Federal Advisory Committee Act: Views of Committee Members and Agencies on Federal Advisory Committee Issues
Published: 1998-07-09T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Pursuant to a congressional request, GAO provided information on the views of federal advisory committees and federal agencies on Federal Advisory Committee Act (FACA) requirements.
section_title: What GAO Found
paragraphs: GAO noted that: (1) overall, the views presented by both the committee members and agencies GAO surveyed provided useful insights into the general operation of FACA as Congress explores possible improvements to FACA; (2) the responses of committee members to a series of questions, when taken together, conveyed a generally shared perception that advisory committees were providing balanced and independent advice and recommendations; (3) although the percentage differed by question, 85 percent to 93 percent of the respondents said their committees were balanced in membership, had access to the information necessary to make informed decisions, and were never asked by agency officials to give advice or make recommendations based on inadequate data or analysis or contrary to the general consensus among committee members; (4) FACA requirements were considered to be more useful than burdensome by 10 of the 19 agencies; (5) for the other nine agencies, the requirements were considered either as burdensome as they were useful or somewhat more burdensome than useful; (6) the ceilings on discretionary advisory committees imposed by Executive Order 12838 did not deter a majority--12 of 19--of the agencies from seeking to establish such committees, according to their responses; (7) agencies identified a total of 26 advisory committees mandated by Congress that they believed should be terminated; (8) this number represented about 6 percent of congressionally mandated advisory committees in existence during fiscal year (FY) 1997; (9) the overall responses GAO received from committee members on the issue of public participation were mixed; (10) about 27 percent of the respondents said that all of their committee meetings were open to the public, and 37 percent said that all of their committee meetings were closed to the public; (10) advisory committee meetings can be closed to the public to protect such things as trade secrets or information of a personal nature; (11) most of the agencies--16 of the 19--did not believe that FACA had prohibited them from soliciting or receiving input from the public on issues or concerns of the agency independent of the FACA process; (12) still, some agencies were reluctant to get input from parties that were not chartered as FACA advisory committees because of concern that this could lead to possible litigation over compliance with FACA requirements; and (13) more explicitly, six agencies reported that they decided not to obtain outside input at least eight times during FY 1995 through FY 1997 because of the possibility of future litigation over compliance with FACA.

section_title: Letter
paragraphs: Federal agencies often receive advice from advisory committees, and there were 963 committees governmentwide in fiscal year 1997 established for this purpose. Federal advisory committees are to be established and to operate in accordance with requirements of the Federal Advisory Committee Act (FACA). Congress is currently exploring possible improvements to FACA, and this report responds to your request that we address certain questions about federal advisory committees and FACA requirements. On June 15, 1998, we reported to you on how the General Services Administration (GSA) had carried out its governmentwide advisory committee oversight responsibilities under FACA. Specifically, as agreed with your offices for this report, we surveyed advisory committee members to obtain their perceptions on the extent to which their committees provided balanced and independent advice and recommendations as required by FACA; federal agencies to obtain their views on the extent to which they found compliance with FACA useful or burdensome, the impact of Executive Order 12838 (which placed ceilings on the number of advisory committees) on their ability to accomplish their missions, and whether any advisory committees mandated by Congress should be terminated; and advisory committee members and federal agencies on the extent to which they believed the public was afforded access to advisory committee proceedings and a means to express their views to agencies and their advisory committees.
To obtain the views of advisory committee members on these matters, we sent a questionnaire to a randomly selected, statistically representative sample of federal advisory committee members governmentwide. Of the 900 committee members in our sample, we received usable questionnaire responses from 607—a response rate of about 67 percent. The numbers and percentages of committee member respondents that we cite in this report are generalizable to the committee members from which we selected our sample.
The individuals we surveyed were members of peer review, scientific/technical, nonscientific, national policy, and other advisory committees. Agencies use peer review panels for evaluating contractors or applications for research or other grants for federal funding, and FACA requires agencies to treat peer review panels as advisory committees. Because the work of peer review panels typically is different from the work of other advisory committees, we divided the committee members who responded to our questionnaire into two groups: members of peer review panels and members of all other advisory committees, which we refer to as general advisory committees. Whenever one group’s response rate to a question was at least 5 percentage points different from the overall response rate and appeared to us to be consequential, we provided that group’s response. When the difference did not appear to be consequential, we presented only the overall response rate.
To obtain the views of federal agencies on the specific issues, we sent a questionnaire to 19 federal agencies. These 19 agencies account for most—about 90 percent—of the federal advisory committees. All 19 agencies responded to our survey.
