Federal Advisory Committee Act: Overview of Advisory Committees Since 1993

Published by the Government Accountability Office on 1997-11-05.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                          United States General Accounting Office

GAO                       Testimony
                          Before the Subcommittee on Government Management,
                          Information, and Technology Committee on Government
                          Reform and Oversight House of Representatives

For Release on Delivery
Expected at
2:00 p.m., EST
                          FEDERAL ADVISORY
Nov. 5, 1997              COMMITTEE ACT

                          Overview of Advisory
                          Committees Since 1993
                          Statement of L. Nye Stevens
                          Director, Federal Management and Workforce Issues
                          General Government Division


Federal Advisory Committee Act: Overview
of Advisory Committees Since 1993

              Mr. Chairman and Members of the Subcommittee:

              I am pleased to be here today to discuss our work on federal advisory
              committees. Congress has recognized that when properly organized and
              managed, advisory committees can provide a useful source of expertise
              and advice. However, in 1972, because of its concern about the
              proliferation and lack of effective management of advisory committees,
              Congress enacted the Federal Advisory Committee Act (FACA). FACA is
              intended to keep the number of advisory committees to the minimum
              necessary by ensuring that (1) valid needs exist for establishing and
              continuing advisory committees, (2) the committees are properly managed
              and their proceedings are open to the public, and (3) Congress is kept
              informed of their activities. FACA directs the General Services
              Administration (GSA) to establish and maintain a Committee Management
              Secretariat to oversee advisory committee activities. In 1993, the President
              issued an executive order that directed agencies to reduce by at least
              one-third the number of discretionary advisory committees that they
              sponsored (those not mandated by Congress or established by the
              President) by the end of fiscal year 1993. FACA committees are either
              established under agency authority, authorized by Congress, mandated by
              Congress, or established by the President.

              As agreed, we will focus our testimony today on (1) an assessment of
              whether Executive Order 12838, signed by the President on February 10,
              1993, achieved its goal of reducing the number of discretionary advisory
              committees by at least one-third by the end of fiscal year 1993 and the
              extent to which the costs and number of committee members changed
              during the same period; and (2) an overview of GSA’s oversight
              responsibilities under FACA. Also as agreed, we will continue our work on
              GSA’s oversight of advisory committee activities and additional issues that
              you and Senator John Glenn asked us to review—advisory committee
              management, committee members’ independence, and participation of
              outside parties. We will report on this work at a later date.

              To assess whether the administration achieved its goal of reducing the
              number of discretionary advisory committees and the extent to which
              committees’ costs and membership had changed, we analyzed the annual
              reports of the President on federal advisory committees from fiscal years
              1993 through 1996 and reviewed GSA historical data. To identify GSA’s
              Committee Management Secretariat oversight responsibilities under FACA,
              we reviewed applicable laws, regulations, and GSA guidance to agencies

              Page 1                                                       GAO/T-GGD-98-24
                      Federal Advisory Committee Act: Overview
                      of Advisory Committees Since 1993

                      regarding advisory committee activities and interviewed GSA’s Committee
                      Management Secretariat officials.

                      According to the President’s annual reports on advisory committees, the
Number of Advisory    total number of advisory committees decreased from a high of 1,305
Committees Has        during 1993 to a low of 1,000 during 1996, the most recent year for which
Declined, but the     complete data were available. Nearly all of this reduction, 303 of the 305
                      drop, was due to cuts in the number of discretionary advisory committees.
Costs and Number of   The reduction in the number of advisory committees since 1993 follows
Members Per           the President’s 1993 executive order, which called for at least a one-third
                      reduction in discretionary advisory committees. Discretionary committees
Committee Have        do not include advisory committees mandated by Congress and those
Risen                 created by the President. Appendix I shows the number of advisory
                      committees by the four establishment authorities during fiscal years 1993
                      through 1996.

