Petition for Writ of Certiorari — Byrd v. Environmental Protection Agency

) Sls

BE O84 DE 59 1999

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1999

DANIEL M. BYRD, III

Petitioner,

¥.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Thomas R. Bartman

SHAPIRO, LIFSCHITZ AND SCHRAM, P.C.

1101 Pennsylvania Ave., N.W.

Washington, D.C. 20004

202-347-4111

Counsel for Petitioner

Filed December 9, 1999

Balmar Legal Publishing Services, Washington, DC 202-682-9800

.

QUESTIONS PRESENTED

Compliance with the Federal Advisory Committee Act, 5

U.S.C. App. Il, is required when a federal agency

“establishes” or “utilizes” an advisory committee to obtain

advice. The Environmental Protection Agency hired a

contractor to set up a committee to provide EPA advice. The

questions presented are:

tr

Can an agency that chooses to use a contractor to set up

an advisory committee for that reason be exempted from

the openness requirements of the Federal Advisory

Committee Act?

Whether an agency “establishes” an advisory committee

under FACA where it expressly seeks an advisory

committee, tasks a contractor with setting one up, and

significantly involves itself in the selection of members

and committee work?

Does an agency “utilize” an advisory committee under

FACA where it manages and utilizes the committee in

the same manner as a government-formed advisory

committee?

Parties to The Proceeding

The parties to the proceeding in the United States Court

of Appeals for the District of Columbia Circuit are Daniel M.

Byrd, Ill, and the United States Environmental Protection

Agency.

**e

TABLE OF CONTENTS

Page

Questions Presented .............cscscssesesseseneesesseseeeeessceesseeneneneneees i

Parties to the PLOCCEKING .......00se0ccssscesseoscconconcrsccrsssrsesesenessseoees il

PE CE COONS co nsscesvsnnesenssdessccncsssasgqpsiscedesaseastesseversdaveese ill

Table Of Authorities .............csccccccccscsssrerssccscreceecsnereeesensssecssess V

Opinion Below ..........:csscsccsseseseeseestsesssteseneesssssneneenenensnenensanensy l

Basis for Jurisdiction................ssccsccsssscssccvscseeerecsssssrncessssrsesrees l

Statutory Provisions InvOlved..............:cssesesseseeeseseeseeeeeeeeeesenes 2

Statement Of the Case..........ccccccsssccosccsscecccscsecesccersrssssesenscooceses 2

A. Regulatory Background .............sscsssceceeseeeeeeeees 2

B. The Benzene Advisory Committec...............00+ 3

C. The Proceedings Below .............:::sscsesseeeeeeeeereees 6

Reasons for Granting the Writ ..............:cceecesesseeseesseeeeenenseeees 7

I. The Court Should Review a Holding That

Vitiates FACA ......ccscciccccccecssesessessscsscnsnsccscacesessensasccsoes 7

A. The “Contractor Exemption” is

Inconsistent with FACA ..............:sssecceseeeseereseees 7

B. The Decision Compromises _ the

Independence of Scientific Peer Review ............. 9

C. The Purported Supreme Court Basis of This

Decision Increases Its Influence .................:..see008 11

iv

D. The D.C. Circuit's Approval of the Extent

‘ of EPA Control Over Committee Advice

Conflicts with Public Access Assured

WY PRION pried cssdsrsbinsthtnicetininskicsshnohiaieadoeiinaas 12

E. The “Contractor Exemption” Damages

FEELS PIE is deisintisaieiiictassnstansinitntadiotiaglaipiean 14

F. Absurd Result of D.C. Circuit’s Reading

of FACA Should be Rejected ...............ccccsceseee 15

G. No Factual Complexity — Justifies

Reluctance to Resolve This Case...............:.0:00+ 16

H. The Court Is Not Likely to Have a Second

Chance to Resolve This Issue ...............:0.:c:e0008+ 16

II. The Benzene Advisory Committee Was Subject

WA iaiicinsckscn haiictadalcomiscareea Adare aietleciaadaenian 18

A. FACA Does Not Contain a “Contractor

EAN siinsesinic citnhesticsapabadetbeahbescaccapsasansens 18

B. An Agency That Tasks Contractor to Set

Up Advisory Committee and Controls the

Setting Up “Establishes” Committee for

PA FOIE Skee aiscinasn 20

C. EPA Utilized the Benzene Committee............... 22

I an ae 24

V

TABLE OF AUTHORITIES

Cases Page(s)

Alabama-Tombigbee River Coal. v. Dep't of Interior,

BE Fk OA CEA CO, EOI) ihicasiierisecressscsaisnssseccssconnecnsie 14

Animal Legal Def. Fund v. Shalala,

BEDE Fe ae CePA Is SITY hentciskcrehidisinciepnccenciaacsamenenii 9

Burka v. Depart. of Health and Human Servs., 87 F.3d

EE CEPI GRE. BPAY issinscicseds socsdstasccossvonsnjscncintcarsnsactorasdann 13

Byrd v. EPA, 174 F.3d 239

(DDC, BOF) ss cciisiitnn <svdstniinntaiichotsmdsiol 6-9, 14-17, 20-22

Byrd v. EPA, Civ. A. No. 97-1923, Mem. & Order

CT ARE, SII OD wcicvcsccascsassitsskcsiccectsageleassijiasiabamepnants 6

Cargill, Inc. v. U.S., 173 F.3d 323 (Sth Cir. 1999)............04. 10

Chicago Trib. Co. v. Dept. of Health & Human Servs.,

1997 U.S. Dist. LEXIS 2308 (N.D. Ill., Feb. 28, 1997) ....13

Dept. of Justice v. Reporters Com. For Freedom of Press,

BOD TES Fe Cy Pe iekak ckipscencctcniianeclbeniaivahabitebatasiocseses 12

Department of Justice v. Tax Analysts, 492 U.S. 136

“BY yj NOOO ROS TONLE GRE ne A Soa Men, WSs ne Ont ae oS See eae 12-13

Food Chem. News v. Young, 900 F.2d 328 (D.C. Cir.),

cert. denied, 498 U.S. 846 (1990)...............0 6-7, 16, 18-19

Forsham v. Harris, 445 U.S. 169 (1980)............eeeeeeeeees 12-13

FTC v. Dean Foods Co., 384 U.S. 597 (1966) .................006 15

Gilmore v. Dept. of Energy, 4 F.Supp. 2d 912

ENED: Cad. FIG i sisssskeneistninssniainvicenmapinenbianiainannieaphanetvoos 13

Green v. Bock Laundry Machine Co., 490 U.S. 504

CRI li cacincistiarideviassismbbrddsatheinssléyebutniemigessengucoteinenabectans 15

Hagegar Co. v. Helvering, 308 U.S. 389 (1940)... 15

Kissinger v. Reporters Comm., 445 U.S. 136 (1980) ............ 17

vi

Page(s)

Northwest Forest Resource Council v. _ Espy,

OE. Fe A. DID asececnccinicecenccapitepeonasenvcted 9

NRDC v. Pena, 147 F.3d 1012 (D.C. Cir. 1998) .......0000000... 9

Public Citizen v. Dept. of Justice, 491 U.S. 440

CSFII cxincasiniinnesavegenadentceeinsoniiodanaeasiien 6-7, 11-12, 20-23

Sampson v. Murray, 415 U.S. 61 (1974) oo... ecccseeeeeeeeeeees 15

Statutes

Administrative Procedure Act, 5 U.S.C. §§ 551, et seq......... 11

Clean Air Act, 42 U.S.C. §§ 7401-767 1q ............cceseeeeeeeees 2-3

Federal Advisory Committee Act, 5 U.S.C.

PI SE Fe BOS cxscientsstestsalincsniaitiaditasiareessnacentceenioee passim

Federal Advisory Committee Act Amendments of

1997, Pub. L. 105-153 (Dec. 17, 1997)... 8, 15

Regulations

42 CER. Bases AGEs) cntinwceinnmeannsentnamanau 10

Legislation

S. 59 (to require accounting of regulatory costs and

benefits), 106th Cong., Ist Sess. (Jan. 19, 1999) .......... 10

S. 746, 106th Cong., Ist Sess. (July 20, 1999) ooo. 10

H.R. 1074 (to require accounting of regulatory

costs and benefits), 106th Cong., Ist Sess.

fo. Be OR, , aon ia a img eh 82 A a 9

H.R. 1398 (to amend Clean Air Act to prohibit use of

certain fuel additives), 106th Cong., Ist Sess.

(Angi 14, 1990) nik ik cc nek 10

H.R. 3160 (to reauthorize Endangered Species Act),

106th Cong., Ist Sess. (Oct. 27, 1999).............cesseseees 10

Vil

Page(s)

Science Integrity Act, H.R. 574, 106th Cong., Ist

Ts i I is cacsitisatncsebdqeabicnpeonsesuatlemenasaasceteaead )

Sound Scientific Practices Act, H.R. 2639, 106th

Cong... Ist Sess. (July 29, 1999).......cccccccccrsssssesscescaeees 9

H. Rep. No. 92-1017 (1972) .........cccceccsccesesorscsrcessareesonsessess 18

H.R. Conf. Rep. No. 92-1403 (1972).........:cccsceseeseeeerseeeeeeees 18

Miscellaneous

SE EI NUNIT 1A Poctcccdcacscccicanasicosecercerecenctussuoensis 21

EPA, Office of Inspector General, “Improvement

Needed in Subcontract Compet. & Oversight”

(Audit Rep. EIBMF2-04-373-5100247, Mar.

FA WOE acnihsiichasoituunien nah edeaabceaapectpepetenbannndtnssentoeee 23

EPA, Office of Res. & Dev., Carcinogenic Effects of

Benzene: An Update (EPA/600/P-97/001F,

Aigictl, 1996) .a.....0.ccccsscovsncecvssesessecennsactosersetsnensessonessesesse 5

Statement of Rep. Henry W. Waxman (in support of

H.R. 2977), 1997 Cong. Reg. at H10581 (Nov.

I ase aicesdhnccevacccaseneasaehoresnccvestanpsiageiaietidasecinansuses 8

Statement ‘of Sen. Metcalf, 118 Cong. Rec. S$14647

(Sept. 12, 1972), reprinted in McMurtry, V.,

Fed. Advisory Comm. Act (Pub. L. 92-463),

Source Book: Legislative History, Texts, and

Other Documents (Cong. Res. Serv. 1978)...............0++ 2

“Carcinogenic Effects of Benzene: An_ Update,”

62 Fed. Reg. 351721 (June 30, 1997)...............00+ 4,21

“Peer Review Panel Convened by Contractor Not

Subject to FACA, Appeals Court Rules,” 23

Chem. Reg. Rptr. (BNA) 229-230

CREAT, VIII ncscnscsnssszasccnsnceessoseecasessenstcenseionneseseeseosseess 8

No.

IN THE

Supreme Court of the United States

October Term, 1999

DANIEL M. BYRD, III

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Opinion Below

The opinion of the Court of Appeals for the District of

Columbia Circuit is reported at 174 F.3d 239 (D.C. Cir.

1999). (Copy attached in the appendix hereto (hereinafter

Pet. App. Section A).

Basis for Jurisdiction

The court of appeals filed its initial opinion on April

30, 1999. The court of appeals denied Petitioner’ s petitions

for rehearing and rehearing en banc on August 13, 1999. See’

Pet. App. Section A. On November 3, 1999, Chief Justice

Rehnquist entered an order extending the time for petitioner

tc file a petition for a writ of certiorari until December 9,

2

1999. This Court has jurisdiction over the case pursuant to 28

U.S.C. § 1254(1).

Statute Involved

The provisions of the Federal Advisory Committee Act,

5 U.S.C. App. II, are set out in Pet. App. at Section D.

Statement Of The Case

The Federal Advisory Committee Act, 5 U.S.C. App. II

(“FACA”), provides that “the term ‘advisory committee’

means any committee, board, commission, council, :

conference, panel, task force, or other similar group. . .which

is. . . established or utilized by the President[ ] or by one or

more agencies, in the interest of obtaining advice or

recommendations....” 5 U.S.C. App. II, §3. FACA’s

compliance requirements apply to “each” advisory committee.

§4. Such requirements include opening each advisory

committee meeting to the public, allowing attendance by

interested persons, and making available for public inspection

the records, reports, drafts, and studies made available to each

advisory committee. §10(a) & (b). FACA’s dual goals

included ‘a housekeeping function in the interests of

efficiency and economy in Government and a function of

disclosure and objective counsel — so that the public will

know what advice their Government is getting and how they

might add their contribution to the information process.”

Statement of Sen. Metcalf (as floor manager), 118 Cong. Rec.

S$14647 (Sept. 12, 1972), reprinted in McMurtry, V., Fed.

Advisory Comm. Act (Pub. L. 92-463), Source Book:

Legislative History, Texts, and Other Documents at 158

(Cong. Res. Serv. 1978).

A. Regulatory Background

The 1990 Clean Air Act Amendments required EPA to

promulgate emissions standards for major sources and source

categories of designated hazardous air pollutants (“HAPs ”),

including benzene. 42 U.S.C. §7412(d). Both EPA’s standard

wre.

ae ee

3

setting for such HAPs and the schedule for the promulgation

of regulations of emission of HAPs required the Agency’s

consideration of risks posed by exposures to particular HAPs.

E.g., §7412(b)(2) (revision of list of HAPs based on risk of

health effects posed by their emissions);

§7412(a)(3)(scheduling regulation of HAPs based on those

HAPs posing “the greatest threat to public health”);

§7412(c)(9) (deletions from the list based on finding that no

source emits pollutants presenting a cancer risk greater than

one in 1,000,000).

Benzene, a commodity chemical manufactured in high

volume, is widely used as a component of gasoline and in a

broad range of specialty chemicals. Benzene causes acute

myelocytic leukemias in humans, and EPA has regulated it as

a hazardous air pollutant under the Clean Air Act, 42 U.S.C.

$§7401-7671q, based on the human carcinogenic effect. The

first risk assessment’ for benzene drafted by EPA’s Office of

Research and Development (“ORD”) was scientifically peer

reviewed in 1977 by EPA’s Science Advisory Board (which

operates consistently with FACA). See Declaration of Daniel

Byrd (“ Byrd Decl.”) at 116 (copy in Pet. App. at Section C).

EPA then used the benzene risk assessment in promulgating

Clean Air Act regulations. ORD updated the benzene risk

assessment in 1985, but did not subject it to scientific peer

review, though it used the benzene risk assessment as the

basis for new and additional Clean Air Act regulations.

B. The Benzene Advisory Committee

In 1992, EPA’ s Office of Mobile Sources, under a Clean

Air Act mandate to develop a regulatory strategy to control

emissions from motor vehicles and motor vehicle fuels,

requested that ORD provide a new update of the human

' A risk assessment employs statistical methods in analyzing the

findings of scientific studies of the effects of exposures of humans or

animals to chemical substances, in order to extrapolate from such data to a

numerical estimate of the risk of human symptoms from a defined

exposure dose.

4

carcinogenic risk of inhaled benzene. In 1997, a Federal

Register notice announced a peer-review workshop and public

review of ORD ’s update (an external draft document),

“Carcinogenic Effects of Benzene: An Update.” 62 Fed. Reg.

35172, 35173 (June 30, 1997), J.A. 214.’ The notice reported

that Eastern Research Group (“ERG”), an EPA contractor,

would provide logistical support. /d. The workshop was

scheduled for July 16, 1998. The notice also stated that

“[a]fter the workshop,” EPA itself would “consider the

peer-panel and public comments before preparing a final

report for the Office of Mobile Sources.” Jd. at 35172-73,

J.A. 214."

EPA’s Statement of Work stated that the purpose of the

contractor's work was “to provide support to the U.S.

Environmental Protection Agency (EPA) in organizing and

conducting an Expert Panel Review (EPR) of the document

‘Benzene Risk Assessment Update."” Statement of Work

(Mar. 26, 1997) at 1, J.A. 184. ERG’s duties under the

Statement of Work included arranging for conference

facilities; providing panel members with travel, per diem, and

associated expenses; resolving issues concerning format,

public attendance, and logistics; preparing nametags and

This citation refers to the page number of the Joint Appendix

(“J.A.”) filed in support of briefing in the D.C. Circuit.

Under EPA's classification of the significance of research/regulatory

documents for purposes of determining the level of appropriate peer

review, the benzene assessment document was assigned to EPA ‘s highest

category, Category 1, “Major Scientific or Technical Work Products”

Byrd v. EPA, 174 F.3d 239, 244 (D.C. Cir. 1999) (copy in Pet. App.