More information about our objectives, scope, and methodology is contained in appendix I. We did our work between December 1997 and May 1998 in accordance with generally accepted government auditing standards. We requested comments on a draft of this report from the Administrator of GSA and the Acting Director of the Office of Management and Budget (OMB) or their designees. Their comments are included at the end of this letter.
subsections: section_title: Background
paragraphs: In 1972, Congress passed FACA in response to a concern that federal advisory committees were proliferating without adequate review, oversight, or accountability. Although Congress recognized the value of advisory committees to public policymaking, it included measures in FACA intended to ensure that (1) valid needs exist for establishing and continuing advisory committees, (2) the committees are properly managed and their proceedings are as open as feasible to the public, and (3) Congress is kept informed of the committees’ activities. Under FACA, the President, the Director of OMB, and agency heads are to control the number, operations, and costs of advisory committees.
To help accomplish these objectives, FACA directed that a Committee Management Secretariat be established at OMB to be responsible for all matters relating to advisory committees. In 1977, the president transferred advisory committee functions from OMB to GSA. The president also delegated to GSA all of the functions vested in the president by FACA, except that the annual report to Congress required by the act was to be prepared by GSA for the president’s consideration and transmittal to Congress.
GSA, through its Committee Management Secretariat, is responsible for prescribing administrative guidelines and management controls applicable to advisory committees governmentwide. It also has other responsibilities, including certain oversight responsibilities, such as consulting with agencies on establishing advisory committees and conducting comprehensive reviews of advisory committees. To fulfill its responsibilities, GSA has developed regulations and other guidance to assist agencies in implementing FACA, has provided training to agency officials, and was instrumental in creating and has collaborated with the Interagency Committee on Federal Advisory Committee Management.
FACA assigns agency heads responsibility for issuing administrative guidelines and management controls applicable for their advisory committees. FACA and GSA regulations assign them additional responsibilities for their advisory committees. For example, agency heads are responsible for (1) appointing a designated federal officer for each committee to oversee the committee’s activities, (2) reviewing annually the need to continue existing committees, (3) ensuring that meetings are held at reasonable times and places, (4) ensuring that members of the public are permitted to file written statements with the committees and are allowed to speak to the committees if agency guidelines permit, and (5) reviewing committee members’ compliance with conflict-of-interest statutes. FACA also calls for agency heads to designate a committee management officer to whom the agency head frequently delegates these responsibilities. In February 1993, the President issued Executive Order 12838, which directed agencies to reduce by at least one-third the number of discretionary advisory committees by the end of fiscal year 1993. Discretionary committees are those created under agency authority or authorized—but not mandated—by Congress. OMB, in providing guidance to agencies on the executive order, established a maximum ceiling number of discretionary advisory committees for each agency and a monitoring plan. Under the guidance, agencies were to annually submit committee management plans to OMB and GSA.
The number of advisory committees grew from 1,020 in fiscal year 1988 to 1,305 in fiscal year 1993. The number then declined over the next several years to 963 advisory committees in fiscal year 1997. This decrease occurred after the President’s February 1993 executive order to reduce the number of discretionary committees.
A total of 36,586 individuals served as members of the 963 committees in fiscal year 1997, and GSA reported that the cost to operate the 963 committees in that year was about $178 million. FACA permits agencies to compensate nonfederal committee members for their services; and according to GSA data, agencies paid about $14 million in fiscal year 1997 for such services. Advisory committee members are to be reimbursed for their travel, lodging, and meals. The single largest cost in fiscal year 1997—about $81 million of the $178 million—represented the value of compensation paid to federal employees for the time they spent assisting and monitoring advisory committees.
Although the number of advisory committees has decreased, the average number of members per committee and the average cost per committee have increased. On average, between fiscal years 1988 and 1997, the number of members per advisory committee increased from about 21 to 38, and the cost per advisory committee increased from $90,816 to $184,868. In constant 1988 dollars, the average cost per advisory committee increased from $90,816 to $140,870 over the same period.
section_title: Advisory Committee Members’ Views on Whether Committees Provide Balanced and Independent Advice and Recommendations
paragraphs: For each advisory committee member to whom we sent a questionnaire, we identified an advisory committee to which the member belonged and instructed the member to use that committee in answering our questions. The committee we identified was the only federal advisory committee of which most respondents said they were members. Respondents had served as members on these committees for various periods. About 28 percent had served 1 year or less, 54 percent had served between 1 and 4 years, and 18 percent had served over 4 years.
