U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

44–910 PDF 2008

EXAMINING THE FEDERAL ADVISORY COMMITTEE

ACT—CURRENT ISSUES AND DEVELOPMENTS

HEARING

BEFORE THE

SUBCOMMITTEE ON INFORMATION POLICY,

CENSUS, AND NATIONAL ARCHIVES

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

APRIL 2, 2008

Serial No. 110–85

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

(

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

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

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

CAROLYN B. MALONEY, New York

JOHN A. YARMUTH, Kentucky

PAUL W. HODES, New Hampshire

MICHAEL R. TURNER, Ohio

CHRIS CANNON, Utah

BILL SALI, Idaho

TONY HAYWOOD, Staff Director

(III)

C O N T E N T S

Page

Hearing held on April 2, 2008 ................................................................................ 1

Statement of:

Nazzaro, Robin, Director, National Resources and Environment, Government Accountability Office; Robert Flaak, Director, Committee Management Secretariat, General Services Administration; Sidney A. Shapiro,

Associate Dean for Research and Development, Wake Forest School

of Law, on behalf of the Center for Progressive Reform; and Frank

Wilson, Director, Administration and Management, Department of Defense ............................................................................................................... 7

Flaak, Robert ............................................................................................. 27

Nazzaro, Robin .......................................................................................... 7

Shapiro, Sidney A. ..................................................................................... 53

Wilson, Frank ............................................................................................ 45

Letters, statements, etc., submitted for the record by:

Clay, Hon. Wm. Lacy, a Representative in Congress from the State of

Missouri, prepared statement of .................................................................. 3

Flaak, Robert, Director, Committee Management Secretariat, General

Services Administration, prepared statement of ........................................ 30

Nazzaro, Robin, Director, National Resources and Environment, Government Accountability Office, prepared statement of .................................... 9

Shapiro, Sidney A., Associate Dean for Research and Development, Wake

Forest School of Law, on behalf of the Center for Progressive Reform:

Prepared statement of ............................................................................... 55

Proposed bill .............................................................................................. 70

Wilson, Frank, Director, Administration and Management, Department

of Defense, prepared statement of ............................................................... 48

(1)

EXAMINING THE FEDERAL ADVISORY COMMITTEE ACT—CURRENT ISSUES AND DEVELOPMENTS

WEDNESDAY, APRIL 2, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND

NATIONAL ARCHIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m. in room

2154, Rayburn House Office Building, Hon. Wm. Lacy Clay (chairman of the subcommittee) presiding.

Present: Representatives Clay and Hodes.

Staff present: Darryl Piggee, staff director/counsel; Jean Gosa,

clerk; Alissa Bonner, professional staff member; Charisma Williams, staff assistant; Michelle Mitchell, legislative assistant, Office

of Wm. Lacy Clay; Leneal Scott, information systems manager; and

Charles Phillips, minority counsel.

Mr. CLAY. The Information Policy, Census, and National Archives Subcommittee will now come to order.

Today’s hearing will examine the Federal Advisory Committee

Act [FACA], its implementation and changes needed to increase the

transparency and independence of advisory committees.

We will hear from witnesses who will testify about their experiences with FACA and offer recommendation that they believe will

improve the act.

Without objection, the Chair and ranking member will have 5

minutes to make opening statements, followed by opening statements not to exceed 3 minutes by any other Member who seeks recognition.

Without objection, Members and witnesses may have 5 legislative days to submit a written statement or extraneous materials for

the record.

I will begin with my opening statement by saying that Congress

passed the FACA in 1972 in response to the proliferation of Federal

advisory committees with increased cost and little accountability.

The aim of the act was to make Federal advisory committees accountable, transparent, balanced, and independent from the influence of special interests. A FACA seeks to ensure that the Federal

Government benefits from a wide range of views on issues of importance to the American people, particularly with respect to sensitive or controversial issues; however, the law has not always been

implemented to achieve balance, transparency, and independence.

2

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:]

3

4

5

6

Mr. CLAY. I will begin by swearing in our panel today.

I want to start by introducing our panel. We will hear first from

Ms. Robin Nazzaro, Director of Natural Resources and the Environment for the Government Accountability Office. She is currently responsible for GAO’s work on Federal land management issues. She

has been with GAO since 1979 and has a wealth of audit experience, staff office service, and diversity of issue area expertise, including tax, financial management, and information technology.

Ms. Nazzaro has overseen GAO’s work on several Federal agencies.

Welcome to the subcommittee, Ms. Nazzaro.

