	Background

When the Congress enacted FACA in 1972, one of the principal concerns it  was responding to was that certain special interests had too much  influence over federal agency decision makers. While GSA’s Committee Management Secretariat provides FACA guidance  to federal agencies, each agency also develops its own policies and  procedures for following FACA requirements. OGE is responsible for issuing regulations and guidance for agencies to  follow in complying with statutory conflict-of-interest provisions that  apply to all federal employees, including special government employees  serving on federal advisory committees. Findings and Conclusions from Our 2004 Report on the Independence and Balance of Committees

In 2004, we concluded that additional governmentwide guidance could  help agencies better ensure the independence of federal advisory  committee members and the balance of federal advisory committees. We  found that OGE guidance to federal agencies had shortcomings and did  not adequately ensure that agencies appropriately appoint individuals  selected to provide advice on behalf of the government as special  government employees. We found that some agencies were  inappropriately appointing members as representatives who, as a result,  were not subject to conflict-of-interest reviews. In addition, GSA guidance  to federal agencies, and agency-specific policies and procedures, needed  to be improved to better ensure that agencies elicit from potential  committee members information that could be helpful in determining their  viewpoints regarding the subject matters being considered—information  that could help ensure that committees are, and are perceived as being,  balanced. That is, the Department of Energy, the  Department of the Interior, and the Department of Agriculture had  appointed most or all members to their federal advisory committees as  representatives—even in cases where the members were called upon to  provide advice on behalf of the government and thus would be more  appropriately appointed as special government employees. We identified several promising practices for forming and managing  federal advisory committees that could better ensure that committees are,  and are perceived as being, independent and balanced. In addition, we identified selected measures that could promote greater  transparency in the federal advisory committee process and improve the  public’s ability to evaluate whether agencies have complied with conflict- of-interest requirements and FACA requirements for balance, such as  providing information on how the members of the committees are  identified and screened and indicating whether the committee members  are providing independent or stakeholder advice. Our 2004 Recommendations to GSA and OGE and Their Responses

Because the effectiveness of competent federal advisory committees can  be undermined if the members are, or are perceived as, lacking in  independence or if committees as a whole do not appear to be properly  balanced, we made 12 recommendations to GSA and OGE to provide  additional guidance to federal agencies under three broad categories: (1)  the appropriate use of representative appointments; (2) information that  could help ensure committees are, in fact and in perception, balanced; and  (3) practices that could better ensure independent and balanced  committees and increase transparency in the federal advisory process. GSA and OGE have  taken steps to implement many, but not all, of the recommendations we  made in 2004. GSA quickly implemented this  recommendation and now has data on appointments beginning in 2005. Potential Changes to FACA That Could Help Agencies Better Ensure Independence, Balance, and Transparency

You asked us to provide recommendations for improving the Federal  Advisory Committee Act. Clarifying appointment issues in the act could  resolve questions about or challenges to GSA’s authorities and thereby  better support agency compliance with GSA and OGE guidance on this  critical issue. In consideration of the above, the Subcommittee may want to consider  amendments to FACA that could help prevent the inappropriate use of  representative appointments and better ensure the independence of  committee members by clarifying the nature of advice to be provided by  special government employees versus representative members of advisory  committees and require that all committee members, not just special  government employees, be provided ethics training.
Why GAO Did This Study

Because advisory committees provide input to federal decision makers on significant national issues, it is essential that their membership be, and be perceived as being, free from conflicts of interest and balanced as a whole. The Federal Advisory Committee Act (FACA) was enacted in 1972, in part, because of concerns that special interests had too much influence over federal agency decision makers. The General Services Administration (GSA) develops guidance on establishing and managing FACA committees. The Office of Government Ethics (OGE) develops regulations and guidance for statutory conflict-of- interest provisions that apply to some advisory committee members. As requested, this testimony discusses key findings and conclusions in our 2004 report, Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance; GAO's recommendations to GSA and OGE and their responses; and potential changes to FACA that could better ensure the independence and balance of advisory committees. For our 2004 work, we reviewed policies and procedures issued by GSA, OGE, and nine federal agencies that sponsor many committees. For this testimony, we obtained information from GSA and OGE on actions they have taken to implement our recommendations; we also reviewed data in GSA's FACA data base on advisory committee appointments.

What GAO Found

In 2004, GAO concluded that 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 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. Further, GAO found that some agencies were inappropriately appointing most or all members as "representatives"--expected to reflect the views of the entity or group they are representing and not subject to conflict-of-interest reviews--even when the agencies call upon the members to provide advice on behalf of the government and thus should have been appointed as special government employees. In addition, GSA guidance to federal agencies and agency-specific policies and procedures needed to be improved to better ensure that agencies collect and evaluate information, such as previous or ongoing research, that could be helpful in determining the viewpoints of potential committee members regarding the subject matters being considered and in ensuring that committees are, and are perceived as being, balanced. GAO also identified several promising practices for forming and managing federal advisory committees that could better ensure that committees are independent and balanced as a whole, such as providing information on how the members of the committee are identified and screened and indicating whether the committee members are providing independent or stakeholder advice. To help improve the effectiveness of federal advisory committees so that members are, and are perceived as being, independent and committees as a whole are properly balanced, GAO made 12 recommendations to GSA and OGE to provide additional guidance to federal agencies under three broad categories: (1) the appropriate use of representative appointments; (2) information that could help ensure committees are, in fact, and in perception, balanced; and (3) practices that could better ensure 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, current data on appointments indicate that some agencies may continue to inappropriately use representatives rather than special government employees on some committees. Further, GSA said it agrees with GAO's other recommendations, including those relating to committee balance and measures that would promote greater transparency in the federal advisory committee process, but has not issued guidance in these areas as recommended, because of limitations in its authority to require agencies to comply with its guidance. In light of indications that some agencies may continue to use representative appointments inappropriately and GSA's support for including GAO's 2004 recommendations in FACA--including those aimed at enhancing balance and transparency--the Subcommittee may wish to incorporate the substance of GAO's recommendations into FACA as it considers amendments to the act.