The answers the committee members gave to our survey showed that generally they believed their committees had worthwhile purposes, that the advice and recommendations that the committees gave were consistent with those purposes, and that the advice and recommendations were balanced and independent. In addition, they generally believed that the agencies to which their committees reported sought advice and recommendations from the committees and used the advice or recommendations after receiving them. Specifically:
About 94 percent of the respondents generally or strongly agreed that the committees they were affiliated with had clearly defined purposes, and 96 percent generally or strongly agreed that the committees’ purposes were worthwhile.
Ninety-four percent of the respondents generally or strongly agreed that the advice or recommendations made by their committees were consistent with the committees’ purposes.
About 90 percent of the respondents generally or strongly agreed that committee membership was fairly balanced in terms of the points of view represented, and 85 percent generally or strongly agreed that their committees included a representative cross-section of those directly interested in and affected by the issues discussed by the committees.
About 79 to 82 percent of the respondents said they were provided to a great or very great extent with the necessary preparatory materials prior to (1) committee meetings, (2) discussing issues, and (3) deciding on issues. Another 11 to 13 percent said they had been provided the necessary preparatory material to a moderate extent. The percentage of general advisory committee members who answered to a great or very great extent was less—67 to 72 percent—but still the vast majority.
When asked if they generally had access to the information they needed to make an informed decision on an issue, about 93 percent of the respondents said they did in either all or most cases.
About 76 percent of the respondents said committee members provided somewhat more or much more input than agency officials in formulating committee advice or recommendations. About 79 percent of the respondents thought that committee members should provide somewhat more or much more input than agency officials in formulating committee advice and recommendations. However, respondents from general advisory committees expected and thought actual member input to be less. About 60 percent of the general advisory committee respondents said committee members usually provided somewhat more or much more input than agency officials, and 65 percent said that committee members should provide somewhat more or much more input. In addition, about 26 percent of the general advisory committee respondents, compared to about 16 percent of overall respondents, said input from committee members and agency officials was about equal; and 29 percent, compared to about 18 percent overall, said the input should be equal.
About 85 percent of the respondents said that to their knowledge, no agency official had ever asked their committees to give advice or make a recommendation that was based on inadequate data or analysis. Fewer respondents who were members of general advisory committees said “no”—about 77 percent of them said their committees were never asked by agency officials to give advice or make recommendations on the basis of inadequate data or analysis. About 13 percent of the general advisory committee respondents reported that an agency official had made such a request, and 10 percent did not know one way or the other. These latter two percentages were larger than the overall percentages (8 percent and 7 percent, respectively) for the same two questions.
About 92 percent of the respondents said that to their knowledge, no agency official had ever asked their committees to give advice or make a recommendation that was contrary to the general consensus of the committees. About 4 percent said officials had made such a request, and 4 percent did not know one way or the other.
Eighty-seven percent of the respondents generally or strongly agreed that agencies solicited advice or recommendations from the committees, and about 84 percent said they strongly or generally agreed that the agencies considered the advice or recommendations.
Appendix II contains a copy of the questionnaire that we sent to committee members with the weighted number or percentage of committee members responding to each item.
section_title: Agencies’ Views on How Useful or Burdensome FACA Requirements Were
paragraphs: FACA sets out at least 17 requirements for agencies to follow in establishing and operating federal advisory committees, including preparing a charter for the committee; developing plans for achieving a fairly balanced membership; keeping detailed minutes of committee meetings; and preparing annual reports to GSA on new, continuing, and terminated committees. (All 17 requirements are listed in app. IV.) We asked the 19 agencies several questions on how useful or burdensome they found FACA requirements.
With regard to the requirements overall, 10 agencies viewed them in a positive light. Of these 10 agencies, 6 said the requirements were much more useful than burdensome, and 4 said the requirements were somewhat more useful than burdensome. The views of the other nine agencies were less positive. Of these nine agencies, seven considered the requirements about as burdensome as useful, and two said the requirements were somewhat more burdensome than useful.
For each of 17 FACA requirements, we asked the 19 agencies to rate the extent of the requirement’s usefulness. A majority of the agencies (generally more than 10 agencies) rated 14 of the 17 requirements as useful to a moderate, great, or very great extent. Most of the majority frequently rated a requirement’s usefulness as great or very great. For example, 16 agencies said the requirement to create a plan for achieving fairly balanced committee membership was useful to a great or very great extent. Thirteen agencies considered the requirement to keep detailed meeting minutes as useful to a great or very great extent.