Next we will hear from Mr. Robert Flaak, Director of the Committee Management Secretariat for the General Services Administration, the agency charged with implementing FACA. Mr. Flaak’s

primary responsibilities include advising Federal executive branch

agencies on advisory committee operations, developing policy and

training to implement the Federal Advisory Committee Act, and establishing and evaluating performance measures to improve advisory committee operation.

For the past 17 years Mr. Flaak has conducted Government-wide

training on behalf of GSA, the U.S. Office of Government Ethics,

and the EPA on FACA management and operations, ethics, and

peer review.

Prior to his current appointment, he was the senior policy advisor in the Office of GSA Administrative Policy.

Thank you for being here, Mr. Flaak.

Mr. FLAAK. Thank you.

Mr. CLAY. Our third witness will be Colonel Frank Wilson, Director of Administration Program Support at the Washington Headquarters Services of the Department of Defense, and FACA Committee Management Office with DOD. Colonel Wilson is responsible

for the control and supervision over the establishment, procedures,

and accomplishments of DOD’s 55 advisory committees and for carrying out the provisions of the Government in the Sunshine Act.

He is a Vietnam veteran, having served on active duty with the Air

Force from 1966 to 1992.

Thank you for being here and for your service, Mr. Wilson.

Our final witness will be Mr. Shapiro, a University distinguished

professor of law and associate dean for research and development

at the Wake Forest School of Law. Mr. Shapiro is a scholar member of the Center for Progressive Reform, who he is representing

here today. He has written or co-written numerous articles about

the administrative process, including FACA, a widely used law

school case book on administrative law, and a one-volume student

treatise on administrative law.

Thank you, too, for appearing before this subcommittee.

It is the policy of the Oversight and Government Reform Committee to swear in all witnesses before they testify. I would like to

ask you to stand and to raise your right hands, please.

[Witnesses sworn.]

Mr. CLAY. Let the record reflect that the witnesses answered in

the affirmative.

I ask that each witness now give a brief summary of their testimony and keep the summary under 5 minutes in duration. Your

complete written statement will be included in the hearing.

7

The little light on the table will indicate when you start and

when you should finish.

Ms. Nazzaro, we will start with you.

STATEMENTS OF ROBIN NAZZARO, DIRECTOR, NATIONAL RESOURCES AND ENVIRONMENT, GOVERNMENT ACCOUNTABILITY OFFICE; ROBERT FLAAK, DIRECTOR, COMMITTEE

MANAGEMENT SECRETARIAT, GENERAL SERVICES ADMINISTRATION; SIDNEY A. SHAPIRO, ASSOCIATE DEAN FOR RESEARCH AND DEVELOPMENT, WAKE FOREST SCHOOL OF

LAW, ON BEHALF OF THE CENTER FOR PROGRESSIVE REFORM; AND FRANK WILSON, DIRECTOR, ADMINISTRATION

AND MANAGEMENT, DEPARTMENT OF DEFENSE

STATEMENT OF ROBIN NAZZARO

Ms. NAZZARO. Thank you, Mr. Chairman. I am pleased to be here

today to discuss our work on Federal advisory committees.

Federal advisory committees have been called the fifth arm of

Government because of the significant role they play in shaping

public policy by providing advice to Federal agencies, the Congress,

and the President on a wide array of issues such as stem cell research, drinking water standards, space exploration, food safety,

and Federal land management, to name just a few.

In fiscal year 2007, 52 agencies sponsored 915 active Federal advisory committees, with a total of about 65,000 members. Because

of this role, it is essential that membership be and, just as importantly, be perceived as being free from conflict of interest and balanced as a whole.

My testimony today will focus on the key findings and conclusions from our 2004 report, the recommendations we made in that

report to the General Services Administration and the Office of

Government Ethics and their responses, and potential changes to

the Federal Advisory Committee Act to better ensure the independence and balance of the committees.

In 2004 we concluded that additional Government-wide guidance

could help agencies better ensure the independence of Federal advisory committee members and the balance of the Federal advisory

committees. Specifically, we found OGE guidance on the appropriate use of representative or special Government employee appointments had shortcomings and did not adequately ensure that

agencies appoint individuals selected to provide advice on behalf of

the Government as special Government employees subject to conflict of interest regulations.

Some agencies were inappropriately appointing most or all members as representatives, expected to reflect the views of a recognizable entity or group, even when the agencies called upon their

members to provide advice on behalf of the Government.

In addition, GSA guidance to Federal agencies did not address

what types of information could be helpful in assessing the points

of view of potential committee members, nor did agency procedures

identify what information should be collected about potential Members to make decisions about committee balance.

We made 12 recommendations to GSA and OGE to provide additional guidance to Federal agencies under three broad categories:

8

the appropriate use of representative appointments; information

that could help ensure committees are, in fact and perception, balanced; and practices that could better ensure the independence and

balanced committees and increase transparency in the Federal advisory process.

