[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]




 
   EXAMINING THE FEDERAL ADVISORY COMMITTEE ACT--CURRENT ISSUES AND 
                              DEVELOPMENTS

=======================================================================

                                HEARING

                               before the

                  SUBCOMMITTEE ON INFORMATION POLICY,
                     CENSUS, AND NATIONAL ARCHIVES

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 2, 2008

                               __________

                           Serial No. 110-85

                               __________

Printed for the use of the Committee on Oversight and Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                     http://www.oversight.house.gov



                     U.S. GOVERNMENT PRINTING OFFICE
44-910 PDF                 WASHINGTON DC:  2008
---------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001

              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York             TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania      DAN BURTON, Indiana
CAROLYN B. MALONEY, New York         CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois             MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts       TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri              CHRIS CANNON, Utah
DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York              DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky            KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa                LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of   PATRICK T. McHENRY, North Carolina
    Columbia                         VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota            BRIAN P. BILBRAY, California
JIM COOPER, Tennessee                BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland           JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
               Lawrence Halloran, Minority Staff Director

   Subcommittee on Information Policy, Census, and National Archives

                   WM. LACY CLAY, Missouri, Chairman
PAUL E. KANJORSKI, Pennsylvania      MICHAEL R. TURNER, Ohio
CAROLYN B. MALONEY, New York         CHRIS CANNON, Utah
JOHN A. YARMUTH, Kentucky            BILL SALI, Idaho
PAUL W. HODES, New Hampshire
                      Tony Haywood, Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on April 2, 2008....................................     1
Statement of:
    Nazzaro, Robin, Director, National Resources and Environment, 
      Government Accountability Office; Robert Flaak, Director, 
      Committee Management Secretariat, General Services 
      Administration; Sidney A. Shapiro, Associate Dean for 
      Research and Development, Wake Forest School of Law, on 
      behalf of the Center for Progressive Reform; and Frank 
      Wilson, Director, Administration and Management, Department 
      of Defense.................................................     7
        Flaak, Robert............................................    27
        Nazzaro, Robin...........................................     7
        Shapiro, Sidney A........................................    53
        Wilson, Frank............................................    45
Letters, statements, etc., submitted for the record by:
    Clay, Hon. Wm. Lacy, a Representative in Congress from the 
      State of Missouri, prepared statement of...................     3
    Flaak, Robert, Director, Committee Management Secretariat, 
      General Services Administration, prepared statement of.....    30
    Nazzaro, Robin, Director, National Resources and Environment, 
      Government Accountability Office, prepared statement of....     9
    Shapiro, Sidney A., Associate Dean for Research and 
      Development, Wake Forest School of Law, on behalf of the 
      Center for Progressive Reform:
        Prepared statement of....................................    55
        Proposed bill............................................    70
    Wilson, Frank, Director, Administration and Management, 
      Department of Defense, prepared statement of...............    48


   EXAMINING THE FEDERAL ADVISORY COMMITTEE ACT--CURRENT ISSUES AND 
                              DEVELOPMENTS

                              ----------                              


                        WEDNESDAY, APRIL 2, 2008

                  House of Representatives,
   Subcommittee on Information Policy, Census, and 
                                 National Archives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m. in room 
2154, Rayburn House Office Building, Hon. Wm. Lacy Clay 
(chairman of the subcommittee) presiding.
    Present: Representatives Clay and Hodes.
    Staff present: Darryl Piggee, staff director/counsel; Jean 
Gosa, clerk; Alissa Bonner, professional staff member; Charisma 
Williams, staff assistant; Michelle Mitchell, legislative 
assistant, Office of Wm. Lacy Clay; Leneal Scott, information 
systems manager; and Charles Phillips, minority counsel.
    Mr. Clay. The Information Policy, Census, and National 
Archives Subcommittee will now come to order.
    Today's hearing will examine the Federal Advisory Committee 
Act [FACA], its implementation and changes needed to increase 
the transparency and independence of advisory committees.
    We will hear from witnesses who will testify about their 
experiences with FACA and offer recommendation that they 
believe will improve the act.
    Without objection, the Chair and ranking member will have 5 
minutes to make opening statements, followed by opening 
statements not to exceed 3 minutes by any other Member who 
seeks recognition.
    Without objection, Members and witnesses may have 5 
legislative days to submit a written statement or extraneous 
materials for the record.
    I will begin with my opening statement by saying that 
Congress passed the FACA in 1972 in response to the 
proliferation of Federal advisory committees with increased 
cost and little accountability.
    The aim of the act was to make Federal advisory committees 
accountable, transparent, balanced, and independent from the 
influence of special interests. A FACA seeks to ensure that the 
Federal Government benefits from a wide range of views on 
issues of importance to the American people, particularly with 
respect to sensitive or controversial issues; however, the law 
has not always been implemented to achieve balance, 
transparency, and independence. Recent news articles have 
reported that the administration has employed litmus tests to 
push its ideological agenda and exclude otherwise qualified 
individuals from advisory committees.
    A GAO study found that some appointments to scientific and 
technical advisory committees had generated some controversy 
due to the perception that appointments were made based on 
ideology rather than experience or more weighted to favor one 
group of stakeholders over another.
    GAO also found that members of Federal advisory committees 
are often appointed as representatives who represent entities 
or organizations and are not screened for conflict of interest, 
when they should be appointed as special Government employees 
subject to conflict of interest review. This happened with Vice 
President Cheney's infamous Energy Task Force that was stacked 
with industry representatives.
    Oversight and Government Reform Committee Chairman Henry 
Waxman and I have taken action to correct the loopholes in the 
law. We will introduce the Federal Advisory Committee Act 
Amendments of 2008, which will improve balance, transparency, 
and independence. The FACA Amendments will increase the 
disclosure requirements for advisory committees, require that 
appointments to advisory committees be made without regard to 
political affiliation, and require agencies to obtain conflict 
of interest disclosures.
    Our witnesses today will offer their views on the bill and 
provide recommendations to strengthen the bill. The 
subcommittee looks forward to hearing their testimony.
    [The prepared statement of Hon. Wm. Lacy Clay follows:]

