Federal Advisory Committee Act: Issues Related to the		 
Independence and Balance of Advisory Committees (02-APR-08,	 
GAO-08-611T).							 
                                                                 
Because advisory committees provide input to federal decision	 
makers on significant national issues, it is essential that their
membership be, and be perceived as being, free from conflicts of 
interest and balanced as a whole. The Federal Advisory Committee 
Act (FACA) was enacted in 1972, in part, because of concerns that
special interests had too much influence over federal agency	 
decision makers. The General Services Administration (GSA)	 
develops guidance on establishing and managing FACA committees.  
The Office of Government Ethics (OGE) develops regulations and	 
guidance for statutory conflict-of- interest provisions that	 
apply to some advisory committee members. As requested, this	 
testimony discusses key findings and conclusions in our 2004	 
report, Federal Advisory Committees: Additional Guidance Could	 
Help Agencies Better Ensure Independence and Balance; GAO's	 
recommendations to GSA and OGE and their responses; and potential
changes to FACA that could better ensure the independence and	 
balance of advisory committees. For our 2004 work, we reviewed	 
policies and procedures issued by GSA, OGE, and nine federal	 
agencies that sponsor many committees. For this testimony, we	 
obtained information from GSA and OGE on actions they have taken 
to implement our recommendations; we also reviewed data in GSA's 
FACA data base on advisory committee appointments.		 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-611T					        
    ACCNO:   A81489						        
  TITLE:     Federal Advisory Committee Act: Issues Related to the    
Independence and Balance of Advisory Committees 		 
     DATE:   04/02/2008 
  SUBJECT:   Advisory committees				 
	     Conflict of interests				 
	     Federal advisory bodies				 
	     National policies					 
	     Performance measures				 
	     Policy evaluation					 
	     Strategic planning 				 
	     Policies and procedures				 

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GAO-08-611T

   

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Testimony:

Before the Subcommittee on Information Policy, Census, and National 
Archives, Committee on Oversight and Government Reform, House of 
Representatives:

United States Government Accountability Office:

GAO:

For Release on Delivery Expected at 2:00 p.m. EDT:

Wednesday, April 2, 2008:

Federal Advisory Committee Act:

Issues Related to the Independence and Balance of Advisory Committees:

Statement of Robin M. Nazzaro, Director Natural Resources and 
Environment:

GAO-08-611T:

GAO Highlights:

Highlights of GAO-08-611T, testimony before the Subcommittee on 
Information Policy, Census, and National Archives, Committee on 
Oversight and Government Reform, House of Representatives. 

Why GAO Did This Study:

Because advisory committees provide input to federal decision makers on 
significant national issues, it is essential that their membership be, 
and be perceived as being, free from conflicts of interest and balanced 
as a whole. The Federal Advisory Committee Act (FACA) was enacted in 
1972, in part, because of concerns that special interests had too much 
influence over federal agency decision makers. The General Services 
Administration (GSA) develops guidance on establishing and managing 
FACA committees. The Office of Government Ethics (OGE) develops 
regulations and guidance for statutory conflict-of- interest provisions 
that apply to some advisory committee members. 

As requested, this testimony discusses key findings and conclusions in 
our 2004 report, Federal Advisory Committees: Additional Guidance Could 
Help Agencies Better Ensure Independence and Balance; GAOï¿½s 
recommendations to GSA and OGE and their responses; and potential 
changes to FACA that could better ensure the independence and balance 
of advisory committees. For our 2004 work, we reviewed policies and 
procedures issued by GSA, OGE, and nine federal agencies that sponsor 
many committees. For this testimony, we obtained information from GSA 
and OGE on actions they have taken to implement our recommendations; we 
also reviewed data in GSAï¿½s FACA data base on advisory committee 
appointments.

What GAO Found:

In 2004, we concluded that additional governmentwide guidance could 
help agencies better ensure the independence of federal advisory 
committee members and the balance of federal advisory committees. For 
example, OGE guidance to federal agencies did not adequately ensure 
that agencies appoint individuals selected to provide advice on behalf 
of the government as ï¿½special government employeesï¿½ subject to conflict-
of-interest regulations. Further, we found that some agencies were 
inappropriately appointing most or all members as 
ï¿½representativesï¿½ï¿½expected to reflect the views of the entity or group 
they are representing and not subject to conflict-of-interest 
reviewsï¿½even when the agencies call upon the members to provide advice 
on behalf of the government and thus should have been appointed as 
special government employees. In addition, GSA guidance to federal 
agencies and agency-specific policies and procedures needed to be 
improved to better ensure that agencies collect and evaluate 
information, such as previous or ongoing research, that could be 
helpful in determining the viewpoints of potential committee members 
regarding the subject matters being considered and in ensuring that 
committees are, and are perceived as being, balanced. We also 
identified several promising practices for forming and managing federal 
advisory committees that could better ensure that committees are 
independent and balanced as a whole, such as providing information on 
how the members of the committee are identified and screened and 
indicating whether the committee members are providing independent or 
stakeholder advice. 

