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GSA'S Actions to Implement the Federal Advisory Committee Act (FACA)

 

STATEMENT OF G. MARTIN WAGNER
ASSOCIATE ADMINISTRATOR

OFFICE OF GOVERNMENTWIDE POLICY
GENERAL SERVICES ADMINISTRATION
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, INFORMATION AND TECHNOLOGY
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
UNITED STATES HOUSE OF REPRESENTATIVES

NOVEMBER 5, 1997

 

Mr. Chairman, Members of the Subcommittee, I am pleased to discuss with you
today those responsibilities assigned to the General Services Administration (GSA) regarding implementation of the Federal Advisory Committee Act (FACA), as well as proposed amendments to the Act currently under consideration. I am accompanied by James L. Dean, Director of the Committee Management Secretariat. The Secretariat was established by section 7(a) of the Act.

OVERVIEW OF GSA RESPONSIBILITIES

The Act assigns the Secretariat a number of important governmentwide roles and responsibilities which, taken together with those specific functions reserved for the Congress and other Executive Branch Departments and agencies, are designed to improve the management of, and accountability for, advisory committees. The Act envisioned that the Secretariat would exercise its responsibilities as part of the policymaking process managed through the Office of Management and Budget (OMB), which was the case until it was transferred to GSA on November 20, 1977, by Executive Order 12024. Among the statutory responsibilities assigned to GSA are:

Preparing the Annual Report on Federal Advisory Committees for consideration by
the President, and transmittal to the Congress by December 31st of each year (section
6(c));

Conducting an annual comprehensive review (ACR) covering the performance of,
and need for, existing advisory committees (section 7(b)) Issuing regulations,
guidelines, and management controls (section 7(c));

Providing for adequate notice to the public regarding committee meetings
(section10(a)(2)(3));

Issuing guidelines on committee member compensation in conjunction with
the Office of Personnel Management (section 7(d));

Providing for follow-up reports on public recommendations of Presidential
advisory committees (section (6(b)); and

Assuring that advisory committees are established in accordance with the
Act's requirements (section 9).

Responsibilities assigned to agencies which sponsor advisory committees subject to FACA include:

Issuing and maintaining uniform administrative guidelines and management
controls (section 8(a));

Appointing a Committee Management Officer (CMO) to provide oversight of
the agency's entire committee inventory (section 8(b));

Consulting with the Secretariat regarding proposals to establish advisory
committees (section 9(a)(2));

Filing Charters with the Congress prior to initiating committee activities
(section 9(c));

Maintaining records, minutes, and reports covering closed meetings
(section1 0(b)(C)(d));

Appointing a Designated Federal Officer (DFO) for each committee (section1 0(e));

Maintaining financial records (section 1 2(a));

Providing support services (section 1 2(b));

Terminating advisory committees as appropriate, consistent with FACA (section
14(a)(1)(A)); and

Taking appropriate action to renew advisory committees based on performance.

In addition, the Act provides that the Congress will conduct continuing reviews of
advisory committees (section 5(a)), and provide for the issuance of committee reports, if
any, with respect to committees mandated by statute.

THE SECRETARIAT'S POLICY AND OVERSIGHT ROLE

The Committee Management Secretariat's policy and oversight role has continued to emphasize
its relationship with OMB, as well as the development of partnerships with agencies subject to FACA.

Beginning in March 1988, following a GSA-led study conducted for the President's Council on Management Improvement (PCMI), the Secretariat outlined a series of actions which were necessary to strengthen the Act's consistent application. Included among these actions were steps to more effectively evaluate existing advisory committees. This process resulted in a governmentwide comprehensive review of all existing committees, as directed by OMB Bulletin 89-08, dated December 23, 1988. Other PCMI recommendations were incorporated into GSA's Final Rule implementing FACA during October 1989.

Also, in tandem with recommendations received from the General Accounting Office (GAO) during October 1988, the Secretariat initiated actions to fulfill other agency needs such as the establishment of a quarterly training course (March 1989), issuance (during June 1990) of governmentwide guidance on follow-up reports by Presidential committees required by section 6(b), and the development of a new database to track committee transactions (1991). The latter improvement allowed GSA to issue a separate annual comprehensive review (ACR) of all committees, as required by section 7(b), during February 1992.