Section A). See also Statement of Work for “Expert Panel Peer Review of

Benzene Risk Assessment Update” (c. Mar. 25, 1997) (“SOW”) at 1,

Exhibit 3 to Defendant’s Summary Judgment Motion, J.A.184. EPA

reserves this category for regulatory/technical products of the kind that

“[s]upport{ }] major regulatory decisions or policy / guidance of major

impact;” “[e)stablish[ ] a significant precedent, model, or methodology:”

or “{a}ddress{ ] controversial issues.” EPA, “ORD, Standard Operating

Procedures for Peer Review of Sci. or Techn. Work Products” (Sept. 30,

1994) at 8, J.A. 125.

es

5

placards for panel members; and attending the committee

meeting to finalize arrangements. Also, ERG was tasked with

selecting committee members from a list provided by EPA

and from its own list and submitting its choices for EPA

approval; designating a panel chair, “upon consultation with

EPA;” and drafting and sending a summary report of the

committee meeting to EPA prior to finalizing the report.

SOW at 1-6, J.A. 184-188."

EPA, meanwhile, provided the contractor with a list of

acceptable panel members and reserved for itself the authority

to approve or disapprove ERG’s proposed choices of

committee members and committee chair; draft the

committee’s meeting agenda with the contractor; review the

committee members’ written comments prior to the

committee ’s public meeting; and review and provide written

comments on draft report of committee meeting. prior to

finalization of report. SOW at 2-5, J.A. 185-88." Is. addition,

at the July 16, 1997 public meeting of the benzene advisory

committee, EPA personnel undertook a dialog with the

advisory committee, soliciting and receiving responses to

questions of scientific judgment. EPA Rept. of Meeting at 5,

7, 10, 16-17, 22, 24, J.A. 228 at 235, 237, 240, 246-47, 252,

254.

The report of the public meeting with the committee

member comments was uitimately finalized and was adopted

by EPA.”

The facts reported in this section B are not in dispute. Compare

Plainuff Byrd's Proposed Uncontroverted Facts (Jan. 5, 1998) with

Defendant's Amended Response to Plaintiff's Proposed Uncontroverted

Facts (Jan. 23, 1998). See also 174 F.3d at 246-47 (reviewing primary

elements of EPA’s assertion of control over the committee).

EPA also specified that if EPA had substantial comments, the

benzene committee would review the modifications to the draft report

worked out by EPA and the contractor. SOW at 5, J.A. 185.

See EPA, Office of Res. & Dev., Carcinogenic Effects of Benzene:

An Update at p. v (EPA/600/P-97/001F, April, 1998) (final document

6

C. The Proceedings Below

The panel majority in the Court of Appeals, affirming the

district court, held that EPA had not “established” or

“utilized” the benzene advisory committee for FACA

purposes Byrd v. EPA, 174 F.3d at 245 (copy in Pet. App. at

Section A). It cited Public Citizen v. Dept. of Justice, 491

U.S. 440 (1989), for the proposition that “an advisory panel is

‘established’ by an agency only if it is actually formed by the

agency... .” 174 F.3d at 245; see also id. at 245-46 (citing

other D.C. Circuit cases to same effect). Although the D. C.

Circuit considered Byrd’s identification of EPA’s elements of

substantial control over the contractor and committee, it stated

that analysis of whether an advisory committee has been

“established” does not turn on who determines the

methodology and operation of the committee, and concluded

that ERG, not EPA, had established the committee. /d. at

246-47.

In this connection, the panel majority did recognize that

“the contract between ERG and EPA afforded EPA

significant potential authority in the panel selection process,”

174 F.3d at 247. The panel majority held, however, that

because EPA had not fully exercised the authorities it had

reserved over the benzene committee’s activities and because

there was “no reason to assume that the threat of an EPA veto

affected ERG’s panel selections,” Dr. Byrd had accordingly

reflects a consideration of all comments . . . provided by an expert panel

at a peer review workshop (July 16, 1997) and comments received during

a public review and comment period (June 1997).

The District Court granted the Government’s motion for summary

judgment and rejected Byrd’s motion for partial summary judgment

seeking a declaration that EPA had operated the benzene committee in

violation of FACA. The District Court held that under Public Citizen v.

Dept. of Justice, 491 U.S. 440, and the D.C. Circuit’s decision in Food

Chem. News v. Young, 900 F.2d 328 (D.C. Cir.), cert. denied, 498 U.S.

846 (1990), a panel set up by a contractor is not a FACA advisory

committee Byrd v. EPA, Civ. A. No. 97-1923, Mem. & Order at 2-5

(D.D.C. May 1, 1998) (copy at Pet. App. Section B), J.A. 6-9.

ee

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3

:

7

not shown that EPA had “established” the benzene

committee. Jd. Judge Williams, dissenting in part, responded

that

The veto power is key. That it was not used in the

benzene episode does not much help EPA: not only

may EPA exercise it in future applications of the

policy, but the contractor was and is quite likely to

take the fact of veto power into account in its

selection decisions. Assuming that contractors will

ignore this fact--as the majority appears to do--

seems akin to believing that the President takes no

account of senators’ opinions when he nominates

federal judges.

174 F.3d at 249 (citation omitted).

The D.C. Circuit panel majority also ruled, based on the

Supreme Court's “narrow” interpretation of the term

“utilized” in Public Citizen, that while ‘utilized’

encompasses a group organized by a nongovernmental

entity,” this is so only where the group is “nonetheless so

‘closely tied’ to an agency as to be amenable to ‘strict

management by agency officials."” /d. at 246 (citing Food

Chem. News v. Young, 900 F.2d at 332-33). It held that

EPA’s involvement in the benzene committee did not

constitute the requisite strict management. /d.

By order dated August 11, 1999, Byrd’s petition for

rehearing en banc (filed June 14, 1999) was denied; Judges

Williams and Tatel voted in favor of the petition. (Order in

Pet. App. at Section A.)

REASONS FOR GRANTING THE WRIT

I. The Court Should Review a Holding That Vitiates FACA

A. The “Contractor Exemption” is Inconsistent with

FACA

Without any warrant in the provisions of FACA, the

D.C. Circuit created an exemption that is readily invoked and

8

provides a clear escape from FACA. FACA contains no such

exemption, nor does its legislative history nor do rulings of

this Court. See Byrd v. EPA, 174 F.2d at 249 (Williams, J.,

dissenting in part) (“it seems to me inconsistent with the

statute’s language and intent to exempt from FACA a panel

controlled so closely in membership and purpose”). See

discussion infra at 18. Under the broad holding of the D.C.

Circuit panel majority, however, an agency that seeks

advisory committee advice need only hire a contractor to set

up the committee and thus free itself of the FACA

responsibilities of accountability to Congress and openness to

the public.”

At the same time, Congress has confirmed FACA’s

continuing importance. Notably, it had seen no reason in 25

years to materially amend FACA. Amendments in 1997,

modifying two agencies’ FACA responsibilities, reiterated

Congress’ support for FACA and “the public’s right to know

about the advisors and procedures used to produce technical

or policy advice for the government.” The Federal Advisory

Committee Act Amendments of 1997, Pub. L. 105-153 (Dec.

17, 1997), provide inter alia that agencies may not use the

advice or recommendations of the National Academy of

Sciences unless specific FACA procedural requirements are

met (including public notice of meetings and publication of

summaries of meetings that are closed). This recent tailored

amendment of FACA indicates no legislative support for the

wholesale exemption to FACA found by the Court of

Appeals.

Exploitation of a “contractor exemption” to FACA is not

merely a speculative fear. Why would an agency that needs

A trade press report of the panel majorty decision declares “Peer

Review Panel Convened by Contractor Not Subject to FACA, Appeals

Court Rules,” 23 Chem. Reg. Rptr. (BNA) 229-230 (May 7, 1999).

Statement of Rep. Henry W. Waxman (in support of H.R. 2977),

1997 Cong. Reg. at H10581 (Nov. 9, 1997).

|

PPD LALIT AIOE) ORE MEM Rat, . HR Ree OR ig

Jae htial

PST SRE Ae en ed a ahve <a

9

outside advice or judgment saddle itself with FACA

compliance requirements needlessly? Particulariy an agency

that might prefer to avoid public scrutiny would not bother

with such requirements, nor would agencies that find FACA

burdensome. Cf., Northwest Forest Resource Council v.

Espy, 846 F. Supp. 1009, 1010 (D.D.C. 1994) (citing

“another attempt by the Executive Branch to escape the toils

of FACA”). An interest in such avoidance may be a motive

in agencies’ seeking advice from National Academy ot

Science committees (which were, until recently, considered

exempt from FACA). E.g NRDC v. Pena, 147 F.3d 1012

(D.C. Cir. 1998); Animal Legal Def. Fund v. Shalala, 104

F.3d 424 D.C.Cir. 1997); cf. FACA Amendments of 1997

(prohibiting agency use of National Academy of Science

committees absent compliance with openness requirements,

reflecting concern over agency use of NAS to escape FACA).

Significantly, the D.C. Circuit recognized that EPA’s

use of contractors to convene advisory committees was a

continuing practice. 174 F.3d at 244 n.4; id. at 248. The

practice will not cease unless it is ruled violative of FACA.

B. The Decision Compromises the Independence of

Scientific Peer Review

The panel majority’s decision threatens a second public

interest. The advisory committee at issue here was a peer

review panel. Peer review is the crucial, independent

validator of important scientific judgments. A _ scientific

document or policy that has been independently peer-

reviewed has received a seal of approval and can readily

withstand subsequent challenge to its merits. Congress has

recognized the importance of peer review independence.”

* For examples of recent Congressional mandates for independent

peer review of scientific technical decisions alone, see, e.g., Sound

Scientific Practices Act, H.R. 2639, 106th Cong., Ist Sess. (July 29, 1999)

(to establish independent peer review for the review of standards

promulgated under Occupation Safety and Health Act); Science Integrity

Act, H.R. 574, 106th Cong., Ist Sess. (Feb. 4, 1999) (to require

10

EPA’s Science Advisory Board, which performs such a

science-validation function, operates in compliance with

FACA. Byrd Decl. at 9117-18, J.A. 347. Also, at least the

Public Health Service, Department of Health and Human

Services, regards scientific peer review committees to be

subject to FACA. See 42 C.F.R. §52h.3 (directing application

of FACA to peer review groups reviewing grant applications

for research and development projects).

The D.C. Circuit's licensing (1) of EPA’s exercise of

significant control over the staffing and conduct of a peer

review panel and (2) of EPA’s ability to ignore other FACA

public openness requirements in future cases of controversial,

policy-determinative scientific documents, compromises the

independence of the institution of peer review.'' See also

Cargill, Inc. v. U.S., 173 F.3d 323, 341 (Sth Cir. 1999) (“If

FACA has no teeth, the work product of spuriously formed

independent peer review, available for public comment, of scientific data

used in support of Federal regulations); S. 746 (to provide for analysis of

major rules) at §625, 106th Cong., Ist Sess. (July 20, 1999) (agencies to

obtain external, independent peer reviews, available for public comment,

of cost-benefit analyses); H.R. 3160 (to reauthorize Endangered Species

Act) at §102, 106th Cong., Ist Sess. (Oct. 27, 1999) (requiring peer review

of species listing decisions by technically qualified individuals without

financial or scientific conflicts of interest); S. 59 (to require accounting of

regulatory costs and benefits) at §§5-6, 106th Cong., Ist Sess. (Jan. 19,

1999) (OMB to obtain independent and external peer review comments on

accounting, which would be subject to public comment); H.R. 1074 (to

require accounting of regulatory costs and benefits), 106th Cong., Ist Sess.

(March 11, 1999) (same); H.R. 1398 (to amend Clean Air Act to prohibit

use of certain fuel additives), 106th Cong., Ist Sess. (April 14, 1999)

(requiring scientific testing and peer review prior to EPA approval of use

of fuel additive).

‘ In this case, EPA’s close supervision of committee membership

selection resulted in inclusion of a scientist whose earlier contract work

for EPA on benzene health effects was part of the documentation that was

under review by the committee. Byrd Declaration at 7, ]22 (Pet. App.

Section C), J.A. 348.

Did Lar> Dinah

A raed Mie 1 RDO PCE AD Bed UOC eats

BED Le a DEP. ab iY Rekha RS SRE INCRE Win NET aOR PTS SoMa Ome nl ace EGE)

advisory groups may obtain political legitimacy that it does

not deserve.”’)

C. The Purported Supreme Court Basis of This

Decision Increases Its Influence

The D.C. Circuit’s “contractor exemption” cites as its

authority the decision in Public Citizen. In that case, the

Supreme Court sought to resolve difficult separation of

powers issues posed by potential extension of FACA to a

private (American Bar Association) committee advising the

President on qualifications of judicial nominees, an otherwise

unreviewable political decision of the President.'* The Court

did not anticipate that its ruling would form the basis of a

wholesale “contractor exemption” from FACA. But cf. Public

Citizen, 491 U.S. at 469-470 (Kennedy, J., concurring)

(predicting problems with majority’s approach to avoiding

separation-of-powers problem, noting that “[rjeluctance to

working with the basic meaning of words in a normal manner

undermines the legal process’’).

The Public Citizen Court could not have intended to

support creation of a gaping loophole excluding from the

critical public accountability requirements of FACA exactly

the kinds of policy-affecting committees to which Congress

enacted FACA to apply. But this foundation to the D.C.

Circuit’s ruling means that the lower courts, citing the

Supreme Court’s only FACA decision, will reject any future

attempt to challenge agency use of the contractor device.

Only the Supreme Court can remedy the damage wrought by

the D.C. Circuit’s decision.

* In contrast to the kind of advice at issue in Public Citizen, the

benzene risk assessment and the advisory committee’s comments would

presumably become a part of the administrative record of any rule

ultimately premised on the risk assessment. Such record could be

reviewed in court under the Administrative Procedure Act, 5 U.S.C. §§

551, et seq.

12

D. The D.C. Circuit’s Approval of the Extent of

EPA Control Over Committee Advice Conflicts

with Public Access Assured by FOIA

This Court has cited the importance of agency control to

determining whether particular activities are subject to

Statutory compliance requirements under sunshine statutes.

E.g., Public Citizen, 491 U.S. at 457 (ABA committee, as

privately formed “rather than at the Federal Government’s

prompting,” receiving no federal funds and “not amenable to

strict management of agency officials,” not subject to FACA

Forsham vy. Harris, 445 U.S. 169, 181 (1980) (“{rjecords of a

nonagency certainly could become records of an agency as

well” under FOIA based on extent of agency control);

Department of Justice v. Tax Analysts, 492 U.S. 136, 143

(1989) (citing fact that documents were not in control of

agency nor entered agency files as ground for holding them

beyond FOIA). The D.C. Circuit’s undervaluing of EPA’s

control over the contractor and advisory committee in this

case significantly conflicts with this Court’s rulings under

FACA’s sister sunshine statute, the Freedom of Information

Act, 5 U.S.C. §§556, et seg. (“FOIA”), such that documents

that EPA would be required to disclose under FOIA could be

denied the public under the “contractor exemption” of

FACA.” |

Specifically, this Court has concluded that restricting

FOIA applicability to materials generated internally by an

agency itself (as opposed to by others for an agency) would

frustrate Congressional intent to provide public access to the

information available to agency decisionmaking. Department

of Justice v. Tax Analysts, 492 U.S. 136, 146 (1989).

’ The purpose of FOIA, enacted shortly after FACA, was similar to

that of FACA, namely “to open agency action to the light of public

scrutiny.” Dept. of Justice v. Reporters Com. For Freedom of Press. 489

U.S. 749, 772 (1989).

;

F

sept Eola Tweed

13

Forsham vy. Harris, 445 U.S. 169, posed the issue of

whether raw data generated by the recipient of an agency

grant constituted “agency records,” based on the agency’s

funding of the research and its right of access to the data. The

Court distinguished the generation of data resulting from an

agency grant to a private entity for a public purpose, which

occurs generally iidependently of the grant-giving agency,

from data generation by an agency contractor for the direct

benefit or use of the agency. 445 U.S. at 180. The Court held

that grantee-generated data did not constitute “agency

records,” but noted that “[rjecords of a nonagency certainly

could become records of an agency as well,” based on

government control. /d. at 7 Oy

Forsham’s distinction between grantee-based document

generation-- independent of agency and for public interest--

and contractor document generation (generally for agency,

within agency’s control, and hence subject to FOIA),

highlights the problem with the D.C. Circuit’s decision in

Byrd. The benzene committee was established directly for

EPA and was in fact subject to Agency control. Under FOIA,

the public has the right to find out the kinds of advice EPA

has received from its advisory groups, including ones run for

EPA by contractors. See, e.g., Burka v. Depart. of Health and

Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996); Chicago

Trib. Co. v. Dept. of Health & Human Servs., 1997 U.S. Dist.

