37729
Federal Register
/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
of advisory committee that is subject to some, but not all of FACA
’
s requirements, whichhas no foundation in the statute. UnderFACA, a group is either an advisorycommittee subject to all of the statutoryrequirements, or it is not an advisorycommittee, and therefore not subject to anyof its requirements. Because a subcommitteewhich reports to a parent committee is notan
‘‘
advisory committee
’’
under FACA, thereis no legal basis for applying any of FACA
’
srequirements to such a subcommittee.
In evaluating the comments received,GSA notes that there were no objectionsto the exclusions contained in
§
102
–
3.185 of the proposed rule (now
§
102
–
3.160 of the final rule), relating to
‘‘
What activities of an advisorycommittee are not subject to the noticeand open meeting requirements of theAct?
’’
The exclusions in
§
102
–
3.160 of the final rule continue to cover the typesof activities routinely performed bysubcommittees. By this reasoning GSAsought to bring into harmony theseactivities with those provisions in theproposed rule differentiatingsubcommittees reporting to a parentadvisory committee from thosereporting directly to a Federal officer oragency.However, the preamble to theproposed rule did not explain anddescribe adequately the legal frameworkfor GSA
’
s decision to differentiatesubcommittees that report only to aparent advisory committee more clearlyfrom advisory committees that reportdirectly to a Federal officer or agency.The Act defines the term
‘‘
advisorycommittee
’’
as
‘‘
any committee, ***or any subcommittee or other subgroupthereof which is established or utilized by the President or an agency in theinterest of obtaining advice orrecommendations for the President orone or more agencies or officers of theFederal Government
’’
. Under thisdefinition, a subcommittee is an
‘‘
advisory committee
’’
subject to the Actif it provides advice to the President ora Federal officer or agency. Mostsubcommittees, however, report only toa parent advisory committee and it isthe parent committee that is normallyresponsible for providing advice orrecommendations to the Government. Inthis conventional scenario, thesubcommittee is not subject to the Act because it is not providing advice to theGovernment.Case law supports this conclusion. In
National Anti-Hunger Coalition
v.
Executive Committee,
557 F.Supp. 524(D.D.C.),
aff’d,
711 F.2d 1071 (D.C. Cir.1983), the question presented waswhether the Act applied to task forcesreporting to the Executive Committee of the President
’
s Private Sector Survey onCost Control in the Federal Government.The task forces had no authority tomake recommendations to agencies or tothe President. Instead, their functionwas to do the
‘‘
preliminary work of thesurvey, including fact-gathering,statistical evaluations, and theformulation of preliminary reports.
’’
(557 F.Supp. at 526). Although it wasundisputed that the ExecutiveCommittee was subject to the Act, thecourt held that the Act did not apply tothe task forces under the followingreasoning:
There is no question that the task forces areintimately involved in the gathering of information about federal programs and theformulation of possible recommendations forconsideration of the Committee. That is notenough to render them subject to the FACA.The Act itself applies only to committees
‘‘
established or utilized by
’’
the President oran agency
‘‘
in the interest of obtaining adviceor recommendations for the President or oneor more agencies.
’’
The Act does not covergroups performing staff functions such asthose performed by the so-called task forces.(557 F.Supp. at 529). (See also
Association of American Physicians and Surgeons
v.
Clinton,
997 F.2d 898, 911
–
913 (D.C. Cir.1993).)
GSA believes that as a result of thisdecision, subcommittees that report to aparent advisory committee generally arenot subject to the Act. GSA also believesthat subcommittees whose advice orrecommendations are provided directlyto a Federal officer or agency are subjectto the Act. However, GSA further believes that this decision does notshield those subcommittees fromcoverage under the Act whose advice orrecommendations are not subject todeliberation by their parent advisorycommittees.From this reasoning, it is notpermissible for parent advisorycommittees simply to
‘‘
rubber-stamp
’’
the advice or recommendations of theirsubcommittees, thereby depriving thepublic of its opportunity to know about,and participate contemporaneously in,an advisory committee
’
s deliberations.Agencies are cautioned to avoidexcluding the public from attending anymeeting where a subcommittee developsadvice or recommendations that are notexpected to be reviewed and considered by the parent advisory committee before being submitted to a Federal officer oragency. These exclusions may runcounter to the provisions of the Act thatrequire contemporaneous access to theadvisory committee deliberativeprocess.To address these issues more clearly,GSA strengthened language in the finalrule by: (1) Adding a new
§
102
–
3.35that outlines policies relating tosubcommittees; (2) clarifying languagein
§
102
–
3.145 relating to subcommitteemeetings; and (3) clarifying theexamples contained in Appendix A toSubpart C.
Correct and Clarify the Definition of ‘‘Utilized’’
Nine commenters recommended thatGSA revise its definition of the term,
‘‘
utilized
’’
to conform to governing caselaw.As noted by some of the commenters,the definition of the term
‘‘
utilized
’’
in
§
102
–
3.30 of the proposed ruleinadvertently misstated the applicablelegal test. The proposed rule stated thata committee is
‘‘
utilized within themeaning of the Act when the Presidentor a Federal agency exercises actualmanagement and control over itsoperation.
’’
This construction wouldrequire an agency both to havemanagement of the committee and toexercise control over the committee before the committee can be deemed
‘‘
utilized.
’’
The proper statement of the
‘‘
utilized
’’
test is whether an agencyeither has management of the committee
or,
in some fashion other thanmanagement, exercises control over thecommittee.The controlling legal authority is
Washington Legal Foundation
v.
U. .Sentencing Commission,
17 F.3d 1446(D.C. Cir. 1994). In that case, the appealscourt gave structure to the U.S. SupremeCourt
’
s prior decision interpreting theterm
‘‘
utilized.
’’
(See
Public Citizen
v.
Department of Justice,
491 U.S. 440(1989).) The appeals court ruled that theword
‘‘
utilized
’’
indicates
‘‘
something along the lines of actual management or control of the advisory committee.
’’
(17F.3d at 1450). The operative criterion fordetermining whether a committee hassufficiently close ties to an agency inorder to render it
‘‘
utilized
’’
is whetherthe agency has either
management
of the committee or exerts some other typeof
control,
but not necessarily both.Similarly,
§
102
–
3.50(b) of theproposed rule (now
§
102
–
3.185(b) of the final rule) used the phrase
‘‘
actualmanagement and control
’’
with regard tosection 15 of the Act. In explaining therelationship between Federal agenciesand the National Academy of Sciences(NAS) and the National Academy of Public Administration (NAPA) covered by section 15 of the Act,
§
102
–
3.50(b)of the proposed rule states that
‘‘
[a]gencies must not manage or controlthe specific procedures adopted by eachacademy.
’’
However, committeescovered by section 15 of the Act must be under
both
the actual management
and
the control of the academies, notthat of a Federal agency. In thisinstance, the use of the conjunctive
VerDate 11<MAY>200017:39 Jul 18, 2001Jkt 194001PO 00000Frm 00003Fmt 4701Sfmt 4700E:\FR\FM\19JYR2.SGMpfrm01PsN: 19JYR2
Leave a Comment