We asked the agencies to also rate the extent to which they considered each of the 17 requirements as burdensome. In comparison to the number of FACA requirements considered as useful, far fewer requirements were considered as especially burdensome by a majority of the agencies. Four requirements were rated by a majority of the agencies as burdensome to a moderate, great, or very great extent. These four requirements were: develop a plan to achieve balanced committee membership, keep detailed minutes of meetings, fulfill record keeping requirements, and prepare an annual report on each advisory committee. Interestingly enough, all four requirements also had been rated useful to a moderate, great, or very great extent by a majority of the agencies.
The agencies’ responses regarding 3 requirements were different from their responses to the other 14. Two requirements—prepare an annual report on closed advisory committee meetings and file advisory committee reports with the Library of Congress—were said by a majority of the agencies to have “little or no” or “some” usefulness or burden. There was a mix of answers for the third requirement—follow-up reports to Congress on recommendations by presidential advisory committees (any federal advisory committee that advises the president). Seven agencies said it was useful to a moderate or greater extent, and six said it was less than moderately useful. Nine agencies said it presented “some” or “little or no” burden, and four agencies said it was burdensome to a moderate or greater extent. Six agencies did not rate the usefulness or burden because they did not have any presidential advisory committees.
In rating the 17 requirements, agencies were given the opportunity to say what change they would make to each requirement. Seven agencies made suggestions, and four of them focused on the matter of rechartering committees. FACA prohibits an advisory committee from meeting or taking any action until a committee charter has been filed with certain officials (for example, the agency head) and Congress and requires that charters contain 10 specific items, such as the committee’s objectives and scope of activities and the period of time necessary to carry out its purpose. FACA requires agencies to recharter advisory committees every 2 years regardless of how much more time they will need to accomplish their purposes. Among the suggestions that the seven agencies made, two suggested that rechartering be required every 5 years instead of the current 2 years.
Under FACA, peer review panels are treated as advisory committees, and 6 of the 19 agencies indicated that they used peer review panels. Only one of the six thought that peer review panels should be subject to all FACA requirements. The other five agencies said that peer review panels should be exempt from some, most, or all FACA requirements. Although we did not specifically ask why the panels should be exempt from some or all FACA requirements, some of the five agencies indicated that they should be exempt because the nature of the panels’ work was incompatible with FACA requirements. For example, in contrast to the idea of open meetings as promoted by FACA, panel meetings were more often routinely closed to the public to protect the privacy or proprietary rights of those who submitted proposals.
Finally, we asked the agencies several burden-related questions that focused on the issue of litigation and FACA. We asked whether the possibility of litigation over compliance with FACA requirements inhibited them from forming new advisory committees and, more specifically, if they decided against forming a new advisory committee anytime during fiscal years 1995 through 1997 because of possible litigation. The overwhelming response of the agencies was that the possibility of future litigation was not an inhibiting factor. Fourteen agencies said that the possibility of future litigation inhibited them to little or no extent. Seventeen agencies said that at no time during fiscal years 1995 through 1997 did they decide not to form a new committee because of the possibility of future litigation.
However, some agencies have been involved in litigation over their compliance with FACA. Seven of the 19 agencies reported that they were involved in such litigation during fiscal years 1995 through 1997 and identified 13 lawsuits in total. According to the seven agencies, the major issues being litigated were whether the group that provided information was subject to the requirements of FACA (nine cases), whether the makeup of an advisory committee was balanced (two cases), and procedural issues (two cases). As of the date they were answering the questionnaire, the agencies said that nine cases had been ruled on by the courts; three cases were pending; and one case that was decided in favor of the plaintiff was, in effect, rendered moot by a subsequent amendment to FACA in 1997. According to the agencies, of the nine cases ruled on by the courts, the courts ruled for the agencies in eight cases and for the plaintiff in one.
section_title: Agencies’ Views of the Impact of Executive Order 12838
paragraphs: As previously mentioned, Executive Order 12838 established ceilings for each agency on the number of discretionary advisory committees. The number of discretionary committees in the aggregate that the 19 agencies reported having at the end of fiscal years 1995, 1996, and 1997 was about 88 percent, 95 percent, and 95 percent, respectively, of the aggregate ceiling.
Twelve of the 19 agencies said the ceilings did not deter them from seeking to establish any new advisory committees. In general, the 12 agencies reported being at or slightly below their ceilings at the end of the 3 years (fiscal years 1995 through 1997) for which we requested data. However, seven agencies said the ceilings did deter them from seeking to establish new discretionary committees. For most of the years for which we requested data, the seven agencies were at or slightly below their ceilings.
For those agencies that said they were deterred, we asked them to describe how the ceilings affected their ability to accomplish their missions. Four said they had to reconsider whether an advisory committee would really be necessary or had to give more careful consideration of which committees would continue or which new committees would be established. Two also indicated that committees were not established that may have been warranted, although no numbers of such cases were given.