GSA and OGE implemented our recommendations to clarify the

use of representative appointments; however, GSA has not fully implemented other recommendations, including those relating to committee balance and measures that would promote greater transparency, in part because of limitations in its authority to require

agencies to comply with its guidance.

In light of the responses to our recommendations and our limited

review of current appointments that indicate some possible continued misuse of representative appointments, the subcommittee may

want to consider amendments incorporating the substance of our

2004 recommendations that could help prevent the misuse of representative appointments and better ensure the independence of

committee members by ensuring that the type of advice committee

members are asking to provide is the primary consideration in determining whether they should be appointed as special government

employees or as representatives.

Special Government employee appointments are made when committee members are asked to provide independent advice on behalf

of the Government. Appointments as representatives are limited to

the more exceptional circumstances in which members are speaking as stakeholders for entities or the groups they represent. Individuals may not be appointed as representatives to represent classes of expertise. The use of the term representative in statutes and

charters does not necessarily direct that members be appointed as

representatives. Agencies ask perspective representative members

whether they know of any reason their participation might be reasonably questioned, and agencies provide representative members

with ethics training.

To better achieve balance, the statute could identify the types of

information agencies should consider in assessing prospective committee members’ points of views, such as public statements or positions on the matter being reviewed or work for affected entities.

To enhance transparency, the statute could be amended to require agencies to identify the processes used to formulate committees, state in member appointment letters whether the individuals

are special Government employees or representatives, and state in

committee products the nature of advice provided.

Such legislation could provide greater assurance that committees

are and are perceived as being balanced and independent.

Mr. Chairman, this concludes my prepared statement. I would be

happy to respond to any questions that you may have.

[The prepared statement of Ms. Nazzaro follows:]

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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

28

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 caseby-case flexibility needed for each agency and each of the Federal

advisory committees to support critical mission requirements.

29

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:]

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

Mr. CLAY. Thank you very much, Mr. Flaak.

We will go to Mr. Wilson now. You may proceed for 5 minutes.

STATEMENT OF FRANK WILSON

Mr. WILSON. Thank you for the opportunity to address this committee about potential improvements to the Federal Advisory Committee Act of 1972.

By way of introduction, August 2006 most of the Secretary of Defense’s statutory and regulatory authorities involving Federal advisory committees were delegated to Mr. Michael B. Donley, Director

for Administration and Management, Office of the Secretary of Defense. As the major policy decisionmaker, Mr. Donley consulted

with the Secretary and Deputy Secretary of Defense on key FACArelated issues.

As the Department’s Committee Management Officer, I work

closely with the GSA’s Committee Management Secretariat, Mr.

Bob Flaak, who I join with today to testify before the committee.

With the assistance of Mr. Jim Freeman, Deputy Committee

Management Officer, we handle the day-to-day policy oversight and

program issues for Mr. Donley. As I offer our thoughts on potential

improvements to the Federal Advisory Committee Act, it is important to know that my deputy and I bring both policy and operational perspectives to this task.

In addition to my CMO role in help to set and oversee committee

management policy in the Department of Defense, my secondary

role is to provide logistical support to various DOD-supported Federal advisory committees supported by the Washington Headquarters Services.

With the combined experience base of 11 years, my deputy and

I act as program managers, operationally establishing, supporting,

and terminating numerous Federal advisory committees. Our work

includes a broad spectrum of support, including budget development, facility management, information technology, human resources, financial management, event management, supplies, and

contract support—everything needed to operationally establish or

terminate a Federal advisory committee.

With the able support of a skillful staff, we have successfully

stood up key committees in a short period of time, the most recent

of which was the President’s Commission on Care for America’s Returning Wounded Warriors. We were fortunate enough to have this

committee up and running in 7 short working days.

Mr. Chairman, based upon our unique perspective and experience, I would like to offer six recommendations for modification to

the act for your consideration.

Committee member appointments and renewals—DOD and Office of Personnel Management discussions concerning expert or consultant appointment authority in 5 CFR 304.103 are ongoing. Currently, the Department of Defense reviews over 1,200 committee

members on an annual basis, which is a heavy administrative burden.

Delineation of chairperson authorities and responsibilities—there

is little discussion of the chairperson’s authorities and responsibilities in the act and its implementing Federal regulations. This lack

of clarification in our opinion sometimes creates a misconception

46

that the committee lacks independence. We believe the act should

clarify that the chairperson, as head of the committee, is responsible for ensuring that the committee operates consistent with existing statutes, Federal regulations, and agency guidelines.

