United States General Accounting Office GAO Report to Congressional Requesters FEDERAL ADVISORY April 2004 COMMITTEES Additional Guidance Could Help Agencies Better Ensure Independence and Balance a GAO-04-328 April 2004 FEDERAL ADVISORY COMMITTEES Additional Guidance Could Help Agencies Better Ensure Independence Highlights of GAO-04-328, a report to congressional requesters and Balance Because advisory committees are Federal advisory committees play an important role in shaping public policy established to advise federal by providing advice on a wide array of issues, such as stem cell research, decision makers on significant drinking water standards, space exploration, drug approvals, and federal national issues, it is essential that land management. About 950 advisory committees perform peer reviews of their membership be, and be scientific research; offer advice on policy issues; identify long-range issues; perceived as being, free from and evaluate grant proposals, among other functions. conflicts of interest and balanced as a whole. GAO was asked to (1) Additional governmentwide guidance could help agencies better ensure the describe the role of federal independence of members—that is, that they are free from significant advisory committees in the development of national policies, conflicts of interest—and balance of federal advisory committees. For (2) examine the extent to which example, current limitations in the Office of Government Ethics’ (OGE) existing guidance and policies and guidance are a factor in at least three agencies’ continuing a long-standing procedures for evaluating practice of appointing most or all members as “representatives”—expected committee members for conflicts to reflect the views of the entity or group they are representing and not of interest and points of view subject to conflict-of-interest reviews—even when the agencies call uponthe ensure independent members and members to provide advice on behalf of the government. Such members balanced committees, and (3) would be more appropriately appointed as “special government employees,” identify practices and measures who are reviewed for conflicts of interest. OGE officials agreed with GAO that could help ensure that these agencies’ appointments of some members as representatives of independence and balance. their fields of expertise are not appropriate, and this practice avoids using the special government employee category that was created to help the government hire experts in various fields for such purposes. OGE guidance GAO recommends that GSA and/or that representatives may speak for, among others, any recognizable group of OGE, as appropriate, give direction persons should be clarified to state that they generally are not to represent to agencies on: the proper use of an expertise. Also, to be effective, advisory committees must be, and be representative appointments; perceived as being, fairly balanced in terms of points of view and functions information that would help ensure to be performed. However, the General Services Administration’s (GSA) committees are, and are perceived guidance on advisory committee management does not address what types as, balanced; and practices that of information could be helpful to agencies in assessing the points of view of would better ensure independence and balance and enhance potential committee members, nor do agency procedures identify what transparency in the advisory information should be collected about potential members to make decisions committee process. GSA agreed about committee balance. Consequently, many agencies do not identify and with GAO’s findings and agreed to systematically collect and evaluate information pertinent to determining the work with OGE to implement the points of view of potential committee members, such as previous public recommendations. OGE agreed positions or statements on matters being reviewed. that representative appointments need review but disagreed that its GAO identified promising practices and measures that can better ensure guidance has limitations. GAO independence and balance and promote transparency in the federal advisory continues to believe the guidance committee system, such as obtaining nominations from the public and could be improved to better ensure making public information about how members are identified and screened. that agencies are appropriately appointing committee members. Wider use of these practices—particularly for committees addressing sensitive or controversial topics—could reduce the likelihood that www.gao.gov/cgi-bin/getrpt?GAO-04-328. committees are, or are perceived as being, biased or imbalanced. To view the full product, including the scope and methodology, click on the link above. For more information, contact Robin Nazzaro at (202) 512-3841 or [email protected]. Contents Letter 1 Results in Brief 4 Background 7 Advisory Committees Play an Important Role in the Development of Federal Policies 14 Federal Guidance Could Better Ensure Independence and Balance 17 Promising Practices Could Better Ensure Independence and Balance 