An agency could request approval from OMB to establish a committee that would place it over its ceiling, and 3 of the 19 agencies said they had made such requests over the 3-year period for which we requested information. In total, they said they made four requests to OMB, and OMB approved all four. Of these three agencies, two were among those that said they were deterred from seeking to establish new advisory committees by the ceilings imposed by the executive order. The third agency did not consider the ceiling to be a deterrent.
section_title: Mandated Committees Identified by Agencies for Termination
paragraphs: Congress has required agencies to have various advisory committees. According to GSA, there were 422 advisory committees in fiscal year 1997 that had been mandated by Congress. As agreed with your offices, we asked the 19 agencies in our survey whether they had any mandated committees that they believed should be terminated. Six agencies said yes and listed a total of 26 different advisory committees. Of the 26 committees, according to GSA, 17 held no meetings and incurred no costs in fiscal year 1997; 3 incurred some costs ($4,000) but held no meetings; and 6 held meetings (14) and incurred costs (about $190,000). The names of the 26 committees and the agencies they serve are shown in appendix III.
Three of the 19 agencies reported that they had made formal requests to Congress to terminate mandated committees during the 3 years for which we requested information (fiscal years 1995 through 1997). These three agencies were among the six agencies that identified committees that they believed should be eliminated. The three agencies asked Congress to terminate 18 mandated committees in total. According to the agencies, Congress terminated one of those committees. The remaining 17 committees were listed among the 26 committees that agencies said should be terminated.
Only Congress can terminate a congressionally mandated advisory committee, and we asked the 19 agencies whether they found that requirement burdensome. Twelve agencies indicated that they incurred little or no burden. The other seven agencies indicated that they felt burden, and the extent of it ranged from some to great. We asked them for suggestions to alleviate this burden. Some suggested, in essence, that agencies be given the authority to terminate mandated committees. Agencies made various suggestions, such as that agencies should be given authority to terminate mandated committees after notifying Congress of their intent to do so or after 2 years with notification to congressional authorizing committees and after 4 years without notification.
In addition to asking for their suggestions, we asked all 19 agencies their opinions about a sunset/automatic termination for congressionally mandated committees. Their opinions were mixed. Ten agencies said a sunset/automatic termination requirement would be helpful to a moderate, great, or very great extent. Nine agencies said it would provide little or no help or only some help.
Appendix IV contains a copy of the questionnaire that we sent to agencies with the number of agencies responding to each item.
section_title: Advisory Committee Members’ and Agencies’ Views on the Extent of Public Participation
paragraphs: One intended purpose of FACA is to open government to the public. We asked the advisory committee members and the agencies that we surveyed a series of different questions about public participation.
subsections: section_title: Views of Advisory Committee Members
paragraphs: We asked committee members questions about (1) public access to committee meetings; and (2) public input in general to their committees (that is, without regard to whether it was by letter, in person at meetings, or by other means). The answers we received often depended on whether respondents were members of peer review panels or general advisory committees. Those answers indicated that peer review panels were less likely to obtain public access and input than were general advisory committees. The nature of their work may explain why peer review panels do not obtain public input as much as general advisory committees do.
About 27 percent of the respondents said that all of their committee meetings were open to the public, and 37 percent said that all meetings were closed to the public. Another 19 percent noted that some meetings or portions of meetings were open and others were closed. Finally, 17 percent of the respondents were not sure what access the public had to their committee meetings. Most of those whose committees held closed or partially closed meetings agreed with their committees’ reasons for closing those meetings to the public. Two reasons frequently cited were discussions involving personal privacy issues and discussions involving trade secrets.
According to GSA data, advisory committees frequently hold closed meetings. Agencies reported to GSA that about 58 percent of the 5,700 advisory committee meetings held in fiscal year 1997 were either closed or partially closed. Advisory committee meetings can be closed to the public if the president or the agency head to which the advisory committee reports determines that the meeting may be closed in accordance with provisions of the Government in the Sunshine Act (5 U.S.C. 552b(c)). The provisions provide for closed meetings to protect, for example, matters that need to be kept secret in the interest of national security or foreign policy; trade secrets; and information of a personal nature, the disclosure of which would constitute an invasion of privacy.
Respondents who were members of peer review panels—which frequently deal with such proprietary and sensitive information—were much less likely to say their committee meetings were totally open to the public and much more likely to say their meetings were totally closed to the public. About 2 percent of the panelists said their meetings were always open to the public. About 64 percent said their meetings were always closed to the public.