LEXIS 2308 at *28 (N.D. Ill., Feb. 28, 1997); Gilmore v.

Dept. of Energy, 4 F.Supp. 2d 912, 917 (N.D. Cal. 1998)

(documents that government owns by contract are “agency

records”). Under FACA, however, disclosure of such

information could no longer be available.

That is, under the D.C. Circuit’s “contractor exemption,”

EPA could choose not to disclose some or all of the

documents considered or produced by one its contractor-led -

'* See Tax Analysts, 492 U.S. at 147 (to limit FOIA application to

documents authored by an agency would be incompatible with FOIA’s

public openness purpose).

14

advisory committees. Cf. FACA § 10 (requiring disclosure of

documents “available to or prepared by” advisory committee).

See also Alabama-Tombigbee River Coal. v. Dep’t of Interior,

104 F.3d 424, 430 (11th Cir. 1994) (FACA document

disclosure to be contemporaneous with FACA meeting); Byrd

v. EPA, 174 F.3d at 244 (same)). Documents subject to

disclosure under FOIA could be denied the public attending

EPA contractor-led advisory committee meetings (as occurred

in this case).

The differing results under FOIA and the purported FACA

“contractor exemption” conflict with the public openness purpose

of these sister sunshine statutes, and the “contractor exemption”

underlying the conflict should be rejected.

E. The “Contractor Exemption” Damages APA

Review

As the D.C. Circuit recognized regarding the basis of

Byrd’s standing and his claim of redressability,

declaratory relief will redress Byrd’s injury because it will

provide him with this Court’s declaration that the agency

failed to comply with FACA; and such a declaration will

give Byrd “ammunition for [his] attack on the

Committee’s findings” in subsequent agency proceedings

that make use of the Benzene update.

Byrd v. EPA, 174 F.3d at 244 (citation omitted). By contrast,

when EPA ultimately promulgates a rule significantly tightening

tailpipe benzene emissions of millions of cars and trucks based on

the “peer-reviewed” benzene risk assessment, nothing in the

rulemaking record will identify (1) the FACA problems with the

peer review nor (2) the substantive problems resulting from the

undercutting of the ability of Byrd and possibly others to

comment (due to denial of access to benzene committee

wwii

i)

documents contemporary with the committee meeting).'°

Moreover, the work of EPA’s insufficiently open, significantly

controlled benzene committee will constitute merely a small

element at the bottom of an extensive rulemaking record.

Accordingly, the ability of Byrd or a refiner of benzene

to obtain meaningful APA review of the rules ultimately

premised on the benzene committee’s work --based on that

defective work-- is damaged. The ability of the D.C. Circuit

meaningfully to review the rulemaking record is likewise

damaged; it will see none of the problems with the benzene

peer review. Cf FTC v. Dean Foods Co., 384 U.S. 597, 603

(1966) (discussing principles of court’s authority to act in aid

of its future ability to review case); see Sampson v. Murray,

415 U.S. 61, 77 (1974) (circumstances depriving court with

agency review authority of ability to effectively review

agency action would justify judicial action).

F. Absurd Result of D.C. Circuit’s Reading of

FACA Should be Rejected

It is no casual principle that statutes must be construed in

the light of their purpose, and judicial constructions which

would lead to absurd results are to be avoided. E.g Haggar

Co. v. Helvering, 308 U.S. 389, 394 (1940); Green v. Bock

Laundry Machine Co., 490 U.S. 504, 529 (1989) (Scalia, J.,

concurring). Here, the D.C. Circuit’s “contractor exemption”

to FACA applicability means that while an agency could not,

under the 1997 FACA Amendments, escape FACA

accountability and openness requirements in obtaining

advisory committee input by using the National Academy of

Sciences to establish a committee, it could do so by hiring a

different contractor. This result is absurd, and effectively

vitiates the public openness purpose of the statute.

"See Byrd Decl. at 7] 5-7, 12-13. (Pet. App. at Section C) (citing

problems of overestimation of risk to public, at great economic cost, and

underestimation of risks to certain worker categories).

16

G. No Factual Complexity Justifies Reluctance to

Resolve This Case

This case involves no dispute over the factual elements

of EPA’s assertion and reservation of rights over the

contractor’s and committee’s activities. See n. 4, supra at 5.

If the undisputed level of involvement and control

demonstrated by EPA is not sufficient to render the benzene

committee an advisory committee, then FACA is a nullity.

Agencies need not exercise any more management than

occurred here in order to effectively control a committee

through a contractor, while at the same time having escaped

FACA’s compliance requirements. |

H. The Court Is Not Likely to Have a Second

Chance to Resolve This Issue

The significance of this case results from the likelihood

of effective substantial or complete repeal of FACA

compliance by the D.C. Circuit decision— that is, the eventual

widespread agency use of contracts to set up advisory

committees. This case does not involve a conflict between

the circuits, presumably because the D.C. Circuit, located at

the seat of Federal government, is by far the primary venue of

FACA litigation.’”

'© The D.C. Circuit’s conclusion that EPA had not “established” the

benzene committee relied significantly on the panel majority’s factual

presumption. While the panel majority noted that EPA had reserved

“significant potential authority” in the contractor’s selection of committee

members, and stated that “[t}he result in this case might have been

different if EPA had exercised its [veto] authority,” it concluded that

“there is no reason to assume that the threat of an EPA veto affected [the

contractor’s] panel selections.” 174 F.2d at 247. However, Judge Williams,

dissenting, pointed out the palpable weakness of this factual presumption, noting

that “Assuming that contractors will ignore this fact. . . seems akin to believing

that the President takes no account of senators’ opinions when he nominates

federal judges.” /d. at 249 (citation omitted). This is a dispute not of fact but of

commonsense.

" For the same reason, the present case, together with Food Chem.

News, are the only cases that have considered agency use of the contractor

17

At the same time, if the D.C. Circuit’s decision stands,

this Court is very unlikely to review a similar case, first

because the D.C. Circuit has provided a roadmap for how

agencies can establish advisory committees without incurring

FACA compliance responsibilities. Second, where the

primary authority for the D.C. Circuit decision is this Court’s

only FACA decision, Public Citizen, future challenges to

contractor-led advisory committees in other circuits will be

dismissed, following the path pointed by the D.C. Circuit.

Finally, it will be very difficult under the D.C. Circuit’s ruiing

for a plaintiff to detect violation of FACA in instances where

a contractor was used. Agencies could choose to close

contractor-led advisory committee meetings and not invite the

public. Indeed, complete shams --purportedly contractor-led

advisory committees that are in fact agency-established and

controlled-- could simply not be detected, particularly where

EPA chose to close such a meeting. (In the present case, only

by filing suit --because the contractor and EPA denied Byrd

advisory committee documents-- and obtaining limited

voluntary discovery was the extent of EPA’s control of the

benzene committee revealed.)

* * #

Accordingly, the Court must, to preserve FACA, reach

the present case and decide the question of whether an

agency’s use of a contractor to set un an advisory committee

exempts an agency from FACA compliance requirements.

device. See also 174 F.3d at 249 (citing scant D.C. Cir. case law on

“established” and “utilized’’).

" In Kissinger v. Reporters Comm., 445 U.S. 136, 155 n.9 (1980), the

Court noted but reserved the issue of FOIA applicability to an agency

official’s purposeful routing a document out of agency possession in order

to evade a FOIA request. Petitioner cannot, based on the constricted

discovery process in this case, prove that EPA’s use of the contractor

device in the case of a significant and controversial peer review was

motivated by an attempt to evade FACA, but given the absence of a clear

cost savings from the practice, the fact that EPA has FACA-compliant

committees that actually provide peer reviews, and the significance of this

peer review, the possibility cannot be ignored.

18

Il. The Benzene Advisory Committee Was Subject to

FACA

The following discusses the basis for concluding that

EPA’s benzene advisory committee was subject to FACA,

namely that FACA contains no contractor exemption, that

EPA’s heavy involvement in setting up the benzene advisory

committee constitutes “establishment” of the committee, and

that given EPA’s heavy involvement and use, the committee

was likewise “utilized” under FACA.

A. FACA Does Not Contain a “Contractor

Exemption”

FACA contains no exemption for agency use of a

contractor as its agent for obtaining advice. Nor does

FACA’s legislative history support the “contractor

exemption” the D.C. Circuit approved here. That is, one of

the few references to contractor use in the legislative history

is the statement that the “Act does not apply to persons or

organizations which have contractual relationships with

Federal agencies nor to advisory committees not directly

established by or for such agencies Food Chemical News v.

Young, 900 F.2d at 331 (quoting H.R. Conf. Rep. No. 92-

1403, p. 10 (1972)). The first clause means that FACA does

not apply to the contractor who sets up an advisory committee

for an agency, and it was so applied in Food Chemical News

v. Young, 900 F.2d 328. That case concerned, in part, the

claim that a learned society hired by the Food and Drug

Administration to produce a document was itself subject to

FACA for using an advisory committee; the D.C. Circuit cited

the first clause in exempting that contractor from FACA. /d.

(distinguishing, for purposes of FACA, contractor from

advisory committee).’

” To the same effect, see H. Rep. No. 92-1017 at 3494 (“The term

advisory committee does not include any contractor or consultant hired by

an officer or agency of the government, since such contractor would not

be a ‘committee, board, commission, council . . ., or similar group. . .”)

19

The second prong of the Conference Report language

excludes from FACA coverage “advisory committees not

directly established by or for such agencies.” EPA’s central

role in the benzene committee’s establishment takes the

committee out of that exclusion. The benzene committee was

directly established by and for EPA.”

Finally, the D.C. Circuit’s decision in Food Chemical

News v. Young, 900 F.2d 328, cited by the D.C. Circuit panel

majority as additional authority, did not license agency use of

contractors to set up advisory committees. That case

concerned the claim that an advisory committee organized by

the Federation of American Societies for Experimental

Biology (“FASEB”) in the course of producing a policy

document as a contractor to the Food and Drug

Administration. The court rejected the claim that the FASEB

committee was an advisory committee to FDA subject to

FACA, citing the independence of the FASEB committee

from FDA:

The panel was “established” by FASEB, not by

FDA. FASEB proposed the panel, and alone

selected its members. FASEB also set the panel’s

agenda, scheduled its meetings, and would have

reviewed the panel’s work. Similarly, FASEB was

the entity that, by contract, directly “utilized” the

panel. FASEB is a private organization and

government contractor [...]). The panel was to be

managed by FASEB; it was “not amenable to [any]

management by [FDA] officials,” or “by [any

semiprivate entity the Federal Government helped

bring into being.”

900 F.2d at 333 (Ginsburg, R., J.) (citations omitted). By

contrast, in the present case, EPA directly involved itself in

a By contrast in the present case, the contractor, ERG “established”

the benzene committee only in the most superficial sense: the motive and

the establishing actions were undertaken or ordered by EPA.

20

the selection of committee members, EPA set the committee’s

agenda, and EPA reviewed the committee’s draft final report,

having reserved the right to direct changes. Where the

FASEB panel was wholly that of the contractor, the benzene

committee was that of EPA. In any case, FACA contains no

exemption for using a contractor in establishing and utilizing

an advisory committee.

B. An Agency That Tasks Contractor to Set Up

Advisory Committee and Controls the Setting

Up “Establishes” the Committee for FACA

Purposes

FACA defines an “advisory committee” to include “any

committee, board, commission, council, conference, panel,

task force, or other similar group. . .which is. . . established or

utilized . . . [by an agency], in the interest of obtaining advice

or recommendations....” 5 U.S.C. App. II, §3. The appellate

panel majority held that EPA did not “establish” the benzene

committee; the contractor did. 174 F.3d at 247. This

conclusion exalts form over substance, because

notwithstanding EPA’s hiring of a contractor, there was no

material difference between EPA’s relationship with the

committee and the relationship it would have had with a

committee it set up itself.

Moreover, this Court has not, in Public Citizen v.

Department of Justice, 491 U.S. 440, identified any such

exemption. While the Court in that case did not focus on the

“establishment” element of FACA’s definition of ‘“‘advisory

committee,” it did distinguish the ABA committee from

FACA’s intended scope based on the fact that that committee

had not at all been established by the Executive; it was in fact

established by a private organization, namely the ABA. E.x.,

491 U.S. at 457.

% Specifically, “Appellants agree[d] that the ABA Committee was not

‘established’ by the President or the Justice Department.” /d. at 452.

21

The legislative history, moreover, sheds a_ little

additional light. Notably, the Senate bill evolved from

defining an “advisory committee” as one that was limited to

committees established by an agency to a definition that

extended to committees that were established or organized

by agencies. The House-Senate conference in fact settled on

an advisory committee definition founded on a “more

capacious phrase,” 491 U.S. at 461-2, namely established or

utilized. This definition, in turn, was clearly influenced by the

model of Executive Order 11007 (1963). The definition in

Executive Order 11007 reached advisory committees --

whether formed by agencies or not-- “during any period when

an [advisory committee] is being utilized by a department or

agency in the same manner as a Government-formed advisory

committee.” 491 U.S. at 457. In moving to expand the

definition from committees “established” by agencies to ones

“established or utilized,” Congress was clearly reaching

beyond only government-established committees.”

In the present case, EPA itself decided on establishment

of an advisory committee to provide it advice on exposure

risks associated with benzene, and EPA hired the contractor

for that purpose. EPA then involved itself in the contractor’s

choice of committee members and the committee chair; in

drafting of the committee’s meeting agenda; and in conveying

the charge to the committee; and EPA publicly described the

benzene committee as its own, with the contractor providing

logistical support. 62 Fed. Reg. at 35173, J.A. 214. In

contrast to the ABA committee at issue in Public Citizen,

EPA caused establishment of the benzene committee for its

own purposes and directly participated in that establishment.

See Byrd v. EPA, 174 F.3d at 249 (Williams, J., dissenting)

(“an agency ‘establish{es]’ a panel if it has real control over

”

~ As noted in Public Citizen, the report of the Senate bill underlying

FACA “manifested a clear intent not to restrict FACA’s coverage to

advisory committees funded by the Federal Government....” 491 U.S. at

461 (citing S. Rep. No. 92-1098, p 8 (1972)).

22

its personnel and subject matter at its inception”). Using a

contractor as a glove while setting up an advisory committee

should not exempt an agency from FACA.

C. EPA “Utilized” the Benzene Committee for

Purposes of FACA

There is, to paraphrase, no doubt that the EPA made use

of the benzene committee and “thus ‘utilize[d]’ it in one

common sense of the term.” Public Citizen v. DOJ, 491 U.S.

at 452. EPA specifically tasked ERG to set up an advisory

committee under EPA’s continuing guidance to obtain advice

on its benzene risk assessment, EPA employees engaged the

advisory committee members in a substantive dialogue about

the risk assessment at the committee’s public meeting, and

EPA ultimately received and reviewed for changes the draft

report of the committee’s open meeting and incorporated the

committee’s comments in its benzene risk assessment.

Meanwhile, as noted, the Court of Appeals cited indications

that using a contractor to procure advisory committee advice

was a continuing EPA practice. 174 F.3d at 244 n.4 & 249.

The Court of Appeals held that under Public Citizen, an

advisory committee cannot be “utilized” for FACA purposes

unless it was either the creation of a semi-private public entity

or a “group organized by a nongovernmental entity but

nonetheless so ‘closely tied’ to an agency as to be amenable

to ‘strict management by agency officials’.” Byrd v. EPA, 174

F.3d at 246. The panel majority noted that the first clause was

inapposite and concluded under the latter standard, that Byrd

had not shown the benzene committee so amenable to EPA

management or control. /d.

Public Citizen, however, did not anticipate or address

EPA’s practice of using a contractor to obtain advisory

committee advice without complying with FACA. In fact, the

Supreme Court's reasons for holding the ABA committee to

be outside of FACA’s scope in Public Citizen are wholly

23

absent from the present case. That is, the benzene advisory

committee established by EPA

® was not comparably privately formed — it was

formed specifically at EPA’s prompting, cf. 491

U.S. at 457;

e was not at all foreseen by Congress, and thus

could not have been implicitly excluded from

FACA, as had the ABA committee, cf. id.;

e in fact received public funds budgeted by EPA

for its compensation (through EPA’s

contractor), cf. id. at 460; and

e was in fact “utilized [by EPA] in the same

manner as a _ government-formed advisory

committee,” id. at 457 (emphasis added).

