Federal Advisory Committees
Additional Guidance Could Help Agencies Better Ensure Independence and Balance Gao ID: GAO-04-328 April 16, 2004Because advisory committees are established to advise 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. GAO was asked to (1) describe the role of federal advisory committees in the development of national policies, (2) examine the extent to which existing guidance and policies and procedures for evaluating committee members for conflicts of interest and points of view ensure independent members and balanced committees, and (3) identify practices and measures that could help ensure independence and balance.
Federal advisory committees play an important role in shaping public policy by providing advice on a wide array of issues, such as stem cell research, drinking water standards, space exploration, drug approvals, and federal land management. About 950 advisory committees perform peer reviews of scientific research; offer advice on policy issues; identify long-range issues; and evaluate grant proposals, among other functions. Additional governmentwide guidance could help agencies better ensure the independence of members--that is, that they are free from significant conflicts of interest--and balance of federal advisory committees. For example, current limitations in the Office of Government Ethics' (OGE) guidance are a factor in at least three agencies' continuing a long-standing practice of appointing most or all members as "representatives"--expected to reflect the views of the entity or group they are representing and not subject to conflict-of-interest reviews--even when the agencies call upon the members to provide advice on behalf of the government. Such members would be more appropriately appointed as "special government employees," who are reviewed for conflicts of interest. OGE officials agreed with GAO that these agencies' appointments of some members as representatives of their fields of expertise are not appropriate, and this practice avoids using the special government employee category that was created to help the government hire experts in various fields for such purposes. OGE guidance that representatives may speak for, among others, any recognizable group of persons should be clarified to state that they generally are not to represent an expertise. Also, to be effective, advisory committees must be, and be perceived as being, fairly balanced in terms of points of view and functions to be performed. However, the General Services Administration's (GSA) guidance on advisory committee management does not address what types of information could be helpful to agencies in assessing the points of view of potential committee members, nor do agency procedures identify what information should be collected about potential members to make decisions about committee balance. Consequently, many agencies do not identify and systematically collect and evaluate information pertinent to determining the points of view of potential committee members, such as previous public positions or statements on matters being reviewed. GAO identified promising practices and measures that can better ensure independence and balance and promote transparency in the federal advisory committee system, such as obtaining nominations from the public and making public information about how members are identified and screened. Wider use of these practices--particularly for committees addressing sensitive or controversial topics--could reduce the likelihood that committees are, or are perceived as being, biased or imbalanced.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-04-328, Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance
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Report to Congressional Requesters:
April 2004:
FEDERAL ADVISORY COMMITTEES:
Additional Guidance Could Help Agencies Better Ensure Independence and
Balance:
GAO-04-328:
GAO Highlights:
Highlights of GAO-04-328, a report to congressional requesters
Why GAO Did This Study:
Because advisory committees are established to advise 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. GAO was asked to (1) describe the
role of federal advisory committees in the development of national
policies, (2) examine the extent to which existing guidance and
policies and procedures for evaluating committee members for conflicts
of interest and points of view ensure independent members and balanced
committees, and (3) identify practices and measures that could help
ensure independence and balance.
What GAO Found:
Federal advisory committees play an important role in shaping public
policy by providing advice on a wide array of issues, such as stem cell
research, drinking water standards, space exploration, drug approvals,
and federal land management. About 950 advisory committees perform peer
reviews of scientific research; offer advice on policy issues; identify
long-range issues; and evaluate grant proposals, among other functions.
Additional governmentwide guidance could help agencies better ensure
the independence of members”that is, that they are free from
significant conflicts of interest”and balance of federal advisory
committees. For example, current limitations in the Office of
Government Ethics‘ (OGE) guidance are a factor in at least three
agencies‘ continuing a long-standing practice of appointing most or all
members as ’representatives“”expected to reflect the views of the
entity or group they are representing and not subject to conflict-of-
interest reviews”even when the agencies call upon the members to
provide advice on behalf of the government. Such members would be more
appropriately appointed as ’special government employees,“ who are
reviewed for conflicts of interest. OGE officials agreed with GAO that
these agencies‘ appointments of some members as representatives of
their fields of expertise are not appropriate, and this practice avoids
using the special government employee category that was created to help
the government hire experts in various fields for such purposes. OGE
guidance that representatives may speak for, among others, any
recognizable group of persons should be clarified to state that they
generally are not to represent an expertise. Also, to be effective,
advisory committees must be, and be perceived as being, fairly balanced
in terms of points of view and functions to be performed. However, the
General Services Administration‘s (GSA) guidance on advisory committee
management does not address what types of information could be helpful
to agencies in assessing the points of view of potential committee
members, nor do agency procedures identify what information should be
collected about potential members to make decisions about committee
balance. Consequently, many agencies do not identify and systematically
collect and evaluate information pertinent to determining the points of
view of potential committee members, such as previous public positions
or statements on matters being reviewed.
GAO identified promising practices and measures that can better ensure
independence and balance and promote transparency in the federal
advisory committee system, such as obtaining nominations from the
public and making public information about how members are identified
and screened. Wider use of these practices”particularly for committees
addressing sensitive or controversial topics”could reduce the
likelihood that committees are, or are perceived as being, biased or
imbalanced.
What GAO Recommends:
GAO recommends that GSA and/or OGE, as appropriate, give direction to
agencies on: the proper use of representative appointments; information
that would help ensure committees are, and are perceived as, balanced;
and practices that would better ensure independence and balance and
enhance transparency in the advisory committee process. GSA agreed with
GAO‘s findings and agreed to work with OGE to implement the
recommendations. OGE agreed that representative appointments need
review but disagreed that its guidance has limitations. GAO continues
to believe the guidance could be improved to better ensure that
agencies are appropriately appointing committee members.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Advisory Committees Play an Important Role in the Development of
Federal Policies:
Federal Guidance Could Better Ensure Independence and Balance:
Promising Practices Could Better Ensure Independence and Balance:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Federal Advisory Committees, by Authorizing Mechanism and
Type, in Fiscal Year 2003:
Appendix III: Information on the Department of Agriculture's National
Advisory Committee on Microbiological Criteria for Foods:
Appendix IV: Information on the Department of Energy's Biological and
Environmental Research Advisory Committee:
Appendix V: Information on the Environmental Protection Agency's
Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory
Panel:
Appendix VI: Information on the Department of Health and Human
Services's Advisory Committee on Human Research Protections:
Appendix VII: Information on the Centers for Disease Control and
Prevention's Advisory Committee on Childhood Lead Poisoning Prevention:
Appendix VIII: Information on the Food and Drug Administration's Food
Advisory Committee:
Appendix IX: Information on the National Institutes of Health's
Scientific Advisory Committee on Alternative Toxicological Methods:
Appendix X: Information on the Department of the Interior's U.S.
Geological Survey's Scientific Earthquake Studies Advisory Committee:
Appendix XI: Information on the National Aeronautics and Space
Administration's Space Science Advisory Committee:
Appendix XII: Comments from the General Services Administration:
Appendix XIII: Comments from the Office of Government Ethics:
GAO Comments:
Appendix XIV: Comments from the Department of Health and Human
Services:
GAO Comments:
Appendix XV: Comments from the Department of the Interior:
GAO Comments:
Appendix XVI: Comments from the National Aeronautics and Space
Administration:
GAO Comments:
Appendix XVII: Comments from the Department of Energy:
GAO Comments:
Appendix XVIII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Tables:
Table 1: Documentation That Agencies Systematically Collected on
Potential Members of Selected Committees:
Table 2: Factors Used by Agencies to Balance Selected Committees:
Table 3: Authorizing Mechanism for Active Federal Advisory Committees in
Fiscal Year 2003:
Table 4: Active Federal Advisory Committees, by Type, in Fiscal Year
2003:
Table 5: Roster of the National Advisory Committee on Microbiological
Criteria for Foods with the Primary Employers and Areas of Expertise as
of December 2003:
Table 6: Roster of the Biological and Environmental Research Advisory
Committee with the Primary Employers and Areas of Expertise as of
December 30, 2003:
Table 7: Roster of the Standing FIFRA Scientific Advisory Panel with the
Primary Employers and Areas of Expertise as of December 2003:
Table 8: Roster of the Temporary (Ad Hoc) Members Serving on the June 17
to 20, 2003, Meeting on Atrazine:
Table 9: Roster of the Secretary's Advisory Committee on Human Research
Protections with the Primary Employers and Areas of Expertise as of
December 2003:
Table 10: Roster of the Advisory Committee on Childhood Lead Poisoning
Prevention with the Primary Employers and Areas of Expertise as of
December 2003:
Table 11: Roster of the Food Advisory Committee with the Primary
Employers and Areas of Expertise as of June 3, 2003:
Table 12: Roster of the Scientific Advisory Committee on Alternative
Toxicological Methods with the Primary Employers, and Areas of
Expertise as of December 30, 2003:
Table 13: Roster of the Scientific Earthquake Studies Advisory
Committee with the Primary Employers and Areas of Expertise as of
December 2003:
Table 14: Roster of the Space Science Advisory Committee Members with
the Primary Employers and Areas of Expertise as of December 30, 2003:
Abbreviations:
CDC: Centers for Disease Control and Prevention:
CODEX: Codex Alementarius Commission:
CV: curricula vitae:
EPA: Environmental Protection Agency:
FACA: Federal Advisory Committee Act:
FAO: Food and Agriculture Organization:
FDA: Food and Drug Administration:
FIFRA: Federal Insecticide, Fungicide, and Rodenticide Act of 1977:
FSIS: Food Safety and Inspection Service:
GSA: General Services Administration:
HACCP: Hazard Analysis and Critical Control Point:
HHS: Department of Health and Human Services:
ICCVAM: Interagency Coordinating Committee on the Validation of
Alternative Methods:
NASA: National Aeronautics and Space Administration:
NIEHS: National Institute of Environmental Health Sciences:
NIH: National Institutes of Health:
OGE: Office of Government Ethics:
USDA: United States Department of Agriculture:
USGS: United States Geological Survey:
WHO: World Health Organization:
Letter April 16, 2004:
The Honorable Eddie Bernice Johnson:
Ranking Minority Member,
Subcommittee on Research:
Committee on Science:
House of Representatives:
The Honorable Brian Baird:
House of Representatives:
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 1] To be effective, these advisory committees must be-
-and, just as importantly, be perceived as being--independent and
balanced. Specifically, individual committee members who provide advice
to the government must be free from significant conflicts of interest-
-that is, they must be "independent." In addition, while it may be
desirable to include experts on committees who have particular
viewpoints, federal law requires each committee, as a whole, to be
balanced in terms of the points of view and the functions to be
performed. Recently, some appointments to scientific and technical
advisory committees have generated controversy because of the
perception by some scientists and others that these appointments were
based on ideology rather than expertise or were weighted to favor one
group of stakeholders over others.
In 1962, the Congress established the category of "special government
employee" and made the conflict-of-interest rules for such employees
less restrictive than for regular federal government employees to
overcome obstacles in hiring outside experts for occasional service,
such as on federal advisory committees. Members of federal advisory
committees are often appointed as special government employees to
provide advice on behalf of the government on the basis of their best
judgment. In contrast, 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.
Federal advisory committee members who are employees of the federal
government must meet federal requirements pertaining to freedom from
conflicts of interest--which we refer to in this report as
independence--and the committees as a whole must meet requirements
pertaining to balance. Federal conflict-of-interest statutes (18 U.S.C.
§§ 201), including the principal criminal financial conflict-of-
interest statute (18 U.S.C. § 208), apply to regular and, in large
part, special government employees. The Office of Government Ethics
(OGE) is responsible for developing regulations and guidance for these
statutory provisions. The criminal financial conflict-of-interest
statute and related OGE regulations prohibit regular and special
government employees from participating in a "particular
matter"[Footnote 2] that may have a direct and predictable effect on
their financial interest, unless granted a waiver. Members appointed as
representatives who are neither regular nor special government
employees are not subject to statutes regarding conflicts of interest.
The Federal Advisory Committee Act[Footnote 3] (FACA) requires, among
other things, that committee memberships be "fairly balanced in terms
of points of view presented and the functions to be performed by the
advisory committee." Courts have interpreted this requirement as
providing agencies with broad discretion in balancing their committees.
The General Services Administration (GSA) is responsible for developing
regulations and guidance regarding the establishment of advisory
committees under FACA. In addition to OGE and GSA regulations and
guidance, federal agencies have their own policies and procedures to
establish and manage advisory committees.
You asked us to examine several issues regarding federal advisory
committees. As agreed with your offices, this report (1) describes the
role of federal advisory committees in the development of national
policies; (2) examines the extent to which governmentwide guidance and
agency-specific policies and procedures for evaluating committee
members for conflicts of interest and points of view ensure independent
members and balanced federal advisory committees; and (3) identifies
practices that could better ensure that committees are, and are
perceived as being, independent and balanced.
To address these objectives, we reviewed OGE regulations and guidance
to federal agencies regarding federal conflict-of-interest provisions
and GSA regulations and guidance to federal agencies regarding FACA. We
reviewed the policies and procedures at six federal departments and
agencies that make extensive use of scientific and technical advisory
committees--the Departments of Agriculture (USDA), Energy, Health and
Human Services (HHS), and the Interior; the National Aeronautics and
Space Administration (NASA); and the Environmental Protection Agency
(EPA). Because HHS entities sponsor 26 percent of all federal advisory
committees and 36 percent of all scientific and technical advisory
committees, we also reviewed the policies and procedures at three HHS
agencies that sponsor many advisory committees--the Centers for Disease
Control and Prevention (CDC), the Food and Drug Administration (FDA),
and the National Institutes of Health (NIH). We reviewed the procedures
used by these nine departments and agencies to identify, screen, and
appoint members for committees so as to ensure that members are free of
conflicts of interest (where conflict-of-interest requirements apply)
and that committees are balanced. To better understand how agencies
implement OGE and GSA governmentwide regulations and guidance as well
as their own policies, we examined the management of one committee at
each agency.[Footnote 4] We reviewed the confidential financial
disclosure forms of the committee members who were appointed as special
government employees, along with other information, and discussed with
staff how the committees used this information. We did not, however,
make any judgments on whether conflicts of interest existed or whether
these panels were properly balanced. To identify practices that promote
independence and balance, we examined the relevant policies and
procedures of the National Academies;[Footnote 5] the nine committees
and agencies examined in this review; and EPA's Science Advisory Board,
which made a number of changes to its policies and procedures in
response to our June 2001 report.[Footnote 6] We conducted our review
from January 2003 through March 2004 in accordance with generally
accepted government auditing standards. For more details on the scope
and methodology of our review, see appendix I.
Results in Brief:
Approximately 950 federal advisory committees with about 62,000 members
play an important role in shaping public policy by advising
policymakers on a wide array of important and challenging issues. For
example, advisory committees provide advice in the form of peer reviews
of scientific research that may be used to support health,
environmental, and safety regulations; recommendations about specific
policy decisions; identification of long-range issues facing the
nation; and evaluations of grant proposals, among other functions.
Federal advisory committees have been established to work in broad
areas of public policy, such as national security, the economy, the
environment, and public health. Illustrative of the range of issues
addressed by federal advisory committees are the current committees
that advise agencies on matters related to AIDS research, food safety,
hazardous waste cleanup, trade policy, and homeland security. Advisory
committees are sometimes established specifically to address
controversial issues about which the government believes it is
beneficial to solicit the advice of individuals with the relevant
background and/or expertise from outside the government. For example,
some of the issues addressed by advisory committees are inherently
controversial because they deal with sensitive personal and ideological
matters, such as stem cell research and genetic engineering. Other
committees address issues that are controversial because of their
potential regulatory impact, such as food and drug approvals or
environmental regulations.
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 has shortcomings and does 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. In addition, GSA guidance to federal agencies and
agency-specific policies and procedures could be improved to better
ensure that agencies collect and evaluate information 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. Specifically, we
found the following:
* OGE guidance on the appropriate use of representative or special
government employee appointments to advisory committees has limitations
that we believe are a factor in three of the agencies we reviewed
continuing the long-standing practice of essentially appointing all
members as representatives. That is, we found that USDA, Energy,and
Interior have appointed most or all members to their federal advisory
committees as representatives--even in cases where the members are
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 only required for federal or
special government employees, agencies do not conduct conflict-of-
interest reviews for members appointed as representatives. As a result,
the agencies cannot be assured that the real or perceived conflicts of
interest of their committee members who provide advice on behalf of the
government are identified and appropriately mitigated. Further,
allegations that the members have conflicts of interest could call into
question the independence of the committee and jeopardize the
credibility of the committee's work.
* FACA requires that federal advisory committees be fairly balanced in
terms of the points of view and the functions to be performed, and
courts have interpreted this requirement as providing agencies with
broad discretion in balancing their committees. In addition to the
legal requirement for balance, it is important that committees are
perceived as balanced in order for their advice to be credible and
effective. However, GSA guidance does not address what types of
information could be helpful to agencies in assessing the points of
view of potential committee members, nor do agency procedures identify
what information should be collected about potential members to make
decisions about committee balance. Consequently, many agencies do 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 departments
and agencies we reviewed, only 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 can 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. Some of the practices, such as seeking public
comment on proposed committees, are particularly relevant to those
committees addressing sensitive or controversial topics. 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.
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 are making 12 recommendations to GSA and OGE to provide
additional guidance to federal agencies. The broad categories of these
recommendations include (1) clarifying the appropriate use of
representative appointments; (2) systematically obtaining information
that could help ensure committees are, in fact and in perception,
balanced; and (3) adopting certain practices that can better ensure
independent and balanced committees and increase transparency in the
federal advisory process. While our report focuses primarily on
scientific and technical federal advisory committees, the limitations
in guidance and the promising practices we identified pertaining to
independence and balance are pertinent to federal advisory committees
in general, and thus our recommendations are directed to GSA and OGE
because of their responsibilities for providing guidance to federal
agencies on these matters.
GSA reviewed a draft of this report and generally agreed with the
findings relating to the areas directly under its purview. The agency
committed to, among other things, continuing to work in partnership
with OGE to address those areas under OGE's jurisdiction relating to
FACA. GSA outlined a proactive approach to responding to the report's
recommendations, including making changes to its on-line FACA database.
OGE reviewed the draft report and also generally agreed with the
problems we identified regarding appointments to federal advisory
committees, but the agency disagreed that there are any limitations in
its guidance that contribute to the problems and also reiterated the
measures that OGE has taken to address this issue (most of which were
highlighted in the draft report). OGE believes the agencies making
inappropriate appointments are disregarding, rather than
misinterpreting, the OGE guidance. While we recognize that there may be
other reasons as well, we have identified the limitations in OGE's
guidance as one factor in some agencies' continuing the long-standing
practice of essentially appointing all committee members as
representatives. We believe the effectiveness of OGE's and GSA's
efforts to ensure that agencies make appropriate appointment decisions
for members of their federal advisory committees will not improve until
the limitations we identified in OGE's guidance on appointments are
addressed. Our view is also that clear, unambiguous guidance would make
it more difficult for agencies to misapply the guidance. GSA's and
OGE's written comments are discussed further at the end of this report
and their letters are provided in appendixes XII and XIII. Overall, the
comments from the agencies whose advisory committee management policies
and procedures we reviewed--EPA; Energy; HHS (and component agencies
CDC, FDA, and NIH); Interior; NASA; and USDA--were generally positive
about the draft report, viewing it as providing helpful information on
federal advisory committee management. Four of these agencies also
cited some specific concerns about, for example, the requirements for
independence and assessing prospective members' points of view. We
address these issues at the end of this report and provide the
pertinent letters from these four agencies in appendixes XIV through
XVII.
Background:
In recent years, controversies regarding the federal advisory committee
system have included concerns about the appointment of specific
individuals to committees and agency decisions to create or terminate
some committees. Although a variety of concerns have been raised, the
overarching concern was that ideological bias was influencing the
selection of experts for scientific and health advisory panels.
Publications such as Science, The Lancet, and Chemical and Engineering
News have published editorials and articles containing criticisms of
decisions seen as injecting ideology into a committee system that
should be nonideological. Further, some current and potential federal
advisory committee members reported being asked about their political
views in the context of decisions regarding their appointment or
reappointment to committees.
A number of recent articles and editorials identified specific concerns
about HHS committees that address controversial scientific and
technical issues. Observers have alleged that some appointees either
were unqualified for the position, had extreme views that were outside
the mainstream of scientific thinking, or had personal conflicts of
interest that should have disqualified them from serving on particular
committees. Further, observers alleged that HHS has replaced large
portions of the membership of ongoing committees as a way of obtaining
committees that shared the administration's viewpoint about particular
issues. Finally, concerns were raised that HHS had terminated some
advisory committees with which the administration allegedly had
ideological differences and replaced them with committees that had
different charters and a largely new membership.
In 2003, the National Academy of Sciences issued a report on
organizational issues within NIH that included a discussion of the
perceived politicization of the advisory committee appointment process.
The report noted that these concerns had recently arisen within the
scientific and health advocacy communities and were similar to concerns
that were raised in the early 1970s. In response to the most recent
concerns, the academy recommended, among other things, that
appointments to NIH advisory committees be based solely on a person's
scientific or clinical expertise or his or her commitment to and
involvement in issues of relevance to the mission of the institute.
Also in 2003, the Center for Science in the Public Interest sent a
letter to the director of OGE about its concerns that conflicts of
interest were introducing biases into the federal advisory committee
process at HHS, Interior, and other agencies.[Footnote 7] The center's
letter, signed by 21 individuals, including public health advocates and
members of academia, made a number of recommendations to OGE aimed at
strengthening independence, transparency, and public trust in the
federal advisory committee process. Further, the National Academies is
examining the selection of scientists, engineers, and health
professionals to federal advisory committees addressing science-based
policy or reviewing research proposals. This study stems from its
regular review of senior scientific technical appointments in the
federal government as well as from concerns that scientists and others
have raised to the academies about some federal advisory committee
appointments and the appointment practices used by some agencies. A
report is planned for November 2004.
The Federal Advisory Committee Act Sets Broad Requirements and
Guidelines for Advisory Committees:
The Congress enacted FACA in 1972 in response to two principal
concerns: (1) that federal advisory committees were proliferating
without adequate review, oversight, or accountability and (2) 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, as
previously discussed, FACA requires that the membership of committees
be fairly balanced in terms of points of view and functions to be
performed. 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 8]
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 general
statutory authority, and some are created by presidential directives
(see app. II). 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, the
period of time necessary to carry out its purposes, the estimated
operating costs, and the number and frequency of meetings. As required
by FACA, the advisory committee charters generally expire at the end of
2 years unless renewed by the agency or by the Congress.[Footnote 9]
The requirement encourages agencies to periodically reexamine their
need for 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 regulations and other 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 on-line FACA database (available to the public
at [Hyperlink, http: //www.fido.gov/facadatabase] www.fido.gov/
facadatabase) for which the agencies provide and verify the data,
including 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
(i.e., scientific and technical or national policy issue). According to
the database, 208 committees with 7,910 members were classified as
scientific and technical committees. In addition, 131 committees with
over 41,000 members were classified as grant review committees--a
category that also often addresses scientific and technical issues.
Appendix II provides data on the classifications of the federal
advisory committees in fiscal year 2003.
While the 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 regards 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 10] 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.
Finally, 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. Agency heads must also appoint a designated
federal official for each committee to oversee the committee's
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.
Criminal Financial Conflict-of-Interest Statute Applies to Some
Advisory Committee Members:
OGE is responsible for issuing regulations and guidance for agencies to
follow in complying with the 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
11] 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.
The criminal financial conflict-of-interest statute (18 U.S.C. § 208)
and related OGE regulations prohibit federal employees, including
special government employees, from participating in "particular
matters" that may have a direct and predictable effect on their
financial interests or those interests of a spouse, minor child, or
general partner. A particular matter is defined as one involving a
deliberation, decision, or action that is focused on the interests of
specific people or an identifiable class of people. Special government
employees serving on federal advisory committees thus are prohibited
from participating when the subjects they consider are particular
matters in which the member has a financial interest. However, 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 the 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 the sources of
income and the identification of assets, but it does not request filers
to provide the related dollar amounts, such as salaries.[Footnote 12]
For committees addressing broad or general issues, rather than
particular matters, committee members hired as special government
employees are still generally required to complete the confidential
financial disclosure form.[Footnote 13]
Agencies appoint ethics officials who are responsible for ensuring
agency compliance with the federal conflict-of-interest statutes. 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.[Footnote 14] 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, reliable
governmentwide data on the number of representative members serving on
federal advisory committees are not available. However, data that
agencies report to OGE on special government employees serving on
federal advisory committees and to GSA on the number of federal
advisory committee members indicate that only about 35 percent of the
government's federal advisory committee members are appointed as
special government employees.[Footnote 15]
Advisory Committees Play an Important Role in the Development of
Federal Policies:
Generally composed of individuals from outside of the federal
government, federal advisory committees play an important role in the
development of public policy and government regulations by providing
advice to policymakers on a wide array of issues. In fiscal year 2003,
54 agencies sponsored approximately 950 committees with about 62,000
members to provide advice by performing peer reviews of scientific
research; developing recommendations on specific policy decisions;
identifying long-range issues facing the nation; and evaluating grant
proposals, among other functions. Their advice--on issues such as stem
cell research, space exploration, trade policy, drinking water
standards, and drug approvals--can enhance the quality and credibility
of federal decision making.
Advisory committees have been and continue to be involved in issues of
great importance to the advancement of knowledge and the development of
national policies and regulations. For example, Energy's decision to
undertake the Human Genome Project was based in part on the 1987
recommendation of the department's Health and Environmental Research
Advisory Committee.[Footnote 16] As a result, Energy, working with NIH,
successfully coordinated the multibillion-dollar research effort that
succeeded in identifying all of the genes on every chromosome in the
human body and determining their biochemical nature--leading the way to
numerous advances in medical science.
Advisory committees provide agencies with advice in a variety of broad
areas of federal policy, such as the environment, public health, and
the economy. Committees provide agencies with advice about a wide array
of specific issues, such as the management of federal lands, the
development of alternative sources of energy, guidelines for assessing
cancer risks, risk assessments of toxic chemicals, hazardous waste
cleanup, the establishment of new standards for food safety, the
delivery of health care services, and the effectiveness of new
prescription drugs and medical devices. Recently, federal advisory
committees were established to help agencies marshal the facts and
weigh options in response to new national issues, such as information
security and terrorist attacks.
Federal advisory committees are sometimes established specifically to
address controversial issues about which the government believes it is
necessary to solicit the advice of individuals with the relevant
background and/or expertise from outside of the government. Some of the
issues addressed by advisory committees are controversial because they
touch upon inherently sensitive personal, religious, or ideological
matters, such as stem cell research and genetic engineering. Other
committees address issues that are controversial because of their
potential regulatory impact on industries or consumers, such as in the
case of food and drug approvals or environmental regulations.
To address controversial and other important matters, scientific and
technical advisory committees--which are the primary focus of this
report--play a number of different roles on behalf of agencies. One
role of science committees is to advise agencies on how to address a
set of particular problems. For example, the Advisory Committee on
Foreign Animal and Poultry Diseases gives the Secretary of Agriculture
information and advice on measures necessary to prevent and combat such
threats as foot-and-mouth disease. The charter also charges the
committee with providing advice on the prevention or management of
other threats from foreign animal or poultry diseases. Recent
recommendations from the committee addressed coordination between USDA
and the Department of Homeland Security and support for a national food
animal identification work plan.
In 1990, the Congress authorized the creation of the Aquatic Nuisance
Species Task Force to, among other things, coordinate federal efforts
to address the threats posed by nonnative aquatic plants and
animals.[Footnote 17] The task force operates as a federal advisory
committee and is composed of 7 federal agency representatives and 13
nonfederal members in an ex officio status. It reports to the
Departments of the Interior and Commerce. Among the task force's
accomplishments are a number of reports and publications on risk
assessment, prevention initiatives, and control programs for such
nonnative species as the brown tree snake and the green crab.
Some science advisory committees offer advice to agencies on specific
regulatory decisions. For example, FDA established science advisory
committees that offer advice on the licensing of specific drugs and on
the safety and effectiveness of medical devices. These committees play
an important role in determining whether drugs and other medical
products make it into the marketplace and can therefore have a
significant impact on specific manufacturers as well as potential
patients and consumers.
Other science advisory committees make recommendations to agencies on
strategic planning efforts needed to address long-range issues facing
the nation. Existing committees are exploring efforts to chart new
directions in research in biology, physics, astronomy, and space
exploration, to name just a few. For example, Energy's Basic Energy
Sciences Advisory Committee issued a report in February 2003 entitled
Basic Research Needs to Assure a Secure Energy Future.[Footnote 18] In
that report, the committee stated its belief that a new national energy
research program is essential and must be initiated with the intensity
and commitment of the Manhattan Project. The report included a lengthy
list of proposed research topics.
Advisory committees may be established to provide a peer review
function. For example, a peer review group could be asked to review a
body of scientific literature and offer its opinion on the adequacy of
the scientific data that may be used to support regulatory actions. As
an illustration, in 2001, EPA revised its standards for safe levels of
arsenic in drinking water using, in part, the analysis and
recommendations of two federal advisory committees--the National
Drinking Water Advisory Council and the EPA's Science Advisory Board.
This revised standard will have a far-reaching effect on both human
health and the operation of public drinking water systems. Other peer
review groups are asked to judge the merits of proposals submitted to
national grant competitions. For example, the National Science
Foundation, NIH, and other agencies use such groups to evaluate
proposals submitted for possible funding by academic or clinical
researchers covering a wide range of subject matter. After the peer
review groups evaluate the proposals, other science advisory committees
may make recommendations to the agencies regarding which proposals to
fund.
Federal Guidance Could Better Ensure Independence and Balance:
OGE and GSA governmentwide guidance and the policies and procedures of
the nine departments and agencies we reviewed have limitations that
reduce their effectiveness in ensuring that advisory committee members
are independent and that advisory committees are, and are perceived as
being, balanced. First, with respect to independence, OGE guidance on
whether to appoint members to advisory committees as special government
employees or representatives--a decision that determines whether an
agency conducts a conflict-of-interest review--has limitations that we
believe are a factor in three agencies' continuing their long-standing
practice of essentially appointing all members as representatives. We
found that USDA, Energy, and Interior appoint all or almost all members
to their federal advisory committees as representatives,even when the
members are called on to provide advice on behalf of the government on
the basis of their best judgment.[Footnote 19] Because such members are
not providing stakeholder advice, they would be more appropriately
appointed as special government employees, subject to reviews for
conflicts of interest. However, because conflict-of-interest reviews
are only required for federal or special government employees, agencies
do not conduct conflict-of-interest reviews for members appointed as
representatives. As a result, the agencies cannot be assured that the
real or perceived conflicts of interest of their committee members'
providing advice on behalf of the government are identified and
appropriately mitigated. Further, allegations that the members have
conflicts of interest could call into question the independence of the
committee and jeopardize the credibility of the committee's work.
