Duration of Four Statutorily Created Veterans Administration Advisory Committees

• Court: Department of Justice Office of Legal Counsel
• Decided: April 13, 1979
• Status: Published

Opinion

April 13, 1979

79-25 MEMORANDUM OPINION FOR THE ADMINISTRATOR OF VETERANS AFFAIRS

Federal Advisory Committee Act (5 U.S.C. App. § 1 et seq .)—Duration o f Veterans Administration Advisory Committees

The A ttorney General has asked this Office to reply to your letter to him o f January 10, 1979, concerning the duration under the Federal Advisory Committee Act (FACA), 5 U .S.C . A pp. § 1 et seq. (1976), o f four statutorily created Veterans Adm inistration (VA) advisory committees. We conclude that the duration o f advisory committees may be determined by implication from the particular statute involved, and thus be “ other­ wise provided for by law ,” within the meaning o f the FACA. This would permit such committees to survive the FA CA ’s 2-year cutoff provisions, 5 U .S.C . App. § 14(a)(1)(B) and (2)(B), notwithstanding the absence o f any statute providing expressly for their term ination. Under the above stand­ ards, Congress has so provided by law for the continuing duration o f two VA advisory committees and for the extended duration o f two other VA advisory committees for limited purposes only.

I. Background

The VA is currently served by four statutorily created advisory commit­ tees: the Advisory Com mittee on Cemeteries and Memorials (Cemeteries Committee), 38 U .S.C . § 1001 (1976); the Advisory Committee on Struc­ tural Safety o f Veterans Adm inistration Facilities (Structural Safety Com ­ mittee), 38 U .S.C . § 5001 (1976); the Special Medical Advisory G roup (SMAG), 38 U .S.C . § 4112(a) (1976); and an advisory committee on voca­ tional rehabilitation and educational assistance (Education Committee), 38 U .S.C . § 1792 (1976). The first two were created in 1973, subsequent to the 1972 enactm ent o f FACA; SMAG was created in 1946; the Education Committee was first established in 1952. None o f the acts establishing these committees specifies whether the committee it creates shall exist for a certain term or indefinitely.

170 Under § 14(a), (a)(1) Each advisory committee which is in existence on the ef­ fective date o f this Act shall terminate not later than the expira­ tion o f the two-year period following such effective date unless—

* * *

(B) in the case o f an advisory committee established by an Act o f Congress, its duration is otherwise provided for by law. (2) Each advisory committee established after such effective date shall term inate not later than the expiration o f the two-year period beginning on the date o f its establishment unless—

(B) in the case o f an advisory committee established by an Act o f Congress, its duration is otherwise provided for by law. As you suggest, because the statutes that created the four VA committees do not specify their terms o f existence, they are governed by the autom atic cutoff provisions quoted above unless their duration is, by implication, “ otherwise provided for by law.” Since the enactment o f the FACA, this Office has been frequently called upon by executive agencies to construe § 14(a) as applied to particular ad­ visory committees. Because the offices responsible for promulgating guidelines for the management o f Federal advisory committees' have themselves issued no interpretation o f the phrase “ duration * * * other­ wise provided for by law,” we have consistently applied an interpretation o f the FACA that we reached in 1973 (in consultation with the Office of Management and Budget) based on the manifest intent and legislative history o f the FACA. In our view, the duration o f a statutorily created advisory committee may be “ otherwise provided for by law” either expressly or by implica­ tion. Such duration is provided for by implication if the statute that creates or assigns functions to an advisory committee provides for it a specific function that is continuing in nature and is an integral part o f the implementation o f a statutory scheme. The statutory assignment to a com ­ mittee o f some regular and well-defined participation in an agency’s ad­ ministrative process would be sufficient to overcome the rebuttable pre­ sumption that, unless the statute that creates a committee deals expressly with term ination, the committee is to terminate automatically in 2 years. Such an assignment must be more specific than the rendering o f general

1 The FACA established a Committee Management Secretariat under the Director o f the Office o f M anagement and Budget, 5 U .S.C . A pp. § 7(a). A 1977 Executive order transferred to the Adm inistrator o f General Services (GSA) certain functions under the FA CA, including the m aintenance o f the Secretariat. Exec. O rder No. 12024, 3 CFR 158 (1978).

