B-198469 L/M, MAY 22, 1980

B-198469 L/M, MAY 22, 1980

DIGEST: USE OF SCIENTIFIC ADVISORY PANEL IN EPA'S PESTICIDE SUSPENSION PROCEDURES (FILE B-198469)

SENIOR GROUP DIRECTOR, CED - DAVID L. JONES:

INCIDENT TO A CONGRESSIONAL REQUEST TO REVIEW THE APPROPRIATENESS OF THE PROCEDURES FOLLOWED BY EPA IN SUSPENDING MOST USES OF THE PESTICIDES 2,4,5 -T AND SILVEX, BOB ROBERTSON OF YOUR STAFF ASKED THE FOLLOWING QUESTIONS.

QUESTION 1: CAN THE SCIENTIFIC ADVISORY PANEL (SAP) HOLD CLOSED MEETINGS? IF SO, UNDER WHAT CIRCUMSTANCES? COULD THE SAP HAVE HELD A CLOSED MEETING IN CONNECTION WITH THE SUSPENSION PROCEEDINGS FOR 2,4,5 T AND SILVEX?

ANSWER: AS AN ADVISORY COMMITTEE, SUBJECT TO THE PROVISIONS OF THE FEDERAL ADVISORY COMMITTEE ACT (FACA), THE SAP MAY HOLD CLOSED MEETINGS WHEN THE PRESIDENT OR THE ADMINISTRATOR OF EPA DETERMINES THAT THE MEETING WILL INVOLVE MATTERS WHICH FALL WITHIN THE EXEMPTIONS REFERRED TO IN THE FREEDOM OF INFORMATION ACT. BASED ON THE NEED FOR EXPEDITED PROCEDURES IN SUSPENDING 2,4,5-T AND SILVEX, THE SAP COULD NOT HAVE HELD A CLOSED MEETING SINCE A REQUEST FOR APPROVAL OF A CLOSED MEETING MUST BE SUBMITTED IN WRITING AT LEAST 30 CALENDAR DAYS IN ADVANCE.

QUESTION 2: ARE THERE ANY LEGAL PROCEDURAL REQUIREMENTS WHICH WOULD AFFECT THE SAP'S MINIMUM RESPONSE TIME, E.G., MUST THE PUBLIC BE NOTIFIED A CERTAIN NUMBER OF DAYS BEFORE A SAP MEETING TAKES PLACE?

ANSWER: NOTICE OF EACH ADVISORY COMMITTEE MEETING MUST BE PUBLISHED IN THE FEDERAL REGISTER AT LEAST 15 CALENDAR DAYS BEFORE THE MEETING. SHORTER ADVANCE NOTICE MAY BE GIVEN IN EMERGENCY SITUATIONS.

QUESTION 3: ARE THERE ANY LEGAL RESTRICTIONS CONCERNING INFORMAL ORAL SAP ADVICE TO THE ADMINISTRATOR?

ANSWER: AS AN ADVISORY COMMITTEE, SUBJECT TO THE FACA, THE SAP IS NOT AUTHORIZED TO PROVIDE INFORMAL ORAL ADVICE TO THE ADMINISTRATOR.

QUESTION 4: IS EPA'S OGC MEMO, DATED NOVEMBER 3, 1978, WHICH CONCLUDES THAT A WAIVER OF SAP REVIEW, ONCE INVOKED, IS EFFECTIVE THROUGHOUT THE SUSPENSION AND CANCELLATION PROCEEDINGS, A CORRECT INTERPRETATION OF THE LAW AND LEGISLATIVE INTENT?

ANSWER: BASED ON A REVIEW OF THE LAW AND ITS LEGISLATIVE HISTORY THIS IS A REASONABLY CONCLUSION

A COMPLETE DISCUSSION OF THESE QUESTIONS AND ANSWERS IS ATTACHED.

