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                               before the

                     CENSUS, AND NATIONAL ARCHIVES

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                             APRIL 2, 2008


                           Serial No. 110-85


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

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

   Subcommittee on Information Policy, Census, and National Archives

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

                            C O N T E N T S

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



                        WEDNESDAY, APRIL 2, 2008

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

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



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

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    Mr. Clay. Thank you very much.
    Mr. Flaak, you may proceed.

                   STATEMENT OF ROBERT FLAAK

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

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    Mr. Clay. Thank you very much, Mr. Flaak.
    We will go to Mr. Wilson now. You may proceed for 5

                   STATEMENT OF FRANK WILSON

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

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    Mr. Clay. Thank you so much, Mr. Wilson.
    Mr. Shapiro, you may proceed.


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

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

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