Acquisition of leased Federal advisory committees—acquiring

leased Federal advisory committees in a timely manner is always

a major stumbling block when standing up Federal advisory committees, especially those lasting only 45 or 60 or perhaps 90 days,

and large committees like the Commission on the National Guard

and Reserves or the Base Reduction and Closure Commission.

From an agency perspective, it would be easier to stand up a committee if GSA had the authority in limited circumstances to waive

the competition requirement for leased Federal advisory committee

acquisition under Title 40 of the United States Code.

Tracking of recommendations and outcomes—we have seen in

the last year alone an increased significance in the role Federal advisory committees have in examining and making recommendations on subjects of great interest to the public. From our perspective, the act currently details information about every aspect of

Federal advisory committee work, with the exception of what may

be the most important by-product, recommendations and outcomes.

The outcomes are the final phase of the committee life cycle, and,

like the committee’s deliberative process, of paramount concern to

your constituents. To this end we recommend that the act require

a transparent mechanism for tracking and reporting the status of

final recommendations and outcomes.

Addressing technological advancements—it has been our experience that the creative nature of some committees makes it increasingly challenging for the Department of Defense to walk that fine

line between management oversight and ensuring that we do not

unduly influence the committee’s work. We recognize that we live

in a technological age not envisioned when the legislation was

originally enacted. We recommend this subcommittee explore the

opportunities and the restraints that new technology creates for

committees and agencies, keeping in mind the act’s underlying

principles. For example, video teleconferencing offers an opportunity to facilitate committee meetings, but at what expense to

public participation or agency security requirements?

Scheduled review of legislation—there is currently no regular

schedule for review of the act and consideration of the changing environments in which committees must operate. For this reason, we

recommend the act require a mandatory review of the legislation

every 10 years. A set of evaluation criteria should be created to

conduct this schedule assessment in order to provide a baseline for

discussions at each successive review.

Finally, Mr. Chairman, we hope these recommendations will be

of value to you as you consider modifications to the act. Ultimately,

we recognize that when we look for ways to leverage technology,

communicate more successfully with each other and the public, the

results are committees that can work within the scope of a FAC

legislation and are actively engaged in the level and quality of

work needed by the Department.

47

This concludes my prepared statement. I appreciate the opportunity to share with you our perspectives and experience, and I

would be pleased to answer any questions that you may have.

[The prepared statement of Mr. Wilson follows:]

48

49

50

51

52

53

Mr. CLAY. Thank you so much, Mr. Wilson.

Mr. Shapiro, you may proceed.

STATEMENT OF SIDNEY A. SHAPIRO

Mr. SHAPIRO. Mr. Chairman, thank you for the invitation to testify.

The public’s confidence in and respect for our Government is directly influenced by the transparency and sunshine provisions that

good Government laws like FACA can provide. Congressional action is required to rectify three problems with the current operation

of FACA. Legislation is necessary to close the loopholes in FACA’s

coverage, promote better transparency in the advisory committee

process, and improve the screening process for conflicts of interest.

Congress should take these actions before we witness more stories of secret, biased, or unaccountable advisory committees influencing the scope and nature of Government policies and recommendations.

The courts have created four loopholes that make it relatively

easy for agencies to avoid FACA if they wish.

Under the contractor loophole, agencies can avoid the statute by

hiring private contractors to organize and operate an advisory committee.

Under the strict management loophole, agencies can avoid FACA

by letting a regulated entity appoint the committee members and

share joint control of the agenda.

Under the subcommittee loophole, an advisory committee can

avoid the transparency and balance requirements of the statute by

creating subcommittees to do the real work of the committee.

Finally, under the non-voting participant loophole, outsiders can

take an active role in Government committees without the committee becoming subject to the statute, as long as the private parties

do not vote in committee deliberations.

The proposed legislation would close these loopholes.

Concerning the non-voting participant loophole, Congress should

clarify the participation of private individuals in Government committees triggers the application of the act, even if the individual

does not have a vote.

The existence of agency Web sites makes it possible to take advantage of public oversight and participation in the administration

of FACA. Relevant information about the advisory committee process should be posted on these Web sites. In addition, Congress

should require agencies to invite public comment on potential committee members and provide the information necessary to make

these comments meaningful.

If enacted, the proposed legislation would meet only the first of

these goals. I would suggest, however, that public comment on proposed nominees, which is not included in the most current draft of

the legislation, be added. Such public comment is the only practical

way to police the balance and conflict of interest provisions of the

statute.

Finally, FACA instructs agency officials to ensure the committees

will not be inappropriately influenced by any special interests.

Four problems have developed in implementing this directive.

54

First, as we heard a moment ago, agencies avoid conflict of interest rules by appointing committee members as representatives in

situations where the public would be better served by making committee members special Government employees subject to the Government’s conflict of interest rules.

