Applicability of the Federal Advisory Committee Act to the Native Hawaiians Study Commission

Applicability of the Federal Advisory Committee Act to the Native Hawaiians Study Commission

The Native H aw aiians Study Com m ission (C om m ission) was established to advise C ongress, not the President o r agencies in the Executive Branch, and is thus not subject to the Federal Advisory Com m ittee A ct (FACA). The Com m ission could becom e subject to the FACA if it were utilized to advise the P resident or agencies

The Com m ission is not subject to the requirem ent of the Governm ent in the Sunshine Act (G SA ), which applies only to “ agencies” a m ajority of whose m embers are appointed by the President with the advice and consent of the Senate. The Com m ission is not an "ag en c y ” as that term is defined for purposes of the G SA , since it was created to undertake studies and not to exercise independent authority. Moreover, none o f its m em bers is appointed w ith the advice and consent of the Senate.

January 4 , 1982

M EM ORANDUM OPINION FOR THE CHAIRM AN, NATIVE HAWAIIANS STUDY COMMISSION

You have asked this Office to advise you whether the Native Hawaiians Study Commission (Com m ission) is subject to the requirements of the Federal Advi­ sory Com m ittee Act, Pub. L. No. 92-463, 86 Stat. 770, 5 U .S.C . App. (1976 & Supp. V 1981) (FACA), or the Government in the Sunshine Act, Pub. L. No. 94-409,5 U .S .C . § 552b (1976) (GSA). We conclude that the Commission is not subject to either Act. O ur analysis of the FACA is somewhat extended because the language of the C om m ission’s authorizing act is not entirely clear, although its legislative history demonstrates Congress’ intent that the FACA not be applica­ ble. We conclude that the Commission is not subject to the GSA because the Commission is not an administrative “ agency” as defined by that and other relevant statutes.

I. Applicability of the Federal Advisory Committee Act

The FACA imposes certain requirements on “ advisory committees” to the President or to federal agencies. The definition of an “ advisory com m ittee” includes, in relevant part, any “ com m ission” that is “ established” by the President, an agency, or Congress “ in the interest of obtaining advice or recom ­ mendations for the President or one or more agencies or officers of the Federal

governm ent.” 5 U .S .C . App. § 3 .' The definition does not cover commissions that are established solely to advise Congress. W hether the Native Hawaiians Study Com m ission was “ established” to advise the President or federal agencies or solely to advise Congress m ust be determ ined by reference to the Com m is­ sio n ’s authorizing act— the N ative Hawaiians Study Commission Act (NHSCA).2

(A) N H SC A Text

T he text o f the NHSCA does not indicate that Congress established the C om m ission to obtain “ advice o r recom m endations” for the President or federal agencies. T he Com m ission’s relationship with the President, however, is suffi­ ciently am biguous to require a review of the N H SCA ’s legislative history. T he N H SC A directs the Com m ission to “ conduct a study of the culture, needs, and concerns o f Native Hawaiians.” Section 303(a). The Commission is to publish “ a draft report of the findings of the study,” distribute the draft to “ appropriate” federal and state agencies, native Hawaiian organizations, and the interested public, and solicit their written comments. Section 303(c). The Com ­ m ission is to issue a “ final report of the results of this study” and send copies to the President and to two congressional com m ittees. Section 303(d).3 Finally, and m ost im portantly, the NHSCA also directs the Commission to “ make recom­ m endations to the Congress based on its findings and conclusions [from the study].” Section 303(e). T here is no indication whatever, in the text or in the legislative history, that the N H SC A established the Commission to advise federal agencies. The Commis­ sion does not m ake recommendations or submit its final report to any federal agencies. The fact that the Com m ission sends a draft report to “ appropriate” federal agencies for written com m ents suggests that it has the opposite rela­ tionship— that it is required to obtain the agencies’ advice, rather than to advise agencies. W hether the Commission was established to obtain “ advice or recom m enda­ tions” for the President is a closer question because the President does receive a copy o f the C om m ission’s final report. While this could imply a relationship for the transm ittal o f advice between the Comm ission and the President, it does not by itself make the Commission an advisory body to the President. First, the N H SCA draw s a distinction between the Com m ission’s final report, which contains its factual “ findings,” and its “ recom m endations,” which are made