To help improve the effectiveness of federal advisory committees so 
that members are, and are perceived as being, independent and 
committees as a whole are properly balanced, we made 12 recommendations 
to GSA and OGE to provide additional guidance to federal agencies under 
three broad categories: (1) the appropriate use of representative 
appointments; (2) information that could help ensure committees are, in 
fact, and in perception, balanced; and (3) practices that could better 
ensure 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, current data on appointments indicate that some agencies may 
continue to inappropriately use representatives rather than special 
government employees on some committees. Further, GSA said it agrees 
with GAOï¿½s other recommendations, including those relating to committee 
balance and measures that would promote greater transparency in the 
federal advisory committee process, but has not issued guidance in 
these areas as recommended, because of limitations in its authority to 
require agencies to comply with its guidance. 

In light of indications that some agencies may continue to use 
representative appointments inappropriately and GSAï¿½s support for 
including GAOï¿½s 2004 recommendations in FACAï¿½including those aimed at 
enhancing balance and transparencyï¿½the Subcommittee may wish to 
incorporate the substance of GAOï¿½s recommendations into FACA as it 
considers amendments to the act.

To view the full product, including the scope and methodology, click on 
[hyperlink,http://www.gao.gov/cgi-bin/getrpt?GAO-08-611T]. For more 
information, contact Robin M. Nazzaro at (202) 512-3841 or 
[email protected].

[End of section] 

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss our 2004 report on the 
independence and balance of federal advisory committees in the context 
of possible amendments to the Federal Advisory Committee Act 
(FACA).[Footnote 1] In fiscal year 2007, 52 agencies sponsored 915 
active federal advisory committees with a total of about 65,000 
members. Federal advisory committees have been called the "fifth arm of 
government" because of the significant role they play in advising 
federal agencies, the Congress, and the President on important national 
issues.[Footnote 2] To be effective, advisory committees must be--and, 
just as importantly, be perceived as being--independent and balanced as 
a whole. As we reported in 2004, controversies regarding the federal 
advisory committee system have included concerns that some appointments 
have been based on ideology rather than expertise or were weighted to 
favor one group of stakeholders over others.

Members appointed to federal advisory committees to provide advice on 
behalf of the government on the basis of their best judgment are 
appointed as "special government employees." Members may also be 
appointed to federal advisory committees as "representatives" to 
provide stakeholder advice--that is, advice reflecting the views of the 
entity or interest group they are representing, such as industry, 
labor, or consumers. The General Services Administration (GSA) is 
responsible for developing regulations and guidance regarding the 
establishment of advisory committees under FACA. The Office of 
Government Ethics (OGE) is responsible for developing regulations and 
guidance for federal advisory committee members serving as special 
government employees who must meet certain federal requirements 
pertaining to freedom from conflicts of interest.[Footnote 3] In 
addition to OGE and GSA regulations and guidance, federal agencies have 
their own policies and procedures to establish and manage advisory 
committees.

As requested, my testimony today addresses (1) key findings and 
conclusions in our 2004 report, Federal Advisory Committees: Additional 
Guidance Could Help Agencies Better Ensure Independence and 
Balance,[Footnote 4] (2) the recommendations we made in that report to 
GSA and OGE to address deficiencies we identified and their responses 
to the recommendations, and (3) potential changes to FACA that could 
better ensure the independence and balance of advisory committees as 
the Subcommittee considers amendments to the act. For our 2004 work, we 
reviewed relevant policies and procedures issued by GSA, OGE, and nine 
federal agencies that sponsor many advisory committees. [Footnote 5] 
For this testimony, we supplemented our 2004 report with information we 
obtained from GSA and OGE on actions the agencies have taken to 
implement our recommendations. Several recommendations remained open as 
of March 2008, and we followed up with GSA and OGE to identify their 
responses to these recommendations. Using the GSA FACA database, we 
updated some advisory committee information about selected agencies and 
reviewed governmentwide data on appointments to advisory committees. 
Finally, in light of the GSA and OGE responses to our recommendations 
and the actions taken by some agencies sponsoring advisory committees 
regarding appointments, we identified potential changes to FACA that 
the Congress may wish to consider to help GSA and OGE better ensure 
independence and balance. We conducted this work from March 17, 2008, 
to April 2, 2008, in accordance with generally accepted government 
auditing standards. Those standards require that we plan and perform 
the audit to obtain sufficient, appropriate evidence to provide a 
reasonable basis for our findings and conclusions based on our audit 
objectives. We believe that the evidence obtained provides a reasonable 
basis for our findings and conclusions based on our audit objectives.