171 advice to an agency with regard to some program area, which is the general function o f most advisory committees. The interpretation just described, centering on a rebuttable presumption o f committee term ination, is compelled as a necessary middle ground be­ tween narrower and more lenient interpretations, both o f which would fail to give effect to Congress’ intent in enacting the FACA. U nder a more lenient interpretation, the duration o f a committee would be deemed to be otherwise provided for by law if the committee is assigned by statute any specific ongoing function. The interpretation would effec­ tively nullify the autom atic term ination provisions and undermine the clear purpose o f § 14(a), because the general task o f all advisory com ­ mittees to give advice could itself be characterized as a specific ongoing function. U nder a narrower interpretation, a com m ittee’s duration would be pro­ vided for only if its terms o f existence were expressly specified in an Act of Congress. We reject this approach for three reasons. First, it would sweep more broadly than Congress’ expressed intent o f getting rid o f “ inactive, meaningless, obsolete and redundant advisory com m ittees,” S. Rept. 1098, 92d Cong. 20 (1972), by imposing a rule under which the functions assigned by Congress to an advisory committee would be irrelevant in determining Congress’ intent with respect to the duration o f the advisory body. Such an approach would be especially troublesome with respect to statutory committees created prior to the enactment o f the FACA. Prior to the FACA, Congress, not anticipating any need to specify expressly the term o f an advisory com m ittee’s existence, would likely have expressed its intent concerning the duration o f any committee only by implication, if at all, through the functions and structure established for the committee. Second, the narrower rule would create irrationally different regimes for the perpetuation o f statutory and nonstatutory com m ittees.2 Finally, it would give no effect to the unexplained substitution o f the word “ dura­ tion” for “ term ination” in the conference version o f § 14(a); in speaking o f “ duration otherwise provided by law ,” instead o f “ termination other­ wise provided for by law,” Congress may have intended to establish a m ore flexible approach to determining the longevity o f advisory commit­ tees [emphasis added]. Because the legislative history o f the FACA indicates that uniformity o f treatment for Federal advisory committees is a “ m ajor objective,” S. Rept. 1098, id., 8-9, we believe that the presumption o f autom atic ter­ mination can be rebutted, if at all, by specific statutory language, and not by references to legislative history or administrative practice. Otherwise, our suggested test would be highly uncertain in its application.

1 N onstatutory comm ittees may simply be renewed, prior to expiration, by action o f the President or o f the G overnm ent officer who established the committee. 5 U .S.C . App. § 14(a).

172 Although our approach, in sum, is partly functional, we do not believe that Congress intended the importance an agency or departm ent attaches to a particular committee to be sufficient in itself to establish the com ­ m ittee’s continuing duration as a statutory committee. By creating a test o f termination that relies on statutory language, Congress has created a system whereby certain statutory committees may well terminate despite their demonstrable usefulness to the agencies they advise. Congress has nonetheless reserved to itself the option o f perpetuating im portant com ­ mittees by statute beyond 2 years, leaving the option to each agency head o f establishing, after consultation with GSA and the furnishing o f public notice, a statutorily created committee as a nonstatutory body. 5 U.S.C. App. § 9(a)(2). Presumably, the ease o f recreating im portant advisory committees whose duration is not provided for by law other than by the FACA will obviate the problems created in such cases if the committees serve truly im portant functions.

II. Post-FACA Committees Applying our interpretation o f § 14(a) to both o f the VA committees established subsequent to the enactment o f the FACA, we conclude, as discussed below, that the statute establishing each committee sets forth specific functions, continuing in nature, that are integral parts o f the implementation o f a statutory scheme, and thus provides for each com m it­ tee’s continuing duration.

