C., June 23, 1975), however, the district court found that regular meetings held between the President and various groups representing different segments of society were not advisory meetings within the meaning of the Act. The case is distinguishable from the others in that it involved meetings which the district court determined were held not for any spe- cific purpose or to deal with a specific problem but rather for the general purpose of enhancing communications between the Executive and the public. Some of the meetings ended without advice being given or recommendations being made. Also, in Lombardo v. Handle, Civ. No. 74-431 (D.D.C., July 28, 1975), the dis- trict court held that the Committee on Motor Vehicle Emissions does not come under FACA's coverage since it advises the National Academy of Science, a private entity expressly found not to be an agency of the United States Government. 78. 40 Fed. Reg. 7478 (1975). PAGENO="0549" 543 1975] FEDERAL ADVISORY COMMITTEE ACT 69 modated on a first-come, first-served basis"79 often appear intended to, and in fact do, discourage public participation. Moreover, the location of a meeting in a restricted area such as the Executive Office Building, State Department or Pentagon further serves to reduce public attendance.8° 79. 39 Fed. Reg. 38,264 (1974). 80. A notice was given that the meeting of the Department of the Army Advisory Committee on Women in the Service was to be held in the Pentagon and that persons wishing to attend had to calF at least five days in advance to arrange an escort to meet the members of the public and take them to the meeting. When a call was made requesting an escort, callers were told that no escorts would be available. Oversight Hearings on Public Law 92-463 Before the Subcomm. on Budgeting, Management and Expenditures of the Senate Comm. on Gov't Operations, 93d Cong., 1st & 2d Sess.(1973-1974) (testimony of Ronald L. Plesser) [hereinafter cited as Oversight Hearings]. Senator Metcalf relates the following incident about the efforts of two of his staff members to gain admittance to a ~`public" advisory committee meeting of the Energy Research and Development Advisory Council: A notice appeared in the October 10, 1973 Federal Register announcing a meeting of the Energy Research and Development Advisory Council to be held on October 11, 1973, in the Old Executive Office Building for the pur- pose of discussing matters related to national energy research and develop- ment policy programs. Members of the public would be admitted "up to the limits of the capacity of the meeting room" and were requested to inform the Executive Secretary of the Advisory Council prior to October 11 of their intention to attend. 38 Fed. Reg. 27,955 (1973). Vie Reinemer and E. Winslow Turner, staff director and chief counsel, respectively, of Sen. Metcalf's Subcommittee on Budgeting, Management and Expenditures learned of the meeting on October 11, whereupon they telephoned the Council's Executive Secretary. Even though they were told that no seats would be available at the meeting, they went over to the Execu- tive Office Building. When they arrived at the meeting room, Messrs. Reinemer and Turner showed their Senate credentials to the officers of the Executive Protective Service. They were once again denied admittance and were told to call the Executive Secretary's office. When they did this, they were told that he was in a meeting room which had no phone (although there was in fact a phone in the room) and that the meeting which had begun at 11:15 had been adjourned (at 11:25), although it had not been adjourned. While Mr. Turner called Mr. Hawley, the Director of OMB's Committee Management Secretariat, Sergeant Fioramanti of £he Executive Protective Service questioned Mr. Reinemer about bothering the Executive Secretary's secretary with phone calls and - while a plainclothesman loaded his revolver in the background - emphasized that the Old Executive Office Building was one place in town where no public meetings were held; if anybody had called a public meeting there their intention undoubtedly was to not have the public attend. By noon - 45 minutes after they had arrived for the 11:15 PAGENO="0550" 544 70 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 Similarly, the meeting may be held in a totally inaccessible p1a~e despite OMB's requirement that meetings be held in places "rea- sonably accessible"81 and convenient to the interested public. "Pub- lic" meetings have been held in the Exxon Building in New York and the U.S. Steel Building in Pittsburgh where access is restricted and a pass required for entry. When the author telephoned the Advisory Committee Officer at the National Endowment for the Arts to protest the closing of almost all of its meetings, she was informed that she was welcome to attend one of its rare open meet- ings, to be held in Puerto Rico.82 Likewise, a Council on Environ- mental Quality Committee meeting was held in the convenient and "reasonably accessible" place of Dusseldorf, Germany.83 And, in what is a most lucid illustration of the evils the Act was designed to avoid, a subcommittee of the National Industrial Pollution Con- trol Council met on Mr. Evinrude's yacht.84 - Finally, another problem hidden by the figures deals with the meeting - Mr. Reinemer and Mr. Turner were admitted to the meeting through the personal intercession of Mr. Hawley. Chairs were available. See 119 Cong. Rec. S 19,371 (daily ed. Oct. 18, 1973) (remarks of Senator Metcalf). 81. Section 8(c)(1) of 0MB Guidelines, supra note 43, requires that advisory committee meetings be held at a "place that is reasonably accessible to the pub- lic." 82. Telephone interview with Mrs. Luna Diamond, Advisory Endowment for the Arts; see Will, The Arts: Paying the Piper, Wash. Post, Nov. 5, 1974, § A, at 19, col. 1. 83. 39 Fed. Reg. 37,807 (1974). The CEQ's choice of Dusseldorf as a meeting place seems to be illustrative of its attitude towards the spirit of open government embodied in FACA. Recently, a notice appeared in the Federal Register, announc- ing a meeting of CEQ advisors to be held on February 14, 1974, 8 days after the announcement. Part of the announcement merits reproduction, because it typifies the bureaucratic technique of discouraging public attendance and ignoring the spirit of the FACA. A limited number of seats - approximately 10 - will be available to observers from the press and public on a reserved, first-come basis. Requests to attend this meeting must be submitted in writing or by telephone no later than Thursday, February 13, 1975, to Lawrence N. Stevens, Executive Direc- tor, Citizens' Advisory Committee on Environmental Quality, 1700 Pennsyl- vania Avenue, NW, Washington, D.C. 20006, telephone (202) 233-3040. Oral statements or questioning of Committee members or other participants by observers in attendance at the meeting will not be permitted. Members of the public may file written statements with the Committee before or after the meeting. 40 Fed. Reg. 5556 (1975). 84. Oversight Hearings, supra note 76, at 88 (report of Professor William E. Rodgers, Jr., Professor of Law at Georgetown University Law Center). PAGENO="0551" 545 1975] FEDERAL ADVISORY COMMITTEE ACT 71 ability of a committee, through manipulation of the agenda of a partially closed meeting, to effectively exclude the public from deci- sionmaking. Where a meeting is announced as partially open, the open portion, perhaps one half hour, may involve such "vital" mat- ters as "plans for future meetings" or "administrative reports."85 Another practice is that used by several Department of Commerce committees and the Advisory Council on Historic Preservation. These committees appear to have completely open meetings; for example, there may be public discussion of agenda items one through five and only item six will be closed. In fact, item six is merely a private executive session discussing items one through five.86 Is there any question~ that under these circumstances, the public participates in nothing of substance when recommendations and advice are formulated? D. Games Between Agency Staff and Committee Members Other examples further serve to illustrate the exceptional reluct- ance of our federal agencies~ and departments to comply with the Act. After a strict policy of àlosed meetings and much pressure to open up meetings, the Civil Service Commission's Federal Pay Council announced that its meetings were henceforth to be open. When the author arrived at the first scheduled open meeting, she found a sign at the door announcing that the meeting was cancelled. Following several unconvincing explanations, several announce- ments of open meetings, and several cancelled meetings, the author discovered that the committee members refused to meet in the open and that there would be a return to a closed meeting policy. In other instances, while agency staff insisted that committee members wanted closed and uninhibited deliberations, committee members confided that they had no objection whatsoever to open meetings; rather, it was agency staff who wanted closed meetings.87 85. 39 Fed. Reg. 37,084 (1974). 86. See, e.g., 39 Fed. Reg. 26,773(1974): "The Council will receive reports and statements on the `undertaking in open session and then formulate its comments in executive session. The executive session will be closed to the public 87. An interesting example of this phenomenon is reported in the testimony of Ronald L. Plesser, Oversight Hearings, supra note 80, at 64. Mal Schecter, the editor of Hospital Practice magazine, asked to attend a closed meeting of the Tuskegee Syphilis Advisory Committee. The committee had been created in re- sponse to public outrage over the discovery that for 40 years the United States Health Service had been conducting a study of several hundred black males suffer- ing from syphilis; the Service deliberately left them untreated although an effective PAGENO="0552" 546 72 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 Another problem, which has been referred to as an agency's "cav- alier" use of its advisors,88 deals with the agency practice of ignoring unfavorable advice. One of the purposes of the Advisory Committee Act is to insure that recommendations of committees are not ig- nored. A recent issue before the Food and Drug Administration required deciding whether to continue a moratorium on the Dalkon Shield, an intrauterine device, whose use had been linked to deaths, infections and spontaneous abortions. An advisory panel urged the FDA to continue to ban the shield's distribution until better data on its safety were gathered. In rejecting this advice, FDA Commis- sioner Dr. Alexander Schmidt said, "We can only get the answers by continued use of the device,"89 which he then approved. One of the panel members, a doctor, then resigned because he felt that the panel's recommendation made no impact on Dr. Schmidt.9° cure had been available for decades. Schecter was told he could not come, but after losing a court fight to gain entry, he decided to go to the meeting room anyway. As the members were coming in, he explained what had happened. They were mystified because they knew of no reason for closing the meeting, and Schecter was invited in. The Chairman of the meeting, an NIH official, announced that although the rest of the Committee had wanted the meeting open, he wanted the meeting closed. He then left the chair, saying he could riot proceed with an open meeting. The meeting continued with another government official presiding. A variation of this phenomenon was related by Stanley Cohen, the Washington editor of Advertising Age magazine, and Mark Lynch, an attorney for the Freedom of Information Clearinghouse, at the Clearinghouse's Freedom of Information Con- ference on February 6, 1975. Mr. Cohen told of his concern with an advisory com- mittee to the Federal Trade Commission that had frequently met in secret with the Grocery Manufacturers of America. When Cohen learned that a meeting was beginning he promptly sent a reporter to the place of the meeting. The reporter was denied admittance and when he attempted to enter by turning the doorknob, he was physically pulled away from the door. Mr. Lynch, who was at the meeting with other representatives of consumer groups, stated that when the people inside the room were told (at the end of the meeting) about the Advertising Age reporter being barred, they were appalled and asked that any future meetings be open. 88. Wash. Post, Jan. 17, 1975, § A, at 3, col. 4. 89. Id. 90. Id. At a hearing conducted by Senator Edward M. Kennedy, similar charges of ignoring advisory committee recommendations were leveled. Several FDA scien- tists and outside advisors charged that the FDA's top echelon always supported them when they recommended approval of new medicines but commonly harassed and intimidated them when they questioned the safety or effectiveness of new drugs. They reported that the disapproval of FDA officials frequently took the form of alteration of records, secret meetings with pharmaceutical manufacturers and transfer of the scientist - sometimes at the instigation of the companies. One advisor said he was convinced that all of the deliberations of his advisory commit- PAGENO="0553" 547 1975] FEDERAL ADVISCRY COMMITTEE ACT 73 E. Inaà~equate Notice As stated above, the Act requires timely notice of a meeting. Statistics reveal that approximately 24 percent of all notices of meetings placed in the Federal Register during the three month period August - October, 19~?4, fell short of the 15-day advance notice presently required by 0MB guidelines,9' and also far short of the 30-day period required by two court decisions.92 When the notice is given on the day of the meeting, or the day after,93 it is exception- ally difficult to attend. F. Minutes Frequently, the "detailed minutes" required by the Act94 turn out to be not detailed at all, and may not even be available. The Con- sumer Advisory Council of the, Office of Consumer Affairs has not, as of this writing, prepared the minutes for any meetings held dur- ing 1974. In one case, there was a delay in printing minutes because they had to be "sanitized."95 Another technique is to keep two sets of "official" minutes - an expurgated set for the public and another for the committee's private use. The best remedy may be a court order that verbatim transcripts be kept.96 G. ImbalanOed Representation Despite the provisions of the Advisory Committee Act97 and re- peated promises by 0MB to make concerted efforts to attain a reasonably balanced representation, "fair balance" remains an un- tee about an Abbott Laboratories drug~ were being leaked by an FDA official to the company. Id., Aug. 16, 1974, § A, at 1, col. 6. 91. 0MB Guidelines, supra note 43, § 8(b)(3). 92. Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C.,~ Sept. 10, 1974); Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973). Approxi- mately 220 of 932 notices of meetings during the three months from August to October, 1974, gave less than 15 days notice. See 39 Fed. Reg. 27,787-37,049 (1974). 93. See, e.g., 39 Fed. Reg. 29,620 (1974), announcing a meeting of the Federal Energy Administration's Electric Utilities Advisory Committee that was held on August 15, 1974: 94. 5 U.S.C. App. I, § 10(c) (Supp. III, 1973). 95. Telephone conversation with secretary, National Institutes of Health Jan. 15, 1975. 96. Aviation Consumer Action Projectv. Washburn, Civ. No. 73-1838 (D.D.C., Sept. 10, 1974). 97. 5 U.S.C. App. I, § 5(b)(2) (Supp. III, 1973). PAGENO="0554" 548 74 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 attained statutory goal. Chester Warner, former director of 0MB Committee Management Secretariat and certainly a person in a position to know, reports that the majority of federal advisory com- mittees do not have balanced representation.98 This is not surprising in light of the prevalent feeling in federal agencies and departments that the consumer point of view need not be represented. The direc- tive in the Act for "balance" is interpreted by those holding this view to mean geographical, racial or sex distribution without any regard for the special interest or point of view represented. For example, almost all of the 155 members of the prestigious and influential National Petroleum Council, which has a strong hand in setting the nation's oil policy, are closely tied to the oil industry. The list of its members includes top executives from the oil indus- try, with officers of the Gulf, Conoco, Shell, Sun and Ashland oil companies, but until January, 1975 not one "consumer representa- tive."99 In defending the composition of the NPC against the claim 98. C. Warner, The Committee Management Secretariat, Office of Management and Budget 15 (1975) [hereinafter cited as Warner, Committee Management]. This special report, submitted to Senator Metcalf's subcommittee on Budgeting, Management, and Expenditures, was written after Mr. Warner resigned as Director of the 0MB Committee Management Secretariat. In it he discusses the findings of a survey he made when he took over the directorship, the violations of the Act he discovered, his accomplishments and failures as Director, and recommendations to his successor. 99. Controversy over the National Petroleum Council began several years ago when Congress started to investigate the advisory committee system. Since that time, Senator Lee Metcalf, the chief architect of the Advisory Committee Act, has consistently raised questions about the status, influence and membership of the NPC. Despite several letters from him to the Secretary of the Interior and the Director of 0MB voicing these concerns, on September 10, 1974, Secretary of the Interior, Rogers C.B. Morton, appointed 21 new members to the NPC, all of whom had close ties to the oil industry. In defending this imbalance, Council officials claimed that the Council was only a technical body. However, it has produced impressive reports that were not limited to technical advice. In any event, there is no proviso to FACA exempting from its coverage advisory committees which are "technical bodies." The recent resignation of Chester Warner, Director of the Committee Manage- ment Secretariat at 0MB, once again brought the NPC into the news. See Wash. Star-News, Jan. 30, 1975, § A, at 12, col. 1. In resigning, Warner charged that 0MB Director Roy Ash and his deputy were acting illegally in approving continuation of the NPC and that the Council was probably operating illegally. Warner related the following chronology: At 4:00 p.m. on December 31, 1974, the date the NPC Charter was to expire, an assistant secretary of the Interior Department called Warner and informed him he had the required plan for continuing the NPC en route to 0MB and was working on a list of names for broadening membership on PAGENO="0555" ~549 19751 FEDERAL ADVISORY COMMITTEE ACT 75 that the Interior Department had failed to comply with the fair balance provisions of the Act,~ an Assistant Interior Secretary said, "The law does not tell us whether it means balance within the industry or balance in the society."°° In other words, fair balance required equal representation of Exxon, Mobil, Gulf, Shell and other oil companies. The harm resulting from the imbalance of the NPC is augmented by the fact that the few open meetings which the NPC does have are usually ceremonial. The sUbstantive work is completed in sub- the Council. The letter arrived at 5:28 p.m., but Warner claimed the plan did not contain provisons for balanced membership and that there was no time to consider the affiliations and backgrounds of the proposed new members. He therefore re- fused to approve continuation of the Council. The assistant secretary then con- tacted the deputy director of 0MB who approved its continuation by telephone. In defending OMB's actions, the d~puty director said that 0MB had followed the law and was not going to be "bureaucratic on enforcement just because it was on the eve of a national holiday." Id. In fact, however, section 7(a) of 0MB Guide- lines, Circular No. A-63 as revised by Transmittal Memorandum No. 1, July 19, 1974, requires that agencies submit their plans to renew advisory committees at least 30 days before the committee's charter expires. Thus, the plans submitted at 5:28 on December 31 were one month late. Warner implied that the law was bent to save the NPC because of the prestige of its members: "The National Petroleum Council was granted special consideration and is the only advisory committee granted concurrence in this manner." Id. Had the Council been allowed to expire and had Interior attempted to recreate it, the Council's charter would have been open to complaints by consumer and environmental groups and other oil industry critics. Its continuation avoided these problems. As a result of the controversy over NPC membership, on January 6, 1975, Secre- tary of Interior Rogers C.B. Morton announced the appointment of 22 new mem- bers to the NPC. Among the individuals representing interests other than those of the petroleum industry are: Andrew J. Biemiller, Director, Department of Legisla- tion AFL-CIO; Charles F. Bulotti, Jr., Président of the American Automobile Asso- ciation; Ed Carlson, Chairman of the Board of United Airlines; Ruth C. Clusen, President, League of Women Voters; Frank E. Fitzsimmons, President of the Inter- national Brotherhood of Teamsters; Robert Gilkeson, Chairman of Edison Electric Institute; John G. Winger, Vice President of the Chase Manhattan Bank of New York; and Charles Wyckoff, President of National Rural Electric Cooperative Asso- ciation. It should be noted, however, that despite the unsatisfactory nature of the NPC's consumer representation, the 22 recent appointees include three environ- mentalists and three persons with academic backgrounds. The legality of the NPC's continuation and structure is now in the courts since Senator Metcalf filed a suit in March, 1975 to stop the Interior Department and the Federal Energy Administration from obtaining advice from the NPC. Metcalf v. National Petro- leum Council, Civ. No. 75-0397 (D.D.C., filed March 21, 1975). 100. Jack W. Carlson, Assistant Secretary of the Interior for Energy and Miner- als, quoted in Wash. Post, Sept. 10, 1974, § A, at 4, col. 4. PAGENO="0556" 550 76 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 committees and task forces that frequently convene without public notice and have been known to meet in oil company offices in Hous- ton and San Francisco.'°' The Council's 26-member staff and $1.2 million budget are supported entirely by "voluntary" contributions from oil company members. The NPC, which has been praised by Secretary of the Interior Rogers C.B. Morton as "a pillar of strength,"102 has been charged by several critics with indirectly mak- ing public policy because of its control over much of the information on which that policy was based.'°3 The need for balanced representa- tion could hardly be more acute. H. Record-Keeping and Reporting Requirements Neglect also characterizes FACA's reporting requirements. The Act makes the Library of Congress a depository for advisory com- mittee charters, reports and background papers.'°4 The purpose of this requirement is to centralize advisory committee documents so as to permit the public and the Congress to be fully informed about the current affairs of advisory committees. A visit to the Library by the author to obtain certain advisory committee documents re- vealed two cardboard cartons on the floor containing all advisory committee documents that had been received. There was no index, alphabetical arrangement, or logical order to this collection. Fol- lowing several protests and a letter from Senator Metcalf to the Librarian,105 the situation changed to the extent that the material contained in the cardboard boxes has been moved to the Rare Books section of the Library and is now arranged by agency. This "im- provement" helps very little since there are usually scores of com- mittees for each agency. Thus, the public's right to know what is going on, a right explicitly conferred by statute, has been effectively destroyed by improper administration. The Library of Congress is not the only entity charged under FACA with a reporting responsibility that has failed to execute it. Neglect also finds its way into the highest level of govern- 101. Minneapolis Tribune, Feb. 16, 1975, § B, at 9, col. 6. 