41 Conclusions 50 Recommendations for Executive Action 52 Agency Comments and Our Evaluation 54 Appendixes Appendix I: Objectives, Scope, and Methodology 60 Appendix II: Federal Advisory Committees, by Authorizing Mechanism and Type, in Fiscal Year 2003 64 Appendix III: Information on the Department of Agriculture’s National Advisory Committee on Microbiological Criteria for Foods 67 Appendix IV: Information on the Department of Energy’s Biological and Environmental Research Advisory Committee 70 Appendix V: Information on the Environmental Protection Agency’s Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel 73 Appendix VI: Information on the Department of Health and Human Services’s Advisory Committee on Human Research Protections 77 Appendix VII: Information on the Centers for Disease Control and Prevention’s Advisory Committee on Childhood Lead Poisoning Prevention 80 Appendix VIII: Information on the Food and Drug Administration’s Food Advisory Committee 82 Appendix IX: Information on the National Institutes of Health’s Scientific Advisory Committee on Alternative Toxicological Methods 86 Page i GAO-04-328 Federal Advisory Committees Contents Appendix X: Information on the Department of the Interior’s U.S. Geological Survey’s Scientific Earthquake Studies Advisory Committee 90 Appendix XI: Information on the National Aeronautics and Space Administration’s Space Science Advisory Committee 92 Appendix XII: Comments from the General Services Administration 94 Appendix XIII: Comments from the Office of Government Ethics 101 GAO Comments 108 Appendix XIV: Comments from the Department of Health and Human Services 112 GAO Comments 116 Appendix XV: Comments from the Department of the Interior 118 GAO Comments 124 Appendix XVI: Comments from the National Aeronautics and Space Administration 130 GAO Comments 132 Appendix XVII: Comments from the Department of Energy 134 GAO Comments 138 Appendix XVIII: GAO Contacts and Staff Acknowledgments 141 GAO Contacts 141 Staff Acknowledgments 141 Tables Table 1: Documentation That Agencies Systematically Collected on Potential Members of Selected Committees 35 Table 2: Factors Used by Agencies to Balance Selected Committees 39 Table 3: Authorizing Mechanism for Active Federal Advisory Committees in Fiscal Year 2003 64 Table 4: Active Federal Advisory Committees, by Type, in Fiscal Year 2003 65 Table 5: Roster of the National Advisory Committee on Microbiological Criteria for Foods with the Primary Employers and Areas of Expertise as of December 2003 68 Table 6: Roster of the Biological and Environmental Research Advisory Committee with the Primary Employers and Areas of Expertise as of December 30, 2003 71 Table 7: Roster of the Standing FIFRA Scientific Advisory Panel with the Primary Employers and Areas of Expertise as of December 2003 75 Page ii GAO-04-328 Federal Advisory Committees Contents Table 8: Roster of the Temporary (Ad Hoc) Members Serving on the June 17 to 20, 2003, Meeting on Atrazine 76 Table 9: Roster of the Secretary’s Advisory Committee on Human Research Protections with the Primary Employers and Areas of Expertise as of December 2003 79 Table 10:Roster of the Advisory Committee on Childhood Lead Poisoning Prevention with the Primary Employers and Areas of Expertise as of December 2003 81 Table 11:Roster of the Food Advisory Committee with the Primary Employers and Areas of Expertise as of June 3, 2003 84 Table 12:Roster of the Scientific Advisory Committee on Alternative Toxicological Methods with the Primary Employers, and Areas of Expertise as of December 30, 2003 89 Table 13: Roster of the Scientific Earthquake Studies Advisory Committee with the Primary Employers and Areas of Expertise as of December 2003 91 Table 14:Roster of the Space Science Advisory Committee Members with the Primary Employers and Areas of Expertise as of December 30, 2003 93 Page iii GAO-04-328 Federal Advisory Committees Contents Abbreviations CDC Centers for Disease Control and Prevention CODEX Codex Alementarius Commission CV curricula vitae EPA Environmental Protection Agency FACA Federal Advisory Committee Act FAO Food and Agriculture Organization FDA Food and Drug Administration FIFRA Federal Insecticide, Fungicide, and Rodenticide Act of 1977 FSIS Food Safety and Inspection Service GSA General Services Administration HACCP Hazard Analysis and Critical Control Point HHS Department of Health and Human Services ICCVAM Interagency Coordinating Committee on the Validation of Alternative Methods NASA National Aeronautics and Space Administration NIEHS National Institute of Environmental Health Sciences NIH National Institutes of Health OGE Office of Government Ethics USDA United States Department of Agriculture USGS United States Geological Survey WHO World Health Organization This is a work of the U.S. government and is not subject to copyright protection in the United States. It may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately. Page iv GAO-04-328 Federal Advisory Committees A United States General Accounting Office Washington, D.C. 20548 April 16, 2004 Letter The Honorable Eddie