In addition, applying FACA to EPA’s use of the

contractor-led advisory committee device does not implicate

the separation of powers concerns that tipped the balance in

Public Citizen, id. at 464. Finally, though neither Congress

nor the Public Citizen panel anticipated the use of EPA’s

contractor device, the device’s implications are certainly

within the concerns underlying FACA. The facile creation of

advisory groups by contract ignores the accountability

Congress sought in advisory committee creation, see FACA §

9 (charter requirement), allows flouting of the openness

** While the D.C. Circuit suggested that procurement law could stand

in for FACA in controlling agency use of contractors to establish advisory

committees, EPA violated procurement law in its management of the

contractor in this case and has a troubled record of compliance with

procurement law in its use of consultants. EPA, Office of Inspector

General, “Improvement Needed in Subcontract Compet. & Oversight” at

56-57 (Audit Rep. E1BMF2-04-373-5100247, Mar. 21, 1995) (citing

EPA’s directing its prime contractors to subcontract with particular

consultants and experts to avoid procurement requirements of OMB

Circular A-120). In any case, relegating FACA compliance to

24

requirements, §10(public disclosure of advisory committee

materials), and permits omission of the balance requirements.

§5.

Accordingly, it is clear that EPA “utilized” the benzene

committee within the intent of Congress, and extending

FACA to contractor arrangements that are transparently

intended to procure advice for agencies does not implicate the

concerns of this Court in exempting the ABA committee in

Public Citizen.

CONCLUSION

The D.C. Circuit has created a “contractor exemption” that

could easily swallow FACA. For the foregoing reasons, notably

the significant possibility that the Supreme Court will not have

another opportunity to consider the contractor device, Petitioner

respectfully requests the Court to grant the writ.

Respectfully submitted

Thomas R. Bartman

SHAPIRO, LIFSCHITZ AND SCHRAM, P.C.

1101 Pennsylvania Ave., N.W.

Washington, D.C. 20004

202/347-4111

Counsel for Petitioner

Date: December 9, 1999

enforcement of procurement law does not remedy the damage done to

FACA by the D.C. Circuit decision.

Section A

A-1

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

DANIEL M. BYRD, Ill, APPELLANT

V.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, APPELLEE

174 F.3D 239

APRIL 30, 1999, DECIDED

PRIOR HISTORY: Appeal from the United States District

Court for the District of Columbia. (No. 97cv01923).

DISPOSITION: Affirmed.

COUNSEL: Thomas R. Bartman argued the cause for the

appellant. James V. Delong was on brief for the appellant.

Thomas M. Bondy, Attorney, United States Department of

Justice, argued the cause for the appellee. Frank W. Hunger,

Assistant Attorney General, Wilma A. Lewis, United States

Attorney, and Mark B. Stern, Attorney, United States

Department of Justice, were on brief for the appellee. Alisa B.

Klein, Attorney, United States Department of Justice, entered

an appearance.

JUDGES: Before: EDWARDS, Chief Judge, WILLIAMS and

HENDERSON, Circuit Judges. Opinion for the court filed by

Circuit Judge HENDERSON. Separate opinion concurring in

part and dissenting in part filed by Circuit Judge WILLIAMS.

OPINION BY: KAREN LECRAFT HENDERSON

OPINION: [*241] KAREN LECRAFT HENDERSON,

Circuit Judge: Appellant Daniel M. Byrd seeks reversal of the

district couit’s grant of summary judgment to the

Environmental Protection Agency (EPA) on his claim that

EPA violated the Federal Advisory Committee Act (FACA),

as aN ae en —

A-2

5 U.S.C. App. II §§ 1-15. Specifically, Byrd contends that a

peer review panel convened by an EPA contractor, the

Eastern Research Group (ERG), to update EPA’s interim

benzene report constituted a federal “advisory committee”

and therefore its proceedings were governed by FACA, with

which it admittedly did not comply. Byrd seeks either reversal

and a declaration that the panel’s proceedings violated FACA

or, alternatively, remand for discovery pursuant to Fed. R.

Civ. P. 56(f). EPA counters that Byrd lacks standing, his

claim is now moot and he is wrong on the merits. We affirm

for the reasons set forth below.

I. BACKGROUND

In 1985, EPA issued an interim report discussing the

carcinogenic effects of benzene. By 1996, EPA had prepared

a draft update of its interim benzene report (Benzene Update).

See Sonawane Decl. PP 2-5, Joint Appendix (JA) 173-75.

Before finalizing the Benzene Update, EPA decided to subject

it to external peer review.

Under a contractual arrangement with EPA, ERG, a private

environmental consulting firm, convened and conducted the peer

review. See id. P 5, JA 175. The contract required ERG to select a

panel of qualified experts, organize a public meeting of the panel

to discuss the proposed Benzene Update and compile and submit

a report to EPA summarizing the panel’s assessment. See

Statement of Work at 1-7, JA 184-90; Work Plan for Work

Assignment No. 0-5 Contract No. 68-C6-0041, Expert Panel Peer

Review of Benzene Risk Assessment Update (May 14, 1997)

{hereinafter Work Plan], JA 199-204. In addition, the contract

specified that EPA was to pay ERG a fixed sum and that ERG

was to compensate the panel members. See Work Plan, JA 201.

The contract also allowed EPA to determine the issues for the

panel to evaluate and to comment in writing on ERG’s draft final

report. See Statement of Work at 5, JA 188.

Pursuant to the contract, EPA submitted to ERG for its

consideration a list of twenty-four scientists who, in EPA’s view,

possessed the professional credentials necessary to serve on the

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peer review panel. See JA 192-93 (list of potential panelists).

From the list, ERG selected four individuals to be panelists. ERG

also selected two panelists from its own database of consultants.

See EPA Mem. from Barbara Cook to Billy Oden, Re: Work

Plan/Cost Estimate Approval, ERG Contract No. 68-C6-0041,

WA 0-5 (June 9, 1997) [hereinafter 6/9/97 Mem.], JA 220;

6/13/97 Letter, JA 221. EPA suggested no modifications to the list

of panel members selected by ERG. See 6/9/97 Mem., JA 220;

6/13/97 Letter, JA 221; see also Statement of Work at 2, JA 185

(stating that “final approval of selected experts will be made by

EPA”).

On June 27, 1997 EPA held a teleconference with ERG

and the selected panelists, during which the panelists were

instructed to prepare pre-meeting comments on the draft

Benzene Update “specifically addressing a series of questions

that [EPA] had provided” to ERG. Sonawane Decl. P 7, JA

176. The panelists circulated their pre-meeting notes among

themselves and provided a copy to EPA. See id. P 8, JA 176.

On June 30, 1997 EPA gave public notice in the Federal

Register of the panel’s scheduled meeting. See Draft

Carcinogenic Effects of Benzene: An Update, 62 Fed. Reg.

35,172, 35,172-73 (1997), JA 213-14. The Federal Register

notice explained the purpose of the meeting and noted that the

draft was publicly available on the [*242] Internet or in

writing from EPA. The notice also stated that ERG was to

provide “logistical support for the workshop” and _ that

interested persons could attend and Participate in the meeting

and advised that written comments could be submitted to EPA

during a 60-day period ending August 29, 1997. 62 Fed. Reg.

at 35,173, JA 214.

The panel meeting took place as scheduled on July 16,

1997. “The meeting was managed by ERG. Although several

EPA employees who had been involved in developing the draft

benzene update attended the meeting and effectively participated

..., No EPA employee or officer supervised the conduct of the

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meeting.” Byrd Deci. P 8, JA 345. Byrd, a self-employed

“consulting toxicologist and risk assessor,” id. P 2, JA 342, also

attended after “learning about the [July 16, 1997] meeting

through EPA’s [public notice] in the Federal Register.” * Id. P 4,

JA 344. Byrd participated in the meeting, twice expressing his

views to the panel and others present. In addition, because of his

concerns regarding the assumptions underlying the Benzene

Update and his desire to be more informed, Byrd had earlier

sought a copy of the panel members’ pre-meeting notes but had

been rebuffed three times. See id. PP 11, 13-15, JA 345-47;

Sonawane Decl. PP 12-13, JA 177-78. Byrd made no additional

attempt at the meeting to secure the notes. After the meeting,

Byrd timely submitted written comments to EPA on the draft

Benzene Update. See Sonawane Decl. P 15, JA 178.

On August 22, 1997, Byrd filed this action alleging that the

expert panel assembled by ERG was an “advisory committee”

within the meaning of FACA’. Byrd sought both declaratory

relief and a use injunction barring EPA from using the panel’s

work product. See Compl. P 16. One month later, ERG

submitted to EPA its final report, including its analysis of the

' David Bayless, an EPA employee, opened the meeting by

introducing the panel and repeating the questions EPA had posed to the

panel. See Panel Report at 3-4, JA 233-34; Byrd Decl. P 10, JA 345.

‘ Byrd “frequently attends, and plans to continue attending, meetings

sponsored by [EPA] about the toxicology and risks of specific air

pollutants.” Byrd Decl. P 2, JA 342.

5

If the benzene panel was in fact an “advisory committee” subject to

FACA as defined by 5 U.S.C. App. II § 3(2), both parties agree that the

panel functioned in violation of FACA. Among other things, “the records,

... working papers .. . or other documents which were made available to

.. . each advisory committee shall be available for public inspection and

copying”, FACA, 5 U.S.C. App. II § 10(b), and “detailed minutes of each

meeting of each advisory committee shall be kept.” /d. § 10(c). FACA

also stipulates that “there shall be designated an officer or employee of the

Federal Government to chair or attend each meeting of each advisory

committee.” Jd. § 10(e). “No advisory commiitee shall conduct any

meeting in the absence of that officer or employee.” /d.

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draft Benzene Update. See Sonawane Decl. P 14, JA 178;

Schalk Decl. P 8, JA 219; Panel Report, JA 228-329. EPA “did

not participate in ERG’s preparation of the final report.”

Sonawane Decl. P 14, JA 178.

On October 10, 1997, almost three months after the

meeting, Byrd’s counsel wrote a letter to EPA’s FOIA officer

requesting a copy of the panel’s pre-meeting notes. See Letter

from Thomas R. Bartman to Jeralene Green, EPA, Re: Written

Comments Prepared for or by Members of the Advisory

Committee Convened Juiy 16, 1997 (Oct. 10, 1997), JA 216.

EPA provided all of the requested notes and invited Byrd to

submit additional comments. See Letter from William H. Farland,

Director, Office of Research and Development, to Thomas R.

Bartman, Re: FOIA Request HQ-Rin-00186-98 (Nov. 14, 1997),

JA 215. Byrd, however, declined to do so. EPA then moved to

dismiss Byrd’s complaint or, alternatively, for summary

judgment. EPA challenged Byrd’s standing and, on the merits,

argued that the peer review panel assembled by ERG was not an

“advisory committee” under [*243] ACA. The district court

ruled in favor of EPA. Byrd v. EPA, C.A. No. 97-1923 (D.D.C.

May 1, 1998) (Mem. and Order) [hereinafter Mem. & Order], JA

5-9. Although it “assumed without deciding” that Byrd had

standing, Mem. & Order at 2-3 n.1, JA 6-7, the district court held

that a panel convened by a private contractor is not a FACA

“advisory committee” as that term has been construed by the

Supreme Court and by this Court. See id. at 2-5, JA 6-9 (citing

Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 105

L. Ed. 2d 377, 109 S. Ct. 2558 (1989), and Food Chem. News v.

Young, 283 U.S. App. D.C. 344, 900 F.2d 328 (D.C. Cir.), cert.

denied, 498 U.S. 846, 112 L. Ed. 2d 99, 111 S. Ct. 132 (1990)).

Byrd timely filed his appeal.

II. DISCUSSION

A. Standing

EPA first attacks Byrd’s standing to bring this action.

Although the district court “assumed without deciding”

Byrd's standing, Mem. & Order at 2-3 n.1, JA 6-7, its

A-6

approach is incorrect in light of the Supreme Court’s recent

holding in Steel Company v. Citizens for a_ Better

Environment, 523 U.S. 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210

(1998), that standing is a “threshold jurisdictional question”

that cannot be assumed in resolving litigation. //8 S. Ct. at

1016. “Moreover, because Article III standing is always an

indispensable element of the plaintiff's case, neither we nor

the Congress can dispense with the requirement--even if its

application renders a FACA violation irremediable in a

particular case.” Natural Resources Defense Council v. Pena,

33] U.S. App. D.C. 198, 147 F.3d 1012, 1020 (D.C. Cir.

1998) (NRDC); see also Federal Express Corp. v. Air Line

Pilots Ass'n, 314 U.S. App. D.C. 267, 67 F.3d 961, 963 (D.C.

Cir. 1995) (“The requirement of a case or controversy is no

less strict when a party is seeking a declaratory judgment than

for any other relief.”). Therefore, we must decide EPA’s

challenge to Byrd’s standing.

The Steel Company holding requires us to focus on three

elements:

First and foremost, there must be alleged (and

ultimately proven) an injury in fact--a harm suffered

by the plaintiff that is concrete and actual or

imminent, not conjectural or hypothetical...

Second, there must be causation--a fairly traceable

connection between the plaintiff's injury and the

complained-of conduct of the defendant.... And

third, there must be redressability--a likelihood that

the requested relief will redress the alleged injury...

This triad of injury-in-fact, causation, and

redressability comprises the core of Article III's

case-or-controversy requirement, and the party

invoking federal jurisdiction bears the burden of

establishing its existence.

118 S. Ct. at 1016-17 (quotations and citations omitted).

According to the Supreme Court, a refusal to provide

information to which one is entitled under FACA constitutes a

A-7

cognizable injury sufficient to establish Article III standing.

See Public Citizen, 491 U.S. at 449 (“refusal to permit

appellants to scrutinize [committee’s] activities to the extent

FACA allows constitutes a sufficiently distinct injury to

provide standing to sue”). By denying Byrd timely access to

the panel’s written comments and pre-meeting notes, EPA

directly caused his informational injury. See Byrd Decl. at 6 P

15; Sonawane Decl. at 5-6 P 13, JA 177-78: Panel Report at

30, JA 260. EPA therefore can make no serious challenge to

the injury and causation elements of Byrd’s standing. See

Food Chem. News v. Department of Health & Human Servs.,

299 U.S. App. D.C. 25, 980 F.2d 1468, 1469 (D.C. Cir. 1992)

(“Whenever practicable, all [Federal Advisory Committee]

materials must be available for public inspection and copying

before or on the date of the advisory committee meeting to

which they apply.”) (emphasis added).

EPA does question whether Byrd can meet the

redressability prong. It first contends that declaratory relief

will no [*244] longer redress Byrd’s inability to obtain

timely access to the panel’s documents because they have

since been made available and the panel has completed its

work and been disbanded. See Appellee’s Br. at 13, 21-27;

Sonawane Decl. at 6 P 14, JA 178; Schalk Decl. P 8, JA 219.

EPA also stresses that declaratory relief will not prevent

additional informational injuries resulting from any future

noncompliance with FACA. [See Appellee’s Br. at 21-27.] If

Byrd had simply complained that EPA failed to release the

documents he requested, his alleged injury could not be

redressed by any action of this Court because he ultimately

received the materials. Byrd’s injury, however, resulted from

EPA’s failure to furnish him with the documents until long

after they would have been of any use to him. Thus, contrary

to EPA’s contentions, declaratory relief will redress Byrd’s

injury because it will provide him with this Court’s

declaration that the agency failed to comply with FACA; and

such a declaration will give Byrd “ammunition for {his} attack

on the Committee’s findings” in subsequent agency

proceedings that make use of the Benzene Update. NRDC,

A-8

147 F.3d at 1026 n.6. Such an attack might also prompt, in

view of the importance placed on the Benzene Update by

EPA, see Statement of Work at | (contracting with ERG to

conduct “category 1 peer review of the draft benzene

document”), JA 184; Sonawane Decl. at 3 P 4 (“‘Category 1’

peer review is used when major scientific or technical work

products are being generated....”), JA 175, additional, FACA-

compliant peer review on the issue. Moreover, declaratory

relief might well cause EPA to reevaluate and change peer

review practices not in conformity with FACA. Accordingly,

we conclude Byrd has standing to maintain his action.