102. Secretary of Interior Rogers C.B. Morton, quoted by David Kuhn, id. at col. 7. 103. For discussion of the National Petroleum Council's influence in setting the nation's oil policy see Isaacs, The Oil Lobby: Image of Vast Power, Wash. Post, Jan. 8, 1975, § A, at 1, col. 4. 104. 5 U.S.C. App. I, § 9(c) (Supp. III, 1973). 105. Letter from Sen. Lee Metcalf to L. Quincy Mumford, Librarian of Congress, Sept. 26, 1974. PAGENO="0557" 551 1975] FEDERAL AD½SORY COMMITTEE ACT 77 ment - the Executive Office of the President. For example, one of the President's functions under the Act is to make a report to the Congress within one year after a presidential advisory committee has submitted a public reportto him.'°6 Not one such report has been submitted either by the President or by agency heads to whom some of his reporting responsibility has been delegated.'°7 Even the President's Annual Report to the Congress on the activities, status and changes in the compositiOn of advisory committees in existence during the year108 does not comply with the Act's requirements.'°9 Furthermore, agencies and ~Iépartments are neglecting their own reporting responsibilities, which include reporting on each advisory committee in order to furnish~ the raw data for OMB's comprehen- sive review and the President's ~Annual Report."° Mr. Chester War- ner described the situation that existed in the Committee Manage- 106. 5 U.S.C. App. I, § 6(b) (Supp. III, 1973). 107. Warner, committee Management, supra note 98, at 10-11. 108. 5 U.S.C. App. I, §6(c) (Supp. III, 1973). 109. The President has delegated responsibility for preparation of the Presi- dent's Annual Report to the Administrator of the General Services Administration.' Exec. Order No. 11,769, 39 Fed. Reg. 7125 (1974). The Act requires the Annual Report to contain detailed information about each advisory committee, such as the date of and authority for its creation, its termination date, its functions, a reference to the reports it has submitted, the dates of its meetings, the names and occupa- tions of its members and its annual operating cost. The report also is required to include a list of those advisory committees abolished by the President and, in the case of committees established by statute, a list of those committees which he recommends be abolished and his reasons therefor. This report is due not later than March 31 of each calendar year. 5 U.S.C. App. I, § 6(c) (Supp. III, 1973). The Second Annual Report of the President, submitted in June, 1974, totally fails to provide the extensive and detailed information required. The report is a mere listing of committee names, the~departments they advise, names of commit- tee management officers and some summary data arranged by department and agency. It does not deal with individual committee data and, although useful as a central index, it does not comply with the law. Significantly, the Second Annual Report, prepared by GSA, consists of less than 100 pages, ~i1 contrast to the five volume, several thousand page printing of the data contained in the First Annual Report and put together by Senator Metcalfs Subcommittee on Budgeting, Man- agement and Expenditures. The Third Annual Report, just issued, is comparable to the Second. - 110. The Act requires the Director of 0MB to conduct an annual comprehensive review of the activities and responsibilities of each advisory committee and dictates that agency heads cooperate with the Director in making the reviews required by the section. 5 U.S.C. App. I, § 7(b) (Supp. III, 1973). Section 10 of the 0MB Guidelines deals with comprehensive agency reviews of each advisory committee and requires that the results of the review be included in the annual report to GSA. PAGENO="0558" 552 78 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 ment Secretariat, 0MB, on March 28, 1974, when he was appointed its director: 1) Committee Management Secretariat had received only 31 an- nual reports of the 54 due from the agencies no later than February 1, 1974. These reports were necessary for the Committee Management Secretariat to prepare the President's Second Annual Report to the Congress, due no later than March 31, 1974. 2) Some agencies, when called about the missing reports, had no committee management officers, did not know about the annual report and had never heard of the Federal Advisory Committee Act. 3) The Committee Management Officer of the Small Business Administration said he could not submit a report for several months. The President's Second Annual Report to the Congress was submitted with only the SBA's estimates of what its advisory com- mittees did in 1973.111 In addition to the general reporting requirement placed on each agency, FACA directs that where an advisory committee has made a determination to close a meeting, the committee shall issue a report at least annually setting forth a summary of its activities and related matters so as to be informative to the public."2 An experience with the Art Advisory Panel to the Commissioner of Internal Revenue is illustrative of the state of affairs with respect to these annual reports and is yet another example of how the pub- lic's right to know under FACA remains a fiction. The Art Advisory Panel consists primarily of representatives of the art com- munity - art dealers, museum directors, academics - who de- termine, in closed session, the fair market value of art objects. The author requested an annual report from this group for four months, but after the Panel sent several letters informing her that the re- quest must go through proper channels, it turned out that the report did not exist. The report for meetings held in 1973 appeared several months later - almost a year overdue and with little information shedding light on the closed meetings. 111. Warner, Committee Management, supra note 98, at 2-3. With respect to compliance with the Act, Warner found large scale violations and much disorder: over 1,250 advisory committees in 56 agencies with over 23,000 members; a sub- stantial overlap and duplication of responsibilities; imbalance on a majority of the committees; unchartered groups holding meetings; and violations of other provi- sions of the Act. Id. at 15. 112. 5 U.S.C. App. I, § 10(d) (Supp. ifi, 1973). PAGENO="0559" 553 1975] FEDERAL ADVISORY COMMITTEE ACT 79 I. Abdication: of Responsibilities Upon being placed in charge Of a department's advisory commit- tees, one committee management officer was told by an Assistant Secretary of his agency that his advisory committee work should not "interfere with his regular work."113 This attitude exemplifies a prevalent default on the policy and decisionmaking level of the government with respect to the Advisory Committee Act. This abdi- cation is further reinforced by an across-the-board nonperformance of responsibilities delegated under the Act. Between March 28, 1974, aiid June 10, 1974, Mr. Chester Warner in his capacity as Director of the Committee Management Secretar- iat, 0MB, personally ran a survey of advisory committee manage- ment in the Federal Governm~ent. The findings in the survey were basically as follows: 1) Congress had no advisory committee management system. There was little or no knowledge of advisory committee manage- ment among the staffs of standing committees of both the Senate and the House having legislative jurisdiction over the various advisory committees.'14 2) The President and the White House staff had no committee management system. There was little or no knowledge of advisory committee management on the White House staff."5 Among other specific violations, the President has created several advisory com- mittees which were incorrectly determined to be outside of the advi- sory committee process. In appointing committee members, the President has given little or no consideration to fairly balancing the memberships in terms of the points of view represented and the functions to be performed."6 The survey showed that the biggest problem in administering the Act was the total lack of interest and knowledge on the Cabinet and, sübcabinet level. The decisionmak- 113. As related by Chester Warner at, the Freedom of Information Conference, February 6, 1975. 114. Warner, Committee Management, supra note 98, at 4. The exception to the congressional default is Senator Metcalf's Subcommittee on Budgeting, Manage- ment and Expenditures. The Subcommittee, under the direction of Vic Reinemer, has performed its oversight functions vigorously and thoroughly. 115. The President has delegated the ~ vested in him by FACA to the Director of 0MB. Exec. Order No. 11,769, 39 Fed. Reg. 7125 (1974). However, the President creates advisory committees, appoints members to these committees, and appoints members to certain advisory committees created by the Congress. 116. Warner, Committee Management, supra note 98, at 4-5, 9. PAGENO="0560" 554 80 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 ers did not know and did not care about complying with the Act; their general opinion was that all advisory committees should be abolished."7 3) There was little or no knowledge of advisory committee man- agement in the Office of Management and Budget. The general attitude of the policymakers at 0MB was one of ignorance of and indifference to advisory committees."8 4) Although most of the expertise on committee management operations that did exist was found in the advisory committee man- agement officers of individual agencies and departments, many offi- cers and staffs knew very little about such management."° Many agencies had not written management regulations, had no system for management, had not defined and chartered subgroups as advi- sory committees and did not publish proper justifications for closed meetings. 120 This brief examination of the problems and issues that have ari- sen during the two-year life of the Act points toward massive non- compliance with the law. Court decisions support the conclusion that the Government's view of the Act is too cramped.'2' Of six 117. Id. at 6. 118. Id. at 5-7. 119. Id. at 5. 120. Id. at 11. 121. Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974), appeal docketed, Civ. No. 75-1086 (D.C. Cir. Feb. 3, 1975); Don't Tear It Down, Inc. v. Sampson, Civ. No. 74-381 (D.D.C. April 16, 1974); Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048 (D.D.C. 1972); Nader v. Dunlop, 370 F. Supp. 177 (D.D.C. 1973); Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973). The Gates case was handled by Professor Richard Wolf, who is deputy director of the Institute for Public Interest Representation; the other four cases were han- dled by attorneys for the Freedom of Information Clearinghouse. There are two unwritten opinions supporting nonapplication of the Act. A Cali- fornia court, in an unexplained oral decision, denied plaintiff access to the trans- cripts of the FDA's over-the-counter antacid drug panel. The court's decision was apparently based on the misconception that advisory committees are policymaking groups and relied on the incorrect impression that it was minutes, rather than transcripts, which were in dispute. Thus, apparently without realizing that the FDA had already made the minutes public, the court concluded that: "The min- utes of the meetings of the panel are clearly not matters that are subject to outside intrusion." Smart v. FDA, Civ. No. C-73-0118 RHS, tr. at 7 (N.D. Cal. April 24, 1974). The Federal Advisory Committee Act was held inapplicable to an ad hoc meeting at the White House. The court decided that the Administration was not going to receive either advice or recommendations at a proposed meeting with PAGENO="0561" 555 19751 FEDERAL ADVISORY COMMITTEE ACT 81 decisions holding the Government in violation, an appeal has been docketed in only one.'22 It is hoped that the failure to appeal repre- sents an acknowledgement of the correctness of those decisions rather than an attempt to minimize their importance as precedents. V. PROPOSED AMENDMENTS Two things should be apparent from this preliminary review of the Act. First, the Act itself embodies concepts which, if followed, will drastically curtail unnecessary secrecy in executive decision- making. Second, the two-year history of the Act has shown that despite its unequivocal objectives, more teeth are needed to realize these objectives. As is the case with many laws, experience points out where change in the law must be made. The following eight amendments are suggested: 1) There should be created or designated an adequately staffed independent agency, rather than 0MB, to serve as overseer for the Act with power to put teeth into its requirements. 0MB must take much of the blame for the 1Act~s failures since it has completely abdicated its responsibilitie~ under the Act and given the agencies little or no guidance. 2) Sanctions, such as a mbnetary penalty or mandatory suspen- sion for willful noncompliance, should be added to parallel the addi- tion of a sanctioning provision to the FOIA. This would also help deter the rubber stamp application of the FOIA exemptions. 3) The FOIA exemptions must be modified and tailored to advi- sory committees. Some, espe~ially exemption five, are incompatible with the policy of disclosing information within an advisory group. Specific exemptions applicable to advisory committees should be written in; the FOIA exemptions were created for documents, not committee deliberations. 4) A satisfactory way must be devised, short of going to court, to challenge the determinatidn~ of an agency bureaucrat to close a meeting. An informal and qüiëk appellate review procedure should be set up within the agency which would give an aggrieved party a automobile manufacturers and consequently held that it was not an "advisory" committee under the Act. Center~ for Auto Safety v. Morton, Civ. No. 74-1566 (D.D.C. Oct. 28, 1974), motion for summary review denied, Div. No. 74-1987 (D.C. Cir. Oct. 29, 1974). 122. Aviation Consumer Action PrOject v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974), appeal docketed, Civ. No. 75-1086 (D.C. Cir. Feb. 3, 1975). 70-426 0 - 76 - 36 PAGENO="0562" 556 82 THE AMERICAN UNIVERSITY LAW REVIEW [Vol.25:53 speedy and fair review of an adverse decision. Ultimately the Attor- ney General should be responsible for all decisions closing meetings in whole or in part, and where he approves a decision to close, he should be required to state his concurrence. Thus, an official respon- sible to the public, rather than an obscure bureaucrat, must be on record in favor of closing the door. 5) A verbatim transcript requirement should be imposed where deliberations take place in closed meetings so that courts can review as fully as possible the need to have a closed meeting and to mini- mize the danger of irreparable, public injury through the erroneous closing of a meeting. 6) A definite and enforceable balancing policy must be set, clearly defining the term "balanced membership," thereby avoiding a com- mittee as stacked in favor of one interest as the NPC has been. 7) The public notice provisions must be strengthened. The defini- tion of "timely notice" should require a minimum of 30 days ad- vance notice except in specific emergency situations. 8) In addition to the Federal Register announcement, committees should be required to provide other means of notice of meetings such as using a mailing list for interested persons and announcing in a newspaper at the place where a meeting is to be held. CoNcLusIoN It is fair to say that to date there has been minimal public aware- ness of advisory committee activities that take place behind the doors of very powerful executive departments and regulatory agen- cies. It should be obvious that for the Act to truly accomplish its objectives, the public's rights should be enforceable, and, equally important, the public must exercise its rights under the Act. News- papers, magazines, radio and television networks, all of which have so far shown little initiative in utilizing the Act, must participate in the advisory committee process. The decisionmaking process is secret either if the doors are closed, or, if open, no one comes in. Agencies and advisory committees must be made aware of public interest in their proceedings. Consequently, the public should be encouraged to attend as many advisory committee meetings as possible, to correspond with them and ask for information, records, minutes, reports and any other pertinent data. In addition, public interest groups clearly have an obligation to their constituents to remain informed and to play an active role in the process. Congress, in passing the Federal Advisory Committee Act, took PAGENO="0563" 557 1975] FEDERAL ADVISORY COMMITTEE ACT 83 the important first step in overturning the preference for secrecy which had come to characterize governmental decisionmaking. If the next step is now taken, then that neglected little brother may indeed turn out to be a prodigy with the extraordinary ability to make secrecy the exception, not the rule, in large modem govern- ment. PAGENO="0564" A powerful, yet largely anonymous arm of the Federal Govemment, is gen- erating a new rush of controversy in Washington. At issue are the hundreds of federal advisory committees that play a key role in policy maldng. What bothers many is their suddenly grossing number and potential for conflicts of interest. The advisory committees-panels made up of private citizens and Gov- ernment employes appointed to assist practically every federal agency-get involved in a bewildering variety of public concerns, ranging from tea last- ing to telecommunications. In just one month recently, advisory -sands were scheduled to consider mat- am such as 1976 farm-crop estimates, medicare benefits, U.S. proposals on the law of the sea, research on hypersonic aircraft, and "the conflict between wild and licensed horses" in Idaho. Reduced in number tem- porarily by a law passed by Congress in 1972, federal advisors' committees are on the increase again. From 1,242 at the end of 1974, the number has grown to 1,341 at latest count-arcI is still on the way up A bargain, but-. While most advisory committees serve a worthwhile purpose, supplying the Government with brain power at a bar- gain price, it has been charged that all too fre- quently the panels represent vested interests rather than the oublic. Says a Senate staff snem- her who iselped draft the 1972 lOw: "Tlse federal advi- sory committee can be a eonven:ent nestmg place for pecial interests seeking to change or preserve a federal policy for their own ends. Such committees stacked with giants in their respec- 558 They're anonymous, influ- entiai-and suddenly a center of conflict: the advisory com- mittees that help shape Gov- ernment policy in many fields. ~rom U.S. News and World Report, March 1, 197g "CHEAP" ~A ~POWER ~N WASH ~GTON~ dIDON O~ ~OONDCGGLE~ dent tive fields can overwhelm a federal de- panel made sip solely of present and cision maker, or at least make him wary fomaer military officials. of upsetting the status quo." Government officials argue that it is* A recent report of the House Govern- often difficult for advisory committees, ment Operations Committee charged even those formed with the best of mo- that the Food and Drug Administration tives, to avoid at leasl the appearance of has made excessive use of advisory corn- conflicting interests. mittees to delay actions to remove pos- Notes one defender: `If you're seek- sibly unsafe drugs from the market, ing experts in a given field, how can President Ford's proposal for special you not get people connected ovith that tax incentives for the electric-utility in- field's business or labor interests?" dustry came initially from his Labor- "I'm sure it~s true," A frequent alie- Management Committee, an advisory gation, too, is that political contributions panel whose membership includes lead- and party affiliation, rather than techni- ing officials of labor and of some of the cal expertise and judement. often are largest corporations. Represented on deciding factors in the selection of cons the panel are a major supplier of dee- mittee members. "I'm sure it's true- trical power plants, several large dee- every political-science textbook says tricity users and labor unions interested that," concedes William E. Ilonisteel, in stimulating ness construction in the st-ho heads the comrnittee-m.uia..-iin':ut utility industry. secretariat in the Office of Nl.snageinent A decision by the Coast Guard last and Budget (OMBi. lIe adds: `It's come- year not to require double bottoms in thing I don't Imosv hose you act out." tankers transporting oil from Alaska to Still another concer,nistisut c'rtain West Coast ports cvas based on the find- business, labor and academic orgsniza- ings of a panel of three Government tions are able to plare toe osu-,'-- repre- employ es and eight oil and shipping- sentativet on too mao:. industry representatives. One official cf Comnrnuuieatioiss S,stei- And when the Secretary of Defense lite Corporation served on 15 ctiflsrent decided last year to se-:'k an "indepen- advisory committees . Arr.encas `[etc plsone & Teleer.snh Conspa- mis and RCA C-'rporaltoo lad 9'[ n-.ors'-t::-r:ips earl: .- ..` ~. - Ilarsard. \~`t 11 1 - -. - - `~ -C-:- - `. - (clans: Ito:. - , . - . - -. .. Colomnbia-r),:red .::ro:sz a ~ - them ore:-' hoc of its' - `..-- :` - ~ - . - \Vorrixc: ~h.. ::t ta.- - - .. -. - ch.-ck5 d eras Ii nd isidrit - , ~., " _:_ "S,. -. .-._. `` - - .-. - infisienc.'- -~ .:ls i--ems es'rst- A meeting in V,'oshin~tan of en Interior D'psrtmsnt ~daisory core- ttcdi~e., C:' ii, If~'2 mitten, one of the hundredt Iis:e:t in'. the l,ai2-prge index, ii'!O,V. c,a'caht to - ic: M:.te,d~iD ~t, C: Mo- - - Cernr:ctt~'e `ccl re:.2y :0- dc `as b:-~n "incre,:sic..l PAGENO="0565" 64 "CHEAP" BRAINPOWER (`~tisaed fran preceding page) ous regeneration-a trend that spurred the Senator to introduce a bill to strengthen the Act. The 0MB, instructed by Congress to weed out dormant, duplicative and inef- fectual advisory committees, and to re- port snnssally en progress tosvard that goal, recently warned agency heads again to terminate all "unnecessary" ad- visory groups and be doubly certain of their need before starting new ones. Congress, itself, shares much of the blame for the ness rash of advisory com- mittees. While telling the executive branch to cut back, the tasvmakers have continued to create these committees. About 60 per cent of such panels come into being through legislation, with the President and Government agencies respmxsibte for the remaining 40 per cent. At least 730 bills intro- duced in Congress in the past year had provisions for advisory committees. Going public, An apparent failure at halting growth, the 1972 Advisory Com- mittee Act has been somewhat more successful in bringing these panels out from behind closed doors. Previously, ads'is~rv committees often met secretly or on short notice, barred the public and kept spotty records. Nass they must disclose in the Federal Re~irts'r, ss cii in advance, the time, place and agenda cf their meetings- and open thorn to the public unless there is a compelling reason not to. In 1975 about 55 per cent of the meetings svere open, a substantial im- provement over a few years ago. Prodded by lasvsuits, legislation and persuasion, some agencies-such as the Consumer Product Safety Commis- sion-recently have sought to have 559 broader r~presentation on their ads-iso- with the reporting requirements of the 1) committees. 