Second, with respect to balance, GSA guidance does not address what
types of information would be helpful in assessing the points of view
of potential committee members with regard to the matters the
committees will consider, nor do agency procedures identify what
information the agencies believe should be collected about potential
members--an important step that can help agencies ensure committees
are, and are perceived as being, balanced. We found that many agencies
do not consistently request information that would be helpful in
assessing the overall balance of committee members' viewpoints--such as
previous public positions the members may have taken on the matters
being reviewed. Without adequate policies and procedures, agencies are
vulnerable to allegations that committee members have conflicts of
interest and that committees are imbalanced. Such allegations may call
into question a committee's legitimacy and may jeopardize the work of
otherwise credible and competent committees.
Reviews for Conflicts of Interest Are Not Always Performed:
Some agencies appoint most or all members to their advisory committees
as representatives, rather than as special government employees.
However, some of these committee members appointed as representatives
are asked to provide agencies with advice on behalf of the government
without representing any particular point of view, and thus it appears
that the members would be more appropriately appointed as special
government employees. Because only regular and special government
employees are subject to the conflict-of-interest statutes, agencies do
not conduct conflict-of-interest reviews for members appointed as
representatives. Some committees thus have members who had they been
appointed as special government employees would have undergone reviews
for conflicts of interest, but they have not been reviewed for
potential conflicts of interest because they were appointed as
representatives.
Representative members and special government employees are supposed to
serve different functions on advisory committees. In 1962, the Congress
established the category of special government employee and amended the
federal conflict-of-interest laws to overcome obstacles in hiring
outside experts for occasional service. Special government employees
are appointed to federal advisory committees to provide advice on
behalf of the government on the basis of their best judgment.
Representative members, in contrast, are generally considered as those
members of advisory committees who are "chosen for committee membership
only to present the views of a private interest."[Footnote 20]
In 1982, in response to uncertainties regarding when agencies should
appoint members to their advisory committees as special government
employees or representatives, OGE developed guidance on the appropriate
use of these two appointment categories for federal advisory
committees.[Footnote 21] In this guidance, OGE noted that it disagreed
with "an occasional flat assertion" by agencies that advisory committee
members are never subject to the federal conflict-of-interest laws. The
1982 guidance, which is still OGE's principal guidance on this
issue,[Footnote 22] states that a "consultant or advisor whose advice
is obtained by a department or agency from time to time because of his
individual qualifications and who serves in an independent capacity is
an officer or employee of the government"--that is, this person is a
regular federal employee or a special government employee. In contrast,
a consultant or advisor "who is requested to appear before a government
department or agency to present the views of a non-governmental
organization or group which he represents, or for which he is in a
position to speak, does not act as a servant of the government and is
not its officer or employee" but is a representative member. The OGE
1982 guidance concludes by noting that if language used in the enabling
legislation, executive order, charter, or other pertinent document does
not specify whether the members are functioning as special government
employees or representatives, it is fair to conclude that the member is
a special government employee because this is the usual status of those
appointed by agencies to serve the government.
OGE's most recent guidance that addresses representative appointments
to advisory committees is its February 2000 summary of ethical
requirements applicable to special government employees. This summary
includes a paragraph discussing representative appointments,
highlighting the fact that unlike special government employees and
other federal employees, representatives are not expected to render
disinterested advice to the government but are expected to "represent a
particular bias." This document explains that representatives are
described more fully in OGE's 1982 guidance and also refers readers to
two 1993 advisory letters that (1) conclude that representatives can
make policy recommendations to the government and (2) explain the
difference between the two types of appointment as follows:
representatives are asked to represent a particular bias, while special
government employees are asked to provide their own best judgment
without representing any particular point of view and in a manner that
is free from conflict of interest.
In addition to developing the 2000 guidance on special government
employees, OGE has taken steps to educate agencies about special
government employee and representative appointments by participating in
GSA's FACA management course that includes a session on ethics,
conflict-of-interest, and financial disclosure issues. According to
GSA, this class is conducted five times each year, reaching about 300
advisory committee staff. According to OGE, the ethics training begins
with a discussion of the special government employee/representative
designation issue. The course material includes a discussion of
representatives and also refers readers to OGE's 1982 guidance.
Further, OGE provides training at annual ethics conferences for ethics
officials in the executive branch.
Despite these efforts, a recent OGE staff study on agency management of
federal advisory committees, summarized in a November 2002 memorandum,
indicates that some uncertainties about appointments to federal
advisory committees may continue to exist. That is, OGE found that four
of the seven agencies it reviewed--Energy, Interior, the Commission on
Civil Rights, and the Small Business Administration--appointed all, or
nearly all, members as representatives.[Footnote 23] Further, the OGE
memorandum expressed concern that these agencies may be purposely
designating their committee members as representatives to avoid
subjecting them to the financial disclosure statements required for
special government employees and may not be conducting conflict-of-
interest reviews for some committee members when they should have been
conducted. The OGE memorandum concluded that further scrutiny and
education about the proper designation of committee appointments was
warranted. As a result, at the next annual conference for agency ethics
officials in March 2003, OGE included a session, Ethics Management
Tools for Your Federal Advisory Committee, which was principally
devoted to "designation" issues involving appointments to federal
advisory committees.[Footnote 24] In addition, in May 2003, OGE issued
new audit guidelines for its periodic reviews of agency ethics programs
that provide for additional focus and review of appointment
designations for individuals serving on committees, councils, boards,
and commissions. Finally, as previously mentioned, OGE officials
conduct a segment on ethics that addresses the appointments of
representatives and special government employees during GSA's FACA
management course.
Nonetheless, three of the agencies we reviewed--USDA, Energy,[Footnote
25] and Interior--appoint most or all of the members to their federal
advisory committees as representatives.[Footnote 26] Upon examining
some of the specific committees at these agencies, we found that these
agencies appoint members as representatives even when the members are
called on to provide advice on behalf of the government on the basis of
their best judgment, rather than to represent views of outside
organizations. Specifically, USDA, Energy, and Interior have committees
comprised entirely of representative members where, on the basis of the
agencies' descriptions of the type of advice that the members are to
provide, the use of special government employees seems more
appropriate, such as in the following cases:
* USDA's National Advisory Committee for Microbiological Criteria for
Foods.[Footnote 27] According to its charter, the purpose of the
committee is to provide impartial, scientific advice to federal food
safety agencies on the development of an integrated national system to
monitor food safety from farm to final consumption in order to ensure
the safety of domestic, imported, and exported foods.
* Energy's Biological and Environmental Research Advisory Committee.
According to the committee's designated federal official, the
department uses the committee to obtain independent scientific advice
on Energy's Biological and Environmental Research Program. The
committee addresses issues such as genomics, the health effects of low-
dose radiation, DNA sequencing, medical sciences, environmental
remediation, and climate change research. In addition to reviewing
scientific issues, the committee provides advice on long-range research
plans and priorities and appropriate levels of funding.
* Interior's Scientific Earthquake Studies Advisory Committee.
According to the committee's designated federal official, members are
selected to provide their independent advice to the U.S. Geological
Survey (USGS) on matters relating to the survey's role in the National
Earthquake Hazards Reduction Program, which is a multiagency strategic
program to reduce risks to lives and property resulting from
earthquakes. The committee is to review the USGS National Earthquake
Hazards Reduction Program's roles, goals, and objectives; assess its
capabilities and research needs; provide guidance on achieving major
objectives; and establish and measure performance goals. (As discussed
below, in January 2004, Interior officials determined that the members
of this committee should be appointed as special government employees,
and the officials said that the committee would not meet again until
the appointments as special government employees have been made.):
In contrast, we found that EPA, HHS, and NASA appoint members as
special government employees to committees that provide advice on
behalf of the government about scientific and technical issues similar
to those addressed by the committees discussed above. Consequently,
these agencies do evaluate committee members who provide advice on
behalf of the government for potential conflicts of interest.
USDA, Energy, and Interior have 30 other committees with about 750
members that are classified as scientific and technical
committees.[Footnote 28] In addition, some committees in other
categories, such as national policy advisory committees, also address
scientific and technology issues--subject matters for which advice on
behalf of the government on the basis of members' best judgment, rather
than stakeholder advice, is typically sought. In speaking with USDA,
Energy, and Interior officials about the basis for their decisions to
essentially appoint all advisory committee members as representatives,
we learned that this practice is long-standing and firmly rooted in
agency cultures--that is, it represents the way these agencies have
traditionally staffed their federal advisory committees. The agencies
we reviewed generally have not developed sufficient policies,
procedures, or guidance for their staff to use when determining which
type of appointment is appropriate for individual committees. For
example, the guidance of some agencies, such as USDA and Interior, does
not address the types of appointments that may be made. Others, such as
NASA and Energy, recognize in agency policies and procedures that
members can be either special government employees or representatives.
However, few of the agencies that have policies identifying the types
of appointments specify criteria that should be used when deciding
whether the members should be appointed as either special government
employees or representatives.
In our view, shortcomings in the OGE 1982 guidance regarding members of
federal advisory committees and the conflict-of-interest statutes may
(1) contribute to the agencies' overreliance on representative
appointments to their advisory committees and (2) limit the
effectiveness of OGE's and GSA's education efforts on appointments to
advisory committees. Specifically, we found the following shortcomings
in the 1982 guidance, which OGE cites as its most complete discussion
on the use of representative appointments:
* The OGE guidance is overly broad in describing the groups for which
representatives may speak. That is, the guidance indicates that
representatives may speak for firms or an industry; for labor or
agriculture; or for "any other recognizable group of persons including,
on occasion the public at large." We found that Energy, Interior, and
USDA appoint some members to their committees on the basis that they
represent various scientific or technical fields, such as biology or
toxicology. However, appointing individuals as representatives of a
broad category of people, such as a field of expertise, appears to
generally be more consistent with providing advice on behalf of the
government on the basis of the individual's best judgment, rather than
acting as a stakeholder to represent the views of a nongovernment
entity or group with an interest in the matter. At our exit conference,
OGE officials agreed that, generally, it is not appropriate to appoint
committee members as representatives on the basis of their expertise.
Further, this approach to classifying members does not recognize and
essentially avoids using the special government employee category,
which was specifically created to facilitate the government's ability
to retain the services of experts in various fields for such purposes
as temporary service on federal advisory committees.
* The conclusion section of the OGE guidance implies that when the term
"representative" is used in authorizing legislation, or other such
documents, members should be classified as representatives, despite the
fact that this term may be used for more generic purposes, such as to
direct the balance of a committee. The guidance states that the
decision to make representative appointments to federal advisory
committees can be indicated in enabling legislation, executive orders,
committee charters, or other pertinent documents by "the use of words
to characterize [committee members] as the representatives of
individuals or entities outside the government who have an interest in
the subject matter assigned to the committee." However, the use of some
form of the terms "represent" or "representative" in these documents
does not always clearly indicate that the members are to be appointed
to serve as representatives; sometimes these terms are used to define
committee composition or balance. For example, some of the documents
use the term "representative" to identify fields of expertise or
employment background needed--specifying, that is, the expertise and
points of view deemed pertinent. Some of the documents do not state
that the representatives identified have an interest in the matter (as
the guidance quoted above calls for) or that they are to speak for
their organizations; thus the documents using the term "representative"
are sometimes ambiguous. Unlike the guidance on identifying committee
members appointed as special government employees--"by the use of words
to command the members to exercise individual and independent
judgment"--the guidance on identifying representative members does not
specify the nature of the advice to be provided (e.g., stakeholder
advice).
* The OGE guidance states that the fact that someone is appointed to a
committee on the recommendation of an outside organization tends to
support the conclusion that the person has a representative function.
However, a number of committees solicit recommendations from outside
organizations when appointing special government employees in order to
achieve appropriate balance and expertise on their committees. Thus,
the guidance does not take into account a common practice that agencies
use to identify potential committee members and may overemphasize the
weight that agencies should give to this factor when determining what
constitutes a representative appointment.
Officials at EPA and NASA also said that the OGE guidance on
representative appointments is ambiguous in some respects. They believe
it would be very helpful for agencies to have clear criteria for
representative appointments. Further, the officials said that training
on the issue of appointments to advisory committees has limitations.
Specifically, the EPA and NASA officials said that, in their view, the
FACA management course does not sufficiently clarify when appointments
should be made as special government employees and when they should be
made as representatives. These officials also noted that the agencies'
ethics officials generally are not the ones who make decisions on the
appropriate appointment category; rather, appointment type is viewed
more as a FACA management issue. Thus, agency officials managing
federal advisory committees may look to GSA more than to OGE for
clarification on appointment questions. For example, an official at EPA
who has served a detail at GSA said that GSA regularly receives calls
from agencies with questions about the distinction between the two
types of appointments. We believe these circumstances highlight the
importance of both the coordination between GSA and OGE to ensure that
GSA is prepared to respond to questions about appointments and the GSA
FACA management training directed at agency staff who manage federal
advisory committees.
Although the FACA management course manual provides useful information
on appointments to committees, we identified some limitations in this
material as well. For example, the introductory sentence on
appointments states that determining the status of an individual
serving on a federal advisory committee is "largely a matter of
personnel classification and should be coordinated with an agency's
personnel office." In our view, this statement minimizes the importance
of examining the type of advice that the individual is being asked to
provide as a key determinant of the status of an individual (i.e., the
type of appointment to be made). In this regard, in December 2003
officials at OGE told us that they have now concluded (1) that agencies
should decide at the outset whether the members of each committee are
going to be representatives or special government employees and (2)
that this decision should be part of the chartering process. In
addition, the GSA manual is not clear and unambiguous on the role of
representative members, stating that, in general, representative
members of advisory committees "serve as representatives of outside
entities and may [emphasis added] represent the views of a particular
industry or group (e.g., labor, agriculture or other similar group of
interests)." In contrast, OGE guidance states that representatives are
to represent the views of identified entities or groups. Finally, the
GSA manual highlights some OGE criteria from its 1982 guidance document
that, as discussed above, we believe need clarification.
The consequences of appointing advisory committee members as
representatives when they are in fact asked to provide advice on behalf
of the government without representing any particular outside entity's
or group's point of view exposes the relevant committees to potentially
serious problems. Because representative members are not subject to
reviews for potential conflicts of interest, allegations of conflicts
of interest may call into question the integrity of the committee and
jeopardize the credibility of the committee's work.
Some agencies do address the potential conflicts of interest of their
representative members to some extent. For example, Interior's Bureau
of Land Management prohibits its advisory committee members from
participating in any matter in which they, a spouse, or dependent child
have a direct interest and requires the members to disclose any direct
or indirect interest in leases, licenses, permits, contracts, or claims
and related litigation that involve lands or resources administered by
the bureau. However, this policy does not require the representative
members to identify any other financial interests. Interior officials
also told us that the department has begun inserting standard language
into its committee charters briefly stating the ethics obligations of
the members, whether they are special government employees or
representatives. The charters for committees with representative
members will include a statement that "a member may not participate in
matters that will directly affect, or appear to affect, the financial
interests of the member or the member's spouse or minor children,
unless authorized by the designated federal official."[Footnote 29]
In January 2004, Interior officials also said that the department has
begun working with its committee management officers to develop
training and distribute materials to heighten committee members'
awareness of applicable ethical obligations and to develop and
institute the appropriate screening mechanisms. Similarly, Energy does
not require representative members to provide information on their
financial interests and affiliations but does tell representative
members in letters appointing them to committees that they "are
required to recuse themselves from participating in any meeting, study,
recommendation, or other committee activity that could have a direct
and predictable effect on the companies, organizations, agencies, or
entities with which they are associated or in which they have financial
interest." Interior and Energy policies thus rely on committee members'
correctly identifying and voluntarily disclosing such circumstances. In
contrast, USDA requires its representative members to provide
information about their employment and sources of income in excess of
$10,000 but does not ask for information about other financial assets
that may affect impartiality, such as stock holdings. However, if these
members should have been, and actually were, appointed as special
government employees, none of these approaches would be adequate to
ensure that the members did not have conflicts of interest requiring
mitigation.
At the start of our review, Interior officials told us that they had
begun to review their appointment classifications for their 115
advisory committees as a result of the November 2002 OGE study. The
officials noted that many of their committees addressing federal land
management issues are not scientific and technical in content and, in
their view, are appropriately staffed with representative members. In
January 2004, Interior officials acknowledged that it was appropriate
to change the nature of some committee members' appointments upon
reexamination of any underlying legislation and the purpose of the
committees. The officials said the department has been reviewing the
appointments to committees as their charters expire, and that the
department has appointed special government employees to a few advisory
committees during the past year.[Footnote 30] Regarding the earthquake
studies committee discussed above, in January 2004 the department
examined the appointments while renewing the charter and determined, on
the basis of its review of the committee's authorizing legislation,
that the members of this committee should properly serve as special
government employees. This committee has been operating for 2 years
with members appointed as representatives. Interior officials said the
change in appointments will be reflected in the charter and in the
pending appointment letters, and the committee will not be active again
until these changes are made.
While noting that it now believes the authorizing language for the
earthquake committee clearly calls for the appointment of the members
as special government employees, the officials said that other
committees that address scientific and technical issues specifically
call for the appointment of representatives, such as Interior's
National Cooperative Geologic Mapping Advisory Committee. This
committee, comprised primarily of officials from five federal agencies,
is to review and provide advice on a 5-year plan for the geologic
mapping program that the Secretary of the Interior is required to
prepare. In our view, while the statute calls for the committee to
include two representatives from the state geological surveys and one
each from "academia" and "the private sector," it does not clearly and
unambiguously call for these individuals to be appointed as
representative members rather than special government employees. As
previously discussed, the term "representative" may be used in a
variety of ways and may be used in a more generic manner to describe a
committee's composition. The term "representative" does not necessarily
indicate that members should be stakeholders speaking for entities with
an interest in the matter, nor is it clear in this case that academia
or the private sector would have a specific point of view that could be
represented. We believe the department could choose to appoint these
members as special government employees to obtain their advice, if
Interior decided that nonstakeholder advice was appropriate in light of
the committee's function. On the other hand, if the department wants to
obtain stakeholder advice from the nonfederal committee members
regarding the government's 5-year geologic mapping program plan, the
representative members should be clearly informed about the specific
interest and points of view they are to represent.
On this point, Interior officials acknowledged that their advisory
committee members themselves are not always clear on whether they are
to provide stakeholder advice or advice on behalf of the government.
For example, during our review we learned that this question was raised
at the initial meeting of the earthquake committee in 2001, at which
point in time the representative members were told that they were
charged with providing advice on behalf of the government, guidance
indicating that the representative members were to function as special
government employees. To be certain that committee members are clear on
their roles in the future, Interior officials said that the department
has begun to ensure that letters appointing individuals to advisory
committees clearly inform the member of their status as either a
special government employee or a representative. Further, if the
members are to serve as representatives, they are to be clearly
informed of the constituencies they are to represent before the
committee. Clearly, this is an important fact to communicate to the
committee members.
GSA officials also told us that appointment information is relevant and
important to understanding the work of the various committees. The
officials agreed that information on the nature of the advice being
provided--and, in the case of representative appointments, of the
entities or groups represented--that is not currently available to the
public would be useful and informative. They further indicated that the
GSA FACA database, which is available to the public and which
identifies the members of the advisory committees, could be expanded to
include, for each committee member, the type of appointment and the
entity or group represented.
Information That Can Help Agencies Ensure Committees Are Balanced Is
Not Systematically Gathered and Evaluated:
Many agencies do not identify and systematically collect and evaluate
information that can help them determine the points of view of their
potential committee members regarding the subject matters the
committees will consider and thus better ensure that committees are,
and are perceived as being, balanced. FACA requires that committees be
fairly balanced both in terms of the points of view represented and the
functions to be performed. Courts have interpreted the FACA requirement
for committee balance as providing agencies with broad discretion in
balancing their committees. In addition to the legal requirement for
balance, it is important that committees are perceived as being
balanced in order to be credible and effective. However, GSA guidance
does not address what types of information could be helpful to agencies
in assessing the points of view of potential committee members, nor do
agency procedures identify what information should be collected about
potential members to make decisions about committee balance. Many
agencies do not identify and systematically collect and evaluate
information that would be helpful in determining the points of view of
committee members relevant to the subject matters the committees will
consider. For example, of the nine departments and agencies we
reviewed, only EPA consistently collected information on committee
members who were appointed as special government employees in order to
assess the points of view of the potential members and used this
information to help achieve balance.
Assessing the points of view of individual members is fundamental to
ensuring that committees as a whole are, and are perceived as being,
fairly balanced in terms of points of view because agencies must first
know whether the members have particular viewpoints or whether they may
have--or may reasonably be perceived as having--certain biases. For
example, only financial interests and affiliations during the prior
year are considered pertinent for conflict-of-interest purposes, but
financial and other relevant affiliations--extending beyond the 12-
month period--may identify a potential bias or point of view that
agencies should consider both in selecting individual members and
balancing the committees as a whole. Even when a legal conflict of
interest does not exist, a committee member may be so closely aligned
with a point of view or an organization that his or her ability to
provide objective and impartial advice is impaired or appears to be
impaired. Such circumstances in which a person's impartiality may be
called into question, sometimes referred to as an "apparent conflict of
interest" and a "perceived conflict of interest," are important for
agencies to be aware of because the perception of bias that can harm
the reputation of advisory committees is independent of the legal
definition of a conflict of interest.[Footnote 31] In some cases,
however, agencies may find it helpful to include individuals with known
biases, perspectives, or affiliations to serve on certain advisory
committees in order to ensure that the relevant points of view are
considered.[Footnote 32] In these cases, the issue of the overall
balance of viewpoints on the committees is heightened in the sense of
an agency's ability to ensure that the committee is balanced with
respect to points of view. When agencies are unaware of the viewpoints
and biases of its members, they cannot adequately ensure that the
committees are, and are perceived as being, balanced as a whole.
Agencies typically rely on two sources to collect data about committee
members who were appointed as special government employees: curricula
vitae (CV) or résumés and the OGE form 450, the confidential financial
disclosure form. Agencies generally collect CVs[Footnote 33] or résumés
that may provide some information pertinent to assessing points of
view, such as professional affiliations and published articles. Some
agencies may also perform Internet searches for background information
on candidates. However, these sources vary in content and reliability
and may not be sufficient to consistently provide the information
needed to assess for points of view.[Footnote 34]
The form 450, which does collect specific information in a systematic
manner, was developed specifically for reviews for potential financial
conflicts of interest. Some of the information on this form, however,
also is relevant to assessing the overall balance of viewpoints on a
committee. The form 450 requires potential committee members (and
returning members at least annually) to provide information on sources
of income and assets, liabilities, and outside positions during the
prior year and on existing employment agreements or arrangements, such
as promises of future employment and leaves of absence.[Footnote 35]
The information on income sources, honoraria, and outside positions
held during the prior year may be important to assessing for points of
view.[Footnote 36] For example, a university professor who is also an
official of an environmental advocacy organization may reasonably be
viewed by a sponsoring agency and others as representing an
environmental rather than an unaligned "academic" perspective.
Similarly, a university professor who is also an official of a
toxicology institute that receives funding from chemical companies or
who provided expert legal testimony for a corporation may reasonably be
viewed by a sponsoring agency and others as providing an industry
perspective.
Importantly, while the form 450 can provide some pertinent information
for assessing points of view, it was neither designed for nor does it
provide sufficient information for this purpose. Specifically, as our
review of EPA's Science Advisory Board demonstrated,[Footnote 37] the
form 450--designed for financial conflict-of-interest reviews--
solicits information covering only the prior year and does not request
other information relevant to assessing points of view, such as:
* previous public statements or positions on the matter being reviewed,
including statements in articles, testimony, or speeches;
* positions taken in various legal forums, particularly in providing
expert legal testimony, on the matter;
* research conducted on the matter;
* interests of their employers or clients in the matter; and:
* sources of funding for research or other activities.
However, such information is helpful to understand the points of view
of potential committee members and therefore to assess how an
individual member's participation on the committee would affect overall
committee balance. For example, it is helpful for agencies to be aware
of public pronouncements that candidates have made on matters relevant
to their committees so that they can assess how such individuals may be
viewed in terms of impartiality. In those instances where an agency
selects a member for their expertise who may have a viewpoint that is
aligned with an industry or environmental interest, without the
information that would reveal the existing viewpoint, the agency would
not be aware of whether including a member with a different viewpoint
would be beneficial in terms of the public's perception of committee
balance.
In addition, the extent to which a committee member's employment is
funded by a grant or grants from the sponsoring agency is a reasonable
factor to consider in assessing the member's impartiality in terms of
independence from the agency. On this point, the Office of Management
and Budget recently highlighted in its proposed rule on peer review
procedures that the independence of scientists conducting peer reviews
for agencies while at the same time receiving funding from these
agencies might be called into question. Similarly, the 2003 report by
the National Academies on organizational issues within NIH recommended
that a substantial portion of a committee's scientific membership
should consist of persons whose primary source of research support is
derived from a different NIH center or institute or from outside of NIH
in order to achieve sufficient independence from the agency.[Footnote
38] Officials at EPA and FDA told us that they try to avoid appointing
to committees members who receive agency grants for work that is
related to matters before the committee. In contrast, Energy and NASA
officials said it would be difficult for them to find for some
committees the scientific and technical experts they need who do not
also receive grants from their agencies. We are not suggesting that
having grants or contracts with the sponsoring agency should disqualify
individuals from serving on federal advisory committees, but rather
that agencies should consider the support they provide to potential
members since this does present potential issues of independence from
the agency.
Agencies generally have even less information to evaluate the
viewpoints of their representative members because representatives are
not required to complete the form 450. Consequently, agencies generally
do not collect information relating to the financial interests of the
representative members. Although representatives are not subject to the
financial conflict-of-interest rules, their financial interests could
affect their viewpoints. An EPA official acknowledged that for some
representative committees, it may be important to consider this
information, depending on the work of the committees. However, another
EPA official expressed a concern that asking representative members--
who are not paid for their services--for financial information, such as
is obtained from those retained as special government employees, could
have a chilling effect on the willingness of people to serve on
advisory committees as representatives.[Footnote 39]
Regarding special government employees, we found that although agencies
have generally collected forms 450 from these employees, the forms are
not always collected in time for them to be of any use in also
evaluating the points of view of potential committee members. For
example, some agencies, such as NASA and CDC, do not collect the form
450 until the agency has made decisions about appointments. (We
recognize that the form 450 was designed to assess for conflicts of
interest and that agencies are not required to also use it to assess
for points of view; however, as previously discussed, the form
nonetheless can provide some valuable information to agencies regarding
the viewpoints of an individual.):
Of the nine committees we reviewed, only EPA's Federal Insecticide,
Fungicide, and Rodenticide (FIFRA) Scientific Advisory Panel
consistently collected information relevant to assessing the points of
view of prospective members and considered this information in
selecting members for its peer review panels.[Footnote 40] Agencies
with committees served by special government employees generally
collected information from CVs and résumés and on the form 450, which,
as discussed above, has limitations in terms of assessing the points of
view of committee members. Agencies with representative members either
collected only CVs or, in the case of USDA, collected some additional
information about sources of income. (See table 1.):
Table 1: Documentation That Agencies Systematically Collected on
Potential Members of Selected Committees:
Department/Agency: Agriculture/Food Safety and Inspection Service;
Committee name: National Advisory Committee for Microbiological
Criteria for Foods[B];
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: USDA form AD-755[A].
Department/Agency: Energy;
Committee name: Biological and Environmental Research Advisory
Committee[B];
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: OGE form 450: No;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: Alternative form approved by OGE: No;
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: No.
Department/Agency: Environmental Protection Agency;
Committee name: Federal Insecticide, Fungicide, and Rodenticide Act
Scientific Advisory Panel;
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: OGE form 450: No;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: Alternative form approved by OGE: Yes[C];
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: Structured;
telephone interview.
Department/Agency: Health and Human Services;
Committee name: Secretary's Advisory Committee on Human Research
Protection;
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: OGE form 450: Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: Alternative form approved by OGE: No;
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: No.
Department/Agency: Health and Human Services/Centers for Disease
Control and Prevention;
Committee name: Advisory Committee on Childhood Lead Poisoning
Prevention;
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: OGE form 450: Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: Alternative form approved by OGE: No;
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: No.
Department/Agency: Health and Human Services/Food and Drug
Administration;
Committee name: Food Advisory Committee;
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: OGE form 450: Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: Alternative form approved by OGE: Yes[D];
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: Structured telephone interview[E].
Department/Agency: Health and Human Services/National Institutes of
Health;
Committee name: Scientific Advisory Committee on Alternative
Toxicological Methods;
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: OGE form 450: Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: Alternative form approved by OGE: No;
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: No.
Department/Agency: Interior/U.S. Geological Survey;
Committee name: Scientific Earthquake Studies Advisory Committee[B];
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: OGE form 450: No;
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: Alternative form approved by OGE: No;
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: No.
Department/Agency: National Aeronautics and Space Administration;
Committee name: Space Science Advisory Committee;
Documentation that agencies systematically collected on
potential members of selected committees: Curriculum vitae or résumé:
Yes[F];
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: OGE form 450: Yes[F];
Documentation that agencies systematically collected on
potential members of selected committees: Conflict-of-interest
financial disclosure form: Alternative form approved by OGE: No;
Documentation that agencies systematically collected on
potential members of selected committees: Other data collection
instrument: No.
Sources: Data collected from agencies' committee management offices,
designated federal officials, or other agency officials responsible for
nominating members of committees.
[A] USDA requires members of its advisory committees to file a USDA
form AD-755. This form requests information on the individual's primary
employment, sources of income over $10,000, and other matters related
to the individual's background in agriculture.
[B] Members were appointed as representatives not subject to conflict-
of-interest reviews.
[C] The EPA FIFRA Scientific Advisory Panel uses the EPA form 3110-48
in lieu of the OGE form 450. The EPA form requests more detailed
information from members about their affiliations and association with
the work of the committee.
[D] FDA requires members of its Food Advisory Committee to file a form
450 during the appointment process. However, if the Food Advisory
Committee, or any other FDA advisory committee, plans to discuss
"particular matters" of specific applicability, the agency will require
members to file an FDA form 3410 prior to the meeting. The form 3410
requests more specific information about a member's affiliation with
particular companies identified by FDA that might be affected by the
committee's deliberations during a specific meeting.
[E] See footnote 40.
[F] The designated federal official for the NASA Space Science Advisory
Committee requests short biographical sketches from prospective
members. Agency officials consider these sketches when deciding whom to
appoint. After the agency has decided to appoint an individual, it
requests a copy of a curriculum vitae and a completed form 450.
[End of table]
Regarding the EPA FIFRA Scientific Advisory Panel, this advisory
committee convenes about six panels annually to address scientific and
technical issues. For example, we reviewed one such panel that was (1)
evaluating the range of developmental effects associated with the
exposure of amphibians to the pesticide atrazine and (2) determining
the significance of these effects for risk assessment and the likely
threshold exposure value for eliciting these effects. The executive
director of this committee said that candidates with known positions or
biases generally are not selected for the panels--that is, the agency
does not select individuals previously associated with the agency,
regulated industries, or stakeholder communities. In addition, the
agency generally does not select individuals with a stated position on
the particular matter being reviewed. The FIFRA Scientific Advisory
Panel defines balanced membership as including the necessary areas of
technical expertise, different scientific perspectives within each
technical discipline, and the collective breadth of experience needed
to address the agency's charge. In order to evaluate potential members,
the FIFRA Scientific Advisory Panel uses CVs and the EPA alternative
disclosure form that asks committee members to provide information
needed to assess impartiality, such as information about compensated
expert testimony and sources of research and project funding during the
prior 2 years. The form also asks candidates to consider all relevant
information over the past 5 years and to identify and describe any
reason that they may be unable to provide impartial advice on the
matter to be considered by the panel.