Second, although Federal law permits waiver of financial conflict

of interest in certain circumstances for committee members, Congress should police the misuse of such waivers.

Third, there is no legal requirement that agencies give prompt

public notice of waivers of conflicts of interest and permit public objection before they occur.

The final problem is that each agency has its own criteria for determining when potential committee members have a conflict of interest.

The proposed legislation responds to these concerns by requiring

the administrator of GSA to promulgate conflict of interest regulations. Congress, however, should give specific directions to the administrator. The regulations should require that agencies justify

the use of representatives on an advisory committee, establish presumptive limitations on the number of conflict of interest waivers

available per committee, and adopt a definition of conflict of interest that is designed to cover all interests that could potentially affect a committee member’s objectivity in reviewing the issues before the committee.

In addition, Congress should require public comment on potential

waivers of conflict of interest rules.

Thank you for the opportunity to testify.

[The prepared statement of Mr. Shapiro follows:]

55

56

57

58

59

60

61

62

63

64

65

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

66

conducting of business, that is not what our Government is about.

That is not how we operate as Government.

Let me ask you some more questions.

GAO recommended in its report that GSA be given stronger enforcement authority in statute in order to improve compliance by

agency. During your audits of agencies, has GAS encountered cases

where agencies do not comply because there was GSA lax enforcement authority? Can you give us some examples?

Mr. FLAAK. Well, certainly we have no enforcement authority to

begin with. When we work with agencies across the Government—

and we work primarily with the committee management officer—

and we identify what those committees are doing, if there is anything that they are doing that we would view as being inappropriate or in contravention to what FACA requires as it is presently

written, we notify them of that and we put it in writing.

We have no enforcement group. We have no compliance group. I

have five members of my staff who manage this whole program. So

other than providing advice and guidance to the agencies, that is

pretty much the extent of what we are able to do.

Mr. CLAY. Have you ever seen a case that involves a situation

where GSA informed an agency that an individual should have

been appointed as a representative, as opposed to a special Government employee?

Mr. FLAAK. We have had instances when we reviewed charters

for advisory committees and the charter language that we are looking at indicates that the individuals who serve on that group will

be experts, and then later in that same charter says they will be

appointed as representative members.

Mr. CLAY. OK. FACA——

Mr. FLAAK. That would suggest that there is a problem here, because any time I see the term expert on a charter I assume they

are talking a special Government employee, which is usually the

case.

Mr. CLAY. FACA requires that Federal advisory committee meetings be open to the public. The law provides for closed meetings in

cases where the President or agency head determines that classified or proprietary information will be discussed. What is the total

amount of meetings advisory committees held in fiscal year 2008?

Mr. FLAAK. In 2008 the data is still pretty raw because it only

comes in to us as agencies submit it to us. The number is on our

system. I don’t have that data with me today. For 2007, though,

the number was approximately 7,000 meetings.

Mr. CLAY. OK. And of those 7,000 meetings held, what percentage of meetings was closed?

Mr. FLAAK. Well, I can give you the exact number, actually.

Mr. CLAY. OK. We have time.

Mr. FLAAK. Agencies held 6,938 meetings in 2007. Of those, 290

were partially closed and 4,541 were closed; 2,100 were open.

Mr. CLAY. Repeat it again. Just repeat those figures for me.

Mr. FLAAK. Absolutely. Total number of meetings, 6,938; total

partially closed—that means part of the meeting was also open—

290; totally closed, 4,541; totally open, 2,107.

67

Mr. CLAY. OK. The numbers you gave us, that is more than half

of the meetings. I mean, are we operating in secret now? Is Government operating in secret?

Mr. FLAAK. Let me explain why some of those numbers show up

that way. The preponderance of those closed meetings are with

three agencies. They are with the National Science Foundation,

with the Department of Defense, and with the Health and Human

Services Department. Those are meetings that are held in large

part because of grant reviews, or, in the case of the Defense Department, for classified information.

Mr. CLAY. Which agency has the highest percentage of closed

meetings?

Mr. FLAAK. The highest percentage I would suspect is HHS I

think is first.

Mr. CLAY. Well, other than HHS. Other than HHS, who——

Mr. FLAAK. NSF, National Science Foundation.

Mr. CLAY. I see. FACA requires that committees publish a summary of closed meetings.

Mr. FLAAK. Yes.

Mr. CLAY. Does GSA audit agencies to determine if agencies are

complying with this regulation? If not, why? And if so, what are the

findings of the audits?

Mr. FLAAK. The information on closed meeting reports is submitted by the agency to the Library of Congress every year. It is not

submitted to GSA.

Mr. CLAY. They are not. I see. OK. So it goes to the Library and

you don’t ever see it?