B. Mootness

EPA also contends that Byrd’s request for declaratory

relief is moot because it has already given him the panel’s

pre-meeting notes and it is not engaged in any ongoing

violation of FACA. Nevertheless, “even the availability of a

‘partial remedy’ is ‘sufficient to prevent [a] case from being

moot’.” Calderon v. Moore, 518 U.S. 149, 150, 135 L. Ed. 2d

453, 116 S. Ct. 2066 (1996) (quoting Church of Scientology v.

United States, 506 U.S. 9, 13, 121 L. Ed. 2d 313, 113 S. Ct.

447 (1992)). Because Byrd’s injury resulted not only from

EPA’s failure to provide him materials but also from the

tardiness of their eventual release, his injury would be mooted

if EPA convened another panel to review the Benzene Update

in compliance with FACA and provided him with all panel

documents either before or at the meeting. Because EPA has

not taken such action, declaratory relief would afford Byrd

some relief and prevent his action from becoming moot.

Byrd also argues that EPA has a policy of hiring

contractors to conduct peer reviews without following FACA

requirements. See Payne Enters., Inc. v. United States, 267

U.S. App. D.C. 63, 837 F.2d 486, 491 (D.C. Cir. 1988) (“So

long as an agency’s refusal to supply information evidences a

policy or practice of delayed disclosure or some other failure

to abide by the terms of the FOIA, and not merely isolated

mistakes by agency officials, a party’s challenge to the policy

or practice cannot be mooted by the release of the specific

A-9

documents that prompted the suit.”’).‘ Thus, the tardy release

of the documents does not render the case moot because

Byrd’s challenge to the policy remains. See United States v.

W.T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct.

894 (1953) (“Voluntary cessation of allegedly illegal

conduct does not deprive the tribunal of power to hear and

determine the case, i.e., does not make the case moot. A

controversy may remain to be settled in such circumstances,

€.g.,a [*245] dispute over the legality of the challenged

practices. The defendant is free to return to his old ways. This,

together with a public interest in having the legality of the

practices settled, militates against a mootness conclusion. For

to say that the case has become moot means that the

defendant is entitled to a dismissal as a matter of right. The

courts have rightly refused to grant defendants such a

powerful weapon against public law enforcement.”) (citations

omitted).

C. The Merits

FACA defines an “advisory committee” as

any committee, board, commission, council,

conference, panel, task force, or other similar group,

or any subcommittee or other subgroup thereof . . .

which is . . . established or utilized by one or more

agencies, in the interest of obtaining advice or

recommendations for . . . one or more agencies or

officers of the Federal Government.

5 U.S.C. App. II, § 3(2) (emphasis added). Because EPA did

not “establish” nor did it “utilize” the panel within the

meaning of section 3(2) of FACA, we affirm the district

. Indeed, counsel for EPA conceded at oral argument that peer review

meetings conducted by contractors without following FACA might occur

in the future. See Tr. at 14-30, Byrd v. EPA, 174 F.3d 239 (D.C. Cir.

1999).

A-10

court’s grant of summary judgment to EPA.’ The district court

treated EPA’s motion for dismissal and summary judgment as

a motion for summary judgment and on that basis granted the

motion. See Mem. & Order at 2, JA 6.

Relying on legislative history, Byrd suggests that

“established” and “utilized” should be construed “in their

most liberal sense, so that when an officer brings together a

group by formal or informal means, by contract or other

arrangement ... to obtain advice and information, such group

is covered by [FACA].” Appellant’s Br. at 11 (quoting S.

Rep. No. 92-1098, reprinted in V. McMurty, Fed. Advisory

Comm. Act (Pub. L. 92-463), Source Book: Legislative

History, Texts, and Other Documents at 158 (Cong. Res.

Serv. 1978)). The Supreme Court, however, in Public Citizen

v. United States Dep't of Justice, 491 U.S. 440, 105 L. Ed. 2d

377, 109 S. Ct. 2558 (1989), squarely rejected an expansive

interpretation of the words, reading “established” and

“utilized” narrowly to prevent FACA from sweeping more

broadly than the Congress intended. See 49] U.S. at 452, 461

(finding “utilized” a “wooly verb” and declining to adopt

dictionary meanings of “established” and “utilized” in

FACA); see also Animal Legal Defense Fund v. Shalala, 322

U.S. App. D.C. 381, 104 F.3d 424, 427 (D.C. Cir.) (noting

“the term ‘utilized’ was given a very narrow interpretation by

the Supreme Court”) (ALDF), cert. denied sub nom., National

Academy of Sciences v. Animal Legal Defense, 522 U.S. 949,

139 L. Ed. 2d 285, 118 S. Ct. 367 (1997). In addition, the

Court indicated that an advisory panel is “established” by an

* We review the district court’s grant of summary judgment de novo

and sustain the decision below if “there is no genuine issue of material fact

and the moving party is entitled to a judgement as a matter of law.” Fed.

R. Civ. P. 56(c); see also Doe v. Gates, 299 U.S. App. D.C. 114, 981 F.2d

1316, 1322 (D.C. Cir.), cert. denied, 5/0 U.S. 928 (1993). We view the

evidence in the light most favorable to the nonmoving party and ask

“whether any reasonable jury could find in its favor.” Harbor Ins. Co. v.

Schnabel Found. Co., 292 U.S. App. D.C. 56, 946 F.2d 930, 935 (D.C.

Cir. 1991).

A-11

agency only if it is actually formed by the agency, see 49/

U.S. at 452, 456-57, and “utilized” by an agency only if it is

“amenable to ... strict management by agency officials,” id. at

457-58. The Court, therefore, held FACA inapplicable to the

American Bar Association Standing Committee on the

Federal Judiciary, rejecting the argument that that committee

had to comply with FACA simply because the Department of

Justice regularly sought its input regarding judicial nominees.

See id. at 452-67.

We have similarly interpreted “established” and

“utilized.” For example, in Food Chemical News v. Young,

283 U.S. App. D.C. 344, 900 F.2d 328 (D.C. Cir.) cert.

denied, 498 U.S. 846, 112 L. Ed. 2d 99, 111 S. Ct. 132 (1990),

we [*246] held that a panel assembled by the Federation of

American Societies for Experimental Biologies (FASEB)

pursuant to a formal contract to advise the Food and Drug

Administration (FDA) on food safety was not an advisory

committee subject to FACA. In so holding, we explained

that “ ‘established’ indicates ‘a Government-formed advisory

committee,’ while ‘utilized’ encompasses a group organized

by a nongovernmental entity but nonetheless so ‘closely tied’

to an agency as to be amenable to ‘strict management by

agency Officials’.” 900 F.2d at 332-33 (quoting Public

Citizen, 109 S. Ct. 2558 at 2568, 2570) (footnote omitted).

We have interpreted “utilized” to encompass “management ...

‘by [any] semiprivate entity the Federal Government helped

bring into being.’” 900 F.2d at 333 (quoting Public Citizen,

109 S. Ct. at 2571) (alteration Original); see also ALDF, 104

F.3d at 427 (noting Supreme Court and this Circuit have

adopted “ ‘management and control’ test to determine

whether a committee not established by a government agency

is nevertheless ‘utilized’ ”). This “second prong” of Food

Chemical New’s “utilized” standard is inapplicable here |

because EPA is a governmental agency and ERG is not an

entity the government had a role in creating. Thus, contrary to

the broad standard suggested by Byrd, “the utilized test is a

Stringent standard, denoting ‘something along the lines of

actual management or control of the advisory committee.’ ”

A-12

ALDF, 104 F.3d at 430 (quoting Washington Legal Found. v.

Sentencing Comm'n, 305 U.S. App. D.C. 93, 17 F.3d 1446,

1450 (D.C. Cir. 1994)) (emphasis original). Indeed, this Court

has held that participation by an agency or even an agency’s

“significant influence” over a committee’s deliberations does

not qualify as management and control such that the

committee is utilized by the agency under FACA. See

Washington Legal Found., 17 F.3d at 145].

Although this Court has held that an agency

“establishes” a committee only if the agency forms the

committee, see Food Chem. News, 900 F.2d at 332, Byrd

contends that EPA “effectively created” the panel by

“conceiving of the need for” it and implementing it by hiring

ERG to handle the logistics. Appellant’s Br. at 16-17 (noting

EPA’s presentation of panel as its own in Federal Register

notice and at public meeting). According to Byrd, EPA’s

actions are unlike those of the FDA in Food Chemical News

in that, there, the contractor (not the agency) “proposed using

ad hoc groups of knowledgeable experts as a means of

carrying out the contract.” Jd. at 13 (quoting Br. of Resp’t in

Opp’n, Food Chem. News, No. 90-23 (in Supreme Ct. on pet.

for writ of cert.)). But our analysis of whether an advisory

committee has been “established” does not turn on a

determination of who determines the methodology or

operation of the peer review. Notably, the contractors in both

Food Chemical News and here received a “task order” or a

“work assignment” from the relevant agency defining the

objective, the method and the scope of the studies to be

performed. See Food Chem. News, 900 F.2d at 330;

Statement of Work at 1-7, JA 184-90; Work Plan, JA 199-

204. Moreover, because ERG selected the membership of the

benzene panel, see 6/9/97 Mem., JA 220; 6/13/97 Letter, JA

221, Byrd cannot show that it was “ ‘a Government-formed

advisory committee’ “as required by our narrow interpretation

of “established.” Food Chem. News, 900 F.2d at 332 (quoting

Public Citizen, 109 S. Ct. 2558 at 2570). Byrd nevertheless

argues that EPA established the panel because it retained the

power to approve ERG’s panel member selections. Although

A-13

EPA provided a list of suggested panel members to ERG,

ERG was not required to select its members from that list and

two of the panel members were not on the EPA list. See JA

192-93 (list of potential panelists); [*247] Work Plan, JA

201; 6/9/97 Mem., JA 220; 6/13/97 Letter, JA 221; Panel

Report App. A, JA 275-76. Moreover, EPA approved ERG’s

panel member selections without changes. See Sonawane

Decl. P 6, JA 176; 6/9/97 Mem., JA 220; 6/13/97 Letter, JA

221. Finally, ERG, not EPA, paid the panelists from its own

funds. See Schalk Decl. P 4, JA 218. Although the contract

between ERG and EPA afforded EPA significant potential

authority in the panel selection process, EPA never fully

exercised it. And there is no reason to assume that the threat

of an EPA veto affected ERG’s panel selections. The result in

this case might have been different if EPA had exercised its

authority. The record, however, belies any claim that EPA in

fact “established” the panel as required by FACA. The statute

describes a panel that “is ... established,” 5 U.S.C. App. II, §

3(2), not one that could have been established by a

government agency. Accordingly, EPA did not establish the

benzene panel within the meaning of FACA.

Byrd also contends that EPA “utilized” the benzene

panel because it exercised much more control over it than the

agencies in Food Chemical News and Washington Legal

Foundation exercised over the committees at issue in those

cases.’ See Appellant’s Br. at 14-15 (asserting EPA provided

* After consulting with EPA, see Statement of Work at 1, JA 184,

ERG also designated the panel’s chairman. See Sonawane Decl. at 5, JA

177; Schalk Decl., JA 218; 6/13/97 Letter, JA 221: Panel Report App. A,

JA 275-76.

Although Byrd asserts that EPA exerted greater influence on the

benzene panel than did the Justice Department on the Sentencing

Commission’s Advisory Group in Washington Legal Foundation, see

Reply Br. at 4-5, his assertion is debatable. In Washington Legal

Foundation, the agency placed its own employees on the panel. See /7

F.3d at 1450-51. And even with agency employees on the panel, this

A-14

list of experts from which ERG was to select panel, reserved

final authority to approve composition of panel, consulted

with ERG on choice of chairman and agenda, presented

charge to panel in pre-meeting conference call and reserved

right to make written comments on ERG draft report). But

even assuming EPA exercised more influence here than did

the FDA or the DOJ in relation to their committees, EPA did

not manage and control the benzene panel within FACA’s

scope, keeping in mind that “the utilized test is a stringent

standard, denoting ‘something along the lines of actual

management or control of the advisory committee.’ ” ALDF,

104 F.3d at 430 (quoting Washington Legal Found., 17 F.3d

1446 at 1450) (emphasis original)). As we held in

Washington Legal Foundation, even “significant” influence

does not represent the level of control necessary to establish

that a government agency “utilized” an advisory panel. 17

F.3d at 1451 (“But influence is not control.”’).

Contrary to Byrd’s contention, the record shows that

ERG in fact actually managed and controlled the selection of

the panel’s membership. See Mem. & Order at 4 n.2, 5;

Sonawane Decl. at 4, JA 176; 6/9/97 Mem., JA 220; 6/13/97

Letter, JA 221. Moreover, as even Byrd admits,

The [panel’s July 16, 1997 public] meeting was managed

by a contractor, ERG. Although several EPA employees who

had been involved in developing the draft benzene update

attended the meeting and effectively participated .... no EPA

employee or officer supervised the conduct of the meeting.

Byrd Decl. P 8, JA 345; see Schalk Decl. P 6, JA 219.

Finally, ERG, rather than EPA, prepared the report of the

panel’s proceedings. See Statement of Work at 5, JA 188;

Work Plan, JA 204. Although the contract authorized EPA to

receive and comment on the draft report before it was

finalized, the district court found “no evidence that EPA’s

Court nonetheless held that their influence did not meet the management

and control level needed to trigger FACA. See id. at 1451.

A-15

input, if any, resulted in changes being made to the final

Expert Panel Report.” Mem. & Order at 4 n.2, JA 8; see

Sonawane Decl. P 14, JA 178 (EPA “did not participate in

ERG’s preparation of the final report.”). Because our decision

is based on what EPA in fact did, rather than on what it could

have done [*248] under its contract with ERG, we conclude

that EPA’s actions regarding the benzene panel do not

constitute “actual management and control.” ALDF, 104 F.3d

at 430; Washington Legal Found., 17 F.3d at 1450.

Accordingly, the district court correctly determined that the

benzene panel was not subject to the constraints of FACA

because EPA neither “utilized” nor “established” it. For the

foregoing reasons, the district court’s grant of summary

judgment to the Environmental Protection Agency is

Affirmed."

DISSENT BY: WILLIAMS (In Part)

DISSENT: WILLIAMS, Circuit Judge, concurring in part and

dissenting in part: I agree with the majority that we have

Byrd alternatively sought remand for discovery pursuant to Fed. R.

Civ. P. 56(f) (allowing discovery before summary judgment if “it appears

from the affidavits of a party opposing the motion that the party cannot for

the reasons stated present by affidavit facts essential to justify the party

opposition.”). See Decl. of Daniel M. Byrd Pursuant to Rule 56(f), JA

350-51. Byrd had to show what facts he intended to discover that would

create a triable issue and why he could not produce them in Opposition to

the motion. See Hotel & Restaurant Employees Union, Local 25, et al. v.

Attorney Gen. of the United States, 256 U.S. App. D.C. 227, 804 F.2d

1256, 1259 (D.C. Cir. 1986). “It is well settled that conclusory allegations

unsupported by factual data will not create a triable issue of fact.” Exxon

Corp. v. FTC, 213 U.S. App. D.C. 356, 663 F.2d 120, 126-27 (D.C. Cir.

1980) (quotation omitted). Byrd merely alleged that “there may well be

knowledge on the part of EPA employees or undisclosed documents

identifying additional contacts between EPA and the peer panel

members,” Rule 56(f) Decl. at 1-2 P 3, JA 350-51, a plainly conclusionary

assertion without any supporting facts. The district court did not abuse its

discretion in denying Byrd discovery before granting EPA’s summary

judgment motion. See Exxon Corp., 663 F.2d at 126 (Rule 56(f) ruling

reviewed for abuse of discretion).

A-16

jurisdiction, albeit on a different theory. On the merits,

however, though the case is close, | would reverse.

Jurisdiction rests, I think, entirely on EPA’s policy of

using contractors to do peer reviews of risk assessments under

arrangements like those involved in the Benzene Update that

triggered this suit. Because Byrd is a regular participant in

risk assessment panels, the threat of future injury from the

policy is likely and imminent enough to justify standing.

Jurisdiction based on the policy rather than the benzene

episode suffers no mootness problem: EPA never claimed it

would back away from the alleged policy; indeed, counsel at

oral argument more or less admitted that the procedures used

for benzene represented EPA’s ongoing policy.