                      The Office of Management and Budget (OMB), in providing guidance to
                      agencies on the 1993 executive order, established a maximum ceiling
                      number of discretionary advisory committees for each agency and a
                      monitoring plan. Under the guidance, agencies were to report their
                      committee levels annually to OMB and request its approval before creating
                      any new discretionary committees. Later, OMB dropped the requirement for
                      prior approval of new committees as long as agencies were beneath their
                      approved ceilings. In a June 1994 memorandum to agency heads, the Vice
                      President called for each agency to reduce advisory committee costs by at
                      least another 5 percent beyond the savings achieved by the one-third
                      reduction that resulted from implementation of the executive order.

                      According to GSA officials, and as reported in the President’s annual
                      reports, the overall number of advisory committees was on the rise before
                      1993, but in response to the 1993 executive order the number started to
                      drop in 1994. (See app. II.) Almost all of the reduction in advisory
                      committees (303 of 305) from fiscal year 1993 to 1996 was attributable to
                      the cut in discretionary committees. Although the President’s goal of
                      reducing the number of discretionary committees by one-third was not
                      achieved governmentwide by the end of fiscal year 1993,1 the number of
                      discretionary committees dropped from 833 to 530 (36 percent) during the
                      4-year period; and the total number of advisory committees dropped from
                      1,305 to 1,000 (23 percent). The 530 discretionary committees that existed

                       The fiscal year 1993 Annual Report of the President on Federal Advisory Committees shows that 28 of
                      64 (44 percent) executive departments, independent agencies, and other organizations either met or
                      exceeded the one-third reduction.

                      Page 2                                                                          GAO/T-GGD-98-24
Federal Advisory Committee Act: Overview
of Advisory Committees Since 1993

during fiscal year 1996 were 4 less than the governmentwide OMB ceiling of
534 committees. According to GSA, the number of discretionary
committees has continued to decline; and, as of mid-September 1997, the
number was 479, 55 below the ceiling.

Although the overall number of advisory committees declined during the
4-year period, their costs and the number of committee members
increased. The number of members serving on the committees increased
from 28,317 to 29,511 (4 percent), and the costs of committees increased in
nominal dollars from $143.9 to $148.5 million (3 percent). However, in
constant 1993 dollars, the costs decreased from $143.9 to $138.3 million
(4 percent) for the 4-year period.

On average, the number of members per committee rose from 22 to 30,
and the costs per committee rose from $110,276 to $148,519 from fiscal
year 1993 to 1996. In constant 1993 dollars, the average costs per
committee rose from $110,276 to $138,314 for the 4-year period. One
possible explanation for part of the increase in per committee costs and
members is mergers. According to a GSA report on the implementation of
the 1993 executive order, agencies recommended 196 discretionary
advisory committees for merger. Mergers would include moving some of
the functions and members to existing or new committees, according to
GSA Committee Management Secretariat officials.

Another possible explanation for some of the increase in costs is the
increase in the number of advisory committee meetings. During the same
4-year period, the number of advisory committee meetings increased from
4,387 to 5,008 (14 percent).

Although the number of meetings has risen, the percentage of open
meetings compared to the percentage that were closed and partially closed
has declined—49 percent of meetings were open in 1993 compared to
44 percent in 1996. Advisory committee meetings can be closed to the
public if specific administrative procedures and specific provisions of the
Government in the Sunshine Act (5 U.S.C. 552b) are followed. These
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. We did not examine the
appropriateness of the decisions to close or partially close the FACA
meetings. Appendix III shows a breakdown of the number of open, closed,
and partially closed meetings from fiscal year 1993 to 1996.

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                               Federal Advisory Committee Act: Overview
                               of Advisory Committees Since 1993

                               Under FACA and GSA regulations implementing FACA, GSA’s Committee
GSA’s Committee                Management Secretariat is responsible for
Secretariat Oversight      •   consulting with agencies on new and reauthorized advisory committees to
                               ensure that FACA requirements are met;
Role                       •   making comprehensive annual reviews of each advisory committee and
                               making recommendations to the President and to the agency head or
                               Congress on any action the Secretariat deems necessary, including
                               abolishing the committee or merging it with another committee;
                           •   preparing the President’s annual report to Congress on the activities,
                               status, and changes in the composition of advisory committees; and
                           •   ensuring that follow-up reports are prepared on the status of
                               recommendations made by presidential advisory committees.