1 T h e FACA also covers com m issions “ u tiliz e d ” by the President o r an agency “ in the interest o f o b taining advice o r reco m m en d a tio n s " 5 U S C . App § 3 T h is aspect o f the FACA’s definition o f “ ad v iso ry co m m ittee” is d iscu ssed below 2 Pub L. N o. 9 6 -5 6 5 , Title IH , 9 4 Stat. 3 3 2 1 , 3324-27 (1 9 8 0 ).4 2 U .S C . § 2991a note (S upp V 1981). Senator M atsunaga in troduced the N H S C A directly o n the S enate floor a s an am endm ent to an act “ to establish the K alaupapa N ational H istorical F^rk in the S tate o f Haw aii, and for o th e r purposes ” 126 C ong R ec. 32397 (1980) (K alau p a p a A ct) T h e H ouse subsequently p assed the K alaupapa A ct w ith the Senate am endm ent 126 C o n g Rec 3 2613 (1980). T itle III o f the K alaupapa Acl is separately tilled the N H S C A . B ecause the N H SC A was introduced d ire ctly on the H ouse and S enate floors, no com m ittee reports specifically addressed it ' T h e C o m m ittees are the S enate C om m ittee on Energy and N atural R esources an d the H ouse C om m ittee on Inte rio r a n d Insular A ffairs

only to Congress and apparently forwarded separately. Merely sending a copy of the Com m ission’s report to the President would not seem to make the Com m is­ sion advisory to the President when its recommendations are made only to Congress.' Second, even if the final report itself could be characterized as “ advice,” it is unclear that such advice is really for the President where other factors and the underlying purpose of the study indicate that the Commission was created to formulate policy recommendations to Congress for future legislation. That the President is to receive a copy of the study, perhaps simply as a courtesy or for his general information, does not mean the study was intended to “ advise” him. Thus, while the language of the statute itself is far from a clear indication that the Commission was intended solely to advise Congress, it does not support the contention that it was established to advise the President. Two other provisions in the NHSCA indicate at least indirectly that the Commission was not established to advise the President. The first provision, § 303(b), establishes a modest open meeting “ goal” for the Commission. This provision would be redundant if the requirements of the FACA were applicable. Section 303(b) states: The Commission shall conduct such hearings as it considers appropriate and shall provide notice of such hearings to the public, including information concerning the date, location, and topic of each hearing. The Commission shall take such other actions as it considers necessary to obtain full public participation in the study undertaken by the Commission.

42 U .S.C . § 2991a note (Supp. V 1981). If Congress had intended the Com ­ mission to be covered by the FACA, notice of each meeting would ordinarily have to be published in the Federal Register, the meeting would have to be open to the public, and interested persons would have the right to appear before the Com m is­ sion or to file statements. See 5 U .S .C . App. § 10. Congress’ inclusion of the much more modest provisions of § 303(b) in the NHSCA indicates that it did not believe that the Commission would be subject to the FACA. The second provision, § 307(a), provides:

Until October 1, 1981, salaries and expenses of the Commission shall be paid from the contingent fund of the Senate upon vouch­ ers approved by the Chairman. To the extent that any payments are made from the contingent fund of the Senate prior to the time appropriation is made, such payments shall be chargeable against the authorization provided herein.

42 U .S .C . § 2991a note (Supp. V 1981). This reveals that Congress considered the Commission sufficiently close to the Legislative Branch to fund its activities up to October 1, 1981, from the contingent fund of the Senate. It also suggests that Congress believed the Com m ission would not be funded from any appropria­ tions for the Executive Branch, as would normally be available for advisory committees to the Executive Branch.