Unlike the future informational injuries that will flow

from EPA’s refusal to apply FACA to its contractors’

consultative process, Byrd’s injury from EPA’s applying that

view to the Benzene Update appears irredressable. His claim

to the documents, of course, is mooted by EPA’s FOIA

officer’s releasing them to him. And I do not see how a mere

declaration that he should have had them at the time of the

meeting constitutes redress for that loss. The majority

suggests that a declaration would help Byrd attack this

committee’s findings on benzene if EPA wishes to use them

in some future proceeding. Perhaps this provides standing for

one claiming threatened injury-in-fact from the outcome of

this future proceeding, but Byrd made no such claim. Further,

such a declaration would seem a telling weapon for Byrd in a

hypothetical future proceeding only if he asserted that the

documents belatedly turned over enabled him to poke a hole

in the substance of the peer review, a hole that he was unable

to perceive on a timely basis because of EPA’s original

refusal to deliver them. But he has identified no such gap.

Nor do I think NRDC vy. Pena, 331 U.S. App. D.C. 198,

147 F.3d 1012, 1026 n.6 (D.C. Cir. 1998), see Maj. Op. at 7-

8, extended “informational injury” so far. That footnote

merely observed that denying an injunction against future use

of findings from a FACA- defective proceeding would not

A-17

render FACA entirely [*249] toothless. One such tooth may

be declaratory relief, and its utility in some cases may depend

on the winner’s being able to use it to delegitimate such

findings. But nothing in Pena suggested that the prospect of

securing such a benefit from the court could alone support

Standing as a general matter. The majority’s language

extending the “informational injury” redressable under FACA

appears to assume that a highly theoretical injury is adequate

for standing; the language is unnecessary to jurisdiction here.

On the merits, | believe that FACA governs panels

established under the challenged policy. Our precedent on this

language is rather thin, but appears to say that an agency

“establishes” a panel if it has real control over its personnel

and subject matter at its inception. Thus in Food Chemical

News v. Young, 283 U.S. App. D.C. 344, 900 F.2d 328, 333

(D.C. Cir. 1990), we said that the agency had not

“established” the panel because the contractor “proposed” it,

“alone selected its members,” “set the panel’s agenda,”

“scheduled its meetings,” and “would have reviewed the

panel’s work.” Here EPA proposes the use of a panel, submits

an initial list of suggested members to the contractor, retains

veto power over the final membership, and sets the panel’s

agenda. (The procedure used for the Benzene Update is

evidently representative of EPA’s practice.) The veto power is

key. That it was not used in the benzene episode does not

much help EPA: not only may EPA exercise it in future

applications of the policy, but the contractor was and is quite

likely to take the fact of veto power into account in its

selection decisions. Assuming that contractors will ignore this

fact--as the majority appears to do, see Maj. Op. at 13--seems

akin to believing that the President takes no account of

senators’ opinions when he nominates federal judges.

Although the issue of whether EPA “established” the

panel is certainly a close one, it seems to me inconsistent with

the statute’s language and intent to exempt from FACA a

panel controlled so closely in membership and purpose.

A-18

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1998

97cv01923

United States Court of Appeals for the

District of Columbia Circuit

Filed

August 11, 1999

Clerk

Daniel Byrd, d/b/a Consultants in Toxicology,

Risk Assessment and Product Safety, Appellant

Vv.

Environmental Protection Agency, Appellee

No. 98-5180

Before: Edwards, Chief Judge; Wald, Silberman, Williams,

Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel and

Garland, Circuit Judges

ORDER

Appellant’s petition for rehearing en blanc and the

response thereto have been circulated to the full court. The

taking of a vote was requested. Thereafter, a majority of the

judges of the court in regular active service did not vote in

favor of the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

A-19

Per Curiam

For the Court:

Mark J. Langer, Clerk

By: /s/

Robert A. Bonner

Deputy Clerk

Circuit Judges Williams and Tatel would grant the petition.

Circuit Judge Wald did not participate in this matter.

A-20

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1998

97cv01923

United States Court of Appeals for the

District of Columbia Circuit

Filed

August 11, 1999

Clerk

Daniel Byrd, d/b/a Consultants in Toxicology,

Risk Assessment and Product Safety, Appellant

V.

Environmental Protection Agency, Appellee

No. 98-5180

BEFORE: Edwards, Chief Judge; Williams and

Henderson, Circuit Judges

ORDER

Upon consideration of appellant’s petition for rehearing filed

June 14, 1999, itis ORDERED that the petition be denied.

Per Curiam

For the Court:

Mark J. Langer, Clerk

By: /s/

Robert A. Bonner

Deputy Clerk

Circuit Judges Williams would grant the petition for rehearing.

Section B

B-]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DANIEL BYRD, Ph.D., d/b/a

Consultants in Toxicology, Risk Assessment,

and Product Safety,

Plaintiff,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Defendant.

File No. C.A. No. 97-1923 (TPJ)

Filed

May I, 1998

Nancy Mayer-Whittington, Clerk

U.S. District Court

Thomas Penfield Jackson

U.S. District Judge

MEMORANDUM AND ORDER

Plaintiff Daniel M. Byrd, a private “consulting

toxicologist and risk assessor’ who advises clients on

scientific issues within his expertise, has brought this action

against defendant U.S. Environmental Protection Agency

(“EPA”) for declaratory and injunctive relief. At issue is a

report prepared by EPA concerning the carcinogenic effects

of benzene (hereinafter, “Benzene Update”), certain

conclusions of which Dr. Byrd regards to be of

questionable-scientific merit.

It appears that Benzene Update was the subject of an

evaluation in July, 1997, by a peer review panel convened by

Eastern Research Group (“ERG”), a private consulting firm,

pursuant to a contract with EPA. Although not a panelist

B-2

himself, Dr. Byrd attended the single public meeting of the

panel, but did so without benefit of having been able to read

the “pre-meeting comments” the panelists had exchanged

with one another. The panel’s final report, prepared under the

auspices of the private consulting firm, will presumably

figure, along with Benzene Update, in further EPA

proceedings to regulate the industrial emissions of benzene

under the Clean Air Act, 42 U.S.C. § 7403 (d) (2) (C).

Plaintiff Byrd contends that the peer review panel

convened by ERG was, in fact, a federal “advisory

committee,” and that, as such, its proceedings were governed

by the Federal Advisory Committee Act (“FACA”), 5 U.S.C.

App. [1 §§ 1-15, with which it admittedly did not comply. In

consequence, Byrd asserts in Count I of his complaint that he

is entitled to judgment declaring the proceedings to have been

conducted in violation of FACA. In Count II Byrd prays for

an injunction against further consideration by EPA of a

reassessment of benzene emission standards utilizing Benzene

Update until it has reconvened a reviewing panel in

compliance with FACA.

The FDA has moved for summary judgment of dismissai

of Byrd’s complaint on multiple grounds. The Court will

grant the motion on the sole ground that, by controlling D.C.

Circuit precedent, the peer-review panel is not to be deemed a

federal “advisory committee” under, and subject to the

requirements of, FACA. See Food Chem. News v. Young, 900

F.2d 328 (D.C. Cir.), cert. denied, 498 U.S. 846 (1990)

(citing and following Public Citizen v. United States Dep’t of

Justice, 491 U.S. 440 (1989)).'

Byrd’s interest in Benzene Update, so far as is shown, appears to be

that of a scientifically aware citizen concerned that EPA act upon sound

scientific premises. Because the Court concludes that amendment of the

complaint to add plaintiffs who might have superior Article III standing

credentials would be fruitless, given the Food Chemical News precedent’s

dispositive effect on the merits, the Court assumes without deciding that

Ear

B-3

As the parties are aware, FACA affords significant

public access to and participatory rights in the proceedings of

conclaves of private-sector consultants assembled to assist

government agencies in discharging their missions when they

are convened as federal “advisory committees.” Salutary as

its effects may be in some contexts, in others FACA has

proved to be inhibiting, cumbersome, and inefficient. The

Food Chemical News case gave judicial approval to a method

of securing private sector expertise for the benefit of

government without requiring observance of the formalities

required by FACA in circumstances in which the interaction

between the government officials and their private-sector

advisors was likely to be neither collusive nor wasteful.

In Food Chemical News the D.C. Circuit held that a

panel of experts assembled pursuant to a formal contract to

advise the Food and Drug Administration (“FDA”) on food

safety and quality matters was not an “advisory committee”

subject to the FACA protocol. The advice submitted pursuant

to the contract was the work product of the private-sector

contractor, a consortium of professional societies, and was

solicited, produced, and paid for in accordance with federal

procurement regulations. As in the instant case, the

contractor in Food Chemical News convened a panel of

experts and wrote the final report, making such use of the

panelists’ conclusions as the contractor itself decided were

scientifically significant.

plaintiff Byrd has standing to maintain this action alone. See Public

Citizen, 491 u.s. at 449-50.

EPA also contends this controversy is moot because plaintiff has

now been furnished with copies of the “pre -meeting comments” albeit

after the meeting, and has had opportunity to submit his own comments to

EPA directly as a member of the public on Benzene Update. However, if

Dr. Byrd has standing to invoke FACA, he was entitled to do so

contemporaneously with the meeting of the allegedly ultra vires “advisory

committee.” Supplying him after the fact with information he might have

made use of earlier does not render his claim moot. Alabama-Tombigbee

River Coalition v. Department of Interior, 26 F.3d 1103, 1106 (11th Cir.

1994).

B-4

Dr. Byrd attempts to distinguish the Food Chemical

News case by suggesting that the EPA, unlike FDA, exerted

(or at least reserved authority to exert) considerably greater

control over the efforts of and the results generated by the

panel of experts examining Benzene Update than had the

FDA with respect to the advice it received pursuant to its

contract, but his hypothesis is not supported by the record.”

Both the FDA and EPA contractors received a “task order’’ or

“work assignment” defining the objective and scope of the

studies they were to perform. (Ex. 3 to Def.’s Mem. Supp.

Mot. Dismiss (“Def.’s Mot.”).) Thereafter both contractors

exercised their own discretion to select the experts to comprise the

panels, (Sonawane Decl., Ex. I to Def.’s Mot. {1 6; Schalk Decl.,

Ex. 8 to Def.’s Mot. 14), paid them from their own funds, (Schalk

Decl. 14), appointed the presiding officers when the panels

actually met, (Sonawane Decl. 911; Schalk Decl. 5), and

exercised independent editorial judgment as to the contents of

their final reporis to their respective employing agencies.

(Sonawane Decl. 9114; Schalk Decl. 78.) With the exception

of the fact that the FDA’s contractor was a consortium of

private non-profit organizations (which was nevertheless paid

for its work), whereas EPA’s contractor was a for-profit

commercial firm, the two projects appear to have been

accomplished by identical processes, and neither therefore

was subject to FACA.

Although the Work Assignment written by EPA, provided that the

“Contractor shall select 6 panelists from a universal list provided by [EPA] “ and

that “ [f] inal approval of selected experts will be made by EPA under Work Plan

approval,” (Ex. 3 to Def. ‘s Mot. at 2), the Work Plan submitted to EPA by ERG

provided that the panel was to be selected from EPA’s universal list and “from a

list generated from ERG’S consultant database.” (Ex. 4 to Def. ‘s Mot. at 4 (Task

2) .) EPA did not actually make any changes to the panelists ERG selected.

(Sonawane Decl. 116.) And, although EPA was entitled to “provide written

comments on the draft Expert Panel Report to the Contractor who will discuss the

comments received from the panelists on the draft report with [EPA] before

finalizing the Expert Panel report,” (Ex. 3 to Def .’s Mot. at 5; Ex. 4 to Def .’s

Mot. at 7 (Task 5)), there is no evidence that EPA’s input, if any, resulted in

changes being made to the final Expert Panel Report.

B-5

For the foregoing reasons, it is, this 1" day of May, 1998,

ORDERED, that the motion of the defendant to dismiss the

complaint is granted; and it is

FURTHER ORDERED, that the complaint is dismissed

with prejudice; and it is

FURTHER ORDERED, that the cross-motion of the

plaintiff for partial summary judgment is denied as moot.

/s/

Thomas Penfield Jackson

U.S. District Judge

Section C

C-1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUM BIA

DANIEL BYRD, Ph.D.,

D.b.a. Consultants in Toxicology, Risk Assessment,

and Product Safety

Plaintiff,

, &

United States Environmental Protection Agency,

Defendant-Appellant.

Civil Action No. 97-1923 (TPJ)

DECLARATION OF DANIEL BYRD

|. My name is Daniel M. Byrd III. I work as a consulting

toxicologist and risk assessor at Consultants in Toxicology,

Risk Assessment and Product Safety (CTRAPS), Suite A-211,

1425 4th Street, SW, Washington, DC 20024, where my job

title is President. I received a B.A. in 1964 from Yale College

in New Haven, CT and a Ph.D. in Pharmacology in 1971 from

Yale University. After passing an examination in toxicology

and submitting my scientific credentials, the American Board

of Toxicology conferred Diplomate status on me in 1982 and

after subsequent review has recertified my status in 1987,

1992, and 1997.

2. Because I earn my living as a consulting toxicologist and

risk assessor, demonstration of my expertise in these areas is

important to my clients. I establish credentials for selected

substances and methods by publishing articles in the scientific

literature, attending scientific meetings and conferences, and

submitting specialized comments to agencies about their

C-2

scientific judgments on related matters. I frequently attend,

and plan to continue attending, meetings sponsored by the

U.S. Environmental Protection Agency (EPA) about _ the

toxicology and risks of specific air pollutants within my

expertise, including alcohols, aldehydes, arsenic, beryllium,

benzene, chlorinated solvents, coke oven emissions, dioxin-

like substances, ionizing radiation, particulates, petroleum

hydrocarbons, and silica. In addition, my _ professional

practice involves work on the toxicology and risks of

carbamates, coal tars, colorants, detergents, flame retardants,

infectious diseases, food additives, mixtures, pesticides,

nitroglycerine, nonionizing radiation, silica, soaps, and so-

called “endocrine disruptors.” I attend government meetings

about these substances and about general matters, such as the

methods and procedures used by EPA to evaluate toxicity and

risk. For example, I recently attended an EPA-sponsored

meeting about the dose-response relationship for arsenic-

induced cancer, and I plan to participate in an EPA-sponsored

conference call on January 7, 1998, of the Occurrence &

Contaminant Selection Working Group of the National

Drinking Water Advisory Council established under the Safe

Drinking Water Act, as amended (41 U.S.C. S300f et seq.) to

discuss EPA’s list of microbial contaminants that merit

priority attention. Access to such scientific meetings and

conferences and knowledgeable participation in technical

discussions in my field of expertise are important to my

ability to advise my clients and to achieve results for them.

For these reasons, I often augment my attendance and

participation by obtaining participants’ written comments and

other public documents to review as early as possible in the

meetings and conferences.

3. As for the EPA meeting at issue here, I have established

an expertise concerning benzene. My publications, abstracts

from presentations, and written comments to regulatory

agencies about benzene include:

C-3

S.H. Lamm, D.M. Byrd and R.Wilson, Comments

to the American Conference of Governmental

Industrial Hygienists about a proposed revision of

the Threshold Limit Value for Benzene, September

21, 1995.

F.B. Cross, D.M. Byrd, and L.Lave, Discernable

Risk - A Proposed Standard for Significant Risk in

Carcinogen Regulation. Administrative Law Review

43: 61-88 (1991).

E.T. Barfield, H. Gruenwald, S.H. Lamm, A.

Walters, R. Wilson, and D.M. Byrd, Measurement

Uncertainty in Epidemiological Studies of Two

Cohorts Exhibiting Benzene-Induced Leukemia.

(In) C. Zervos (Ed.) Advances in Risk Analysis (Risk

Analysis: Prospects and Opportunities). 10: 731-

740 (1991).

S.H. Lamm, A.S. Walters, R. Wilson, H. Gruenwald

and D.M. Byrd, Benzene and Leukemia: What are

the risks and what do the data reveal? (In) J.J. Bonin

and D.E. Stevenson (Eds.) Advances in Risk

Analysis (Risk Assessment in Setting National

Priorities). 7: 417-430 (1989).

S.H. Lamm, A.S. Walters, R. Wilson, H. Gruenwald

and D.M. Byrd, Consistencies and Inconsistencies

Underlying the Quantitative Assessment of

Leukemia Risk from Benzene Exposure.

Environmental Health Perspectives 82: 289-297

(1989).

D.M. Byrd and ET. Barfield, Uncertainty in the

Estimation of Benzene Risks: Application of an

Uncertainty Taxonomy to Risk Assessments Based on an

Epidemiology Study of Rubber Hydrochloride Workers.