                               For fiscal year 1997, GSA’s Committee Management Secretariat had a
                               budget of $645,000 and 8 employees.

Consultation on Advisory       FACA  and GSA regulations require that agencies consult with GSA before
Committees                     establishing new and reauthorized advisory committees. As part of this
                               consultation, agencies are required to submit charters and justification
                               letters, which must contain specific information. FACA outlines that
                               agencies are to include 10 specific items in the charter, including the
                               committee’s objectives and scope of activities, the time period necessary
                               to carry out its purpose, and the estimated annual staff years and costs.
                               GSA regulations state that agencies must address three items in the
                               justification letter, including why the committee is essential to conduct the
                               agency’s business, why the committee’s functions cannot be performed by
                               the agency or other means, and how the agency plans to attain balanced
                               membership. GSA’s role is to review agency proposals to establish advisory
                               committees and determine whether FACA requirements are met. The
                               regulations say that GSA is to review the proposals and notify the agency of
                               its views within 15 days, if possible. However, GSA does not have the
                               authority to stop the formation of an advisory committee.

                               GSA regulations also require that agencies publish a notice in the Federal
                               Register when either new or reauthorized discretionary advisory
                               committees are established. Committees mandated by Congress or
                               established by the President are not required to issue such notices. New
                               discretionary committee notices are required to address three of the
                               specific items that must be contained in the charter and justification letter.
                               These items include a description of the nature and purpose of the

                               Page 4                                                        GAO/T-GGD-98-24
                             Federal Advisory Committee Act: Overview
                             of Advisory Committees Since 1993

                             committee, a discussion of the agency’s plan to attain a fairly balanced
                             membership, and a statement that the committee is necessary and in the
                             public interest. Notices for reauthorized committees do not need to
                             include these three items.

Comprehensive Annual         FACA requires GSA to make an annual comprehensive review of each
Reviews                      advisory committee to determine whether it is carrying out its purpose,
                             whether its responsibilities should be revised, and whether it should be
                             abolished or merged with another committee. After completing the
                             reviews, GSA is required to recommend to the President and to the agency
                             head or Congress any actions GSA deems should be taken.

                             GSA regulations require that agencies prepare an annual report for each
                             committee, including the agencies’ recommendations for continuing,
                             merging, or terminating committees. For continuing committees (not new
                             or terminated), agencies are required to describe such things as how the
                             committee accomplishes its purpose, the frequency of meetings and the
                             reason for continuing the committee, and why it was necessary to have
                             closed committee meetings if such meetings were held. The committee’s
                             annual reports also are to include the committee costs.

                             GSA procedures call for it to use the data it receives in the agencies’ annual
                             reports, including the agencies’ recommendations to continue or terminate
                             the committees, in conducting the comprehensive annual review and in
                             preparing the President’s annual report.

President’s Annual Reports   The President is required to report annually to Congress on the activities,
to Congress                  status, and changes in the composition of advisory committees. The
                             annual reports are due to Congress by December 31 for each preceding
                             fiscal year. GSA prepares the annual reports for the President with
                             information provided in agencies’ annual reports on each advisory
                             committee that existed during the fiscal year.

Follow-Up Reports to         FACA requires the President, or his delegate, to report to Congress within 1
Congress on Presidential     year on his proposals for action or reasons for inaction on
Advisory Committee           recommendations made by a presidential advisory committee to the
                             President. According to FACA’s legislative history, these follow-up reports
Recommendations              would help justify the investments in the advisory committees and provide

                             Page 5                                                        GAO/T-GGD-98-24
                     Federal Advisory Committee Act: Overview
                     of Advisory Committees Since 1993

                     accountability to the public and Congress that the recommendations are
                     being addressed.

                     According to GSA regulations, the agency providing support to the advisory
                     committee is responsible for preparing and transmitting the follow-up
                     report to Congress. However, the regulations also state that the Secretariat
                     is responsible for ensuring that the follow-up reports are prepared by the
                     agency supporting the presidential committee and may solicit OMB and
                     other appropriate organizations for help, if needed to ensure compliance.