Background:

When the Congress enacted FACA in 1972, one of the principal concerns 
it was responding to was that certain special interests had too much 
influence over federal agency decision makers. In this act, the 
Congress articulated certain principles regarding advisory committees, 
including broad requirements for balance, independence, and 
transparency. Specifically, FACA requires that the membership of 
committees be "fairly balanced in terms of points of view presented and 
the functions to be performed by the advisory committee." [Footnote 6] 
Courts have interpreted this requirement as providing agencies with 
broad discretion in balancing their committees.

Further, FACA requires that any legislation or agency action that 
creates a committee contain provisions to ensure that the advice and 
recommendations of the committee will be independent and not 
inappropriately influenced by the appointing authority (the agency) or 
any special interest. Finally, FACA generally requires that agencies 
announce committee meetings ahead of time and give notice to interested 
parties about such meetings. With some exceptions, the meetings are to 
be open to the public, and agencies are to prepare meeting minutes and 
make them available to interested parties.[Footnote 7] FACA also set 
broad guidelines for the creation and management of federal advisory 
committees, most of which are created or authorized by the Congress. 
Agencies also establish committees using their general statutory 
authority, and some are created by presidential directives.

Further, the act requires that all committees have a charter, and that 
each charter contain specific information, including the committee's 
scope and objectives, a description of duties, and the number and 
frequency of meetings. As required by FACA, advisory committee charters 
generally expire at the end of 2 years unless renewed by the agency or 
by the Congress. This requirement encourages agencies to periodically 
reexamine their need for specific committees. GSA, through its 
Committee Management Secretariat, is responsible for prescribing 
administrative guidelines and management controls applicable to 
advisory committees governmentwide. However, GSA does not have the 
authority to approve or deny agency decisions regarding the creation or 
management of advisory committees.

To fulfill its responsibilities, GSA has developed guidance to assist 
agencies in implementing FACA requirements, provides training to agency 
officials, and was instrumental in creating the Interagency Committee 
on Federal Advisory Committee Management. GSA also has created and 
maintains an online FACA database (available to the public at 
[hyperlink, http://www.fido.gov/facadatabase]) for which the agencies 
provide and verify the data, which include committee charters; 
membership rosters; budgets; and, in many cases, links to committee 
meeting schedules, minutes, and reports. The database also includes 
information about a committee's classification (e.g., scientific and 
technical, national policy issue, or grant review).

While GSA's Committee Management Secretariat provides FACA guidance to 
federal agencies, each agency also develops its own policies and 
procedures for following FACA requirements. Under FACA, agency heads 
are responsible for issuing administrative guidelines and management 
controls applicable to their agency's advisory committees. Generally, 
federal agencies have a reasonable amount of discretion with regard to 
creating committees, drafting their charters, establishing their scope 
and objectives, classifying the committee type, determining what type 
of advice they are to provide, and appointing members to serve on 
committees.[Footnote 8] In addition, to assist with the management of 
their federal advisory committees, agency heads are required to appoint 
a committee management officer to oversee the agency's compliance with 
FACA requirements, including recordkeeping. Finally, agency heads must 
appoint a designated federal official for each committee to oversee its 
activities. Among other things, the designated federal official must 
approve or call the meetings of the committee, approve the agendas 
(except for presidential advisory committees), and attend the meetings.