1972 law. Some may even have con- Only lately has anyone other than cealed the existence of their panels. bankers sat on the Cosnptroller of the That practice apparently has ended, Currency's ~egiona.l banking-advisory officials say, although as recently as committees. Consumer representation 1974, the 0MB discovered 69 existing was added after it was pointed out that advisory panels about which it previous- the panels advised on matters such as ly was unaware. customer services. Prof. William H. Rodgers, Jr., of the As for charges of political influence in Georgetown University Lasv Center, the selection of committee members, believes Gos-emment agencies may still the Senate has begun trying through be underreporting their use of ads-isory legislatioty to blunt that criticism. Last committees. His studies led him to the December it wrote into the Public conclusion that agencies increasingly Health Sei-vice Act an unusual amend- are utilizing informal advisory groups. ment that said party affiliation could no Nobody is really sure exactly hosv longer be a consideration in picking much advisory committees cost the tax- members of any advisory panel within payers. A typical committee, meeting the National Institutes of Health. Skep- four times a year, may spend around tics say that the amendment appears to $30,000 annually for travel and other be unenforceable. expenses of its members. Four have Useless panels. While 0MB officials budgets in excess of 1 million dollars. say they are diligently seeking out and One committee reported spending ridding the Government of useless advi- only $3,200 in 1974-which seems like sory groups-299 such panels were ter- less of an achievement when it is noted minated after their normal two-year life that the panel held no meetings. or were abolished in 1974-examples of The perquisites of membership vary committees of questionable svorth keep widely. Some committee members-in- turning up. dustry representatives, for instance- For instance, nine advisory panels are paid nothing. Others receive up to within the General Services Administra- $145 a day, pius expenses, while doing tion held no meetings and filed no re- committee business. ports in 1974. The 1975 statistics are Total spending by such panels in not yet compiled. 1974, according to admittedly incom- Another apparently dormant commit- plete estimates by 0MB. was 42.3 mil- tee se-as the Interior Department's For- lion dollars, up from 31.1 million the eign Petroleum Supply Committee, year before. svhich was established to advise the Looking ahead, officials say the use of Government on "obtaining information outside advisers in the Government al- relating to foreign petroleum oper' most certain1: will continue to grow- ations, requirements and supply." The unless Congress intervenes. They say panel of major oil-company representa- congressional intervention is unlikely. tives did not meet in 1974, in spite of Encouraged by recent improvements in the oil-import crisis. advisory-committee practices and pro- Some agencies, says the OMB's Mr. cedures, Congress seems more inclined Boosted, initially balked at compliance to accept their inevitability. WHEN AN ADVISORY COMMITTEE GOES PUBLIC- Il's rare that a federal advisory commit- arts student at American University, Un- system see the new lrend as a hopeful tee turns to the general public for help, derscored both the potential importance sign. The panel studying further rogula- but snore may be doing so in the future. of advisory-committee recommendationi, tion of the commodities-futures industry One recent example: a February 17 and what Càngress in 1972 recognized- has solicited eshat officials describe as scextog ol a panel in Washington to con- lhst the public has an interest in those "consequential suggestions and substan- sder new standards for those who trade recommendations. live commentary from all sources." irs comrnod,ties futures. The advisory Increasingly, advisory committees are Nearly all of the panel's 15 members cornrsrittee invited a 25-year-old college listening-as did the Commodity Futures are associated with the commodities-fred- student to describe how he lost $56,056 Trading Commission's Advisory Commit- ing industry. inst summer in a wild, Iwo-month plunge lee on Regulation 01 Commodity Futures The committee is expected to make * into pork bellies, soybean oil and meal, Trading Professionals-to the opinions of recommendations later this year for the sad broilers, such nonexperts as Mr. Csaky. Some parent Commission to consider. The witness urged the committee lo panels are setting aside a portion of ev- Robert L. Martin, the panel's chairman incisde is its recommendations some t;gh.ior restrictions on dealers and some ery open session for comment and dis- cussion from the audience. and a member of the row Government Commission that regulates futures fred- batter ways to warn unsophisticated in- How much of this public viewpoint ing, reminded his fellow advisers at lhe vectors betore they get into the complex winds up in the recommendations of a February meeting: "The Commission is and solatie futures markels. panel of experts is open 10 debate. But going to be very much guided by lhe The testimony of A. S. Csaky, a liberal- even critics of the advisory-committee input from this panel." PAGENO="0566" 560 LFr0m Science, April 16, 197.~/ Biomedical Panel: Urging a Move to Bring Cancer Back into the NIH Fold it has been 5 years since the passage of the National Cancer Act that elevated the National Cancer Institute (NCI) to privi- leged status within the National insti- tutes of Health (NIH). Under that 1971 act. skillfully maneuvered through Con- gress by forceful cancer lobbyists, ihe NCI was given two things that suddenly set it above the rest of N1H-truly vast sums of money and direct access to the \\`hite House through the creation of a three-member President's Cancer Panel. headed by New York financier Benno C. Schmidt. The rest of the biomedical com- munity has been jealous and out of sorts ever since. Now. the President's Biomedical Re- search Panel, established in 1974 to con- duct an 18-month study of the country's biomedical enterprise as a whole. is tak- ing what it sees as a first. gingerly step toward restoring the balance. When its report is released on 30 April. it will contain a recommendation that the exist- ing cancer panel assume a dual role. In addition to serving as the senior policy- making body of the cancer institute, it will he asked to oversee policy-making for the rest of biomedical research as well. On the face of it. it is a contradictory and. frankly, audacious recommenda- tion. Were the President to accept it, the present cancer panel, already the object of distrust. would have its powers exten- sively broadened almost overnight. Ben- no Schmidt, the czar of cancer, would become the czai' of all of biomedical research, at least until his term on the cancer panel expires 2 years from now. l'he ahout-to-go-out-of-husi ness bio- medical panel that is making this recom- mendation is headed by Franklin Mur- phy. an M.D. who is now head of the Times Mirror Corporation in Lo~ Ange- les. Schmidt is the only layman on this panel. Its other members* are basi~ re- searchers and physicians from the na- tion's most prestigious medical schools. Why. one cannot help but ask, would they make such a recommendation? The answer, as expressed by members and panel staffers, is that they have come up with a clever scheme for eventually get- ting the cancer institute back into NIH. One said it is a way to "set the stage" for the eventual return of the NCI to fiscal control by NIH. Another described it as a move to "make rational, step-by- step." the present system that allows NC! to go its own way. Underlying it all is the probably correct assumption that if NC! is going to be divested of any of its privileges, this will have to be done with great diplomacy. The biomedical panel acknowledges the tremendously powerful lobby that *Franktin D. Mu,rphy. Times Mirror Corporation; Ewaid W. Busse. Duke University Medical Center; Robert H. Lihert, Harvard Medical School; Albeit L. Lehningcr, The Johns Hopkins University School of Medicine; Paul A. Marks. Columbia University; Benno C. Schmidt, J. H. Whitney and Company, New York; David B. Skinner, University of Chicago Hospitals and Clinics. PAGENO="0567" backs the present cancer program and concedes that, if it fought the program openly, it ~s ould prohahls lose. It also recoenizes that Schmidt. as a member of the cancer panel. cannot. as a member of the current biomedical research panel. he put in the position of having to offend part of his constituency. So. one can suppose. there is a certain logic in givin~ him responsibility for both. In spite of Schmidt's obvious devotion to the cant cer program., to which he gives a good deal of his time. it is true that he has consistently expressed an interest in othL er areas of research. taking the position that it is neither scientifically nor politi- calls' sensible for the cancer communit~ to alienate colleagues in other fields. Fur~ thermore. he has taken a strong. if not entirely successful. stand on the issue of training grants. a provision that is dear t~ the hearts of investigators in every dis~ cipline. Nevertheless, the thought of having Schmidt. R. Lee Clark. head of the M.D.~ Anderson Hospital and Tumor Institute in Houston. and one vet-to-he-named ness member of the cancer panel assume responsibility for all of biomedical re- search offends some individuals. Th& matter came up. for example. at a recent meeting of the National Heart and Lung Advisory Council. In a letter to biomedi- cal panel chairman Murphy. heart coun- cil members said they wholeheartedly~ concur with the establishment ofan advi- sory committee "at the highest level which will have a broad overview of the entire biomedical research enterprise:' but they think it should be established `dc novo." which is to say. thes' do not want it to fall into the control of individ- uals whose first loyalty is to cancer. All of this raises a little-discussed ques- tion about the need for special panels in the first place. The immediate precedent for `.uch a body is the cancer panel. which ssas created at a time when those s~ho had s~on the political battle over the launching of a war on cancer were deter- mined not to see it snarled in red tape as the NCI director tried to foster initiatives with all deliberate speed. The NCI direc- tor could have been designated the man 561 to call the White House if things hogged down, hut he wasn't. The cancer act created a special. presidentially appoint- ed National Cancer Advisors' Board to advise the NCI director. Its chairmah could have been granted a direct line to the \Vhitc House. hut he \sasn't. In the grand `~chcme of things. it ssas felt neces- sary to have a rank of supreme com- mander that was more prestigious still. and so the panel s~as mandated. and Schmidt. a Republican businessman who could speak the language of the .Adminis- trat ion. was named to lead it. Benno Schmidt is a person whose in- fluence derives from his position and his personality. He is strong and determined and not easily pushed around. To lop it off, he has taken his role in the cancer program seriously. There is no doubt that he has pla~cd an tmportant. indeed central. part in the deselopment of the cancer program. People tend to link the fortunes of Schmidt and the cancer pro- gram to each other, seeing him as an undefeatable power broker on behalf of his cause. There is some truth to that hut a lot of exaggeration as well. Schmidt persuades. but he does not dictate to agencies such as the Office of Manage- ment and Budget. where he has won some battles hut also lost some. Nevertheless, the perceived influence of Schmidt and the cancer panel has made others in biomedical research want one too. But you cannot clone Benno Schmidt. and you cannot mandate the kind of influence he has had on White House officials ~~ho were freely prepared to he receptive to him. An attempt to do for all of biomedical research what the cancer panel has done for the programs of NCI was made in 1974 before legislation creating the pres- ent President's Biomedical Research Panel passed the Congress. The original idea was to mandate a permanent panel with the same White House access that the cancer group enjoyed. but it was stopped by threats of a presidential veto. So the present panel. whose only job is to issue a single. one.shot report, was put in place instead. Destined to officially dissolve by I July. its only hope of con- tinuing on in spirit is to have its recom- PAGENO="0568" 562 mendation to expand the cancer panel accepted. It is not certain whether this recommendation will he adopted. hut it most surely will come up when the Sen- ate the House hold hearings on the pan- el's full report. The Senate hearings are already on the calendar for 30 April. the same day the report must go to the President. In all of this, it might be noted that there already exist a number of advisory bodies to oversee the conduct of biomed- ical research. Every institute at NIH has an advisory council; the NIH director has an advisory council too. The former exist to review the scientific projects sup- ported by the individual institutes; the latter is supposed to advise the NIH director on the way things are going over- all. It is true that, in the past. these groups have not taken their policy-mak- ing responsibilities as seriously as they might, but there is no immutable reason might, but there is no reason that could not change. The authority is there. The NIH director's advisory com- mittee. long plagued by vacancies (Sd- ~~ice. 31 October 1975). is not at full strength. and director Donald S. Fred- rickson says he intends to make full use of the committee as a policy-making re- source. In fact. an additional recommen- dation of the President's Biomedical Re- search Panel. one with which Fred- rickson concurs, will be that the mem- bers of the director's committee. now appointed by the Secretary of Health, Education. and Welfare, be appointed in the future by the President. "To make the NIH director's advisors Presidential appointees would raise their visibility and lend a new tone to their work." one biomedical panel staffer observes. One foresees a situation in which one presi- dentially appointed committee on bio- medical research is overseeing another. It hardly seems necessary to have both-BARBARA .1. CULLITON PAGENO="0569" 563 By John Sherwood \~ .n~'~or~ St~n S~a(1 Writcr ~\V Yi P~N-The handsome brass tea h~'~u h) steam furiously, sot- ~c~n~: the little Tea Man who dashed ~`v~ ~~l)hCd the wooden handle, and :~n pouring the hot water into 38 tea i s m zd~ cups v ci e lin~d to brim. all along the edge of an, e~~i; Li~y Susan table. Robert H. ~j d~~z-~ in his Tea Room in H among the exotic fragrances of c)oP~ and North Indian Dar- west to work. e tc~i goutmet, Dick is the U.S. went's OUIY full-time tea exam- ui no is cleat-tv Cast for the role. 5' Oru'!,tti tea with the l'ederal AJiziini:.ttitjot~'s supervisory tea * uz;.-z i~ It) soil to hack to the stilling ti'a clippers that raced to ~; tb th~ leaves of the ancient * ~, :;)eili.i SiflOSib. DICK, HOWEVER, has to leave his tea-time manners home while working. He spins the table with one hand, hppin~ a soup spoon into each cup. Dringing the tea up to his nose, under which blossoms a short and tidy white moustache, he sounds off with a noisy flu-like sniff and quickly thrusts ih~ spoon into his mouth for a horrendous S-S-S-S-SLURP! Tb make the scene even worse, he spits out the tasted tea into a largt~, polished hourglass-shaped gaboon placed be- tween his legs. This is the time of truth for a tea. Dick's gustatory senses accept or reject, thus enforcing a unique and venerable consumer protection law based on the Tea Importation Act of 1897. It is the only such law that is concerned primarily with the subtleties of taste, smell and ap- pcara nce. The patient, 60-year-old veteran of 28 tea-tasting years has earned to suffer with a polite smile lines like `your cup of tea" and "all the tea in China." He gnus about his work humming church hymns to himself in a cold warehouse zoom that is warmed by his collection of lovely tea pots and tin tea containers. ON THEY COME: the pleasing aromas of the resinous Lapsang Snu- chang from mainland China; the deiicau~ green Gyokuro from Japan. the Jasmine from the Ying Mee Tea Company in Hong Kong. Dick's own personal brand, which is almost impossible to find any- root-c because of the price (as hzgh as 820 a pound), is the superior, black Darjeel- ing. Now, there is Darjeehing, and then there is Dat-jeehing, the best of which Comes from ``the second flush of growth early in the season, around July." From his Brooklyn office, Dick can trace the primest of the prime Darjeehing not only to the North Indian foothills of the Hima- Wed~c~cky, February 4, 1976 The Washington Star ~; 1~Th1 ~ (5i~ ~ .jL iL~A ~&i ~~iJ1 ~:;B ~ ~C~O~C~1: :~ PAGENO="0570" 564 layas, but sometimes to the tea's very birthplace in a garden called "Margaret's Hope" or "Rungli Rungliot," which means "This Far and No Further," Dick speaks of "the romance of the tea trade," anti longs to visit one of the foothill tea plantations where the tedious hand plucking of only the newest and ten- derest of the topmost bud leaves still goes on, as it has for centuries, `Meclia~j~~1 pickcr~ cannot se~cot the proper' leaves," he says, "and they produce an inferior tea." In these remote areas of the world, tea is still shipped on pack animals. AN EXPERIMENTAL tea plantation once was tried here, in South Carolina, and produced a high quality tea, hut was discontinued in 1915 because even then labor costs were too high. The United States, not a hotbed of tea drinkers like England, is the land of instant iced tea: 90 percent sugar and accounting for 45 percent of tea consump- tion here. It is a statistic that makes Dick tremble. In- stant teas are not "examined" by Dick because they are "solubles" full of sweetenings, colorings, flavor- ings, flavor enhancers and preservatives that are subject only to Fair Packaging and Labeling Acts. "Today, you can't even find the best of the Formosa Oolong in stores," he moans. "Bulk-form tea has al- most neen eliminated from the retail market because ~CO~iC are too lazy to brew their own tea. The trend is making antiques of the teapot, the tea ball and the tea strainer. The teaspoon has become a coffee spoon." A SURVEY BY the Tea Association of the U.S. showed that by 1970 tea bags accounted for .8.3 per-. cent of marketed tea. Loose tea now accounts for only 7 per cent of the market. The instant variety accounts: for the remainder, The graying, balding redhead tea-taster prefers to: brew bulk tea for his own use, anti then decants it, -. adding a touch of sugar "to bring out the flavor." He. starts out every morning with a few cups of tea at: home. The volume of tea imported keeps growing. More: than 170 million pounds came in 1973 - of which around 0.5 percent was rejected by FDA. There are two other federal tea examiners, in Bos- ton and San Francisco, but they do their examining on a part-time basis, says Dick, the only full-time exam iner. PAGENO="0571" 565 Thero nro no federal"eoftee e~amjner~," hence nil the rotten coffee we drink. "At least we know our tea is among the best in the world. It meets a taste `stand- ard," says Dick. That standard is determined once a year by the much-maligned U.S. Board of T~a F~* ~erts, who suffer the slings arid~?O~~'W~Of politica~ candidates out to knock the Board by promising to "Cut Costs at All Costs." DICK POINTS OUT that the six "tea experts" on the board are in the tea business and are paid $50 each. That's an annual cost of $300. The fee was set in 1897.. The tea importers themselves lobbied for the Tea Importation Act to protect the quality of their product that was fast deteriorting toward the end of the 19th Century. Further, the tea importers pay a special tax to offset the expenses of tea examinations, says Dick, and the tea people also bear thô expense of collecting and transporting sample lots tO the examiners. Dick, nearing retirement age, is not sure of his re- placement. It could turn out to be something called a: "Gas Chromatograph." That would figure with th~. trend: educated palate of gourmet bows to a chemist,: And more instant tea dust for all. Move over coffee;-~ make room for tea. - PAGENO="0572" ~Cnight News Servico `~` WASHINGTON - Federal, decisions that touch nearly every American are fre- quently designed by Seere- tive "advisory committees" that, form a sort of shadow government through their widespread influence over the bureaucra~y. ` f Created to give govern- ment decision-makers the benefit of a broad range of expert advice, the commit- tees often end up reflecting the narrow concerns of big business or other ~pec1al i~i- terests. `.More than 1,200 suchcom- `mittees, involving dyer. 20,- 000 people, meet - often in secret - to collect and dig- est information and mBke policy recommendations to federal bureaucrats. The loosely-structured sys- tem has been In oferatiori for decades, but it is largely unknown to most Ameri- cans. Ev~n t goveftnnej%t offi-' cials \vho monitor ,this net- work~ admit no one knows exactly how many `of these panels exist. Nearly every day, com- mittees are formed or dis- banded. Others operate so deeply In the recesses `of gover~m~nt that `they may go completely i.uich~cked for years. 566 S. F. Sunday Examiner & Chronicle, July 6, 197~r PERSPECTIVE' The secret men pulling power levers i"Th~. Ara :"~ lhsuiated' ` `PrOponents 0 hO. ~ystem ~ lhyer of go~iei~nthent," says argue that the groups pro- ~efl~: Lee Mêtcälf,D., Mont., vide government with an I'm-, 1no~'l~eaiiy elected' or ap- portant sounding, board fore ~plñt~t1~ `an'~ not r~ally ideas, ,far~reaching, ` view- points, and uninhibited, out- side opinions ~Except for `their 1o~ pro ~l'e~ these grOñps bave little `~ De~ite recent legislation f~ `cdmin~n Irecause of their ~o cUrb the panels' closed- 1ivel~sity in make up duties door activities and limit ~nd degree~ of in~luenee their policy making role critics still fear that the po ~Wb~1e some cbmtriittees ter~tia1 for abuse rerriairis i~e `~~ery powedtil others relatively unchecked ~rve merely as window re~slng ~e1n'bersh1p var According tp th~sO critics, i~~'~fràni .~a~"~ha~idful:' to' a'~ both in and~.out, of goveth-, crowd large endugh to i~ii ~ ment the key ~rbb1eni.~ ~1th tl~atei~ ~`~`150ty coidmittees t i~ ~AnçI although some corn i~ht~t~es allow ~ublle repre o ~5ndue infhtence rn~ s~ritatlon most ~raw their `~i iOn rnaking,..~ ranks exclusively from Um* ~ o"Unbalañcéd r~r~senta- *,Ited private sectors. ` tirn~ `~ Y'i - The President, Congfess `6.Oiosed and inaece&~lble a n d government agency meetings; . " heads have power to estab lish advisory committees, `0 `D"~i'l~p anclwaste.