The executive secretary of the FIFRA Scientific Advisory Panel told us
that EPA's alternative financial disclosure form--developed to address
the limitations we identified in our report on EPA's Science Advisory
Board--has greatly facilitated their ability to consistently obtain
relevant information. The FIFRA Scientific Advisory Panel also asks
potential members several standard questions that we identified in our
prior report as relevant to assessing impartiality, such as whether
they have made any oral or written public statement on the issue before
the panel.[Footnote 41] As a result of obtaining and reviewing this
information in order to select members and ensure appropriate committee
balance overall, the FIFRA Scientific Advisory Panel is in a position
to make informed choices. By systematically collecting relevant
background information on all candidates, the FIFRA Scientific Advisory
Panel is in a position to ensure that its panels are balanced in terms
of the points of view represented. We also found that FDA often
collects similar information on an alternative form that provides some
pertinent information for assessing points of view, but the agency does
not use this information to assess the overall balance of the
committees. That is, FDA generally uses the form 450 in reviewing
candidates for appointments to committees and uses the alternative form
to review for conflicts of interest for specific meetings that involve
particular matters.
In addition, agencies that have collected forms 450 for special
government employees for the purpose of conflict-of-interest reviews
may not use the information available to them on the forms that--
although designed for conflict-of-interest reviews--could also be
helpful in evaluating the points of view committee members may have.
For example, the Director of the White House Liaison Office at HHS, who
developed the committee roster for the Secretary's Advisory Committee
on Human Research Protections that the Secretary of HHS approved, said
that she did not review the forms 450 in selecting members.[Footnote
42] She viewed the task of reviewing the forms 450 as the purview of
the agency ethics officials who would determine whether financial
conflicts of interest existed. In response to our questions about
whether affiliations with law firms, identified by some members on the
forms 450, may be relevant to consider in terms of their points of
view, she said that she did not need to know the particulars about the
legal work since she did not consider such information relevant to
selection decisions. Further, she said that she did not consider
particular points of view candidates may have in making selections. For
example, we asked her if she considered the point of view of one member
who had publicly stated disagreement on religious grounds with certain
research that is included in the committee's charter, and she said she
did not. The Director stated that she nominated members to the
Secretary for his approval primarily on the basis of their expertise
and also considering several demographic factors (gender, race, and
geographic location) to the extent these additional factors did not
impinge on the department's ability to pick qualified members. She
noted that these factors reflect the department's written policies and
procedures.[Footnote 43]
Officials at other agencies said they considered similar factors in
balancing the other eight committees we examined. Specifically,
officials indicated that they focused on expertise, demographic
characteristics, and employment history as factors to assess points of
view as it affects balance. (See table 2.) As previously discussed,
FACA does not elaborate on how agencies are to ensure that advisory
committees are fairly balanced in terms of the expertise and the points
of view of the members, nor does it provide criteria for assessing
balance.[Footnote 44] Thus, agencies have considerable discretion in
determining how they will meet the requirement for achieving balanced
committees.
Table 2: Factors Used by Agencies to Balance Selected Committees:
Department/Agency: Agriculture/Food Safety and Inspection Service;
Name of committee: National Advisory Committee on Microbiological
Criteria for Foods;
Expertise: Yes;
Ethnicity: Yes;
Gender: Yes;
Geography: Yes;
Employment sector: Yes.
Department/Agency: Energy;
Name of committee: Biological and Environmental Research Advisory
Committee;
Expertise: Yes;
Ethnicity: Yes;
Gender: Yes;
Geography: Yes;
Employment sector: Yes.
Department/Agency: Environmental Protection Agency;
Name of committee: Federal Insecticide, Fungicide, and Rodenticide Act
Scientific Advisory Panel;
Expertise: Yes;
Ethnicity: Yes;
Gender: Yes;
Geography: No;
Employment sector: No.
Department/Agency: Health and Human Services;
Name of committee: Secretary's Advisory Committee on Human Research
Protections;
Expertise: Yes;
Ethnicity: Yes;
Gender: Yes;
Geography: Yes;
Employment sector: [Empty].
Department/Agency: Health and Human Services/Centers for Disease
Control and Prevention;
Name of committee: Advisory Committee on Childhood Lead Poisoning
Prevention;
Expertise: Yes;
Ethnicity: Yes;
Gender: Yes;
Geography: Yes;
Employment sector: No.
Department/Agency: Health and Human Services/Food and Drug
Administration;
Name of committee: Food Advisory Committee;
Expertise: Yes;
Ethnicity: Yes;
Gender: Yes;
Geography: Yes;
Employment sector: Yes.
Department/Agency: Health and Human Services/National Institutes of
Health;
Name of committee: Scientific Advisory Committee on Alternative
Toxicological Methods;
Expertise: Yes;
Ethnicity: Yes;
Gender: Yes;
Geography: Yes;
Employment sector: Yes.
Department/Agency: Interior/U.S. Geological Survey;
Name of committee: Scientific Earthquake Studies Advisory Committee;
Expertise: Yes;
Ethnicity: No;
Gender: Yes;
Geography: Yes;
Employment sector: Yes.
Department/Agency: National Aeronautics and Space Administration;
Name of committee: Space Science Advisory Committee;
Expertise: Yes;
Ethnicity: Yes;
Gender: Yes;
Geography: Yes;
Employment sector: Yes.
Sources: Information on the criteria considered to balance committees
came from designated federal officials, committee management officials,
or other agency officials responsible for nominating or appointing
members of committees.
[End of table]
In discussing their selection criteria, most officials reported that in
selecting members for these science and technical committees, they
focused first and foremost on expertise. Some agency officials said
that they do not consider a balance of points of view as relevant to
science and technical committees, believing that the appropriate focus
for such committees is obtaining the appropriate balance of required
expertise. We do not disagree that this focus is appropriate,
particularly for committees that address scientific and technical
issues. While courts have interpreted FACA as giving agencies broad
discretion in how to balance their committees, in our view, the
integrity of these committees' advice would be better served if
agencies were to consider additional information about potential
members' points of view. For example, experts in a given field of
expertise may have varying scientific perspectives that agencies could
consider for balancing the committee. Along these lines, the FIFRA
Scientific Advisory Panel defines balance as including different
scientific perspectives within each technical discipline.
Second, the officials most commonly related "points of view" to
demographic factors, such as race, gender, or geographic locations--
that is, defining a balance of points of view in terms of demographic
diversity. While important, these criteria alone do not provide a
robust understanding of the points of view and potential biases the
members may bring to the committee vis-à-vis the specific matters the
committees will address. That is, these approaches may achieve
demographic diversity, but they cannot ensure an appropriate balance of
viewpoints relative to the matters being considered by the committees.
Third, some of the officials also identified the primary employment
affiliation as a factor relevant to achieving a balance of points of
view. For example, a factor in committee balance for one committee is
the breakdown of members employed by universities, private industry,
and federal and state agencies. We agree the primary employment
affiliation may be an important consideration for a number of
committees to ensure a balance of points of view. However, as we
illustrated in our work at EPA's Science Advisory Board, the staff
director of the board viewed some academics as aligned either with
industry or environmental perspectives and some experts affiliated with
industry as representing an environmental perspective on the basis of
information about their other affiliations. Additional information
about the candidates' viewpoints and potential biases would better
ensure that the committees are, and are perceived as being, fairly
balanced in terms of points of view--and that no one interest or
viewpoint dominates. Along these lines, NIH officials told us that the
information EPA collects to evaluate potential committee members would
be very helpful to them in selecting members and ensuring that
committees are balanced as a whole.
Finally, we note that other practices agencies use in forming new
committees and in selecting replacement members for existing committees
can help them better ensure that their committees are appropriately
balanced. These include steps agencies take to identify potential
candidates and to seek feedback on proposed committee membership.
Appendixes III through XI provide information on the nine committees we
reviewed, including how the agencies identified candidates and whether
they requested public comments on the committee membership. These and
other practices are discussed in the next section.
Promising Practices Could Better Ensure Independence and Balance:
Some agencies use practices when forming and managing their committees
that can better ensure that federal advisory committee members are
independent and that committees are balanced. These practices include
(1) obtaining nominations for committee members from the public, (2)
using clearly defined processes to obtain and review pertinent
information on potential members regarding potential conflicts of
interest and impartiality, and (3) prescreening prospective members
using a structured interview. In our view, these measures constitute
promising practices because they reflect the principles of conflict-of-
interest provisions and FACA by employing clearly defined procedures to
promote systematic, consistent, and transparent efforts to achieve
independent and balanced committees. Although these practices for
obtaining and reviewing pertinent information to assess for conflicts
of interest and impartiality are broadly applicable, some of the
practices, such as seeking public comment on proposed committees, are
most particularly relevant to those committees addressing sensitive or
controversial topics. If more agencies adopted and effectively
implemented these practices, we believe they would have greater
assurance that their committees are, and are perceived as being,
independent and balanced. In addition, we have identified selected
measures that could promote greater transparency in the federal
advisory committee system.
Obtaining Nominations from the Public:
When seeking to appoint members to their federal advisory committees,
agencies often use a combination of methods to obtain nominations for
potential committee members. Agencies typically rely on relevant
program officials in the agency, officials from other agencies, members
of professional organizations, and authors of relevant scientific and
technical literatures as ways to identify potential committee members.
Some agencies also seek nominations from the public by using widely
available resources, such as the Federal Register and agency Web sites,
to broaden the pool of candidates from which committee members may be
drawn. The latter approach is a systematic and transparent method of
obtaining nominations and can provide agencies with greater assurance
that a range of relevant experts and/or stakeholders capable of
creating impartial and balanced committees are identified.[Footnote 45]
In addition to their other methods of obtaining nominations from
colleagues, professional associations, and the like, we believe
agencies should also routinely consider obtaining nominations from the
public because this practice can both (1) help agencies identify
qualified candidates and (2) alleviate any perception that they are
choosing from a narrow pool of candidates that may not provide the
appropriate expertise and points of view. It may be particularly
relevant to solicit nominations from the public for committees that
address sensitive or controversial issues. Obtaining nominations from
the public may require more time and effort than less formal approaches
to identifying committee members and may also involve a publishing
cost. However, by actively engaging the public and all interested
parties in the process in an open and transparent manner, the agency's
credibility may be enhanced.
Using Clearly Defined Processes to Screen for Conflicts of Interest and
Points of View:
As previously discussed, many agencies do not consistently collect
information that could be helpful in determining the viewpoints of
potential members and ensuring that committees are, and are perceived
as being, balanced. However, the National Academies and EPA have
developed clear processes that, if effectively implemented, can provide
them with greater assurance that relevant conflicts of interest and
biases are identified and addressed, and that committees are
appropriately balanced in terms of points of view because they have
identified and evaluated the necessary information before committees
are finalized.
Specifically, the processes used by the National Academies and EPA's
Science Advisory Board clearly and consistently:
* identify the information they deem necessary to assess candidates for
independence and to balance committees,
* explain to the candidates why the required information is important
to protect the integrity of the committee's work,
* request public comment on proposed committee membership, and:
* require evaluation of the overall balance of committees before
committees are finalized.
Overviews of the processes used by the National Academies and the
Science Advisory Board are provided below.
The National Academies:
In 2001, we reported that to help balance their committees and
safeguard their credibility, the National Academies provide prospective
members with a document that offers a succinct, straightforward
discussion of what constitutes potential conflicts of interest and
biases and explains what information they are required to provide to
the National Academies on a standard form.[Footnote 46] In 2003, the
National Academies updated their procedures covering conflicts of
interest and bias, issuing their Policy on Committee Composition and
Balance and Conflicts of Interest for Committees Used in the
Development of Reports. In explaining the need for obtaining background
information about prospective members, the National Academies emphasize
that the work of their committees must be, and must be perceived as
being, free of any significant conflict of interest[Footnote 47] and
uncompromised by bias. The National Academies state that allegations of
conflict of interest or lack of balance and objectivity can undermine
the conclusions of fully competent committees. The academies continue
to request the following information from potential members on a
standard form: [Footnote 48]
* organizational affiliations,
* financial interests,
* research support,
* government service, and:
* public statements and positions.
In addition, prospective committee members are asked to identify and
describe any other circumstances in their background or present
connections that might reasonably be construed as unduly affecting
their judgment or that might be reasonably viewed as creating an actual
or potential bias or conflict of interest or the appearance of a bias
or conflict of interest. Further, the National Academies post
information about panel candidates on a Web site for public comment,
allowing the public the opportunity to identify any real or perceived
conflicts or biases associated with individual members and the ability
to raise issues regarding the balance of viewpoints on the proposed
committee. Lastly, the National Academies do not finalize their
committee selections until officials have reviewed and evaluated
information provided by prospective members and comments received from
the public regarding the proposed makeup of the committee. As we
previously reported, this process has proven beneficial to the
academies in selecting balanced peer review panels.[Footnote 49]
EPA's Science Advisory Board:
EPA's Science Advisory Board staff office has also developed a
systematic process to obtain and evaluate the information it needs to
assess potential members for potential conflicts of interest and to
properly balance the range of expertise and viewpoints on the board. As
previously discussed, federal committee members serving as special
government employees are subject to the criminal financial conflict-of-
interest statute. The staff office uses the alternative form that EPA
developed, form 3110-48, for special government employees serving on
advisory committees to collect information that enables the agency to
evaluate potential members for legal conflicts of interest and also
helps the agency in assessing for impartiality and points of view. The
staff office also contacts prospective panelists and asks them five
standard questions to help the office assess the panelists' points of
view, such as whether they have made any public statements on the
issues that the panels will consider. The staff office uses this
information to help ensure that any legal conflicts of interest are
identified and appropriately mitigated and to help ensure that
committees as a whole are balanced in terms of points of view.
EPA's form 3110-48 explains that the information being requested is
needed so that EPA ethics officials can make an informed judgment
regarding any conflict of interest or appearance of lack of
impartiality. The Science Advisory Board staff office further explains
how it uses the information that it collects in its brochure entitled
Overview of the Panel Formation Process at the Environmental Protection
Agency Science Advisory Board. As previously discussed, the information
that EPA collects on the form 3110-48 includes sources of income and
assets, liabilities, outside positions, consulting activities, sources
of research support or project funding, and compensated expert
testimony. Further, similar to the National Academies, EPA requests
potential members to identify and describe on the form any reason they
may be unable to provide impartial advice on matters before the
committee and any reason their impartiality in the identified matter
might be questioned. The Science Advisory Board staff office also
searches independently for background information on prospective
members to understand their qualifications and points of view. Also,
like the National Academies, EPA uses a public notice process to obtain
comments on proposed candidates for its Science Advisory Board. That
is, the staff office publishes the names and biographical sketches of
candidates for its committees on the board's Web site, requesting the
public to provide information, analysis, or documentation that it
should consider in evaluating the candidates. The staff office does not
finalize their committee selections until officials have reviewed and
evaluated the information provided by the candidates, any other
information the public may have provided, and information gathered by
the staff independently on the background of each prospective member.
According to a designated federal official for the board, the public
comment period is a last check in the screening process that can
identify information about prospective candidates, such as publicly
stated positions on matters related to the committee, that the staff
office would want to verify and evaluate prior to making panel
selections. He said the staff office has received feedback that the
biographical sketches are helpful, and he believes this practice
enhances the public's perception of the board's panel formation
process.
Prescreening Prospective Members Using a Structured Interview:
EPA's FIFRA Scientific Advisory Panel has a committee formation process
similar to that of the Science Advisory Board that also identifies the
specific information the staff will discuss in interviews with
prospective members. Although the purposes of the structured interview
include assessing the interest, availability, and expertise of the
potential member, a primary focus is on evaluating potential financial
conflicts of interest and biases. In addition, the interview provides
EPA with the opportunity to explain the ethical obligations of
committee members and discuss in detail the information that members
would have to provide on the EPA form 3110-48 before they could be
appointed to the committee. This process is efficient because it
enables the panel to quickly identify those individuals who meet its
criteria for independence and impartiality.[Footnote 50] Further,
prospective members who subsequently complete the form 3110-48 will be
better prepared to complete the form accurately. We note that the
panel's interview protocol, including the structured interview itself,
is available on its Web site. Thus, prospective members and the public
are informed of the processes and the issues that will be discussed
with all prospective members. The panel's approach to obtaining
relevant information from prospective committee members is systematic,
consistent, and transparent. Further, we believe it unlikely that
agencies formalizing and publicizing their processes for obtaining
information from prospective committee members would approve questions
that are generally inappropriate in a professional working environment,
such as questions about party affiliation or political viewpoints that
some committee members at other agencies have reported being asked.
Selected Measures Could Promote Greater Transparency in the Federal
Advisory Committee System:
In light of recent controversies surrounding the perceived
politicization of federal advisory committees, we identified several
other measures to improve transparency in the federal advisory
committee system. Although none of these measures can ensure that
committee members are independent and that committees are balanced, we
believe each of these alternatives has the potential to increase public
understanding of the process of appointing advisory committee members
and make more transparent the operations of federal advisory
committees.
In the interest of transparency, agencies could make public the
following information about each of their advisory committees:
* The committee formation process: how members are identified and
screened, and how committees are assessed for balance.
* Whether members are appointed as special government employees and are
speaking as independent experts, or whether members are appointed as
representatives and speaking as stakeholders.
* Whether committees arrive at decisions through a voting process or by
consensus.
There are several contexts in which agencies could make this
information available to the public. Specifically, the information
could be:
* written in the committee's charter;
* posted on the GSA on-line database;
* posted on the agency or committee's Web site;
* announced at committee meetings; or:
* identified on committee work products (reports, studies, or
recommendations).
It is in the public interest to disclose such basic information about
federal advisory committees. Further, we believe that taking such
measures to make information about committees available to the public
would help educate interested parties about the formation of committees
and better enable them to evaluate whether agencies have complied with
conflict-of-interest requirements and the FACA requirements for
balance. Given recent well-publicized accusations of biases and
conflicts of interest, efforts to improve the transparency of the
federal advisory committee system can only serve to inspire greater
public trust in the process and enhance the credibility of committees'
work.
Along these lines, we have identified two additional measures to
promote transparency that may warrant consideration: (1) public
disclosure of information concerning conflict-of-interest waivers and
(2) internal disclosure of potential conflicts of interest and sources
of bias among committee members prior to the initiation of committee
work.
Agencies may grant waivers to special government employees who have
potential conflicts of interest if the agency determines that either
(1) the conflict is insignificant or (2) the need for the member's
expertise outweighs the conflict. The financial conflict-of-interest
statute requires that agencies provide limited information to the
public about waivers upon request; namely, that an agency has granted a
waiver and the basis on which it was granted. The statute does not
require, however, that agencies proactively notify the public about
waivers, either during advisory committee meetings, in meeting minutes,
or in committee products. Our review of selected committees found that
agencies typically did not disclose this information. In contrast, FDA
has had a practice of providing at the beginning of meetings a summary
disclosure of any waivers granted to members for that meeting. The
disclosure identifies which members have received waivers and whether
the waivers were granted on the basis that conflict was insignificant
or that the need for the expertise outweighed the potential conflict.
Because information about the conflicts pertained to information that
members provide to agencies on confidential financial disclosure forms
that are protected under the Federal Privacy Act, details about the
conflicts were not provided. Thus, the public and others could not
evaluate the impact of the conflict on a person's ability to provide
impartial advice. In February 2002, as a result of a statutory
requirement, FDA issued for public comment a draft guidance document
describing its policy of disclosing specific information with respect
to waivers granted for particular matters of specific applicability--
that is, when members have a direct relationship with the products,
interests, and issues under the review of the committee. Under this
policy, FDA discloses not only the existence of a waiver but also
information on the committee member's interests that constitute a
conflict.[Footnote 51] To address the constraints imposed by the
Federal Privacy Act, FDA requires committee members to sign a consent
form giving FDA permission to publicly disclose this information before
members receive a waiver. According to FDA officials, committee members
have generally been willing to sign the consent forms and to disclose
this information. We believe the practice of publicly disclosing the
issuance of conflict-of-interest waivers to committee members increases
transparency and can also increase the credibility of the committee
process by allowing the public to know when a potential conflict exists
and why the agency saw fit to grant the member a waiver. Further, the
application of this practice could be expanded to include not only
particular matters of specific applicability (in which a particular
company or individual is likely to be affected by the matter) but also
to other particular matters (in which, for example, an industry or
group of persons is likely to be affected).
The National Academies have a policy of asking their committees to
engage in an internal discussion about members' work experiences,
affiliations, and other circumstances that might pose a potential
conflict of interest. The academies believe that an internal disclosure
of this information promotes transparency and serves to increase the
credibility of the committees' work. We agree that a confidential
discussion among committee members regarding real or perceived
conflicts of interest and biases can provide committee members with
important background information that can enable them to better
evaluate the perspectives of their fellow committee members.
Understandably, extending such a practice to federal advisory
committees, and in particular to members appointed as special
government employees, raises privacy questions because special
government employees are under no obligation to disclose such
information to fellow committee members or the public. However, we
believe that the possibility of requiring members to disclose
background information, affiliations, and other sources of potential
conflicts of interest and biases among individual committee members at
an internal disclosure session prior to the committee's beginning its
work warrants study.
Conclusions:
For federal advisory committees to be successful, the members must be
independent and the committees balanced--that is, they must be able to
provide, and be perceived as providing, credible and balanced advice. A
spectrum of scientists and other experts perceive recent appointments
to some science and technical committees as being influenced more by
ideology than expertise. Independent of the facts and specific issues
involved, this perception alone is problematic. The perception of the
federal advisory committee system as politicized can jeopardize the
value of an individual committee's work; discourage the participation
of scientists, experts, and other potential members on future advisory
committees; and call into question the integrity of the federal
advisory committee system itself. Because allegations of conflict of
interest and bias can undermine the work of otherwise credible and
competent committees and threaten the integrity of the federal advisory
committee system, the best interests of the government are served by
governmentwide guidance and agency-level policies and procedures for
addressing potential conflicts of interest and ensuring that committees
are, and are perceived as being, balanced. However, federal guidance in
these key areas has limitations that reduce its effectiveness.
First, OGE guidance on representative appointments can be strengthened
to better ensure that agencies are appropriately appointing committee
members. Unless certain ambiguities in the guidance are clarified, some
agencies may continue to appoint members providing advice on behalf of
the government as representatives and not conduct reviews of potential
conflicts, thereby leaving the specific committees and the federal
advisory committee system itself vulnerable to potential criticism if
potential conflicts of interest are identified. Clarifications that are
needed to ensure that representative appointments are made only when
the individuals are, in fact, asked to provide advice representing the
positions of the stakeholders they are representing include specifying
that representative appointments generally are not appropriate for
individuals who are to provide advice on the basis of their expertise.
Justifying representative appointments on this basis avoids using the
special government employee category, which was specifically created to
facilitate the government's ability to hire various experts for just
such a purpose as serving on federal advisory committees. The guidance
should also clarify that the use of the term "representative" in a
statute or charter may be used in a generic sense and does not
necessarily mean the members are to be appointed as representatives who
are to provide stakeholder advice. Again, in considering which type of
appointment is appropriate, the focus should be on the nature of the
advice to be provided. That is, individuals who are appointed to
federal advisory committees to provide advice on behalf of the
government (i.e., individuals who are not providing stakeholder advice)
should be appointed as special government employees. Finally, one of
the first steps agency officials should take in establishing new
committees is to determine, in consultations with agency ethics
officials, the appropriate appointment category for members. These
decisions should be reviewed as committee charters are renewed every 2
years.
Second, GSA could provide guidance that would assist agencies in
identifying the kinds of information they should systematically collect
in order to determine the viewpoints of prospective committee members
for the purpose of ensuring that committees are, and are perceived as
being, balanced. Although the type of information relevant to each
committee might differ in some respects, more systematic information
collection and evaluation can support better, and more informed,
committee appointments.
Improving existing federal guidance and agency procedures and
incorporating the revised guidance into the FACA management course
should enable federal agencies to better ensure that (1) potential
conflicts of interest of committee members have been identified and
appropriately mitigated upfront and (2) committees are appropriately
balanced in terms of points of view and functions to be performed.
Along these lines, alternative procedures used to create and manage
advisory committees at some federal agencies and the National Academies
constitute promising practices that can better ensure independence and
balance. Procedures such as obtaining nominations for committee members
from the public, reviewing more pertinent information regarding
members' points of view, and prescreening prospective members using a
structured interview would help agencies establish more systematic and
consistent methods of achieving independent and balanced committees.
Consistent with FACA's principle of transparency, agencies could also
adopt selected measures to make public more information regarding how
they form and manage their committees. We believe it is in the best
interest of both the public and the government to disclose more
information about the formation and operation of the advisory
committees--for example, how the members are identified and screened,
and whether members are serving as representatives of an identified
interest or as special government employees to provide independent
advice. In light of recent concerns about biases and conflicts of
interest, adopting more clearly defined procedures to screen and
appoint committee members and to increase transparency in the advisory
committee process would constitute important steps toward protecting
the integrity of the federal advisory committee system and maintaining
public confidence in the work of federal advisory committees.
Because this report identifies improvements to guidance and promising
management practices that generally apply to all federal agencies that
sponsor advisory committees and not just to the nine agencies addressed
in this report, we are directing our recommendations to OGE and GSA in
their roles as providers of governmentwide guidance on federal ethics
and advisory committee management requirements. Our expectation is that
all 54 federal agencies that currently sponsor federal advisory
committees could benefit from the improved guidance and management
practices.
Recommendations for Executive Action:
To better ensure that federal agencies correctly and consistently
comply with federal requirements when appointing federal advisory
committee members, we recommend that the Director of the Office of
Government Ethics revise its 1982 guidance to federal agencies defining
representative appointments to federal advisory committees. The
guidance should:
* clarify that classes of expertise generally are not a "recognizable
group of persons" for purposes of making representative appointments;
* consistently state that appointments as representatives are limited
to circumstances in which the members are speaking as stakeholders for
the entities or groups they represent; and:
* clarify that the term "representative" in statutes and charters may
also be used more generically to identify the appropriate balance of
points of view or expertise and may not be specifying that
representative appointments be used, and revise the directions on
specifying representative appointments to focus on the type of advice
representatives are to provide--that is, stakeholder advice.
To ensure that agencies' appointments to federal advisory committees
are appropriate, we further recommend that the Director of the Office
of Government Ethics and the GSA Committee Management Secretariat:
* direct federal agencies to review their representative appointments
to federal advisory committees either as the 2-year charters expire or,
for those committees with indefinite charters, within 1 year to
determine if the appointments are appropriate and to reappoint members
as special government employees, where appropriate, and:
* direct agency committee management officials to consult with agency
ethics officials in making decisions about the type of appointments
that should be made for each committee.
To better ensure that the agency staff managing federal advisory
committees understand when to appoint committee members as
representatives and when to appoint them as special government
employees, we recommend that GSA and OGE revise the training materials
for the FACA management course, incorporating the additional OGE
guidance as recommended above, and ensure that the course materials
highlight the fact that appointment decisions should be based on the
type of advice the committee members are to provide.
To better ensure that federal advisory committee members providing
stakeholder advice, and thus serving as representative members exempt
from federal financial conflict-of-interest statutes, do not have other
unknown points of view or biases, we recommend that OGE and GSA direct
agencies to determine, for each relevant committee, the potential for
such other biases and to take the appropriate steps to ensure their
representative members do not have such biases. At a minimum,
representatives should 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.
To better ensure that agencies have robust information to establish
committees that are balanced in terms of points of view and the
functions to be performed, we recommend that GSA provide guidance to
agencies regarding what background information might be relevant in
assessing committee members' points of view. Relevant information for
these purposes could include previous or ongoing research, public
statements or positions on the matter being reviewed, the interest of
the employer or clients in the matter, participation in legal
proceedings, and work for affected entities. In addition, potential
committee members should be asked if there is any reason they might be
unable to provide impartial advice on the matter or matters before the
committee, or if they know of any reason their impartiality on the
matter or matters might be questioned.
To better ensure that the committee members, agency and congressional
officials, and the public understand the nature of the advice provided
by federal advisory committees, we recommend 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 committees
are assessed for overall balance;
* state in the appointment letters to committee members whether they
are appointed as special government employees or representatives; in
cases where appointments are as representatives, the letters should
further identify the entity or group that they are to represent;
* identify each member's appointment category on the GSA FACA database;
for representative members, the entity or group represented should also
be identified; and:
* state in the committee products the nature of the advice provided--
that is, whether the product is based on independent advice or
consensus among the various identified interests or stakeholders.
Agency Comments and Our Evaluation:
We provided copies of a draft of this report to the two agencies, GSA
and OGE, to whom we address our recommendations to provide additional
guidance to federal agencies, and to the agencies whose advisory
committee management policies and procedures we reviewed: EPA; Energy;
HHS (with copies to CDC, FDA, and NIH); Interior; NASA; and USDA.
In commenting on the draft report, GSA agreed with the findings
relating to those areas under its purview. Further, GSA generally
agreed with our recommendations to OGE and GSA and outlined a proactive
approach to addressing those that pertain to GSA, including making
changes to its on-line FACA database, and to working with OGE on those
that pertain to OGE's responsibilities. GSA stated that it expects to
complete all necessary actions directly under its purview and those to
be achieved collaboratively with OGE and other agencies during fiscal
year 2005. GSA's comments are provided in appendix XII.
In its comments, OGE acknowledged that some agencies may be
inappropriately using representative appointments. Further, in
responding to our finding that several agencies believe representatives
may be appointed to represent their fields of expertise, OGE agrees
with us that such appointments are inappropriate--but does not agree
that any limitations in its guidance are a factor in the misuse of
representative appointments. Instead, OGE believes some agencies may be
purposely designating their committee members as representatives to
avoid subjecting them to the financial disclosure statements required
for special government employees--that is, agencies understand the
guidance and are simply disregarding it. Thus, OGE disagrees with us
that its guidance should directly address this apparent
misinterpretation of its guidance by clarifying, for example, that
classes of expertise are not a "recognizable group of persons" for
purposes of making representative appointments. OGE states that its
1982 guidance accurately represents a decades old, executive branch
interpretation of the definition of special government employees, and
that our report does not provide adequate support for a recommendation
that the guidance be modified. We disagree. Unless OGE clarifies the
issues our report has identified, progress will likely continue to be
slow or nonexistent--remembering that the 1982 guidance itself was
developed to address uncertainties regarding the appropriate uses of
representative and special government employee appointments. We believe
that clearer guidance would make it more difficult for agencies to
misapply the guidance. Further, unambiguous guidance would better
assist agency staff managing committees and better support oversight by
agency ethics officials, OGE, and others, such as inspectors general
and GAO. In addition, OGE's response that clarifications are not needed
does not acknowledge the views of other federal agencies, presented in
the draft report, that OGE guidance is ambiguous in some respects. For
example, EPA and NASA officials stated that having clear criteria for
representative appointments would be helpful to agencies. In addition,
we note that Interior states in its comments to us on the report that
"GAO's generalization that representation of fields of expertise is not
appropriate ignores the importance of such representation to some
committees." On the basis of this statement, we do not believe Interior
appreciates that expert advice can be appropriately obtained by the
appointment of special government employees. In addition, NASA's and
Energy's comments on the report also support the appointment of
representatives to represent fields of expertise. We believe these
statements illustrate the need for clarifications to OGE guidance on
representative and special government employee appointments to federal
advisory committees. Finally, in our view, if agencies are continuing
to make inappropriate appointments decades after criteria and guidance
were developed, it is not unreasonable to take another look at the
guidance. OGE's comments and our evaluation of them are discussed in
more detail in appendix XIII.