About 44 percent of all respondents to our survey said yes and 31 percent said no when asked whether members of the public were ever allowed to express their views to the respondents’ advisory committees. The remaining 25 percent were not sure whether members of the public were allowed to express their views to the committees. Approximately 81 percent of those who replied no or not sure did not believe their committees should provide members of the public with the opportunity to express their views. In comparison to the overall percentages, respondents who were members of peer review panels were much more likely to say the public was not allowed to express views to the committee (52 percent of the panel members who responded), to say they were not sure whether the public was allowed (36 percent), and to believe the public should not be allowed to express their views to the committee (88 percent).
We also asked those who said their committees allowed the public to express its views (in other words, the 44 percent who said yes) whether the committees provided sufficient opportunity to the public to express its views. About 59 percent replied that in their opinions, the opportunity was sufficient to a great or very great extent. Another 19 percent thought it was moderately sufficient. In comparison to these overall percentages, respondents from peer review panels were less likely to say the extent was greatly or moderately sufficient. About 21 percent said great or very great while 8 percent said moderate. A sizeable number—about 38 percent—said they had no basis to judge whether the extent was sufficient.
We also asked committee members about subcommittees they served on and whether FACA requirements were followed. About 34 percent of the respondents said the committees they served on had subcommittees, and 68 percent of the respondents said they had served on at least one subcommittee over the past year. A majority (about 59 to 72 percent of respondents) said that detailed minutes were kept, and the designated federal officer attended and either approved or called for all or most of the subcommittee meetings. However, less than one-half (about 41 to 45 percent of respondents) said that members of the public were given access to the meetings and allowed to provide input, either in writing or in person, for all or most of the subcommittee meetings.
section_title: Views of the 19 Agencies
paragraphs: In general terms, most of the agencies—16 of the 19—said FACA had not prohibited them from receiving or soliciting input from public task forces, public working groups, or public forums on issues or concerns of the agency. The three agencies that said FACA has prohibited them explained that they had to limit their prior practice of forming working groups or task forces to address specific local projects or programs, that FACA has made it more cumbersome to seek citizen input because of the staff time required to complete FACA paperwork, or that solicitation of a consensus opinion from a task force or working group may lead to that task force or group being considered a “utilized” committee and thus subject to FACA.
Although agencies generally reported that FACA has not prohibited them from obtaining input, there appears to be some concern among agencies about the possibility of being sued for noncompliance with FACA if they obtain input from parties who are outside of the agency and its advisory committees. Eight of the 19 agencies said the possibility of such litigation has inhibited them in obtaining outside input independent of FACA to some, a moderate, or a very great extent. Moreover, six agencies, including five of the previous eight agencies, said there were at least eight instances over the fiscal year 1995 through 1997 period when they decided not to solicit or receive outside input because of their concern about the possibility of future litigation.
Agencies determine if members of the public can speak at advisory committee meetings. We therefore asked the 19 agencies whether they permitted members of the public to speak before their advisory committees. Fourteen said yes and 5 said yes and no, indicating that they permitted the public to speak before some committees but not others. In this latter category, the reasons the agencies provided for not permitting the public to speak included time constraints, a need to maintain order, and statutory requirements that meetings be closed for such reasons as protecting classified information or safeguarding privacy act material.
When an agency does permit members of the public to speak before its advisory committees, there may be restrictions. According to the agencies, restrictions included public presentations being contingent on the time available at the end of meetings, time limits being imposed on speakers, and members of the public being requested to provide written statements.
For members of the public to speak at advisory committee meetings, they must be aware of when a meeting is to occur. FACA requires that specific information be placed in the Federal Register to notify interested parties of the scheduled date, time, and location of advisory committee meetings. Fifteen agencies said they notify the public of scheduled meetings by using methods in addition to the Federal Register, such as posting notices on the Internet; posting notices in newsletters, newspapers, and trade association publications; or mailing notices to stakeholders. However, four agencies said they used only the Federal Register notice. GSA regulations generally require agencies to give 15 days’ advance notice in the Federal Register for committee meetings. Many of the agencies—14 of the 19—said they gave less than this 15 day advance notice at times during fiscal years 1995 through 1997. All together, these agencies said they gave less than 15 days’ advance notice 153 times during the 3 years (fiscal years 1995 through 1997) for which we requested data. This number represented a very small fraction of the 15,885 committee meetings that GSA reported as being held during those years by all advisory committees.