    [GRAPHIC] [TIFF OMITTED] T4910.001
    
    [GRAPHIC] [TIFF OMITTED] T4910.002
    
    [GRAPHIC] [TIFF OMITTED] T4910.003
    
    Mr. Clay. I will begin by swearing in our panel today.
    I want to start by introducing our panel. We will hear 
first from Ms. Robin Nazzaro, Director of Natural Resources and 
the Environment for the Government Accountability Office. She 
is currently responsible for GAO's work on Federal land 
management issues. She has been with GAO since 1979 and has a 
wealth of audit experience, staff office service, and diversity 
of issue area expertise, including tax, financial management, 
and information technology. Ms. Nazzaro has overseen GAO's work 
on several Federal agencies.
    Welcome to the subcommittee, Ms. Nazzaro.
    Next we will hear from Mr. Robert Flaak, Director of the 
Committee Management Secretariat for the General Services 
Administration, the agency charged with implementing FACA. Mr. 
Flaak's primary responsibilities include advising Federal 
executive branch agencies on advisory committee operations, 
developing policy and training to implement the Federal 
Advisory Committee Act, and establishing and evaluating 
performance measures to improve advisory committee operation.
    For the past 17 years Mr. Flaak has conducted Government-
wide training on behalf of GSA, the U.S. Office of Government 
Ethics, and the EPA on FACA management and operations, ethics, 
and peer review.
    Prior to his current appointment, he was the senior policy 
advisor in the Office of GSA Administrative Policy.
    Thank you for being here, Mr. Flaak.
    Mr. Flaak. Thank you.
    Mr. Clay. Our third witness will be Colonel Frank Wilson, 
Director of Administration Program Support at the Washington 
Headquarters Services of the Department of Defense, and FACA 
Committee Management Office with DOD. Colonel Wilson is 
responsible for the control and supervision over the 
establishment, procedures, and accomplishments of DOD's 55 
advisory committees and for carrying out the provisions of the 
Government in the Sunshine Act. He is a Vietnam veteran, having 
served on active duty with the Air Force from 1966 to 1992.
    Thank you for being here and for your service, Mr. Wilson.
    Our final witness will be Mr. Shapiro, a University 
distinguished professor of law and associate dean for research 
and development at the Wake Forest School of Law. Mr. Shapiro 
is a scholar member of the Center for Progressive Reform, who 
he is representing here today. He has written or co-written 
numerous articles about the administrative process, including 
FACA, a widely used law school case book on administrative law, 
and a one-volume student treatise on administrative law.
    Thank you, too, for appearing before this subcommittee.
    It is the policy of the Oversight and Government Reform 
Committee to swear in all witnesses before they testify. I 
would like to ask you to stand and to raise your right hands, 
please.
    [Witnesses sworn.]
    Mr. Clay. Let the record reflect that the witnesses 
answered in the affirmative.
    I ask that each witness now give a brief summary of their 
testimony and keep the summary under 5 minutes in duration. 
Your complete written statement will be included in the 
hearing.
    The little light on the table will indicate when you start 
and when you should finish.
    Ms. Nazzaro, we will start with you.

 STATEMENTS OF ROBIN NAZZARO, DIRECTOR, NATIONAL RESOURCES AND 
 ENVIRONMENT, GOVERNMENT ACCOUNTABILITY OFFICE; ROBERT FLAAK, 
 DIRECTOR, COMMITTEE MANAGEMENT SECRETARIAT, GENERAL SERVICES 
ADMINISTRATION; SIDNEY A. SHAPIRO, ASSOCIATE DEAN FOR RESEARCH 
 AND DEVELOPMENT, WAKE FOREST SCHOOL OF LAW, ON BEHALF OF THE 
  CENTER FOR PROGRESSIVE REFORM; AND FRANK WILSON, DIRECTOR, 
      ADMINISTRATION AND MANAGEMENT, DEPARTMENT OF DEFENSE

                   STATEMENT OF ROBIN NAZZARO

    Ms. Nazzaro. Thank you, Mr. Chairman. I am pleased to be 
here today to discuss our work on Federal advisory committees.
    Federal advisory committees have been called the fifth arm 
of Government because of the significant role they play in 
shaping public policy by providing advice to Federal agencies, 
the Congress, and the President on a wide array of issues such 
as stem cell research, drinking water standards, space 
exploration, food safety, and Federal land management, to name 
just a few.
    In fiscal year 2007, 52 agencies sponsored 915 active 
Federal advisory committees, with a total of about 65,000 
members. Because of this role, it is essential that membership 
be and, just as importantly, be perceived as being free from 
conflict of interest and balanced as a whole.
    My testimony today will focus on the key findings and 
conclusions from our 2004 report, the recommendations we made 
in that report to the General Services Administration and the 
Office of Government Ethics and their responses, and potential 
changes to the Federal Advisory Committee Act to better ensure 
the independence and balance of the committees.
    In 2004 we concluded that additional Government-wide 
guidance could help agencies better ensure the independence of 
Federal advisory committee members and the balance of the 
Federal advisory committees. Specifically, we found OGE 
guidance on the appropriate use of representative or special 
Government employee appointments had shortcomings and did not 
adequately ensure that agencies appoint individuals selected to 
provide advice on behalf of the Government as special 
Government employees subject to conflict of interest 
regulations.
    Some agencies were inappropriately appointing most or all 
members as representatives, expected to reflect the views of a 
recognizable entity or group, even when the agencies called 
upon their members to provide advice on behalf of the 
Government.
    In addition, GSA guidance to Federal agencies did not 
address what types of information could be helpful in assessing 
the points of view of potential committee members, nor did 
agency procedures identify what information should be collected 
about potential Members to make decisions about committee 
balance.
    We made 12 recommendations to GSA and OGE to provide 
additional guidance to Federal agencies under three broad 
categories: the appropriate use of representative appointments; 
information that could help ensure committees are, in fact and 
perception, balanced; and practices that could better ensure 
the independence and balanced committees and increase 
transparency in the Federal advisory process.
    GSA and OGE implemented our recommendations to clarify the 
use of representative appointments; however, GSA has not fully 
implemented other recommendations, including those relating to 
committee balance and measures that would promote greater 
transparency, in part because of limitations in its authority 
to require agencies to comply with its guidance.
    In light of the responses to our recommendations and our 
limited review of current appointments that indicate some 
possible continued misuse of representative appointments, the 
subcommittee may want to consider amendments incorporating the 
substance of our 2004 recommendations that could help prevent 
the misuse of representative appointments and better ensure the 
independence of committee members by ensuring that the type of 
advice committee members are asking to provide is the primary 
consideration in determining whether they should be appointed 
as special government employees or as representatives.
    Special Government employee appointments are made when 
committee members are asked to provide independent advice on 
behalf of the Government. Appointments as representatives are 
limited to the more exceptional circumstances in which members 
are speaking as stakeholders for entities or the groups they 
represent. Individuals may not be appointed as representatives 
to represent classes of expertise. The use of the term 
representative in statutes and charters does not necessarily 
direct that members be appointed as representatives. Agencies 
ask perspective representative members whether they know of any 
reason their participation might be reasonably questioned, and 
agencies provide representative members with ethics training.
    To better achieve balance, the statute could identify the 
types of information agencies should consider in assessing 
prospective committee members' points of views, such as public 
statements or positions on the matter being reviewed or work 
for affected entities.
    To enhance transparency, the statute could be amended to 
require agencies to identify the processes used to formulate 
committees, state in member appointment letters whether the 
individuals are special Government employees or 
representatives, and state in committee products the nature of 
advice provided.
    Such legislation could provide greater assurance that 
committees are and are perceived as being balanced and 
independent.
    Mr. Chairman, this concludes my prepared statement. I would 
be happy to respond to any questions that you may have.
    [The prepared statement of Ms. Nazzaro follows:]