In commenting on the draft, officials from EPA and USDA agreed with the
substance of the report, providing only technical comments that we
incorporated into the draft as appropriate. USDA indicated that the
report is a helpful and comprehensive review of issues that can be used
as a resource for agencies that rely on the advice of federal advisory
committees.
HHS provided consolidated written comments (including its component
agencies CDC, FDA, and NIH). HHS said the report will be useful in
evaluating current practices for appointing members to serve on federal
advisory committees and also noted that the report provides a number of
interesting ideas for determining balance in points of view and
ensuring transparency in the committee process. HHS said that it finds
the report's recommendations of great value and indicated that NIH has
volunteered to work with GSA to assist them in implementing the
recommendations. At the same time, HHS expressed its belief that
members of scientific advisory committees should be selected because of
their expertise, background, and personal experience, rather than
through a "process seeking out some indefinable range of personal
opinion"--characterizing points of view as both undefinable and open to
misinterpretation. However, the draft and final reports do not espouse
a "process seeking out some indefinable range of personal opinion" but
rather identify processes that include an evaluation of potential
members' points of view relevant to the subject matters advisory
committees will consider while focusing on the relevant expertise
needed. The examples of agency processes provided in the report include
targeted evaluations of points of view by asking potential members a
few questions, such as whether they have made public statements or
taken public positions on the issue or matters the committee will
consider. They also ask potential members to identify and describe any
reason they may be unable to provide impartial advice on matters before
the committee and any reason their impartiality in the identified
matter might be questioned. In our view, agencies that do not
proactively and transparently address the relevant points of view of
prospective committee members regarding the matters the committees will
consider are more likely to be subject to questions about committee
balance from the public and potential users of the committees' products
than those agencies that use such processes. We continue to believe
that the credibility of advisory committees, in particular those that
address sensitive and controversial issues, depends in part upon
agencies' ability to identify and balance points of view held by
members and prospective members that are relevant to the work of the
committee. HHS's comments and our evaluation of them are discussed in
more detail in appendix XIV.
In written comments, Interior agreed with much in the report and
indicated that it contains many useful recommendations that can be used
to enhance the successful use of advisory committees. Interior
identified one overarching concern with the draft report, however. That
is, Interior said our report gave the incorrect impression that FACA
requires individuals on committees to be free of conflicts of interest,
noting that FACA requires that committees, rather than individuals, not
be inappropriately influenced by the appointing authority or any
special interest. The draft and final reports acknowledge this FACA
requirement in the background section. However, the draft and final
reports also explicitly state that our focus was on (1) the
requirements regarding individual conflicts of interest that are
included in federal conflict-of-interest statutes and (2) the FACA
requirement for committee balance. Further, in the introduction, we
state that "federal advisory committee members who are employees of the
federal government must meet federal requirements pertaining to freedom
from conflicts of interest--which we refer to in this report as
independence--and committees as a whole must meet the requirements
pertaining to balance." We further highlight the key provisions of the
federal conflict-of-interest statutes that must be complied with unless
granted a waiver in one section of the report and the FACA requirements
for balance in another. Interior's comments and our evaluation of them
are discussed in more detail in appendix XV.
In commenting on the draft report, NASA said that our conclusion that
agencies could benefit from additional guidance to better ensure
independence, balance, and transparency is sound. However, NASA
supports the appointment of federal advisory committee members as
representatives of their fields of expertise on the basis that some
experts would not be able to serve as special government employees due
to financial conflicts of interest. We believe this perspective
provides additional support for our view that OGE needs to provide
additional guidance on the appropriate use of representative
appointments, including clarifying that fields of expertise generally
are not a recognizable group of persons for purposes of making
representative appointments. NASA's comments and our evaluation of them
are discussed in more detail in appendix XVI.
In commenting on the draft report, Energy's Office of Science expressed
its concern that we were recommending a "one-size-fits-all" approach
that would diminish the effectiveness of the office's advisory
committees. In addition, the office said that our interpretation of the
term "representative" is unpersuasive and would be an unsound basis of
guidance for the department. We do not believe that we are recommending
a "one-size-fits-all" approach to advisory committee management. We
recognize that there are many types of committees that serve different
functions. Nevertheless, we believe that there are certain requirements
in FACA and the conflict-of-interest statutes that must be met by all
committees. With regard to the suggestions we made for selecting
committee members, we note that they were described as "promising
practices" that could be useful to agencies. They were not
recommendations. As for the term "representative," we continue to
believe that our interpretation of the OGE guidance is correct and that
our interpretation is supported by OGE's comments on our draft report.
In particular, we believe that it is inappropriate for agencies to
appoint members as "representatives" of a field of expertise, as
Energy's Office of Science indicates it will continue to do. Energy's
comments and our evaluation of them are discussed in more detail in
appendix XVII.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we will plan no further distribution until 30
days from the report date. At that time, we will send copies of this
report to other interested congressional committees; the Secretaries of
Agriculture, Energy, Health and Human Services, and the Interior; the
Administrators of the U.S. Environmental Protection Agency, the General
Services Administration, and the National Aeronautics and Space
Administration; and the Director of the Office of Government Ethics. We
will make copies available to others upon request. In addition, the
report will be available at no charge on GAO's Web site at [Hyperlink,
http: //www.gao.gov].
If you or your staff have any questions, please call me at (202) 512-
3841. Key contributors to this report are listed in appendix XVIII.
Signed by:
Robin M. Nazzaro,
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
This report (1) describes the role of federal advisory committees in
the development of national policies; (2) examines the extent to which
governmentwide and agency-specific policies and procedures for
evaluating committee members for conflicts of interest and points of
view ensure independent and balanced federal advisory committees; and
(3) identifies practices that could better ensure that committees are,
and are perceived as being, independent and balanced.
To describe the role of federal advisory committees in the development
of national policies, we reviewed committee charters, reports, and Web
pages available through the General Services Administration's (GSA) on-
line Federal Advisory Committee Act (FACA) database. We discussed the
FACA database with the GSA staff that developed and maintain the
database. Our discussion included issues such as data entry access,
quality control procedures, and the accuracy and completeness of the
data. We determined that the data on the overall universe of advisory
committees were reliable for the purposes of this report, including
describing the variety of issues the committees address.
To examine the extent to which current policies and procedures for
evaluating committee members for conflicts of interest and points of
view ensure independent and balanced federal advisory committees, we
reviewed the relevant policies and procedures at six federal
departments and agencies that make extensive use of federal advisory
committees--the Departments of Agriculture (USDA), Energy, Health and
Human Services (HHS), and the Interior; the National Aeronautics and
Space Administration (NASA); and the Environmental Protection Agency
(EPA). These agencies were among the 11 that used the most science and
technical committees in 2003.[Footnote 52] Because HHS entities manage
26 percent of all federal advisory committees and 36 percent of the
scientific and technical committees, we also reviewed the policies and
procedures at three HHS entities that sponsor many federal advisory
committees--the Centers for Disease Control and Prevention (CDC), the
Food and Drug Administration (FDA), and the National Institutes of
Health (NIH). We reviewed the policies and procedures used by these
nine departments and agencies to manage federal advisory committees.
These policies, in some cases, address appointments of committee
members as special government employees or representatives and address
how agencies identify, screen, and appoint members so as to ensure that
they are free of conflicts of interest and that the committees are
balanced. We interviewed committee management officials, designated
federal officials, and agency staff on committee management issues.
Further, to better understand how the agencies implement their policies
and procedures as well as the Office of Government Ethics's (OGE) and
GSA's governmentwide regulations and guidance, we examined the
management of one committee at each of the nine departments and
agencies. We selected a nonprobability sample[Footnote 53] of nine
committees that address scientific and technical issues using the
following criteria: selected committees had to examine issues that are
national in scope and scientifically complex, could have regulatory
implications, and/or could be potentially controversial either because
of the issues that they address or because the committee had been the
subject of allegations regarding membership. For these nine committees,
we reviewed the confidential financial disclosure forms of the
committee members appointed as special government employees and
discussed with staff how the committees used this information with
respect to conflict-of-interest and/or balance determinations. To learn
more about how agencies screen individuals for membership, we also
examined other materials that agencies collected about them, such as
their curricula vitae (CV) and résumés. The focus of our review was on
the adequacy of federal policies and procedures to ensure independence
and balance, and we did not make any judgments on whether conflicts of
interest existed or whether the committees we examined were properly
balanced. The way in which the agencies managed these particular
committees cannot be generalized to represent the way in which the
agencies manage all of their committees.
To determine if conflict-of-interest evaluations were performed as
required by OGE guidance, we reviewed the relevant guidance and
discussed with agency officials their use of representative and special
government employee appointments. The purpose of the discussions was to
determine whether the representative appointments were appropriately
used because representative members are not required to undergo
conflict-of-interest reviews. For the three departments that used
representative appointments almost exclusively, we identified the
committees the agencies categorize as addressing scientific and
technical matters for which advice on behalf of the government on the
basis of best judgment is often sought, rather than stakeholder advice.
For the individual committees selected for review at each agency
(described above), we examined the committee statutes and charters and
interviewed agency officials to determine whether the representative
members were asked to provide stakeholder or nonstakeholder advice.
To determine if agencies collect sufficient information to assess the
points of view of its committee members appointed as special government
employees, we assessed whether agencies systematically collected
background information on committee members in addition to the OGE form
450 used to evaluate for potential financial conflicts of interest and
CVs or résumés. We identified other information that is helpful in
assessing points of view and thus to ensuring that the committees
achieve a proper balance of viewpoints.
Further, in examining the extent to which the regulations and guidance
on evaluating committee members for conflicts of interest and
impartiality ensure independent and balanced federal advisory
committees, we reviewed the OGE regulations and guidance to federal
agencies regarding federal conflict-of-interest provisions and GSA
regulations and guidance to federal agencies regarding FACA. We
interviewed OGE staff who are responsible for auditing agencies' ethics
programs and who assist agencies in resolving conflict-of-interest
issues. These staff members also address issues related to the
appointment of special government employees and representative members
to federal advisory committees. We interviewed the director and other
officials from GSA's Committee Management Secretariat to learn about
FACA requirements, GSA regulations, and other GSA guidance documents
designed to assist agencies in managing their committees. We also
discussed with GSA officials how agencies use the GSA FACA database to
provide information to the public about committee membership and
activities.
To identify practices that could better ensure that committees are, and
are perceived as being, independent and balanced, we examined the
relevant policies and procedures of the National Academies;[Footnote
54] the nine committees and agencies examined in this review; and EPA's
Science Advisory Board, which had implemented a number of relevant
changes to its policies and procedures in response to our June 2001
report.[Footnote 55]
We conducted our review from January 2003 through March 2004 in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Federal Advisory Committees, by Authorizing Mechanism and
Type, in Fiscal Year 2003:
This appendix provides information on the ways that advisory committees
have been authorized, the functional categories of the committees as
reported by agencies to GSA, and the number of federal advisory
committee members.
Presidents, the Congress, and federal agencies can create federal
advisory committees. As shown in table 3, most of the federal advisory
committees operating in fiscal year 2003 were required or authorized by
the Congress, some were created by the agencies, while the fewest
committees were created by presidential directives.
Table 3: Authorizing Mechanism for Active Federal Advisory Committees
in Fiscal Year 2003:
Authorizing mechanism: Required or authorized by the Congress:
Required by the Congress via statute;
Number of committees: 421.
Authorizing mechanism: Required or authorized by the Congress:
Specifically authorized by statute but created at the discretion of an
agency;
Number of committees: 213.
Subtotal;
Number of committees: 634.
Authorizing mechanism: Created by an agency under general statutory
authority;
Number of committees: 271.
Authorizing mechanism: Presidential directive;
Number of committees: 43.
Authorizing mechanism: Total;
Number of committees: 948.
Source: GSA FACA database.
[End of table]
Sponsoring agencies broadly classify their advisory committees
according to the types of issues they address, using one of the
following seven general categories defined in GSA's federal advisory
committee database: scientific and technical program, nonscientific
program, national policy issue, grant review, grant review-special
emphasis panel,[Footnote 56]regulatory negotiation, and "other."
According to GSA's fiscal year 2003 database (see table 4), 208 of the
948 active committees were categorized as scientific and technical
committees. However, in addition to these, committees in other
categories also address scientific and technical issues, particularly
the grant review committees. There were 131 grant review committees
with over 41,000 members in 2003. Further, some committees placed in
the national policy, regulatory negotiation, and "other" categories
also address scientific and technical issues.
Table 4: Active Federal Advisory Committees, by Type, in Fiscal Year
2003:
Type of committee: Grant review;
Number of committees: 102;
Number of members: 22,517.
Type of committee: Grant review - special emphasis panel[A];
Number of committees: 29;
Number of members: 19,226.
Type of committee: National policy issue advisory board;
Number of committees: 152;
Number of members: 3,834.
Type of committee: Nonscientific program advisory board;
Number of committees: 298;
Number of members: 5,470.
Type of committee: Other;
Number of committees: 152;
Number of members: 3,323.
Type of committee: Regulatory negotiation;
Number of committees: 7;
Number of members: 217.
Type of committee: Scientific and technical program advisory board;
Number of committees: 208;
Number of members: 7,910.
Type of committee: Total;
Number of committees: 948;
Number of members: 62,497.
Source: GSA FACA database.
[A] NIH defines a special emphasis panel as a committee that functions
both as an initial review group performing the scientific and technical
peer review of applications and cooperative agreement applications and
as reviewers of contract proposals and concept reviews. The membership
is fluid, and individuals are designated to serve for only the meeting
they are requested to attend.
[End of table]
The committees in fiscal year 2003 had more than 62,000 members, the
majority of whom were members of grant review and special emphasis
panels.[Footnote 57] Overall, federal advisory committees range in size
from under 10 members to over 9,000, with an average of about 48
members.[Footnote 58] The committees classified as scientific and
technical had 7,910 members and an average committee membership size of
about 22 members.[Footnote 59] Federal advisory committee members come
from a wide range of professional backgrounds and include scientists,
medical doctors and other health care professionals, academics,
lawyers, engineers, corporate executives, state and local government
officials, members of nongovernmental organizations, community
activists, and representatives from the public at large, among others.
Some members are federal employees, often from agencies other than the
sponsoring agency.
[End of section]
Appendix III: Information on the Department of Agriculture's National
Advisory Committee on Microbiological Criteria for Foods:
This appendix contains information about the National Advisory
Committee on Microbiological Criteria for Foods. Although this
committee is cosponsored by USDA, HHS, and the Departments of Defense
and Commerce, USDA is responsible for the overall management of the
committee. Within USDA, the Food Safety and Inspection Service (FSIS)
manages this committee, and the Secretary of Agriculture appoints the
members.
Purpose of the committee: According to its charter, the purpose of the
committee is to provide impartial, scientific advice to federal food
safety agencies for use in the development of an integrated national
food safety systems approach from farm to final consumption to ensure
the safety of domestic, imported, and exported foods.
Number of members: 29 (see table 5).
Type of appointment: Representative.
Conflict-of-interest reviews: The members are appointed as
representatives and are not required to file OGE financial disclosure
forms for USDA review for potential conflicts of interest. USDA does,
however, require all committee members to submit a USDA form AD-755,
which is to provide information about members' current employment and
sources of income greater than $10,000 in the last calendar year, other
than their primary employment.
Conflict-of-interest waivers: Not applicable.
Disclosure of waivers to the public: Not applicable.
Steps taken to gather nominations for the committee: According to FSIS
officials, the agency solicits nominations through notices in the
Federal Register, FSIS Constituent Updates (an electronic newsletter
sent to over 300 organizations and individuals), the FSIS Web site, and
press releases. Officials said these notices serve to reach interested
parties and stakeholders--that is, persons from state and federal
governments, industry, consumer groups, and academia.
Criteria used to balance the committee: According to FSIS officials,
the most important factor used to balance the committee is the
expertise identified in the charter: microbiology, risk assessment,
epidemiology, public health, food science, and other relevant
disciplines. Membership is also balanced in terms of points of view by
the approximately equal proportions of members appointed from
government, industry, and academia. Committee staff also tries to
balance committee membership in terms of demographic indicators, such
as ethnicity and gender, as well as in terms of geographical
distribution.
External feedback on proposed committee membership: None sought.
Table 5: Roster of the National Advisory Committee on Microbiological
Criteria for Foods with the Primary Employers and Areas of Expertise as
of December 2003:
Academic institutions:
Committee member: Dr. Larry Beuchat;
Primary employer: University of Georgia, Center for Food Safety and
Quality Enhancement;
Areas of expertise: Food science.
Committee member: Dr. Catherine Donnelly;
Primary employer: University of Vermont, Department of Nutrition and
Food Science;
Areas of expertise: Food microbiology and Listeria.
Committee member: Dr. Stephanie Doores;
Primary employer: Pennsylvania State University, Department of Food
Science;
Areas of expertise: Food science, especially dairy science.
Committee member: Dr. Lee-Ann Jaykus;
Primary employer: North Carolina State University;
Areas of expertise: Microbiology and microbial risk assessment.
Committee member: Dr. Carol Maddox;
Primary employer: University of Illinois, College of Veterinary
Medicine;
Areas of expertise: Veterinary microbiology.
Committee member: Dr. Eli Perencevich;
Primary employer: University of Maryland School of Medicine;
Areas of expertise: Public Health.
Committee member: Dr. John Sofos;
Primary employer: Colorado State University, Department of Animal
Science;
Areas of expertise: Microbiology and E. coli.
Companies or industry-affiliated organizations:
Committee member: Dr. Gary Ades;
Primary employer: Most recently employed by Foster Farms;
Areas of expertise: Food safety and quality assurance.
Committee member: Mr. Dane Bernard;
Primary employer: Keystone Foods LLC;
Areas of expertise: Food production, food processing, CODEX,[A] and
HACCPb.
Committee member: Dr. Peggy Cook;
Primary employer: Tyson Foods, Inc.;
Areas of expertise: Food microbiology, food chemistry, serology,
microbial genetics, and management.
Committee member: Dr. Mahipal Kunduru;
Primary employer: Dole Fresh Vegetables, Inc.;
Areas of expertise: Food safety and microbiology.
Committee member: Dr. Roberta Morales;
Primary employer: Research Triangle Institute;
Areas of expertise: Microbiology, veterinary medicine, and risk
assessment.
Committee member: Ms. Virginia Scott;
Primary employer: National Food Processors Association;
Areas of expertise: Foodborne disease bacteria, microbiology, extended
shelf life of refrigerated foods, and food safety.
Committee member: Dr. Robert Seward;
Primary employer: American Meat Institute;
Areas of expertise: Food microbiology.
Committee member: Dr. Katherine Swanson;
Primary employer: Most recently employed by General Mills, Inc.;
Areas of expertise: Food production and food microbiology.
Committee member: Dr. David Theno;
Primary employer: Jack in the Box, Inc.;
Areas of expertise: HACCP[B] and animal science.
Committee member: Dr. R. Bruce Tompkin;
Primary employer: ConAgra Refrigerated Foods (retired);
Areas of expertise: Microbiology and food safety.
Federal, state, and foreign government agencies:
Committee member: Dr. David Acheson;
Primary employer: U.S. Department of Health and Human Services, Food
and Drug Administration;
Areas of expertise: E. coli, public health, and medicine.
Committee member: Dr. Frances Downes;
Primary employer: Michigan Department of Community Health;
Areas of expertise: Public health and laboratory food testing.
Committee member: Dr. Daniel Engeljohn;
Primary employer: U.S. Department of Agriculture Food Safety and
Inspection Service;
Areas of expertise: Animal science, meat science, and HACCP[B].
Committee member: Dr. Jeff Farrar;
Primary employer: California Department of Health Services;
Areas of expertise: Public health, epidemiology, and veterinary
medicine.
Committee member: Mr. Spencer Garrett;
Primary employer: U.S. Department of Commerce National Marine Fisheries
Service;
Areas of expertise: Food hygiene, HACCP,[B] and seafood public health.
Committee member: Dr. Patricia Griffin;
Primary employer: U.S. Department of Health and Human Services, Centers
for Disease Control and Prevention;
Areas of expertise: Epidemiology.
Committee member: Dr. Robin King;
Primary employer: U.S. Army Veterinary Corps;
Areas of expertise: Veterinary science and food microbiology.
Committee member: Dr. John Kvenberg;
Primary employer: U.S. Department of Health and Human Services, Food
and Drug Administration;
Areas of expertise: HACCP,[B] risk management, and Listeria control.
Committee member: Dr. Anna Lammerding;
Primary employer: Health Canada;
Areas of expertise: Risk assessment.
Committee member: Dr. John Luchansky;
Primary employer: U.S. Department of Agriculture, Agricultural Research
Service;
Areas of expertise: Food microbiology and toxicology.
Committee member: Ms. Angela Ruple;
Primary employer: U.S. Department of Commerce National Seafood
Inspection Laboratory;
Areas of expertise: Food science and microbiology.
Committee member: Dr. Donald Zink;
Primary employer: U.S. Department of Health and Human Services, Food
and Drug Administration;
Areas of expertise: Food microbiology, food science, food safety,
infectious diseases, and epidemiology.
Source: USDA.
[A] CODEX: Codex Alimentarius Commission. The Codex Alimentarius
Commission was created in 1963 by the Food and Agriculture Organization
(FAO) and the World Health Organization (WHO) of the United Nations to
develop food standards, guidelines, and related texts, such as codes of
practice under the Joint FAO/WHO Food Standards Program. The main
purposes of this program are protecting the health of consumers and
ensuring fair trade practices in the food trade and promoting
coordination of all food standards work undertaken by international
governmental and nongovernmental organizations.
[B] HACCP: Hazard Analysis and Critical Control Point. HACCP is a
systematic program for preventing hazards that could cause foodborne
illnesses by applying science-based controls from raw material to
finished products. The program was first developed for the space
program and currently is being adopted by FDA and USDA.
[End of table]
[End of section]
Appendix IV: Information on the Department of Energy's Biological and
Environmental Research Advisory Committee:
This appendix contains information about the Biological and
Environmental Research Advisory Committee, which is managed by Energy
staff in the Office of Biological and Environmental Research. The
members are appointed by the Secretary of Energy.
Purpose of the committee: The advisory committee reviews and makes
recommendations on Energy's biological and environmental research
program, addressing issues such as genomics, the health effects of low-
dose radiation, DNA sequencing, medical sciences, environmental
remediation, and climate change research. In addition to reviewing
scientific issues, the committee provides advice on long-range plans
and priorities and the appropriate levels of funding.
Number of members: 23 (see table 6).
Type of appointment: Representative.
Conflict-of-interest reviews: Because the members are appointed as
representatives, they are not required to file OGE financial disclosure
forms for Energy review for potential conflicts of interest.
Conflict-of-interest waivers: Not applicable.
Disclosure of waivers to the public: Not applicable.
Steps taken to gather nominations for the committee: According to the
committee's designated federal official, the department received
nominations from agency staff in the Office of Science.
Criteria used to balance the committee: According to the committee's
designated federal official, the primary criterion used to balance the
committee is expertise. He also considers gender, ethnicity, and
geography and tries to achieve a balance of representatives from
industry, academia, and the national laboratories.
External feedback on proposed committee membership: None sought.
Table 6: Roster of the Biological and Environmental Research Advisory
Committee with the Primary Employers and Areas of Expertise as of
December 30, 2003:
Colleges, universities, and medical centers:
Committee member: Keith Hodgson, Ph.D (chair);
Primary employer: Stanford University;
Area of expertise: Structural biology.
Committee member: James Adelstein, Ph.D.;
Primary employer: Harvard Medical School;
Area of expertise: Education, health risk, and medicine.
Committee member: Michelle Broido, Ph.D.;
Primary employer: University of Pittsburgh;
Area of expertise: Atmospheric science, ecology, education,
environmental remediation, global change, and structural biology.
Committee member: David Burgess, Ph.D.;
Primary employer: Boston College;
Area of expertise: Developmental and molecular biology and education.
Committee member: Carlos Bustamante, Ph.D.;
Primary employer: University of California at Berkeley;
Area of expertise: Bioengineering and molecular and structural biology.
Committee member: Charles DeLisi, Ph.D.;
Primary employer: Boston University;
Area of expertise: Bioengineering, biomedical science, biotechnology,
computational and molecular biology, education, genomics, mathematics,
and informatics.
Committee member: Raymond Gesteland, Ph.D.;
Primary employer: University of Utah;
Area of expertise: Biotechnology, education, genomics, and molecular
biology.
Committee member: Willard Harrison, Ph.D.;
Primary employer: University of Florida;
Area of expertise: Analytical chemistry.
Committee member: Steven Larson, M.D.;
Primary employer: Memorial Sloan-Kettering Cancer Center;
Area of expertise: Biomedical science, education, and medicine.
Committee member: Jill Merisov, Ph.D.;
Primary employer: Massachusetts Institute of Technology Center for
Genome Research;
Area of expertise: Computational biology, computer modeling, genomics,
mathematics, and informatics.
Committee member: Louis Pitelka, Ph.D.;
Primary employer: University of Maryland Center for Environmental
Science;
Area of expertise: Ecology and global change.
Committee member: Janet Smith, Ph.D.;
Primary employer: Purdue University;
Area of expertise: Computational and structural biology.
Committee member: James Tiedje, Ph.D.;
Primary employer: Michigan State University;
Area of expertise: Environmental remediation, biotechnology,
microbiology, and molecular biology.
Committee member: Barbara Wold, Ph.D.;
Primary employer: California Institute of Technology;
Area of expertise: Biotechnology, developmental and molecular biology,
and genomics.
Companies:
Committee member: Jonathan Greer, Ph.D.;
Primary employer: Abbot Laboratories;
Area of expertise: Biotechnology and computational and structural
biology.
Committee member: James Mitchell, Ph.D.;
Primary employer: Lucent Technologies;
Area of expertise: Analytical chemistry.
Committee member: Nonprofit research institution.
Committee member: Leroy Hood, Ph.D.;
Primary employer: Institute for Systems Biology;
Area of expertise: Bioengineering, biomedical sciences, biotechnology,
developmental and molecular biology, and genomics.
Professional associations:
Committee member: Eugene Bierly, Ph.D.;
Primary employer: American Geophysical Union;
Area of expertise: Atmospheric science and global change.
Committee member: Richard Hallgren, Ph.D.;
Primary employer: American Meteorological Society;
Area of expertise: Computer modeling and global change.
Committee member: Roger McClellan, D.V.M.;
Primary employer: Chemical Industry Institute of Toxicology;
Area of expertise: Health risk and toxicology.
DOE national laboratory:
Committee member: Lisa Stubbs, Ph.D.;
Primary employer: Lawrence Livermore National Laboratory;
Area of expertise: Biotechnology, genomics, and molecular biology.
Federally funded research organization:
Committee member: Warren Washington, Ph.D.;
Primary employer: National Center for Atmospheric Research;
Area of expertise: Computer modeling and global change.
Other:
Committee member: Robert Fri;
Primary employer: Resources for the Future;
National Academy of Sciences;
Area of expertise: Education and global change.
Source: Department of Energy.
[End of table]
[End of section]
Appendix V: Information on the Environmental Protection Agency's
Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory
Panel:
This appendix contains information about the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel. The
committee is managed by EPA staff, and the members are appointed by the
Deputy Administrator of EPA.
Purpose of the committee: The FIFRA Scientific Advisory Panel provides
advice, information, and recommendations on pesticides and pesticide-
related issues regarding the impact of regulatory actions on health and
the environment of regulatory actions. The objectives include providing
advice and recommendations on (1) scientific studies and issues in the
form of a peer review, (2) methods to ensure that pesticides do not
cause "unreasonable adverse effects on the environment," and (3)
guidelines to improve the effectiveness and quality of scientific
testing and of data submitted to EPA.
Number of members: There are 7 permanent members on the standing
committee (see table 7). These members are appointed for 4-year terms
and serve on a number of individual peer review panels. The FIFRA
Scientific Advisory Panel establishes between 5 and 7 peer review
panels each year to address a variety of specific topics.[Footnote 60]
These committees are comprised of permanent members and ad hoc expert
consultants. Meeting panels typically consist of approximately 15
members.
Type of appointment: Special government employees.
Conflict-of-interest reviews: As special government employees,
committee members are required to file financial disclosure forms. As
discussed in this report, the EPA form 3110-48, an OGE-approved
alternative disclosure form, is used. In addition, as also is discussed
in this report, FIFRA staff interview potential candidates using a
structured interview format to assess the interest, availability, and
appropriateness of candidates to serve on individual committees. The
structured interview includes a discussion of financial conflicts of
interest (statutory conflicts and appearance problems), impartiality,
and a review of the information that is requested on the form 3110-48.
Conflict-of-interest waivers: No waivers have been granted to current
members.
Disclosure of waivers to the public: Not applicable.
Steps taken to gather nominations for the committee: The Federal
Insecticide, Fungicide, and Rodenticide Act of 1977 requires the EPA
Deputy Administrator to select the 7 members of the standing Scientific
Advisory Panel from nominees provided by NIH and the National Science
Foundation. The committee's management also routinely solicits
nominations for ad hoc expert consultants on the agency's Web site and
through notices in the Federal Register.
Criteria used to balance the committee: Technical expertise is the
primary criterion used to balance the FIFRA Scientific Advisory Panel
committees. The FIFRA Scientific Advisory Panel defines balanced
membership as including the necessary areas of technical expertise,
different scientific perspectives within each technical discipline, and
the collective breadth of experience needed to address the agency's
charge.
External feedback on proposed committee membership: As required by
statute, the advisory committee's management posts the names,
professional affiliations, and selected biographical data of nominees
proposed for appointment as permanent members in the Federal Register
and on its Web site for public comment, providing instructions on how
to submit comments regarding the nominees. Unlike the standing
committee, nominees considered for temporary service at particular
meetings are not subject to public comment prior to their appointment.
Table 7: Roster of the Standing FIFRA Scientific Advisory Panel with
the Primary Employers and Areas of Expertise as of December 2003:
Universities and medical centers:
Committee member: Stuart Handwerger M.D.;
Primary employer: Cincinnati Children's Hospital Medical Center;
Areas of expertise: Endocrinology, toxicology, and veterinary medicine.
Committee member: Steven G. Heeringa, Ph.D.[A];
Primary employer: University of Michigan, Institute for Social
Research;
Areas of expertise: Biostatistics.
Committee member: Gary E. Isom, Ph.D.[A];
Primary employer: Purdue University, School of Pharmacy and Pharmacal
Sciences;
Areas of expertise: Neurotoxicology and clinical pediatric research.