We also asked the agencies about subcommittee meetings. The agencies reported that there were 463 subcommittees reporting to full committees in fiscal year 1997. These subcommittees held 926 meetings in fiscal year 1997, and 249 were reportedly not covered under FACA. For the 249 meetings not covered under FACA, agencies reported that the meetings were held for activities such as gathering information, drafting position papers, doing research, and performing analysis. Of eight agencies responding, the majority (five to six agencies) said that FACA requirements, such as Federal Register notices of meetings, detailed minutes, and public access, were not followed for all or most subcommittee meetings. About one-half (four to five agencies) said the subcommittee meetings were approved or called for and attended by the designated federal officer.
section_title: GSA and OMB Comments
paragraphs: GSA and OMB provided comments on a draft of this report. On June 11, 1998, we met with the Director of GSA’s Committee Management Secretariat, who said he found the draft report to be very comprehensive, informative, and useful. The Director said that surveying committee members and agencies can provide the Secretariat very useful information to help it manage the federal advisory committee program, and the survey should be done every 3 or 4 years. However, according to the Director, no surveys have been done by the Secretariat and none are planned. The Director explained that the Secretariat lacks the technical expertise as well as the clear authority to conduct surveys of committee members and agencies.
The Director said the responses we received from committee members and agencies did not indicate any perceived significant systemic problems with the advisory committee program. However, he said the responses suggested areas that should be examined further, several of which GSA already had been examining and others of which GSA plans to examine. The Director said that GSA can address some of these areas by revising its FACA regulations, but addressing other areas will require legislative changes to FACA. For example, GSA expects to publish proposed regulations in July or August 1998 that will address the definition of an advisory committee. The Director said that GSA recognizes that some agencies or their field offices may sometimes be reluctant to obtain information from the public for fear of violating FACA, and one of GSA’s goals in revising the regulations is to provide clarifying guidance and standards as to when FACA does and does not apply. According to the Director, GSA has been working with the Department of Justice on this definition because Justice is responsible for defending the government in advisory committee litigation. The Director also said that the use of subcommittees by advisory committees is another area that GSA intends to address in its regulations. For example, he believes that it is important for agencies to make uniform determinations of when a subcommittee meeting or other activity would be subject to FACA’s requirements.
The Director said that GSA needs to evaluate and work with Congress on the usefulness of some specific FACA requirements, such as sending copies of advisory committee reports to the Library of Congress, and to proactively address the issue of terminating congressionally mandated committees when they no longer serve a useful purpose. He said that GSA was sympathetic to extending the charter period of advisory committees to beyond the 2-year period now stipulated by FACA. The Director also said GSA could possibly support exempting peer review panels from some FACA requirements, but GSA does not favor exempting them from all requirements. For example, he said it is important for the public to have access to information on how agencies ensure that peer review panels have balanced representation and are free from potential conflicts of interest. In addition, he noted that the number of peer review panels and their costs have benefited from the increased accountability provided by FACA and Executive Order 12838.
On June 12, 1998, an OMB official responsible for advisory committee matters said that OMB had no comments on the draft report other than that it accurately presented the impact of Executive Order 12838.
As agreed with your offices, unless you announce the contents of this report earlier, we plan no further distribution until 30 days after the date of this report. At that time, we will send copies of this report to the Ranking Minority Member, Subcommittee on Government Management, Information, and Technology, House Committee on Government Reform and Oversight; the Chairman, Senate Committee on Governmental Affairs; the Chairman and Ranking Minority Member, House Committee on Government Reform and Oversight; the Acting Director, OMB; the Administrator, GSA; and other interested parties. Copies will be made available to others on request.
Major contributors to this report are listed in appendix V. Please contact me on (202) 512-8676 if you or your staff have any questions.
section_title: Objectives, Scope, and Methodology
paragraphs: The Chairman of the Subcommittee on Government Management, Information, and Technology, House Committee on Government Reform and Oversight; and the Ranking Minority Member of the Senate Committee on Governmental Affairs asked us to review selected matters relating to the Federal Advisory Committee Act (FACA). We addressed several aspects of these separate requests in two previous products. Our objectives in this review were to obtain (1) federal advisory committee members’ perceptions on the extent to which their advisory committees were providing balanced and independent advice and recommendations as required by FACA; (2) federal agencies’ views on the extent to which they found compliance with FACA useful or burdensome, the impact of Executive Order 12838 on their ability to accomplish their missions, and whether any of their advisory committees mandated by Congress should be terminated; and (3) advisory committee members’ and federal agencies’ views on the extent to which they believed the public was afforded access to advisory committee proceedings and a means to express their views to agencies and their advisory committees.