    [GRAPHIC] [TIFF OMITTED] T4910.004
    
    [GRAPHIC] [TIFF OMITTED] T4910.005
    
    [GRAPHIC] [TIFF OMITTED] T4910.006
    
    [GRAPHIC] [TIFF OMITTED] T4910.007
    
    [GRAPHIC] [TIFF OMITTED] T4910.008
    
    [GRAPHIC] [TIFF OMITTED] T4910.009
    
    [GRAPHIC] [TIFF OMITTED] T4910.010
    
    [GRAPHIC] [TIFF OMITTED] T4910.011
    
    [GRAPHIC] [TIFF OMITTED] T4910.012
    
    [GRAPHIC] [TIFF OMITTED] T4910.013
    
    [GRAPHIC] [TIFF OMITTED] T4910.014
    
    [GRAPHIC] [TIFF OMITTED] T4910.015
    
    [GRAPHIC] [TIFF OMITTED] T4910.016
    
    [GRAPHIC] [TIFF OMITTED] T4910.017
    
    [GRAPHIC] [TIFF OMITTED] T4910.018
    
    [GRAPHIC] [TIFF OMITTED] T4910.019
    
    [GRAPHIC] [TIFF OMITTED] T4910.020
    
    [GRAPHIC] [TIFF OMITTED] T4910.021
    
    Mr. Clay. Thank you very much.
    Mr. Flaak, you may proceed.

                   STATEMENT OF ROBERT FLAAK

    Mr. Flaak. Mr. Chairman, thank you for inviting me to speak 
today on GSA's implementation of the Federal Advisory Committee 
Act. My full testimony incorporates our comments and how we 
handled the recommendations from the GAO, and I want to address 
those in my oral statement.
    What I would like to do is characterize how the GSA's 
Committee Management Secretariat manages its program and the 
kind of work that we do in terms of providing compliance and 
oversight of the Federal advisory committee program.
    First of all, we are responsible for issuing administrative 
guidelines on FACA, the FACA rule that provides framework for 
Government-wide oversight and helps departments and agencies 
manage their FACA operations. Agencies, through their committee 
management officers and their designated Federal officials who 
actually run the committees, have joined responsibility for 
implementing the act and for issuing additional guidelines that 
are needed to address the unique requirements of that 
particular agency.
    In order to provide agencies with the tools necessary for 
successful oversight and management of their advisory committee 
program, the Secretariat has developed a compliance and 
oversight program that uses a combination of shared management 
approaches, Web-based tools, inter-agency coordination, 
training, and the application of best practice guidelines, and 
we do this because, as Robin mentioned a moment ago, there are 
some limits on the authority that we have, so, rather than use 
authority we don't have, we find other ways that are effective 
in managing this program.
    Now let me point out what some of these are. As required by 
section 7(c) of the act we prepare the FACA rule, which is 41 
CFR 102-3. This provides agencies with detailed guidance on the 
implementation of FACA. The guidance in this rule comes from 
the language in FACA and from case law. GSA prepares the Web-
based Cases Law Digest, a compendium of FACA case law that was 
developed by interagency work group. They provide citations and 
summaries of relevant FACA case law, as well as Comptroller 
General decisions and Office of Legal Counsel opinions. It has 
information up through 2003, and we are presently in the 
process of updating that up through 2008.
    Secretariat staff members that work for me directly serve 
as GSA FACA desk officers. Each of our desk officers has a 
coordinating responsibility for advisory committee 
appointments, renewals, and terminations, FACA policy 
interpretation with the Federal agencies, and best practice 
guidance with a dozen or more individual agencies, and they do 
this through the committee management officers.
    The Secretariat has designed a Web-based shared management 
system, which has also been known as our FACA data base, to 
manage and compile meeting, membership, charter, costs, and 
other information and operational data on all Federal advisory 
committees. These are available on our Web site and are used in 
our annual comprehensive review of Federal advisory committees.
    The Secretariat has also incorporated performance measures 
in our shared management system for all agencies to provide 
information on their advisory committees and to examine 
committee outcomes, such as the number of recommendations 
accepted by an agency or the estimated value of the advice that 
has been impacted by that advisory committee or even across the 
agency. They are Government-wide and agency-wide roll-ups of 
this data.
    The Secretariat periodically administers an advisory 
committee engagement survey, which we originally designed with 
the Gallup Corp., to advisory committee members, staff, and 
decisionmakers, and the intent of this is to measure the extent 
to which sponsoring agencies address factors that are critical 
to the success of their advisory committees.
    The GSA chairs the 60-member Interagency Advisory Committee 
on FACA. It brings all the CMOs together quarterly to discuss 
FACA policy, best practices, training, and compliance issues. 
The Inter-Agency Committee does host a number of individual 
task forces and work groups that deal with a variety of issues, 
from developing Presidential transition packages for FACA 
programs and the coming transition issues, refining the 
questionnaire that we ask on performance measures, improving 
training, updating the case law digest, developing guidance 
updates, working on our shared management system, and so on.
    Last, but certainly not least, the Secretariat has 
conducted a FACA training program since 1989 which includes a 
formal introductory FACA training course that is taught about 
five to six times a year here in the Washington area for 
approximately 300 Federal employees each year.
    The course is taught by an inter-agency team of subject 
matter experts from GSA, EPA, DOD, Office of Government Ethics, 
National Archives and Records Administration, and the public to 
provide the students with an oversight of what they are 
expected to do.
    The course includes information on FACA history, laws 
related to FACA, legal and ethical issues, recordkeeping, 
committee operations, membership processes, and so on.
    Also more recently we conducted a 1-day committee 
management officer training seminar this past September 
attended by just about all the CMOs. Again, we held a FACA 
training conference in December, which was attended by over 200 
people and had approximately 35 speakers.
    Mr. Chairman, the Secretariat has had a proactive 
compliance and oversight program, and I am justifiably proud of 
the significant results--results that we have been able to 
accomplish with a staff of only five dedicated professionals.
    As noted in my full testimony, GSA and OGE have taken 
appropriate actions, as we deem appropriate to respond to the 
recommendations by GAO, and with regard to amending the FACA, 
specifically GSA would not generally support amendments that 
unnecessarily limit the discretion of the executive branch or 
the case-by-case flexibility needed for each agency and each of 
the Federal advisory committees to support critical mission 
requirements.
    I am aware that you are proposing amendments to the FACA 
that we have seen an early version of, and we look forward to 
working with you to ensure that Federal agencies receive 
appropriate statutory, regulatory, and best practices guidance 
and support in the management of their program.
    Mr. Chairman, this concludes my prepared statement. I would 
be happy to answer any questions.
    [The prepared statement of Mr. Flaak follows:]

    [GRAPHIC] [TIFF OMITTED] T4910.022
    
    [GRAPHIC] [TIFF OMITTED] T4910.023
    
    [GRAPHIC] [TIFF OMITTED] T4910.024
    
    [GRAPHIC] [TIFF OMITTED] T4910.025
    
    [GRAPHIC] [TIFF OMITTED] T4910.026
    
    [GRAPHIC] [TIFF OMITTED] T4910.027
    
    [GRAPHIC] [TIFF OMITTED] T4910.028
    
    [GRAPHIC] [TIFF OMITTED] T4910.029
    
    [GRAPHIC] [TIFF OMITTED] T4910.030
    
    [GRAPHIC] [TIFF OMITTED] T4910.031
    
    [GRAPHIC] [TIFF OMITTED] T4910.032
    
    [GRAPHIC] [TIFF OMITTED] T4910.033
    
    [GRAPHIC] [TIFF OMITTED] T4910.034
    
    [GRAPHIC] [TIFF OMITTED] T4910.035
    
    [GRAPHIC] [TIFF OMITTED] T4910.036
    
    Mr. Clay. Thank you very much, Mr. Flaak.
    We will go to Mr. Wilson now. You may proceed for 5 
minutes.