OGE is responsible for issuing regulations and guidance for agencies to 
follow in complying with statutory conflict-of-interest provisions that 
apply to all federal employees, including special government employees 
serving on federal advisory committees. A special government employee 
is statutorily defined as an officer or employee who is retained, 
designated, appointed, or employed by the government to perform 
temporary duties, with or without compensation, for not more than 130 
days during any period of 365 consecutive days. Many agencies use 
special government employees, either as advisory committee members or 
as individual experts or consultants. Special government employees, 
like regular federal employees, are to provide their own best judgment 
in a manner that is free from conflicts of interest and without acting 
as a stakeholder to represent any particular point of view.[Footnote 9] 
Accordingly, special government employees appointed to federal advisory 
committees are hired for their expertise and skills and are expected to 
provide advice on behalf of the government on the basis of their own 
best judgment. Special government employees are subject to the federal 
financial conflict-of-interest requirements, although ones that are 
somewhat less restrictive than those for regular federal government 
employees.[Footnote 10] Specifically, special government employees 
serving on federal advisory committees are provided with an exemption 
that allows them to participate in particular matters that have a 
direct and predictable effect on their financial interest if the 
interest arises from their nonfederal employment and the matter will 
not have a special or distinct effect on the employee or employer other 
than as part of a class. This exemption does not extend to a committee 
member's personal financial and other interests in the matter, such as 
stock ownership in the employer. If a committee member has a potential 
financial conflict of interest that is not covered under this or other 
exemptions, a waiver of the conflict-of-interest provisions may be 
granted if the appointing official determines that the need for the 
special government employee's services outweighs the potential for 
conflict of interest or that the conflict is not significant. This 
standard for granting waivers is less stringent than the standard for 
regular government employees.

The principal tool that agencies use to assess whether nominees or 
members of advisory committees have conflicts of interest is the OGE 
Form 450, Executive Branch Confidential Financial Disclosure Report, 
which special government employees are required to submit annually. The 
Form 450 requests financial information about the committee member and 
the member's spouse and dependent children, such as sources of income 
and identification of assets, but it does not request filers to provide 
the related dollar amounts, such as salaries.[Footnote 11] Even if 
committees are addressing broad or general issues, rather than 
particular matters, committee members hired as special government 
employees are generally required to complete the confidential financial 
disclosure form.[Footnote 12] Agencies appoint ethics officials who are 
responsible for ensuring agency compliance with the federal conflict- 
of-interest statutes, and OGE conducts periodic audits of agency ethics 
programs to evaluate their compliance and, as warranted, makes 
recommendations to agencies to correct deficiencies in their ethics 
programs.

Under administrative guidance initially developed in the early 1960s, a 
number of members of federal advisory committees are not hired as 
special government employees, but are instead appointed as 
representatives. Members appointed to advisory committees as 
representatives are expected to represent the views of relevant 
stakeholders with an interest in the subject of discussion, such as an 
industry, a union, an environmental organization, or other such entity. 
That is, representative members are expected to represent a particular 
and known bias--it is understood that information, opinions, and advice 
from representatives are to reflect the bias of the particular group 
that they are appointed to represent. Because these individuals are to 
represent outside interests, they do not meet the statutory definition 
of federal employee or special government employee and are therefore 
not subject to the criminal financial conflict-of-interest statute. 
According to GSA and OGE officials, in 2004 reliable governmentwide 
data on the number of representative members serving on federal 
advisory committees were not available.

Findings and Conclusions from Our 2004 Report on the Independence and 
Balance of Committees:

In 2004, we concluded that additional governmentwide guidance could 
help agencies better ensure the independence of federal advisory 
committee members and the balance of federal advisory committees. We 
found that OGE guidance to federal agencies had shortcomings and did 
not adequately ensure that agencies appropriately appoint individuals 
selected to provide advice on behalf of the government as special 
government employees. We found that some agencies were inappropriately 
appointing members as representatives who, as a result, were not 
subject to conflict-of-interest reviews. In addition, GSA guidance to 
federal agencies, and agency-specific policies and procedures, needed 
to be improved to better ensure that agencies elicit from potential 
committee members information that could be helpful in determining 
their viewpoints regarding the subject matters being considered-- 
information that could help ensure that committees are, and are 
perceived as being, balanced. Specifically, we found the following:

* OGE guidance on the appropriate use of representative or special 
government employee appointments to advisory committees had limitations 
that we believed were a factor in three of the agencies we reviewed 
continuing the long-standing practice of essentially appointing all 
members as representatives. That is, the Department of Energy, the 
Department of the Interior, and the Department of Agriculture had 
appointed most or all members to their federal advisory committees as 
representatives--even in cases where the members were called upon to 
provide advice on behalf of the government and thus would be more 
appropriately appointed as special government employees. Because 
conflict-of-interest reviews are required only for federal or special 
government employees, agencies do not conduct conflict-of-interest 
reviews for members appointed as representatives. As a result, the 
agencies could not be assured that the real or perceived conflicts of 
interest of their committee members who provided advice on behalf of 
the government were identified and appropriately mitigated. Further, 
allegations that the members had conflicts of interest could call into 
question the independence of the committee and jeopardize the 
credibility of the committee's work.