Mr. FLAAK. We don’t see those. No.

Mr. CLAY. I see. Are summaries posted in a timely manner, or

do you have any information on that?

Mr. FLAAK. We have the information that they post on our data

base as to when they do have closed meeting information. That is

included in the reports that those agencies submit on our data base

regarding their meetings for the year. That is how we have these

numbers.

Mr. CLAY. I am going to digest some of this information I have

just heard and let my colleague from New Hampshire have his 5

minutes.

Mr. Hodes.

Mr. HODES. Thank you, Mr. Chairman. Thanks for holding this

hearing. I thank the panelists for appearing at really what is a

very important hearing. I am a relatively new Member of Congress,

and came, I must admit, with a bias toward sunshine and transparency in Government. One of the major points of interest out in

the general public when I was a member of the general public was

Vice President Cheney’s Energy Task Force and the way it was

conducted, the results, and whether or not any of the information

about who participated and how things went could be digested by

the public in whose interest, theoretically, the task force was meeting.

There is a perception that, while the administration claimed the

task force was made up of only Federal employees, energy industry

executives, and other outside groups participated in that task force.

68

I wanted to explore for a moment some of the judicial action

around the events.

The D.C. Circuit Court of Appeals found that, because only Federal employees had a power to vote, the task force was not subject

to the requirements of FACA. Now, that was interesting in light of

an earlier decision in 1993 when the D.C. Circuit Court held, in a

decision on President Clinton’s Task Force on National Health

Care Reform, ‘‘A consultant may still be properly described as a

member of an advisory committee if he is involved in a role functionally indistinguishable from those of the other members. If a

consultant regularly attends and fully participates in working

group meetings as if he were a member, he should be regarded as

a member.’’

Professor Shapiro, this seems to go to what you discussed in your

written testimony in the ‘‘non-voting participant loophole’’ in which

a change was made from recognizing the status of a de facto member but now imposing a new requirement for arguably—well, I

guess I would ask can you tell us why the court reversed itself that

way?

Mr. SHAPIRO. Well, it got a strong push from the Supreme Court.

In between the decisions of the D.C. Circuit, the attempt by the

plaintiffs to obtain discovery was appealed to the Supreme Court,

and the Court, without deciding as such, did ruminate that requiring the President to make disclosures that the President might not

want to make could be a violation of his Executive Privilege. Then

they sent it back to the D.C. Circuit.

Unfortunately, what the D.C. Circuit did is make a decision for

all time, when they should have limited that particular case to a

Presidential advisory committee and tackled the problem that way.

So in order to avoid the constitutional problem, the D.C. Circuit

created this loophole for non-voting participants, which made the

act inapplicable to the Cheney Committee, and task force seemingly avoided the constitutional problem.

Unfortunately, that same loophole now applies across the Government to committees that have nothing to do with the President.

Mr. HODES. So we had an interlocutory decision without a holding from the Supreme Court on a narrow area which could have

been confined to Presidential committees; instead, the D.C. Circuit

decided in its wisdom that it should be universally applicable and

we have a gaping loophole in transparency.

Mr. SHAPIRO. Yes, sir.

Mr. HODES. So that means, if I am understanding you, that an

agency could avoid FACA by technically only giving Federal employees the ability to vote on a committee, but at the same time

inviting outside parties to participate as fully as any other members in the deliberations of the committee?

Mr. SHAPIRO. It would seem so.

Mr. HODES. Have you reviewed or thought about the draft legislation, draft amendments to FACA that are under consideration?

And do you believe that, as drafted, the language is clear enough

so that we would avoid any further misinterpretation by the courts

and also avoid constitutional challenges of the kind that occurred

previously?

69

Mr. SHAPIRO. The language in the draft which I saw this morning does go at this, but I think it would be advisable to take it on

at the exact point that the D.C. Circuit left it and make explicit

language that just because someone doesn’t vote doesn’t necessarily

excuse this committee from falling under FACA, since that is what

they tied it to. The language now talks about if someone participates, a private party, participates to the same extent, for all extending purposes, as Government employees, then the committee

would be subject to FACA. And that language might be fine as far

as it goes, but why not go just a little bit further and include the

voting language, just to make sure that the courts don’t misinterpret that Congress, information act, is overruling the D.C. Circuit

opinion.

Mr. HODES. I understand that you have seen the language this

morning and haven’t had a lot of time to digest it. In your written

testimony you mentioned some other loopholes—the contractor

loophole, the strict management loophole, the one we just talked

about, the subcommittee loophole. Let me talk for a minute, I

think, about the subcommittee loophole.