ATTACHMENT

USE OF THE SCIENTIFIC ADVISORY PANEL IN EPA'S PESTICIDE SUSPENSION PROCEDURES

DIGESTS:

1. THE FEDERAL ADVISORY COMMITTEE ACT PROVIDES FOR CLOSED ADVISORY COMMITTEE MEETINGS WHEN PRESIDENT, OR HEAD OF AGENCY CONCERNED, DETERMINES THAT SUBJECT MATTER OF MEETING FALLS WITHIN ANY OF EXEMPTIONS TO FREEDOM OF INFORMATION ACT. REQUEST FOR APPROVAL TO HOLD CLOSED MEETING MUST BE SUBMITTED IN WRITING AT LEAST 30 CALENDAR DAYS IN ADVANCE.

2. TIMELY NOTICE OF EACH ADVISORY COMMITTEE MEETING SHALL BE PUBLISHED IN FEDERAL REGISTER. "TIMELY NOTICE" REQUIRES PUBLICATION AT LEAST 15 CALENDAR DAYS BEFORE MEETING. SHORTER ADVANCE NOTICE MAY BE GIVEN IN EMERGENCY SITUATIONS.

3. THE FEDERAL ADVISORY COMMITTEE ACT WAS ENACTED IN PART BECAUSE OF CONGRESSIONAL CONCERN OVER INFORMAL MEETINGS. SCIENTIFIC ADVISORY PANEL, THEREFORE, IS PRECLUDED FROM PROVIDING INFORMAL, ORAL ADVICE TO ADMINISTRATOR OF EPA.

4. EPA'S OFFICE OF GENERAL COUNSEL CONCLUSION THAT WAIVER OF SCIENTIFIC ADVISORY PANEL REVIEW, ONCE INVOKED, IS EFFECTIVE THROUGHOUT SUSPENSION AND CANCELLATION PROCEEDINGS IS REASONABLE AND IS NOT QUESTIONED BY THIS OFFICE.

BACKGROUND

ON FEBRUARY 28, 1979, THE ADMINISTRATOR OF EPA ISSUED TWO DECISIONS AND EMERGENCY ORDERS SUSPENDING REGISTRATIONS FOR CERTAIN USES OF PESTICIDES KNOWN AS 2,4,5-T AND SILVEX. THIS ACTION WAS TAKEN UNDER THE AUTHORITY GRANTED THE ADMINISTRATOR IN THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT (FIFRA) SECTION 6(C)(3), 7 U.S.C. SEC. 136DC)(3), WHICH PROVIDES THAT "WHENEVER THE ADMINISTRATOR DETERMINES THAT AN EMERGENCY EXISTS THAT DOES NOT PERMIT HIM TO HOLD A HEARING BEFORE SUSPENDING, HE MAY ISSUE A SUSPENSION ORDER IN ADVANCE OF NOTIFICATION TO THE REGISTRANT. ***" IN ADDITION, WHEN THE ADMINISTRATOR DETERMINES THAT SUSPENSION OF A PESTICIDE REGISTRATION IS NECESSARY TO PREVENT AN IMMINENT HAZARD TO HUMAN HEALTH, THEN HE MAY WAIVE THE REQUIREMENT OF SUBMISSION OF THE ACTION PROPOSED TO THE SCIENTIFIC ADVISORY PANEL (SAP) FOR COMMENT PURSUANT TO 7 U.S.C. SEC. 136WD). FIFRA SECTION 6(B), 7 U.S.C. SEC. 136DB).

DISCUSSION

QUESTION 1: CAN THE SAP HOLD CLOSED MEETINGS? IF SO, UNDER WHAT CIRCUMSTANCES? COULD THE SAP HAVE HELD A CLOSED MEETING IN CONNECTION WITH THE SUSPENSION PROCEEDINGS FOR 2,4,5-T AND SILVEX?

