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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1018

## Text

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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 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

A-3

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

A-4

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.

A-5

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

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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.

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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].

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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.

D-3

§ 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

D-4

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

D-5

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

D-6

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

D-7
(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;

D-8

(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

D-10

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”

— D-11

(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 pr

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0543%3A1. Public record. Not legal advice.