In sum m ary, the language o f the NHSCA does not support the conclusion that C ongress established the Commission to obtain advice or recommendations for the President. M oreover, the moderate “ open m eeting” provision and the manner o f funding seem to suggest that the Commission was closely tied to Congress and not intended to be subject to th e FACA.4 These indications are not necessarily conclusive, however, because th e President is to receive a copy of the Commis­ sio n ’s final report. Because this might indicate the existence of a reporting relationship with the President, we turn to a review of the N H SCA ’s legislative history.

(B) Legislative H istory cf the NHSCA

Three aspects of the N H SC A ’s legislative history strongly support the con­ clusion that C ongress did not establish the Commission to advise the President. These include: (i) comments by the sponsors of the NHSCA that the Commission was to advise Congress; (ii) the existence of two predecessor bills seeking to establish an advisory commission to Congress; and (iii) the circumstances in w hich a Senate com m ittee first added to a predecessor bill the requirement that the President should receive a copy of the Com m ission’s report.

(i) F loor com m ents of the N H SC A ’s sponsors

W hen N H S C A ’s two sponsors introduced the bill on the House and Senate floors in the 96th Congress, they characterized the Commission as an advisory com m ittee to Congress without ever mentioning that it would have any rela­ tionship with the Executive B ranch. Senator M atsunaga stated that the NHSCA

provides for a study o f the Native Hawaiians by an unbiased Federal Commission com posed prim arily of non-Hawaiians, and it would require the Com m ission to report its findings to Con­ gress. If, at that time, the Congress determines that furth er action is necessary, perhaps a settlem ent act would be introduced as it was in the case c f Alaskan Natives.

126 C ong. Rec. 32399 (1980) (em phasis added). In similar fashion, Representa­ tive Phillip Burton noted:

Mr. Speaker, it is my sincere hope that 2 years from now, the findings and recommendations from this com m ission, relative to the past and current problem s now facing the Native Hawaiian population in the State o f Hawaii and elsewhere, will be such that it w ill establish a base upon which the Congress can then decide

4 T h e p resid en tial pow er o v er the appointm ent o f C om m ission m em bers un d er the N H SC A might be said to su p p o rt a co n trary view T h e President ap p o in ts the m em bers o f the C o m m issio n , designates its chairm an and vice c h a irm an , fills all vacancies, and calls the first m eeting. S ections 302(b), (c), (d), (e). T he fact that the President appoints th e m e m b ers, how ever, does not b e a r directly, as an analytical matter, on the question regarding the functions the C om m issio n m em bers are to p erform once they are appointed

on the best possible approach to assist the Native Hawaiians. Mr. Speaker, the Native Hawaiians definitely need help, and after holding hearings last year in Hawaii on this legislation, I am convinced more than ever o f the need to establish this com m is­ sion; and I might add that the Congress does have a responsibility to these people.

126 Cong. Rec. 32613 (1980) (emphasis added). Thus, the bill’s two sponsors described the Commission as a body to advise Congress and never indicated that it would have an advisory relationship with the Executive Branch.5

(ii) Predecessor bills

The legislative history further reveals that the two predecessor bills to the NHSCA in the two prior Congresses— S.J. 1 5 5 ,94th C ong., 2d Sess. (1976) and S.J. Res. 4, 95th C ong., 1st Sess. (1977)— each had sought to establish a commission specifically to advise Congress. The first bill, S.J. 155, was introduced in the 94th Congress by Senator Inouye to establish an Hawaiian Native Claims Settlement Study Com m ission.6 The commission was to conduct a study of “ the nature of the wrong committed against . . . Hawaiian Natives” when the United States allegedly caused the expropriation of their ancestors’ land in 1893.7 The proposal for this commission represented an alternative to another bill introduced by (then) Representative Matsunaga to establish a corporation to settle Hawaiian claims for the losses.8 Because of congressional opposition to a claims settlement procedure, Senator Inouye’s bill sought to establish a commission which, according to its preamble, “ should be convened to advise the Congress on all matters pertaining to such remedy.” 9 In the 95th Congress, Senators Inouye and M atsunaga introduced the second predecessor bill, S.J. Res. 4, which was identical to the draft of S.J. Res. 155 reported out of the Senate Committee on Interior and Insular Affairs in the 94th Congress. Like S.J. 155, the preamble to S.J. Res. 4 stated that the commission was intended specifically to advise Congress. It stated:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled. That the Con­ gress hereby declares that a wrong has been committed against the Aboriginal Hawaiians which the United States is obligated to endeavor to remedy; . . . that the Congress wishes to establish a commission o f Aboriginal Hawaiian and other citizens to advise it

