Congress exempts two public bodies from advisory committee act

WASHINGTON, D.C.–Congress in early November reacted quickly to the U.S. Supreme Court’s refusal to hear arguments that a committee of the National Academy of Sciences should not be subject to the openness requirements of the Federal Advisory Committee Act. It amended FACA to exempt specifically the Academy and the National Academy of Public Administration from the Act.

The amendments waive FACA requirements for those agencies but instead require them to post notices of membership, meetings, data, and written materials to the Internet along with a summary of any closed meetings, final reports and the identity of peer-reviewers used by the National Academy of Sciences.

On November 4, the Supreme Court denied certification of the National Academy of Sciences’ appeal of the case which requires its panel of scientists and veterinarians who issue guidelines on care and use of laboratory animals to operate openly.

On November 5, the House Committee on Government Reform’s Subcommittee on Government Management, Information and Technology held a hearing to address the concerns of the science academy and the National Academy of Public Administration. The academy of sciences, chartered by Congress in 1863, provides scientific advice to the government. The public admininstration academy is a quasi-governmental group chartered by Congress in the 1980s to advise federal, state and local governments. Although not a part of the lawsuit, the public administration academy contended that the court’s ruling would make it subject to FACA requirements.

By the time Congress adjourned in mid-November, both houses had agreed to the amendment introduced by subcommittee chairman Stephen Horn (R-Calif.) and Democrats Henry Waxman (D-Calif.) and Carolyn Maloney (D-N.Y.).

In January the U.S. Court of Appeals in Washington, D.C., (D.C. Cir.) ruled that FACA requires open meetings of the scientists who comprise the committee writing the Academy’s guidelines for treating laboratory animals, guidelines that ultimately are incorporated into federal regulations governing the treatment of laboratory animals.

In the ruling on a lawsuit by the Animal Legal Defense Fund and other animal welfare organizations, the appeals panel had said that the guideline committee’s recommendations are utilized by the government as intended by the Academy, a quasi-public entity which created it. The appeals panel said that, because of its function, the guideline committee is an advisory board which must hold open meetings except when certain exemptions apply.

The animal rights groups brought the lawsuit after they were barred from deliberative meetings by the committee in 1993 and 1994. A federal District Court in Washington, D.C., ruled against them in October 1994.

The Supreme Court did not comment in its refusal to hear the case.

The National Academy of Scientists had argued in court and at the hearing that if it were subject to FACA it would lose some of its independence, saying that FACA requires that advisory group membership be “balanced,” and that government officials be involved in oversight. (H.R. 2977; Animal Legal Defense Fund v. Shalala; Plaintiffs’ Counsel: Eric Glitzenstein, Washington, D.C.)