* In addition to the FACA requirement for balance, it is important that 
committees are perceived as balanced in order for their advice to be 
credible and effective. However, we reported that GSA guidance did not 
address what types of information could be helpful to agencies 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. 
Consequently, many agencies did not identify and systematically collect 
and evaluate information pertinent to determining the points of view of 
committee members regarding the subject matters being considered. For 
example, of the nine agencies we reviewed, only the Environmental 
Protection Agency (EPA) consistently (1) collected information on 
committee members appointed as special government employees that 
enabled the agency to assess the points of view of the potential 
members and (2) used this information to help achieve balance. Without 
sufficient information about prospective committee members prior to 
appointment, agencies cannot ensure that their committees are, and are 
perceived as being, balanced.

We identified several promising practices for forming and managing 
federal advisory committees that could better ensure that committees 
are, and are perceived as being, independent and balanced. These 
practices include (1) obtaining nominations for committees from the 
public, (2) using clearly defined processes to obtain and review 
pertinent information on potential members regarding potential 
conflicts of interest and points of view, and (3) prescreening 
prospective members using a structured interview. In our view, these 
measures reflect the principles of FACA by employing clearly defined 
procedures to promote systematic, consistent, and transparent efforts 
to achieve independent and balanced committees. In addition, we 
identified selected measures that could promote greater transparency in 
the federal advisory committee process and improve the public's ability 
to evaluate whether agencies have complied with conflict-of-interest 
requirements and FACA requirements for balance, such as providing 
information on how the members of the committees are identified and 
screened and indicating whether the committee members are providing 
independent or stakeholder advice. Implemented effectively, these 
practices could help agencies avoid the public criticisms to which some 
committees have been subjected. That is, if more agencies adopted and 
effectively implemented these practices, they would have greater 
assurance that their committees are, and are perceived as being, 
independent and balanced.

Our 2004 Recommendations to GSA and OGE and Their Responses:

Because the effectiveness of competent federal advisory committees can 
be undermined if the members are, or are perceived as, lacking in 
independence or if committees as a whole do not appear to be properly 
balanced, we made 12 recommendations to GSA and OGE to provide 
additional guidance to federal agencies under three broad categories: 
(1) the appropriate use of representative appointments; (2) information 
that could help ensure committees are, in fact and in perception, 
balanced; and (3) practices that could better ensure independent and 
balanced committees and increase transparency in the federal advisory 
process. While our report focused primarily on scientific and technical 
federal advisory committees, the limitations of the guidance and the 
promising practices we identified pertaining to independence and 
balance are pertinent to federal advisory committees in general. Thus, 
our recommendations were directed to GSA and OGE because of their 
responsibilities for providing governmentwide guidance on federal 
ethics and advisory committee management requirements. GSA and OGE have 
taken steps to implement many, but not all, of the recommendations we 
made in 2004.

Regarding representative appointments, we recommended that guidance 
from OGE to agencies could be improved to better ensure that members 
appointed to committees as representatives were, in fact, representing 
a recognizable group or entity. OGE agreed with our conclusion that 
some agencies may have been inappropriately identifying certain 
advisory committee members as representatives instead of special 
government employees and issued OGE guidance documents in July 2004 and 
August 2005 that clarified the distinction between special government 
employees and representative members. In particular, as we recommended, 
OGE clarified that (1) members should not be appointed as 
representatives purely on the basis of their expertise, (2) 
appointments as representatives are limited to circumstances in which 
the members are speaking as stakeholders for the entities or groups 
they represent, and (3) the term "representative" or similar terms in 
an advisory committees' authorizing legislation or other documents does 
not necessarily mean that members are to be appointed as 
representatives. We also recommended that OGE and GSA modify their FACA 
training materials to incorporate the changes in guidance regarding the 
appointment process, which they have done. In addition, we recommended 
that GSA expand its FACA database to identify each committee member's 
appointment category and, for representative members, the entity or 
group represented. GSA quickly implemented this recommendation and now 
has data on appointments beginning in 2005.