Bernice Johnson Ranking Minority Member, Subcommittee on Research Committee on Science House of Representatives The Honorable Brian Baird House of Representatives Federal advisory committees have been called the “fifth arm of government” because of the significant role they play in advising federal agencies, the Congress, and the President on important national issues.1 To be effective, these advisory committees must be—and, just as importantly, be perceived as being—independent and balanced. Specifically, individual committee members who provide advice to the government must be free from significant conflicts of interest—that is, they must be “independent.” In addition, while it may be desirable to include experts on committees who have particular viewpoints, federal law requires each committee, as a whole, to be balanced in terms of the points of view and the functions to be performed. Recently, some appointments to scientific and technical advisory committees have generated controversy because of the perception by some scientists and others that these appointments were based on ideology rather than expertise or were weighted to favor one group of stakeholders over others. In 1962, the Congress established the category of “special government employee” and made the conflict-of-interest rules for such employees less restrictive than for regular federal government employees to overcome obstacles in hiring outside experts for occasional service, such as on federal advisory committees. Members of federal advisory committees are often appointed as special government employees to provide advice on behalf of the government on the basis of their best judgment. In contrast, members may also be appointed to federal advisory committees as “representatives” to provide stakeholder advice—that is, advice reflecting 1In this view, federal advisory committees follow the executive, legislative, judicial, and regulatory “arms” of government. Hearings on S. 1637, S. 2064, S. 1964 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 92nd Congress, 1st Sess., pt. 1 at 12 (1971). PPaaggee 11 GGAAOO--0044--332288 FFeeddeerraall AAddvviissoorryy CCoommmmiitttteeeess the views of the entity or interest group they are representing, such as industry, labor, or consumers. Federal advisory committee members who are employees of the federal government must meet federal requirements pertaining to freedom from conflicts of interest—which we refer to in this report as independence— and the committees as a whole must meet requirements pertaining to balance. Federal conflict-of-interest statutes (18 U.S.C. §§ 201), including the principal criminal financial conflict-of-interest statute (18 U.S.C. § 208), apply to regular and, in large part, special government employees. The Office of Government Ethics (OGE) is responsible for developing regulations and guidance for these statutory provisions. The criminal financial conflict-of-interest statute and related OGE regulations prohibit regular and special government employees from participating in a “particular matter” 2 that may have a direct and predictable effect on their financial interest, unless granted a waiver. Members appointed as representatives who are neither regular nor special government employees are not subject to statutes regarding conflicts of interest. The Federal Advisory Committee Act3 (FACA) requires, among other things, that committee memberships be “fairly balanced in terms of points of view presented and the functions to be performed by the advisory committee.” Courts have interpreted this requirement as providing agencies with broad discretion in balancing their committees. The General Services Administration (GSA) is responsible for developing regulations and guidance regarding the establishment of advisory committees under FACA. In addition to OGE and GSA regulations and guidance, federal agencies have their own policies and procedures to establish and manage advisory committees. You asked us to examine several issues regarding federal advisory committees. As agreed with your offices, this report (1) describes the role of federal advisory committees in the development of national policies; (2) examines the extent to which governmentwide guidance and agency- specific policies and procedures for evaluating committee members for conflicts of interest and points of view ensure independent members and balanced federal advisory committees; and (3) identifies practices that 2A particular matter is one that involves deliberation, decision, or action that is focused on the interests of specific people or a discrete and identifiable class of people. 5 C.F.R. § 2640.103(a)(1). 