ANSWER: THE SAP MEETS THE DEFINITION OF "ADVISORY COMMITTEE" IN THE FEDERAL ADVISORY COMMITTEE ACT (FACA), SECTION 3(2) (PUB. L. 92 463, 5 U.S.C. APP. I). FACA, AT SECTION 10 (A)(1), PROVIDES THAT EACH ADVISORY COMMITTEE MEETING BE OPEN TO THE PUBLIC. SECTION 10(D) OF THE FACA STATES THAT THE PROVISIONS CONCERNING OPEN MEETINGS AND PUBLIC PARTICIPATION "SHALL NOT APPLY TO ANY ADVISORY COMMITTEE MEETING WHICH THE PRESIDENT, OR THE HEAD OF THE AGENCY TO WHICH THE ADVISORY COMMITTEE REPORTS, DETERMINES IS CONCERNED WITH MATTERS LISTED IN SEC. 552(B) OF TITLE 5, UNITED STATES CODE." (THE FREEDOM OF INFORMATION ACT.) THE EXEMPTIONS REFERRED TO IN THE FREEDOM OF INFORMATION ACT ARE MATTERS THAT ARE -

(1) SPECIFICALLY REQUIRED BY EXECUTIVE ORDER TO BE KEPT SECRET IN THE INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY;

(2) RELATED SOLELY TO THE INTERNAL PERSONNEL RULES AND PRACTICES OF AN AGENCY;

(3) SPECIFICALLY EXEMPTED FROM DISCLOSURE BY STATUTE;

(4) TRADE SECRETS AND COMMERCIAL OR FINANCIAL INFORMATION OBTAINED FROM A PERSON AND PRIVILEGED OR CONFIDENTIAL;

(5) INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD NOT BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN LITIGATION WITH THE AGENCY;

(6) PERSONNEL AND MEDICAL FILES AND SIMILAR FILES THE DISCLOSURE OF WHICH WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY;

(7) INVESTIGATORY FILES COMPILED FOR LAW ENFORCEMENT PURPOSES EXCEPT TO THE EXTENT AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY;

(8) CONTAINED IN OR RELATED TO EXAMINATION, OPERATING OR CONDITION REPORTS PREPARED BY, ON BEHALF OF, OR FOR THE USE OF AN AGENCY RESPONSIBLE FOR THE REGULATION OR SUPERVISION OF FINANCIAL INSTITUTIONS; OR

(9) GEOLOGICAL AND GEOPHYSICAL INFORMATION AND DATA, INCLUDING MAPS, CONCERNING WELLS.

WHETHER ANY OF THESE EXEMPTIONS WOULD HAVE APPLIED TO A SAP MEETING IN CONNECTION WITH THE SUSPENSION PROCEEDINGS FOR 2,4,5-T AND SILVEX IS IRRELEVANT. THE BASIC ISSUE IS WHETHER THE ADMINISTRATOR HAD ENOUGH TIME TO SUBMIT THE PROPOSED SUSPENSION ACTION TO THE SAP FOR COMMENT PRIOR TO TAKING SUCH ACTION. HOLDING A CLOSED MEETING WOULD NOT HAVE EXPEDITED THE PROCESS.

GSA (WHICH SINCE 1977 HAS HAD THE RESPONSIBILITY FOR ADVISORY COMMITTEE FUNCTIONS THAT WAS ORIGINALLY GIVEN TO OMB) ADVISORY COMMITTEE PROCEDURES SET OUT AT 41 C.F.R. PART 105-54 PROVIDE THAT "ANY DETERMINATIONS CONCERNING THE CLOSING OF MEETINGS SHALL BE SUBMITTED IN WRITING BY THE HEAD OF THE SERVICE OR STAFF OFFICE OR REGIONAL ADMINISTRATOR (OF GSA) TO THE ADMINISTRATOR (OF GSA) FOR APPROVAL AT LEAST 30 CALENDAR DAYS IN ADVANCE OF THE SCHEDULED DATE OF THE MEETING." 41 C.F.R. 105-54.301- 6(E). IN ADDITION, THE FACT THAT A MEETING MAY BE CLOSED TO THE PUBLIC DOES NOT RELIEVE THE REQUIREMENT FOR PUBLICATION OF A NOTICE OF THAT MEETING. 41 C.F.R. 105-54.301 4(B). NATIONAL SECURITY IS THE ONLY EXCEPTION TO THE REQUIREMENT THAT ADVISORY COMMITTEES PROVIDE ADVANCE NOTICE OF ALL MEETINGS, FACA SECTION 10(A)(2), AND EVEN THEN GSA'S PROCEDURES STATE THAT THE ADMINISTRATOR (OF GSA) MUST REQUEST AN EXCEPTION FROM THE NOTICE REQUIREMENT AT LEAST 30 DAYS BEFORE THE MEETING.

