SCIENCE AND TECHNOLOGY APPOINTMENTS TO FEDERAL ADVISORY COMMITTEES

From the nation’s beginning, our leaders have recognized the importance of basing decisions on the best scientific and technical advice available. Today, the government continues to turn to the scientific and technical community for guidance on issues in which such expertise can improve decision making. Care and understanding are needed in requesting such advice and accommodating its limitations. Appendix G provides a decision maker’s guide to S&T advising with principles for policy decision makers to keep in mind as they work with the scientific and technical community.

According to the GSA Committee Management Secretariat, in 2004 there were 967 federal advisory committees. Half of them have a major scientific and technical component as measured by their charters or the numbers of scientists, engineers, and health professionals who are members.

Those committees come into existence for many reasons (such as congressional, presidential, and agency decisions), exist at many levels of government (such as presidential and low and high levels in an agency), have a wide variety of missions (such as review of research proposals, policy for the S&T enterprise, and use of scientific and technical advice to inform policy decisions), vary in the classification of their membership (such as representative, regular or special government employee, and consultant, whose status varies by agency), and vary in their time in existence (months, years, or decades). Their membership may be appointed by the President; by the secretary, administrator, or director of a federal agency; or by other senior executive staff.



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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments SCIENCE AND TECHNOLOGY APPOINTMENTS TO FEDERAL ADVISORY COMMITTEES From the nation’s beginning, our leaders have recognized the importance of basing decisions on the best scientific and technical advice available. Today, the government continues to turn to the scientific and technical community for guidance on issues in which such expertise can improve decision making. Care and understanding are needed in requesting such advice and accommodating its limitations. Appendix G provides a decision maker’s guide to S&T advising with principles for policy decision makers to keep in mind as they work with the scientific and technical community. According to the GSA Committee Management Secretariat, in 2004 there were 967 federal advisory committees. Half of them have a major scientific and technical component as measured by their charters or the numbers of scientists, engineers, and health professionals who are members. Those committees come into existence for many reasons (such as congressional, presidential, and agency decisions), exist at many levels of government (such as presidential and low and high levels in an agency), have a wide variety of missions (such as review of research proposals, policy for the S&T enterprise, and use of scientific and technical advice to inform policy decisions), vary in the classification of their membership (such as representative, regular or special government employee, and consultant, whose status varies by agency), and vary in their time in existence (months, years, or decades). Their membership may be appointed by the President; by the secretary, administrator, or director of a federal agency; or by other senior executive staff.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Federal advisory committees sometimes address a perennial issue facing an agency, such as review of grant proposals or new drug applications, or focus on a specific issue or particular scientific or technical problem facing the agency or the nation. In addition, several policy-oriented issues have substantial S&T components that require input and advice from the S&T community. Table 1 provides examples of the many types of federal advisory committees. These include Science for policy—S&T advice helps to provide guidance on a policy issue. Policy for science—S&T advice provides guidance on the direction that the S&T community itself should take in its research. Program evaluation or direction—S&T advice is used to evaluate or determine the direction of a federal S&T program. Proposal review—S&T community provides advice on the quality of a research proposal. Event-driven—S&T community provides advice on the effects or cause of a major event. Even the few examples provided in Table 1 illustrate that many issues in S&T and in public policy are unresolved or contentious. It is critical that all legitimate views can be heard, either through committee composition or through the advisory committee deliberative process. Scientists, engineers, and health professionals feel an obligation to serve on federal advisory committees that help to shape S&T policy. Such service provides the best scientific and technical information to policy makers and serves the S&T enterprise itself. And, for all the challenges that this approach presents, this uniquely American emphasis on public input has served our nation well. The use of advisory committees by the federal government is a critical aspect of participatory government. The depth and breadth of knowledge and expertise that these bodies provide to policy makers expand intellectual resources well beyond those