Additional efforts to fulfill FACA's requirement for an ACR have been undertaken
under the aegis of Executive Order 12838, "Termination and Limitation of Federal
Advisory Committees" (February 10,1993), and its implementing instructions, OMB
Bulletin 93-10 (April 1,1993) and OMB Circular A-135, dated October 5,1994.

The Secretariat is currently in the process of revising its regulations implementing FACA and plans to issue a Proposed Rule during January 1998.

RESULTS

The Secretariat has worked with OMB and the interagency community to take steps to assure that advisory committees are effectively managed and that the requirements of FACA and Executive Order 12838, are achieved. These actions have helped to assure that agencies will continue to emphasize those initiatives which will result in less bureaucracy and a more responsive and cost-effective government.

During fiscal year 1996, 59 Federal departments and agencies sponsored 1,000 advisory committees. A total of 29,511 (excluding 5,057 members not reported by the Department of Health and Human Services (HHS)) individuals served as committee members; 5,008 meetings were held (a 14 percent increase over fiscal year 1993); and 1,060 reports were issued. Federal departments and agencies reported spending a total of $148.5 million to operate advisory committees during fiscal year 1996 (excluding $3.9 million which were not reported properly by HHS). These costs included compensation of committee members, reimbursement for travel and per diem expenses, Federal member and staff support expenditures, consulting fees, and administrative overhead, including mail costs and meeting space.

Approximately $77.9 million, or 52.4 percent of all costs associated with supporting advisory committees during the year, were the result of indirect expenditures for Federal staff support and Federal member participation. A number of other committee costs, however, involve direct outlays by agencies. For example, Federal agencies spent $28.3 million in fiscal year 1996 to cover travel and per diem expenses for committee members and staff.

Advisory committee costs are further reduced by terminating unnecessary or inactive groups. During the reporting period, 100 groups were terminated. Another 54 groups have been identified by sponsoring organizations for termination during fiscal year 1997, with associated combined savings of $7.7 million.

Compared with total reported expenses of $157.1 million during the previous year, total reported costs incurred during fiscal year 1996 or $148.5 million, reflects a 5.4 percent decrease in resources dedicated for this purpose. This decrease in costs in the operation and maintenance of advisory committees, when adjusted for inflation, continues a trend of more stable committee outlays over time. For example, from the period beginning in fiscal year 1993 to fiscal year 1995, reported costs increased by 3 percent but, when adjusted for inflation, actually decreased by 3.9 percent.

The number of advisory committees in existence at the end of fiscal year 1996, or 900 after terminations, reflects a 5.1 percent overall decrease below fiscal year 1995's net balance of 948. During the year, actions were taken to maintain the President's advisory committee limitation of 534. Consequently, 501 discretionary committees existed at the end of the reporting period, or 37 percent fewer than the total existing at the beginning of the Administration.

During the year, the Executive Branch supported a total of 526 discretionary advisory committees, including 51 groups which were terminated, with resulting savings of $2.5 million. In addition, 433 committees required by statute were also supported, at a total cost of $35.2 million 5,008 advisory committee meetings were held during fiscal year 1996. Of that number, 2,629, or 52.5 percent of the total, were open or partially open to the public. However, agencies such as the Departments of Defense, Health and Human Services, and the National Science Foundation must appropriately schedule a significant number of closed meetings. Excluding the meetings appropriately closed by these agencies, the remaining number of meetings accessible to the public is approximately 90 percent.

Appendix 1 provides a summary of specific performance information regarding advisory committee activities, authorities, and costs.

MANAGEMENT IMPROVEMENTS

During fiscal year 1997, the Secretariat developed and delivered a new Internet -based reporting system to assist Federal agencies in providing annual data required by FACA. The first module of the system is tailored to producing the Annual Report of the President on Federal Advisory Committees within the statutory deadlines imposed by FACA. It is a secure database with graduated access and approval features corresponding to the role of each individual in compiling required information. See Appendix 2 for sample pages representing the Secretariat's new Home Page and database module.