~ coveriflg nearly every imag- ~..ffhdugh' no~,v Prohibited inable topic - from the by~ law froth making policy President's Council on Ener- ~e~isions, advisory commit- gy Research and Develop- tees `exercisetremendous in- meat' tO the, AgricuTtu~e' De- . ~, .. ` - ~a n~ l~r ~r' "Sc ~ ` flient acticins,partIèularly.in 1.A¼S~ 10 Cg a a io - , the ãreàs of health, corn- Critics charge that the ad merce and energy visory boards gthi~v specral Qfficials in agencies such interests to .. Sway, gover~j- as theNatlonal Ifistitute~ M ment leaderswlth a litany of Health or the National Sd- "t~omprehensive' reports, e n c e Fpuncjatjon rarely unvertifiable data, and P'~0 overru1~ advisory panels of fesslonal expertise.. ~. te~imni~~i experts ` in doling.. PAGENO="0573" out research grailts `worth billions of dollars a year. E v e n top-level govern- m~nt policy-makers depend on advisory committees.. Ten years ago, when the' government launched t h e Medicare program, t h e n Health, Education and Wel- fare Departthent Secretar~r Wilbur Cohen brought to- gether doctors, professors * and other private sector rep- resentatives to advise hith on the p~oj~ct. ~, I asked them to tell me what pr~nc1ples, forms and procedures they ~vouId like toseé..in this type of pro- gram,. Cohen say~. In 99.9 per. cent of the cases, I ac- ce~ted what they recom- riiended.",. - One important tool' advi- sory comthittee~ use to shape policy Is theircontrol of statisti~s~ andY other tech- incal information ~ is the, fuel of go~ernmént, says. politièal scièñtlst Behry `~teck, ~ho has ~exlens1ve1y studIed ad- EnvirOnmentalists on the Federal Po w e r Commis- sion's Gas Power Survey Advisory Committee and on the National Petroleum Council admit they seldom understand those~ panels' techtiit~al discussiohs. But Sen. Metcalf, who has sponsored most of the ad~,~i- sory committee' reforms, says, `if you can get the public interest groups on the committees a n d publicize the meètiñgs so others can A d v i s o r y committees, `however, also appear to be replacing çlaesic lobbying techniques used by big busi- ness to curry favor with key government d e C i sb n- makers. "Everybody on the advi- sbry committees uses the backroom," says public in' e r e s t attorney Richard Frank, a critic of the lobby- ing influences on the multi- lateral trade advisory boards. Prof. Steek found "the old image of - . - wining, dining, and browbeating a vulnera- blé adnidnistrator must be replaced by the image of the sterile committee r 0 0 m where representatives of In- dustry and government ha- bitually consult in a spirit of mutual understanding and cooperation." 567 ~isory' comMittees~ As gov~ . .attend~ ~you can get over this erament., is frequently un- hurdle of very specialized able' to .sedurè hiform~tion~ discussion." on 1ts~own, It Is consequently forced .to turn to Industry `for its básic'.decisin~maldng data.... ,~ . To do so however is to dei%~ei~itse1t into the hands'. oLth9se ~ho will be most af~ fe~t~d:by;the pOlicies; add~ Steck. L *` ` `~"Pu 1 11 c interest ~ i~ãteIy have the expertise to compete with these corpo. rate technocrats. PAGENO="0574" 568 THE WALTJ STREFJT JOURNAL, FRIDAY. NOYEMBE~ 7, i~75 Politics and People By ALAN L. O'rrs~ Advising Presidents PRINCETON~ N.J--The entire matter of how Presidents get advice and how r'~o pie give It to thens is a rather arcane science, but a recent conference here shed at least a little light on the subject. A large group of presidentia) scholars and present or past Presl(lential advisers met for a day and a half thin peat week- end. and while they certainly didn't reach any firm conclusions, a few ideas were voiced with notable frequency. One was that there's no objectively `right" way to set tip a President's advi- sory apparatus--that the right system for each President depends on his own pecu. liar persomelity and political operating style. "The background of the President- his experience,, biases, personality - all shape it." said Donald. Rumsfeld, who's been President Ford's White House chief of staff. "It has to be comfortable for him." Political scientist Thomas Crosiin observed that cacti President spends much time trying to construct better advisory mecha- nisms "but what works for one. President may not work for another." The advisory system, he said, is essentially an "adho- cracy." a * a Surprisingly many of the participants rejected the popular notion of presidential advisers who neutrally and dispassionately lay out the pros and cons of an issue; they urged that adVisers be advocates. Princeton's Carl Kaysen, who was a na- tional security adviser to President Ken- nedy, said that advisers are never "neutral computer printouts" but rather that "every adviser Is a little bit of an advo. cate." And, he continued, "well-advised advlsees should wish their advieers.to be' advocates," because strongly advanced ar- guments best help them choose among their own conflicting Inclinations. Similarly, Clark Clifford said an adviser should "push strongly for the point of view, lie believes in, and hope it will prevail." Mi-. Clifford. who worked for Presidents Truman, Kennedy sod Johnson, suggested that~ the best decision-making process is to have opposing advocates argue their re- spective cases before the President, and thet the "critical thing a President must learn in not to make a decision on one side of en issue Without fit'st hearing the ether side." Declared James David Barber o~ Duke: "There is no such thing as pure ad- vice In the White House. The adviser Is no tin man, bolted together arid dropped from Oz. Be has his own points of view, his own ambitions." Still* another motif was the difficulty that advisers-economic, budget, scientific and others--encounter in trying to do the long-range planning the President really needs. Electoral pressures, a desire to get many things done as quickly as possible, and other factors constantly... Impel all Prrstde.nts, Mr. Cronin noted, to tell their aides, "don't just stand `there, do some- thing." These and other themes were fi-equeritly challenged by other participents however. More entertaining, and perhaps even more enlightening, were some of the specific rec- ollections, anecdotes, jokes and other elab- orative remarks. Presidents . must indeed make sortie weighty decisions, Mr. Barber conceded, but a great many snore declsions aren't nearly as tough to amIne as Presidents would like the public lo believe. It reminds him, he said, of Mark TW,'nin's comment that "given the choice, I'd rather sleep with Lillian Russell stark naked than TJlys- sea Grant In his full-dress uniform." LET adviser Joseph Callfario declared President Ford was wiser than congrea- alonal DemocratIc lenders on aid to New York City. Subst,sntial federal help, he argued, would Inevitably get the. White House deeply involved in a multitude of de. ctsions on running the city; and `no Presi- lent should have to be mayor of New York City, and no President wants to lie," If al- most any leading Democrat were actually sitting in the White House today, he would he taking just about the same position as ~fr. Ford's, Mr. Califano contended. C .5 ~* Harvard's Richard Neustadt Illustrated two different approaches to presidential ath'ising by recalling the time he raised questions with President Johnson against pressing ahead on President Kennedy's plan for a multilateral force Ia Europe. One day, he encountered forsner.Secret'ary of State l)ean Acheson, who was urging Mr. Johnson to continue hacking the MLF, and Mr. Acheson fixed Mr. Neustadt with a typically lofty stare. "Dick," he said, "I know what you're trying to do. You think Presidents should be warned, But you're wrong. ~Presidents should he given confidence" PAGENO="0575" 569 Lyndon Johnsofl wits the supreme activ- ist, accor(ling to Mr. Cronin, a White House fellow during the LBJ presidency, Mr. Johnson's lipproaclt to all encounters V i~h otiiit' ~so~ie. he rectilled, vita ``we ChIll cVci','}ICiti.'' Aid, ho aIded, Mr .iOfiflSOn \varihr:ci to t~hc: full advantage of his big Car era atonal majority In 1965 and 19ff to get every portable Idea put into right way; the theo~, Mr. Ci onin aug. geared, was "pa_es now, plan later." Asked to assess Vice President Hum. pitrey's impact on policy during the Johnson administration, ldi. Califano said lie had to rate it as negligible.." Mr. Kay- sen commented that Vice Presidents never have much influence, because Presidents are uncomfortable with them around; a~ Vice President only reminds a President of his own mortality. "No President lilies to have meetings and look at the Vice Presi- dent ocrosa the table,". he declared. Historian Arthur Schlesinger Jr. ob- served that "principals influence advisers a great deal more than advisers influence principals. And that is why principals ore principals and advisers are advisers." One of the t~ucstions that presidential advisers find it most difficult to answer, Princeton's Herman Somers noted. is `Whit- do we have recalcitrant Presidents who won't take otis advice?" Anyhow, it was good and interesting talk. Conference organizer Fred Greensi.ein cf Princeton l)robahlY pronounced the proper benediction: `Knhanccd knowledge viii not make for a no-fault presidency, hut the better we describe the past, the more promising our presceiptionsfor the future." PAGENO="0576" 570 THE WALL STREET JOURNAL, Thursday, January 8, 1976 Use of False Identity To Obtain Passports, Credit Cards Grows Federal Task Force to Release Proposals Today Aimed At Reducing the Practicc~ By MrTCHE1t~ ~. LYNCH JfafJ J?rjrnrfcr of TuE WALL STREET JOURNAL WASHINGTON-Call me David' J. Mu- chow. That's the name of* a birth-certificate copy I have. It Indicates I was born 30-odd years ago in a Massachusetts town near Boston. The copy, stamped with the official seal of that town, was mailed to me by a friendly town clerk whom I had telephoned. The clerk didn't ask me any questions to de- termino whether I wi~s an impostor; ~he doesn't know me or David 3. Muchow from anyone else. If I were willing to break the law, I could use the birth-certificate copy to get a driv- er's license under the name of David 3. Mu- chow And with those two documents and a little derring-do, I could get a passport from the State Department, a wad of credit cards and E sheaf of other documents to show con- vincingly that I am David J. Muchow. All of which would prove exceedingly em- barrassing to the real Mr. Muchow. He is head of a federal task force trying to find ways to halt what the Justice Department sees as an alarming trend: the rapid growth in tricksters who procure other people's bona tide documents to cover up their true identities. Authorities say this kind of deceit repre-i sents a bold departure from the dime.novel days when identity hides's would hire little, gray-haired men wearing green eyeshades to forge documents in dank cellars. "Now- adays crooks are getting the real things from official agencies themselves," frets a Justice Department expert on false identifi- cation. "It's so easy, it's scary." Proposals Set Today But now government officials are plan-, ning to make it harder to acquire personal documents under false pretenses. Today Mrj Murhow's task force will unveil a number of' proposals. These include training issuers of documents how to spot a suspicious request and setting up a state-to-state computer net. work to link birth records with death rgc- ords-in order to discourage the impostor's practice of getting a copy of the birth certifi- cate of someone who died in infancy. An- othei- proposal is to print documents in a special ink that won't show up on ordinary machine.made copies; unauthorized duplica- tion of birth certificates would be thwarted. No one disputes that the false-identifica- tion problem is serious. Early `estimates by Mr. Muchow's task force show that people using false Identification steal more than 510 billion a year. This figure includes $1 bil- lion in check fraud, $100 million in illegally collected welfare payments, about $4 billion being'sent out of the country by illegal al- iens, and nearly $50 million in fenciiig of sto- len secui-ities. "This is only the tip of the iceberg," Mr. Muchow says, Indicating that the deeper the task force digs, the more shocking its findings are. Because this is the first serious study of the illegal use ef bona tide documents, the growth of the practice Is hard to pin down. "All we know is that a heck of a lot more people the police are catching are carrying those kinds of IDs," a Justice Department official says. - Among those recently caught was Patri- cia Hearst; she had obtained a copy of a birth certificate of a dead infant to help her acquire other documents and false identity during her flight from th~ law. The Infant-Death Technique That so-called infant-death technique Is by far the most widely used method of iden- tity cover-up, authorities say. The reason is ~inip1e: It's startlingly easy. Getting a copy of someone else's birth certificate is also le- gal In most states, although It Is a criminal offense to use such a copy to obtain other identification documents fraudulently. The typical impostor goes to the library of a newspaper or to a local recorder's of- fice to find the names of children who died years ago and would have been the same age o.s the Impostor. The imposter selects a name, goes to the recorder's office and gets a copy of a birth certificate of the dead child. (No municipal or county recording of- fice links birth certificates with death certif- icates, federal authorities say.) The impostor then Is easily able to obtain such documents as a driver's license and passport in the same `false name-with con- fidence that his disguise won't be detected. "The thing about the infant-death technique is that It makes sure no one ever pops up to personally challenge the person who has taken on the new identity," a Federal Bu- reau of Investigation official says. One reason for the growth in use of false IDs is ~he upsurge in the number of under- g~round "how-to" pamphlets, The most com- prehensive of these, and the one that alarms the Justice Department the most, is titled PAGENO="0577" t'The Paper Trip" It outlines every conceIv- able way to procure false IDe and offers ñe~. farlous ways to use the documents. Exam- ple: "You can rent a car, never pay more than the initial fee and drive it all the way across the country and back without payihg for more than gas and oil. Use good ID and simply leave the car somewhere after the trip." "Remember," thc~ pamphlet advises, "let the government'do it for you! They have~to believe their own paper-and always will too!" Federal prosecutors say that the 28-page, pamphlet was published In Iowa City, Iowa, and that a few thousand copies were origi- nally made. However, authorities figure ad. ditlonal thousands are in circulation because the originals were duplicated in copying ma- chines across the country. Publishers of this type of pamphlet make their sales by advér- tising in publications such as Rolling Stone. What rankles authorities is that the publish- ing, advertising and selling of these pam- phlets may be impossible to prosecute be-~ cause it would be necessary to prove explicit, criminal intent. The government's task force on false Identification was established in 1974. It is made up of representatives of such agencies as the Departments of Justice and State and~ of private groups such as the American, Bankers Association and the International Association of Chiefs of Police. The task- force mission, Mr. Muchow says, is "to bal- ance the public need to stopthe use of false IDs with the public right to privacy." Because of the need to protect the right to privacy, the task force has thrown out the: idea of issuing "national identification cards" to every citizen. "It would simply be too controversial," a task-force member says. "It would smack of Big-Brotherism." Indeed, some critics contend that any proposals the task force comes up with would chip away at privacy. For this rea- son, such privacy-protecting groups as the American Civil Liberties Union declined in- vitations to join the task force. "We were afraid they were going to use us to give their proposals some credibility," says Hope Eastman, a Washington representative of the ACLU. Even suggestions to link death records with birth records :8~'e likely to arouse pri- v~cy protectors. "It would call for putting more people into a computer," a Justice De- partment aide says. "Americans have grown to dislike the computer." Mi'. Mu- chow insists that any computer network would be operated by the states, not the fed- eral government thereby making the idea a little more* palatable. In any case, government lawmen agree the current crazy-quilt system of Issuing identifying documents Isn't working. "If you can get somebody else'S birth certificate simply by makihg a phone call, then some- thing's very wrong," a Justice Department off~cial says. Indeed had that ?v~assachusetts town clerk even ~skedine to name Mr. Muchow's parents-Information that is Included in the birth records-I would have been stymied and revealed as an imposter. This Is why the government task force will suggest training clerks to ask questions designed to expose suspicious applicants. But even that idea is likely to cause some protest; persons entItled to :copies of their own birth certifi- cates "are going to raise hell if they have to go through a third degree," one federal In- vestigator says. - 571 Use of False IdentificationtoObtain Passports, Credit Cards Is Growing 70-426 0 - 76 - 37 PAGENO="0578" 572 LThe Evening Bulletin, Philadelphia, Pa., January 1, 1976/ P~perworkjuñgIë IJOS.O has 1,242 federal boards Kevin P. phillips Washirgton - C. Northcote Park- int~rt never penned a better paper- v;:rk tur~gle story than the recently- pub:shrd Ser.ate Government Oper- a:ic~.s Committee report listing the Fe~era1 Govt merit's 1242 advisory t-~e:ds, commissions aeid councils, az as naming the 22,702 ~er~ôn~w hc~t ncsitions on:at ~zast one of them. T.-e horror of ~tha~ book:- like tlte of the bureaucracy it catalogs - lies hilts enormous size. The index is a pa:n~ul 1,412 pages long! Each board membership is listed itt- divkiuafly, enabling us to learn that Jonri Q. Jones Jr., in addition to being vice-chairman of the Blue Commis- sion, also is a member of the Green Ecard, the Orange Committee and the Erown Council. - ~ thanks to Montana Sen. Lee ~te'ca'f and the-~ staff of the Sub- committee on Report~s, Accounting Management. a partial crosotabu- cf who's who in the backstage fe~erei advisory network can be found in t~te Dec. 16 Congressional Record. Iccafess I was fascinated. If schol- are ard academicians indulge their c~sual curiosity, this combined date be the jumping-off point for d~ceos of analyses and university dis- cc ens. S~niator Metcatf lays out inter- i~c:-.:~g relat:onships, old-boy net- .;:ntcs, and opç~rtunitieS for interest- c agrandizernent that will warm toe rearts of the C. Wright Mttls- D;bv Baltzell school of power elite Frrct. Metcalf lists the organize- theta that have the largest slice of the pie, and then he lists the individuals who have the largest number of over- lapping advisory memberships. a a a To profile the major sources of advi- sory wisdom, it's useful to break down the list between corporations, univer- cities, labor unions and trade associ- ations. Among corporatidns, American Telephone and relegraph ("Ma Bell') has 95 persons serving;RCA has 95, ITT 86, General Electric 80, Exxon 48, General Motors 33, duPont 24, and so forth. As for university-based advisory board members, the University of Cal- ifornia has 350, Harvard 167, Univer- sity of Texas 110, MIT 108, Johns Hop- kins 103 and the University of Michigan 103. Among labor unions, the AFL-CIO has 92 representatives on federal advi- sory units, and the Air Line Pilots As- sociation has 30. Trade associations also do pretty well; what with the Air Transport Association scoring 34, and others like the Grocery Manufac- turers Association and National Coal Association also enjoying a fair repre- sentation. As for individuals, Charles Baer of the Communications Satellite Corp. is the leader (15 advisory memberships) with Edward Benham of ITT next (10). Among labor union officials, La- ~zare - Tepper of* the International ~Ladies Garment Workers Union leads :With eight board memberships; Per- haps surprisingly, even registered cOrpOrate lobbyists also serve: John Post of the Business Roundtable holds four memberships. There are 196 per- sons who serve on anywhere from 4 to 15 different advisory committees. No sweeping judgment can safely be rendered ott the utility of 1,242 adviso- ry groups and their 22,702 members. In theory, the system of advisory committees - to quote one article -is "a longstanding device for linking pri- vate interests and private expertise to public authorities in the decision mak- ing process." And doubtless there are many substantial benefits, especially in technical matters. - But there also are obvious problem areas. Business, labor, university and research people on advisory boards often do a better job of taking care of their group interests than contributing altruistic professional expertise. a a ~ Federal boondoggles, loopholes and subsidies are conceptualized, nur- tured and pushed into law. I would not be surprised if this advisory "in- fluence network" is responsible for an annual $5.10 billion worth of marginal or even wasteful expenditure of public money. - PAGENO="0579" ADVICE IS COSTLY By JUDITH IIOALES As~ocIatè Editor WASHINGTON - Free advice may well be one of the most expensive~ commodities the United States govcrnrnept deals in. Lr~st year, more than 22,700 private `citizezi:, - most of them representing a, particular business firm or special. interest grQup-were members of 1,242 `advisory groups set up by tie federal government to give its agencies fice; advice on problems and programs. By the end of 1914, tho so-&lled free advice had cost American taxpayers * more than $75 million. At least 76 l~clthvareans, more of them from the DuPont Co. than frozn~ any other single interest in the First. State, were among the advisor~: The * Delawareans served en committees which spent a $1.8 niillioii share of the total $75 million last year. The ~,75 million finances federal staff rnembeLs to serve the voluut~er CorIllflitteCS, : QIf ice supplies : fln~etii.~ rooms. .. . it also pays for all tim tr~ivcl of thu~ advisors, motel and hc~tel bills, incz~ls, receptions, : and in some cases day consultant fees for volunteer members. In many instances Congress, ~thich must renew most oi the comrnitt;ès periodically, has no idea \vhere the money goesi For ex~nipI~, among the adyi~ory committees with Delaware members: ~ One giolipof advisory CUii1iflictt~S Eet lip eaily last ~èar by the Commerce, Department, to provide its secrctary and s1i~cial representative for fo~ ei~n tr~ide iiegotiations °ciitli di~tailed vie vs and information rc;~arding. trade harriers affecting ~iidustry's products" cost t275,100. : ** * .. The industry sector committees for * trade negotiations `didn't meet and issued no reports. Many of the two dozen DuPont of- fieials in advisory positions are found hi the Coinnierce groups reprc~enthig specific categories of prteiiwei to he shre federal officials are fully ini'uriried on what the company does and dues not ~wadt to trade, with whom and for ~i1~at. 573 LD~1aware State News, Dover, DeL, November 23, 197~/ SOME DELAWARE o An Juterior D~p~idin~iit advisory * cozriaiittee, one tint d'1:li~t.~s ~ ci the met potio~ ml lu~j ~rii~i:: I P country, spent $ ll,cIJ; h~st yesm to IhIIi~ hi such .advi:3oLs us .John ~we~Lingn, chairman of the board of Amoco, aid J. * W. Partridge, ch~iirmnnn of the hoard of * Columbia Gas, Wilmington, to make ~rccominen~istions on mnatius rer~ur- * diug the oil and gas Industry. ~: Part of their expense wcnt for two *..~rneetings, 1.5 years of federal era- ployes' thne, and seven reports yTvlng ~zidustry's views. o The cul~uralarms o~ the govern- ment set up elaborate advisory `corn- mittees -~- a* ,:dif~erent committee far each different type of am-I - each with -* nearly 103 members to evaluate ap1 plications for grants from the NationaE Endowment for the Humanities and the Arts.' .. - ** The review. groups met in closed ~sessions, issued no reports, arid more- or-less voted `on applications `that then went to officials who repeated the same processand made the.actual decisions. *:: The three pultural review groups with Delaware members cost taxpayers (iyhp'Ll `er.hnowwhat_hey,reco.rn-~ mer'ded) r~~e bar $11 0~3 1as~ yer' ~Arbther lz~ge committee set upby~ lawbaCk in. 1~53 has. been .spending about $23,033 ayearto get together, and; talk about its big.job in life, sponsoiing~ `the Amual&nallEusinetsman of the *Year,.cozfleSt!~.