You mentioned that the D.C. Circuit Court’s decision in National

Anti-Hunger Coalition, FACA does not apply to task forces unless

the parent committee is merely ‘‘rubber stamping’’ the task force’s

recommendations. Reading the language of FACA, it says the term

advisory committee means any committee, board, commission,

council, conference, panel, task force, or other similar group, or any

subcommittee or other subgroup thereof that is established under

statute or established or utilized by the President or an agency. Do

you think FACA was intended to exempt subcommittees and task

forces?

Mr. SHAPIRO. No.

Mr. HODES. Do you think that the language as drafted currently,

that you read this morning and haven’t had a great time to address, sufficiently addresses clarifying what needs to be clarified to

clean this part of things up?

Mr. SHAPIRO. Yes, I don’t. I think the act now picks up subcommittees. As we heard from Mr. Flaak, it might be necessary to

make some fine tuning when we apply it to subcommittees. You

wouldn’t want to separately charter, for example, subcommittees

and the committee, itself, so some thought will have to go into

what is the effect of extending the act to subcommittees, and it

may be certain technical parts of FACA would be inapplicable to

the subcommittee.

But with that adjustment, I think the proposed bill is reaching

out appropriately to include subcommittees.

Mr. HODES. Just finally, I saw that my red light was flashing.

I don’t want to overstay my welcome. To the extent that you have

thoughts on the other two loopholes and the clarity of language

that we are thinking about, I would be happy to have your

thoughts submitted in writing to the committee.

Mr. SHAPIRO. Thank you, sir.

[The information referred to follows:]

70

71

72

73

74

75

76

77

78

79

80

81

82

Mr. HODES. Thank you very much.

Thank you, Mr. Chairman.

Mr. CLAY. Thank you, Mr. Hodes.

Ms. Nazzaro, GAO’s 2004 report entitled, ‘‘Federal Advisory

Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance,’’ states, ‘‘To be effective, advisory

committees must be and, just as importantly, be perceived as being

independent and balanced.’’ In your professional opinion, why is it

important that Federal advisory committees be perceived as being

independent, and how does it impact a committee’s operation when

the public does not perceive it as being independent?

Ms. NAZZARO. I think at this point it is hard to determine what

exactly has caused all the consternation with these advisory committees, but there does seem to be the issue over the perception

that because there is not adequate transparency in the committee

process and the makeup of the committees, how these committees

are formulated and the roles that the individuals play, there certainly is this perception that the Government is doing something,

as you referred to earlier, in a secretive fashion.

So we certainly believe that not only should these committees be

made up of independent members and the committee’s themselves

be balanced, but there has to be that transparency aspect to assure

the general public agrees and does not have a problem with the

findings, and then the ultimate actions that either the agency or

Congress or the President may take as a result of this input.

Mr. CLAY. GAO was asked to examine the extent to which existing guidance and policies and procedures for evaluating committee

members for conflicts of interest and parts of you ensure independent members and balanced committees. In your opinion, do agencies have in place the systems required to effectively screen potential committee members for conflict of interest?

Ms. NAZZARO. I would say that goes back to one of our primary

concerns with the whole process, and that is the concern over the

appropriate use of representative appointments, because representative appointments do not get the same kind of conflict of interest

screening that the SGE appointments get, and even in the limited

analysis that we did to followup on our recommendations this year,

we still continue to see what we think is inappropriate use of those

appointments, whether they should be representative or they

should be SGE.

For example, we saw a number of committees, including the National Organic Standards Board, the Grain Inspection Advisory

Committee, the Fruit and Vegetable Industry Advisory Committee—these committees, when they clarified why the individuals

were representatives rather than SGE, they identified that they

were representing the advisory committee, itself, strongly suggesting that the SGE appointments would have been more appropriate.

Mr. CLAY. Can you tell the subcommittee some of the affirmative

steps agencies took to incorporate GAO’s recommendations into

their policy and procedures for Federal advisory committees?

Ms. NAZZARO. Both GSA and the Office of Government Ethics did

take a number of steps or actions to address our recommendations,

including additional training, improving the quality of the training

that they provide to the committees, and the advice. They have

83

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 embarVerDate 11-MAY-2000 16:01 Nov 03, 2008 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6633 C:\DOCS\44910.TXT KATIE PsN: KATIE
84

rassing to the individual, except they are caught up in something

not of their doing, so that is relatively neutral.

And then, finally, I suppose the most possibly embarrassing

thing is conflict of interest, itself, but the statutes are clear and

you are not supposed to be on an advisory committee if you have

conflict of interest. You do have to disclose the data about your conflict. That is public information.

So once again I am not quite sure that a public comment on that

kind of information ought to discourage people, because they are

presently presenting conflict of interest information.