                   STATEMENT OF FRANK WILSON

    Mr. Wilson. Thank you for the opportunity to address this 
committee about potential improvements to the Federal Advisory 
Committee Act of 1972.
    By way of introduction, August 2006 most of the Secretary 
of Defense's statutory and regulatory authorities involving 
Federal advisory committees were delegated to Mr. Michael B. 
Donley, Director for Administration and Management, Office of 
the Secretary of Defense. As the major policy decisionmaker, 
Mr. Donley consulted with the Secretary and Deputy Secretary of 
Defense on key FACA-related issues.
    As the Department's Committee Management Officer, I work 
closely with the GSA's Committee Management Secretariat, Mr. 
Bob Flaak, who I join with today to testify before the 
committee.
    With the assistance of Mr. Jim Freeman, Deputy Committee 
Management Officer, we handle the day-to-day policy oversight 
and program issues for Mr. Donley. As I offer our thoughts on 
potential improvements to the Federal Advisory Committee Act, 
it is important to know that my deputy and I bring both policy 
and operational perspectives to this task.
    In addition to my CMO role in help to set and oversee 
committee management policy in the Department of Defense, my 
secondary role is to provide logistical support to various DOD-
supported Federal advisory committees supported by the 
Washington Headquarters Services.
    With the combined experience base of 11 years, my deputy 
and I act as program managers, operationally establishing, 
supporting, and terminating numerous Federal advisory 
committees. Our work includes a broad spectrum of support, 
including budget development, facility management, information 
technology, human resources, financial management, event 
management, supplies, and contract support--everything needed 
to operationally establish or terminate a Federal advisory 
committee.
    With the able support of a skillful staff, we have 
successfully stood up key committees in a short period of time, 
the most recent of which was the President's Commission on Care 
for America's Returning Wounded Warriors. We were fortunate 
enough to have this committee up and running in 7 short working 
days.
    Mr. Chairman, based upon our unique perspective and 
experience, I would like to offer six recommendations for 
modification to the act for your consideration.
    Committee member appointments and renewals--DOD and Office 
of Personnel Management discussions concerning expert or 
consultant appointment authority in 5 CFR 304.103 are ongoing. 
Currently, the Department of Defense reviews over 1,200 
committee members on an annual basis, which is a heavy 
administrative burden.
    Delineation of chairperson authorities and 
responsibilities--there is little discussion of the 
chairperson's authorities and responsibilities in the act and 
its implementing Federal regulations. This lack of 
clarification in our opinion sometimes creates a misconception 
that the committee lacks independence. We believe the act 
should clarify that the chairperson, as head of the committee, 
is responsible for ensuring that the committee operates 
consistent with existing statutes, Federal regulations, and 
agency guidelines.
    Acquisition of leased Federal advisory committees--
acquiring leased Federal advisory committees in a timely manner 
is always a major stumbling block when standing up Federal 
advisory committees, especially those lasting only 45 or 60 or 
perhaps 90 days, and large committees like the Commission on 
the National Guard and Reserves or the Base Reduction and 
Closure Commission. From an agency perspective, it would be 
easier to stand up a committee if GSA had the authority in 
limited circumstances to waive the competition requirement for 
leased Federal advisory committee acquisition under Title 40 of 
the United States Code.
    Tracking of recommendations and outcomes--we have seen in 
the last year alone an increased significance in the role 
Federal advisory committees have in examining and making 
recommendations on subjects of great interest to the public. 
From our perspective, the act currently details information 
about every aspect of Federal advisory committee work, with the 
exception of what may be the most important by-product, 
recommendations and outcomes. The outcomes are the final phase 
of the committee life cycle, and, like the committee's 
deliberative process, of paramount concern to your 
constituents. To this end we recommend that the act require a 
transparent mechanism for tracking and reporting the status of 
final recommendations and outcomes.
    Addressing technological advancements--it has been our 
experience that the creative nature of some committees makes it 
increasingly challenging for the Department of Defense to walk 
that fine line between management oversight and ensuring that 
we do not unduly influence the committee's work. We recognize 
that we live in a technological age not envisioned when the 
legislation was originally enacted. We recommend this 
subcommittee explore the opportunities and the restraints that 
new technology creates for committees and agencies, keeping in 
mind the act's underlying principles. For example, video 
teleconferencing offers an opportunity to facilitate committee 
meetings, but at what expense to public participation or agency 
security requirements?
    Scheduled review of legislation--there is currently no 
regular schedule for review of the act and consideration of the 
changing environments in which committees must operate. For 
this reason, we recommend the act require a mandatory review of 
the legislation every 10 years. A set of evaluation criteria 
should be created to conduct this schedule assessment in order 
to provide a baseline for discussions at each successive 
review.
    Finally, Mr. Chairman, we hope these recommendations will 
be of value to you as you consider modifications to the act. 
Ultimately, we recognize that when we look for ways to leverage 
technology, communicate more successfully with each other and 
the public, the results are committees that can work within the 
scope of a FAC legislation and are actively engaged in the 
level and quality of work needed by the Department.
    This concludes my prepared statement. I appreciate the 
opportunity to share with you our perspectives and experience, 
and I would be pleased to answer any questions that you may 
have.
    [The prepared statement of Mr. Wilson follows:]

    [GRAPHIC] [TIFF OMITTED] T4910.037
    
    [GRAPHIC] [TIFF OMITTED] T4910.038
    
    [GRAPHIC] [TIFF OMITTED] T4910.039
    
    [GRAPHIC] [TIFF OMITTED] T4910.040
    
    [GRAPHIC] [TIFF OMITTED] T4910.041
    
    Mr. Clay. Thank you so much, Mr. Wilson.
    Mr. Shapiro, you may proceed.