5 T he b rief legislative history o f the N HSCA does not indicate that the P resident requested establishm ent o f the C om m ission T h e E xecutive B ranch did not participate in the drafting of the proposed legislation to crea te it. 6 S J Res. 155, 94th C ong , 2d Sess (1976) 7 S J. Res 155, reprinted in S R ep No 1356, 94th C o n g ., 2d Sess. 2 -3 (1976). 8 H R. 1944, 94th C ong , 1st S ess (1975) R epresentative M atsunaga had introduced a sim ilar bill in the 93rd C o n g ress, H R 15666. 93rd C o n g ., 2d Sess. (1974). 9 S J. Res 155, reprinted in S Rep. N o 1356, 94th C o n g ., 2d Sess. 2 (1976).

on all m atters pertaining to the best manner in which to provide such remedy. S.J. Res. 4 , 95th C ong., 1st S ess., 123 Cong. Rec. 34541 (1977) (emphasis added). The Senate and House Com m ittee R eports10 and floor comments on the b ill" also clearly indicated that the comm ission was specifically established to advise C o n g ress.12 A gainst this consistent history dem onstrating Congress’ desire to create a com m ission to advise it regarding the Native Hawaiians, there was no indication when Congress passed the N H SCA in the 96th Congress that it also intended to m ake the proposed Commission advisory to the President.13 W hen introducing the N H SC A , Senator Matsunaga explained that he had deleted various provisions o f its predecessor, S.J. Res. 4 , simply to assure that the Com m ission’s study would be objective. His comments did not reflect any intent to create an advisory com m ittee to the President.14

(iii) The requirem ent that the Comm ission report be sent to the President

Finally, the legislative history of S.J. Res. 4 sheds some light on the back­ ground and significance of the requirem ent that the Commission send its report to

10 T h e S enate R eport stated T he P ro p o sed S tu d y Com mission w o u ld subm it a report o f its fin d in g s to the C ongress and reco m m en d rem edies to repair the w ro n g perpetrated against the A boriginal H aw aiian people. * * *