We also recommended that OGE and GSA direct agencies to review their 
appointments of representative and special government employee 
committee members to make sure that they were appropriate. OGE's 2004 
and 2005 guidance documents addressed this issue by, among other 
things, recommending that agency ethics officials periodically review 
appointment designations to ensure that they are proper. OGE's guidance 
expressed the concern that some agencies may be designating their 
committee members as representatives primarily to avoid subjecting them 
to the disclosure statements required for special government employees 
to identify potential conflicts of interest. The guidance further 
stated that such improper appointments should be corrected immediately. 
OGE also suggested that for the committees required to renew their 
charters every 2 years, agencies use the rechartering process to ensure 
that the appointment designations are correct.[Footnote 13] In March 
2008, the Director of GSA's Committee Management Secretariat told us 
that while GSA has not issued formal guidance directing agencies to 
review appointment designations, it has addressed this recommendation 
by examining the types of appointments agencies are planning when it 
conducts desk audits of committee charters for both new and renewed 
committees and by providing information on appropriate appointments at 
quarterly meetings with committee management staff and at FACA training 
classes. The GSA official said that when GSA sees questionable 
appointments--for example, subject matter experts being appointed as 
representatives instead of as special government employees--it 
recommends that agency staff clear this decision with their legal 
counsel. However, he added that agencies are not compelled to respond 
to GSA guidance, and some have not changed their long-standing 
appointment practices despite GSA's questions and suggestions. He noted 
that, under FACA, GSA has the authority to issue guidance but not 
regulations.

Neither OGE nor GSA implemented our recommendation aimed at ensuring 
that committee members serving as representative members do not have 
points of view or biases other than the known interests they are 
representing. Because members appointed to committees as 
representatives do not undergo the conflict-of-interest review that 
special government employees receive, we recommended that 
representative members, at a minimum, receive ethics training and be 
asked whether they know of any reason their participation on the 
committee might reasonably be questioned--for example, because of any 
personal benefits that could ensue from financial holdings, patents, or 
other interests. OGE neither agreed or disagreed with this 
recommendation when commenting on our draft report but subsequently 
stated in its comments on the published report that it does not have 
the authority to prescribe rules of conduct for persons who are not 
employees or officers of the executive branch, such as committee 
members appointed as representatives. The GSA official said while the 
agency supports the intent of our recommendation, it defers to OGE on 
ethics matters. However, in this case, given the limitations OGE 
identified, it may be more appropriate for GSA to take the lead on 
implementing this recommendation under FACA.

Regarding the importance of ensuring that committees are, in fact and 
in perception, balanced in terms of points of view and functions to be 
performed, we recommended that GSA issue guidance to agencies on the 
types of information that they should gather about prospective 
committee members. While GSA has not issued formal guidance in this 
regard, its does include in its FACA training materials examples of 
agency practices that do ask prospective members about, for example, 
their previous or ongoing involvement with the issue or public 
statements or positions on the matter being reviewed.

Finally, to better ensure independent and balanced committees and 
increase transparency in the federal advisory process, we recommended 
that GSA issue guidance to agencies to help ensure that the committee 
members, agency and congressional officials, and the public better 
understand the committee formation process and the nature of the advice 
provided by advisory committees. Specifically, we recommended that GSA 
issue guidance that agencies should:

* identify the committee formation process used for each committee, 
particularly how members are identified and screened and how the 
committees are assessed for balance;

* state in the appointment letters whether the members are special 
government employees or representatives and, in cases where 
appointments are as representatives, the letters should further 
identify the entity or group that they are to represent; and:

* state in the committee products the nature of the advice that was to 
be provided--that is, whether the product is based on independent 
advice or on consensus among the various identified interests or 
stakeholders.

In its comments on our draft 2004 report and in a July 2004 letter 
regarding the published report, GSA stated that addressing these 
recommendations would require further consultation with OGE and 
affected executive agencies. In the ensuing years, GSA has not issued 
formal guidance implementing these recommendations. In March 2008, the 
Director of the Committee Management Secretariat told us that he 
generally supports the intent of the recommendations but that GSA is 
reluctant to direct agencies to carry out these aspects of their 
personnel or advisory committee practices without the statutory 
authority to do so. He noted that regarding the recommendation 
addressing the committee formation process, GSA's FACA management 
training materials provide information on the best practice employed by 
some of EPA's federal advisory committees of articulating their 
committee formation process and providing this information on their 
committees' Web pages. We consider this action a partial implementation 
of the recommendation.