Environmental Health Perspectives 82: 283-287 (1989).

C-4

S.H. Lamm, A.S. Walters, H. Gruenwald, D.M.

Byrd, and R. Wilson, Clinical Types of Leukemia

Associated with Occupational Benzene Exposure.

Journal of the American College of Toxicology 7:

1050 (1988)

E.T. Barfield, H. Gruenwald, S.H. Lamm,

A.Walters, R. Wilson and D.M. Byrd, Comparison

of Measurement Uncertainty in some Epidemiology

Studies of Benzene-Induced Leukemia. Annual

Meeting of the Society for Risk Analysis (1988).

D.M. Byrd and ET. Barfield, Empirical

Degree-of-Belief Methods for Risk Assessments

Based on Epidemiology Data: Application of a

Procedure for Combinatorial Analysis of

Risk-related Components to a_ Series of

Occupational Studies of Leukemia Incidence

Associated with Benzene Exposure at Several

Rubber Hydrochloride Plants in Ohio. (In) R.

Cothern and M. Mehiman (Eds.) Risk Assessment

and Risk Management of Industrial Chemicals.

Princeton Scientific Publishing pp. 209-223 (1988).

4. On July 16, 1997, I attended a meeting about a draft

document, "Carcinogenic Effects of Benzene: An Update”

(hereinafter “draft benzene update") in Washington, DC. I

learned about the meeting through EPA's “notice of peer-

review workshop and public comment period” in the Federal

Register (Volume 62: Number 125, Pages 35172-35173,

Monday, June 30, 1997). I understand that the reason EPA

asked a contractor, Eastern Research Group (ERG), to

convene the advisory committee was to obtain the experts’

recommendations on the proper model for the relationship

between the dose of benzene at given exposures and human

cancer responses (potential health effects).

5. The shape of the dose-response relationship for benzene-

induced leukemia is a crucial part of an assessment of the

carcinogenic risks of benzene. Scientists and risk assessors,

C-5

both inside and outside EPA, generally seek a dose-response

model that allows meaningful extrapolation from higher doses

in Occupational epidemiological studies to lower doses most

people experience. A dose-response model is a fundamental

component of the risk assessment of a substance or process.

It usually determines the stringency of exposure limits

established by EPA as standards for a range of regulations

about a substance. Accordingly, the choice of a model has

dramatic significance for the public health, the affected

industry, and the costs of regulation. Benzene, the focus of

EPA’s advisory committee meeting, is one of the highest

volume, most widely used petrochemicals in commerce.

Consequently, benzene was an early subject of regulation

under the Clean Air Act. The assessment of benzene risk also

has functioned as an important case-study for all of regulatory

risk assessment. Policies first developed in reviewing the data

about benzene have been applied to other substances.

6. With regard to the draft benzene update that was the

focus of the July 16 advisory committee meeting, I have

fundamental questions about the adequacy and accuracy of

EPA's choice of a dose-response model for benzene. Notably,

I believe that EPA grossly overestimates the annual incidence

of benzene-induced acute myelocytic leukemia cases in the

U.S. population. The Agency’s estimates are based on the

assumption that the risk of such leukemia is directly

proportional to benzene exposure, a linear relationship. EPA

does not base this assumption on scientific fact but on policy.

I think that both evidence and theory show that risk of

exposure is proportional to no more than some power of

benzene exposure, such as [benzene] or [benzene] . These

are nonlinear relationships. Significantly, I also think that

benzene does not directly cause acute myelocytic leukemia.

Instead, metabolic products of benzene cause certain

conditions, such as myelodepression and myelofibrosis, and

these precursor conditions lead to acute myelocytic leukemia.

A nonlinear dose-response relationship for benzene-induced

acute myelocytic leukemia cases predicts much lower and, I

C-6

believe, more accurate estimates of the number of benzene-

related cases from general environmental exposures of the

U.S. population.

7. Before the EPA meeting, I obtained and reviewed a copy of

the draft benzene update. It was defective in several areas,

including an omission of meaningful descriptions of potential

precursor conditions to acute myelocytic leukemia associated

with benzene exposure. EPA's draft benzene update in fact

continues to advocate approximately the same model of how

benzene affects humans as an earlier model proposed by the

Agency in 1985. The draft benzene update ignores several

recent scientific interpretations and consequently overestimates

risk at substantial economic cost to the public and underestimates

the risks of petroleum industry workers who might occasionally

have exposures to very high concentrations of benzene.

8. The meeting was managed by a contractor, ERG.

Although several EPA employees who had been involved in

developing the draft benzene update attended the meeting and

effectively participated as committee members, no EPA

employee or officer supervised the conduct of the meeting. I

did not observe any EPA or ERG employee keeping formal

minutes of the meeting, but ERG did appear to make a tape

recording of the meeting.

9. In discussions of the advisory committee during the

meeting, several members noted the absence of information

about precursor conditions to acute myeloid leukemia. The

committee seemed at a loss, however, about how to remedy

this deficiency. Various EPA officials stated that EPA would

address these precursor conditions in a separate document

about noncancer effects, to be produced later. Because EPA

indicated that the convening of the workshop was a one-time

event and because the committee members evidently lacked

any avenue to pursue the matter further through the

contractor, ERG, the committee seemed to regard the lack of

information about precursor conditions in the draft benzene

update as an accomplished fact.

or

10. The committee meeting was opened by an EPA officer,

Dr. Michael Callahan. Then, Mr. David L. Bayliss, an EPA

epidemiologist, displayed and discussed diagrams setting out

EPA's next steps to prepare a final draft benzene update. He

stated that EPA would consider comments from the advisory

committee's review and comments received from the public

during the comment period, then revise the draft benzene

update. Subsequently, EPA would directly transmit the

revised, final version to EPA’s Office of Mobile Sources. EPA

would not develop new standards until Mr. Bayliss

transmitted the final benzene update to the Office of Mobile

Sources, and the Office of Mobile Sources later applied the

risk assessment in the final benzene update. After the public

comment period closed, EPA would no longer entertain

comments on the risk assessment. Based on the schedule set

out by Mr. Bayliss, the July 16 expert meeting and the

associated comment period were clearly the only

opportunities for me and other interested experts to raise

concerns about the applications of scientific and _ risk

assessment policies within the draft benzene update. Mr.

Bayliss also gave the panel the questions EPA wanted it to

address.

11. I did not present my views about EPA’s draft benzene

update during the committee meeting. Twice I raised my

hand to ask permission to speak, and the chair of the advisory

committee, Dr. David Hoel, pointed to me, indicating that |

should speak. On the first occasion, the committee seemed

unable to resolve a problem about the use of data that had not

undergone peer review and publication. In response, I briefly

described longstanding, effective policies developed by EPA’s

Science Advisory Board to resolve such problems. On the

second occasion, the committee seemed to misunderstand a

recently published study about diseases in China, including.

acute myeloid leukemia, as a study of effects of benzene. In

response, I pointed out that the Chinese cohort was composed

of many groups, including house painters, and that given

additional study the dominant exposure might not be to

benzene at all, but to other substances, such as styrene, a

C-8

different petroleum hydrocarbon. On both occasions, |

attempted to provide information that the advisory committee

might find helpful in their deliberations. As I understood it,

the purpose of the meeting was for EPA to receive advice

from the committee members, not from me, and I therefore

reserved my views about the draft benzene update for the

public comment period.

12. During the meeting, the advisory committee made few

comments about the overall scientific quality of the draft

benzene update with respect to its purpose or to the

advisability of the policy assumptions employed in estimating

potential leukemic risks of benzene, beyond responding to

some questions initially raised by Mr. Bayliss. At the

beginning of the meeting, no EPA official (especially none

from the Office of Mobile Sources) briefed the commitiee on

EPA’s intended uses of the proposed dose-response model for

benzene. I did not see how a committee could advise EPA

about the scientific adequacy of the draft benzene update

without an understanding of how EPA would use the proposed

dose-response model in setting standards and developing

regulations. For example, if the Office of Mobile Sources

intended to regulate benzene in motor gasoline emissions,

EPA’s intent would become highly important. Other

petroleum hydrocarbons present in motor gasoline are known

to alter the health effects and risks of benzene. Thus, I was

concerned that the Office of Mobile Sources and others would

misconstrue the committee’s comments as showing approval

by the scientific community of EPA’s plans for the regulatory

use of the dose-response model in the draft benzene update.

13. I sought to confirm either that the advisory committee

members had focused their efforts on a list of questions

provided before the meeting or that they had noted the lack of

information about precursor conditions to acute myeloid

leukemia in the draft benzene update. Multiple copies of

comments written by committee members before the meeting

were evident on a table where they sat, facing away from the

observers’ seating. During the break for lunch, I asked Ms.

C-9

Mora Evans, an employee of ERG at the meeting site who

provided logistical support for the committee members and

EPA staff, for copies of these written comments. She replied

that those comments were only for EPA and declined to give

them to me.

14. I persisted in trying to obtain copies of these comments.

During the period provided for public comments near the end

of the meeting, I asked Dr. Hoel for copies of the written

premeeting comments. I explained to the committee that I

probably could obtain the written premeeting comments

through other means, but that I would have to consult with my

attorneys about the best legal approach, perhaps the Freedom

of Information Act, the Clean Air Act, or through another

means. I stated that I did not see the purpose of making me

expend funds, time, and emotional energy to go through legal

procedures to obtain the written premeeting comments, when

they could simply hand me a set. Dr. Hoel replied that he had

no authority to release the written premeeting comments to

me, but he noted that he had no problem in my receiving

copies. Ms. Evans also interjected, repeating that she lacked

authorization to distribute copies of the committee’s written

comments.

15. After the meeting concluded, Dr. Babasaheb Sonawane,

an EPA official attending the meeting, approached me. I

asked if I could obtain copies of the committee's written

comments from him. He replied that he would have to

consult with his attorneys. I then repeated to him that I

planned to consult with my attorneys to decide the best course

of action in my self interest and that I could not say what

route they would suggest to remedy some deficiencies in the

meeting, perhaps the Freedom of Information Act, the Clean

Air Act or another statute. I neither heard from him nor

received any materials from him (or his attorneys) before

filing the present complaint [Civil Action No. 97-1923].

C-10 .

16. EPA submitted its first choice-of dose-response model

for benzene to EPA’s Science Advisory Board in 1977 for

scientific peer review. EPA published the final version of this

document in 1979, as the “Final Report on Population Risk to

Ambient Benzene Exposure [PB82-227372].” EPA revised its

assessment of benzene’s health significance in a second, 1985

document “Interim Quantitative Cancer Unit Risk Estimates

Due to Inhalation of Benzene [OHEA-C-153],” which was

extremely controversial. Its primary author, Dr. Todd

Thorslund, denounced the 1985 assessment at several

scientific meetings and complained that he based it on

secondary sources, because of bureaucratically imposed time

constraints. Perhaps for this reason EPA did not attempt to

obtain scientific peer review of the 1985 benzene risk

assessment until the July 16, 1997 meeting. EPA essentially

derived the new, draft benzene update from the 1985

assessment.

17. In comparison to benzene, EPA has historically and

routinely presented its risk assessments of other hazardous air

pollutants to its Science Advisory Board for peer review.

Before the 1990 amendments to the Clean Air Act, the

Science Advisory Board also reviewed the Agency’s

determination that a substance was hazardous when inhaled.

After passage of the 1990 amendments, Congress removed

discretion about the latter determination from EPA by listing

the hazardous air pollutants, including benzene, that EPA

should regulate. The Clean Air Act contemplates review of

risk assessments of hazardous air pollutants by the Science

Advisory Board.

18. I served as the Executive Secretary of the Environmental

Health Committee of EPA's Science Advisory Board from

1984 to 1987. The Science Advisory Board operates with

partial independence from other EPA programs under a

Federal Advisory Committee Act (FACA) charter, and in my

experience it usually complies with the provisions of FACA.

The Science Advisory Board is free to, and occasionally does,

reject EPA risk assessments as unacceptable. The Science

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Advisory Board peer review process does not allow

substantive supervision of or participation in its committees

and subcommittees by persons directly involved in preparing

the risk assessments under review. Possibly as a result of the

different management of the peer review panel in this case,

although some members of the panel voiced probing

questions about the currency and adequacy of the benzene

dose-response model, the report prepared by ERG under

EPA's supervision neither fully reflects the questions nor

explicates the alternative impacts of various answers to the

questions on the dose-response model. Likewise, the Science

Advisory Board process has no analogue to the narrowly

circumscribed questions that Mr. Bayliss asked the committee

to address.

19. In my experience as a toxicologist and risk assessor, a

scientific peer review can provide some assurance that an

assessment references all of the relevant data, that a

technically competent organization has interpreted the data

correctly, that these interpretations reflect mainstream views

of the scientific community or are consistent with generally

accepted theories, that policy judgements and assumptions are

internally consistent with the data and interpretations, and that

the assessment is scientifically adequate for its intended

purposes. Scientific peer review can be an important element

in informal rulemaking to insulate a risk assessment from

undue influence by affected parties. Proper peer reviews also

serve the judicial system in the sense that judges can refer to

them for information about the objectivity of an Agency’s

evaluation of scientific information. Most scientists consider

independent peer review a critical step in the preparation of

any risk assessment with widespread impacts. However, the

way that EPA controlled the advisory committee in this

instance substantially compromised the committee's

independence.

20. If EPA repeated the July 16 advisory committee meeting

under conditions consistent with FACA requirements - which

would have provided the members part of the independence

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necessary to consider and express expert opinions and

conclusions - | think it highly likely that the reviewers would

have rejected the draft benzene update as incomplete, by

requesting that EPA include a complete description of the

precursor conditions that may lead to acute myelocytic

leukemia in a revised draft and resubmit the revised draft for

additional scientific peer review. More generally, establishing

a charter for the advisory committee for benzene and

appointing an EPA employee as an official point of reference

would have enhanced the independence of the. reviewers.

21. Some data on which EPA would base dose-response

models for emissions standards of hazardous air pollutants

designated by Congress in the 1990 Clean Air Act

amendments have not undergone peer review. Few risk

assessments of these hazardous air pollutants exist, and EPA

has created most of those. If EPA is allowed to evade FACA

requirements in the way it has sought in this instance, it will

have a substantial incentive to hire contractors for peer

reviews, to constrict the scope of each review, to supervise

each review closely, and to advertise that the assessment and

its underlying data have been "peer-reviewed." Such a

process will result in public confusion between EPA’s

intentions and the views of the scientific community. Because

risk assessments involve science-based judgement, risk

assessments are intrinsically controversial, involving many

matters of policy. In understandably trying to avoid the

burden of dealing with these controversies, however, the

Agency will also avoid any views and data that do not

originate internally within EPA and the contractors under its

control.

22. As a related matter, after the July 16 meeting, |

discovered that EPA had previously retained a member of the

committee, Dr. David Eastmond, an employee of the

University of California at Riverside, as a contractor to

prepare a closely related document, Chemical and Radiation

Leukemogenesis in Humans and Rodents and the Value of

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Rodent Models for Assessing Risks of Lymphohematopoietic

Cancers (EPA/600/R-97/090; May, 1997) under the

supervision of Dr. Charlie Hiremath, an EPA employee. |

have read this document, and it covers several topics that overlap

sections of the draft benzene update with essentially identical

interpretations. Dr. Hiremath also supervised ERG in providing

administrative support for the July 16 meeting and recommended

that ERG retain Dr. Eastmond. In my opinion, Dr. Eastmond should

have recused himself from service on a committee that was, in effect,

reviewing his own work or should at a minimum have disclosed the

issue (which did not occur at the July 16 meeting). Further, because

Dr. Eastmond worked as an EPA contractor in preparing a related

document, which summarized EPA’s views about benzene on several

topics, and because he continued to present EPA’s views while on the

committee, his presence compromised the independence of the peer

review. As noted above, had EPA asked the Science Advisory Board

to provide the peer review instead of convening the panel through

ERG, the Board would not have allowed Dr. Eastmond to participate,

given his conflict. Also the National Environmental Policy Institute's

recent set of recommendations on improving the use of peer review

in EPA decisionmaking, a copy of which is attached, recommended

disclosure of the ki.xd of conflict Dr. Eastmond had in this case.

23. I have spoken with colleagues in other organizations who

are interested in the draft benzene update, and several have

shown frustration at the unavailability of the advisory

committee’s written comments at the public meeting, contrary

to the usual practice at workshop meetings. Several stated

that they would likely submit additional written comments to

EPA, or submit comments for the first time, if EPA made the

written comments of the July 16 committee available.