~.,...... On the other hard sybil" rriost.of the advisory committees were junketing to Washingtoni~and other popular ~neet1ng - spots to `do a,job that would then be * repeated by.govePnrnent employer4 in one area where tha government:seesned to be particularly hutL-1g~ for in `~formdtion, aIwhcle system of advisor3i~ commit ees ..at idle - * Delawareans ,frorn' DuPont, * Columbia Gas,andvarious state:ofiiccs belonged to a m~iltitude:'of-advisor~~ * groups~se~ up by~the Federal Power~ Commission to deal ~lth electric and natural gas probiems.~ PAGENO="0580" The FPCCommlttees can't be faulted for spending-precious federal money. Eight of thell& advisory groups never met, never gave FPCa drop of advice, and never..spent a dime. . When asked about those committees -specifically, U.S; So WiUiamV. Roth, .R-Del., who wr_~ one of the prime sponsors ~of 1G72 legislation which for the first time attempted to control the Topsy-like growth of comrritlees, said, `You'd think if there- was ever a. instification for advisory committees giving so-called expert advice, it would have been during the energy crisis." The Roth-Metcalf bill gave Congress a little control over the life and death of advisory committees. It recuired that most committees be reviewed every two years and killed if not specifically extended. ~- -`~ . In theory, that sounds good. . - But, in faet,.it isn't working too well. The Federal Power Commission, for example, in spite of its inactive ad- visory grou,ds,~ubtnitted a r&~ori to the senate-, Government :Operations Committee recommending -that none be abolished and that it continue toispend about ~lO3,O3~ a year on the groups; :Arandom sampling of-15-of the agencies -responsible for advis~ry_. commaittees -with: Delaware- members showed that none were recommending any be killed this year and most were estimating. . bmiget increases by.- as much as one-third.. : - -i - People who work with the~advisory- -committees myth many cases they'd- ;be glad to get rid of them, but they - serve a purpoSe cosnpletely unrelated:: to free advi~.. They give government officials a way to -. recognize their:. friends threoghout the- country :or others~-who bave done distthguished - work in some area. -- ~ -. - - "The advisers get a little recognition when they're named to a group. They get a few all-expense paid trips somewhere. They're treated pretty - luxuriously," an executive department employe - who works with advisors - said. "The P. R. (public relations) `is probably cleap at twice -the price." - --But there are a lot-pf opponentswho -- thin!: (15 mIllion is afrë~dy too much to - be dishing out for free advice and "P. 574 Another problem is secrecy. - The Roth-Metcalf legislation on advisory committees bound the groups to public sessions. But a Government Orerations questionnaire that asked - how many closed sessions the advisors held last year turned `up a startling - number of groups finding some loophole by which they could meet secretly. -. -- - -- -. -- For example, the General Service - Administration advisory group, to which Wiliriington engineer Thomas E. -Evans Sr. belongs, held 34- secret. sessions last year.~.. .-. - - - Supposedly the dessioris- werefor reviewing ;bulding :designs and - the- credentials of architectural firths buha source in GSA said theke-crecyin many cases was t'questionable"at best andat worst covered -"pure--gossip :.and~ fa~or1tLsm - : -Awarding' of :arcliltecturai-:cor~tracts - is-one of the few areas where GSA is. allowed almost complete discretion in - --selecting the recipients.:- In - the Government Operations: Committee, where a massive project is. ~under way to keep track of the advisors,' - a. staffer said the - committee - is par- :-ticularly "irritated"bec~use,at leasf a -~half dozen:-riew- committees were created last year withspecific excmp-~ tions ro-n open mee mg~ v'-~ten vito their -law. - -. .1 Most of :those:advisory:- ~ornrnittees-:- serve - industy'in trade or product manufacturing areas; he said. - -. - -- - It must be pointed out, however,that - there are some advisory committees the system probably could not afford to .lose.. / The Veterans Administration volunteer service advisory group, headed nationally by Delaware's Naomi Powell, organizes 1U64000 - volunteers tuprovicle 10 miillonbours of free service to VA programs nationally each year. That - costs taxpayers a ridiculously low (7,500. - / The Fine Arts Advisory Committee of the State Department, to which Wilmington investment broker Bruce J~ Bredin belongs, solicits and provides private donations of furniture, art, cash and services to decorate the State Department reception rqoms izi 18th and 19th century style. Last year, they PAGENO="0581" cost tanpayers only $1,500, mostly for paperwork reporting their gifts and loans of art work. v-I ~ The Ad Hoc Committee on Spray Adhesives was formed by the Con- sumer Products Safety Commission last year to get such enperis on in- dustrial medicine as DuPont's Dr. Jo'.n A: Zapp, director of-. Haskel Laboratories, to evaluate a research study that suggested spray adhesives~ cause bIrth detects. The 10 eaperts selected worked en- tireiy by phone and letter and cost tanpayers nothing for their response to C,C cL~.StlOflS "That," a .CPSC ` attoraey~ gloated, "is true free advice." -- Dela~are has just a little more than its share of representatives on advIsarj committees, a Government Operations staffer said. - --- - No reason, he noted, it just does. The 7~ Delawarcans fill more than i-il committee slots. -~ J. `iV. Partridge of Columbia Gas, with membership on four committees, holds the most slots. Several others hold two and three positions each. DuPonters make up about one-third ci the membership from Delaware. Columbia Gas makes up about 12 per cent; The University of Delaware makes up about 11 par cent, and Her- cules rna:es up three per cent. Add San Transport and Delaware Trust to thnt li.st and the hail doien interests control two-thirds of the ad- visory positions parceled out to th~ First State. HERE ARE DELAWAREANS ON ADVISORY BODIES .1. W. Pcrtridç'e, rhcfrman of the h".rd of Colombia Gas. V.'ilmtr.~ton - `Techralctl Advisory Commit-cc ci Nailanc. Got Survey, Executive Advisory Committee. Nc'ura! Gas Trert-minuon end Distribution Advisory C'cm mtjtee. N~iional Petroleum Council. - -- - -Aide Wascrotein, Comc'uonity Legol Aid Society - Delaware Advisory CommIttee to CI..il RightS Coinimnisslort. - r.owlan5 Elcea, chief curator of Delaware Art Museum. Wiimini-ter. area - National EnO;v'ment of the Arts Visoel Arts Advisory Panel. c. D. Ouci., chairmen of -Detc.v'are or-cme Arts Council. Greerivilie - Nctitnt! Endov:menh of the Arts Public Media Advisory Fend. -Lent 1. W.tstlo-e, rresldorit of Detewere State Celene, Dos'er -Advisory CommIttee br U.S. Coast Gourd Academy. Ruth N.. LEViS, Detor.'ci-e Technical Cctiege, Driver - De!cwcre Advisory Committey to Clvii Rlçhts Commioctor,. Artlwr C. Annoen, vice preolder.t of Dclcware `trust Co., V,'iittin5tOfl - NctuCst.i t.cvaory Council oh Or-i-all Business Aeminlotrutlon. Nary B. Lubltstu. public relaliont officer for - Dclaware Train' Co., Wilmlr.rtafl - De'aware Ad. -vlsory Committee to Clvii r.ir-is CnrrtmsissiGn. - Frances West, director of Consumer Aftcirn for Dolav.'are - Toot Force or' Conservation end Fuel. Technical Adviaory Committee op Ccoaerectlonof `Energy. : -~ -. -- `~ - - - -~ NCfltth N. !rr-tiTh. directar at special pro!ects fur Distrits'l.s'e Eca'caoiun Clab~ Ci America, - Na-hanoi AdviserS' Council ~ Ecluculion 01 Discdvcntuged Cfildrets. 1-icry 0. Homhos, youth activities counselor of Divirienu 0! Juwtilc Cerrectiorts - National Valurtbcr~ Service Ltvisory Council. - L. C. Era-i-teen ?oetrniiccl cooulf~nl for Do Pont - Natural Gas Trz.nsmicsion and Distribution Ad- visory Cemmittee.a, - - - - James c. Ocrcz*. textile researcher for Do Pont - ncioeal Advisurp Ccrnmitteo for the Flammable Fabrics Act. Sort Eoyd.dyesarod chemicels division of Do Pont -lrOuslry Sector Advisory Committee on Industrial Chi-miculs Icr W.ahl'iialcral trade Netotiations. N-i-men Wildnr. dureclor of Delaware Nature Edecatics Centcr,~ilminglor. - Murint Petroleum and Minerals Adsinsry Committee. Wiluuam F. Euxhourn, comrtrollnr of Do Pont - Cosinets Avisor'p Councii-el Federal Reports. Par-i.e AnoitwortO. toroigit soles n-tanager of Do Pant - Inoast"y Sector Advisory Committee en Rubber or.: Plosti~s Materials for Muililateral Trace Nei-xtual,orts. Rietta-ro 0 Seaman. ~tnir--tunt treosurer of Do Pont - - f.Mr.cra Ocr-u-ices Asministralion Advisory Commit-eu of Cash W.enugemerul. Frets 1. Bt:e~~, senior cnvironmentcl ~uatity cnnsultanl for Co Fool - National Air Pollution lecltr.ical Advisory Committee. - Ttv-sOere L. Cofi'-ns. Do Pont - Presldont's Commit-eo on Nai-ioruai Msdol of Science.- Williant F,. CtsatSt-r. enpi.'toer for Dc Pont Petrochemical t~oslry Advisory - CorniWtiee to.. ErvlrcmOrtet Protection Agency. - Dcvic I-i. Dawsum,director oh Do Pent - industry - Policy Advisery Committee for Molti:attral Trade. -- Notnliatiots. -. - - Robert C. Fora~, asnisfant general monomer of:-- Du Pest - ManagwmeotLxbor Textiles Advisory - Committee. - -- - - -- - - Edwin A. Gee. s~ier-vlce president of Do Pont - -- National Bureau ~ Standsrds Visitin Committee. - G. FranC Moofe,.consuttcnr- ma-neper for Do Foot - - Nat-coal Power-Survey TaskForce on Praclicas and Standards. - - -- James H. Seers..personnel retOtionn specialIst for Ca For? - Ad~isary Con-mit-ce on Sheltered -- Workshops. - - - - .~ .--- lrvin5 0. Shopiwu. chaIrman of the bourd of Do Punt - Notional Petroleum Council. - - -~ - - William A. Star~. Do Pont - Indostry Sector Advisory Coinnoitier or. Photo Equini-000t and Supplies for McotiiZte;l Trcttc Ne;niuc.iior.o. - - Richnrdd. SttrcEo'm, cooieroo,00lrle ecertomint for - Do Pcr. - Business Rnsearotr Advisory Committee. Committee or. ~cnoumer and Wholesale Prices,- - Committee or E~oornfc Grov.~th, Committee on - Manpower and Emnspboymnent. - - - -~ - - - - - - - - Don M.l'herrdoo,.morketitE monaner for Do Pont - Industry Secte Advisory Committee on Textif cc - and Apparel for Moftuloterel Troda Negotiations. John A. Zapp,~eoiorcl Hoskeif Lab at Do Pont-. Ad I-lam Committee on Spray AdireoiVOS, C.dvitery Committee on t.evisior. onc. Applicelien Cf Drlni:ur.g Water Standards, U.S. Army Armrmci-,tS Cammcr.d Scientific Adviscr~' Group. - - .iva-n T. Canter. educator, Dover - Delewere Advisory Committee to Civil Rimis Cemesussuon. Werner C. Brown, presidoni of Hercules- - Presiaer.l's Export Cour.cif. Joseph C. Venuts. presfdcnt of Hercu!m Trading Cerf. - lnoustry Sector Advisory Committee en Industrial Chemicals for W,ultllateral Trade Negctiatiomls. -- - 575 - Mrs. Lommot do Pont Cepofond lrdvIdo~l - Committee far the Preservat-on of thy 5~5f~ I-bare. t~icherel 0. Kortunfcle. vice pra-ridant Ci t.brehurs o Co., Wiimlnt'tan - Eat-mess F.eoerrcli Advisory - - Coutcil, Committee en Lconomlc Growth, Comrn mittee on - -ProductIvity ;nd TecitnologiCOt - Development. - Naomi Powell, Amcrlcen Lefon At'cfliory - Veterans Administration Volunteer Lorvica Nctl008i - Advisory Commission. - - - - - Joseph A. Roseothal. ct-ar-Coy, Wiin-hintton - Delaware Advusory Committee- to Civil Rlotstc Commission. - - - Emily Morrlb, Copitet Dey Care Center. Dover - - - Delawarc Advisory Con-imiefee to Civil Ri~tltS. CommissIon. Bob Vl'ecerle, vice- preslctunt of Cebumbla Go, Service Co., Wiimint-fon -- t-hrtiooi-l Ccc Survey's - - Technical Advisory Test Forcr on ReOuiatioo and - Lerislc.iiaa Rcgarcilnt Dietributiot P. W. Fr-let, Columbia C-cs, WilminOfot - Task - - Force er-i Fir.ancir.t Distribution. War N. Levy, vice prcsis:sr of Colombia Gas, Wilminptun - Tcsk Force en Faciiilieo for Distribution. - - Seymour Orltfot-y. sonlor vice president of - - Columbia Ges, V.'iSnintoo --Ernorçency Adsinory Committee Ic- Nrterci Gus. - Charles K. Starlet, Ccbumhix Gas, WilmIngton - Test Force or tsclcrmer Gas Supply. - - - Leoncre- L. Eecbe, chiel economiotr. forCoti'iibbo Gas,- Wilmington - General lank Fot .~ on Distribution. - - -- - - PAGENO="0582" Ci PAGENO="0583" 577 the invisible branch of There are more than 1,300 of them, and they have thousands of industry members, but they're little known Are the committees effective? Do business representatives make any significant impact on policies? The dispute rages. By William H. Miller ALMOST EVERY DAY, from all parts of the coun- try, briefcase-toting busineosmen stride off airplanes at Washington's National Airport, slip into taxicabs, and head for federal departments and agencies to let bureaucrats pick their brains. They're among an astonishing 24,000 members of federal advisory committees-men and women from all sectors of society who, at the government's request, provide data and advice to help shape national policy-making. Some industry members of the panels describe the committees as "a waste of time," an "exercise in futility," a "political cop-out," or "window dress- ing." Advisory, committees: 38 PAGENO="0584" 578 Many others, though, speak glowingly of their value. Still others say, yes, they're worthwhile but they aren't structured correctly or used properly to be truly effective. Congress, meanwhile, is suspicious of the panels. And departments and agencies swear by them. Whatever their worth, the committees are-or can be-a potent force in Washington. Same ob- servers call them `the fourth branch of govern- ment." They more properly might be termed the "invisible branch," because they generate few headlines. Even businessmen probably aren't aware of their number and scope. As of November 1975, no fewer than 1,341 ad- visory panels were in existence. During 1974, such panels held 3,626 meetings and submitted 1,014 reports. Those tallies are from the White House's Office of Management & Budget (0MB), which is now required by Congress to keep track of such statistics. Inone way or another, virtually every one of the committees ponders issues that affect manufac- turers. Thus, it's not surprising that industry rep- resentatives sit on most of them. In fact, "industry people must make up half of the membership," estimates Vie Reinemer, staff director of the Sen- ate Subcommittee on Reports, Accounting & Management. "No respectable large company has fewer than 20 members on advisory committees." The army of advice does not come cheaply. Ad- visor)- units in 1974 cost the fedeml government $42.3 million (even though in most agencies the members serve without pay, except for expenses upon request). Estimated price tag for 1975: $39.4 Are the committees worth it? Apparently the government thinks they are. As evidence, William E. Bonsteel, chief of OMB's committee manage- ment secretariat, points out that mostofthe panels are surviving a close government scrutiny aimed at weeding out the ineffective ones. Under the Advisory Committee Act of 1972, he explains, departments and agencies must justify the need for their advisory groups. Some 200 have been abolished, and about 20 more are being pruned each month (although roughly an equal number are created). These terminations, Mr. Bonsteel believes, "prove agencies are taking the law to heart." And the fact that 1,341 committees have passed muster indicates the agencies find them worthwhile, he suggests. A political `out'? Advisory committees are formed in a variety of ways to serve a variety of purposes. They can recommend standards, funnel information to the government, act as a sounding board for policy proposals, pass along complaints, study problems, probe scandals, initiate ideas- and even certify tea. They also can provide a convenient "political out," notes Richard Berman, whohas seen many of the committees in action as labor counsel for the U. S. Chamber of Commerce. "When a department secretary or an agency head faces a particularly touchy policy issue, his decision is bound to alienate some sector- L~ If 5.,- -`.~` "No respectable large company has fewer than 20 members. .. 39 PAGENO="0585" ADVISORY PANELS 579 industry, labor, or the public," says Mr. Berman, who himself sits on the ad hoc Hazardous Mate- rials Labeling Standards Advisory Committee of the Occupational Safety & Health Administration (OSHA). "But a committee composed of represen- tatives of those different elements can provide a consensus recommendation-even though it may be a weak one-and take the heat off' the depart- ment secretary or agency head. To government, however, the opposing interests on advisory committees play a useful counter- balancing role. As Kenneth Van Auken, a Bureau of Labor Statistics (BLS) official who husbands the Business Research Advisory Council. declares: /1~ ~. ~ Having differing viesvpoints represented on the committee is the greatest protection sve have of BLS objectivity.' For their part, most businessmen seem to like advisory committees, too. Departments and agen- cies report they usually find no lack of response from industry in instances when they invite com- mittee volunteers in the Federal Register. Nor do they get many refusals when, on their own voli- tion, they seek out specific managers to serve. Most industry advisory committee inembers queried by INDUSTRY \VEER view theii' se~'vice as a two-svav street: the government benefits, and so do they. In fact, some of the praise is so glowing that the critics of the panels could cite it as proof the industry members are "copping out" to the gov- 40 For example, Donald E. Stingel, president of Swindell-Dressler Co. and a member of the Com- merce Dept's East-West Trade Advioory Commit- tee, observes: "Until this committee was formed, many companies had no idea of how the export licensing procedure works. And the government had no idea of some of our problems. It has been a mutual education." And one nesvcomer to advisory committees, Dr. Arthur Kantrowitz, vice president and director of Ayes Corp., admits: "I've been surprised at how much you can learn about what's going on in gov- ernment." He joined the Commerce Technical Ad- visory Board (CTAB)-which the Commerce Dept. regards as one of the most active of its 72 committees-a year ago. Besides providing an inside pipeline to govern- ment, committee service can yield valuable infor- mation from other members, remarks Carl Gerstacker, chairman of Dow Chemical Co. For- merly chairman of the Export Expansion Council (non' recast as the President's Export Council), he admits that "on same issues I learned more from other committee members than I did from my own Dow people." Check on influence. Managers hesitate to say it outright, but they also see serving on advisory committees as a way of influencing policy. They insist their role is a healthy part of the political process. Some critics, though, regard it as influ- ence peddling. Fears that such influence was getting out of hand-or might-led Congress to pass the 1972 act. Fathered by Sen. Lee Metcalf (D, Mont.), the law did far more than require departments and agencies to review the effectiveness of their advi- sory committees. It also called for the panels to open their sessions to the public in most cases, to publish ample advance notice of meetings, and to have balanced membership (although the defini- tion of "balance" remains hazy). Giving impetus to the legislation was the furor over the role of advisory committees in the former Bureau of the Budget (now 0MB). Critics charged that the panels-made up exclu- sively of industry representatives sitting in closed, unannounced sessions-were able to quash pro- posed government studies and reports that sought data which industry didn't want to give. Among the most celebrated casualties: a Federal Com- munications Commission study examining the ef- BERMAN-A diverse committee can "take the heat off"a department secreta~s' or agency head, PAGENO="0586" ADVISORY PANELS 580 fects of conglomerate ownership of broadcast sta- tions. Congress was also upset over the now-defunct National Industrial Pollution Control Council, a Commerce Dept. committee that was supposed to advise the President on antipollution measures. The trouble was, contended Sen. Metcalf, the council was made up solely of "representatives of companies that have the greatest experience in spewing filth and poison into our environment." The council, he said, was "like a rabbit sentto fetch the lettuce." c..~ ~ 1_~ ~. -~ ~ ~., I f `\`\, `~~\ The many faces of advisory committees Some are called "boards"; others, "commis- sions"; still others, "panels," "councils," or sim- ply "committees." The nomenclature of the gov- ernment's 1,341 advisory groups varies-and so does the way they're formed. Nearly two-thirds are created by Congress. Of this category, some have unlimited life, like the Interior Dept's advisory panel on historic sites or the oft-ridiculed Board of Tea Experts in the Dept. of Health, Education & Welfare )established in 1887 to certify the quality of tea imports). Other so-called statutory committees are im- paneled for a specific period to perform aspecific task. For instance, the Commerce Dept's 26 new sector advisory commillees were asked to pass along recommendations from individual indus- tries to guide U. S. negotiators at the world trade talks in Geneva. Similarly, the new Commission on Federal Paperwork has until 197710 prepare recommen- dations for easing the burden imposed by gov- ernment reports. And the National Commission on Fire Prevention & Control had Iwo years to Window dressing? To many businessmen, how- ever, charges of their ability to sway policy are vastly overrated. One top industry executive, probably reflecting a widespread view, bluntly calls advisory commit- tees "a waste oftime." Normally a man who speaks openly for quotation, he asked that his name notbe used; he sits on a sensitive energy-related commit- tee and didn't want to damage his already fragile relationship with environmentalist and consumer "But you can say that it Imy service] is an exer- propose solutions to the nation's fire problems before it closed shop in 1973. Sometimes, when Congress passes a law, it also creates a committee to evaluate howwell the legislation is being implemented. The Labor Dept's new Advisory Council on Employee Wel- fare & Pension Benefit Plans was born in this manner, a child of lost year's pension reform legislation. Then, too, there's a group of statutory commit- tees set up to meet periodically. Health, Educa- tion & Welfare's Advisory Council on Social Se- curity, for one, is instructed to convene every four years. Another broad category comprises "agency committees" created by departments and agen- cies under their own authority. The controversial National Petroleum Council, which advises the Interior Dept., falls in this group, as do various agencies in the young Federal Energy Adminis- Finally, there's a smaller category of groups created by Presidential order. Among recent examples were the Presidential Clemency Board and the Rockefeller commission that invesli- gated domestic CIA aclivities. The committees vary in costs, too. At one ex- treme in 1974, with a budget as big as its name is long )about $2 million), was HEW's National Commission for the Protection of Human Sub- jects of Biomedical & Behavioral Research. At the other end of the scale; the Civil Aeronau- tics Board's advisory commiltee on aviation mobilization. Existing solely to verify the agen- cy's inventory of civilian aircraft, ils members submit reports by mail. The budget for 1974 was a mere $75. 