A. Structural Safety Committee Under 38 U .S.C . § 5001, the Adm inistrator, subject to Presidential ap ­ proval, is authorized to establish hospitals, domiciliaries, and outpatient dispensary facilities that shall .be constructed under standards to be pre­ scribed by the Administrator. Section 5001(b) directs the Adm inistrator to appoint an Advisory Committee on Structural Safety o f Veterans Admini­ stration Facilities, “ which shall approve regulations” prescribed under § 5001. This assigned function is, on its face, specific, ongoing, and inte­ gral to the implementation of the statutory program for acquiring and operating medical and domiciliary facilities.

B. Cemeteries Committee Section 1001 o f title 38 directs the appointm ent o f an Advisory Com ­ mittee on Cemeteries and Memorials. It provides that the Administrator “ shall advise and consult” with the committee concerning various func­ tions, including the selection of burial sites and the erection o f appropriate memorials. Consultation with respect to these particular activities is a specific function, ongoing in nature, that is integral to those activities. The committee is further required by statute “ to make periodic reports and recommendations to the Adm inistrator and to Congress.” We have uniformly interpreted the statutory requirement o f periodic reports to Congress as a specific continuing function that Congress deems

173 integral to those statutory schemes o f which such reports are a part. We thus conclude that the duration o f both the Structural Safety and Cemeteries Committees is “ otherwise provided for by law” within the meaning o f § 14(a) o f the FACA, and thus both committees survive the 2-year autom atic cutoff provision o f § 14(a)(2)(B).

III. Pre-FACA Committees Applying our interpretation o f § 14(a) to both o f the VA committees established prior to the enactm ent o f the FACA, we conclude, as discussed below, that the statute establishing each committee fails to set forth func­ tions implying each com m ittee’s indefinite duration. Congress, however, has passed subsequent legislation, giving at least some extended duration to each committee for particular purposes.

A. Education Committee Section 1792 o f title 38 directs the Adm inistrator to form an advisory committee composed o f experts from various fields and veterans to advise the VA with respect to its vocational rehabilitation and educational assist­ ance programs. Its functions are described as follows: The Adm inistrator shall advise and consult with the committee from time to time with respect to the administration o f this chapter and chapters 31, 34, and 35 o f this title, and the commit­ tee may make such reports and recommendations as it deems desirable to the Adm inistrator and to the Congress. This provision is substantially the same in wording as § 262 o f the Veterans Readjustment Assistance Act o f 1952, 66 Stat. 679, under which the com­ mittee was originally created. O n its face, § 1792 designates no particular decisionmaking process in which the committee will play a specified role. There is no requirement that the committee act in any particular instance. It is permitted but not re­ quired to report to the Adm inistrator and to Congress, and no indication appears that the committee is to provide its advice on a regular basis. C on­ sequently, the duration o f the Education Committee is not provided for by implication by its statute. Congress did, however, in § 304(b)(1) o f the G .I. Bill Improvement Act o f 1977 (the 1977 Act), Pub. L. No. 95-202, 91 Stat. 1442 (to be codified at 38 U .S.C . note following § 1792) provide: The Adm inistrator o f Veterans’ Affairs, in consultation with the Advisory Committee formed pursuant to section 1792 o f title 38, United States Code, shall provide for the conduct o f an inde­ pendent study o f the operation o f the programs o f educational assistance carried out under chapters 34 and 36 o f title 38, United States Code * * *. A report o f such study shall be submitted to the President and the Congress not later than September 30, 1979.