I declare under the penalty of perjury under the laws of the

United States of America that to the best of my knowledge

and belief, the foregoing is true and correct.

Executed on December 30, 1997 /s/ Daniel M. Byrd Ill

DANIEL M. BYRD III

Section D

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“FEDERAL ADVISORY COMMITTEE ACT”.

§ 1. Short title

this Act may be cited as the “Federal Advisory Committee Act”.

§ 2. Findings and purpose

(a) The Congress finds that there are numerous committees,

boards, commissions, councils, and similar groups which have

been established to advise officers and agencies in the

executive branch of the Federal Government and that they are

frequently a useful and beneficial means of furnishing expert

advice, ideas, and diverse opinions to the Federal

Government.

(b) The Congress further finds and declares 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 establishment, 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 under their consideration should

be determined, in accordance with law, by the official, agency, or

officer involved.

§ 3. Definitions

For the purpose of this Act--

; Downloaded Dec.. 1999 from Gen. Servs. Admin. site at http: //

policy works.gov/org/main/mc/index-la.htm

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(1) The term “Administrator” means the Administrator of

General Services. (2) The term “advisory committee” means

any committee, board, commission, council, conference,

panel, task force, or other similar group, or any subcommittee

or other subgroup thereof (hereafter in this paragraph referred

to as “committee”), which is--

(A) established by statute or reorganization plan, or

(B; established or utilized by the President, or

(C) established or utilized by one or more agencies, in the

interest of obtaining advice or recommendations for the

President or one or more agencies or officers of the Federal

Government, except that such term excludes (i) the Advisory

Commission on Intergovernmental Relations, (ii) the

Commission on Government Procurement, and (iii) any

committee which is composed wholly of full-time officers or

employees of the Federal Government. (3) The term “agency”

has the same meaning as in section 551(1) of Title 5. (4) The

term “Presidential advisory committee” means an advisory

committee which advises the President.

§ 4. Applicability; restrictions

(a) The provisions of this Act or of any rule, order, or

regulation promulgated under this Act shall apply to each

advisory committee except to the exteyt that any Act of

Congress establishing any such advisory committee

specifically provides otherwise.

(b) Nothing in this Act shall be constned to apply to any

advisory committee established or utilized by--

(1) the Central Intelligence Agency; or

(2) the Federal Reserve System. (c) Notling in this Act shall

be construed to apply to any local civic goup whose primary

function is that of rendering a public service with respect to a

Federal program, or any State or local committee, council,

board, commission, or similar group estlished to advise or

make recommendations to State or local dficials or agencies.

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§ 5. Responsibilities of Congressional committees; review:

guidelines

(a) In the exercise of its legislative review function, each

Standing committee of the Senate and the House of

Representatives shall make a continuing review of the

activities of each advisory committee under its jurisdiction to

determine whether such advisory committee should be

abolished or merged with any other advisory committee,

whether the responsibilities of such advisory committee

should be revised, and whether such advisory committee

performs a necessary function not already being performed.

Each such standing committee shall take appropriate action to

obtain the enactment of legislation necessary to carry out the

purpose of this subsection. (b) In considering legislation

establishing, or authorizing the establishment of any advisory

committee, each standing committee of the Senate and of the

House of Representatives shall determine, and report such

determination to the Senate or to the House of

Representatives, as the case may be, whether the functions of

the proposed advisory committee are being or could be

performed by one or more agencies or by an advisory

committee already in existence, or by enlarging the mandate

of an existing advisory committee. Any such legislation

shall--

(I) contain a clearly defined purpose for the advisory

committee;

(2) require the membership of the advisory committee to be

fairly balanced in terms of the points of view represented and

the functions to be performed by the advisory committee;

(3) contain appropriate provisions to assure that the advice

and recommendations of the advisory committee will not be

inappropriately influenced by the appointing authority or by -

any special interest, but will instead be the result of the

advisory committee’s independent judgment;

(4) contain provisions dealing with authorization of

appropriations, the date for submission of reports (if any), the

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duration of the advisory committee, and the publication of

reports and other materials, to the extent that the standing

committee determines the provisions of section 10 of this Act

to be inadequate; and

(5) contain provisions which will assure that the advisory

committee will have adequate staff (either supplied by an

agency or employed by it), will be provided adequate

quarters, and will have funds available to meet its other

_ necessary expenses.

(c) To the extent they are applicable, the guidelines set out

in subsection

(b) of this section shall be followed by the President, agency

heads, or other Federal officials in creating an advisory

committee.

§ 6. Responsibilities of the President; report to Congress;

annual report to Congress; exclusion

(a) The President may delegate responsibility for evaluating

and taking action, where appropriate, with respect to all

public recommendations made to him by Presidential

advisory committees.

(b) Within one year after a Presidential advisory committee

has submitted a public report to the President, the President or

his delegate shall make a report to the Congress stating either

his proposals for action or his reasons for inaction, with

respect to the recommendations contained in the public report.

(c) The President shall, not later than December 31 of each

year, make an annual report to the Congress on the activities,

status, and changes in the composition of advisory

committees in existence during the preceding fiscal year. The

report shall contain the name of every advisory committee,

the date of and authority for its creation, its termination date

or the date it is to make a report, its functions, a reference to

the reports it has submitted, a statement of whether it is an ad

hoc or continuing body, the dates of its meetings, the names

and occupations of its current members, and the total

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estimated annual cost to the United States to fund, service,

supply, and maintain such committee. Such report shall

include a list of those advisory committees abolished by the

President, and in the case of advisory committees established

by statute, a list of those advisory committees which the

President recommends be abolished together with his reasons

therefor. The President shall exclude from this report any

information which, in his judgment, should be withheld for

reasons of national security, and he shall include in such

report a statement that such information is excluded.

§ 7. Responsibilities of the Administrator of General Services;

Committee Management Secretariat, establishment; review;

recommendations to President and Congress; agency

cooperation; performance guidelines; uniform pay guidelines;

travel expenses; expense recommendations

(a) The Administrator shall establish and maintain within

the General Services Administration a Committee

Management Secretariat, which shall be responsible for all

matters relating to advisory committees.

(b) The Administrator shall, immediately after October 6,

1972, institute a comprehensive review of the activities and

responsibilities of each advisory committee to determine--

(1) whether such committee is carrying out its purpose;

(2) whether, consistent with the provisions of applicable

Statutes, the responsibilities assigned to it should be revised;

(3) whether it should be merged with other advisory

committees; or

(4) whether is should be abolished.

The Administrator may from time to time request such

information as he deems necessary to carry out his functions

under this subsection. Upon the completion of the

Administrator’s review he shall make recommendations to the

President and to either the agency head or the Congress with

respect to action he believes should be taken. Thereafter, the

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Administrator shall carry out a similar review annually.

Agency heads shall cooperate with the Administrator in

making the reviews required by this subsection.

(c) The Administrator shall prescribe administrative

guidelines and management controls applicable to advisory

committees, and, to the maximum extent feasible, provide

advice, assistance, and guidance to advisory committees to

improve their performance. In carrying out his functions

under this subsection, the Administrator shall consider the

recommendations of each agency head with respect to means

of improving the performance of advisory committees whose

duties are related to such agency.

(d)(1) The Administrator after study and consultation with the

Director of the Office of Personnel Management, shall

establish guidelines with respect to uniform fair rates of pay

for comparable services of members, staffs, and consultants of

advisory committees in a manner which gives appropriate

recognition to the responsibilities and qualifications required

and other relevant factors. Such regulations shall provide

that--

(A) no member of any advisory committee or of the staff of

any advisory committee shall receive compensation at a rate

in excess of the rate specified for GS-18 of the General

Schedule under section 5332 of title 5, United States Code;

(B) such members, while engaged in the performance of

their duties away from their homes or regular places of

business, may be allowed travel expenses, including per diem

in lieu of subsistence, as authorized by section 5703 of title 5,

United States Code, for persons employed intermittently in

the Government service; and

(C) such members--

(i) who are blind or deaf or who otherwise qualify as

handicapped individuals (within the meaning of section 501

of the Rehabilitation Act of 1973 (29 U.S.C. 794) ), and

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(ii) who do not otherwise qualify for assistance under section

3102 of Title 5, by reason of being an employee of an agency

(within the meaning of section 3102(a)(1) of such Title 5),

may be provided services pursuant to section 3102 of such

Title 5 while in performance of their advisory committee

duties.

(2) Nothing in this subsection shall prevent--

(A) an individual who (without regard to his service with an

advisory committee) is a full-time employee of the United

States, or

(B) an individual who immediately before his service with an

advisory committee was such an employee, from receiving

compensation at the rate at which he otherwise would be

compensated (or was compensated) as a full-time employee of

the United States. (e) The Administrator shall include in

budget recommendations a summary of the amounts he deems

necessary for the expenses of advisory committees, including

the expenses for publication of reports where appropriate.

§ 8. Responsibilities of agency heads; Advisory Committee

Management Officer, designation

(a) 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 Administrator under section 7 and section 10.

Each agency shall maintain systematic information on the

nature, functions, and operations of each advisory committee

within its jurisdiction.

(b) The head of each agency which has an advisory committee

shall designate an Advisory Committee Management Officer

who shall--

(1) exercise control and supervision over the establishment,

procedures, and accomplishments of advisory committees

established by that agency;

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(2) assemble and maintain the reports, records, and other

papers of any such committee during its existence; and

(3) carry out, on behalf of that agency, the provisions of

section 552 of title 5, United States Code, with respect to such

reports, records, and other papers.

§ 9. Establishment and purpose of advisory committees;

publication in Federal Register; charter: filing, contents, copy

(a) No advisory committee shall be established unless such

establishment is--

(1) specifically authorized by statute or by the President; or

(2) determined as a matter of formal record, by the head of

the agency involved after consultation with the Administrator

with timely notice published in the Federal Register, to be in

the public interest in connection with the performance of

duties imposed on that agency by law.

(b) Unless otherwise specifically provided by statute or

Presidential directive, advisory committees shall be utilized

solely for advisory functions. Determinations of action to be

taken and policy to be expressed with respect to matters upon

which an advisory committee reports or makes

recommendations shall be made solely by the President or an

officer of the Federal Government.

(c) No advisory committee shall meet or take any action

until an advisory committee charter has been filed with (1) the

Administrator, in the case of Presidential advisory

committees, or (2) with the head of the agency to whom any

advisory committee reports and with the standing committees

of the Senate and of the House of Representatives having

legislative jurisdiction of such agency. Such charter shall

contain the following information:

(A) the committee’s official designation;

(B) the committee’s objectives and the scope of its activity;

(C) the period of time necessary for the committee to carry

out its purposes;

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(D) the agency or official to whom the committee reports;

(E) the agency responsible for providing the necessary

support for the committee;

(F) a description of the duties for which the committee iS

responsible, and, if such duties are not solely advisory, a

specification of the authority for such functions;

(G) the estimated annual operating costs in dollars and

man-years for such committee;

(H) the estimated number and frequency of committee meetings;

(I) the committee’s termination date, if less than two years from

the date of the committee’s establishment; and

(J) the date the charter is filed.

A copy of any such charter shall also be furnished to the Library

of Congress.

§ 10. Advisory committee procedures; meetings; notice,

publication in Federal Register; regulations; minutes; certification;

annual report; Federal officer or employee, attendance

(a) (1) Each advisory committee meeting shall be open to the

public.

(2) Except when the President determines otherwise for reasons

of national security, timely notice of each such meeting shall be

published in the Federal Register, and the Administrator shall

prescribe regulations to provide for other types of public notice to

insure that all interested persons are notified of such meeting prior

thereto.

(3) Interested persons shall be permitted to attend, appear

before, or file statements with any advisory committee, subject to

such reasonable rules or regulations as the Administrator may

prescribe.

(b) Subject to section 552 of title 5, United States Code, the

records, reports, transcripts, minutes, appendixes, working papers,

drafts, studies, agenda, or other documents which were made

available to or prepared for or by each advisory committee shall

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be available for public inspection and copying at a single location

in the offices of the advisory committee or the agency to which

the advisory committee reports until the advisory committee

ceases to exist.

(c) Detailed minutes of each meeting of each advisory

committee shall be kept and shall contain a record of the

persons present, a complete and accurate description of

matters discussed and conclusions reached, and copies of all

reports received, issued, or approved by the advisory

committee. The accuracy of all minutes shall be certified to

by the chairman of the advisory committee.

(d) Subsections (a)(1) and (a)(3) of this section shall not

apply to any portion of an advisory committee meeting where

the President, or the head of the agency to which the advisory

committee reports, determines that such portion of such

meeting may be closed to the public in accordance with

subsection (c) of section 552b of title 5, United States Code.

Any such determination shall be in writing and shall contain

the reasons for such determination. If such a determination is

made, the advisory committee shall issue a report at least

annually setting forth a summary of its activities and such

related matters as would be informative to the public

consistent with the policy of section 552(b) of title 5, United

States Code.

(e) There shall be designated an officer or employee of the

Federal Government to chair or attend each meeting of each

advisory committee. The officer or employee so designated is

authorized, whenever he determines it to be in the public

interest, to adjourn any such meeting. No advisory committee

shall conduct any meeting in the absence of that officer or

employee.

(f) Advisory committees shall not hold any meetings except

at the call of, or with the advance approval of, a designated

officer or employee of the Federal

s 11. Availability of transcripts; “agency proceeding”

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(a) Except where prohibited by contractual agreements

entered into prior to the effective date of this Act, agencies

and advisory committees shall make available to any person,

at actual cost of duplication, copies of transcripts of agency

proceedings or advisory committee meetings.

(b) As used in this section “agency proceeding” means any

proceeding as defined in section 551(12) of title 5, United

States Code.

§ 12. Fiscal and administrative provisions; recordkeeping;

audit; agency support services

(a) Each agency shall keep records as will fully disclose the

disposition of any funds which may be at the disposal of its

advisory committees and the nature and extent of their

activities. The General Services Administration, or such other

agency as the President may designate, shall maintain

financial records with respect to Presidential advisory

committees. The Comptroller General of the United States, or

any of his authorized representatives, shall have access, for

the purpose of audit and examination, to any such records.

(b) Each agency shall be responsible for providing support

services for each advisory committee established by or

reporting to it unless the establishing authority provides

otherwise. Where any such advisory committee reports to

more than one agency, only one agency shall be responsible

for support services at any one time. In the case of

Presidential advisory committees, such services may be

provided by the General Services Administration.

§ 13. Responsibilities of Library of Congress; reports and

background papers; depository

Subject to section 552 of title 5, United States Code, the

Administrator shall provide for the filing with the Library of

Congress of at least eight copies of each report made by every

advisory committee and, where appropriate, background

papers prepared by consultants. The Librarian of Congress

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shall establish a depository for such reports and papers where

they shall be available to public inspection and use.

§ 14.Termination of advisory committees; renewal;

continuation

(a) (1) Each advisory committee which is in existence on the

effective date of this Act shall terminate not later than the

expiration of the two-year period following such effective

date unless--

(A) in the case of an advisory committee established by the

President or an officer of the Federal Government, such

advisory committee is renewed by the President or that officer

by appropriate action prior to the expiration of such two-year

period; or

(B) in the case of an advisory committee established by an

Act of Congress, its duration is otherwise provided for by law.

(2) Each advisory committee established after such effective

date shall terminate not later than the expiration of the

two-year period beginning on the date of its establishment

unless--

(A) in the case of an advisory committee established by the

President or an officer of the Federal Government such

advisory committee is renewed by the President or such

officer by appropriate action prior to the end of such period;

or

(B) in the case of an advisory committee established by an

Act of Congress, its duration is otherwise provided for by law.

(b) (1) Upon the renewal of any advisory committee, such

advisory committee shall file a charter in accordance with

section 9(c).

(2) Any advisory committee established by an Act of

Congress shall file a charter in accordance with such section

upon the expiration of each successive two-year period

following the date of enactment of the Act establishing such

advisory committee.

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(3) No advisory committee required under this subsection to

file a charter shall take any action (other than preparation and

filing of such charter) prior to the date on which such charter

is filed.

(c) Any advisory committee which is renewed by the

President or any officer of the Federal Government may be

continued only for successive two-year periods by appropriate

action taken by the President or such officer prior to the date

on which such advisory committee would otherwise

terminate.

§ 15. Effective date

Except as provided in section 7(b), this Act shall become

effective upon the expiration of ninety days following

October 6, 1972.