B y en actm en t o f S enate Joint Resolution 4 , the C ongress w ould establish a procedure for determ in­ ing w hat, i f any, action th e Congress c a n lake to fin a lly settle the claim s o f the A b o rig in a l H aw aiians. T he reco m m en d a tio n s subm itted to th e C ongress by the A boriginal H aw aiian C laim s S ettlem ent S tu d y C o m m issio n cannot substitute f o r the C ongressional determ in a tio n , but are ex p ecte d to assist th e C ongress in m a kin g that determ ination * * * S enate Joint R esolution 4 would estab lish [a com m ission] and ask it to co nduct the study to provide th e gro u n d w o rk necessary fo r Congress to consider what, i f any, settlem en t can be fa s h io n e d fo r the A b o r ig in a l H aw aiian p eo p le S. R ep N o 50 1 , 9 5 th C o n g .. 1st Sess 5, 8, 9 (1977) (em phasis added). T he H ouse C om m ittee Report reflects the sam e approach S e e H Rep. N o. 860. 95th C o n g ., 2d Sess 1, 2 , 5 (1978) 11 S e e 123 C o n g . R ec. 34544 (1977) (rem arks of Sen Inouye), 124 C ong. R ec 15052 (1 9 7 8 ) (rem arks o f Rep R oncalio), id at 15054 (rem arks o f Rep H eftel), 124 C ong. R ec. 28496 (1 9 7 8 ) (rem arks o f Rep Johnson), id at 2 8497 (rem ark s o f R ep B urton); id. at 28498 (rem arks of Rep. H eftel) 12 S.J. R es. 4 w as not en a cted While the S en ate passed S J Res 4 . only a sim p le m a jo n ty o fth e H ouse m em bers voted for its p assage w hen it w as twice brought to the floor. S e e 123 Cong Rec 34544 (1977); 124 C o n g Rec 2 8505 (1 9 7 8 ) T h e sp ecial rules under w hich it was brought to the H ouse floor required a tw o-thirds vote 13 S enators M atsunaga and Inouye also in tro d u ced in the 96th C ong ress a bill that was identical to the version o f S .J R es. 4 w hich passed the S enate in the 9 5 th C ongress S ee S 213 1 , 96th C o n g ., 1st Sess , 125 C o n g Rec 3 5 9 5 6 (1979). N o action w as taken on the bill after it was referre d to C om m ittee. C ongressm an A kaka also in tro d u ced a sim ilar bill, H R 5 7 9 1 ,96th C o n g , Is iS e s s (1979), w hich w as referred to the H ouse C om m ittee on In te rio r a n d In su lar A ffairs S ee H earings on H .R . 5791 Before th e Sub co m m . on N a tional Parks a n d Insular A ffairs c f th e H o u se C o m m on In te rio r and Insular A ffairs, 96th C o n g ., 1st Sess (1979) 14 S en ato r M atsunaga's bill d id delete the p ream b le that had included the sentence stating that the C om m ission w as esta b lish ed to ad v ise C ongress But th is does not reflect any intent to change the advisory role o f the C o m m issio n . F irst, as the S en ato r explained, he elim inated the p ream b le because certain H ouse m em bers objected that it “ ex p ressed [C ongress’] sense that a w ro n g had been done to H aw aiians.” 126 C ong Rec 32399 (1980). He d id not say that he intended to alter the C om m ission’s advisory du ties. S econd, the Senator also am ended S J Res 4 to req u ire ex p ressly that the C om m ission m a k es its recom m endation to C ongress. S J Res 4 had not specified to w hom the reco m m en d a tio n s w ere to be made, although they were to have been co n tain ed in the R eport S ee S J Res 4 , § 4 , rep rin te d in S . Rep. N o 50 1 , 95th C o n g , 1st Sess 3 (1 9 7 7 ) T h u s, even though the S enator rem oved the p arag rap h specifically id en tify in g the C om m ission as advisory to C o n g ress, he added the requirem ent that the C o m m issio n sh o u ld m ake its recom m endations only to C ongress. T hese facts are inconsistent w ith the conclusion that elim in atio n o f th e p ream b le was intended to make the C om m issio n advisory to the P resident

the President. As originally introduced by Senators Inouye and M atsunaga, S.J. Res. 4 required the Commission to submit its report, including recom m enda­ tions, to C ongress.15 The Senate Committee on Energy and Natural Resources amended the bill to direct the Com mission, among other things, to send a copy of its report to the President.16 Although the Committee Report did not com m ent on this change, it clearly indicated that the purpose of the Commission was to advise C ongress.17 The subsequent floor comments appear to confirm this interpreta­ tio n ,18 and there is no indication that the change was intended to make the Commission advisory to the President.

(C) Conclusion

In light of these clear indications from N H SCA ’s legislative history that the Commission was created to advise the Congress and not the President or federal agencies, we conclude that it is not subject to the FACA. The Commission members should be aware, however, that the Commission could become subject to the FACA, despite the fact that it was not “ established” to advise the President or federal agencies, if it is so “ utilized” by the President or an agency. 5 U .S.C . App. § 3. We are currently aware of no information, however, indicating the Commission has been or is being utilized in this capacity.