Committee member: Fumio Matsumura, Ph.D.[A];
Primary employer: University of California at Davis, Institute of
Toxicology and Environmental Health;
Areas of expertise: Biochemical toxicology.
Committee member: Mary Anna Thrall, D.V.M.[A];
Primary employer: Colorado State University, Department of
Microbiology, Immunology and Pathology;
Areas of expertise: Veterinary pathology and veterinary clinical
pathology.
Committee member: Stephen Roberts, Ph.D.[A];
Primary employer: University of Florida, Center for Environmental &
Human Toxicology;
Areas of expertise: Human toxicology.
Federal agency:
Committee member: Christopher Portier, Ph.D.;
Primary employer: National Institutes of Health, National Institute of
Environmental Health Sciences;
Areas of expertise: Human health risk assessment.
Source: EPA.
[A] Members participated in the June 17 to 20, 2003, meeting on
atrazine.
[End of table]
Table 8: Roster of the Temporary (Ad Hoc) Members Serving on the
June 17 to 20, 2003, Meeting on Atrazine:
Universities:
Committee member: Joel Coats, Ph.D.;
Primary employer: Iowa State University, Department of Entomology;
Area of expertise: Environmental toxicology (fate and effects of
pesticides in environment).
Committee member: Robert J. Denver, Ph.D.;
Primary employer: The University of Michigan, Department of Ecology and
Evolutionary Biology;
Area of expertise: Amphibian development.
Committee member: James Gibbs, Ph.D.;
Primary employer: State University of New York - Syracuse;
Area of expertise: Amphibian biological monitoring, conservation
biology, and herpetology.
Committee member: Sherril L. Green, D.V.M, Ph.D.;
Primary employer: Stanford University School of Medicine;
Area of expertise: Xenopus husbandry[A].
Committee member: Darcy B. Kelley, Ph.D.;
Primary employer: Columbia University;
Area of expertise: Developmental biology.
Committee member: Gerald A. LeBlanc, Ph.D.;
Primary employer: North Carolina State University;
Area of expertise: Aquatic toxicology.
Committee member: Carl Richards, Ph.D.;
Primary employer: University of Minnesota Duluth, Minnesota Sea Grant
College Program;
Area of expertise: Aquatic biology.
Committee member: David Skelly, Ph.D.;
Primary employer: Yale University, School of Forestry and Environmental
Studies;
Area of expertise: Field amphibian ecology.
Foreign organizations:
Committee member: Peter Delorme, Ph.D.;
Primary employer: Health Canada (Canadian Federal Government);
Area of expertise: Environmental toxicology (aquatic) and environmental
risk assessment.
Committee member: Werner Kloas, Ph.D.;
Primary employer: Department of Inland Fisheries, Leibniz-Institute of
Freshwater Ecology and Inland Fisheries, Berlin, Germany;
Area of expertise: Xenopus[A] development and anuran (frog/toad)
endocrinology.
Source: EPA.
[A] Xenopus laevis is a species of frog that, along with the mouse,
rat, fruit fly, and other species of animals and plants, serves as a
model organism for biomedical research.
[End of table]
[End of section]
Appendix VI: Information on the Department of Health and Human
Services's Advisory Committee on Human Research Protections:
This appendix contains information about the Secretary's Advisory
Committee on Human Research Protections. The committee replaced the
National Human Research Protections Advisory Committee, established in
2000, whose charter HHS did not renew when it expired in 2002.[Footnote
61] HHS officials chose to revise the charter of the initial committee
primarily by adding populations potentially affected by human research
protections, appointing new members to provide advice to the Secretary.
The committee is sponsored and generally managed by the Office of
Public Health Service, but the members are appointed by the HHS
Secretary.[Footnote 62] The nominating and selection processes in 2002
and 2003 were managed by the HHS Office of White House Liaison.
Purpose of the committee: According to its charter, the committee is to
advise the HHS Secretary and the Assistant Secretary for Health on
matters pertaining to the continuance and improvement of functions
within the authority of HHS directed toward protections for human
subjects in research. Specifically, the committee is to provide advice
relating to the responsible conduct of research involving human
subjects with particular emphasis on:
* special populations, such as neonates and children, prisoners, and
the decisionally impaired;
* pregnant women, embryos, and fetuses;
* individuals and populations in international studies;
* populations in which there are individually identifiable samples,
data, or information; and:
* investigator conflicts of interest.
In addition, the committee is responsible for reviewing selected
ongoing work and planned activities of the Office of Human Research
Protections and other offices/agencies within HHS that are responsible
for human subjects protection. These evaluations may include but are
not limited to a review of assurance systems, the application of
minimal research risk standards, the granting of waivers, education
programs sponsored by the Office of Human Research Protections, and the
ongoing monitoring and oversight of institutional review boards and the
institutions that sponsor research.
Number of members: 11 (see table 9).
Type of appointment: Special government employees.
Conflict-of-interest reviews: As special government employees,
committee members are required to file OGE financial disclosure forms
for HHS's review for potential conflicts of interest. These forms were
reviewed by the cognizant committee management officer who consulted
with the designated federal official and the Office of General Counsel
ethics division. In June 2003, after the members had been appointed to
the committee, the committee management officer identified some
potential conflicts of interest stemming from investments that she and
the Office of General Counsel believed required mitigation, such as
waivers. She also requested that the designated federal official
determine whether other potential conflicts required waivers if the
appointed members work for institutions involved in research
activities/studies/projects that may impact human research
protections.
Conflict-of-interest waivers: Waivers were not issued before the
committee's first meeting in July 2003. The nine waivers granted were
finalized on January 16, 2004.
Disclosure of waivers to the public: HHS policies and procedures do not
address the disclosure of waivers to the public. HHS does not
proactively disclose the issuance of waivers to the public at committee
meetings.
Steps taken to gather nominations for the committee: According to the
Director of the Office of White House Liaison, she asked a couple of
individuals at the Association of American Medical Colleges for
nominations for this committee. The Director said that an Office of
Public Health Service staff member familiar with the previous committee
also assisted in identifying nominees from the previous slate to serve
on the new committee. In addition, she said that HHS received self-
nominations and also used names from NIH's database, particularly the
group that was solicited for the Secretary's Advisory Committee on
Genetics, Health, and Society.
Criteria used to balance the committee: According to the agency
official responsible for nominating members for the committee, the
factors she considered in balancing the committee were expertise along
with geographic, gender, and racial diversity. After HHS announced the
committee membership in January 2003, the National Organization for
Rare Disorders and some members of the predecessor advisory committee
expressed concern that the regulated research industry was
overrepresented and that there were no consumer or patient advocates on
the committee. A week later, HHS added a member with a background in
patient advocacy.
External feedback on proposed committee membership: None sought.
Table 9: Roster of the Secretary's Advisory Committee on Human Research
Protections with the Primary Employers and Areas of Expertise as of
December 2003:
Medical and academic institutions:
Committee member: Dr. Celia B. Fisher;
Primary employer: Fordham University;
Area of expertise: Bioethics.
Committee member: Dr. Nigel Harris;
Primary employer: Morehouse School of Medicine;
Area of expertise: Rheumatology and antiphospholipid research.
Committee member: Dr. Robert G. Hauser;
Primary employer: Abbott Northwest Hospital;
Area of expertise: Cardiology.
Committee member: Dr. Nancy L. Jones;
Primary employer: Wake Forest University School of Medicine;
Area of expertise: Biochemistry and pathology.
Committee member: Ms. Susan Kornetsky;
Primary employer: Children's Hospital, Boston, MA;
Area of expertise: Clinical research compliance and public health.
Committee member: Dr. Mary Lake Polan;
Primary employer: Stanford University School of Medicine;
Area of expertise: Reproductive endocrinology and infertility.
Committee member: Dr. Ernest D. Prentice;
Primary employer: University of Nebraska Medical Center;
Area of expertise: Cell biology, anatomy, and regulatory Compliance.
Company, law firm, and professional organization:
Committee member: Mr. Thomas Adams;
Primary employer: Association of Clinical Research Professionals;
Area of expertise: Medical trade association management.
Committee member: Mr. Mark Barnes;
Primary employer: Ropes & Gray Law Firm;
Area of expertise: Health care law and Health Insurance Portability and
Accountability Act of 1996 regulation and compliance.
Committee member: Dr. Felix A Khin-Maung-Gyi;
Primary employer: Chesapeake Research Review, Inc.;
Area of expertise: Human subject protection, bioethics, and pharmacy.
Committee member: Patient advocacy organization.
Committee member: Dr. Susan L. Weiner;
Primary employer: The Children's Cause, Inc.;
Area of expertise: Developmental psychology.
Source: HHS.
[End of table]
[End of section]
Appendix VII: Information on the Centers for Disease Control and
Prevention's Advisory Committee on Childhood Lead Poisoning Prevention:
This appendix contains information about the Advisory Committee on
Childhood Lead Poisoning Prevention. The committee is sponsored and
generally managed by CDC, but the members are appointed by the HHS
Secretary.[Footnote 63] The nominating and selection processes in 2002
and 2003 were managed by the HHS Office of White House Liaison.
Purpose of the committee: The Advisory Committee on Childhood Lead
Poisoning Prevention provides advice and guidance to the Secretary; the
Assistant Secretary for Health; and the CDC Director, regarding new
scientific knowledge and technological developments and their practical
implications for childhood lead poisoning prevention efforts. The
committee also reviews and reports on childhood lead poisoning
prevention practices and recommends improvements in national childhood
lead poisoning prevention efforts.
Number of members: 12 (see table 10).
Type of appointment: Special government employees.
Conflict-of-interest reviews: As special government employees,
committee members are required to file OGE financial disclosure forms
for HHS and CDC review for potential conflicts of interest. CDC's
designated federal official, a conflict-of-interest specialist in the
CDC's Committee Management Office, and the director of CDC's Management
Analysis and Services Office reviewed the completed forms for the
current members of the committee.
Conflict-of-interest waivers: None granted to current members.
Disclosure of waivers to the public: Not applicable.
Steps taken to gather nominations for the committee: According to the
Director of the Office of White House Liaison and the designated
federal official for the committee, nominations were generally
solicited informally, such as during conversations. According to the
Director, HHS received nominations from the Dean of the St. Francis
Hospital in Tulsa, Oklahoma; the Chancellor of Columbia University;
Senator Thad Cochran; and the Deputy Secretary's office. They also used
the Internet to search for candidates associated with successful lead
poison reduction programs in large cities.
Criteria used to balance the committee: According to the Office of
White House Liaison, the department and agency worked to find potential
appointees and balance the committee on the basis of expertise as well
as gender, ethnicity, and geography to the extent these additional
factors did not impinge on the department's ability to pick qualified
members.
External feedback on proposed committee membership: None sought.
Table 10: Roster of the Advisory Committee on Childhood Lead Poisoning
Prevention with the Primary Employers and Areas of Expertise as of
December 2003:
Medical institutions:
Committee member: William Banner, M.D.;
Primary employer: The Children's Hospital at St. Francis in Tulsa OK;
Area of expertise: Toxicology, critical care medicine, and pediatrics.
Committee member: Helen Binns, M.D., M.P.H.;
Primary employer: Feinberg School of Medicine, Northwestern University;
Area of expertise: Pediatric lead poisoning detection and public health.
Committee member: Carla Campbell, M.D., M.S.;
Primary employer: Children's Hospital of Philadelphia;
Area of expertise: Lead poisoning and toxicology.
Committee member: Ing Kang Ho, Ph.D.;
Primary employer: University of Mississippi Medical Center, School of
Graduate Studies in the Health Sciences;
Area of expertise: Pharmacology and toxicology.
Committee member: Sergio Piomelli, M.D.;
Primary employer: Columbia University College of Physicians and
Surgeons;
Area of expertise: Pediatrics.
State and local health agencies:
Committee member: Walter S. Handy, Jr., Ph.D.;
Primary employer: Cincinnati Health Department;
Area of expertise: Clinical psychology and public health policy.
Committee member: Jessica Leighton, Ph.D., M.P.H.;
Primary employer: New York City Department of Health and Mental
Hygiene;
Area of expertise: Public policy and childhood lead poisoning.
Committee member: Tracey Lynn, D.V.M., M.S.;
Primary employer: Alaska Department of Health Services;
Area of expertise: Environmental public health.
Committee member: Kevin U. Stephens, Sr., M.D., J.D.;
Primary employer: Department of Health, City of New Orleans, LA;
Area of expertise: Obstetrics and gynecology, public health, medicine,
and law.
Private medical practice:
Committee member: Catherine M. Slota-Varma, M.D.;
Primary employer: Pediatrician in private practice;
Area of expertise: Pediatrics.
Private nonprofit organization:
Committee member: Richard Hoffman, M.D.;
Primary employer: Director, Planned Parenthood of Rocky Mountains;
Area of expertise: Public health.
University:
Committee member: Kimberly Thompson, Sc.D.;
Primary employer: Harvard University School of Public Health;
Area of expertise: Risk analysis and health policy.
Source: HHS.
[End of table]
[End of section]
Appendix VIII: Information on the Food and Drug Administration's Food
Advisory Committee:
This appendix provides information about the Food Advisory Committee.
The committee is managed by FDA. The members are appointed by FDA's
Associate Commissioner for External Relations.
Purpose of the committee: The committee is to provide advice to the
Director, Center for Food Safety and Applied Nutrition, and to the
Commissioner of Food and Drugs and other appropriate officials as
needed, on emerging food safety, food science, nutrition, and other
food-related health issues that FDA considers of primary importance for
its food and cosmetics programs. The committee may be charged with
reviewing and evaluating available data and making recommendations on
matters such as those relating to the following: broad scientific and
technical food-or cosmetic-related issues, the safety of new foods and
food ingredients, the labeling of foods and cosmetics, nutrient needs
and nutritional adequacy, and safe exposure limits for food
contaminants. The committee may also be asked to provide advice and
make recommendations on ways of communicating to the public the
potential risks associated with these issues and on approaches that
might be considered for addressing the issues.
Number of members: 25 (see table 11).
Type of appointment: With the exception of nonvoting industry
representatives, all committee members are special government
employees.
Conflict-of-interest reviews: As special government employees,
committee members are required to file the OGE confidential financial
disclosure form 450. Members are required to update this form annually.
In addition, for meetings that involve particular matters of general or
specific applicability, members also complete an FDA form 3410, which
requires them to report interests directly related to the topic of
discussion. The designated federal official does an initial screening
and officials from FDA's Ethics and Integrity Branch clear the members
for conflicts of interest.
Conflict-of-interest waivers: During the last year, waivers were
granted seven times for members to participate in specific meetings.
FDA granted the waivers on the basis that the need for these
individuals' expertise outweighed the potential conflicts of interest.
Disclosure of waivers to the public: The type of waiver and the names
of members who have received waivers for particular meetings are read
into the record by the designated federal officer at the beginning of
the public meeting. Public disclosure of the substance of waivers
issued is only required in cases where the meetings deal with
particular matters of specific applicability. When such waivers are
issued, the members who receive them are asked to sign a consent
document authorizing FDA to provide a description of the nature and the
magnitude of the financial interests being waived for the public
record.
Steps taken to gather nominations for the committee: FDA solicits
nominations through notices in the Federal Register. According to the
committee's designated federal official and an agency document
identifying the sources of the nominations, the agency obtained
nominations from (1) FDA and HHS officials; (2) interest groups and
trade associations and other interested parties, including the American
Society for Nutritional Services, the Center for Science in the Public
Interest, the Association of Food and Drug Officials, and officials at
the Center for Health Policy at the University of Oklahoma and the
Massachusetts Institute of Technology; and (3) individuals who
nominated themselves in response to the Federal Register notice.
Criteria used to balance the committee: Committee managers reported the
following five criteria used to achieve balance: (1) scientific
expertise representing a range of scientific interpretation; (2)
demographic characteristics, including geographic distribution,
gender, and ethnicity; (3) differing levels of experience on advisory
committees; (4) stakeholder representation (e.g., consumers, industry,
and academicians); and (5) membership on advisory committees that is
used to help ensure that the agency has balance by not repeatedly
appointing a limited set of people either for a particular committee or
for various committees the agency has on related topics. Temporary
voting members may be added to enhance balance.
External feedback on proposed committee membership: None sought.
Table 11: Roster of the Food Advisory Committee with the Primary
Employers and Areas of Expertise as of June 3, 2003:
Universities and medical centers:
Committee member: Alex D.W. Acholonu, Ph.D.;
Primary employer: Alcorn State University;
Area of expertise: Microbiology and parisitology.
Committee member: Douglas L. Archer, Ph.D.;
Primary employer: University of Florida, Department of Food Science &
Human Nutrition;
Area of expertise: Microbiology, food science, and food law.
Committee member: Jonathan A. Arias, Ph.D.;
Primary employer: University of Maryland, Center for Biosystems;
Area of expertise: Molecular biology.
Committee member: Fred McDaniel Atkins, M.D.;
Primary employer: National Jewish Medical;
and Research Center;
Area of expertise: Pediatrics and allergies.
Committee member: Jeffrey Blumberg, Ph.D.;
Primary employer: Tufts University;
Area of expertise: Pharmacology and biostatistics.
Committee member: Bob B. Buchanan, Ph.D.;
Primary employer: University of California, Berkeley, Department of
Plant and Microbial Biology;
Area of expertise: Molecular plant biology.
Committee member: Francis Fredrick Busta, Ph.D.;
Primary employer: University of Minnesota, Department of Food Science
and Nutrition;
Area of expertise: Food science and microbiology.
Committee member: Nancy M. Childs, Ph.D.;
Primary employer: Saint Joseph's University;
Area of expertise: Food marketing.
Committee member: Johanna Dwyer, Ph.D.;
Primary employer: Tufts University;
Schools of Medicine and Nutrition;
Area of expertise: Public health and nutrition.
Committee member: Lawrence J. Fischer, Ph.D.;
Primary employer: Michigan State University, Institute for
Environmental Toxicology;
Area of expertise: Toxicology.
Committee member: George M. Gray, Ph.D.;
Primary employer: Harvard University, School of Public Health;
Area of expertise: Risk analysis and toxicology.
Committee member: Rachel K. Johnson, Ph.D., M.P.H., R.D.;
Primary employer: University of Vermont, Department of Nutrition and
Food Sciences;
Area of expertise: Pediatrics and nutrition.
Committee member: Anne R. Kapuscinski, Ph.D.;
Primary employer: University of Minnesota, Department of Fisheries and
Wildlife;
Area of expertise: Conservation biology.
Committee member: Ken Lee, Ph.D.;
Primary employer: Ohio State University, Department of Food Science;
Area of expertise: Food science and processing.
Committee member: Harihara Mehendale, Ph.D.;
Primary employer: University of Louisiana at Monroe, College of
Pharmacy;
Area of expertise: Toxicology.
Committee member: Sanford A. Miller, Ph.D. (Chair);
Primary employer: Virginia Polytechnic and State University;
Area of expertise: Chemistry, toxicology, and food science.
Committee member: Abigail A. Salyers, Ph.D.;
Primary employer: University of Illinois at Urbana- Champaign;
Area of expertise: Microbiology and gene transfer.
Committee member: Michael W. Shannon, Ph.D.;
Primary employer: Children's Hospital, Boston, MA;
Area of expertise: Pediatrics and toxicology.
Committee member: J. Antonio Torres, Ph.D.;
Primary employer: Oregon State University;
Area of expertise: Food science and processing.
Committee member: Steven Zeisel, MD, Ph.D.;
Primary employer: University of North Carolina, School of Health &
Medicine;
Area of expertise: Pediatrics.
Nonprofit associations:
Committee member: Annette Dickinson, Ph.D. (industry representative);
Primary employer: Council for Responsible Nutrition;
Area of expertise: Dietary supplements.
Committee member: Goulda Angella Downer, Ph.D. (consumer
representative);
Primary employer: Metroplex Health and Nutrition Services;
Area of expertise: Nutrition and epidemiology.
Committee member: Douglas Gurian-Sherman, Ph.D. (consumer
representative);
Primary employer: Center for Science in the Public Interest;
Area of expertise: Genetic engineering.
State agency:
Committee member: Marion H. Fuller, D.V.M.;
Primary employer: Florida Department of Agriculture, Division of Food
Safety;
Area of expertise: Veterinary medicine federal-state relations.
Industry association:
Committee member: Brandon Scholz;
Primary employer: Wisconsin Grocers Association;
Area of expertise: Industry representative.
Source: USDA.
[End of table]
[End of section]
Appendix IX: Information on the National Institutes of Health's
Scientific Advisory Committee on Alternative Toxicological Methods:
This appendix contains information about the Scientific Advisory
Committee on Alternative Toxicological Methods, which is sponsored and
managed by NIH. Members are appointed by the Director of the National
Institute of Environmental Health Sciences.
Purpose of the committee: The committee provides advice to the Director
of the National Institute of Environmental Heath Sciences (NIEHS); the
Interagency Coordinating Committee on the Validation of Alternative
Methods (ICCVAM); and the National Toxicology Program Center regarding
statutorily mandated functions, including:
* reviewing and evaluating new; revised; or alternative test methods,
including batteries of tests and test screens that may be acceptable
for specific regulatory uses;
* facilitating appropriate interagency and international harmonization
of acute or chronic toxicological test protocols that encourage the
reduction, refinement, or replacement of animal test methods;
* facilitating and providing guidance on the development of validation
criteria; validation studies; and processes for new, revised, or
alternative test methods and helping to facilitate the acceptance of
such scientifically valid test methods and awareness of accepted test
methods by federal agencies and other stakeholders; and:
* submitting ICCVAM test recommendations for the test methods reviewed
by ICCVAM, through expeditious transmittal by the HHS Secretary (or the
designee of the Secretary), to each appropriate federal agency, along
with the identification of specific agency guidelines; recommendations;
or regulations for test methods, including batteries of tests and test
screens, for chemicals or a class of chemicals within a regulatory
framework that may be appropriate for scientific improvement, while
seeking to reduce, refine, or replace animal test methods.
The committee also provides advice to the Director of the NIEHS and the
National Toxicology Program Center on activities and directives
relating to the National Toxicology Program Center, such as on
priorities and opportunities for alternative test methods that may
provide improved prediction of adverse health effects compared with
currently used methods or advantages in terms of reduced expense and
time, reduced animal use, and reduced animal pain and distress.
Number of members: 15 (see table 12).
Type of appointment: Special government employees.
Conflict-of-interest reviews: As special government employees,
committee members are required to file OGE financial disclosure forms
for review for potential conflicts of interest. The NIH committee
management officer performed a first-level review of the financial
disclosure forms, followed by a second-level review by the designated
federal officer. The NIH's Deputy Ethics Counselor performed the final
review.
Conflict-of-interest waivers: Fourteen of 15 members received waivers
because NIH determined that the need for their expertise outweighed the
potential conflicts. One of the 15 members received a waiver because
the conflict was deemed not significant.
Disclosure of waivers to the public: According to the designated
federal officer, the issuance of waivers to committee members was not
disclosed to the public. For example, the waivers were not discussed at
any committee meetings. According to the NIH committee management
officer, the agency sends its waivers to the HHS Ethics Counsels
assigned to NIH, who then sends them to OGE.
Steps taken to gather nominations for the committee: The Director of
the Environmental Toxicology Program, NIEHS, asked the members of the
ICCVAM for nominations to the advisory committee and also asked for
nominations from former members and ad hoc advisors of the committee.
The Director also requested nominations from two stakeholder groups
that regularly attend committee meetings, the Doris Day Animal League
and the People for the Ethical Treatment of Animals.
Criteria used to balance the committee: According to the committee
management officer and the designated federal officer, the legislation
that created the committee gives direction regarding membership that
focuses on expertise and work affiliations, and NIH uses these factors
to achieve committee balance. Specifically, the legislation calls for
members to come from an academic institution; a state government
agency; an international regulatory body; or any corporation developing
or marketing new, revised, or alternative test methodologies, including
contract laboratories. The legislation also specifies that there shall
be at least one knowledgeable representative having a history of
expertise, development, or evaluation of new, revised, or alternative
test methods from each of the following categories: (1) personal care,
pharmaceutical, industrial chemicals, or agricultural industry; (2) any
other industry that is regulated by one of the federal agencies on
ICCVAM; and (3) a national animal protection organization established
under section 501(c)(3) of the Internal Revenue Code of 1986. The
committee management officer also told us that NIH considered
ethnicity, gender, and geography in balancing the committee membership.
External feedback on proposed committee membership: None sought.
Table 12: Roster of the Scientific Advisory Committee on Alternative
Toxicological Methods with the Primary Employers, and Areas of
Expertise as of December 30, 2003:
Universities:
Committee member: Dr. Daniel Acosta, Jr.;
Primary employer: University of Cincinnati, College of Pharmacy;
Area of expertise: In vitro toxicology, pharmacology, and development
of in vitro cellular models.
Committee member: Dr. Nancy Flournoy;
Primary employer: University of Missouri-Columbia, Department of
Statistics;
Area of expertise: Biostatistics, applied stochastic processes, and
statistical theory.
Committee member: Dr. Alan M. Goldberg;
Primary employer: Johns Hopkins University, Center for Alternatives to
Animal Testing, Bloomberg School of Public Health;
Area of expertise: Neurotoxicology, in vitro toxicology, and
alternative models.
Committee member: Dr. Sidney Green, Jr.;
Primary employer: Howard University, Department of Pharmacology,
College of Medicine;
Area of expertise: Pharmacology, genetic toxicology, and regulatory
toxicology.
Committee member: Dr. A. Wallace Hayes;
Primary employer: Harvard University, School of Public Health;
Area of expertise: General toxicology, biochemical toxicology, and in
vitro models.
Committee member: Dr. Nancy A. Monteiro-Riviere;
Primary employer: North Carolina State University, Department of
Clinical Sciences, College of Veterinary Medicine;
Area of expertise: Dermal toxicology, biochemical toxicology, and in
vitro models.
Committee member: Dr. Steven H. Safe;
Primary employer: Texas A & M University, Departments of Veterinary
Physiology and Pharmacology, College of Veterinary Medicine;
Area of expertise: Environmental estrogens, toxicology, and
biochemistry.
Committee member: Dr. Carlos Sonnenschein;
Primary employer: Tufts University School of Medicine, Department of
Anatomy and Cellular Biology;
Area of expertise: Environmental toxicology, medicine, environmental
estrogens, and reproductive toxicology.
Companies:
Committee member: Dr. Jack H. Dean;
Primary employer: Sanofi-Synthelabo, Inc.;
Area of expertise: Molecular biology, regulatory toxicology,
toxicogenomics, and immunotoxicology.
Committee member: Dr. Rodger D. Curren;
Primary employer: Institute for In Vitro Sciences, Inc.;
Area of expertise: In vitro toxicological testing.
Committee member: Dr. Jacqueline H. Smith;
Primary employer: Chesapeake Consulting Team;
Area of expertise: Pharmacology, environmental toxicology, regulatory
toxicology, and the petroleum industry.
Nonprofit associations:
Committee member: Dr. Martin L. Stephens;
Primary employer: The Humane Society of the United States;
Area of expertise: Animal welfare and environmental toxicology.
Committee member: Dr. Peter Theran;
Primary employer: Massachusetts Society for the Prevention of Cruelty
to Animals/American Humane Education Society;
Area of expertise: Internal medicine, laboratory animal medicine,
animal welfare, and comparative medicine.
State agency:
Committee member: Dr. Calvin C. Willhite;
Primary employer: State of California, Department of Toxic Substance
Control;
Area of expertise: Reproductive toxicology, pharmacology, risk
assessment and management, and regulatory toxicology.
Other:
Committee member: Dr. Katherine A. Stitzel;
Primary employer: Veterinarian (Retired);
Area of expertise: Acute toxicity, in vitro methods, and regulatory
toxicology.
Source: HHS.
[End of table]
[End of section]
Appendix X: Information on the Department of the Interior's U.S.
Geological Survey's Scientific Earthquake Studies Advisory Committee:
This appendix provides information about the Scientific Earthquake
Studies Advisory Committee. The committee is managed by the U.S.
Geological Survey (USGS), and members are appointed by the Secretary of
the Interior.
Purpose of the committee: The advisory committee was established under
the Earthquake Hazards Reduction Authorization Act of 2000 (Pub. L. No.
106-503, Title II) to advise the Director of USGS on matters relating
to the USGS's participation in the National Earthquake Hazards
Reduction Program, a multiagency strategic program to reduce risks to
lives and property resulting from earthquakes. The committee is to
provide advice on the USGS Earthquake Hazards Reduction Program's
roles, goals, and objectives; capabilities and research needs; guidance
on achieving major objectives; and establishing and measuring
performance goals.
Number of members: 9 (see table 13).
Type of appointment: Representative.
Conflict-of-interest reviews: In 2001, the committee members were
appointed as representatives and were not required to file OGE
financial disclosure forms for Interior review for potential conflicts
of interest. In January 2004, Interior reevaluated the appointments and
determined that the members should be appointed as special government
employees. Interior said that the committee would not conduct further
meetings until the appointments had been changed.
Conflict-of-interest waivers: Not applicable in 2001.
Disclosure of waivers to the public: Not applicable.
Steps taken to gather nominations for the committee: The Earthquake
Hazards Reduction Authorization Act of 2000 requires the Director of
USGS to obtain nominations from the National Academy of Sciences,
professional societies, and other appropriate organizations. The
Director obtained nominations from the academy, the Geological Society
of America, the Seismological Society of America, the American Society
of Civil Engineers, the American Institute of Professional Geologists,
the American Geophysical Union, and the Earthquake Engineering Research
Institute.
Criteria used to balance the committee: According to the statute that
established the advisory committee, the selection of individuals for
the committee is to be based solely on established records of
distinguished service and the USGS Director is required to ensure that
"a reasonable cross-section of views and expertise is represented."
According to the designated federal official, the primary factor for
selection was expertise in fields such as geology, seismology,
engineering, and public safety. In addition, according to department
officials, the agency also considered gender, geography, and employment
sector.
External feedback on proposed committee membership: USGS sought
feedback from the National Academies on its slate of proposed members.
Table 13: Roster of the Scientific Earthquake Studies Advisory
Committee with the Primary Employers and Areas of Expertise as of
December 2003:
Universities:
Committee member: Dr. Daniel P. Abrams;
Primary employer: Universities: University of Illinois at Urbana-
Champaign;
Universities: Engineering.
Committee member: Dr. Thomas H. Jordan;
Primary employer: Universities: University of Southern California,
Department of Earth Sciences;
Universities: Seismology, geodynamics, tectonics, geodesy, and marine
geology.
Committee member: Dr. Paul Segall;
Primary employer: Universities: Stanford University, Department of
Geophysics;
Universities: Earthquake physics.
Committee member: Dr. Robert B. Smith;
Primary employer: Universities: University of Utah, Department of
Geology and Geophysics,;
Universities: Geology.
Committee member: Dr. Sharon L. Wood;
Primary employer: Universities: University of Texas, Ferguson
Structural Engineering Laboratory;
Universities: Engineering.
Companies:
Committee member: Dr. Lloyd Cluff;
Primary employer: Universities: Pacific Gas and Electric Company;
Universities: Earthquake hazard assessment.