3Pub. L. No. 92-463, 86 Stat. 770 (1972) (classified at 5 U.S.C. app. 2). Page 2 GAO-04-328 Federal Advisory Committees could better ensure that committees are, and are perceived as being, independent and balanced. To address these objectives, we reviewed OGE regulations and guidance to federal agencies regarding federal conflict-of-interest provisions and GSA regulations and guidance to federal agencies regarding FACA. We reviewed the policies and procedures at six federal departments and agencies that make extensive use of scientific and technical advisory committees—the Departments of Agriculture (USDA), Energy, Health and Human Services (HHS), and the Interior; the National Aeronautics and Space Administration (NASA); and the Environmental Protection Agency (EPA). Because HHS entities sponsor 26 percent of all federal advisory committees and 36 percent of all scientific and technical advisory committees, we also reviewed the policies and procedures at three HHS agencies that sponsor many advisory committees—the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and the National Institutes of Health (NIH). We reviewed the procedures used by these nine departments and agencies to identify, screen, and appoint members for committees so as to ensure that members are free of conflicts of interest (where conflict-of-interest requirements apply) and that committees are balanced. To better understand how agencies implement OGE and GSA governmentwide regulations and guidance as well as their own policies, we examined the management of one committee at each agency.4 We reviewed the confidential financial disclosure forms of the committee members who were appointed as special government employees, along with other information, and discussed with staff how the committees used this information. We did not, however, make any judgments on whether conflicts of interest existed or whether these panels were properly balanced. To identify practices that promote independence and balance, we examined the relevant policies and procedures of the National Academies;5 the nine committees and agencies examined in this review; and EPA’s Science Advisory Board, which made a number of 4We selected a nonprobability sample of nine committees that address scientific and technical issues using criteria described in appendix I. Results from nonprobability samples cannot be used to make inferences about a population because some elements of the population being studied have no chance or an unknown chance of being selected as part of the sample. 5The National Academies consist of four private, nonprofit organizations that advise the federal government on scientific and technical matters: the National Academy of Sciences, the National Academy of Engineering, the Institute of Medicine, and the National Research Council. Page 3 GAO-04-328 Federal Advisory Committees changes to its policies and procedures in response to our June 2001 report.6 We conducted our review from January 2003 through March 2004 in accordance with generally accepted government auditing standards. For more details on the scope and methodology of our review, see appendix I. Results in Brief Approximately 950 federal advisory committees with about 62,000 members play an important role in shaping public policy by advising policymakers on a wide array of important and challenging issues. For example, advisory committees provide advice in the form of peer reviews of scientific research that may be used to support health, environmental, and safety regulations; recommendations about specific policy decisions; identification of long-range issues facing the nation; and evaluations of grant proposals, among other functions. Federal advisory committees have been established to work in broad areas of public policy, such as national security, the economy, the environment, and public health. Illustrative of the range of issues addressed by federal advisory committees are the current committees that advise agencies on matters related to AIDS research, food safety, hazardous waste cleanup, trade policy, and homeland security. Advisory committees are sometimes established specifically to address controversial issues about which the government believes it is beneficial to solicit the advice of individuals with the relevant background and/or expertise from outside the government. For example, some of the issues addressed by advisory committees are inherently controversial because they deal with sensitive personal and ideological matters, such as stem cell research and genetic engineering. Other committees address issues that are controversial because of their potential regulatory impact, such as food and drug approvals or environmental regulations. Additional governmentwide guidance could help agencies better ensure the independence of federal advisory committee members and the balance of federal advisory committees. For example, OGE guidance to federal agencies has shortcomings and does not adequately ensure that agencies appoint individuals selected to provide advice on behalf of the government as special government employees subject to conflict-of-interest regulations. In addition, GSA guidance to federal agencies and agency- specific policies and procedures could be improved to better ensure that 6U.S. General Accounting Office, EPA’s Science Advisory Board Panels: Improved Policies and Procedures Needed to Ensure Independence and Balance, GAO-01-536 (Washington, D.C.: June 12, 2001). Page 4 GAO-04-328 Federal Advisory Committees