44 PAGENO="0587" 581 COLLIER (SEATED)-The President's energy message was `very coincident" to committee recommendations. cise in futility," he grumps. Another executive, Samuel MacArthur, re- cently retired chairman of Federal-Mogul Corp., complains that many advisors' committees ~ire merely "svindosv dressing." They're especially inef- fective, he thinks, when they report to "a figurehead" rather than "an actual doer" who may, be at a loiver level in the bureaucracy. Mr. MacArthur currently scm-es on the automo-, tive equipment Industry Sector Advisory Commit- tee, Although he praises the committees as "a góod~ thing," he svorries that their representation is so broad-based their reports "won't go beyond generalizations." Not only are advisors' committees often too eral, but they're also "too structured" to be effec- tive, ventures Audrey Freedman, an economist for Organization Resources Counsellors Inc., N. Y,. Ms. Freedman worked closely ovith ads'is~ry panels during 12 years as a bureaucrat in the Labor Dept. and the Cost of Living Council. Nose', as an industry consultant, she sits on three such committees. She says that government officials, especially at the policy-formulating level, have a great need for industry's advice--and es'elcome:it, But instead of relying on committees, she thinks they'd get better advice from industry by simply asking executives for their recommendations on an informal basis. Also, she notes, a committee often is ineffective because an agency "isn't always frank" in provid- ing information or spellingout options to the mem- bers, fearing "it might get some tough advice in Similarly, she says, an agency often will "steer" an advisory committee in such a way that the panel will reflect snly the advice that the agency seeks, "Used that way," she states, "a committee amounts to nothing more than a papal stamp," Policy imprints. Indeed, to a largedegree, indus- try members believe the effectiveness of an advi- sory committee depends upon how well it is used. For example, Dr. Donald Collier, vice president of research for Borg-Warner Corp., notes that Commerce's CTAB, of which he is a member, is "especially sensitive" to the leadership of its chairman, Betsy Ancker-Jshnson, assistant sec- retary of Commerce, "Herpredecessors were not as activist Iwith the committed as she," he recalls, "and the committee spun its wheels." CTAB's work shows how an active advisory committee can make an imprint on policy. Dr. Collier points out that President Ford's energy message in January 1975 "was very coinci- dent" to recommendations made by CTAB in its critique of the Project Independence blueprint. The panel urged use of market forces, rather than rationing schemes, to achieve energy conserva- tion. It also called for all-out development of coal resources-rather than stressing more exotic fuel sources-as the U. S's top immediate energy re- search thrust. Previous CTAB recommendations led to the cre- ation of the present American National Standards Institute, revisions in the patent system, legisla- tion which established a national highway safety progmm, and creation of the post of assistant sec- retary for R&D in the Dept. of Transportation. Otherindustry members of advisory committees cite further examples of their policy successes. A sampling: * Dosv's Mr. Gerstocker says his Export Expan- sion Council conceived the DISC (Domestic Inter- national Sales Corp.)progmm, which enables U.S. firms to defer tax payments on as much as half of their export income. * Ms. Freedman credits "oteady, gentle" persua- sion by industry members of the Business Re- search Advisory Council with musing the BLS to begin developing a new employment cost index, The index will measure the coot of labor by hours worked rather than by hours paid-a compilation the bureau has resisted because it's more difficult and unions haven't wanted the change. * Willis A. Noel, a retired Reynolds Metals Co. executive who is a member of OSHA's national 45 PAGENO="0588" 582 advisory committee, ticks off several of his panel's recommendations that have been adopted. Two of them: use of colleges to train OSHA inspectors, and giving the states the choice sfdevelopingtheir own standards or accepting federal standards. o A spokesman for the National Petroleum Council, a 30-year-old Interior Dept. advisory unit (nosy the target of a lawsuit by Sen. Metcalf for inadequate balance), notes that its 1972 energy outlook urged greater coordination of federal energy policies and expanded R&D efforts. The recommendations, published before the Arab em- bargo, helped lead to creation of the Federal Energy Administration, the Energy Resources Council, and the Energy Research & Development Administration. And some failures, There are countless exam- pies, though, of where advisory committee recom- mendations have been turned down. For all its reputed clout, the NationalPetroleum Council has taken its lumps. In 1975, Congress repealed the oil depletion allowance, which the council had long fought to retain. And in 1972 the Nixon Administration ignored its advice to retain oil import quotas. Even the Export Expansion Council, which suc- cessfully sold its DISC proposal, has had disap- pointments. Mr. Gerstacker recalls that the panel "got nowhere" with its plea that Export-Import Bank financing terms on exports be fully competi- tive with the terms of other nations. The council also lost its fight for subsidies to make transatlantic shipping costs of U. S. exports competitive with those of imports. And it failed to persuade the government to change the laws re- quiring that cargoes shipped between U. S. ports be carried in U. S. ships, which are more costly. Businessmen seem especially frustrated by OSHA. They grumble that they often can't get their recommendations past labor, academic, and public members on OSHA advisory committees. And even when they do, they complain, the agency ignores the advice-or svaters it down. As one case in point, George Fratcher, an A. 0. Smith Corp. engineering executive who sits on OSHA's noise standards advisory committee, points out that the agency's final noise proposal-now subject of hearings-"differed ap- preciably" from the committee's recommendation. The agency adopted the position of the labor members on the panel, overruling the majority from industry, academia, and the public. Living with labor, consumers. Similar splits be- tween industry and labor representatives presum- ably will be commonplace now that committees must have balanced membership. But that may not alsvays be the case. Both Mr. Fratcher and Mr. Noel, for instance, note that on their OSHA committees the separate interest groups don't always vote in blocs. They cite cases, in fact, where industry members have disagreed among themselves. And Borg-Warner's Dr. Collier adds that on the CTAB committee he doesn't "see people coming to meetings committed to a party line." In some cases, "balanced membership" means that industry people must sit on panels with con- sumer representatives. But that potential adver- HEW: Washington's top advice seeker By a wide margin, the Dopi. of Health, Education & Welfare leads the rest of the government in the creation of advisory committees. At the end of 1974, it boasted 299 of them, embracing 3,603 Other departments and agencies with large numbers of committees: Oepartment Number of Numberof or agency committees members Agriculture Dept. 163 2,013 Interior Dept. 126 1,726 Defense Dept. 97 1,306 Commerce Dept. 72 1,337 Small Business Administration 67 1.693 Commission on Civil Rights 51 730 National Science Foundation 45 494 State Dept. 39 1,587 In contrast, the Dept. of Housing & Urban De- velopment had onlytwo panels atthe end of 1974. Every governmental unit had at least one escept the Farm Credit Administration, the National Mediation Board, and the American Battle Monuments Commission. They managed to carry out their duties with no outside advice. 47 PAGENO="0589" sary relationship can actually be beneficial, de- clares Marie Scotti, manager of safety and health forthe Maxwell House Div. of GeneralFoods Corp. and a member of the Consumer Product Safety Commtssion's Product Safety Advisory Council. `Initially, I thought the consumer members were gotng to be anti-industry," she confesses. "But through their service on the committee, I think they've gained at least some appreciation for industry's problems. And I now have a better re- spect for their paint of view-as well as their knoovledge and resilience. "It's gsod for business executives to be reminded of the basic intelligence of people in the mar- ketplace." However, it may be dangerous to become too sympathetic to other interests on advisory committees-especially labor-warns the Chamber of' Commerce's Mr. Berman. "A lot of management people go on committees without realizing that they'll be serving with labor members who equate the experience with collec- tive bargaining," he says. "They [managersi think everybody on the committee is going to be reason- able. Their position starts eroding immediately." Dogmatism vs altruism. Furthermore, Mr. Ber- man fears that management members who have "unique professional backgrounds" may represent industry poorly when they are assignedto commit- tees. "They may be more disposed to represent their professional view in an academic sense than the industrial view in the practical sense." On the other hand, Ms. Freedman faults industry-and labor, too-for not being altruistic enough. "They bath on occasion join committees hoping they'll get exactly what they want," she observes. "Unfortunately, if they send proponents of a dogmatic point of viesv, nothing positive gets accomplished." Positive accomplishment. That's the goal, cer- tainly, of all advisory committees. Members differ on their perception of what is "positive," as well as their role on the panels. But then, similar disa- greements occur among members of government's three "official" branches. Why should advisory committees-the unoffi- cial fourth branch-be any different?D ADVISORY PANELS 583 I I..! Industry's ambassadors Run dovia the organization chart of almost any large U. S. corporation and you'll likely find names of executives who are sersing-or have served-on federal advisory committees. Nine prominent companies provided 50 or more members ench to government panels in 1973, reveals an index published by the Senate Subcommittee on Reports, Accounting & f.fun- agnment. RCA ted the list with 93, one more than ITT. Other firms were: Communications Satellite Corp.. 81; Collins Radio, 80; General Electric, 79; AT&T, 74; Exxon, 70; Bendix, 67; and Westing- house, 58. Oil companies were especially well rep- resented. Besides Esson, others sending large delegations were Atlantic Richfield, 33: Standard of California, 24; and Phillips, Texaco, and Gulf, 21 each. Even larger representations came from some of the big universities. The University of Califor- nia provided 374 members; Harvard, 130; Colum- bia, 108. The AFL-CIO and Its affiliates sold 226 posts. The biggest trade association membership came from fhe AirTransport Assn. of America, with 87. 48 PAGENO="0590" 584 By Henry S. Bradsher Washington Star Staff Writer / A Pentagon task force has recom- mended that the transfer abroad. of revolutionary advances in technol- ogy be permitted only to allied coun- tries, provoking complaints from some U~S. industries that they might lose Third World markets. The task force of the Defen Science oar s u ie prevention of ~ useful technol- ogy, industrial equipment and prod- ucts to Communist countries. It pro- posed some loosening of present restrictions, shifting emphasis from limiting sales ,of equipment and products to controlling design and manufacturing know-how. "Control of design and manufac- turing know-how is absolutely vital to the maintenance of U.S. techno- logical superiority" in strategic fields, the task force felt. IT SOUGHT to prevent "leakage" of major new technologies through neutral countries to potential enemies, as has been occurring, by applying the limits on Communist trade to all nations outside the present Western control system. The Defense Department is now studying the task force's recommen- dations, which would `require exten- sive changes in the present system of controlling foreign trade. The de- partment plays a key role in the system in combination with the State and Commerce departments. Although Principal Deputy Secre- tary of Defense William P. Clements Jr. has ordered that an implement- ing plan be developed, a Pentagon spokesman said yesterday the de- partment would not necessarily push all the recommendations. When the task force report was made public Tuesday at a hearing of the Senate Banking Committee's international finance subcommittee, representatives of electronics, com- puter and machine tool companies protested that the recommendation on limiting some technologies to allies might cut them out 0! many markets. THE SUBCOMMITTEE and the House International Relations Com- mittee are considering renewal or replacement of the Export Adminis- tration Act which controls foreign trade. It expires Sept. 30. Testifying before the House com- mittee on March 11, a Harvard ex- pert, Graham Allison, said "the cur- rent system is not achieving the U.S. national security objective for which it is designed. It fails to prevent ship- ment to the Soviet Union of technological products of potential concern to the United States, while restricting U.S. companies from sell- ing many products of no strategic importance." The system, created more than two decades ago and modified sever- al times since then, links North Atlantic Treaty Orc'anization nations, except Iceland and' Japan, in a coor- dinating committee known as CoCom to control trade with Communist na- tions. "The U.S. exporter to Communist countries is still confronted with greater barriers than his counter- parts in other Western countries," a Library of Congress specialist, John P. Hardt, told the House committee. J. Fred Bucy, chairman of the Pentagon task force, noted in a memo with the report that "it is always going to be difficult to obtain full cooperation on technology issues from CoCom member nations." PRESSURES FROM West Euro- pean businessmen eager to make money in the East sometimes over- ride security considerations as view- ed from the Pentagon, a senior offi- cial there said recently. So does U.S. domestic political pressure, as in the American decisiOn at the warmest period of detente to help build the world's largest heavy truck plant on the Kama River east of Moscow de- spite Pentagon objections. ~Frorn the Washington Star, March 25, 19767 ~ll~aL~d] ~J0~o 4~J~J I~ IExpc~ted O~lly tc Uo~o ~ Ae~? PAGENO="0591" 585 The legislation on U.S. trade was loosened in 1972 to -remove controls `except when their absence "would prove detrimental to the national se~ curity of the United States." When renewed in 1974, the law increased Pentagon powers to review exports that would "significantly increase - the military capability" of a Communist country. BUCY'S TASK force was appoint- ed to study the way this worked. As executive vice president of Texas In- `struments, Inc., a leading electronics firm, Bucyhid~ rè~üiãtióñ olta'kiiig a faily hard line on Communist trade. The task force's report there- fore surprised some observers with its drastic new approach which amounted to liberalization in some aspects. Selling machines and products to the Communists is i~ot the main dan- ger of helping them grow stronger to the possible detriment of the West,. the report said. "Design and manu- facturing know.how are the principal elements of . strategic technology control," it said. Therefore, primary emphasis in control efforts should be placed on "arrays of design and manufactur- ing information that include detailed `how to' instructions . . . plus si~ni.fi- cant teaching assistance. . . . key- stone' equipment that completes a process line and allows it to be full utilized . . . (and) products wit technological know-how - . - accom- panied by sophisticated information on operation, application, or mainte- nance." "TO PRESERVE strategic U.S. lead, time," the report said, "export should be denied if a technology represents a revolutionary advance to the receiving nation, but could be approved if it represents only an evolutionary advanee." PAGENO="0592" 586 /From the National Observer, March 27, 19767 DANGERS OF TAILGATING Braking standards lowered despite more rear-end crashes. By Paul C. Mood You're doing the speed limit along the highway, a big truck close behind. If trouble comes you can stop in about 200 feet. The trucker probably can't. Accident records show heavy trucks are ramming into automobiles st a growing rate. But Government safety officials have just approved lower braking standards for trucks. Federal braking standards for heavy trucks traveling 60 mph. on dry pave- ment have been reduced 40 feet since they were first proposed in 1971. The latest revision by the National Highway Traffic Safety Administration (NHTSA) requires that a truck, loaded or empty, be able to stop in 293 feet, about the length of a football field. That's 35 feet farther than the old maximum for an unloaded truck, 16 feet more than the superceded maximum for a loaded ve- hicle. Reluctant Action The Federal safety agency clearly was reluctant to back down on truck- braking requirements after defending them for years. But officials were con- fronted by some obvious mechanical problema encountered in new braking systems, plus the financial difficulties of a depressed trucking industry. Dr. James B. Gregory, NHTSA ad- ministrator, said in announcing the low- er braking standards: "While it evould so possible to require redesign of the vehicles to eliminate these [mechanical problems], the agency considers this course of action unduly costly in view of the economic situation of the heavy- from behind by tractor-trailers." He truck industry. . . . The agency has cites stats from North Carolina, Penn- decided that it should instead reduce sylvania, and Texas to show that truck- the performance levels of the standard into-car crashes are making up an in- somewhat , . . while design problems creasing share of all rear-end collisions. are being resolved by manufacturers." Why? To Kelley it's not surprising. Seeing a Bright Side Before the current national speed limit was adopted, many highways were Gregory had tendered his resignation sosted with limits allowing autos to go as chief of the safety agency just before 10 m.p.h. faster than trucks, and auto- the new brake rules were announced. mobiles generally traveled at higher He denied there was any connection speeds. between his departure plans and either When they had to be stopped, cx- the braking ruling or the long contra- plains Kelley, it took longer for autos versy over passive passenger restraints to be braked, so drivers tended to such as air bags. He will continue to keep out of the way of trucks. But with direct the agency until a successor is both types of vehicles traveling at the named. same speed, the incompatability of auto The Insurance Institute for Highway and truck brakes has been accented. Safety, an advocate of improved brake At the core of the brake problem is standards, deplored the change in a controversial requirement that heavy truck requirements, without being en- trucks be able to meet the stopping- tirely discouraged. The "much weak- distance stsndsrds in a 12-foot-wide ened" standard that remains in effect lane, without uncontrolled locking of `still represents a positive, if modest, wheels and lOse resulting probability of step toward solving a major piece of "jackknifing" of trucks and trailers. the human damage problem," says A. Federal safety officials are barred B. Kelley, institute vice president. from specifying mechanical means to Kelley warns specifically of increan- comply with their performance stand- ing the disparity between automobile ardo, but truck manufacturers have and heavy-truck brakes at a time when chosen to use a computer-controlled the 55-mph. speed limit "has increased anlilock device that momentarily re- the proportion of rear-end crashes in leases braking pressure when a vehicle which automobiles are being struck starts to skid [The Observer, Nov. 29, 1975]. This, coupled with pswerful new brakes on the front axles, has pro- duced mechanical problems and led to the trucking industry's cries for relief. The weakening of broke standards has the effect of suspending the urgent need for antilock devices by permitting less powerful front-wheel brakes. Pre- sumably when antilock problems are worked out, the more stringent braking standards will be restored. Buses Get Pestpanement Buses, which have had particularly widespread and critical troubles with antilock treatment, already have re- ceived a NHTSA postponement until next Jan. 1 of requirements for antilock devices and tougher braking standards. Why so much concern over the prcblems of heavy vehicles on the high- way? Joel Gustafson~a...m.efnt?er..p.f.tte National Mqfcir..VehicieSafetY Advisory Council, summarized it in ~a rehént council study memorandum: Although heavy trucks make up less than 1 per cent of all registered vehicles, they are "involved in 2.6 per cent of all acci- dents and 7.3 per cent of all fatal accidents." Can that following truck be stopped in time if you must sud- denly apply your brakes? PAGENO="0593" Exemption Five Apparent abuses of the advisory committee act have occurred in the rationales such committees used to close their doors to the public. The nine exemptions listed in the Freedom of Informa- tion Act as justification for closing meetings are recogtuized in the advisory committee act. One of those-exemption live-has been heavily used by advisory committees. Lee Metcalf (D Mont.), chairman of the Reports Sub. committee told the Senate Feb. 6 that the Justice Depart- ment in its original guidelines for implementing the ad. visory committee act "indulged in some bureaucratic embroidery which handed agency officials an all-purpose alibi for barring the public from meetings." Metcalf was referring to exemption five, which stipulated that internal or intra-agency memorandums or letters were exempt from mandatory disclosure. The Justice Department guidelines originally said that "by analogy~' ex- emption five also could shield the discussions and deliberations of advisory panels. A subsequent resvrite of the guidelines by the Office of Management and Budget rescinded the language pertaining to exemption five. Further, four district court cases have ruled that exemption five is inapplicable to advisory com- mittees. Still, such agencies as the Food and Drug Ad- ministration, the National Endosvment for the Arts and the Nuclear Regulatory Commission continued to rely on the use of exemption five to close meetings of their advisory un- its, according to Metcalf. (FDA use of advisory panels, Weekly Report p. 223) Amendments The first amendments to the advisory act were con- sidered in hearings March 8-10 by MetcalCs subcommittee. The two amendments considered were introduced ~ February by Metcalf and Sens. Mark 0. Hatfield (R Ore.) 5 2947, and Charles H. Percy (R Ill.), 5 3013. 