Committee member: Mr. Ronald T. Eguchi;
Primary employer: Universities: ImageCat, Inc.;
Universities: Earthquake risk analysis.
State agencies:
Committee member: Ms. Mimi Garstang;
Primary employer: Universities: Missouri Geological Survey;
Universities: Earthquake hazard analysis in the eastern United States
and state-level mitigation policy.
Committee member: Dr. Jonathan G. Price;
Primary employer: Universities: Nevada Bureau of Mines and Geology;
Universities: Seismology and earthquake hazard analysis in the western
United States.
Source: Interior.
[End of table]
[End of section]
Appendix XI: Information on the National Aeronautics and Space
Administration's Space Science Advisory Committee:
This appendix provides information about the Space Science Advisory
Committee. The committee is managed by the Office of Space Science, and
members are appointed by NASA's Associate Administrator for Space
Science.
Purpose of the committee: The NASA Space Science Advisory Committee is
to draw on the expertise of its members and other sources to provide
advice and make recommendations to the Administrator of NASA on plans,
policies, programs, and other matters pertinent to the agency's space
science responsibilities.
Number of members: 17 (see table 14).
Type of appointment: Special government employees.
Conflict-of-interest reviews: NASA uses the OGE form 450 to collect
financial information from committee members. The forms are collected
and reviewed after the Associate Administrator has concurred with the
appointment decisions. The forms 450 are reviewed and approved by the
committee's designated federal official and the Office of General
Counsel. On the basis of these reviews, the Office of General Counsel
sometimes sends cautionary letters to members indicating that they may
need to recuse themselves if the committees address matters that relate
to their financial interests.
Conflict-of-interest waivers: No current members have
waivers.[Footnote 64]
Disclosure of waivers to the public: Not applicable.
Steps taken to gather nominations for the committee: According to the
committee's designated federal official, NASA gathered nominations from
staff within the agency's Office of Space Science.
Criteria used to balance the committee: The committee's designated
federal official told us said that in addition to considering the
nominees' areas of expertise relative to the four themes of the Office
of Space Science, he also considers their gender, ethnicity, geography,
and institutional affiliation.
External feedback on proposed committee membership: None sought.
Table 14: Roster of the Space Science Advisory Committee Members with
the Primary Employers and Areas of Expertise as of December 30, 2003:
Universities:
Committee member: Dr. David Deamer;
Primary employer: University of California at Santa Cruz;
Area of expertise: Astrobiology.
Committee member: Dr. Jonathan Grindlay;
Primary employer: Harvard-Smithsonian Center for Astrophysics;
Area of expertise: Astrophysics.
Committee member: Dr. Fiona Harrison;
Primary employer: California Institute of Technology;
Area of expertise: Astrophysics.
Committee member: Dr. Roderick Heelis;
Primary employer: University of Texas at Dallas;
Area of expertise: Solar physics.
Committee member: Dr. Garth Illingworth;
Primary employer: University of California at Santa Cruz;
Area of expertise: Astrophysics.
Committee member: Dr. Andrew Klein;
Primary employer: Oregon State University;
Area of expertise: Nuclear engineering.
Committee member: Dr. Jonathan Lunine;
Primary employer: University of Arizona;
Area of expertise: Planetary exploration.
Committee member: Dr. John Mustard;
Primary employer: Brown University;
Area of expertise: Astrobiology.
Committee member: Dr. David Spergel;
Primary employer: Princeton University;
Area of expertise: Astrophysics.
Federal research facilities:
Committee member: Dr. Judith Karpen;
Primary employer: U.S. Naval Research Laboratory;
Area of expertise: Solar physics.
Committee member: Dr. Edward Kolb;
Primary employer: Fermi National Accelerator Laboratory;
Area of expertise: Astrophysics.
Committee member: Dr. Jeremy Mould;
Primary employer: National Optical Astronomy Observatory;
Area of expertise: Astrophysics.
Committee member: Dr. Michelle Thompson;
Primary employer: Los Alamos National Laboratory;
Area of expertise: Sun-earth connections.
For profit company:
Committee member: Dr. Andrew Christensen (chair);
Primary employer: Northrop Grumman Space Technology;
Area of expertise: Sun-earth connections.
Committee member: Private, nonprofit research organizations.
Committee member: Dr. Heidi Hammel;
Primary employer: Space Science Institute;
Area of expertise: Planetary science.
Committee member: Mr. Martin Kress;
Primary employer: Battelle Memorial Institute;
Area of expertise: Space policy.
Private museum:
Committee member: Dr. Paul Knappenberger;
Primary employer: Adler Planetarium;
Area of expertise: Education and public outreach.
Source: NASA.
[End of table]
[End of section]
Appendix XII: Comments from the General Services Administration:
GSA:
GSA Administrator:
March 24, 2004:
The Honorable David M. Walker
Comptroller General:
United States General Accounting Office
Washington, DC 20548:
Dear Mr. Walker:
Enclosed are comments on the draft report entitled "Federal Advisory
Committees: Additional Guidance Could Help Agencies Better Ensure
Independence and Balance.":
GSA agrees that additional guidance and best practices suggestions
relating overall to the Federal advisory committee appointment and
membership processes could help agencies to ensure that committees are
perceived to be independent and have fairly balanced membership. The
General Services Administration (GSA) remains committed to these key
policy goals of the Federal Advisory Committee Act (FACA) and believes
that they should be implemented consistently across the executive
branch. GSA also believes that such guidance should be of sufficient
detail and clarity to ensure the utmost compliance with FACA and other
related or impacted statutes and regulations. GSA is in general accord
with the findings in the draft report relating to those areas directly
under the purview of GSA.
We are committed to our strong partnership with the Office of
Government Ethics (OGE) to address both those areas under OGE's
jurisdiction relating to FACA and the appointment and membership
processes that are under the decision making authority of individual
agencies. GSA will consult frequently with OGE and executive agencies
in developing enhanced guidance that will achieve not only the best
solutions, but also reflect the consensus of agencies that sponsor a
wide variety of advisory committees.
GSA is taking a proactive approach, to include changes to its shared
FACA Database management and reporting system, and some activities
already are underway. The enclosed comments indicate our overall plan
in the major areas of continuing dialogue with
OGE, incorporating changes to current interagency training, issuing
more detailed guidance to enhance data collection, and improving the
agency consultation process with GSA in the establishment of new
discretionary Federal advisory committees.
Thank you for the opportunity to comment on the draft report.
Sincerely,
Signed by:
Stephen A. Perry
Administrator:
Enclosure:
Comments of the General Services Administration on The General
Accounting Office's Draft Report, "Federal Advisory Committees:
Additional Guidance Could Help Agencies Better Ensure Independence and
Balance" (GAO-04-328):
Overall GAO Recommendation:
GAO is recommending that OGE and GSA provide additional guidance to
federal agencies with regards to clarifying the appropriate use of
representative appointments; systematically obtaining relevant
information to ensure committees are, and are perceived as, balanced;
and adopting some promising practices and measures that would better
ensure independence and balance and make the formation and operation of
advisory committees more transparent.
General GSA Comments:
As addressed in the report, because Federal advisory committees are
established to advise executive agencies on significant issues and play
an important role in the development of Federal policies, their
membership should be perceived as being free from conflicts of interest
and be fairly balanced in terms of the points of view represented and
the functions to be performed. Prior to issuing any new guidance, to
include best practices suggestions, GSA intends to consult specifically
with the Office of Government Ethics (OGE), and executive branch
departments and agencies generally, as substantial parts of these
processes reside in the area of OGE's regulatory and interpretive
jurisdiction, or are within the purview of each individual agency's
decisionmaking authority with respect to membership selection and
appointments. GSA's ongoing partnership with OGE extends both to
ensuring that GSA's Governmentwide issuances relating to the Federal
Advisory Committee Act (FACA) are consistent with all statutes and
regulations for which OGE is responsible, and also to the use of OGE
staff in the delivery of the ethics and conflicts of interest portions
of GSA's interagency FACA management training.
Additional comments are provided below relating to specific actions
that already are underway or planned to address the findings upon which
the GAO's recommendations are based. Several of these actions were
discussed in general with GAO's staff during the course of its review,
to include proposed changes to GSA's shared FACA Database management
and reporting system. We expect to complete all necessary actions
directly under the purview of GSA and those achieved collaboratively
with OGE and other agencies during fiscal year 2005.
GAO Finding:
Additional government wide guidance could help agencies better ensure
the independence and balance of federal advisory committees.
GSA Comments:
GSA generally agrees that additional guidance and best practices
suggestions relating overall to the Federal advisory committee
appointment and membership processes could help agencies to ensure that
committees are perceived to be independent and free from conflicts of
interest, and that committee membership, as contemplated by FACA, will
be fairly balanced.
GAO Finding:
Also, to be effective, advisory committees must be, and be perceived as
being, fairly balanced in terms of points of view and functions to be
performed. However, GSA's guidance on advisory committee management
does not address what types of information could be helpful to agencies
in assessing the points of view of potential committee members to make
decisions about committee balance.
GSA Comments:
GSA proposes to provide additional guidance within the format of a
comprehensive template describing the various factors for, and
illustrating the various components of what, in GSA's opinion, would
comprise a plan for fairly balanced membership consistent with FACA.
Secretariat staff work on this template was begun during the course of
this GAO review, with baseline information already obtained from
selected FACA Committee Management Officers (CMOs) on their agencies'
current plans.
GAO Finding:
Consequently, many agencies do not identify and systematically collect
and evaluate information pertinent to determining the points of view of
potential committee members, such as previous public positions or
statements on matters being reviewed.
GSA Comments:
GSA believes that a collaborative approach, sponsored by the Committee
Management Secretariat among CMOs in the form of a focus subgroup under
the ambit of GSA's standing Interagency Committee on Federal Advisory
Committee Management (IAC), would address this issue best initially. It
is the Secretariat's opinion that current practices should be shared
first, so that all agencies are aware of what options exist that might
improve a given agency's membership selection and appointment process,
and what new initiatives are feasible and pertinent to a particular
agency, given the existing wide variety of types of advisory
committees. This effort is planned for discussion at the next scheduled
IAC meeting.
Specific GAO Recommendations for GSA Action Contained in the Draft
Report:
(The Director of OGE and) the GSA Committee Management Secretariat
(should) direct federal agencies to review their representative
appointments to federal advisory committees either as the 2-year
charters expire or, for those committees with indefinite charters,
within one year to determine if the appointments are appropriate, and
to reappoint members as special government employees, where
appropriate, and direct agency committee management officials to
consult with agency ethics officials in making decisions about the type
of appointments that should be made for each committee.
GSA Comments:
GSA proposes to address this both in consultation with OGE and in the
Secretariat's proposed IAC subgroup. We believe this collaboration will
best define the specific method and process by which the executive
branch may address this procedure most effectively on a Governmentwide
basis, consistent with the specific authorities and responsibilities of
OGE, GSA, and individual executive agencies. Further, GSA believes,
based on its current guidance and from information provided in its
interagency training, that a firm basis already exists for enhancing
consultations between CMOs and Designated Agency Ethics Officials
(DAEOs).
We recommend that GSA (and OGE) revise the training materials for the
FACA management course, incorporating the additional OGE guidance as
recommended above....
GSA Comments:
GSA agrees in principle, but if any revisions are to be made in the
ethics and conflicts of interest portions, GSA would do so following
consultation with OGE. Any appropriate revisions would reflect the
decisions made by OGE.
We recommend that (OGE and) GSA direct agencies to determine, for each
relevant committee, the potential for such other biases and take
appropriate steps to ensure their representative members do not have
such biases.
GSA Comments:
GSA believes that addressing this recommendation initially is
principally within the purview of OGE, and intends to consult further
with OGE accordingly.
We recommend that GSA provide guidance to agencies regarding what
background information might be relevant in assessing committee
members' points of view.
GSA Comments:
GSA intends to provide additional guidance in several ways.
(1) GSA will coordinate with OGE staff that delivers the ethics and
conflicts of interest portions of GSA's interagency FACA management
training course. The appropriate content revisions will be made
pursuant to OGE's decisions with respect to the recommendations
contained in the final version of this GAO report that relate to the
subject matter of the course under OGE's regulatory and interpretive
jurisdiction. We also expect to obtain with OGE, the necessary input of
the affected executive branch agencies under whose purview rests
decisionmaking authority for individual membership selection and
appointments.
(2) GSA intends to issue, as an adjunct to its formal guidelines on
Federal advisory committee management, at 41 CFR Part 102-3, a
suggested best practice guideline in the form of a comprehensive
template describing the various factors for, and illustrating the
various components of what, in GSA's opinion, would comprise a plan for
fairly balanced membership consistent with FACA. Such template likely
will include all suggested and recommended factors deriving from the
experience of executive agencies, to include agency program needs, the
technical qualifications and expertise of individuals, stakeholder,
organizational, and interested party viewpoints, congressional and
public concerns,
demographic and diversity factors as appropriate, and others. Such
template would be used by agencies to address the fair balance
requirement in FACA for an advisory committee's membership that is
under the discretion of an agency and not otherwise determined by
statute or Presidential directive.
(3) GSA, through its Committee Management Secretariat staff, intends to
review and discuss with selected individual CMOs, their respective
agency practices in the areas of membership identification,
solicitation, nomination, and selection, and how their agencies
interact in this process with both specific stakeholders and the public
at large. Best practices will be shared within the FACA management
community through the IAC, which is comprised of all executive agency
CMOs.
We recommend that GSA issue guidance that agencies should identify the
committee (membership) formation process for each committee...; state
in the appointment letters to committee members whether they are
appointed as special government employees (SGEs) or representatives
(and the latter's organizations)...; identify each member's appointment
category in the GSA FACA Database...; (and) state in the committee
products the nature of the advice provided (independent or
consensus)...
GSA Comments:
GSA believes that addressing these several discreet recommendations
initially will require further consultation on its part with OGE and
the affected executive agencies, and will so do accordingly. GSA does
propose at this time to modify its shared FACA Database management and
reporting system by the addition of a single field to the Members Table
to identify each member's current appointment category (SGE or
Representative Member). Also, the system has the capability of
incorporating additional membership specificity and appointment
information with certain fields and displays, and additional linkages
to information posted by individual agencies on the Internet.
Furthermore, the Committee Management Secretariat will review its
current on-line consultation process for the establishment of new
discretionary Federal advisory committees to determine what
enhancements may be made to the ability of CMOs to upload certain
information to the FACA Database contemporaneously for public view.
[End of section]
Appendix XIII: Comments from the Office of Government Ethics:
United States Office of Government Ethics:
March 17, 2004:
Robin M. Nazzaro
Director:
Natural Resources and Environment
United States General Accounting Office
Washington, DC 20548:
Dear Ms. Nazzaro:
Thank you for the opportunity to comment on the General Accounting
Office (GAO) proposed report, Federal Advisory Committees: Additional
Guidance Could Help Agencies Better Ensure_ Independence and Balance
(GAO-04-328). The Office of Government Ethics (OGE) shares the concern
expressed in the report that members of Federal advisory committees
follow all applicable ethical requirements under Federal law. We
therefore welcome the contribution made by the proposed report to
efforts that OGE is making in this area.
As you know, OGE recently undertook its own "single-issue review" of
Federal advisory committee management, which was completed in November
2002. Based on information gathered in that review, we agree with the
conclusion of the proposed report that officials in some agencies may
be misidentifying certain advisory committee members as
"representatives," as opposed to special Government employees (SGEs).
OGE believes that it is crucial that agencies correctly apply the
criteria for distinguishing between SGEs, who are generally subject to
financial disclosure and other ethical requirements applicable to
Federal employees, and representatives, who are not Federal employees
at all and therefore are not subject to Federal ethics requirements. As
described in more detail in section B below, OGE has already undertaken
a number of measures to address this issue, such as training, legal
guidance, and new guidelines for OGE reviews of agency ethics programs.
In addition, OGE has and continues to work with the General Services
Administration (GSA) in close coordination and partnership on a variety
of matters that concern Federal advisory committees.
OGE does not agree, however, with GAO's conclusion that the problems
identified in the proposed report are attributable to inadequacies in
the legal guidance provided by OGE with respect to the distinction
between SGEs and representatives. As we explain in
section A below, OGE's guidance accurately represents a longstanding
executive branch interpretation of the definition of SGE in 18 U.S.C. §
202. Moreover, with respect to GAO's three specific recommendations,
OGE does not believe that the proposed report fully describes OGE's
guidance or the reasonable inferences that agency officials can fairly
draw from this guidance. Indeed, the proposed report itself contains
suggestions that the problems experienced at some agencies may be
attributable to factors other than a misunderstanding of OGE's
guidance.
A. GAO Recommendations Regarding the Adequacy of OGE Guidance:
At the outset, it is important to emphasize that most of the statements
in OGE Informal Advisory Opinion 82 x 22 to which GAO takes exception
did not originate in the OGE memorandum itself. Rather, as 82 x 22
makes clear, the basic criteria for distinguishing between SCEs and
representatives are reproduced verbatim from a memorandum issued by
President Kennedy in 1963, shortly after enactment of the legislation
creating the SGE category. This Presidential memorandum, which was
drafted by the Office of Legal Counsel at the Department of Justice,
has long been accorded great weight "as a contemporaneous
interpretation of the conflict of interest laws by the Department
charged with construing them." 2 Op. O.L.C. 151, 155 n.3 (1978). For
over 40 years, the criteria derived from this memorandum have provided
guidance to the executive branch in the interpretation of the
definition of SGE, and any recommendation to alter the content of that
advice bears a significant burden of persuasion, which we do not think
is met by the proposed report.
1. Recognizable Group of Persons:
GAO's first objection is that the language of the guidance is "overly
broad" in indicating that an individual may be considered a
representative, as opposed to an SGE, if the individual speaks for a
"recognizable group of persons." The proposed report concludes that
this language has led some agency officials to believe that this
language permits the appointment of non-SGEs "to represent various
technical fields, such as biology and toxicology.":
We do not believe that any reasonable interpretation of the phrase
"recognizable group of persons" would include "field of expertise." It
is simply not logical to say that a field or area of expertise is a
"group of persons." Moreover, any such interpretation would require
taking a single phrase out of a larger textual context that makes
abundantly clear that the thrust is that
representatives are appointed to speak in a representative capacity for
organizations and groups that have a stake in a matter.[NOTE 1] There
is little evidence in the proposed report that any agencies who may
have incorrectly appointed experts as representatives did so on the
basis of a legitimate interpretation of a particular phrase in 82 x 22.
Indeed, the proposed report itself contains evidence that some agencies
may not be engaging at all in the analysis described in 82 x 22. The
proposed report states that the agencies appointed members as
representatives based on longstanding practice and agency culture,
without any policies identifying criteria for distinguishing between
representatives and SGEs. It is hard therefore to understand how such
practices themselves are derived from a misunderstanding or
misapplication of the criteria. Furthermore, the report specifically
indicated that a recent OGE report on the same subject expressed
concern that certain agencies "may be purposely designating their
committee members as representatives to avoid subjecting them tho the
financial disclosure statements required for special government
employees." This suggests a possible basis for improper designations
other than misunderstanding of the criteria described in 82 x 22.
2. Ambiguity of "Represent" and its Cognate Forms:
The proposed report also states that 82 x 22 "implies that when the
term `representative' is used in authorizing legislation, or other such
documents, that members should be classified as representatives,
despite the fact that this term may be used for more generic purposes,
such as to direct the balance of a committee." The proposed report
states that, contrary to this purported implication in the OGE
guidance, "the use of some form of the terms represent or
representative in these documents does not always clearly indicate that
the members are to be appointed to serve as representatives.":
OGE's guidance does not imply that any use of the word "represent" or
its cognate forms in a statute or other document means that the members
of the committee are not SGEs. To the contrary, 82 x 22 provides
specific examples of documents using such terms and concludes that the
given committees nevertheless are comprised of SGEs. The OGE guidance
discusses one particular committee document that used the term
"represent" in a generic sense to describe the required technical
expertise for membership,
and OGE expressly concluded that the members of this committee were to
be treated as SGEs, "[w]hatever the degree of contradiction produced by
the use of `represent'" (BRAC committee). Memorandum 82 x 22 also
includes an example of legislation referring to points of view
"represented" on a particular committee and nevertheless concludes that
this committee was comprised of SGEs (FPUPAC committee) . Yet another
example in 82 x 22 concerns a statute that made the members of a
particular committee "representatives of their practicing colleagues,"
and OGE still concluded that these members were SGEs (NPSRC committee).
Finally, 82 x 22 discusses the language of the Federal Advisory
Committee Act (FACA) itself and states that the statutory phrase
"points of view represented" in FACA "asserts a standard of fairness
but is short of being a command that every advisory committee must
consist of individuals who represent the interests of persons or
entities outside the Government." Far from implying that the use of
"represent" or "representative" automatically rules out SGE; status, 82
x 22 makes clear that careful attention to all relevant factors is
required in order to determine whether the committee members are
actually intended to serve as representatives of interest groups.
3. Effect of Recommendation by Outside Organization:
The proposed report takes issue with the statement in 82x 22 that
"[t]he fact that an individual is appointed by an agency to an advisory
committee upon the recommendation of an outside group or organization
tends to support the conclusion that he has a representative function."
According to GAO, "this guidance does not take into account a common
practice that agencies use to identify potential committee members and
overemphasizes the weight agencies may give to this factor when
determining what constitutes a representative appointment.":
OGE does not understand how the statement that outside recommendation
"tends to support" the conclusion of representative status can be taken
as "overemphasizing" this factor. Indeed, the intentionally moderate
phrase "tends to support" would seem to indicate just the opposite. If
this factor were intended to be determinative, the guidance would have
said so expressly, as it does in the case of two other factors listed.
The outside recommendation factor is just one of several enumerated
items that must be considered in light of the totality of the
circumstances, and we believe nothing in 82 x 22 fairly suggests
otherwise.
In sum, while OGE may agree that some agencies are not adequately
performing the analysis required by 82 x 22, we do not believe that any
such problems reasonably can be attributed to the
language used in 82 x 22 and the other official documents that have
contained the same criteria ever since the 1962 SGE legislation was
first implemented. As discussed below, we agree that measures may be
undertaken --and indeed some already have been undertaken --to address
this matter. We do not believe, however, that the measures should
include interference with a set of criteria that represent a
contemporaneous construction of a criminal statute that has guided the
executive branch for over four decades.
B. OGE Efforts to Address the Issue:
OGE has devoted considerable attention to educating ethics officials
and other individuals involved in FACA management on issues related to
special Government employees (SGEs) and representatives. While some of
OGE's continuing efforts in this area involve collaborative efforts
with GSA, OGE has pursued other initiatives to strengthen ethics
awareness about this important issue. What follows is a short
description of some of OGE's training, awareness, and auditing efforts:
1. Improved OGE Program Audit Guidelines:
As the proposed report notes, OGE formally issued new audit guidelines
in 2003 that provided for additional focus and review of advisory
committee appointment designations. In particular, these guidelines
were immediately implemented and provided for additional focus and
inquiry by OGE's agency program reviewers on whether individuals who
serve as members of committees, councils, boards,* commissions, or
other groups were properly being designated as SGEs or representatives.
After these guidelines were implemented, at least one of our program
reviews in 2003 included a specific recommendation that the agency
reassess the status of employees and members serving on one of its
advisory committees.
2. Continuing GSA Support and Coordination:
In September 2003, OGE submitted substantial comments on a proposed GSA
template for improving the process of establishing Federal advisory
committees in the executive branch. This proposed template, to be
provided to executive branch agencies and other offices involved in the
formation of advisory committees contained suggested language for
legislation creating advisory committees. Some of the comments that OGE
made to the template were specifically focused on handling the
preliminary determination of whether an advisory committee member will
be serving as an employee or non-employee representative. Once
completed, the template will better enable executive branch agencies
and other persons or
entities involved in establishing Federal advisory committees to
appropriately consider member status issues when creating these
committees. The template is still in a draft form and OGE will continue
to work with GSA on preparing the final template.
3. GSA FACA Training Support:
The proposed report states that changes should be made to the training
materials used at GSA's FACA Management Training Course to address
concerns about the overall adequacy of OGE guidance on the SGE/
representative designation issue. The course provides 20 pages of
written materials on ethics, including five pages devoted to issues
involving the status of members serving on these committees. For the
reasons noted above, we believe the suggested changes to the text arise
from an unreasonable interpretation of OGE guidance. Much of the
guidance for distinguishing between SGE's and representatives comes
from a Presidential memorandum that was issued shortly after enactment
of the legislation creating the SGE category. Because much of the
course material dealing with the SGE/representative distinction comes
from that memorandum, we would not support any changes that would be
inconsistent with the weight of that contemporaneous interpretation of
the SGE category.
Nevertheless, OGE will continue to work with GSA to modify these
materials to make clearer for attendees the SGE/repre-sentative
distinction. In addition, OGE instructors at the course will continue
to ensure that the content of these course materials dealing with this
issue are fully discussed with course attendees.
4. OGE Ethics Conferences:
Almost every year since 1996, OGE has presented a session on FACA
issues at its annual ethics conference. For example, a session at the
2003 conference was principally devoted to "designation" issues
involving Federal advisory committees. The session discussed recent
reviews conducted by both OGE and GAO involving the management of
Federal advisory committees at several agencies and some of the issues
raised by those reviews. In particular, during the conference panel
session, the Department of Veterans Affairs (VA) Committee Management
Officer discussed his agency's process for designating advisory
committee members within the VA.
5. Additional SGE Guidance and Training Materials:
Since publishing OGE informal advisory opinion 82 x 22, OGE has issued
other advisory opinions that have discussed SGE and/or representative
status (e.g. , 87 x 12, 88 x 16, 90 x 5, 90 x 22, 92 x 25, 93 x 14, 93 x
30 & 95 x 8). Most recently, in February 2000 OGE issued a summary
regarding "Conflict of Interest and the Special Government Employee,"
which was subsequently issued as OGE Informal Advisory Opinion 00 x 01.
A substantial portion of this summary is dedicated to explaining the
concept of what is an SGE, and distinguishing SGE's from non-employees
such as representatives and independent contractors. Ethics officials
were asked to disseminate the summary to other components within their
organizations (such as regional offices) who they thought might
encounter questions pertaining to SGEs.
6. Continuing Review:
Finally, many of the issues regarding SGE/representative designations
can be better addressed when Federal advisory committees are being
created. In this regard, OGE monitors and comments on proposals to
create advisory committees to ensure that SGE/Representative
designation issues are fully considered.
Conclusion:
Thank you again for the opportunity to comment on the proposed report.
As noted above, OGE recognizes the importance of correctly applying the
criteria for distinguishing between advisory committee members who are
serving as SGEs and members who are serving as representatives, and has
devoted considerable attention to this issue. We therefore welcome your
contribution to our continued efforts in this area.
If you need any further assistance regarding any particular item
discussed in this letter, please contact OGE Associate General Counsel
Vincent Salamone or OGE Associate General Counsel Richard Thomas. Their
telephone number is 202-482-9300.
Sincerely,
Signed by:
Marilyn L. Glynn,
Acting Director:
NOTES:
[1] GAO itself has relied on the same phrase, without apparent
misunderstanding. See Decision of the Comptroller General, B-192734
(1978).
The following are GAO's comments on the Office of Government Ethics
letter dated March 17, 2004.
GAO Comments:
1. We continue to believe that OGE's ongoing efforts to encourage
agencies to evaluate whether appointments should be made as special
government employees or representatives would prove more effective if
clear, unambiguous guidance addressing the limitations we identified
were available to agency staff.
The draft and final reports present the OGE guidance as a factor in
some agencies' inappropriately appointing some members as
representatives and acknowledge OGE's concern that some agencies may be
doing so to avoid the conflict-of-interest reviews. Unless OGE
clarifies the limitations in the guidance identified in our report, we
believe progress in moving agencies toward appropriate appointments
will likely continue to be slow or nonexistent--remembering that the
1982 guidance was issued because of confusion over the proper use of
representative appointments. Unambiguous guidance would help all
agencies implement it; would support more effective oversight by ethics
officials, including OGE, and by Inspectors General; and would make it
more difficult for any agency to misapply the guidance and misidentify
certain advisory committee members as "representatives.":
2. The clarifications we identified do not change the criteria but
rather amplify them to address areas where continued confusion or
misuse has occurred. The 1982 guidance was developed to address
uncertainties regarding when agencies should appoint individuals as
either special government employees or representatives. In our view,
the findings in our report indicate that additional clarifications are
warranted. Along these lines, we note that when OGE's staff determined
in 2002 that some agencies use only representative appointments, they
suggested that additional training materials may be appropriate. The
staff suggested a communication to agency ethics officials to assist
them in making the determination for their committee members. Our draft
and final reports recommend revisions to the guidance and the training
materials.
3. Given that agencies are appointing representatives to represent
their individual fields of expertise and that OGE agrees this use of
representative appointments is not appropriate, we believe OGE should
revise its guidance to clarify that such appointments generally are not
appropriate. (We note that an exception would be if a committee were
considering an issue that would impact a particular group, for example,
physicists or biologists--a case in which a group of experts would be
stakeholders in the matter being considered.) Instead, OGE's response
is to state that it is not logical to say that a field or area of
expertise is a "group of persons" and to disagree that clarification to
its guidance may be warranted to eliminate this practice. It is
possible, as OGE suggests, that some agencies understand the guidance
and are simply disregarding it. However, we believe ambiguities in the
OGE guidance may provide agencies with some "cover" to support their
interpretations. In such cases, clear guidance would make it more
difficult for them to continue to misapply it. In addition, we direct
OGE's attention to the responses to this report from Interior, NASA,
and Energy (see apps. XV, XVI, and XVII), which suggest that
clarifications to the guidance regarding the appointment of
representatives to represent fields of expertise may be necessary.
4.On the basis of our work at several agencies and our review of the
OGE guidance, we continue to believe some clarification is needed vis-
à-vis the use of the term "represent" and its cognate forms. As the
draft and final reports state, OGE's direction to agencies in making
decisions regarding representative appointments is to use "words to
characterize them as the representatives of individuals or entities
outside the government who have an interest in the subject matter
assigned to the committee." Notably missing from OGE's specific
direction to agencies is a focus on the nature of the advice they will
be giving--that is, that they are to represent stakeholder views. This
is in contrast to OGE's direction to agencies regarding special
government employees that does focus on the fact that they are to
exercise individual and independent judgment. Although OGE's guidance
does provide helpful examples to agencies in examining statutory
language to determine whether committee members are actually intended
to serve as representatives of interest groups, we believe that
language in the conclusions section of the guidance that directs
agencies how to indicate the type of appointment contradicts the
examples that OGE cites. We have clarified the final report to indicate
that we were specifically discussing the conclusions section of the OGE
guidance. We also note that OGE developed these conclusions in 1982--
that is, it is not citing the 1962 guidance the agency is hesitant to
revise. Overall, we believe that clarifications, but not departures
from the criteria regarding appointments, are needed.
We point OGE also to the comments from the Interior (see app. XV) on
the matter of the term representative. Interior stated that "GAO agrees
that the statute authorizing the National Cooperative Geologic Mapping
Advisory Committee' calls for the committee to
include—representatives,' but then goes on to say that the statute does
not "clearly and unambiguously call for these members to be appointed
as representatives rather than special government employees.'."