                 STATEMENT OF SIDNEY A. SHAPIRO

    Mr. Shapiro. Mr. Chairman, thank you for the invitation to 
testify.
    The public's confidence in and respect for our Government 
is directly influenced by the transparency and sunshine 
provisions that good Government laws like FACA can provide. 
Congressional action is required to rectify three problems with 
the current operation of FACA. Legislation is necessary to 
close the loopholes in FACA's coverage, promote better 
transparency in the advisory committee process, and improve the 
screening process for conflicts of interest.
    Congress should take these actions before we witness more 
stories of secret, biased, or unaccountable advisory committees 
influencing the scope and nature of Government policies and 
recommendations.
    The courts have created four loopholes that make it 
relatively easy for agencies to avoid FACA if they wish.
    Under the contractor loophole, agencies can avoid the 
statute by hiring private contractors to organize and operate 
an advisory committee.
    Under the strict management loophole, agencies can avoid 
FACA by letting a regulated entity appoint the committee 
members and share joint control of the agenda.
    Under the subcommittee loophole, an advisory committee can 
avoid the transparency and balance requirements of the statute 
by creating subcommittees to do the real work of the committee.
    Finally, under the non-voting participant loophole, 
outsiders can take an active role in Government committees 
without the committee becoming subject to the statute, as long 
as the private parties do not vote in committee deliberations.
    The proposed legislation would close these loopholes.
    Concerning the non-voting participant loophole, Congress 
should clarify the participation of private individuals in 
Government committees triggers the application of the act, even 
if the individual does not have a vote.
    The existence of agency Web sites makes it possible to take 
advantage of public oversight and participation in the 
administration of FACA. Relevant information about the advisory 
committee process should be posted on these Web sites. In 
addition, Congress should require agencies to invite public 
comment on potential committee members and provide the 
information necessary to make these comments meaningful.
    If enacted, the proposed legislation would meet only the 
first of these goals. I would suggest, however, that public 
comment on proposed nominees, which is not included in the most 
current draft of the legislation, be added. Such public comment 
is the only practical way to police the balance and conflict of 
interest provisions of the statute.
    Finally, FACA instructs agency officials to ensure the 
committees will not be inappropriately influenced by any 
special interests. Four problems have developed in implementing 
this directive.
    First, as we heard a moment ago, agencies avoid conflict of 
interest rules by appointing committee members as 
representatives in situations where the public would be better 
served by making committee members special Government employees 
subject to the Government's conflict of interest rules.
    Second, although Federal law permits waiver of financial 
conflict of interest in certain circumstances for committee 
members, Congress should police the misuse of such waivers.
    Third, there is no legal requirement that agencies give 
prompt public notice of waivers of conflicts of interest and 
permit public objection before they occur.
    The final problem is that each agency has its own criteria 
for determining when potential committee members have a 
conflict of interest.
    The proposed legislation responds to these concerns by 
requiring the administrator of GSA to promulgate conflict of 
interest regulations. Congress, however, should give specific 
directions to the administrator. The regulations should require 
that agencies justify the use of representatives on an advisory 
committee, establish presumptive limitations on the number of 
conflict of interest waivers available per committee, and adopt 
a definition of conflict of interest that is designed to cover 
all interests that could potentially affect a committee 
member's objectivity in reviewing the issues before the 
committee.
    In addition, Congress should require public comment on 
potential waivers of conflict of interest rules.
    Thank you for the opportunity to testify.
    [The prepared statement of Mr. Shapiro follows:]