5 2947 would extend the act's coverage to advisory com- mittees of the Federal Reserve System, which at present are expressly exempted, Amtrak, the Postal Service and govemment units that serve Congress, such as the General Accounting Office, Congressional Budget Office and the Of- fice of Technology Assessment. Tho bill also would require agencies to solicit nominations for advisory committee membership and to disclose how they selected the membere, Exemption five of the Freedom of Information Act would be deleted from the advisory committee act as grounds for clos- ing a meeting. Finally, 5 2947 would give citizens the aarne legal right to sue to open a closed advisory committos meeting that they have under the information act to obtain documents that the government does not wish to release. Percy's bill, S 3013, would change the reporting xe- quirements for advisory committees. It would require dis- closure of any private funding or support received by any such committee. Also, the sponsoring agency would be re- quired to account for all advisory committee recommen- dations and the status of those recommendations. Proposed Deletion The provision in 5 2947 to delete exemption five as a justification for closing advisory meetings caused the most controversy at the March hearings. PRO: Right to Know Citing the public's right to know, Reuben Robertson, legal director for the Aviation Consumer Action Project, March 9 decried the use of exemption five to close meetings. He urged its deletion. "How is the presence of public observers going to interfere with legitimate committee ac- tivities?" he asked. "The courts have repeatedly rejected the argument that exemption five may be used in the ad- visory committee context, Still the agencies continue to in- voke it on a svholesale basis Political science professor Henry Steck said March 9 that "the greatest threat" to the act's openness mandate "has been the use and abuse of FOIA [Freedom of Informa- tion Acti exemptions, moot notably exemption five." Steck suggested a provision that allowed for "speedy resolution of contested decisions to close meetings and for a mechantsrit of sanctions that will discourage administrators from becoming sloppy or playing hide-and-seek with FACA [the Federal Advisory Committee Act)," CON: Inflexible Administration witnesses urged that exemption five be retained. HEW Under Secretary Marjorie Lynch said March 10 that an agency must be able to close an advisory meeting, at its own discretion, when regulatory matters are being do- cussed. "If we are to produce sound regulatory programs- it is essential that the agency have the discretion to close a portion of a meeting," she said, 587 Government Operationa -4 LFrom the congressional Quarterly, March 20, 197W Senate Hearings; Ban Sought on Closed Advisory Sessions ~Vhile the "sunshine" drive in Congress to eliminate closed sessions has shown increasing success over the years, the trend toward openness in meetings where the federal govemment seeks advice appears stalled. The Senate Govemment Operations Subcommittee on Reports. Accounting and Management reported March 8 that during 1974 only 55 per cent of federal advisory com- mittee meetings were open to the press and public. Twenty per cent of their meetings were wholly closed and 25 per cent were partially closed. As of Oct. 31, 1975, there were i~341 official committees giving advice to federal agencies. By comparison, 93 per cent of congressional committee meetings svere open during 1975, according to Congressibnal Quarterly's annual study of committee secrecy. (Study results, Weekly Report p. 152) The three-year-old Federal Advisory Committee Act (PL 92-464) stipulated that all advisory committee meetings be open except those csnceming matters~ ex- empted from mandatory disclosure by the 1966 Freedom of Information Act (PL 89-487). The advisory committee act also set standards and prescribed uniform procedures to govem the establishment, operation, administration and duration of advisory groups. (Background, 1972 Weekly Report pp. 1171. 2404, 2472) 70-426 0 - 76 - 38 PAGENO="0594" 588 Lynch also said the review of grant applications and contract proposals would be detrimentally affected by the deletion. "If advisory committee meetings in which research applications are evaluated should be opened to the public," she said, "the resulting premature disclosure of the contents of research designs would constitute a strong disincentive to scientists to submit their research concepts." 0MB Director James T. Lynn told the subcommittee March 8 that the problems resulting from the act, including those created by exemption five, could best be handled through administrative action "without imposing inflexible and hard.to-administer legislative requirements across the board." Lynn opposed the removal of exemption five, pointing to the "many examples of legitimate situations currently protected by this exemption." Public Participation Metcalf's amendments would further open the advisory process by requiring public solicitation of nominations of advisory committee members, with at least one-third of the members drawn from private citizens representing the public interest. Again, some administration witnesses were in strong disagreement with this section. Richard R. Rite, deputy assistant secretary of the in~ tenor, said March 10 that "to require an absolute percen. tage or number of members to be drawn from the general public for every committee would...cause advisory com- mittees to become little more than debating societies and would defeat the purpose for which many of them are formed." Hite said the nature of an advisory committee was to provide advice to federal officials in specific areas. These areas, often technical in nature, required expertise, ex~ perience and knowledge of a specific subject. Members from the general public, Hite said, might not have the expertise needed to provide good advice. `Fair Balance' In contrast, Steck said some advisory committees "were seen to provide the means for groups representing common if not identical interests and sharing similar views about policy to acquire inordinate and one.sided influence over various arenas of policy.... It is lobbying with a difference since membership on advisory groups is cloaked with the mantle of institutional legitimacy and public authority." Steck suggested that, instead of a required number of public participants on advisory committees, each federal agency be responsible for producing a "fair-balanced statement." This statement would force the federal agency to describe why the advisory group in question fairly represented diverse opinions. Also the fair.balanced state- ment could be challenged in court by persons wishing to contest the make-up of the committee. Steck's fair. balanced statement idea was well received by the subcom. mittee, according to a subcommittee staffer. Metcalf stated Feb. 6 that S 2947 would be offered "in the spirit of a discussion draft." Staff members on the House Government Operations Subcommittee on Government Information and Individual Rights said that hearings would be scheduled soon on proposed amendments to the advisory committee act. I -By Carol J. Ott PAGENO="0595" /From Science, April /Briefinci~ 589 19 7~/ NIH to Open Sessions to Budget Public The National Institutes of Health (NIH), prodded by congress, has agreed to open to the public previously closed por- tions of advisory committee meetings dealing with budget issues. Until now, most federal agencies have reluctantly complied with the letter of the Freedom of Information Act that was designed to èx~ pose the workings of government to the taxpayers. NIH has taken a step tow~rd complying with the spirit of that law as well. The Freedom of Information Act has been around since 1967, but it was not until 1972 that an executive order, and, subsequently, the Federal Advisory com- mittee Act, explicitly extended its provi- sions to federal advisory committees (Science, 4 August 1972). Then, a per- ceptible wave of panic swept through fed- eral agencies as one bureaucrat after an- other predicted an end to the days when the government could get candid advice through its advisory systems. How on earth, they wondered, could public bdsi~ ness be conducted in public? They con- cluded that it could not and hid behind an exemption that allowed them to close ad- visory meetings whenever money-and therefore substantive policy-was on the agenda. The explanation given for hold- ing executive sessions under exemption 5 of the Freedom of Information Act was that the preparation of the President's budget is a privileged process and that any discussion of budgetary consid- erations, no matter how preliminary or general, could be construed as being part of that process. Senator Lee Metcalf (D-Mont.), chair- man of the Subcbmmittee on Reports, Accounting and Management has con- sistently taken issue with that narrow in- terpretation of the law. For the past few years, he and members of his sub- committee staff have quietly but per- sistently been pushing for reform end, with NIH for a start, it looks as though they finally may be gaining ground. Following Senate hearings on advisory cbmmittees earlier this year, Metcalf wrote to NIH director Donald S. Fred- rickson about closed meetings. He point- ed out quite clearly that the partic- ular exemption behind which agencies have been hiding refers to the con- fidentiality of `budget estimates and sup- porting materials submitted to" the Office of Management and Budget for prepara- tion of the actual budget document the President submits to congress each year. `It seems to me thai these meet- ings should properly be opened to the public, if indeed they involve preliminary stages of budget development Within a week, Fredrickson replied that he agreed with the Senator. Fredrickson wrote that in the past the meetings had been closed because `we made a judg- ment that the rendering of advice on bud- getary matters is an integral part of the decision-making process ...," the `we" in this case not including Fredrickson who has been NIH director only since last July. (The fact that budget-making is in- tegral to decision-making, of course, is precisely why it should not be conducted out of public earshot.) "Upon receipt of your letter," Fredrickson went on, "we have reviewed our decision...." Fredrickson personally favors greater openness and is, perhaps, the first high federal official to explicitly point out that the exemptions that have been used to justify closed meetings are discretionary, not mandatory. And so, as he wrote in his letter of 18 March, "from this time for- ward," most advisory meetings will be fully open when it comes to matters of the budget. Metcalf hopes to cite NIH's new posture as a precedent as he continues efforts to open up other federal agencies as weII.-B.J.C. 123 PAGENO="0596" Denver Post March 4 1976 1 ~ ~ IC©~~ C©tr~~ ~By JOHN STOWELL drug company executive and a close Advisory Board as presently constituted tion Component of the National Child * WASHINGTON . - (AP) - Sixteen friend of former. president Richard lacks balance' in terms of discIplines Labor Committee. labor, consumer and environmental orga- Nixon. ` .` represented. Moreover, while Industry ap- Many of their~ nominees are frequent nizations. are urging President Ford to The `16 groups are recommending ~3. pears to be well represented, there is not witnesses at congressional and scientific èppolnt their candidates to the govern- names for'consideration to' fill the expir- corresponding representation from the . hearings on health issues. * rnent board on cancer.research to broad- ing terms `which were for less' than full labor and public interest communities. They include Dr.. Donald Austin of the en its'.perspective. .. ~` terms to allow staggered terms to begin `Troublesome, also, Is that the alloca- California Tumor Registry, who first sug. The campaign is believed to be the first operating on the board. , ` tiort of resources within the National , gested an association between sex hor- organized effort to Influence presidential " The cancer advisor3r committee is one' Cancer Institute has emphasized the ~ura-' mones and ~ancer ~n E~ appointments to any of the hundreds of of 1341 citizen panels set up to give rec tive rather than preventive approach to ~ ese~1etJ ye psteino Case official citizen groups `advising the federal ommendations to government agencies. ** i~ Y~ o g ~ l.A *cancer rcsearc . uc emp a~.s S Un or- ago warned that environmental pollution governinen unuer e wee-yea1~o e era visory tunate particularly in view of NCI 5 was causing more cancer Dr William The 16 `organizations claim `the present Committee Act., Specialists on tiiat iaw , recent estimate that.00 per cent of human "Lijinsky of Oak Ridge National Laborato- cancer advisory board has emphasized `say this is the first organized effort for a , `cancers, are environmentally induced," ry a critic of. nitrite preservatives in the "curative rather than preventiveS, slate of candidates to anY~advis~rY pa~iel. many by chemicals,ln the environmcnt.~' . cured meats' and `Dr.'Sidney M. Wolfe ~)Proae1\ to Cer resea nd that ti~ ~ ~e ~ Signing the letter were the United Auto and attorney Anita Johnson of the Nader labor and public interest communities their expenses anci a per diem fee Workers Union Ralph Nader S Health The nominees according to the letter The panel, the National Cancer Advi- PRINCIPAL SPONSOR ` . , `.. Research Group, Sierra' Club, Environ-' present a "balance of persons who have snry Board, `advises, the government's:, `The unprecedented drive has won the ."mental Defense Fend, National Resources `.special competence in epidemiology in Aational Cancer Institute on the insti support of Sen Lee Metcalf D-Mon~ Defense Council National Consumers health science with a demonstrated In `tute's expenditures of more than $600 ,`chairman of a Senate government'oPera- League, Consumer Federation of Amen- * volvement in grassroots citizen efforts for ~inillión annual incancer research. . . * ` `tions subcommittee and principal sponsor' ca, Friends of the Earth, United Mine' the welfare of the general public and per- The board is composed of 18 persons of the law These organizations should Workers Public Interest Economics sons representative of those sectors of the ~appoInted to six-year terms by the pres.. be commended and encouraged for their, Center, Rachel Carson Trust' for the `Liv- public, such as labor, whose members ident plus live ex-officio members. The initiative Metcalf said ing Environment tliivironment Forum are heavily affected by federal regula ory ~terms of sbc'inémbers' expire this year,' ~. In a letter sent to Ford, the 16 groups Environmental Policy Center, National actions or Inactions that contribute to the Including that of Elmer H Bobst former said In our view, the I~ationa1 Cancer Clean Air Coalition and Migrant Educa rise of the cancer rate PAGENO="0597" ByRobertPe,ar ~ck.%' Washington Star Stall Writer The director of the Na- tional Cancer Institute says the privileged position of his agency, including spe- cial acces~ to the White House, is causing "concern, suspicion and even con- tempt" among other scien- tists. As a result, Dr. Frank J. Rauseher Jr, director of the cancer institute, told a `presidential advisory panel yesterday, `~people in Con- gréss are beginning to ask about the motives of the en- tire biomedical communi- ty:" And they have a right to a~k after hearing scientists bicker, he said. "ARE WE as physicians and scientists really inter- ested in `doing something about a major public health problem, or are we more interested in getting our share of the funds so that we can extend our biblio- grapliies~ Your hear this,- more and mor~," Raucher said. "It `does cause me -concern." - Rauscher acknowledged that with its "end-run bud- get authority" and other privileges, the cancer pro- gram had won more money, positions and physi- cal space- than other units at the National Institutes of - Health. The chain of command is so arranged that "we can get the ears and eyes of the President directly,'' .Rauschei- said. He said these special prerogatives were justified because the country, has placed high p~iority on' the cancer pro- gram. He appeared at a hearing of the-~r~sjdent's Bjoin~çlj cal Rj~j~ Panel, a seven-member group. created last year to.cônduct a sweeping' examination' of NIH looking in-particular into problems oI tnanage- ment and morale. THAT PANEL was told yesterdayl that patient care mandated by. -Congress might be- draining re- sources and the attention of scientists away from basic research into the causes of cancer. NIH, un~era thultitude of external press4res,' is.püll- ing "away froth reasonably clear,, essentially noncon- troversial .` research- roles under strong leaders to- war~l both unclear and. thoroughly. controyersiâl'. roles in the areas of applied' knowledge through demon- strations Control programs and~ di~ect seryice deliv ery~ the panel s staff said in a report. - . In `a'n effort to :dCmon' strate' the fruits oT, its reseárch,~for example, NIH is prö~id1r~g-'.tre~d money" to start up~'- ~o~al" cancer.- control--programs, "which emphasize early diagnosis, treatment'. and contii~uiñg care. "IT'S ~GOING TO BE- traumatic," Rauscher pre- dicted, "if a community five years down - the -road cannot get enough money to treat its leukemic children as well as they re doing in a demonstration .(program) There's going to be all kinds of hell to pay, I'm sure, if vie. pull out.".: But the .cancer institute intends tO- pull out Of suclu programs `after . their.'first three to five"years. Several panelists, includ- ing Benno C. Schmidt, who also is -.Ohairman of the President's Cancer Panel, expressed the belief that the institute should not be in the business of recognizing "comprehensive cancer centers" around the nation, a task it `was assigned by, Congress~ Rauscher said it was too early to tell whether his agency was "skimming off the cream of the country's biomedical research competence into cancer to the detriment of other sO- cial and health problems." But he acknowledged tha~t "certainly the potential is there." *Rauscher said his major concern was' that the fight against cancer'was "being viewed more and more~ as successful at the expense of other programs." THE STAFF of the bio- medical research panel made these other points in its report: °NIH is "in trouble," caught in the .middle of deepening ideological, po- litical, budgetary and fiscal controversies." ~Leadership of NIH has been "increasingly politi- cized." - oNIH is no longer devoted purely to the "quest for new knowledge," but, to the dis- tress of -some of its scien- tists, is pursuing nonresearch aspects of the war on diseases as well. °"The internal orga~iiza- tion and functioning of the NIH,Jaclcscohererice," 591 - ~rom the Washington Star, October 29, 197g Pthi~ege' ~s Worry For NO PAGENO="0598" 592 ~rom the Atlanta Journal and Constitution, Nov. 16, 197g Panels Abound I Taxpayers Shell Out $50 Million Yearly, Support Sometimes Useless Advisory Units By JEAN HELLER i~urnat-CsoiflMIm WasO'rOton 5ore~u WASHINGTON - Despite a cam- paign to cut them back, more than 1,300 advIsory committees with a total membership of nearly 25,000 are spending about $50 million to provide the federal bureaucracy with advice that is often neither needed nor heeded. The 1,307 advisory committees in existence this year represent an in- crease of 65 committees over the last year and the $50 million price tag is up $8 million over 1974. This is so despite the three-year-old Federal Advisory Committee Act, which was designed to weed out use- less committees and discourage the formation of new o~s. The law also required that the advi- sory committees be populated with a cross-sect on of independent experts from the private sector. However data collected by Sen. Lee Metcalf, D-Mont., indicate the com- mittees do not always represent a cross-section of thinking on any given subject and are not always independ- ent of the agencies they were formed to serve. The one area in which the law seems to have made some progress is in opening up advisory committee meetings to the public. The Senate government operations subcommittee which Metcalf chairs now estimates that 55 per cent of all meetings are open and another 25 per cent are at least partially open. However, just because the meetings are open doesn't guarantee they are accessible. A Department of Agriculture Graz- ing Advisory Board had an open meetng earlier this year out on the rangeland under study. Anyone could attend but had to supply his own horse and bedroll. And the Aimy Corps of Engineers had an advisory panel which held an open meeting and inspection on a re- mote and rugged project site. The public was welcome, but strictly on a provide.your.own.tranSpOrtatiofl basis: Dune buggies and helicopters. According to a little-noticed con- gressional study dons for Metcalf, the Federal Advisory Committee Act bad some early impact in cutting the num- bers of committees, but suffered a reversal this year. From Dec. 31. 1972, when the first inventory was taken, to May 1, 1975, the number of advisory committees fell from 1,439 to 1,250. But as of Aug. 1, the number had shot back up to 1,307. "The outlook for 1976 is not encour- aging, either," Metcalf said, "when you consider that before the August recess, members of the Congress had introduced more than 750 bills estab- lishing, authorizing or otherwise af. fecting advisory bodies." The advisory committee budgets aiso are escalating rapidly. In 1973, federal agencies reported spending $31.1 million on advisory committees: Last year the total was near $42.4 million. While the Office of Management and Budget has recommended a $39.4 million ceiling this year, that seems unrealistic, according to experts. "It's naive to think the expenditures can go down when you consider that the number of committees is rising so fast," said one Metcalf aide. "For example, last April the Law Enforcement Assistance Administra- tion created the most expensive advi. sory committee on the books to study criminal justice standards and goals. It's going to spend $2 million by itself. And the most expensive committee PAGENO="0599" from last year is still with ca, The De- fense Manpower Commission spent $1.1 million in 1974 and I don't think it's going to go down this year." Contrast that with the advisory panel on emergency mobilization of commercial aviation which works for the Civil Aeronautics Board. That advisory group never meets, but con- ducts all its business by mail, No one is complaining, however, uinca the panel's annual budget is $75 for stamps. There are other advisory groups that almost never meet, but perhaps should. Last year the Interior Department's Emergency Petroleum Supply Com- mittee met only once. The Depart- ment's Foreign Petroleum Supply Committee didn't meet all, despite the Arab oil embargo in the first quarter of the year. Included in the material compiled by Metcalf is evidence that the advi- sory boards are not always the inde- pendent, free-thinking bodies they are supposed to be. For example, American Medical As- sociation documents show that the organization has an extensive, secret system to channel only doctors who 593 agree with AMA philosophy onto some 315 sensitive advisory boards that work for the, Department of Health,. Education and Welfare. Under the elaborate system, the AMA uses state medical societies to screen doctors to find those who are in the so-called "mainstream of medi- cal thinking." The AMA paid a large consulting firm more than $30,000 to develop a computer program that al- lowed the AMA to recommend its "cleared" doctors for vacancies on those HEW advisory boards. Another example in Metcalf's files involves the~ Acquisition Advinory Group appointed last summer by Wil- ham P. Clements Jr., deputy secre- tary of defense, The group was charged with im- proving weapons system acquisition methods, Clements described the AAG as "a group of independent but knswl- edgable individual." On the surface,the panel did appear to be a cross sectisn: three retired military officers, three consultants, one member from the railroad indus- try and the vice president of a sport- ing goods company. All, however, were former Defense Department officials, most of them with strong ties to the old-style pro- curement methods for which they were supposed to be seeking alterna- tives. An index of members of advisory committees just published by the Met- calf subcommittee shows that some business, labor and educational organ- izations have inordinately large repro- sertations en the advisory panels. In the business world, AT&T and RCA are tied for first with 95 advi- sory seats. I'l"F has 86; General Elec- tric has 80; Communications Satellite Corp. has 64; Exxon has 48 and IBM has 40. The AFL-CIO has 92 seats. The University of California leads in its category with 350 seats, fol- towed by Ham'ard with 167, the University of Texas with 110, MIT with 108, Johns Hopkins and the University of Michigan with 103 and Columbia University with 102. Metcalf has been trying to shake up the shadow bureaucracy of advisory committees for three years, with only partial success. He has vowed to con- tinue trying, with the exception of one committee which no one has ever managed to change, That is the Feed and Drug Adminis- tration's Board of Tea Experts which has been testing and testing since it was created by law in 1897. PAGENO="0600" 594 ~jrom the Washington star, November 23, 197~7 Why~ Advise?