Interior then characterized our statements as a contradiction and said
that the Secretary of the Interior "reasonably may interpret such a
statute by relying on its plain language—.". In our draft and final
reports, we indicate that it is not clear what point of view the
private sector and academia members could be called upon to provide if
appointed as representatives, and the statute did not appear to clearly
mandate that they be appointed as representatives--that is, it may be
using the term generically. We continue to believe that the statute
does not clearly and unambiguously call for representative appointments
and that this example underscores the need for OGE clarification as we
recommend.
5. Seeking recommendations for advisory committee members from outside
groups or organizations does not tend to support either representative
or special government employee status. As noted in the draft and final
reports, obtaining outside nominations is a common practice for
committees appointing special government employees; thus, it is not
used only for representative appointments. We think it would be
appropriate for the OGE guidance to reflect current practices regarding
nominations to federal advisory committees and avoid the potential of
agencies' giving undue weight to this criterion.
6. We are only recommending clarifications to OGE's guidance, not
changes to the fundamental principles or criteria upon which OGE based
its guidance. See also comment 2 above.
7. Our draft and final reports highlight the various efforts OGE
discusses below. However, we believe the effectiveness of these efforts
will continue to be reduced until OGE's guidance on appointments is
clarified.
8. OGE has subsequently clarified this comment. The program review
cited in the comment led to a recommendation that an agency reassess
the status of employees serving on a federally chartered corporation
and not on a federal advisory committee.
9. We have not evaluated the template that was still in draft form
during our review.
10. OGE does not explain its view that the clarifications to the GSA
FACA management training course that we identified in the report
represent an unreasonable interpretation of OGE guidance. We continue
to believe the suggestions our draft and final reports highlight would
improve the effectiveness of the training sessions. For example, the
GSA materials state that representatives may (emphasis added) represent
the views of a particular industry or group. It is not clear to us why
OGE would object to revising the FACA training materials to be
consistent with OGE's guidance that representatives are expected to
"represent a particular bias.":
11. The draft and final reports identify the session at the 2003 OGE
Ethics Conference cited in OGE's letter.
12. The draft and final reports cite the most significant and
comprehensive OGE guidance documents addressing representative
appointments, including OGE Informal Advisory Opinion 00 x 01
highlighted by OGE in its comments. (In the report text, we refer to
this guidance as OGE's February 2000 guidance, and we have added a
legal citation to it in a footnote.) We note that this opinion includes
one paragraph addressing representative appointments and states that
representatives are described more fully in OGE Informal Advisory
Letter 82 x 22, the guidance document cited in our draft and final
reports as OGE's principal guidance on the issue of appointment
categories for federal advisory committees.
13. We support OGE's commitment to monitor and comment on appointments
to newly created committees. However, in light of evidence that some
appointments to existing committees are inappropriate, we believe it is
appropriate to also review the appointments for approximately 950
advisory committees that are currently active.
[End of section]
Appendix XIV: Comments from the Department of Health and Human
Services:
DEPARTMENT OF HEALTH & HUMAN SERVICES
Office of Inspector General:
Washington, D.C. 20201:
MAR 19 2004:
Ms. Robin M. Nazzaro
Director:
Natural Resources and Environment
United States General Accounting Office
Washington, D.C. 20548:
Dear Ms. Nazarro:
Enclosed are the Department's comments on your draft report entitled,
"Federal Advisory Committees - Additional Guidance Could Help Agencies
Better Ensure Independence and Balance." The comments represent the
tentative position of the Department and are subject to reevaluation
when the final version of this report is received.
The Department provided several technical comments directly to your
staff.
The Department appreciates the opportunity to comment on this draft
report before its publication.
Sincerely,
Signed by:
Dara Corrigan:
Acting Principal Deputy Inspector General:
Enclosure:
The Office of Inspector General (OIG) is transmitting the Department's
response to this draft report in our capacity as the Department's
designated focal point and coordinator for General Accounting Office
reports. OIG has not conducted an independent assessment of these
comments and therefore expresses no opinion on them.
COMMENTS ON THE DEPARTMENT OF HEALTH AND HUMAN SERVICES ON THE U.S.
GENERAL ACCOUNTING OFFICE'S DRAFT REPORT, "FEDERAL ADVISORY COMMITTEES:
ADDITIONAL GUIDANCE COULD HELP AGENCIES BETTER ENSURE INDEPENDENCE AND
BALANCE" (GAO-04 328):
The Department of Health and Human Services (HHS) appreciates the
opportunity to comment on the GAO's draft report. The Department
strives to abide by the General Services Administration's (GSA)
guidelines and the General Administration Manual that describes the
Department's advisory committee policies.
This report will be useful in evaluating current practices for
appointing members to serve on Federal advisory committees. In
addition, GAO has provided a number of interesting ideas for
determining balance in points of view and ensuring transparency in the
advisory committee process.
Although we agree in principle that the information the Environmental
Protection Agency (EPA) collects on their potential nominees may be
useful in the selection process, we also believe that a few of the
practices identified may have unintended consequences.. We are
concerned about the collection of background information on prospective
members to understand their points of view.
We believe both the scientific community and the public at large is
more comfortable with a process that seeks to achieve balance through a
mix of expertise, background, and personal experience, rather than
through a process based on seeking out some indefinable range of
personal opinion. In many cases, points of view can be misinterpreted
based on the frame of reference of the individual reviewing the
nominee, either the public, Federal staff, or both. Also, we feel that
this type of activity may make Federal agencies more vulnerable to
litigation if potential nominees think that they were not selected
because of their points of view rather than their expertise. We think
this practice might not be acceptable to our nation's scientific
community.
We feel that it is more appropriate to base the selection of members on
the scientific expertise needed for each committee. For instance, the
National Institutes of Health (NIH) has a vast number of scientific and
technical advisory committees. NIH first seeks balance in the area of
scientific expertise but also considers several other factors:
geographic, ethnic, gender, minority status, bias, and orderly
rotation, that helps to ensure that committees are balanced in terms of
points of view. For example, when NIH seeks to recruit scientists to
serve on a committee looking at human genetics issues, they try to
recruit a diverse group of individuals with varied backgrounds to bring
balance to this committee. Therefore, NIH might look for experts with
specialties in human genetics, ethics, law, psychology, molecular
biology, public health, social sciences, bio-terrorism, forensics,
healthcare, and other relevant fields. We believe that such diversity
in the selection process would invariably ensure diverse points of view
and balance.
HHS agrees with GAO's recommendation that advisory committee operations
and member appointments should be a transparent process. We believe in
the public notification process and feel that the public should be
privy to advisory committee activities. We also agree that it is in the
best interest of both the public and the Government to disclose
information about the
formation and operation of advisory committees. Although the public
notice process to obtain comments on proposed candidates might be
feasible for some HHS committees, it would not be workable for all of
them. Unlike EPA with 24 committees, HHS had 234 active committees in
2003 and various subcommittee structures within these committees. Some
HHS agencies are limited by legislation in terms of the appointment
process. For example, most of NIH's national advisory councils are
established under Section 406 (284a] (c) of the Public Health Service
Act. This law requires that the Secretary, HHS, fill all national
advisory council vacancies within 90 days from the date the vacancy
occurs. Soliciting public input could gravely delay each committee's
ability to meet the requirements of this law, accomplish its charge and
appoint its members. It could also seriously increase administrative
costs for staff and contract support to handle this function.
The Federal Advisory Committee Act (FACA) requires that membership be
"fairly balanced in terms of the points of view represented and the
functions to be performed by the advisory committee." This is reflected
in the Food and Drug Administration's (FDA) advisory committee
regulations (see 21 CFR 14.40(f)(2)). The FDA has 31 of the HHS
advisory committees, all highly technical. The draft report also states
that, for science and technical committees, viewpoint balance is
appropriately achieved by obtaining a variety of scientific expertise
and perspectives. FDA agrees and its advisory committee regulations
have adopted this approach. For technical committees, the agency must
ensure that prospective members have expertise in the subject matter
with which the committee is concerned and that they have diverse
professional education, training, and experience (see 21 CFR
14.80(b)(1)(i)). However, the draft report implies that agencies should
also screen for policy views, as a way to ensure impartiality. FDA does
not screen for policy views on technical committees; rather, its
approach follows the National Academy of Sciences' recommendation that
appointments to scientific advisory committees be based solely on a
person's scientific or clinical expertise or his or her commitment to
and involvement in issues of relevance to the agency's mission. While
FDA does not screen for policy views on technical committees,
prospective members are subject to conflict of interest restrictions,
as established by Congress, and the agency may remove a member who
demonstrates a bias that interferes with the ability to render
objective advice (see 21 CFR 14.80(f)).
GAO's draft report cites EPA as the benchmark to which all other
agencies should aspire. A previous GAO report criticized the advisory
committee practices of EPA. It was the FDA that assisted in the
remediation of the EPA advisory committees. The draft report does not
recognize this effort on the part of FDA.
In the interest of transparency, GAO's draft report states that
agencies could make more information available on the operations of
advisory committees. FDA's selection process is clearly spelled out in
its regulation as well as in every Federal Register notice calling for
'nominations. On a product specific meeting, a disclosure form with a
scope and type of conflict is disclosed and signed by the member. For a
general matters meeting, it is disclosed that waivers are granted and
the impact will be minimized by the fact that large segments of
industry will be impacted in the same way. FDA regulations also state
that if the discussion turns specific, either additional waivers will
be issued or the meeting will cease. FDA may be the only
agency that posts, on the web, a Conflict of Interest algorithmic
document that demonstrates exactly how the agency makes decisions
relative to the scope and magnitude of a conflict.
FDA stands behind its work to ensure that the advisory committees are
balanced, not only demographically, but by scientific point-of-view. In
addition, FDA makes every effort to ensure that all its committees have
its stakeholders represented i.e., academics, industry, patient
advocates and consumer advocacy groups. FDA is secure in the knowledge
that it makes every effort to have an open process of member
recruitment, of conflict of interest matters and of balance to achieve
the recruitment of the best scientists to provide the most cutting edge
scientific advice for its regulatory process.
It is departmental policy to avoid excessively long individual service
on advisory committees. The 2002 roster for Childhood Lead Prevention
and Poisoning Advisory Committee included twelve individuals serving
expired terms, some of them serving on terms overdue since 1998. As
noted in the report, the Office of the White House Liaison has enforced
that all advisory committee members serve no longer than 180 days
beyond the expiration of their terms to ensure a proper turnover of
committee members, which the Department believes contributes to
maintaining independent and balanced advisory committees.
Again, we appreciate the opportunity to be a part of this review and
find the report's recommendations of great value. HHS advisory
committees play an integral role in developing health and science
policy for the nation and the world and determining the scientific
merit of future research. We will continue to review and evaluate each
of the ideas presented in the report to identify those that may be
implemented for our advisory committees. In addition, since the NIH has
145 of the HHS advisory committees, they have volunteered to work with
GSA to assist them in implementing the 12 recommendations noted in the
report.
The following are GAO's comments on the Department of Health and Human
Services's letter dated March 19, 2004.
GAO Comments:
1. The draft and final reports identify processes that include an
evaluation of potential members' points of view relevant to the subject
matters advisory committees will consider while focusing on the
relevant expertise needed. Thus, it is not accurate to characterize the
report as espousing "a process based on seeking out some indefinable
range of personal opinion." The examples in the report of agency
processes include targeted evaluations of points of view that ask
potential members if they have made public statements or taken
positions on the issue or matters the committee will consider,
including expert legal testimony on the issue or matters. The processes
cited also ask the potential members to identify and describe any
reason they may be unable to provide impartial advice on matters before
the committee and any reason their impartiality in the identified
matter might be questioned. We have added the phrase "regarding the
subject matters being considered" in several other places in the final
report in which we discuss determining the viewpoints of potential
members for further clarity on this point. The report also points out
that if agencies use a systematic, consistent, and transparent approach
to obtaining relevant information from prospective committee members,
it is unlikely they would approve questions that are generally
inappropriate in a professional working environment, such as questions
about party affiliations or political viewpoints that some committee
members have reported being asked. In our view, agencies that do not
proactively and transparently address the relevant points of view of
prospective committee members regarding the matters the committees will
consider are more likely to be subject to questions about committee
balance from the public and users of the committees' products than
those agencies that use such processes. That is, even if agencies
choose to either not identify or acknowledge relevant public positions
its committee members have taken on matters the committees will
consider, others are often aware of such positions and are likely to
raise questions about them. Such circumstances can have a negative
impact on the credibility of the specific committees involved and on
federal advisory committees overall. We believe this practice has been
the case regarding some HHS federal advisory committees about which
scientists and others have expressed concerns. Finally, in terms of
HHS's concern that obtaining information on relevant points of view
might not be acceptable to the nation's scientific community, our
report shows that both the National Academies and EPA routinely obtain
such relevant information from its prospective members.
2. The report identifies the practice of soliciting public input on
nominations to advisory committees, used by the National Academies and
some federal advisory committees, as one that can be helpful in
ensuring an appropriate balance of points of view of committees,
particularly those that address sensitive and controversial matters.
Agencies can determine whether to use this tool on a case-by-case
basis. Thus, we do not disagree with HHS's comment that obtaining
comments on proposed candidates might be feasible for some HHS
committees but not workable for all of them.
3. Although we agree with HHS that FDA should emphasize technical
qualifications when selecting advisory committee members, we also
believe that it is important for agencies to assess prospective members
for viewpoints that they have that are relevant to the work of the
committee (see also comment 1). HHS says that FDA follows the National
Academy of Sciences' recommendation that the appointment of members to
scientific advisory committees be based primarily on expertise and
involvement in relevant issues. This report notes that the academies
also seek to determine, through a few simple questions, whether there
is any reason to believe that the impartiality of members or
prospective members might be questioned.
4. EPA made changes in how it manages the Science Advisory Board in
response to the specific recommendations in our 2001 report.[Footnote
65] We did not attempt to determine any role FDA may have had in
assisting EPA, but we note that EPA, unlike FDA, revised its processes
for achieving overall balance in terms of points of view, expressly
integrating it with its reviews for potential conflicts of interest and
obtaining relevant information prior to the appointment of committee
members.
5.We agree that FDA provides useful information about its selection
process, but we continue to believe that FDA and the other agencies
could improve their processes for balancing committees. The draft and
final reports highlight FDA policies for public notice of waivers. We
note that the selection and waiver processes used by FDA are not used
by HHS, CDC, and NIH.
[End of section]
Appendix XV: Comments from the Department of the Interior:
United States Department of the Interior:
OFFICE OF THE ASSISTANT SECRETARY
POLICY, MANAGEMENT AND BUDGET
Washington, DC 20240:
MAR 18 2004:
Christine Fishkin
Assistant Director
Natural Resources and Environment
United States General Accounting Office
Washington, D.C. 20548:
Re: DOI Comments on GAO Draft Report on Advisory Committees:
Dear Ms. Fishkin:
Thank you for the opportunity to review the GAO's draft report
entitled, "Federal Advisory Committees: Additional Guidance Could Help
Agencies Better Ensure Independence and Balance.":
We agree with much in the report; it contains many useful
recommendations that can be used to enhance the successful use of
advisory committees. However, the Department has a number of general
and specific concerns with the GAO analysis.
Enclosed please find DOI's response. If you have any additional
questions, please feel free to contact us.
Sincerely,
Signed by:
P. Lynn Scarlett:
Department of the Interior Comments on GAO Draft Report on Advisory
Committees:
Following are the Department's response to the GAO's draft report
entitled, "Federal Advisory Committees: Additional Guidance Could Help
Agencies Better Ensure Independence and Balance.":
We agree with much in the report; it contains many useful
recommendations that can be used to enhance the successful use of
advisory committees. However, we note that the GAO's focus on
scientific advisory committees ignored the wide ranging purposes and
programs for which advisory committees are used in many agencies, such
as managing public lands and natural resources. As a result, many of
the report's recommendations and observations about independence and
balance of committees, while useful, have limited applicability in non-
science settings. GAO should clearly identify the purpose and scope of
this report as focusing on science committees.
The Department strongly disagrees with GAO's basic approach to the
concept of balance that is required under the Federal Advisory
Committee Act (FACA). The GAO's approach reflects neither actual
experience nor practical considerations associated with creating,
staffing, and managing advisory committees under the FACA. On page one,
and throughout the report, GAO repeats the basic point that
"Specifically, individual committee members providing advice to the
government must be free from significant conflicts of interest - that
is, they must be independent." It is not clear exactly where the
report's apparent requirement that individual committee members be
"independent" originates. In Section 5 of the FACA, Congressional
committees are directed to "...assure that the advice and
recommendations of the advisory committee will not be inappropriately
influenced by the appointing authority or any special interest, but
will instead be the result of the advisory committee's independent
judgment." Though this statutory requirement, by its terms, is not
applicable to discretionary committees established by agency heads, it
is repeated verbatim in the GSA regulations at 41 C.F.R. § 102-
3.105(g), as a responsibility of agency heads for committees they
establish. An "independent" committee member is simply never discussed.
The report's focus on "independence" of individual committee members
has several practical and conceptual difficulties. First, it does not
accurately reflect the FACA's and the regulations' requirement that the
advisory committee itself remain free from inappropriate influence and
that its recommendations result from its independent judgment. There is
no guarantee that a committee made of "independent" members will also
be a committee that is not inappropriately influenced by the appointing
authority, or that the committee is acting on its independent judgment.
The more logical way to implement these provisions would focus on the
operation of the committee itself , ensuring that the appointing
authority does not mandate any particular results from the committee
members and that the committee is not structured in such a way as to
give any special interest control over its advice. For example,
although consensus is often desired on advisory committees, mandating a
unanimous vote in support of committee advice would enable a single
member to thwart other members of the committee by refusing to support
the other member's preferred advice. This would not only be
inappropriate influence, but it would also prevent the committee from
giving its independent judgment, as it would make the committee
potentially beholden to a single member.
The report unnecessarily focuses on a requirement for membership that
does not exist, i.e., "independence." The report therefore detracts
from addressing the membership requirement that does exist: that the
committee be fairly balanced in its membership in the points of view to
be represented and the functions to be performed. Once again, this
requirement only goes to the balance of the committee as a whole,
though the balance may only be addressed by reference to the "points of
view" of individual committee members, i.e., there is balance on a
committee when a member with a particular "point of view" is on a
committee with others with differing or conflicting points of view. The
relevant question is how to determine what "point of view" to attribute
to a member and how to distinguish one point of view from another, to
reasonably assure balance on the committee as a whole. Using
"independence" as a criteria for membership at best does not help this
analysis, and at worst it confuses the issue and hinders an agency in
seeking the requisite balance on its committees.
The report defines "independence" as freedom from "significant
conflicts of interest," a definition that appears to conflate the
ethics requirements applicable to Federal employees (including SGEs)
and some concern over complaints about certain advisory committee
members into an entirely new, inappropriate, and unworkable standard.
There is nowhere in the ethics rules that states that even full-time
Federal employees must be free from "conflicts of interest," let alone
"significant conflicts of interest." The system instead is set up to
identify the financial interests that may lead to conflict (primarily
via financial disclosure reports), and then instructs employees: 1) to
avoid participating personally and substantially in particular matters
that may directly and predictably affect their financial interests (18
U.S.C. § 208); and 2) to avoid "participating" in a particular matter
involving specific parties in circumstances where a reasonable person
may question their impartiality (5 C.F.R. § 2635.502). In each case,
the agency may nonetheless authorize participation. Further, "
substantial" conflicts (those materially impairing the employee's
performance of official duties or requiring disqualification too often)
are dealt with by divesting the interest. See 5 C.F.R. § 2635.403(b).
The report attempts to short-circuit this system by imposing the vague
"independence" standard on advisory committee members, as some sort of
appointment requirement.
The report's emphasis on the "independent" committee member standard
ignores the agencies' ability to work with committee members to ensure
that they do not violate the ethics rules. As set forth in the system
described above, the question of whether or not a member should
participate in a particular committee function is properly resolved on
a case-by-case basis, evaluating the nature of the committee action and
the nature of the financial interest involved. For example, it is not
clear when casting one vote out of a number of committee member votes
that results in a committee's advice to a Federal agency will be
"personally and substantially" participating in a matter sufficient to
trigger the conflict of interest statute. The question of whether a
particular piece of advice will "directly and predictably" affect a
financial interest also should be closely considered. Should an actual
conflict exist, the agency should be able to determine whether to
authorize participation, as it could with other matters in which
employees are involved. Accordingly, the report should focus more on
how an agency may effectively address ethics-related issues in terms of
participation of members in committee activities and in terms of how to
articulate, achieve, and publicly support the fair balance of its
committees.
Imposing "independence" as an appointment requirement does not help an
agency bring the requisite balance to a committee. It will necessarily
be very difficult, and ultimately not worthwhile, to attempt to
determine whether a committee member or the committee member's "point
of view" is "independent," whatever that means. The report recommends
that agencies identify and systematically collect and evaluate
information pertinent to determining "points of view" of committee
members. Scientific advisory committee members are generally chosen for
their expertise and objective understanding of the science involved and
not on the basis of perceived "points of view." This is not really the
relevant question. The relevant question is whether a committee has
balance in terms of the points of view to be represented and the
functions to be performed. The report would be more useful if it would
focus on suggestions regarding how to help agencies define and achieve
such balance in points of view when exercising their discretion in
committee appointments.
Departmental officials have informed your staff of the many steps we
have taken over the past 18 months to improve the way we identify and
appoint advisory committee members as special government employees. I
understand that this information was shared with you at one of your
initial meetings at the Department in June of 2003. The draft report
repeatedly states, however, that this information was provided only in
January of this year. It is important that GAO properly acknowledge the
efforts the Department is undertaking in this area.
Our other specific comments are set forth below.
P. 4: Last sentence: It is inaccurate to single out three agencies to
say they "do not conduct conflict-of-interest reviews for members
appointed as representatives." First, it is unlikely that any agency
does this for representatives, not just these three. Second, given the
differing levels of ethics screening that may be done (such as for BLM
Resource Advisory Councils), the more accurate statement is that
agencies do not collect and review OGE Form 450s (or other approved
form) for representatives. We recommend that this substitution be made
throughout the report or else define "conflict-of-interest reviews" as
a term of art meaning use of the OGE Form 450 or similar form.
P. 8: Last paragraph, second sentence: GAO ignores the authority of
agency heads to exercise discretion under their organic statutes to
create advisory committees that are not expressly authorized by
Congress or by a president.
P. 16: The definitions on this page and on page 17 should be clarified
as early as possible in the report to ensure that readers understand
the two categories of membership (representatives and special
government employees).
P. 20: Last paragraph: GAO significantly misconstrues DOI's "agency
culture," not only on this page but throughout the draft report. With
the majority of its committees advising the Secretary on the management
of public lands, DOI historically has strongly believed that its
committees members should represent local stakeholders. Thus the
practice of appointing representatives is based on decisions strongly
rooted in DOI's authorities, responsibilities and philosophies.
Ignoring the appropriate use of representatives, GAO
repeatedly assumes without factual support that most representatives
should have been appointed as SGEs.
P. 21: GAO's generalization that representation of fields of expertise
is not appropriate ignores the importance of such representation to
some committees. However, we agree that agencies have proper guidance
in how and when to use such expertise.
P. 24: First paragraph: Reference to DOI's efforts to add ethics
language to all FACA charters misleadingly suggests that DOI began this
effort in January 2004. GAO is aware that DOI began this effort in 2003
in response to OGE's 2002 study.
P. 25: First paragraph: In paraphrasing DOI officials regarding the
tendency "to err on the side of continuing with representative
appointments," GAO omitted important information that was presented in
the same discussion. That is, where the purpose of the committee is to
advise the Secretary on the management of public lands or other
resources, the Department firmly believes the views of local
stakeholders are essential to sound and useful advice. In such cases,
DOI is likely to continue to appoint representatives. In doing so, it
does not "err," especially if an authorizing statute does not restrict
the Secretary's discretion to do so. Rather, GAO errs by invoking OGE's
guidance without regard to the stated purpose of the advisory
committee.
Second paragraph: GAO agrees that the statute authorizing the National
Cooperative Geologic Mapping Advisory Committee "calls for the
committee to include ... representatives," but then goes on to say the
statute does not "clearly and unambiguously call for these members to
be appointed as representatives rather than special government
employees." Notwithstanding this apparent contradiction, the Secretary
reasonably may interpret such a statute by relying on its plain
language, especially where the Secretary desires representative advice
to assist a committee's function.
P. 27 - 35: The report continually confuses the distinctly separate
concerns for balance and avoiding financial conflicts of interest.
Additionally, GAO's positions regarding a committee's balance and
perceived objectivity when compared to points of view of its members
are simply unrealistic and impractical, and unrelated to the actual
functioning of advisory committees. The kinds of inquiries into the
biases and points of view of potential appointees recommended by GAO is
intrusive, of little practical utility, and will turn qualified
individuals away from government service. GAO apparently has a single
concept of how to achieve balance and seems to ignore the FACA's
requirement that committees be balanced based on the function they are
called upon to perform. Further, representatives are placed on
committees precisely because of their stated representative interests;
because they are not subject to the ethics rules, it is illogical to
assert that their participation is improper on the basis of bias. GAO's
view that agencies cannot properly balance their committees without
understanding all perceived biases of all members is simply fallacious.
Finally, as the report notes on p. 37, courts have interpreted the FACA
as giving agencies broad discretion on how to balance their committees.
Additionally, the report should note that a committee of
representatives may obtain "expert
advice" from individuals with scientific or technical expertise. For
example, a scientific or technical expert may be invited to a meeting
of the committee or its working groups to provide expert guidance to
assist the representatives in formulating their advice to the federal
government. Describing such options might help organizations and others
to understand that representative membership can also be effective in
providing useful, technically accurate, and unbiased advice to the
federal government.
The following are GAO's comments on the Department of the Interior's
letter dated March 18, 2004.
GAO Comments:
1. This report states, as did the draft, that while our report focuses
primarily on scientific and technical federal advisory committees, the
limitations in guidance and the promising practices we identified
pertaining to independence and balance are pertinent to federal
advisory committees in general. This report and the draft also
identified the wide range of issues addressed by federal advisory
committees, including managing federal lands and natural resources.
2. The background section of the report and the draft acknowledged the
FACA requirement that committees not be inappropriately influenced by
the appointing authority or any special interest. However, the draft
report also clearly stated that in addressing independence, our focus
was on the requirements regarding individual conflicts of interest that
are included in federal conflict-of-interest statutes, unless
specifically noted otherwise. In our introduction, we state that
"federal advisory committee members who are employees of the federal
government must meet federal requirements pertaining to freedom from
conflicts of interest--which we refer to in this report as
independence--and committees as a whole must meet the requirements
pertaining to balance." Thus, we use the term "independence" as
shorthand for the conflict-of-interest requirements to which individual
committee members must adhere. We further highlight the key provisions
of the federal conflict-of-interest statutes that must be complied
with, including a description of the ability of an individual who has a
conflict of interest to nonetheless participate on a committee if
granted a waiver. Alternatively, an individual may divest the financial
interest.
We note that all federal employees are prohibited not only from holding
financial interests that conflict with the conscientious performance of
duty, as Interior suggests in its comments, but also from engaging in
outside employment or activities that conflict with their official
duties and responsibilities. See 18 U.S.C. § 208, 5 C.F.R. §§
2635.101(b)(2), and 2635.101(a)(10). Further, employees are also
required to avoid any action that creates the appearance that they are
violating the law or ethics standards. 5 C.F.R. § 2635.101(b)(14). It
is precisely because these obligations are imposed only on employees
that it is crucial to ensure that FACA committee members are
appropriately characterized as "representatives" or special government
employees. Both special government employees and representatives should
be evaluated for biases to ensure that the FACA committees as a whole
are balanced. Special government employees must also be subject to a
conflict-of-interest review, including an analysis of whether their
nongovernment activities and employment present a conflict or create
"the appearance that they are violating—ethics standards." 5 C.F.R. §
2635.101(b)(14).
3. We agree that the question of whether a member should participate in
a particular committee function (or whether they should be appointed to
a particular committee) is properly resolved on a case-by-base basis,
evaluating the nature of the committee action or work and the nature of
the financial interest involved. Further, the draft and final reports
recognize that agencies may grant waivers to members to serve on
advisory committees upon determining that either (1) the conflict is
insignificant or (2) the need for the member's expertise outweighs the
conflict. The draft and final reports also discuss some promising
practices regarding the disclosure of such waivers to the public and
among committee members.
4. The draft and final reports discuss in considerable detail
information that can help agencies ensure committees are balanced and
provide examples of promising practices that would better ensure the
balance of advisory committees.
5. We agree that a relevant question for federal advisory committees is
whether a committee has balance in terms of points of view to be
represented and the functions to be performed. Our report provides
examples of promising practices used by other agencies and the National
Academies that can help agencies define and achieve an appropriate
balance of points of view.
6. Our draft and final reports state that at the start of our review,
Interior officials told us that they had begun to review their
appointment classifications for the 115 advisory committees as a result
of the November 2002 OGE study. The draft and final reports also state
that the department has been reviewing the appointments to committees
as their charters expire. We do indicate that in January 2004, Interior
officials acknowledged that it was appropriate to change the nature of
some appointments upon reexamination. This was the first time any
results of the reviews were communicated to us. Further, Interior
notified us of the decision to change the appointments to the
earthquake studies committee on January 16, 2004, subsequent to our
meeting on January 12, 2004.
7. We revised the report to indicate that agencies do not conduct
conflict-of-interest reviews for members appointed as representatives
because conflict-of-interest reviews are only required for federal or
special government employees. Thus, we removed any unintended
implication that other agencies do more than the three we are reporting
on in this report in terms of representative appointments. In our draft
and final reports we indicate that the ethics screening vis-à-vis
representatives done by one bureau of the department (Bureau of Land
Management) is not sufficient to constitute a conflict-of-interest
review for those appointed as special government employees. In this
section, we are discussing those members who were appointed as
representatives but who would be more appropriately appointed as
special government employees.
8. We modified the language in the report to more clearly describe the
authorities under which committees may be formed.
9. The draft and final reports define the two categories of
appointments on page 1.
10. The draft and final reports state on page 1 that members of federal
advisory committees may be appointed as (1) special government
employees to provide advice on behalf of the government on the basis of
their best judgment or (2) representatives to provide stakeholder
advice. We do not take issue with representative appointments when the
members are, in fact, appointed to represent a particular interest or
view of an entity or group with an interest in the matter before the
committees, and they are fully informed as to the point of view or
interest they are to represent. Further, the reports state that
Interior officials noted that many of their committees addressing
federal land management issues are not scientific and technical in
content and, in their view, are appropriately staffed with
representative members. The reports do indicate that committees
classified as scientific and technical, as well as others that address
scientific and technical issues, are those for which advice on behalf
of the government on the basis of members' best judgment is typically
sought, rather than stakeholder advice. Interior has 11 committees with
288 members that are classified by the agency as scientific and
technical committees in GSA's FACA database, and some other committees
not so classified also address scientific and technical issues.