II. Applicability of the GSA

You have also asked us to determine whether the Commission is subject to the Government in the Sunshine Act (GSA), which requires that certain meetings o f agencies that fall within its coverage “ be open to public observation.” 5 U .S .C . § 552b(b). The GSA applies, absent special exemptions, to

any agency, as defined in section 552(e) of this title [the Freedom of Inform ation A ct’s definition], headed by a collegial body com posed of two or more individual members, a majority of whom are appointed by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency.

5 U .S .C . § 552b(a)(l). The Commission does not fall within this definition for two reasons. First, none of its members are appointed to the Commission with the advice and consent of the Senate. The NHSCA only provides that members be appointed by the President.

15 S J Res. 4 , § 3, reprinted in H earings on S J Res 4 a n d H J R es. 526 B efore the Subcom m on P ublic L ands a n d Resources c f the S en a te Com m on E nergy and N a tu ra l Resource's a n d the S u b co m m . on Indian A ffairs a n d P ublic L a nds c f the H o u se C om m on Interior a n d In su la r Affairs. 95th C o n g .. 1st Sess. 18-21 (1977) l6 S Rep N o 5 0 1 , 9 5 th C o n g ., 1st S ess 3 (1977) 17 See note 10, supra 18 See note 11, supra

Second, the Commission is not an agency as that term has been used under the Freedom of Inform ation Act, 5 U .S.C . § 552(e) (FOIA), whose definition the GSA expressly incorporates. T he FOIA defines “ agency” as follows:

For purposes of this section, the term “ agency” as defined in section 551 (1) of [the A dministrative Procedure Act] includes any executive department, military departm ent, Government corpo­ ration, Government controlled corporation, or other establish­ m ent in the executive branch o f the Government (including the Executive Office of the President), or any independent regulatory agency.

5 U .S .C . § 552(e). The FOIA thus incorporates the Administrative Procedure A ct (APA) definition of “ agency,” with several additions that are not relevant here. The APA defines “ agency,” in relevant part, as “ each authority of the G overnm ent of the United States, whether or not it is within or subject to review by another agency.” 5 U .S.C . § 551(1). This definition has been judicially construed to require that an Executive Branch entity, to be deemed an “ agency,” m ust have “ substantial independent authority in the exercise of specific func­ tio n s,” Soucie v. D avid, 448 E 2d 1067, 1073 (D .C. Cir. 1971), or the “ authority in law to m ake d ecisions,” Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D .C . Cir. 1974), cert, denied, 421 U .S. 963 (1975). Such tests cannot norm ally be m et by a committee that merely gives advice because its chief function is only to make recom m endations, not to act upon them or to exercise independent authority. See Wolfe v. Weinberger, 403 F. Supp. 238, 241 (D .D .C . 1975); G ates v. Schlesinger, 3 6 6 F. Supp. 797, 799 (D .D .C . 1973). As we have already indicated, the legislative history of the Commission indicates that it was created to undertake studies and to make recommendations, not to “ exercise independent authority.” Thus, in our view, the Commission is not an “ agency” as that term is defined by the APA and the FOIA, and adopted by the G S A .¹⁹ In short, we conclude, based on the language and legislative history of the legislation creating the Commission, that it is neither an “ advisory com m ittee” for purposes of the FACA nor an “ agency” for purposes of the GSA. It is therefore not subject to the requirem ents of either statute.

T heodore B. O lson

A ssistant Attorney General Office o f Legal Counsel

Footnotes

[19] T h e N H S C A provides that the C om m ission may “ secu re directly from any departm ent o r agency o f the United S tates inform ation n ec essary to enable it to c a rry out this title . . and m ay use the U nited States m ails in the same m a n n er and upon the sam e conditions as o th e r departm ents and agencies of the U nited States.” Section 30 2 (j) & (k) T h e re is no indication from this oblique refere n ce that C ongress intended to create the C om m ission as an “ agency.” In any e v e n t, the definition o f an agency u n d e r the G S A is functional, and C ongress clearly did not intend to em pow er th e C om m issio n to exercise functions that w ould bring it w ithin the G S A ’s definition o f an “ ag e n cy ”