~7~~To Get.. Ears of High Officials By Stephen M. Aug officials) with quasi-governmental Washington Star Staff Writer status. It provides them with access Why do several thousand business at the highest levels of government executives sit on federal advisory to state industry positions clothed in committees without pay? the recommendations of an official Because - say those willing to dis- government group." cuss the matter - it gives them the That is probably true enough - - ear of high government officials. but those who defend these commit- Not that there's necessarily any- tees put a somewhat less sinister cast thing sinister about that, but the Ofl then~i. - critics of some of those -committees Consider Marriott's position. Al- - there are at last count 1,242 such though Marriott could not be reached committees - contend they give ~o discuss the matter (he is recover- ranking corporate executives an un- ing from a heart attack), one of his fair advantage over ordinary citi- aides, Tom Burke, vice president for `zens. : corporate communications, told why After all, they argue, it's not the Marri~tt is a member of several V ordinary citizen who gets to sit on the committees - including a Corn- prestigious Business Advisory Coun- *V m9rce De)~artment advisory' com- cil, it's people like Edwin D. Dodd; V m~tee d~eaiin~ with energy matters. the chairman of Owens-Illinois, Inc., V V The inflation in energy has been a or Reginald H. Jones, chief executive real bucket of bolts and it has hurt of General Electric Co., or J. Willard us, Burke explained, and as a Marriott Sr.'chairman of the Marri- result, it s important to know where ott Corp., `who get the President's the government stands, what it in- - ear. V tends to do about it, what programs One of the persistent V critics of it recommends and bow it will chan- advisory committees is -Vic Reinem- nel on down to business, industry and er, staff director of the Reports, Ac- consumer markets. V counting and Management Subcom- V mittee of ~the Senate Government THE OTHER SIDE is that this Operations Committee. V gives us a very direct opportunity to V - - V make sure the government `under- V "IT PROVIDES THEM (corporate - PAGENO="0601" stands the real world. This is a beautiful area for bad * legislation and ill-advised directives, and if the corporate scene is well-rep- resented, maybe we can get some very effective and responsible activity out of the government." Still, there are places where industry and govern- ment can meet in similar informal circumstances without the aura - or, de- pending on your view, stigma - of a federal um- brella. Albert V. Casey, chair- man of American Airlines, is involved in one, the Travel Program for For- eign Diplomats, Inc., a pri- vate, nonprofit corporation which sponsors visits by Washington- or New York- based foreign diplomats to the U. S. hinterlands. "Oh, that State Depart- ment thing," Casey recall- ed the other day. "It gives me a chance to sit with Bill Colemnn on one side and Frank Zarb on the other. "Hopefully," he contin- ued, "they get some direct input from the business- man." CASEY'S ANSWER pro- vides a good idea of why any businessman would want to be associated with a federal advisory commit- tee: It' offers a chance to get the ear. of, in this case, the secretary of transporta- tion (William T. Coleman) and the administrator of the Federal Energy Adminis- tration (Frank Zarb). It would also explain in part why there are 22,702 members of federal adviso- ry committees, and why some corporations may have members on as many as 95 advisory committees, as in the case of American Telephone & Telegraph Co. or RCA Corp. Not every committee has the glamor of getting the President's ear - or even that of a Cabinet officer. 595 John H. McChord, a lawyer at Internátiónal Telephone & Telegraph Corp., which has 86 advisory committee memberships, for several years has sat on the Feder- al COmmunications Com- mission's PBX Standards Advisory Committee, form- ed about five years ago to look into improvements in interconnecting telephone- related equipment to lines owned by telephone compa- nies. In addition to ITT, such firms as General Electric, the Milville Shoe Corp., North Electric, Union Camp Corp., Ameri- can Express and AT&T were représénted. AT&T FOR ABOUT the same length of time has generally opposed intercon- nection of customer-owned equipment on the grounds it might damage the tele- phone network and that it will take away telephone.. companies' profitable equipment-supplying busi- nesses. Recently, however, the FCC ruled that it was going to allow equipment made by others than phone companies to be certified for connection to telephone company lines. That was a key recommendation of the PBX committee (although AT&T and other phone companies Objected), and a victory for firms like ITT which make phone equip- ment. "I would say that the FCC's ultimate dcision - - - was favorable to our posi- tion," McChord said in a telephone . interview, a!- though the commission did not adopt a variety of tech- nical recommendations from the aavisory commit- tee. Was the committee worthwhile? "Yes, I think so," McChord answered, "I think,it kept the momentum going - . - of mqvement to- ward relaxation of - - - re- ~uiréments for intercon- nection which, from my point of view, is good." A NUMBER OF Washington-area business- men serve on federal advisory committees, prob- ably because their hOme- town makes travel to meet- ings easier. One is W. Reid Thompson, chief executive at Potomac Electric Power Co. Thompson belongs to three committees - the Federal Power Commission National Power Survey's Executive Advisory Comm- mittee, a Comm~rce De- partment comn~ittee on Coastal Zone Manaeement and an Interior Department committee called the De- .fense Electric Power Advi- sory Council. The coastal zone group. and the FPC advisory com- mittee both have members from all areas of life - academics, businessmen, working people, scientists.; The electric power group is composed of individuals as-: sociated with electricity industry, Tennessee Valley Authority, munincipally owned electric firms, It is supposed to assist in pro.- tecting the nation's power supply against damage in the event of hostilities. THOMPSON RECALLS that during the Arab oil embargo it considered irn-. `pacts the shortages could * have and the then Secretary. of the Interior Rogers C. B. Morton met with the group once. Thompson says the bene- fits are two-way: They en- able him to understand the problems of others and `you have a representative, of government. . - also sit- ting and exchanging views. Some benefit of getting your own views across." One other Washington businessman who serves on an FPC advisory commit- tee is Robert S. Hamilton, executive vice, president for marketing at Southern Railway System. The com- mission, he said, ."found that for the study they were making - which had to do with fuel requirements and fuel reserves and transp~- tatien - they should have someone who knew some~ PAGENO="0602" 596 thin~ about transportà- tion. `As a result, Hamilton was selected. But there are others be- sides businessmen on these advisory committees. Labor has substantial memberships, with the AFL-CIO serving on 92 advisory committees. The biggest entity - aside from. government - serving on: these advisory committees, however, is the University of California, which has. representatives on 350 advi- sory committees. Harvard is represented on 1~7 and. the University of Texas on: 110. Among local institutions, George Washington University has 25 mem- bers; Georgetown, 27; Pepco, 4; Washington Gas. Light Co., 3; American Se- curity & Trust Co., 2; Riggs National Bank, 1; Washing- ton Star, I and Post.Nêw- sweek Stations (broadcast: subsidiary of Washingtoii PostCo.), 1. A Government Opera- tions subcommittee, chair-. ed by Sen. Lee Metcalf, D~. Mont., who has had an in- tense interest in: government advisory cons- mittees, recently issued . a'. complete list of all ~22,702 members of advisory com- mittees. The list - the second to be issued by the subcom- mittee - along with afl annual report of such corn-c mittees, Metcalf said, can provide a great deal of information about the~e or- ganizations "which influ- ence the federal govern- ment in virtuall~r every area of policy making." PAGENO="0603" By CHARLES N. STABLEa ataff ~eportcr of TaE WALL STRURT JOURNAL NEW YORK - A federal advisory com- mittee `has agi~eed to recommend that "bot- tom line' statistics on the U.S. balance of payments no longe~ be pubflshed officially. on the ground. that they are meaningless and n~isleading. Talks with committee members indicate that their conclusion ~s supported by the. Federal Reserve Board and the Treasury. They expect approval by the Federal Office of Management and Budget, which has ati- thority over major changes in the Interna- tional payments reports. The timing is un- certain because the committee hasn't com- pleted and approved the final wording of its ranort. However, the committee is agreed ~`there is no single figure which can explain the balance of payments position of the U.S.," according to Edward M. Bernstein, a lead- ing international monetary authority and Washington consuitant who `is a committee member. "All the data (on International transactions) will still be reported, and in some cases improved, but there will be no one figure anyone. can look at and say, `that's the bottom line.'" , - The traditional balance of payments fig~ ures, reported quarterly by the Commerce Department, are supposed to summarize all the economic transactions betv,'een resi- dents of the U.S and those of other coun- tries. These transactions Involve trade in goods and services, transfer payments, loans and investment, both' short-term and long-term. The~ statistics ~re `closely fol- lowed by bankers and businessmen, official policy makers, economists and' foreign ex- change traders, ahd their publication ~ffeets the value of the, dollar . in international money markets. Original 1%teanlng "Lost" More oft~n than not In recent ye~rs; the figureshave sbown big deficits for the U.S. But it wasn't a desire to avoid publication of depressing economic statistics `that prompted the committee's agreement, àci- cording to Rimmer de Vries, international economist for Morgan' Guaranty Trust Co. of New York and a member of ~the group. Instead, he explains, "their original mean- ing has been lost." Red ink or black, the usual measurement concepts no longer neatly reflect the real economic position of the U.S., the commit- tee argues. One reason is' that the',major trading nations since early `1973 hate al- lowed the foreign exchapge value, äf their currencies to fluctuate with market forces rather than tried to maintain a fixed rate. This meani, economists' say, that certain balance of payments `measu'reman~ts d&. signed to reflebt pressures on a currency's par value ~aren't as slgniflcan~ as they werè.~ Now these pressures affect the `,~xchaiige rate immediately. . , , A second reasOn for dropping the Old con- cepts, it's argued,, is the increasing corn- plexit~ of international'financial flows, espe- cially the buildup'of payments surpflises b~ some oil exporters following the `1912 and subsequent oil `price increasts by the ,Orga-, nization of PetrOleum' Exporting cotintried.; Therehas beenan enormous growth'.In size `and complexity . of. financial transactions among private banks and governmental in- stitutions in recent years and their,aiialysis has grOwn eorrespondingly foggy. `, *For example, `as Mr. Bernsteinno,tes, one payments measure, the official' reserves transactiOns balance, swung fror)1 a $3i bil- lion deficit in the'first quarter this year `to a surplus Ostimated at $4.6 billion in the third quarter. Under the "old-fashioned concept," as Mr. ~eriisteid calls it, this would have in- dicated heavy dollar Intervention ln.fOreign exchange markets by central banks `defeiid- Ing fixed currency' rates. But in fact, saye Mr. Bernstein,' `it `reflects large, .UReven flows of OP~C money, mostly through corn- inercial `bank loans and deposits. Seven Ways of Reporting ~Where nre at least seven different wa~s of reporting `the balance of, payments, aC- cording to an analysis in the August Issue of the New York Federal Reserve Bank s Monthly Review The author Patricia H~gan Kuwayaipa, chief of the `bank's for- eign research' division, `says, "Each time a new balance' of payrnents~ statistic Is re- lOas,ed, it is widely interpreted as `an indica- ,tion of ho)v things ha~e become' `bettei~' or, `worse'ln the4oreign sector of our economy ~nd as a measure of ~`strength' or `weak- ness' of the dollar." "But it is' misleading to fdcius attention on any one oYerall balance," says Mrs. Ku- 597 THE WALL STREET JOURNAL, Wedncsde,~, December 10, 1975 `Botton~ Line' Data oi~Paymeius ~alartce Held Meaningless by i~J0S. Advisory Body PAGENO="0604" 598 wayama. Similarly, the Bureau of Eco- rioniic Analysis of the Commerce Depart- ment, while dutifully reporting the quarterly statistics, has regularly criticized them this year. Here Is ~a rundown of' the tliree most widely followed balances: The current accou~it. balance plus long. term c~'' flows is known as the `basic" balance `` includes the balance on' goods and ser'. -. (the trade balance), net trans. fer payments ~and investment.. "This bal- ance, Intended to serve as a rough Indicator of long~term trends in the U.S. balance of payments, Is. subject to liniltations. For in- stance, all direct investment transactions are classified among long~term capital ac- counts although many are short-term and may be reversed." The net liquidity b~lance, which Is the basic balance plus hard.to-cash. or "noñli~ quid" short-term capital flows, is supposed to Indicate potential pre~sures on the dollar. But Its usefulness is limited, too, because of the difficulty of separating liquid and nonli~ quid claims and liabIlities.' For example, 1~nk loans are treated as nonliquid even though they might,have to be paid quickly. The official reserves, transactions balrn ance, which Is aupposedto be the most com-, prehensive measurement, covers changes In' U.SL liabilities to foreign and' International official agencies. But these changes, once the result of mandatory central bank inter- vention `~n the' foreign exchange market, now may just reflect Investment. For exam- ple, If. Saudi Arabia buys' U.S. Treasury se- curities, lt'Is reported as an Increase In U.S. liabilities, which It is, although there has been no downward pressure on the dollar necessarily.'. * Economists and statisticians presumably could devise new measurements to offset some of these shortcomings, but the new versions could have their own drawbacks too Instead, the advisory commUtee has de- cided to pretty touch junk the whole con' cept. It will recommend retention of the trade balance because Imports and exports can be measured precisely. But, I~ Its rec- omniiendatlons are adopted, all the others will go, committee members says Because ~ctual `transactiOns will still be reported, It will be `possible to reconstruct somq of the old payments measures. For ex- ample, changes in official U.S. reserve as- sets (such as gold) and official claims on these assets will be reported. If they are put `together, the official reserves transaction balance, also called the official settlements balance, can be arrived at. "The important thing," Mr. `Bernstein `says, "isn't to publish the figures but to ana- lyze them." Besides Mr. Bernstein and Mr. de Vrles, the other members of the advisory commit- tee are: James L. Burtle, viOe president of the business economics group' of W. R. Grace & Co.; Peter B. Kenen, of Princeton University; Walter S. Salant, of the Brook- lags Institution;. WIlson E. Schmidt, of Vir- ginia Polytechnic : Institute; Charles F. Schwartz, of the Inte~national Monetary Fund; Robert P. Ulin, chief . eco~oinIst-fi- nance of Mobil Oil Corp., and Marina N. Whitman, of the ~niverslty of Pittsburgh. The moderator was Joseph W. Dunc~n, Of the Office of Management and Budget. PAGENO="0605" Fy James L. Rowe Jr. Wa!h:n~or~ Sos: S:arf Wr:~er The federal government has stopped publishing an official international hal. ance of payments figure, be- ginning with today's sched- uled quarterly release of in. ternational statistics. The decision reflects the growing dissatisfaction among economists and pol- icy makers with the signifi. cance of the balance of pay- rnents in an era of floating exchange rates. It also reflects a desire to divert attention from any one number as an indicator of how well or how poorly the nation is doing in its economic and financial re- lations with the rest of the world. The government's decision was based largely on the recommendations of an advi- sory task force of outside ac- ademic consultants. The new international statistics released, however, will con- tain all the information an individual needs to con- struct an "official reserves transactions" balance of payments figure. There also will be footnotes that will continue to report less ex- pansive balancds, such as merchandise trade. Economists and govern- nient officials have grown increasingly suspicious of balance of payments num- bers because they are "net figures" in which a balance could be in either surplus or deficit while the individual tranactions that make up the balance-such as trade OM ITS and investment-could be swinging widely but cancell- ing each other out. When governments aban- doned the old exchange rate system-under, which they had to insure that the price of their currency in terms of other currency fluctuated only within a very narrow* band-the meaning of the balance of payments became even more blurred. When exchange rates were fixed, a government was required by interna- tional agreement to inter-' vene in its foreign exchange trading markets whenever the price of its currency threatened to move out of the prescribed range. If, for example, demançl for deutschn"iarks in West Germany was driving their price up in terms of dollars, at some point the West Ger man Central Bank would be forced to enter the market and buy dollars (with marks) to drive, demand for dollars up and increase the supply of marks. As a result, the Bundes. bank would increase its holding of dollars-and, if the process was prolonged, perhaps fuel inflation in Ger- many because the bank, in effect, would be printing marks and buying dollars. The so-called official re- serve balance, which most people mean when they talk of the balance of pay- ments, measured the in- crease of dollar-holdings by foreign official agencies. The balance was then, to a~ large degree, an indication of what would have hap- pened to the value of the dollar were it not for the ex- istence for fixed exchange rates. A rise in foreign cen- tral bank holdings of the dollar meant that the dollar was overpriced, while if t~he United States ran a surplus in its balance of payments it probably meant the oppo- site, since banks had to sell _their dollar holdings to prop * up the value of their ow~i. currencies. * Under a system of float- ing rates, however, govern- ments are no 1 o n g e r obliged to maintain a value for their currencies, so in- creases in dollar holdings by foreign central banks no longer necessarily mean a weak dollar. It could in fact mean exactly the opposite, that governments prefer to hold dollars or U.S. Treas- ury securities because their currency is down. - The advisory committee offered a series of ten rec- ommendations on reporting international statistics, of ~`hich the elimination of the &ierall balance figure was the most important. Among other recommen- dations, the committee said that there should be no men- tion of "surpluses" or "deficits," that the Com- merce Department (which - compiled these figures) de- vise a table presenting changes in interndtional Ox- chatige rates over the prior three months, and thOt the distinction between "liquid" international flows and "non-liquid" flows should be eliminated. 599 L~rom the Washington Post,~ May 17, 197~7 U. S. DROPPING PAYMENTS' FR `BALANCE OF VOCABULARY PAGENO="0606" 600 * ADMINISTRATiVE CONFERENCE OF THE UNITED STATES 2120 L STREET, NW.. SULTE 500 WASHlN3T3N~ D.C. 2~D37 (202) 25!-7320 OFF!CF OF THE CHAIRMAr) March 9, 1976 Honorable Abe Ribicoff Chairman Committee on Government Operations United States Senate ~ Washington, DC 20510 Dear Mr. Chairman: This is in response to your letter of February 10, 1976, requesting our comments on S. 2947, the Federal Advisory Committee Act Amendments of 1976. The bill would make various amendments to the Federal Advisory Committee Act, 5 U.S.C. (App. I) §5 1-15. The Administrative Conference has not made any recommendations or completed any studies regarding agency experience under the Federal Advisory Committee Act, Wa have cor:mmissioned such a study, but it is in its preliminary stages. Accord- inc1." we ore unable to comment on the bill as it affects advisory committees generally. The Administrative Conference was established as an independent agency of the Federal Government by the Administrative Conference Act, 5 U.S.C. §5 571-576. Since its function is to make recommendations to the President, the agencies and Congress, and since its membership is, in part, persons who are not full-time Government employees, the Conference appears to come within the stat- utory definition of an advisory committee, and we have attempted to comply with the requirements of FACA with respect to both the Conference itself and its nine standing committees. Section 9 of the bill would amend section 10 of FACA to prescribe certain additional procedural requirements when advisory committee meetings are closed to the public. The determination to close must be published thirty days in ad- vance, a procedure for administrative and judicial review of the determination is provided for, and if the meeting is closed, an audio or audio and visual record- ing of the meeting must be made. Plenary Sessions of the Administrative Conference have traditionally been open to the public, and we have opened meetings of standing committees in com- pliance with FACA. Nevertheless, an occasion fo~ closing a meeting may arise, for example, if materials drawn from investigatory records were considered in PAGENO="0607" 601 2 connection with a study of prosecutorial procedures. In our view, the pro- cedures set forth in section 9 of the~bill are needlessly burdensome. In our case it is difficult to schedule committee meetings thirty days in advance be- cause the need for the meeting and the agenda will depend on the progress of particular studies. Nor would it be easy to postpone a meeting where someone seeks review of a determination to close. (Section 9 (2) (C) of the bill would apparently permit a member of~the public to compel an agency to postpone an advisory committee meeting simply by delaying his application for review until the last minute). Finally, section 9 provides that recordings of closed meetings must be made and deposited within 24 hours with the Librarian of Con- gress, but it contains no provision assuring to the agency the preservation of confidentiality which was the occasion for closing the meeting. Therefore, although we anticipate that we will seldom have occasion to close a meeting, we believe that section 9 of the bill would impose unreasonable burdens even in circumstances where under the standards of FACA and the Freedom of Information Act closure is perfectly appropriate. Sincerely yours, Robert A. Anthony Chairman PAGENO="0608" 602 DEPARTMENT OF AGRICULTURE OFFICE OF THE SECRETARY WASHINGTON. D. C. 20250 - F~ITyT 1. 1°75 ilonorable Abraham Ribicoff q1 Chairman, Committee on r.