11. We are not certain what Interior means in stating that "GAO's
generalization that representation of fields of expertise is not
appropriate ignores the importance of such representation to some
committees." However, the comment does suggest that Interior continues
to believe that it is appropriate to appoint members to represent their
field of expertise as representatives, rather than as special
government employees. We and OGE disagree with this interpretation of
OGE's guidance on appointments to advisory committees. Representatives
are to espouse a particular point of view of a party with an interest
in the matter, whereas experts having specific expertise provide advice
on behalf of the government on the basis of their best judgment. Thus,
experts in various fields are more appropriately appointed as special
government employees. (Subsequent to sending its comment letter,
Interior clarified that the second sentence of this comment should read
"However, we agree that agencies should have proper guidance in how and
when to use such expertise.".):
12. We have removed the reference to January 2004 in this instance,
reporting that Interior officials told us that they have begun to
insert standard language in the charters regarding the ethics
obligations of the members. See also comment 6.
13. On the basis of a January 2004 discussion with Interior officials,
we understood the officials to say that in reviewing their appointment
designations as committee charters expire, the agency was erring on the
side of representative appointments when the information relevant to
the committee was ambiguous on the issue of appointments. However, in
its comments, Interior officials said they disagreed with our
characterization of their previous comments, and we have deleted the
statement from the report. In its comments, Interior officials said
that the agency was likely to continue to appoint representatives to
committees whose purpose is to advise the Secretary on the management
of public lands or other resources as they are seeking the views of
local stakeholders in these instances. As noted above, we do not take
issue with representative appointments when the members are, in fact,
appointed to represent a particular interest or view of an entity or
group with an interest in the matter before the committees, and they
are fully informed as to the point of view or interest they are to
represent.
14. Interior states that "GAO agrees that the statute authorizing the
National Cooperative Geologic Mapping Advisory Committee 'calls for the
committee to include—representatives,' but then goes on to state that
the statute does not 'clearly and unambiguously call for these members
to be appointed as representatives rather than special government
employees.'." Interior then characterizes our statements as a
contradiction and said that the Secretary of the Interior "reasonably
may interpret such a statute by relying on its plain language—.". In
our draft and final reports, we indicate that the statute did not
appear to clearly mandate that the members be appointed as
representatives--that is, it may be using the term "representative"
generically--and we further noted that is not clear what point of view
the private-sector and academia members could be called upon to provide
if appointed as representatives. We continue to believe this statute
does not clearly and unambiguously call for representative appointments
and that this example underscores the need for OGE clarification
regarding the use of the term representative, as we recommend.
15. As the draft and final reports state, FACA requires that all
committees be balanced overall in terms of both points of view
represented and the function to be performed. In our view, in order for
advisory committees to be effective, it is important that they are, and
are perceived as being, balanced. The draft and final reports identify
processes that include an evaluation of potential members' points of
view relevant to the subject matters advisory committees will consider
while focusing on the relevant expertise needed. The examples in the
reports of agency processes that include such targeted evaluations of
points of view ask potential members if they have made public
statements or taken positions on the issue or matters the committee
will consider, including expert legal testimony on the issue or
matters. They also ask the potential members to identify and describe
any reason they may be unable to provide impartial advice on matters
before the committee and any reason their impartiality in the
identified mater might be questioned. We disagree with Interior's view
that these inquiries would be intrusive, of little practical utility,
and would turn qualified individuals away from government service. We
also disagree with Interior's view that we are saying that agencies
need to understand all perceived biases of advisory committee members.
As shown above, the information identified as relevant to members'
points of view is targeted and focuses on their points of view relevant
to the subject matter to be considered. We disagree that such inquiries
will turn qualified individuals away from government service, evidenced
by the fact that the National Academies and EPA routinely obtain such
relevant information from its prospective members. Finally, we
recognize that representatives are placed on committees because of
their stated stakeholder interests and do not assert that participation
of representatives is improper.
16. We agree that committees, whether composed of representatives or
special government employees, may invite outside experts to provide
information or guidance. However, that does not affect the obligation
agencies have to make appropriate decisions about appointing members as
either representatives or special government employees.
[End of section]
Appendix XVI: Comments from the National Aeronautics and Space
Administration:
National Aeronautics and Space Administration:
Office of the Administrator
Washington, DC 20546-0001:
March 26, 2004:
Ms. Robin M. Nazzaro
Director:
Natural Resources and Environment
United States General Accounting Office
Room 2T23:
441 G Street, NW Washington, DC 20548:
Dear Ms. Nazzaro:
NASA has reviewed the draft GAO report, Federal Advisory Committees:
Additional Guidance Could Help Agencies Better Ensure Independence and
Balance (GAO-04-328). Advisory committees serve an important role for
NASA and the agency appreciates the effort to strengthen the
independence and balance of these committees.
The overall conclusion that agencies could benefit from additional
guidance to better ensure independence, balance, and transparency is
sound. However, NASA is concerned about the implications of the finding
that would limit the use of representative appointments for advisory
committees to those persons who represent specific organizations,
rather than a community at large (e.g., industry, education, or a
particular field of scientific research). It is important that NASA
retain the flexibility to use representatives who do not represent
specific stakeholders. This is because individual stakeholder
organizations would not necessarily be in a position to represent the
overall interests of a broader community, and neither would their
employees. Finally, since each community at large is itself comprised
of individual organizations or stakeholders (for example, particular
universities or trade groups, in the case of education), advisory
committee members appointed as Special Government Employees rather than
representatives would be precluded by the conflict of interest laws
from participating in any discussion relating to their own
organization, and by extension their community at large. This would
effectively eliminate the perspective they were appointed to provide.
In conclusion, in order to permit agencies to receive the views of
entire communities, not just individual organizations, the draft
recommendation should be modified to request that the Office of
Government Ethics' guidance allow for the appointment of
representatives of stakeholder communities as well as individual
stakeholder organizations. Mr. Andrew Falcon, NASA's
Advisory Committee Management Officer, is available to discuss this
matter further, and can be reached at (202) 358-2465.
I look forward to receiving a copy of the final report when available.
Cordially,
Signed by:
Frederick D. Gregory, Deputy Administrator:
The following are GAO's comments on the National Aeronautics and Space
Administration's letter dated March 26, 2004.
GAO Comments:
1. NASA's comments support the appointment of federal advisory
committee members as representative of their fields of expertise on the
basis that some experts would not be able to serve as special
government employees due to financial conflicts of interest. First,
this view conflicts with OGE's and our view that representatives are
not appropriately appointed to represent fields of expertise (see
comment 2 below). Second, this view does not recognize that agencies
may grant waivers to members to serve on advisory committees upon
determining that either (1) the conflict is insignificant or (2) the
need for the member's expertise outweighs the conflict.[Footnote 66]
Our draft and final reports discuss waivers and some promising
practices regarding the disclosure of such waivers to the public and
among committee members.
2. NASA also recommends that the OGE guidance allow for the appointment
of representatives of "stakeholder communities" as well as individual
stakeholder organizations. NASA identifies those that may represent a
community as industry, education, or a particular field of expertise.
We note that OGE guidance on representative appointments states that
representatives may speak for stakeholders--that is, firms or an
industry, labor or agriculture, or for any other recognizable group of
persons with an interest in the matter under consideration. Thus, we
believe that NASA can appoint experts as representatives to provide the
views of, for example, the aerospace industry--if these experts are to
provide stakeholder advice on matters in which the aerospace industry
has an interest. If, however, NASA wants such experts to provide advice
on behalf of the government on the basis of their individual and expert
judgment, the appointments would be appropriately made as special
government employees. These individuals would then be reviewed for
potential financial conflicts of interest; if conflicts were
identified, the conflicts would require mitigation. Regarding NASA's
support for representatives providing the views of "stakeholder
communities," we continue to believe that fields of expertise generally
are not appropriately considered to be stakeholder communities.
Specifically, fields of expertise may be defined as a stakeholder
community only in instances where the subject matter a committee is
addressing would have a particular impact on a field of expertise--for
example, biologists, teachers, or doctors--but not in cases where the
experts are called upon to provide expert advice on the basis of their
individual judgment.
[End of section]
Appendix XVII: Comments from the Department of Energy:
Dr. Robin M. Nazzaro
Director, Natural Resources and Environment
General Accounting Office
Washington, D.C. 20548:
Department of Energy
Office of Science
Washington, DC 20585:
APR 01 2004:
Office of the Director:
Dear Dr. Nazzaro:
In response to your letter of March 3, 2004 inviting comment on the
proposed report Federal Advisory Committees Additional Guidance Could
Help Agencies Better Ensure Independence and Balance (the Report), the
Department of Energy (DOE) is pleased to submit three general sets of
comments:
1. We are concerned about the implications of the "one-size-fits-all"
approach that is being advocated in this Report. In particular, the
special role that the Office of Science's six standing Advisory
Committees play, within the U.S. scientific enterprise is not
recognized and their overall effectiveness could be diminished if GAO
recommendations are followed.
2. The suggestions made by GAO to change the way that DOE selects
Advisory Committee members should be implemented only if they would
result in clearly defined benefits for DOE programs. Without that clear
articulation of benefits, which we believe is absent in this Report,
DOE should continue to select members according to our specific needs
and circumstances.
3. GAO's interpretation of the term "representative" is unpersuasive and
would be an unsound basis of guidance for the Department.
"One-Size-Fits-All" Approach:
The Report correctly notes that DOE views members of its scientific
Advisory Committees as representatives, in contrast to persons who
provide individually-centered advice on behalf of the government who
should become special government employees and concludes that this
practice:
". . . exposes the relevant committees to potentially serious problems.
Because representative members are not subject to reviews for potential
conflicts of interest, allegation of conflicts of interest may call
into question the integrity of the committee and jeopardize the
credibility of the committee's work.":
Report at 23 [NOTE 1]:
While this critique of government-wide Advisory Committees, generally,
may be meritorious, applying it to DOE's Office of Science (SC)
Advisory Committees appears to stem from a misunderstanding of SC's
unique structure and how its scientific advisory committees assist in
accomplishing DOE's vital national missions. This critique also fails
to note the many self-regulating mechanisms inherent within the SC
Advisory Committee structure that greatly diminish, or even eliminate,
the potential for conflicts of interest.
DOE's basic research portfolio, which is managed by SC, is organized
according to scientific disciplines (physics, chemistry, mathematics,
etc.). This organizational structure - which is manifested through SC's
budget categories, office structures, personnel assignments, etc. - is
critical to understanding why SC's Advisory Committee members are
inherently representative.
The reason we say this is that SC's Advisory Committees are focused on
the health of specific scientific disciplines. It might surprise you to
learn that although more than 50% of SC's research dollars go to DOE's
national laboratories, only 15% of the total membership of SC's
Advisory Committees comes from those laboratories. The majority of
representatives come from universities (65%), non-profits and other
parts of the U.S. scientific community who have a stronger interest in
the overall health of the disciplines that they represent than in the
institutions that perform the research. As an example, the Nuclear
Science Advisory Committee's charter states:
"Committee members shall be appointed with a view towards achieving
balanced representation of the various subfields involved in basic
nuclear science research by the Secretary of Energy following
nomination by the Director, Office of Science, Department of Energy,
with concurrence of the Assistant Director, Mathematical and Physical
Sciences Directorate, National Science Foundation.":
As a final note on this subject, we would invite you to speak
individually with the SC Advisory Committee Chairs and Members and ask
them if they believe that a Member's potential conflict of interest
would escape the attention of other
Committee Members or the SC professional program managers for very
long. We believe you would find that conflicts of interest are simply
not an issue for the reasons cited above.
Selection of Committee Membership:
The Report urges agencies to obtain Committee members via a public
process such as Federal Register notice. Here too, we believe that a
one-size-fits-all approach is inappropriate.
In certain areas pertinent to its Advisory Committees, DOE funds and/or
directly conducts all or virtually all United States research. This is
particularly true for SC's Advisory Committees in Nuclear Physics,
Fusion and High Energy Physics. These Committees provide advice to SC
programs that support 90-100% of total Federal R&D in these scientific
disciplines.
Their knowledge of their fields is such that the SC program managers
and Advisory Committee Members know the research areas and credentials
of all of the leading scientists in their field. In addition, the
program managers are often aware of the personal biases, work ethic and
degree of frankness that key players may bring to the Advisory
Committee so that they are especially well qualified to select a
balanced committee. A public selection process would not result in the
selection of more appropriate members nor a more balanced committee.
For this reason alone, DOE's current selection practice should be
maintained.
But there is another compelling reason that DOE's processes for
selection of Advisory Committees should not be changed - neither GAO
nor any other study group has ever provided a rationale for change that
would result in higher quality advice from the SC Advisory Committees.
SC Advisory Committees, for the most part, have been in existence for
decades. They perform their functions admirably and it is deemed a
great honor within the U.S. scientific community to serve - without
compensation - on these Committees. To our knowledge, no one who
understands how they truly function has ever asserted that these
Committees are anything less then superb and appropriate for the work
that they do and the role that they perform within DOE and the U.S.
scientific enterprise. Changing them for change's sake (or to force
uniformity upon Federal advisory committees with widely ranging
purposes) would be a serious error and could have significant (and
adverse) consequences for the way that science is conducted in the
United States.
Meaning of the Term "Representative":
The Report, at 21, states that "Office of Government Ethics guidance is
overly-broad in that it states representatives may speak for an
industry, or for labor or agriculture, or for any other recognizable
group of persons including, on occasion, the public at large. We are
concerned about the implications of this statement.":
DOE has certain Advisory Committees that it views as clearly
representational in that they do speak for industries such as the
National Coal Council and the National Petroleum Council, all of whose
members are affiliated with energy companies or entities that have an
organizational interest in the matters before the Councils. The
Environmental Management Site Specific Advisory Board, which has many
members who speak for the local public at large, was established to
serve as a channel for communicating advice from the communities
impacted by DOE activities. DOE is concerned that the report
inadvertently and unnecessarily calls into question the use of
representatives on these committees.
The Report, at 22, states that "at times the terms `represent' or
`representative', when included in legislation or executive orders
regarding the membership of advisory committees, does not always
clearly indicate that the members are to be appointed to serve as
representatives; sometimes these terms are used to define committee
composition or balance." The Report does not cite the authority for its
statement.
DOE is not persuaded of the soundness of this view as a source of
guidance for the Department. Congress or the President use words like
"expert" or "expertise" where it is intended for the members to be
appointed as special government employees. Agencies should not be
called on in this area to violate one of the basic rules of statutory
construction and thereby to question the plain meaning of words.
Sincerely,
Signed by:
Raymond L. Orbach,
Director:
Office of Science:
NOTES:
[1] DOE does not uniformly conclude that members of its advisory
committees are "representative". When a member is selected for his or
her expertise, as contrasted to being a representative, the member is
appointed as a special government employee. For example, earlier this
year, the Department determined that several individuals who were to be
appointed to the Environmental Management Advisory Committee were
selected because of their expertise in certain areas. These individuals
will be serving on this Committee as special government employees.
The following are GAO's comments on the Department of Energy's letter
dated April 1, 2004.
GAO Comments:
1. The first issue that Energy identifies as being of concern vis-à-vis
its perception of "GAO's advocacy of a 'one-size-fits-all' approach"
is, in essence, the governmentwide application of OGE's criteria for
representative appointments. That is, while Energy does not disagree
that it may be generally inappropriate to appoint advisory committee
members to represent various fields of expertise, the department
believes it is appropriate for its Office of Science to do so on the
basis of the agency's "unique structure." Specifically, Energy says
that the Office of Science's advisory committee members are inherently
representative because the department's basic research portfolio is
managed according to scientific disciplines (physics, chemistry,
mathematics) and the related advisory committees are "focused on the
health of specific scientific disciplines." In our view, the
department's research structure is not unique and does not provide a
basis for appointing experts providing advice on the basis of their
best judgment as representatives. For example, both the National
Science Foundation and NASA manage research portfolios by scientific
disciplines, and they generally appoint members to their scientific and
technical advisory committees appropriately as special government
employees.[Footnote 67] We believe Energy's comments support our view
that OGE needs to clarify its guidance on representative appointments.
2. The second issue that Energy views as our advocacy of a "one-size-
fits-all" approach concerns obtaining input on the "selection of
committee membership." Energy does not specify whether it is addressing
(1) nominations for committee membership from the public, (2) comments
on proposed committee membership, or (3) both of these practices. In
any event, the draft and final reports identify these as promising
practices that are particularly relevant to those committees addressing
sensitive or controversial issues, and not as practices that should be
applied to all committees.
3. Energy states that our interpretation of the term representative is
unpersuasive and would be an unsound basis of guidance for the
department. In elaborating on this perspective, the department makes
two points. First, the department states that it has certain advisory
committees, such as the National Coal Council and the National
Petroleum Council, that it views as clearly representational in that
the members do speak for energy companies or entities that have an
organizational interest in the matter. Energy expresses concern that
the report inadvertently and unnecessarily calls into question the use
of representatives on these committees. We disagree. The draft and
final reports state on page 1 that members of federal advisory
committees may be appointed as (1) special government employees to
provide advice on behalf of the government on the basis of their best
judgment or (2) representatives to provide stakeholder advice. We do
not take issue with representative appointments when the members are,
in fact, appointed to represent a particular interest or view of an
entity or group with an interest in the matter before the committees,
and they are fully informed as to the point of view or interest they
are to represent. Second, Energy questions our view that use of the
terms "represent" or "representative" regarding the membership of
advisory committees does not always clearly indicate that the members
are to be appointed to serve as representatives. In its comments on the
draft report, OGE stated that its guidance does not imply that any use
of the word "represent" or its cognate forms in a statute or other
document means that the members of the committees are not special
government employees. Further, OGE stated that its guidance makes clear
that careful attention to all relevant factors is required in order to
determine whether the committee members are actually intended to serve
as representatives of interest groups. While OGE disagreed with our
recommendation that its guidance needed to be clarified to state that
the term representative in statutes and charters may be used more
generically to identify the appropriate balance of points of view or
expertise and may not be specifying that representative appointments be
made, we believe Energy's comments on this point provide additional
support for our recommendation.
4. The draft and final reports state that USDA, Energy, and Interior
appoint most or all of the members to their federal advisory committees
as representatives. We believe this statement accurately describes
Energy's appointments. For example, our draft and final reports state
that in April 2003, Energy's Acting Assistant General Counsel for
General Law told us that all but one of the department's committees use
only representatives members; we indicated that this one committee
expired in June 2003. In its comments on the draft report, Energy
identifies another committee for which DOE appointed several members in
2004 as special government employees.
[End of section]
Appendix XVIII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Robin Nazzaro, (202) 512-3841 Christine Fishkin, (202) 512-6895:
Staff Acknowledgments:
In addition to those individuals named above, Lindsay Bach, Ross
Campbell, Bernice Dawson, John Delicath, Judy Pagano, and Amy Webbink
made key contributions to this report.
(360290):
FOOTNOTES
[1] 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).
[2] 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. § 2640.103(a)(1).
[3] Pub. L. No. 92-463, 86 Stat. 770 (1972) (classified at 5 U.S.C.
app. 2).
[4] We selected a nonprobability sample of nine committees that address
scientific and technical issues using criteria described in appendix I.
Results from nonprobability samples cannot be used to make inferences
about a population because some elements of the population being
studied have no chance or an unknown chance of being selected as part
of the sample.
[5] The National Academies consist of four private, nonprofit
organizations that advise the federal government on scientific and
technical matters: the National Academy of Sciences, the National
Academy of Engineering, the Institute of Medicine, and the National
Research Council.
[6] U.S. General Accounting Office, EPA's Science Advisory Board
Panels: Improved Policies and Procedures Needed to Ensure Independence
and Balance, GAO-01-536 (Washington, D.C.: June 12, 2001).
[7] The Center for Science in the Public Interest is a consumer
advocacy organization that conducts research and advocacy programs on
health and nutrition.
[8] 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.
[9] Several of Interior's committees do not expire because the
legislation creating them exempts them from the biennial charter
expiration.
[10] In response to Executive Order 12838 directing agencies to reduce
by at least one-third the number of discretionary committees, the
Office of Management and Budget established a maximum number of
discretionary advisory committees for each agency.
[11] Office of Government Ethics Letter to the Chairman of a National
Commission, June 24, 1993 (93 x 14).
[12] Some agencies, such as EPA and FDA, have developed alternative
confidential financial disclosure forms that request additional
information on activities and affiliations, such as expert legal
testimony.
[13] Special government employees who serve in excess of 60 days above
a certain salary level, however, must file a public disclosure form.
[14] EPA noted in its comments on our draft report that in the case of
a small category of advisory committees that EPA uses, known as
regulatory negotiation committees, representative members may bind
their organization to take a course of action.
[15] The estimate of the percentage of special government employees is
based on data that agencies (1) provide to OGE regarding the number of
special government employees serving on federal advisory committees and
(2) provide on the GSA FACA database on the total number of federal
advisory committee members. This estimate does not include advisory
committee members serving on NIH "special emphasis panels," which are
not standing committees but rather involve one-time reviews of various
science and technical funding applications to NIH (grants, cooperative
agreement applications, etc.). If these individuals were included in
the estimate above, the percentage of advisory committee members
appointed as special government employees would be reduced to about 25
percent.
[16] This committee is currently called the Biological and
Environmental Research Advisory Committee.
[17] The Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990 codified at 16 U.S.C. §§ 4701-4741.
[18] Basic Research Needs to Assure a Secure Energy Future: A Report
from the Basic Energy Sciences Advisory Committee, prepared by Oak
Ridge National Laboratory (Oak Ridge, TN: February 2003).
[19] OGE data indicate that some other agencies, such as the Small
Business Administration and the Department of Justice, also rely
exclusively on representative appointments to federal advisory
committees. OGE staff told us the agency did not examine whether
representatives appointed to those agencies' committees provided
independent or stakeholder advice.
[20] See Office of Legal Counsel, Department of Justice, Applicability
of 18 U.S.C. § 219 to Representative Members of Federal Advisory
Committees (Sept. 15, 1999).
[21] Memorandum 82 x 22, Members of Federal Advisory Committees and the
Conflict-of-Interest Statutes, July 9, 1982.
[22] This guidance has been amplified by several other documents in
later years including Advisory Letter 93 x 14 to the Chairman of a
National Commission, June 24, 1993; Advisory Letter 93 x 30 to the
Executive Director of a Federal Commission, October 22, 1993; and
Advisory Opinion 00 x 1, Memorandum dated February 15, 2000.
[23] OGE reviewed the management of advisory committees at the
Departments of Energy, the Interior, the Army, and Education; the
Commission on Civil Rights; the National Endowment for the Arts; and
the Small Business Administration.
[24] OGE also addressed the designation issue at a session of its 2004
annual conference.
[25] In April 2003, Energy's Acting Assistant General Counsel for
General Law told us that all but one of the department's committees use
only representative members. The one committee that appointed special
government employees was the National Nuclear Security Administration
Advisory Committee, which was established in June 2001 and expired in
June 2003.
[26] Coincidentally, our review included two of the departments (Energy
and Interior) included in OGE's staff study. OGE found that the Small
Business Administration and the Commission on Civil Rights also appoint
most or all committee members as representatives. OGE data indicate
that some other agencies, such as the Departments of Justice and State,
also rely primarily on representative appointments to federal advisory
committees.
[27] According to USDA, the committee is cosponsored with HHS, the
Department of Defense, and Commerce but is managed by USDA.
[28] In total, these agencies have 189 federal advisory committees with
4,517 members.
[29] The charters will also state that compensation from employment
does not constitute a financial interest of the member so long as the
matter before the committee will not have a special or distinct effect
on the member or the member's employer, other than as part of a class.
[30] The department appointed members of the Flight 93 Advisory
Commission and the Jimmy Carter National Historic Site Advisory
Commission as special government employees in September 2003 and
January 2004, respectively.
[31] Under 5 C.F.R. § 2635.502, impartiality is considered in some
cases in conjunction with particular matters. For example, a special
government employee should not participate in a particular matter
involving a specific party where the employee knows the matter will
have a direct and predicable effect on the financial interest of a
member of their household and where the employee determines that the
circumstances would cause a reasonable person with knowledge of the
relevant facts to question their impartiality in the matter, unless the
employee has received authorization from an agency designee.
[32] For scientific committees, the relevant points of view may be
different scientific perspectives.
[33] CVs are most pertinent to assessing expertise, generally providing
information on education, employment experience, professional
memberships, service on boards or journals, and publications and
presentations.
[34] Typically, members are rotating off committees periodically and
thus issues of overall balance need to be revisited whenever membership
changes are made. While special government employees serving on
advisory committees are required to provide forms 450 at least
annually, CVs and résumés may be collected once and not updated over
the years that the members serve on the committees.
[35] Income includes salaries, fees, and honoraria of the individual
and his or her spouse and dependent children. Assets producing more
than $200 in income during the prior year also are to be reported, such
as rent, interest, dividends, and capital gains. Information is
requested on the sources of income and the identification of assets but
not on the related dollar amounts.
[36] Some relevant affiliations would not be identified because the
form 450 only requests information covering the immediate prior 12
months.
[37] GAO-01-536.
[38] National Research Council, Institute of Medicine, the National
Academies, Enhancing the Vitality of the National Institutes of Health:
Organizational Change to Meet New Challenges, 2003.
[39] Special government employees may or may not be paid for their
services, depending on the policy of the agency that is sponsoring the
committee.
[40] In January 2004, FDA officials said the agency uses a standard
form to collect information from potential appointees early in the
selection process that provides information similar to what EPA
collects. We reviewed the form and its instructions and note that this
effort is directed at potential conflicts of interest; it is not clear
the extent to which the information is used to balance points of view.
Further, FDA officials said they could not provide copies of the forms
for the FDA committee we reviewed because the designated federal
official had left the agency.
[41] These questions were not added to EPA's confidential financial
disclosure form, the purpose of which is to support reviews for
potential financial conflicts of interest.
[42] This committee replaced a committee established by the prior
administration. In this case, HHS did not renew the committee charter
when it expired in 2002, instead HHS opted to create a new committee
with a revised charter.
[43] The Director of the White House Liaison at HHS also managed the
appointments to another committee we reviewed, the CDC Advisory
Committee on Childhood Lead Poisoning Prevention. She recommended 10
new members to the Secretary for appointments made in 2002 and 2003 to
replace members with expiring terms.
[44] In its July 19, 2001, final rule on advisory committee management,
GSA did provide a list of factors to consider in achieving a balanced
advisory committee membership, such as the advisory committee's mission
and the geographic, ethnic, social, economic, or scientific impact of
the advisory committee's recommendations.
[45] Some of the committees and agencies that publish Federal Register
notices seeking nominations include EPA's Science Advisory Board; EPA's
FIFRA Scientific Advisory Panel; all committees managed by FDA, such as
the Food Advisory Committee; and a number of committees managed by
USDA's Food Safety and Inspection Service, such as the National
Advisory Committee on Microbiological Criteria for Foods. USDA also
sought nominations using an announcement on the agency and advisory
committee Web pages and in a weekly newsletter sent to interested
organizations and individuals. EPA's Science Advisory Board also uses
its Web site as a vehicle for soliciting nominations to its peer review
committees.
[46] GAO-01-536.
[47] Members of committees of the National Academies are not subject to
the same conflict-of-interest provisions as are members of FACA
committees sponsored by federal agencies. The National Academy of
Science is required to make its best effort to ensure that no committee
member has a conflict of interest that is relevant to the functions to
be performed, unless the conflict is publicly disclosed and the academy
determines that it is unavoidable. The academies define a conflict of
interest as any financial or other interest that conflicts with the
service of an individual because it (1) could impair the individual's
objectivity or (2) could create an unfair competitive advantage for any
person or organization.
[48] Potential members complete one of three similar forms covering
background information and confidential conflict-of-interest
disclosure, depending on the type of study involved: program reviews
and evaluations, general scientific and technical studies and
assistance, and studies related to government regulations.
[49] GAO-01-536.
[50] FDA also has a form that agency staff may use to conduct a
preliminary interview "to identify obvious conflicts of interest that
may preclude appointment." This form is called the Prospective Special
Government Employee Personal Data Sheet (Preliminary Informal
Interview), form FDA 2725a (July 1992).
[51] According to EPA, the staff office for the Science Advisory Board
actively avoids granting waivers, preferring to choose another panelist
instead. However, in the event that EPA grants a waiver, the designated
federal official discloses that information at the start of meetings.
EPA would disclose only the name of the individual and the type of
waiver granted--not the details of the conflict.
[52] In fiscal year 2003, the six agencies we reviewed sponsored 477 of
948 active federal advisory committees. They sponsored 126 of the 208
scientific and technical committees.
[53] Results from nonprobability samples cannot be used to make
inferences about a population. This is because, in a nonprobability
sample, some elements of the population being studied have no chance or
an unknown chance of being selected as part of the sample.
[54] The National Academies consist of four private, nonprofit
organizations that advise the federal government on scientific and
technical matters: the National Academy of Sciences, the National
Academy of Engineering, the Institute of Medicine, and the National
Research Council.
[55] U.S. General Accounting Office, EPA's Science Advisory Board
Panels: Improved Policies and Procedures Needed to Ensure Independence
and Balance, GAO-01-536 (Washington, D.C.: June 12, 2001).
[56] HHS uses the term "special emphasis panel" for some of its grant
review panels at NIH. Of the 29 special emphasis panels in fiscal year
2003, NIH sponsored 24 panels.
[57] Although these panels may have several hundred members and may
hold dozens or more meetings in a year, the members do not all attend
all of the panels' meetings. Instead, each member might be called upon
to attend one meeting per year to review a narrowly focused set of
grant proposals. This practice is in contrast to the practice of other
categories of committees in which the members are invited to attend
each of a generally small number of meetings held each year.
[58] This average was calculated after subtracting the 6 largest
committees, including HHS's Center for Scientific Review Special
Emphasis Panel, which in fiscal year 2003 maintained a roster of 9,080
members and held over 1,100 meetings. Five other advisory committees
had over 1,000 members. If those committees are counted, the average
size of the committees is about 66 members.
[59] This average was calculated after subtracting the membership of
the 2 largest science committees, both sponsored by the Department of
Transportation--RTCA, Inc. (with 2,718 members) and the Intelligent
Transportation Society of America (with 570 members).
[60] In this review, we examined the FIFRA Scientific Advisory Panel on
atrazine (see table 8).
[61] As noted in this report, FACA requires that advisory committee
charters expire at the end of 2 years unless renewed by the agency.
[62] HHS and its components, such as CDC, FDA, and NIH, had 247 federal
advisory committees in fiscal year 2003. While the heads of the various
component agencies generally appoint committee members, according to
the Director of the Office of the White House Liaison, the HHS
Secretary appoints the members to about 30 percent of the committees.
[63] See appendix 6, footnote 2.
[64] According to an ethics official in NASA's Office of General
Counsel, NASA issues very few (five or fewer) waivers each year.
[65] GAO-01-536.
[66] This view also provides support that OGE clarification on this
issue is needed so that agencies can make appropriate decisions
regarding representative appointments to federal advisory committees.
[67] NASA's comments in response to this report indicate that NASA
does, at least in some cases, appoint members to represent their
expertise. Unlike Energy, NASA cites issues related to conflicts of
interest as a basis for doing so.
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