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments TABLE 1 Types of Scientific and Technical Federal Advisory Commitees, by Origin and Purpose ORIGIN   President Secretary/Independent Agency Administrator Congress Agency Executive PURPOSE         Science for policy DHHS President’s Council on Bioethics DOE Secretary of Energy Advisory Board EPA Clean Air Act Advisory Committee CDC/HRSA Advisory Committee on HIV and STD Prevention and Treatment Policy for science OSTP President’s Council of Advisers on Science and Technology DOD Defense Science Board DHS Science and Technical Advisory Committee NOAA Science Advisory Board Program evaluation and direction DOD President’s Information Technology Advisory Committee DOE High-Energy Physics Advisory Panel NRC Advisory Committee on Reactor Safeguards DOI Earth Observing System Land Processes Distributed Active Archive Center Science Advisory Panel Proposal review Architectural and Transportation Barriers Compliance Board’s Accessibility Guidelines for Outdoors Developed Areas Negotiated Rulemaking Advisory Committee NSF Advisory Panel for Integrative Activities USDA Collaborative Forest Restoration Program Advisory Panel NIH Genes, Genomes and Genetic Sciences Integrated Review Group Event-driven Presidential Commission on Space Shuttle Challenger Accident Columbia Accident Investigation Board National Commission on Terrorist Attacks Upon the United States (9/11 Commission) DOI Exxon Valdez Oil Spill Public Advisory Committee NOTE : CDC = Centers for Disease Control and Prevention DHHS = United States Department of Health and Human Services DHS = Department of Homeland Security DOD = US Department of Defense DOE = US Department of Energy DOI = US Department of the Interior EPA = Environmental Protection Agency HRSA = Health Resources and Services Administration NIH = National Institutes of Health (NIH) NOAA = National Oceanic and Atmospheric Administration NRC = Nuclear Regulatory Commission NSF = National Science Foundation OSTP = Office of Science and Technology Policy USDA = United States Department of Agriculture

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments which can reasonably be provided by federal employees, particularly in rapidly evolving S&T fields. Even though the work of such committees is advisory, federal agencies often adopt their recommendations. Thus, advisory committees can have substantial influence in key elements of public policy. As Congress noted on enactment of the Federal Advisory Committee Act (FACA), the “invitation to advise can by subtle steps confer the power to regulate and legislate.”1 Over the last 50 years science policy making and science advice giving have helped to shape and facilitate the world’s most ambitious and prestigious S&T enterprise and has assisted in numerous policy decisions that involved scientific or technical components. Our well-tested system of seeking independent advice should not be co-opted by those who seek to promote a foregone conclusion or advance a political agenda. Scientific and technical advice must be based on professional judgment and the best evidence available. The committee identified three mechanisms where reform or illumination could improve the federal advisory committee appointment process: adhering to an appropriate set of criteria in the selection process, clarifying and making more public the appointment process itself, and ensuring that the federal administrative units responsible for committee appointments are sufficiently staffed, trained, and expert in the process. Select Committee Members on the Basis of Relevant Criteria FACA2 clearly requires that committees be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee”3 (emphasis added) and that 1   S. Rep. No. 1098, 92nd Cong., 2nd Sess. 13 (1972). 2   See Appendix F for more details. 3   5 U.S.C. Appendix §§ 5(b)(2).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments there be some assurance “that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.”4 When a federal advisory committee requires scientific or technical proficiency, persons nominated to provide that expertise should be selected on the basis of their scientific and technical knowledge and credentials and their professional and personal integrity. It is inappropriate to ask them to provide nonrelevant information, such as voting record, political-party affiliation, or position on particular policies. S&T issues frequently pose ethical and societal questions that may require regulation or policy solutions, and many critical policy choices in national security, the environment, the economy, agriculture, energy, and health depend on a deep understanding of S&T. Many factors—including societal values, economic costs, and political judgments—come together with technical judgments in the process of reaching advisory committee recommendations. Essential viewpoints needed for appropriate committee balance and scope should be represented by accomplished people in that policy arena, but scientists, engineers, and health professionals nominated primarily to provide S&T input should be selected for their scientific and technical knowledge and credentials and for their professional and personal integrity. Achieving a balance of policy perspectives may be appropriate for those placed on committees for their policy insights, but it is not a relevant criterion for selecting members whose purpose is to provide scientific and technical expertise. Therefore, it is no 4   5 U.S.C. Appendix §§ 5(b)(3).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments more appropriate to ask S&T experts to provide nonrelevant information, such as hair color or height, than to ask them for other personal and immaterial information, such as voting record, political-party affiliation, or position on a particular policy. This type of information has no relevance in discussions related to S&T. Furthermore, even for committee members selected for reasons unrelated to expertise, political-party affiliation and voting record do not necessarily predict positions on particular policies and should not be used as a means to balance committee perspectives. In fact, an October 18, 2004, assessment published by the Government Accountability Office (GAO) concluded that a number of provisions in federal personnel law prohibit agencies from discriminating against employees or applicants for employment on the basis of political affiliation. GAO noted that whether these provisions apply to a particular advisory committee candidate depends on the candidate’s federal employment status (or what it would be if selected). In addition, regardless of a person’s employment status, there are a number of statutory provisions that specifically prohibit the consideration of political affiliation when selecting members for certain designated federal advisory committees. For example, GAO noted that political affiliation may not be considered when appointing people to an advisory committee established under the Public Health Service Act (42 U.S.C. Section 217a-1).5 Finally, although most people are likely to form opinions on S&T issues with which they are experienced and familiar, excluding S&T experts from serving on advisory committees solely on the grounds that their opinions are known is inappropriate and could leave the federal advisory committee system devoid of qualified candidates. The government would be better served by a policy in which the best scientists, engineers, and health profession- 5   GAO, Legal Principles Applicable to Selection of Federal Advisory Committee Members, B-303767, Oct. 18, 2004 (available at http://www.gao.gov/decisions/other/303767.htm).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments als are selected because of their expertise with their opinions disclosed to staff and other committee members in closed session than by a policy that excludes them because of their presumed opinions on S&T issues. Disclosing perspectives, relevant experiences, and possible biases serves two important purposes: it provides a context in which committees can assess and consider the views of individual committee members, and it provides an opportunity to balance strong opinions or perspectives through the appointment of additional committee members. The National Academies uses such a policy: people asked to serve on committees are obliged to reveal any relevant opinions that they have so that others on the committee can discount or ignore their advice on a given subject. That approach promotes the inclusion of people who potentially can make important contributions to the work at hand. It does not, however, preclude or super-sede guarding against appointing people who have conflicts of interest—a separate but equally important concern. If members of the S&T community—most of whom serve as volunteers and do so in the belief that their counsel will be heard—perceive that the process of soliciting advice has become politicized, it will become increasingly difficult to find appropriately qualified people willing to serve and to maintain the integrity of the process. Clarify the Advisory Committee Appointment Process and Make Its Outcome Public Despite the importance of advisory committees to S&T policy and national policies in general, many members of the scientific and technical communities are unaware of or misinformed about the processes used to create such committees or to appoint or nominate people to serve on them. As a result, they sometimes feel shut out of a process that can result in decisions that affect the nation. Equally important, the pool of potential candidates is