QUESTION 2: ARE THERE ANY LEGAL PROCEDURAL REQUIREMENTS WHICH WOULD AFFECT THE SAP'S MINIMUM RESPONSE TIME, E.G., MUST THE PUBLIC BE NOTIFIED A CERTAIN NUMBER OF DAYS BEFORE A SAP MEETING TAKES PLACE?

ANSWER: THE FACA AT SECTION 10(A)(2) STATES THAT TIMELY NOTICE OF EACH ADVISORY COMMITTEE MEETING SHALL BE PUBLISHED IN THE FEDERAL REGISTER. GSA'S ADVISORY COMMITTEE PROCEDURES INTERPRET "TIMELY NOTICE" TO REQUIRE PUBLICATION AT LEAST 15 CALENDAR DAYS BEFORE THE DATE OF THE MEETING. C.F.R. 105-54.301-4(A). SEE AVIATION CONSUMER ACTION PROJECT V. WASHBURN, 535 F.2D 101 (1976) WHICH REJECTED THE DISTRICT COURT'S ORDER STATING THAT TIMELY ADVANCE PUBLIC NOTICE IS NOT MET UNLESS PUBLISHED AT LEAST 30 DAYS IN ADVANCE OF THE MEETING AND INSTEAD FOLLOWED THE OMB GUIDELINES WHICH REQUIRED PUBLICATION AT LEAST 15 DAYS BEFORE THE MEETING.

GSA'S PROCEDURES PROVIDE FOR SHORTER ADVANCE NOTICE IN EMERGENCY SITUATIONS, REQUIRING THAT THE REASONS FOR EMERGENCY EXCEPTIONS BE MADE PART OF THE NOTICE, BUT NO DEFINITION OF "SHORTER" NOTICE IS GIVEN. THERE APPEAR TO BE NO CASES WHICH TEST THIS PROVISION. GSA ONLY WARNS THAT CONSIDERATION MUST BE GIVEN TO THE PROCESSING TIME REQUIRED TO GET THE NOTICE PRINTED IN THE FEDERAL REGISTER (AT LEAST 4 WORKDAYS).

IN ADDITION TO THE NOTICE REQUIREMENT, THE FACA, AT SECTION 10(F), STATES THAT "ADVISORY COMMITTEES SHALL NOT HOLD ANY MEETINGS EXCEPT *** WITH THE ADVANCE APPROVAL OF, A DESIGNATED OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT, AND *** WITH AN AGENDA APPROVED BY SUCH OFFICER OR EMPLOYEE." WHATEVER TIME IT TAKES TO GET APPROVAL FOR THE MEETING AND AN AGENDA PREPARED AND APPROVED MUST BE TACKED ON TO THE ADVANCE NOTICE TIME. PRESUMABLY NOTICE MAY NOT BE GIVEN WITHOUT FIRST OBTAINING APPROVAL.

QUESTION 3: ARE THERE ANY LEGAL RESTRICTIONS CONCERNING INFORMAL ORAL SAP ADVICE TO THE ADMINISTRATOR?