Potential Changes to FACA That Could Help Agencies Better Ensure 
Independence, Balance, and Transparency:

You asked us to provide recommendations for improving the Federal 
Advisory Committee Act. Regarding the key recommendations we made aimed 
at addressing the inappropriate use of representative appointments, 
while both OGE and GSA were fully responsive to our recommendations to 
issue guidance to federal agencies clarifying such appointments, 
appointment data we reviewed raise questions about agency compliance. 
For example, in 2004, we reported that three of the nine agencies we 
reviewed had historically used representative appointments for all or 
most of their advisory committees, even when the agencies called upon 
the members to provide independent advice on behalf of the government. 
Overall, based on our review of the latest data on committee 
appointments, for these three agencies, this appointment practice 
continued through fiscal year 2007. Further, of these three agencies, 
which we identified as having questionable practices with respect to 
appointments for scientific and technical committees in 2004, one is 
still appointing members to scientific and technical committees 
primarily as representatives, and one has reduced the number of 
representative appointments but still has a majority of representative 
appointments. The third shifted substantially away from representative 
appointments for its scientific and technical committees in 2006 
following our report--but made appointments to two new committees in 
2007 with representative members that might be more appropriately 
appointed as special government employees.

Regarding the agency that is still primarily using representative 
members on its scientific and technical committees, not only do the 
subject matters being considered by many of these committees suggest 
that the government would be seeking independent expert advice rather 
than stakeholder advice, but the agency's identification of the 
entities or persons some representatives are speaking for suggests this 
agency is not abiding by the OGE and GSA guidance regarding 
representative appointments. For example, for some committees, this 
agency identifies the entity that all of the individual representative 
members are speaking for as the advisory committee itself. We believe 
these instances likely reflect an inappropriate use of representative 
rather than special government employee appointments. In addition, we 
note that some members appointed as representatives are described in 
the FACA database as representing an expertise or "academia" generally. 
As discussed above, the OGE guidance clarified that generally members 
may not be appointed as representatives to represent classes of 
expertise. Thus, it is not clear that agencies inappropriately using 
representative appointments have taken sufficient corrective action or 
that such actions will be sustained despite steps OGE and GSA have 
taken to clarify the appropriate use of representatives in response to 
our recommendations.

Governmentwide data collected by GSA show that from 2005 (when GSA 
began to collect the data in response to our recommendation to do so) 
through 2007, the percentage of committee members appointed as special 
government employees increased from about 28 percentage to about 32 
percent; the members appointed as representatives declined from just 
over 17 percent to about 16 percent.[Footnote 14] In March 2008, the 
Director of the Committee Management Secretariat at GSA told us that it 
is not clear whether these data indicate that the problem of 
inappropriate use of representative appointments has been fixed. He 
emphasized that GSA can suggest to agencies that they change the type 
of committee appointments they make but cannot direct them to do so. He 
noted that the agencies that historically have relied on representative 
appointments may not feel compelled to comply with the guidance because 
"it is not in the law." Finally, he said GSA would support 
incorporating the substance of our recommendations regarding 
representative and special government employees into FACA. Clarifying 
appointment issues in the act could resolve questions about or 
challenges to GSA's authorities and thereby better support agency 
compliance with GSA and OGE guidance on this critical issue.

In consideration of the above, the Subcommittee may want to consider 
amendments to FACA that could help prevent the inappropriate use of 
representative appointments and better ensure the independence of 
committee members by clarifying the nature of advice to be provided by 
special government employees versus representative members of advisory 
committees and require that all committee members, not just special 
government employees, be provided ethics training.