                     A focus of today’s hearing is the proposal to amend FACA to specify that the
Recent Proposal to   act does not apply to committees that are created by an entity other than
Amend FACA           an agency or federal official and are not subject to actual management and
                     control by federal officials. This proposal is in response to a recent
                     decision by the U.S. Court of Appeals for the District of Columbia that
                     FACA applied to panels of the National Academy of Sciences (NAS).

                     This development has not been the focus of our work and we have not
                     assessed the merits of the issue. I would like to make two observations,
                     however. First, the extent to which these entities are included under FACA
                     will likely have an impact on GSA in its oversight capacity. Under the Court
                     of Appeals decision, according to OMB, more than 450 NAS panels could
                     potentially become subject to FACA and therefore fall under GSA purview.
                     The inclusion of NAS panels, and perhaps other similarly situated entities
                     used by other organizations, could pose resource implications for GSA
                     whose staff of 8 employees is currently responsible for overseeing about
                     1,000 advisory committees.

                     Second, the inclusion of additional entities under FACA in accordance with
                     the Court of Appeals decision might also affect the federal agencies that
                     sponsor the panels (albeit somewhat indirectly in the instance of the NAS.)
                     FACA requires that advisory committees be managed and controlled by a
                     federal agency. This has not been the case for those committees that were
                     made subject to FACA pursuant to the Court of Appeals decision.
                     Management and control generally means that meetings are to be chaired
                     or attended by an agency employee and that certain meeting-related
                     decisions—such as whether a particular meeting should be open or closed
                     to the public—are to be made by the agency. Agencies also provide
                     administrative support to their committees. It is unclear whether agencies
                     would be required to provide the same active participation in the activities
                     of NAS-type panels. If they did, certain costs would have be incurred. While

                     Page 6                                                       GAO/T-GGD-98-24
Federal Advisory Committee Act: Overview
of Advisory Committees Since 1993

we do not know what those costs might be, we know from our analysis of
GSA records that the average annual cost for federal staff involved in the
1,000 advisory committees in existence during fiscal year 1996 was about
$75,000 per committee. We are not suggesting that the possibility of
additional costs is a reason for deciding whether or not to include certain
entities under FACA. But, we do believe it is important for the Congress to
be aware of such costs as it deliberates on the matter.

Mr. Chairman, this concludes my statement. I will be pleased to answer
any questions you or any Members of the Subcommittee may have.

Page 7                                                       GAO/T-GGD-98-24
Appendix I

Distribution of Federal Advisory
Committees by Establishment Authority
During Fiscal Years 1993-1996

                                                          Establishment authority
                                      Discretionary committees             Nondiscretionary committees
                                           Agency      Authorized by        Mandated by           Presidential
Fiscal Year                               authority        Congress           Congress               directive
1993                                            401                 432                 444                28
1994                                            316                 423                 429                27
1995                                            325                 318                 438                29
1996                                            286                 244                 438                32
              Source: Annual Reports of the President on Federal Advisory Committees.

              Page 8                                                                          GAO/T-GGD-98-24
Appendix II

Federal Advisory Committee Statistics
During Fiscal Years 1993-1996

                                                            Number of            Total costs
                                      Total number       discretionary            in millions     Number of
Fiscal year                          of committees        committees        (nominal dollars)      members
1993                                           1,305                 833                 $143.9      28,317
1994                                           1,195                 739                  133.4      30,446
1995                                           1,110                 643                  157.0      29,766
1996                                           1,000                 530                  148.5      29,511
               Source: Annual Reports of the President on Federal Advisory Committees.

               Page 9                                                                       GAO/T-GGD-98-24
Appendix III

Types of Federal Advisory Committee
Meetings During Fiscal Years 1993-1996

                                                                           Type of meetings
               Fiscal year                                       Open       Closed        closed      Total
               1993                                              2,162        1,210         1,015     4,387
               1994                                              1,826        1,502           781     4,109
               1995                                              2,443        2,233           503     5,179
               1996                                              2,208        2,379           421     5,008
               Source: Annual Reports of the President on Federal Advisory Committees.

(410155)       Page 10                                                                      GAO/T-GGD-98-24
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