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments unnecessarily restricted by the inadequacy of publicity about opportunities for service. To draw from a wide and diverse base for committee appointments and to ensure balance in the resulting committee makeup, it is essential to make information about the committee creation and nomination process public. According to GAO, access to information about specific committees in the GSA performance database is too limited across the board.6 Furthermore, GAO found that only 25 percent of committees had a Web site and only 60 percent of federal agencies had Web sites where information about their advisory committees is posted. One federal agency (the EPA Science Advisory Board) provides information on its Web site on the method and selection criteria related to its advisory committees and places Federal Register notices requesting nominations for a particular committee and later describing how a particular committee was formed. It also posts biographic and some general financial information (such as sources of research support) on a committee’s membership before the committee’s initial meeting, timely announcements of the committee’s meeting agenda, and followup on a short-term basis with the minutes of committee meetings’ open sessions (although the latter is required by FACA, timeliness is not enforced). Procedural mechanisms of this type should be in place for all federal advisory committees. Another aspect of the appointment process requires reconsideration. People are appointed under different authorities or mechanisms. For example, current OGE limitations require some agencies to appoint all members as “representatives,” that is, as individuals who are expected to reflect the views of the group they are representing. Those individuals, who clearly have a vested interest in agency decisions, are not required to disclose financial information or potential conflicts of interest. In contrast, advisory 6   GAO, 2004.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments committee members can also be appointed as “Regular Government Employees” (RGEs) or “Special Government Employees” (SGEs). SGEs must meet one or more of the following criteria: they are appointed by the government officials whom they advise rather than nominated by an outside association, they respond to an agenda set by the government, and some receive compensation for their services. They must disclose financial conflicts of interest and are subject to severe criminal penalties for advising the government on matters in which they, their family members, their company, or their institution may be found to have a particular interest. A fourth category of people serving on federal agency committees is “Consultant.” Consultants serve for only one committee meeting under agency conflict-of-interest rules or possibly several committee meetings under OGE conflict-of-interest rules when designated as SGEs. A primary example of this category is people providing scientific and technical expertise to National Institutes of Health (NIH) special-emphasis panels, which conduct one-time reviews of research proposals. People serving on those panels do not complete OGE conflict-of-interest forms, but they do disclose relevant information to NIH—a far lighter burden on the committee members than for SGEs. EPA and FDA also use consultants on an adhoc basis to supplement the expertise on their standing committees, but they are appointed as SGEs and use OGE conflict-of-interest forms that can be used for one or more meetings. The consequences of the manner in which an advisory committee is appointed are twofold: first, they can influence a person’s willingness to serve on the basis of the level of financial and other information that must be disclosed; and second, they have implications for an agency’s ability to appoint a less-than-balanced committee. Potential committee members should be made aware of the disclosure requirements tied to committee service, understand why disclosure of the information is necessary, and expect consistent and less confusing procedural requirements than is currently the case.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Presidential administrations should make the process for nominating and appointing people to advisory committees more explicit and visible and should examine current federal advisory committee appointment categories to see whether they are sufficient to meet the nation’s needs. Administration officials should broadly announce the intent to create an advisory committee or appoint new members to an existing committee and should provide an opportunity for relevant and interested parties to suggest nominees A model for this process is that used by the EPA Science Advisory Board, which provides information on its Web site on the method and selection criteria used to select the members of its advisory committees. In addition, EPA places Federal Register notices requesting nominations for a particular committee, provides forms on its Web site so nominations can be easily suggested, and later describes how a particular committee was formed. It then publishes on its Web site biographic and some general financial information (such as sources of research support) on a committee’s membership before the committee’s initial meeting. EPA also provides timely announcements of the committee’s meeting agenda and minutes of committee meetings’ open sessions shortly after it meets. Although the latter is required by the FACA, timeliness is not enforced, so many committees do not produce minutes or their minutes are not timely. Procedural mechanisms of this type should be in place for all federal advisory committees. Efforts are needed to clarify and identify the conflict-of-interest principles that will be applied to committee membership. As a first step toward public disclosure, the General Services Administration should post on its Web site and elsewhere the appointment status of appointees—that is, whether a committee member is to be classified as a Special Government Employee