Additional modules will be added during fiscal year 1998 to allow Committee Management Officers, Designated Federal Officials, and support staff to add data contemporaneously on committee costs, meetings, and subcommittee activities. These features will eliminate the need to prepare all required materials at the end of the fiscal year and will, accordingly, reduce the time required to complete the President's Annual Report.

LEGISLATIVE INITIATIVES

Since 1990, several legislative initiatives seeking to amend FACA, including S. 444 (October 1990) and S. 2039 (November 1991), were introduced in the Senate. FACA's coverage was extended to advisory committees formed under the Alternative Dispute Resolution Act (P.L. 101-55~2) and the Negotiated Rulemaking Act (P.L. 101-646). In addition, P.L. 104-4, the "Unfounded Mandates Reform Act of 1995," contained an exclusion from FACA for advisory committees consisting of intergovernmental and tribal officials acting in their official capacities.

Mr. Chairman, the Subcommittee has requested our views regarding an amendment to FACA which would clarify the term "utilized," as used in section 3(2) of the Act. The proposed language, as originally drafted and commented upon by the Director of OMB on October 28, 1997, would clarify the circumstances under which the Act's provisions would (or would not) apply to advisory committees directly created by non-Federal entities. The proposed amendment provides:

"Strike everything in section 3(2) beginning with "except" and insert in lieu thereof:
except that such term excludes (i) any committee created by an entity other than an agency or officer of the Federal Government and not subject to actual management and control by such agencies or officers, and (ii) any committee composed wholly of full-time, or permanent part-time, employees of the Federal Government. The Administrator shall prescribe regulations for the purposes of this subsection'. "

The "actual management and control" test established by the amendment is consistent with current case law construing FACA's scope. (See Washington Local Found. v. United States Sentencing Commission, 17 F. 3d (D.C. Cir.1994), Food Chemical News v. Young, (900 F. 2d 328 (D.C. Cir.), cert. denied, 498 U.S. 846 (1990)). Addition of the proposed language to the statute would make clear, however, that the "actual management and control" test applies regardless of what entity creates the committees. The amendment would thus make clear that the same "actual management and control" test that is currently applied to committees created by private entities and by governmental bodies not covered by FACA (such as the Sentencing Commission) should also be applied to committees created by the National Academy of Sciences (NAS), the National Academy of Public Administration (NAPA), and similar organizations, regardless of whether they are deemed private or "quasi-public" institutions. The D.C. Circuit's recent decision in Animal Legal Defense Fund v. Shalala, 104 F. 3d 324 (D.C. Cir. 1997), which established separate definitions of "utilized" committees, depending on whether they are created by a "quasi-public" institution, would be overruled, and a single, harmonious, and consistent construction of FACA's scope would be adopted.

Adoption of the proposed language is also consistent with the long-recognized understanding that the phrase, "established or utilized," does not include committees created by entities under a contract, grant, or similar arrangement. (See Food Chemical News, supra.) The amendment would make clear that this same construction applies, regardless of whether the contracting entity is considered a private or "quasi-public" institution. The amendment would thus reaffirm that, regardless of the creating entity's private or "quasi-public" character, mere Federal funding of a committee's work through the use of a government contract and/or the subsequent use of a committee's work product by an agency do not constitute "actual management and control."

In our view, the proposed amendment would result in a clearer, more consistent, and more workable interpretation of FACA. Accordingly, GSA supports the proposed language as drafted.

We understand that the Subcommittee is currently considering alternative discussion drafts which would depart from the above language. The Administration would not oppose alternative approaches that would add "sunshine" provisions with respect to NAS or NAPA. The Administration would, however, oppose broader legislation that might affect other committees and issues. In short, we support reasonable alternatives to address the NAS situation, not alternatives that go beyond that specific problem. We would be pleased to offer our comments on these proposals during today's Hearing.

Mr. Chairman, Members of the Subcommittee, that concludes my prepared statement. I would be pleased to answer any questions you may have.