    [GRAPHIC] [TIFF OMITTED] T4910.042
    
    [GRAPHIC] [TIFF OMITTED] T4910.043
    
    [GRAPHIC] [TIFF OMITTED] T4910.044
    
    [GRAPHIC] [TIFF OMITTED] T4910.045
    
    [GRAPHIC] [TIFF OMITTED] T4910.046
    
    [GRAPHIC] [TIFF OMITTED] T4910.047
    
    [GRAPHIC] [TIFF OMITTED] T4910.048
    
    [GRAPHIC] [TIFF OMITTED] T4910.049
    
    [GRAPHIC] [TIFF OMITTED] T4910.050
    
    [GRAPHIC] [TIFF OMITTED] T4910.051
    
    Mr. Clay. Thank you so much, Mr. Shapiro.
    We will start the questioning phase of the hearing, and I 
will start with Mr. Flaak.
    Mr. Flaak, one of the ways agencies avoid complying with 
the disclosure and open meeting requirements is by setting up 
subcommittees or task forces that are not required to comply 
with FACA. In 2001, GSA updated its regulations on FACA. 
Previous regulations required subcommittees of advisory 
committees to comply with FACA's disclosure requirements.
    GSA changed this regulation and now says that if a 
subcommittee reports to a parent committee the subcommittee 
does not have to comply with FACA. It seems that this is a 
loophole that allows agencies to avoid FACA by setting up 
subcommittees to hold meetings and conduct the business of the 
meeting without any sunshine, without any transparency.
    Do you think there is any real problem with requiring 
subcommittees to comply with FACA?
    Mr. Flaak. The reason, Mr. Chairman, that the GSA 
regulations were changed in 2001 to reflect that subcommittees 
were not subject to the act was, as explained in the prologue 
to that regulation or to that rule, the work group that 
developed this particular update to the rule included 
representation from the Department of Justice. In the 
discussions during the development of this document it was 
determined that, because the recent court cases that had taken 
place--Anti Hunger Coalition v. the Executive Committee is a 
good example of this--that the subcommittee situation, if a 
subcommittee is subject to all of the requirements of FACA the 
same way a full committee would be, then it would be subject to 
all of the open meeting requirements. In the case of a 
subcommittee, it is not subject to the chartering requirement 
because it does not report directly to an agency.
    Because of that, if a subcommittee is not subject to at 
least one of those requirements under FACA that they be 
chartered, it shouldn't be subject to any of the requirements 
under FACA.
    Now, for agencies that have an active program where they 
are using subcommittees and using them appropriately and not 
letting the parent committee do the rubber stamp, which is the 
biggest concern, I think, those programs are pretty effective.
    It is hard for us to manage or to be aware of how agencies 
use subcommittees, because we don't get reporting on those 
unless they advise us. In our part of the chartering process, 
when an advisory committee is chartered and we concur in that 
charter and we review that charter on behalf of the agency, if 
there are subcommittees to be formed by that group we would 
become aware of it at that time, or if they enter that 
information into our shared management system.
    So there are opportunities for mischief, certainly.
    Mr. Clay. So we need to correct that. We need to eliminate 
these gaping loopholes that allow for subverting U.S. law, 
allow for concealing information. I mean, what are we talking 
about here? These are advisory committees.
    Mr. Flaak. Yes.
    Mr. Clay. They don't set policy. These are advisory 
committees. They are advising agencies and departments. All of 
this secretive conducting of business, that is not what our 
Government is about. That is not how we operate as Government.
    Let me ask you some more questions.
    GAO recommended in its report that GSA be given stronger 
enforcement authority in statute in order to improve compliance 
by agency. During your audits of agencies, has GAS encountered 
cases where agencies do not comply because there was GSA lax 
enforcement authority? Can you give us some examples?
    Mr. Flaak. Well, certainly we have no enforcement authority 
to begin with. When we work with agencies across the 
Government--and we work primarily with the committee management 
officer--and we identify what those committees are doing, if 
there is anything that they are doing that we would view as 
being inappropriate or in contravention to what FACA requires 
as it is presently written, we notify them of that and we put 
it in writing.
    We have no enforcement group. We have no compliance group. 
I have five members of my staff who manage this whole program. 
So other than providing advice and guidance to the agencies, 
that is pretty much the extent of what we are able to do.
    Mr. Clay. Have you ever seen a case that involves a 
situation where GSA informed an agency that an individual 
should have been appointed as a representative, as opposed to a 
special Government employee?
    Mr. Flaak. We have had instances when we reviewed charters 
for advisory committees and the charter language that we are 
looking at indicates that the individuals who serve on that 
group will be experts, and then later in that same charter says 
they will be appointed as representative members.
    Mr. Clay. OK. FACA----
    Mr. Flaak. That would suggest that there is a problem here, 
because any time I see the term expert on a charter I assume 
they are talking a special Government employee, which is 
usually the case.
    Mr. Clay. FACA requires that Federal advisory committee 
meetings be open to the public. The law provides for closed 
meetings in cases where the President or agency head determines 
that classified or proprietary information will be discussed. 
What is the total amount of meetings advisory committees held 
in fiscal year 2008?
    Mr. Flaak. In 2008 the data is still pretty raw because it 
only comes in to us as agencies submit it to us. The number is 
on our system. I don't have that data with me today. For 2007, 
though, the number was approximately 7,000 meetings.
    Mr. Clay. OK. And of those 7,000 meetings held, what 
percentage of meetings was closed?
    Mr. Flaak. Well, I can give you the exact number, actually.
    Mr. Clay. OK. We have time.
    Mr. Flaak. Agencies held 6,938 meetings in 2007. Of those, 
290 were partially closed and 4,541 were closed; 2,100 were 
open.
    Mr. Clay. Repeat it again. Just repeat those figures for 
me.
    Mr. Flaak. Absolutely. Total number of meetings, 6,938; 
total partially closed--that means part of the meeting was also 
open--290; totally closed, 4,541; totally open, 2,107.
    Mr. Clay. OK. The numbers you gave us, that is more than 
half of the meetings. I mean, are we operating in secret now? 
Is Government operating in secret?
    Mr. Flaak. Let me explain why some of those numbers show up 
that way. The preponderance of those closed meetings are with 
three agencies. They are with the National Science Foundation, 
with the Department of Defense, and with the Health and Human 
Services Department. Those are meetings that are held in large 
part because of grant reviews, or, in the case of the Defense 
Department, for classified information.
    Mr. Clay. Which agency has the highest percentage of closed 
meetings?
    Mr. Flaak. The highest percentage I would suspect is HHS I 
think is first.
    Mr. Clay. Well, other than HHS. Other than HHS, who----
    Mr. Flaak. NSF, National Science Foundation.
    Mr. Clay. I see. FACA requires that committees publish a 
summary of closed meetings.
    Mr. Flaak. Yes.
    Mr. Clay. Does GSA audit agencies to determine if agencies 
are complying with this regulation? If not, why? And if so, 