Mr. CLAY. I look forward to working with you on that provision.

Mr. Wilson.

Mr. WILSON. In large part I would agree with Mr. Shapiro. Generally, from potential committee members we get more push-back

from the financial disclosure statements. Some committee members

would just as soon not sit on a committee because they have to go

through that process. The Department of Defense, in the interest

of transparency and accountability and communication, only has

special Government employees from a committee member standpoint. We don’t use representatives. We only have two committees

directed by Congress—Missouri River, North Dakota, and South

Dakota—that actually have representative members, and that is

from the Indian nations of both those States.

So the only thing I could think of is perhaps if a committee member, if it was public knowledge that this potential committee member had lack of credentials, but, you know, that could happen with

anyone.

Mr. CLAY. Thank you for that.

Ms. Nazzaro, any comment on that?

Ms. NAZZARO. I would generally agree with Mr. Shapiro’s comments. As far as experience, in addition to the academy, National

Academies, we also mention FDA in our report has a general practice of getting this kind of information up front, making it clear to

their members that they need to provide this type of information

and providing it.

Mr. CLAY. Thank you. How about you, Mr. Flaak? Any position?

Mr. FLAAK. Yes. Actually, I do, Mr. Chairman. While we don’t

necessarily know which agencies are doing what in this regard specifically, unless we are talking with them directly, in my prior life

at EPA I was a designated Federal officer and managed a program

over there for almost 20 years running advisory committees, and

we used only special Government employees in our program.

We instituted a process much like the one that Sid mentioned

with the Academy of Sciences. Any time we formed a new panel,

we put a notice up on the Web site we were recruiting people. People could submit their names. We used that as a starting point and

eventually we got down to a list of 20 or 25 names which were published on the Web site for public comment as to whether or not

these folks were appropriate for the committee. We weren’t asking

whether or not they had conflicts of interest, just opening it up for

general commentary.

Now, for the most part we didn’t receive any comments. Occasionally somebody said, Well, did you know this guy did this or did

that.

85

We used that process in concert with all of the reviews we did—

conflict of interest, disclosure forms, background checks, looking at

information that they may have published previously, and general

expertise to determine if they were appropriate for the committee,

and eventually published the final list.

So yes, the system can work fairly well.

Mr. CLAY. OK.

Mr. FLAAK. But I can tell you it is very onerous and time consuming for the staff. It does take a lot of work to do that.

Mr. CLAY. Thank you. Thank you for your response.

Mr. Hodes, your second round of questioning?

Mr. HODES. Thank you, Mr. Chairman. I will try to be brief,

knowing we have to vote.

Recently it was reported that the EPA removed a chemist, Dr.

Deborah Rice, the chair of an advisory committee reviewing draft

health assessment for a type of flame retardant. The removal of the

chair of the committee followed a letter from the American Chemistry Council that raised concerns about her impartiality based on

testimony she gave to a State legislature in Maine on the health

dangers posed by the flame retardant.

There have been concerns raised about the removal of Dr. Rice

while other EPA advisory committee members have been permitted

to serve, despite having ties to the chemical industry.

In addition to the questions it raises about conflict of interest, it

raises for me the questions of removal of a member or chair of an

advisory committee, and perhaps, Mr. Flaak, you could tell us

whether or not FACA currently has practices and procedures for

the removal of members of these committees.

Mr. FLAAK. It does not.

Mr. HODES. None?

Mr. FLAAK. No. If agencies desire to appoint or not appoint individuals or take members off their committees, that is up to the

agencies.

Mr. HODES. Given the concerns raised about the potential influence of outside parties in the removal process that have been

raised by this case and perhaps others, should there be practices

and procedures, do you think, for removal of members of advisory

committees of some kind?

Mr. FLAAK. Generically for the Government and FACA, I think

the agencies are better served by having a good transparent process by which they select the people in the first place.

Mr. HODES. So you think that a transparent selection process

that is open, accountable, and deals with the conflicts of interest

questions——

Mr. FLAAK. Absolutely.

Mr. HODES [continuing]. Is sufficient, and we don’t need to do

anything at the back end, so to speak?

Mr. FLAAK. I don’t think we do. No.

Mr. HODES. Anybody else on the panel have thoughts?

Mr. SHAPIRO. I agree with that. That particular example is sort

of a worst of all worlds. If I have this correct, that was a private

contractor, so this committee wasn’t under the legislation to start

with. The issue of whether or not Dr. Rice had a conflict—which

it doesn’t appear she did—or whether the committee was unbalVerDate 11-MAY-2000 16:01 Nov 03, 2008 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6633 C:\DOCS\44910.TXT KATIE PsN: KATIE
86

anced 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.]

Æ