174 This wording is problematic because it might be read to imply the under­ standing o f Congress that the “ Advisory Committee formed pursuant to section 1792” still existed on November 23, 1977, the date the section was enacted. That implication might contradict our conclusion that § 14(a) operated to terminate the Education Committee 2 years after the enact­ ment o f the FACA on October 6, 1972. Such an interpretation would, in our view, be incorrect. First, it is elementary that statutes concerning the same subject are to be read in a consistent manner, if possible. That 1977 Act may reasonably be read as re-forming the Education Committee until September 30, 1979, for the limited purpose o f advising the Adm inistrator concerning an independent study o f VA educational assistance programs. This would effect the pur­ pose of the 1977 Act without contradicting the FACA. Second, the FACA itself proscribes any implied repeal o f its termination provisions: The provisions o f this Act * * * shall apply to each advisory committee except to the extent that any Act o f Congress estab­ lishing such advisory committee specifically provides otherwise. [5 U.S.C. App. § 4(a).] Nothing in the statutes relevant to the Education Committee specifically provides that the same test o f implied duration that applies to other com­ mittees should not be applied to it. Interpreting the 1977 Act is necessarily difficult because Congress seems itself to have overlooked the FACA problem. The provision regarding the Education Com mittee’s role in the VA study was apparently added in con­ ference, from which no report issued. The original House bill made no reference to the Education Committee. H .R. Rept. 586, 95th Cong., 1st Sess. (1977). The original Senate bill would have amended § 1792 to pro­ vide that the Adm inistrator would meet with the advisory committee “ on a regular basis,” and at least semiannually. S. Rept. 468, 95th Cong., 1st Sess. 10 (1977). In its discussion o f the Education Committee, the Senate Committee on Veterans’ Affairs, at 118-119, manifests its unawareness o f the FACA problem .3 However, its discussion does buttress the conclusion that C on­ gress, in establishing the committee in 1952, had not provided for it a specific continuing role that is integral to VA administration: Unfortunately, the advisory committee—established by Congress specifically to assist the Veterans’ Administration in establishing channels o f com m unication with these [representatives from education associations] and other concerned individuals—has met sporadically. Apparently, little emphasis has been placed by the

’ The Senate committee noted disapprovingly that the Education Com mittee had not met since October 17, 1975. S. Rept. 468, 95th C ong., 1st Sess. 119 (1977). O ur conclusion, however, is that the comm ittee should have been deemed term inated as a statutory committee on O ctober 6, 1974.

175 Veteran’s Adm inistration upon the helpful role that the commit­ tee could play in the mutual exchange o f inform ation and ideas. * * *

The Committee also notes, as it did last year, that in the 10 years that the section 1792 committee has existed, it has yet to make any reports or recommendations to the Congress under the dis­ cretionary authority granted under section 1792; it has reported only in response to a specific m andate o f law to do so. [Ibid.] Although Congress, in 1977, gave a new function to the Education Com ­ mittee, the 1977 Act does not alter our conclusion that, as created in 1952, the Education Committee was assigned no specific ongoing function in­ tegral to VA administration that implied its continuing duration. Conse­ quently, the presumption o f the com m ittee’s autom atic termination after 2 years under § 14(a) o f the FACA stands unrebutted. The effect of the 1977 Act was merely to reconstitute the committee for the limited purpose of consulting with the Adm inistrator regarding the study authorized by the Act. The committee will terminate, under the 1977 Act, on September 30, 1979, unless reauthorized by Congress or rechartered by the Administrator under § 9(a)(2) o f the FACA.

B. SMAG Section 4112 o f title 38 directs the Adm inistrator to establish a special medical advisory group (SMAG) composed o f various professionals nominated by the Chief Medical Director— whose duties shall be to advise the Adm inistrator, through the Chief Medical Director, and the Chief Medical Director direct [sic], relative to the care and treatment o f disabled veterans, and other matters pertinent to the Departm ent o f Medicine and Surgery. This provision is worded substantially the same as § 12 o f the Act o f Janu­ ary 3, 1946, 59 Stat. 678, under which SMAQ was originally formed. Like the Education Committee statute, § 4112 designates no particular decisionmaking process in which the committee will play a specified role. There is no requirement under this law that SMAG act in any particular in­ stance. SMAG meets at the pleasure o f the Adm inistrator4 and is required to give no particular reports. Consequently, the duration o f SMAG is not impliedly provided for by its establishing statute, notwithstanding SM AG’s genuine usefulness to the VA.