what are the findings of the audits?
    Mr. Flaak. The information on closed meeting reports is 
submitted by the agency to the Library of Congress every year. 
It is not submitted to GSA.
    Mr. Clay. They are not. I see. OK. So it goes to the 
Library and you don't ever see it?
    Mr. Flaak. We don't see those. No.
    Mr. Clay. I see. Are summaries posted in a timely manner, 
or do you have any information on that?
    Mr. Flaak. We have the information that they post on our 
data base as to when they do have closed meeting information. 
That is included in the reports that those agencies submit on 
our data base regarding their meetings for the year. That is 
how we have these numbers.
    Mr. Clay. I am going to digest some of this information I 
have just heard and let my colleague from New Hampshire have 
his 5 minutes.
    Mr. Hodes.
    Mr. Hodes. Thank you, Mr. Chairman. Thanks for holding this 
hearing. I thank the panelists for appearing at really what is 
a very important hearing. I am a relatively new Member of 
Congress, and came, I must admit, with a bias toward sunshine 
and transparency in Government. One of the major points of 
interest out in the general public when I was a member of the 
general public was Vice President Cheney's Energy Task Force 
and the way it was conducted, the results, and whether or not 
any of the information about who participated and how things 
went could be digested by the public in whose interest, 
theoretically, the task force was meeting.
    There is a perception that, while the administration 
claimed the task force was made up of only Federal employees, 
energy industry executives, and other outside groups 
participated in that task force.
    I wanted to explore for a moment some of the judicial 
action around the events.
    The D.C. Circuit Court of Appeals found that, because only 
Federal employees had a power to vote, the task force was not 
subject to the requirements of FACA. Now, that was interesting 
in light of an earlier decision in 1993 when the D.C. Circuit 
Court held, in a decision on President Clinton's Task Force on 
National Health Care Reform, ``A consultant may still be 
properly described as a member of an advisory committee if he 
is involved in a role functionally indistinguishable from those 
of the other members. If a consultant regularly attends and 
fully participates in working group meetings as if he were a 
member, he should be regarded as a member.''
    Professor Shapiro, this seems to go to what you discussed 
in your written testimony in the ``non-voting participant 
loophole'' in which a change was made from recognizing the 
status of a de facto member but now imposing a new requirement 
for arguably--well, I guess I would ask can you tell us why the 
court reversed itself that way?
    Mr. Shapiro. Well, it got a strong push from the Supreme 
Court. In between the decisions of the D.C. Circuit, the 
attempt by the plaintiffs to obtain discovery was appealed to 
the Supreme Court, and the Court, without deciding as such, did 
ruminate that requiring the President to make disclosures that 
the President might not want to make could be a violation of 
his Executive Privilege. Then they sent it back to the D.C. 
Circuit.
    Unfortunately, what the D.C. Circuit did is make a decision 
for all time, when they should have limited that particular 
case to a Presidential advisory committee and tackled the 
problem that way.
    So in order to avoid the constitutional problem, the D.C. 
Circuit created this loophole for non-voting participants, 
which made the act inapplicable to the Cheney Committee, and 
task force seemingly avoided the constitutional problem.
    Unfortunately, that same loophole now applies across the 
Government to committees that have nothing to do with the 
President.
    Mr. Hodes. So we had an interlocutory decision without a 
holding from the Supreme Court on a narrow area which could 
have been confined to Presidential committees; instead, the 
D.C. Circuit decided in its wisdom that it should be 
universally applicable and we have a gaping loophole in 
transparency.
    Mr. Shapiro. Yes, sir.
    Mr. Hodes. So that means, if I am understanding you, that 
an agency could avoid FACA by technically only giving Federal 
employees the ability to vote on a committee, but at the same 
time inviting outside parties to participate as fully as any 
other members in the deliberations of the committee?
    Mr. Shapiro. It would seem so.
    Mr. Hodes. Have you reviewed or thought about the draft 
legislation, draft amendments to FACA that are under 
consideration? And do you believe that, as drafted, the 
language is clear enough so that we would avoid any further 
misinterpretation by the courts and also avoid constitutional 
challenges of the kind that occurred previously?
    Mr. Shapiro. The language in the draft which I saw this 
morning does go at this, but I think it would be advisable to 
take it on at the exact point that the D.C. Circuit left it and 
make explicit language that just because someone doesn't vote 
doesn't necessarily excuse this committee from falling under 
FACA, since that is what they tied it to. The language now 
talks about if someone participates, a private party, 
participates to the same extent, for all extending purposes, as 
Government employees, then the committee would be subject to 
FACA. And that language might be fine as far as it goes, but 
why not go just a little bit further and include the voting 
language, just to make sure that the courts don't misinterpret 
that Congress, information act, is overruling the D.C. Circuit 
opinion.
    Mr. Hodes. I understand that you have seen the language 
this morning and haven't had a lot of time to digest it. In 
your written testimony you mentioned some other loopholes--the 
contractor loophole, the strict management loophole, the one we 
just talked about, the subcommittee loophole. Let me talk for a 
minute, I think, about the subcommittee loophole.
    You mentioned that the D.C. Circuit Court's decision in 
National Anti-Hunger Coalition, FACA does not apply to task 
forces unless the parent committee is merely ``rubber 
stamping'' the task force's recommendations. Reading the 
language of FACA, it says 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 that is established under statute or 
established or utilized by the President or an agency. Do you 
think FACA was intended to exempt subcommittees and task 
forces?
    Mr. Shapiro. No.
    Mr. Hodes. Do you think that the language as drafted 
currently, that you read this morning and haven't had a great 
time to address, sufficiently addresses clarifying what needs 
to be clarified to clean this part of things up?
    Mr. Shapiro. Yes, I don't. I think the act now picks up 
subcommittees. As we heard from Mr. Flaak, it might be 
necessary to make some fine tuning when we apply it to 
subcommittees. You wouldn't want to separately charter, for 
example, subcommittees and the committee, itself, so some 
thought will have to go into what is the effect of extending 
the act to subcommittees, and it may be certain technical parts 
of FACA would be inapplicable to the subcommittee.
    But with that adjustment, I think the proposed bill is 
reaching out appropriately to include subcommittees.
    Mr. Hodes. Just finally, I saw that my red light was 
flashing. I don't want to overstay my welcome. To the extent 
that you have thoughts on the other two loopholes and the 
clarity of language that we are thinking about, I would be 
happy to have your thoughts submitted in writing to the 
committee.
    Mr. Shapiro. Thank you, sir.
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T4910.052
    