In addition, as discussed above, our 2004 recommendations to GSA 
addressing (1) committee balance and (2) practices that could better 
ensure independent and balanced committees and increase transparency 
have either not been implemented or have been partially addressed. We 
believe it is significant that, on the basis of its understanding of 
its authorities and its experience in overseeing federal advisory 
committees--including trying to convince agencies to follow its 
guidance and training materials--GSA told us in March 2008 that it 
would support incorporating the substance of our recommendations in 
these areas into FACA. Not only are our recommendations consistent with 
four categories (or objectives) of amendments to the act that GSA told 
us the agency generally supports, but they identify actions that GSA 
believes could help achieve its objectives, such as enhancing the 
federal advisory committee process and increasing the public's 
confidence both in the process and in committee recommendations. 
Consequently, we believe the Subcommittee may also wish to incorporate 
into FACA the substance of our recommendations addressing (1) the types 
of information agencies should consider in assessing prospective 
committee members' points of view to better ensure the overall balance 
of committees, (2) the committee formation process, clarity in 
appointment letters as to the type of advice members are being asked to 
provide, and (3) identifying in committee products the nature of the 
advice provided. Along these lines, we understand that the proposed 
legislative amendments to FACA that may be introduced today may 
incorporate some of our 2004 recommendations. Overall, we believe that 
additions to FACA along the lines discussed in our testimony and 
detailed in our 2004 report could provide greater assurance that 
committees are, and are perceived as being, independent and balanced.

Mr. Chairman, this concludes my prepared statement. I would be pleased 
to respond to any questions that you or other Members of the 
Subcommittee may have at this time.

GAO Contacts and Staff Acknowledgments:

For further information about this testimony, please contact Robin M. 
Nazzaro on (202) 512-3841 or [email protected]. Contact points for our 
Congressional Relations and Public Affairs Offices may be found on the 
last page of this statement. Contributors to this testimony include 
Christine Fishkin (Assistant Director), Ross Campbell, Carol Kolarik, 
Nancy Crothers, Richard P. Johnson, and Jeanette Soares.

[End of section] 

Footnotes:

[1] GAO, Federal Advisory Committees: Additional Guidance Could Help 
Agencies Better Ensure Independence and Balance, GAO-04-328 
(Washington, D.C.: Apr. 16, 2004).

[2] In this view, federal advisory committees follow the executive, 
legislative, judicial, and regulatory "arms" of government. Hearings on 
S. 1637, S. 2064, S. 1964 before the Subcommittee on Intergovernmental 
Relations of the Senate Committee on Government Operations, 92nd 
Congress, 1st Sess., pt. 1 at 12 (1971).

[3] Federal conflict-of-interest statutes (18 U.S.C. ï¿½ 201), including 
the principal criminal financial conflict-of-interest statute (18 
U.S.C. ï¿½ 208), apply to regular and, in large part, special government 
employees.

[4] GAO-04-328.

[5] We reviewed committees at the Department of Energy, the 
Environmental Protection Agency, the Department of Health and Human 
Services (as well as at three of its agencies--the Centers for Disease 
Control and Prevention, the National Institutes of Health, and the Food 
and Drug Administration), the Department of the Interior, the National 
Aeronautics and Space Administration, and the Department of Agriculture.

[6] Pub. L. No. 92-463, 86 Stat. 770 (1972) (classified at 5 U.S.C. 
app. 2).

[7] The President or head of an agency may determine that a meeting be 
closed if, for example, the meeting will include discussions of 
classified information, reviews of proprietary data submitted in 
support of federal grant applications, or deliberations involving 
considerations of personal privacy.

[8] However, when the Congress authorizes an agency to establish a 
particular committee or a President establishes a committee, the agency 
may have less flexibility in establishing and managing the committee 
because such things as the committee's objectives, the types of 
expertise and backgrounds of members, and even the type of advice that 
is to be provided may be specified by the Congress or the President.

[9] Office of Government Ethics, Letter to the Chairman of a National 
Commission, June 24, 1993 (93 x 14).

[10] The criminal financial conflict-of-interest statute and related 
OGE regulations prohibit regular and special government employees from 
participating in a "particular matter" that may have a direct and 
predictable effect on their financial interest, unless granted a 
waiver. A particular matter is one that involves deliberation, 
decision, or action that is focused on the interests of specific people 
or a discrete and identifiable class of people. 5 C.F.R. ï¿½ 
2640.103(a)(1).

[11] Some agencies, such as the Environmental Protection Agency and the 
Food and Drug Administration, have developed alternative confidential 
financial disclosure forms that request additional information on 
activities and affiliations, such as expert legal testimony.

[12] Special government employees who serve in excess of 60 days above 
a certain salary level, however, must file a public disclosure form.

[13] Under FACA, advisory committee charters generally expire at the 
end of 2 years unless renewed by the agency or Congress. Some 
committees, however, do not expire under the terms of the legislation 
creating them.

[14] GSA identifies three other types of appointments that were not the 
focus of our 2004 report. They are peer review consultants (at the 
National Institutes of Health only), regular government employees, and 
ex officio members. 

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