ANSWER: AS AN ADVISORY COMMITTEE, SUBJECT TO THE FACA, THE SAP IS NOT AUTHORIZED TO PROVIDE INFORMAL ADVICE TO THE ADMINISTRATOR. THE FACA MANDATES OPEN MEETINGS, PUBLIC PARTICIPATION, ADVANCE NOTICE OF MEETINGS AND DETAILED MINUTES OF EACH MEETING. FACA SECTION 10. IN FACT, THE FACA WAS ENACTED IN PART BECAUSE OF CONGRESSIONAL CONCERN OVER INFORMAL MEETINGS. "THE LACK OF PUBLIC SCRUTINY OF THE ACTIVITIES OF ADVISORY COMMITTEES WAS FOUND TO POSE THE DANGER THAT SUBJECTIVE INFLUENCES NOT IN THE PUBLIC INTEREST COULD BE EXERTED ON THE FEDERAL DECISION-MAKERS." REP. 92-1098, 92ND CONG., 1ST SESS. 6 (SEPT. 7, 1972). SEE FOOD CHEMICAL NEWS, INC. V. DAVIS, 378 F. SUPP. 1048, 1051 (1974).

"SECTION 10 IS ONE OF THE KEY SECTIONS IN THE LEGISLATION. ESTABLISHES THE STANDARD OF OPENNESS IN ADVISORY COMMITTEE DELIBERATIONS, AND PROVIDES AN OPPORTUNITY FOR INTERESTED PARTIES TO PRESENT THEIR VIEWS AND HE INFORMED WITH RESPECT TO THE SUBJECT MATTER TAKEN UP BY SUCH COMMITTEE. IT ALSO PROVIDES FOR CLOSED DELIBERATIONS UNDER CERTAIN SPECIFIC CONDITIONS AND PROCEDURES. HOWEVER, THE INTENTION OF THIS LEGISLATION IS THAT THE STANDARD OF OPENNESS AND PUBLIC INSPECTION OF ADVISORY COMMITTEE RECORDS IS TO BE LIBERALLY CONSTRUED." S. REP. 92-1098, SUPRA AT 14.

THUS THE LEGISLATIVE HISTORY REVEALS THAT CONGRESS INTENDED TO AVOID INFORMAL, SECRET DELIBERATIONS. THE SAP, THEREFORE, IS PRECLUDED FROM PROVIDING INFORMAL, ORAL ADVICE TO THE ADMINISTRATOR.

FOR A MORE DETAILED ACCOUNT OF THE HISTORY BEHIND THE FACA AND THE IMPORTANCE OF OPEN MEETINGS, SEE PERRITT AND WILKINSON, OPEN ADVISORY COMMITTEES AND THE POLITICAL PROCESS: THE FEDERAL ADVISORY COMMITTEE ACT AFTER TWO YEARS, 63 GEO. L. J. 725 (1975).

QUESTION 4: IS EPA'S OGC MEMO, DATED NOVEMBER 3, 1978, A CORRECT INTERPRETATION OF THE LAW AND LEGISLATIVE INTENT?

ANSWER: EPA'S MEMO CONCLUDED THAT ONCE A SUSPENSION PROCEEDING IS TRIGGERED BY A SUSPENSION NOTICE AND A NOTICE OF INTENT TO CANCEL, THERE IS NO LONGER A NEED FOR SAP INPUT. THEREFORE, A WAIVER OF SAP REVIEW, ONCE INVOKED, IS EFFECTIVE THROUGHOUT THE SUSPENSION AND CANCELLATION PROCEEDINGS. BASED ON A REVIEW OF THE LAW AND ITS LEGISLATIVE HISTORY THIS IS A REASONABLE CONCLUSION. IN ADDITION, IT IS WELL SETTLED THAT "DEFERENCE (IS TO BE ACCORDED) TO THE INTERPRETATION GIVEN THE STATUTE BY THE OFFICERS OR AGENCY CHARGED WITH ITS ADMINISTRATION." UDALL V. TALLMAN, 380 U. S. 1, 16 (1965); 56 COMP.GEN. 912, 920 (1977).

SPECIAL STUDIES AND ANALYSIS

BY: MARLA DIAMOND