* As originally m andated, SM AG was to conduct “ regular calendar quarterly meetings.” Act o f January 3, 1946, § 12, 59 Stat. 678. Congress, in 1966, amended this wording, providing: The special medical advisory group shall meet on a regular basis as prescribed by the A d­ m inistrator. [Veterans Hospitalization and Medical Services M odernization Am end­ ments o f 1966, Title I, § 109(a), 80 Stat. 1370.]

176 Congress did, however, give SMAG additional functions. In 1966, it enacted 38 U.S.C. § 5055, establishing a SMAG Advisory Subcommittee on Programs for Exchange o f Medical Inform ation to advise the Adm in­ istrator regarding the statutory scheme o f grants to medical institutions ex­ changing medical inform ation with the VA. § 5055(a). The Adm inistrator is authorized to make grants under § 5055(b) “ upon the recommendation o f the Subcom m ittee.” Further, under § 5055(d): The Adm inistrator, after consultation with the Subcommittee shall prescribe regulations covering the terms and conditions for making grants, under this section. These specific ongoing functions, integral to the statutory grant-making process, do imply the continuing duration o f the SMAG subcommittee for as long as the statutory program remains authorized. They do not, however, amend § 4112, and do not, by themselves, extend the duration of SMAG for its other functions longer than 2 years after the enactm ent o f the FACA. In 1972, however, Congress enacted 38 U .S.C . § 5070, establishing a system o f grants to new State medical schools, VA-affiliated medical schools, and health manpower training institutions. Under § 5070(c), the Administrator is empowered to promulgate regulations covering agree­ ments and grants under title 38, chapter 82 “ after consultation” with SMAG. The specific, ongoing, and integral nature o f this function implies the continued duration o f SMAG to perform this function as long as agreements and grants are made under this statute. No indication appears, however, that § 5070(c) is to be deemed an amendment o f § 4112 or to ex­ tend the life o f SMAG for any purpose other than consulting with regard to grants and agreements under chapter 82. No other provision or amendment to § 4112 implies the continuing duration o f SMAG beyond O ctober 6, 1974, for any purpose other than those named in §§ 5055 or 5070.5 SMAG and its authorized subcommittee thus are no longer authorized to perform general functions under § 4112, and SMAG will terminate in its entirety upon the termination o f the VA’s programs under § 5055 and chapter 82, unless reauthorized by Congress or rechartered by the A dm inistrator under § 9(a)(2) o f the FACA.

IV. Conclusion In sum, as we interpret § 14(a) o f the FACA, it creates a rebuttable presumption that, unless a statute creating an advisory committee deals

’ In 1972, Congress enacted 38 U .S.C . § 4124, under which the Chief Medical director, after consultation with SM AG, is to carry out the provisions o f subchapter II o f chapter 73 o f title 38, regarding supervision, staffing, and personnel training for regional medical education centers. Congress did not, however, designate for SM AG a specific, ongoing, in­ tegral role in the implementation o f this subchapter. In 1976, Congress am ended 38 U .S.C . § 4112 to add new members to SM AG: its 1976 am endm ent, however, did not affect the functions or duration o f the comm ittee. Veterans Om nibus Health Care Act o f 1976 §§ 110(8), 209(b)(3), Pub. L. 94-581, 90 Stat. 2849, 2861.

177 expressly with its term ination, the committee terminates 2 years after the enactm ent o f the FACA or after the creation o f the committee, whichever comes later. This presum ption may be rebutted by a showing that C on­ gress, in creating a committee, assigned to it a specific ongoing function that is integral to a particular statutory scheme. Such a showing can be made w ith’respect to the Cemeteries and Structural Safety Committees. Congress has implied the continuing duration o f SMAG only to perform functions under 38 U .S.C . §§ 5055 and 5070 for the life o f the relevant VA programs. It has provided for the reform ation o f the Education Committee to consult with respect to a particular study to be completed on September 30, 1979.

Leon U lm an D eputy Assistant A ttorney General Office o f Legal Counsel