    [GRAPHIC] [TIFF OMITTED] T4910.053
    
    [GRAPHIC] [TIFF OMITTED] T4910.054
    
    [GRAPHIC] [TIFF OMITTED] T4910.055
    
    [GRAPHIC] [TIFF OMITTED] T4910.056
    
    [GRAPHIC] [TIFF OMITTED] T4910.057
    
    [GRAPHIC] [TIFF OMITTED] T4910.058
    
    [GRAPHIC] [TIFF OMITTED] T4910.059
    
    [GRAPHIC] [TIFF OMITTED] T4910.060
    
    [GRAPHIC] [TIFF OMITTED] T4910.061
    
    [GRAPHIC] [TIFF OMITTED] T4910.062
    
    [GRAPHIC] [TIFF OMITTED] T4910.063
    
    Mr. Hodes. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Clay. Thank you, Mr. Hodes.
    Ms. Nazzaro, GAO's 2004 report entitled, ``Federal Advisory 
Committees: Additional Guidance Could Help Agencies Better 
Ensure Independence and Balance,'' states, ``To be effective, 
advisory committees must be and, just as importantly, be 
perceived as being independent and balanced.'' In your 
professional opinion, why is it important that Federal advisory 
committees be perceived as being independent, and how does it 
impact a committee's operation when the public does not 
perceive it as being independent?
    Ms. Nazzaro. I think at this point it is hard to determine 
what exactly has caused all the consternation with these 
advisory committees, but there does seem to be the issue over 
the perception that because there is not adequate transparency 
in the committee process and the makeup of the committees, how 
these committees are formulated and the roles that the 
individuals play, there certainly is this perception that the 
Government is doing something, as you referred to earlier, in a 
secretive fashion.
    So we certainly believe that not only should these 
committees be made up of independent members and the 
committee's themselves be balanced, but there has to be that 
transparency aspect to assure the general public agrees and 
does not have a problem with the findings, and then the 
ultimate actions that either the agency or Congress or the 
President may take as a result of this input.
    Mr. Clay. GAO was asked to examine the extent to which 
existing guidance and policies and procedures for evaluating 
committee members for conflicts of interest and parts of you 
ensure independent members and balanced committees. In your 
opinion, do agencies have in place the systems required to 
effectively screen potential committee members for conflict of 
interest?
    Ms. Nazzaro. I would say that goes back to one of our 
primary concerns with the whole process, and that is the 
concern over the appropriate use of representative 
appointments, because representative appointments do not get 
the same kind of conflict of interest screening that the SGE 
appointments get, and even in the limited analysis that we did 
to followup on our recommendations this year, we still continue 
to see what we think is inappropriate use of those 
appointments, whether they should be representative or they 
should be SGE.
    For example, we saw a number of committees, including the 
National Organic Standards Board, the Grain Inspection Advisory 
Committee, the Fruit and Vegetable Industry Advisory 
Committee--these committees, when they clarified why the 
individuals were representatives rather than SGE, they 
identified that they were representing the advisory committee, 
itself, strongly suggesting that the SGE appointments would 
have been more appropriate.
    Mr. Clay. Can you tell the subcommittee some of the 
affirmative steps agencies took to incorporate GAO's 
recommendations into their policy and procedures for Federal 
advisory committees?
    Ms. Nazzaro. Both GSA and the Office of Government Ethics 
did take a number of steps or actions to address our 
recommendations, including additional training, improving the 
quality of the training that they provide to the committees, 
and the advice. They have also, particularly in the case of 
GSA, done a lot to improve the data base, the FACA data base, 
if you will, which provides a lot more information to the 
general public on the makeup of these committees. But our 
concern is that, despite the guidance that these agencies have 
provided, the agencies in some cases seem to be able to just 
ignore that guidance because it does not have the statute 
behind it that would force the compliance.
    Mr. Clay. Sure. I can imagine that can be disheartening for 
someone in your position that makes the recommendation and then 
at least implies that they should follow the spirit of the law.
    Thank you for your response.
    Mr. Shapiro, an earlier draft of the bill I introduced 
today included language requiring each agency to provide an 
opportunity for the public to comment on the members the agency 
plans to appoint to an advisory committee, and we heard some 
concerns that this requirement could be embarrassing to 
potential advisory committee members if negative comments are 
submitted, and that the fear of that happening could discourage 
potential committee members from serving, especially if the 
comments could be made publicly available.
    Given these concerns, we did not include this language in 
the bill as introduced, but I am interested in getting feedback 
on this proposal, as it could be added later as an amendment if 
it is worth pursuing.
    Do any of you on this panel have a view on whether it would 
be useful to provide notice and comment on appointments, and, 
if so, would that information be kept confidential or would it 
be publicly available under FACA? I will let you start, Mr. 
Shapiro, and then we will go to Wilson and back down the line.
    Mr. Shapiro. Thank you, Mr. Chairman.
    There is somewhat of a track record on this, since the 
National Academy of Sciences is required by the legislation to 
announce in advance committee members. Now, it is not quite the 
same because there isn't a public comment period, but the 
National Academy certainly hears from people if they feel 
somehow that a committee appointment is inappropriate, and I 
think that was worked very well over there, and anyway we could 
find out by asking them. So there is some evidence that this 
could work.
    Second, as to whether it could be personally embarrassing 
to a person, I suppose that is always possible. The public 
could file any kind of comment. But the comments really go only 
to two things, neither of which should be personally 
embarrassing to anyone.
    First, the comments would go to the agency about the 
balance of the committee, so the point here is if the committee 
is imbalanced because it doesn't represent a full spectrum of 
views, then I would expect the public to comment as such. This 
is no fault of anyone who is being considered for a committee; 
it is the fault of the agency for not balancing the committee, 
so no one should take umbrage at that.
    And then, finally, as for the conflict of interest, again 
one of the issues is whether the agency is inappropriately 
using representatives where it should use special Government 
officials. We could have public comment on that. Again, I don't 
see why that is embarrassing to the individual, except they are 
caught up in something not of their doing, so that is 
relatively neutral.
    And then, finally, I suppose the most possibly embarrassing 
thing is conflict of interest, itself, but the statutes are 
clear and you are not supposed to be on an advisory committee 
if you have conflict of interest. You do have to disclose the 
data about your conflict. That is public information.
    So once again I am not quite sure that a public comment on 
that kind of information ought to discourage people, because 
they are presently presenting conflict of interest information.
    Mr. Clay. I look forward to working with you on that 
provision.
    Mr. Wilson.
    Mr. Wilson. In large part I would agree with Mr. Shapiro. 
Generally, from potential committee members we get more push-
back from the financial disclosure statements. Some committee 
members would just as soon not sit on a committee because they 
have to go through that process. The Department of Defense, in 
the interest of transparency and accountability and 
communication, only has special Government employees from a 
committee member standpoint. We don't use representatives. We 
only have two committees directed by Congress--Missouri River, 
North Dakota, and South Dakota--that actually have 
representative members, and that is from the Indian nations of 
both those States.
    So the only thing I could think of is perhaps if a 
committee member, if it was public knowledge that this 
potential committee member had lack of credentials, but, you 
know, that could happen with anyone.
    Mr. Clay. Thank you for that.
    Ms. Nazzaro, any comment on that?
    Ms. Nazzaro. I would generally agree with Mr. Shapiro's 
comments. As far as experience, in addition to the academy, 
National Academies, we also mention FDA in our report has a 
general practice of getting this kind of information up front, 
making it clear to their members that they need to provide this 
type of information and providing it.
    Mr. Clay. Thank you. How about you, Mr. Flaak? Any 
position?
    Mr. Flaak. Yes. Actually, I do, Mr. Chairman. While we 
don't necessarily know which agencies are doing what in this 
regard specifically, unless we are talking with them directly, 
in my prior life at EPA I was a designated Federal officer and 
managed a program over there for almost 20 years running 
advisory committees, and we used only special Government 
employees in our program.
    We instituted a process much like the one that Sid 
mentioned with the Academy of Sciences. Any time we formed a 
new panel, we put a notice up on the Web site we were 
recruiting people. People could submit their names. We used 
that as a starting point and eventually we got down to a list 
of 20 or 25 names which were published on the Web site for 
public comment as to whether or not these folks were 
appropriate for the committee. We weren't asking whether or not 
they had conflicts of interest, just opening it up for general 
commentary.
    Now, for the most part we didn't receive any comments. 
Occasionally somebody said, Well, did you know this guy did 
this or did that.
    We used that process in concert with all of the reviews we 
did--conflict of interest, disclosure forms, background checks, 
looking at information that they may have published previously, 
and general expertise to determine if they were appropriate for 
the committee, and eventually published the final list.
    So yes, the system can work fairly well.
    Mr. Clay. OK.
    Mr. Flaak. But I can tell you it is very onerous and time 
consuming for the staff. It does take a lot of work to do that.
    Mr. Clay. Thank you. Thank you for your response.
    Mr. Hodes, your second round of questioning?
    Mr. Hodes. Thank you, Mr. Chairman. I will try to be brief, 
knowing we have to vote.
    Recently it was reported that the EPA removed a chemist, 
Dr. Deborah Rice, the chair of an advisory committee reviewing 
draft health assessment for a type of flame retardant. The 
removal of the chair of the committee followed a letter from 
the American Chemistry Council that raised concerns about her 
impartiality based on testimony she gave to a State legislature 
in Maine on the health dangers posed by the flame retardant.
    There have been concerns raised about the removal of Dr. 
Rice while other EPA advisory committee members have been 
permitted to serve, despite having ties to the chemical 
industry.
    In addition to the questions it raises about conflict of 
interest, it raises for me the questions of removal of a member 
or chair of an advisory committee, and perhaps, Mr. Flaak, you 
could tell us whether or not FACA currently has practices and 
procedures for the removal of members of these committees.
    Mr. Flaak. It does not.
    Mr. Hodes. None?
    Mr. Flaak. No. If agencies desire to appoint or not appoint 
individuals or take members off their committees, that is up to 
the agencies.
    Mr. Hodes. Given the concerns raised about the potential 
influence of outside parties in the removal process that have 
been raised by this case and perhaps others, should there be 
practices and procedures, do you think, for removal of members 
of advisory committees of some kind?
    Mr. Flaak. Generically for the Government and FACA, I think 
the agencies are better served by having a good transparent 
process by which they select the people in the first place.
    Mr. Hodes. So you think that a transparent selection 
process that is open, accountable, and deals with the conflicts 
of interest questions----
    Mr. Flaak. Absolutely.
    Mr. Hodes [continuing]. Is sufficient, and we don't need to 
do anything at the back end, so to speak?
    Mr. Flaak. I don't think we do. No.
    Mr. Hodes. Anybody else on the panel have thoughts?
    Mr. Shapiro. I agree with that. That particular example is 
sort of a worst of all worlds. If I have this correct, that was 
a private contractor, so this committee wasn't under the 
legislation to start with. The issue of whether or not Dr. Rice 
had a conflict--which it doesn't appear she did--or whether the 
committee was unbalanced is best decided on the front end. Even 
if she had a particular point of view on the scientific merits 
that doesn't necessarily disqualify her; it goes to whether or 
not the whole committee is balanced. So removing one person 
after the fact may, in fact, make the committee unbalanced at 
that point. There is no way of knowing.
    Mr. Hodes. Mr. Wilson.
    Mr. Wilson. I concur with the previous two comments. It is 
much better off to have a full and transparent vetting process 
of the committee, you know, prospective committee members in 
advance than it is to go through the opposite and take care of 
it at the opposite end.
    Mr. Hodes. Terrific. Thank you very much.
    That is all I have, Mr. Chairman.
    Mr. Clay. Thank you, Mr. Hodes.
    Let me thank the entire panel for their testimony today. 
From your testimony, it is apparent that the Federal Advisory 
Committee Act, after 35 years, is due for some revisions. We 
will certainly be working on that out of this subcommittee and 
the full committee, and I look forward to working with all of 
you on a good product.
    That concludes this hearing. The committee is adjourned.
    [Whereupon, at 3:05 p.m., the subcommittee was adjourned.]

                                 