To respond to these objectives, we designed and pretested two questionnaires, one of which we later sent to a randomly selected, statistically representative sample of federal advisory committee members and the other of which we sent to all 14 federal departments and to independent agencies with 10 or more advisory committees. Regarding the issue of public participation, we were unable to send a questionnaire to members of the public (individuals and organizations) who may have provided or attempted to provide information to advisory committees because we could not identify the universe of such individuals and organizations from which to draw a statistically representative sample to query.
Because a comprehensive listing of the names and addresses for all federal advisory committee members was not available, we requested from federal agencies the names and addresses of members assigned to advisory committees as of August 1, 1997. The Committee Management Secretariat assisted us in making this request to the agencies’ committee management officers. We received the names (and about 95 percent of the addresses) for 28,499 committee members on 783 advisory committees in 43 federal agencies or entities. These numbers were somewhat less than the 36,586 members serving on 963 advisory committees in 57 federal agencies or entities during fiscal year 1997, according to General Services Administration (GSA) summary data as of April 27, 1998.
Our survey of federal advisory committee members initially contained a sample of 900 committee members. Beginning on February 25, 1998, we mailed 865 questionnaires to a sample of committee members for whom the agencies provided us with mailing addresses. Committee members who did not respond to our initial questionnaire were sent a follow-up questionnaire beginning on March 31, 1998. Table I.1 summarizes the disposition of our sample of 900 committee members.
This sample of 900 committee members was stratified according to the functional types of advisory committees, which we obtained from GSA. The types of committee functions we used to create our sampling strata included grant review, national policy, nonscientific, scientific/technical, and other. We combined the regulatory negotiation and other types and those unclassified by GSA into the functional type “other.” In each of these five strata, we selected a random sample of committee members. We randomly selected 400 of the 13,392 members of grant review committees, 200 of 6,263 members of scientific/technical committees, 180 of 5,586 members of nonscientific committees, 80 of 2,393 members of national policy committees, and 40 of 865 members of the other committees.
We received usable questionnaires from 67 percent of the eligible sample. The response rate across the five strata ranged from 62 percent to 72 percent. The overall sample had a confidence interval of no greater than – 4 percent. The confidence interval for the grant review committees was no greater than – 6 percent. The confidence interval for the others, which we refer to as general advisory committees, was no greater than – 5.5 percent. The overall results are generalizable to all federal advisory committee members for whom we had names and addresses. The grant review and general advisory committee members results are generalizable to those types of advisory committees for which we had members’ names and addresses. Although we did not test the validity of the respondents’ answers or the comments they made, we took several steps to check the quality of our survey data. We reviewed and edited the completed questionnaires, made internal consistency checks on selected items, and checked the accuracy of data entry on a sample of surveys.
In addition to sampling errors, the practical difficulties of conducting any survey may introduce other types of errors, commonly referred to as nonsampling errors. For example, differences in how a particular question is interpreted by the survey respondents could introduce unwanted variability in the survey’s results. We took steps in the development of the questionnaire, the data collection, and the data editing and analysis to minimize nonsampling errors. These steps, which we discuss earlier, included pretesting and editing the questionnaires.
The 19 federal departments and independent agencies to whom we sent questionnaires on February 24, 1998, accounted for 902 of 1,000 (90 percent) advisory committees that existed governmentwide in fiscal year 1996, the latest year for which such data were available at the time we selected the agencies. According to GSA data, the other 98 advisory committees were chartered by 40 federal entities (offices of the Executive Office of the President; independent agencies; and federal boards, commissions, and councils). Table I.2 lists the 19 departments and agencies in our survey and their number of advisory committees during fiscal year 1996. We received completed questionnaires from all 19 agencies. We asked each agency to provide a consolidated response covering all of its various organizational components. Although agency information in this review applies only to the 19 agencies surveyed and cannot be projected governmentwide, this information can be generalized to the 902 advisory committees in the government that we included in our review. We did not verify the accuracy of the data provided by the agencies.
To aid us in meeting our objectives, we also interviewed GSA’s Committee Management Secretariat officials and reviewed applicable laws, regulations, and guidance to agencies regarding advisory committee activities. We also reviewed applicable court decisions and our prior GAO reports related to participation by outside parties on advisory committee issues.
section_title: Responses to Survey of Federal Advisory Committee Members
section_title: Mandated Advisory Committees That Agencies Believed Should Be Terminated
section_title: Responses to Federal Advisory Committees Agency Questionnaire
section_title: Major Contributors to This Report
subsections: section_title: General Government Division, Washington, D.C.
section_title: Office of the General Counsel
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