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments (SGE), a Regular Government Employee (RGE), a Consultant, or a Representative and information on the conflict-of-interest procedures for each, because there can be great variance among them. As a second step, the appointment classification should be re-examined to see whether it meets the needs of federal agencies’ activities. Of particular concern is the classification of committee members who review research proposals or provide direction on federal research programs. Care needs to be taken to ensure that the best scientists, engineers, and health professionals are willing to serve on such committees and to ensure that conflict-of-interest requirements are neither too burdensome nor too lenient. Improve the Advisory Committee Appointment Process in the Bureaucracy The Committee Management Secretariat (CMS) was created in 1972 under FACA to monitor and report on executive branch compliance with FACA. Besides providing annual reports on federal advisory committees, CMS operates a nonmandatory training program for staff members in all federal agencies in the nuances of FACA. Federal agency staff may consult with the secretariat before forming an advisory committee to ensure that they are following appropriate regulations and procedures or for legal consultation. Informal discussions regarding GSA’s CMS have indicated that GSA has done a good job over the years in providing information and guidance on federal advisory committees. In addition to CMS, each agency that relies on a committee system maintains an office dedicated to the process. Because of the complex mandates assigned to many committees and the highly technical nature of their work, it is critical that agency committee-management staff understand the mission of the agency and the tasks assigned to the advisory committee and are able to recognize and identify people who meet the criteria described above.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments To build confidence in the advisory committee system and increase the willingness of scientists and engineers to serve, department and agency heads should establish an appointment process supported by explicit policies and procedures and hold staff accountable for its implementation. Staff who process advisory committee membership nominations and who manage advisory committee operations should be properly trained senior employees familiar with the importance and nuances of the advisory committee process, including a clear understanding of the appropriateness of the questions that candidates should and should not be asked. In its discussions with experts on the current status of the committee-management system, the present committee found that the GS level of the staff who process committee-nomination packages for the secretary or administrator of an agency has been decreasing. In the past, those positions were at the highest career levels (SES or GS-15); that is not true today. Not only are those in the positions at a lower GS level but some positions have been switched from civil-service to political appointments. Anecdotal evidence indicates that this situation may have led to some of the recent concerns regarding S&T appointments to federal advisory committees. The committee believes that improving the status and training of those who manage the appointment process for an agency executive could reduce some of the concerns regarding the screening process for S&T appointees to federal advisory committees.