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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration SCIENCE AND TECHNOLOGY APPOINTMENTS TO FEDERAL ADVISORY COMMITTEES For much of our nation’s history, 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 S&T 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. According to the GSA Committee Management Secretariat, in 2008 there were more than 1,000 federal advisory committees. Half of them have a major S&T component as measured by their charters or the numbers of scientists, engineers, and health professionals who are members. These committees come into existence for many reasons (e.g., congressional, presidential, and agency decisions), exist at many levels of government (such as presidential and low or high levels in an agency), have a wide variety of missions (e.g., review of research proposals, policy for the S&T enterprise, and use of S&T advice to inform policy decisions), vary in the classification of their membership (e.g., 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 agency head; or by other senior executive staff. 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,
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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration 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, including the following: 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 establishing priorities and long-term goals. 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 public policy are unresolved or contentious. It is important that all legitimate views can be heard, either through committee composition or through the advisory committee deliberative process. Scientists, engineers, and health professionals recognize the need to serve pro bono 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. Also, for all of the challenges that this approach presents, this uniquely American emphasis on voluntary, 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 that can reasonably be provided by federal employees, particularly in rapidly evolving S&T fields. Even though the
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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration TABLE 1 Examples of Scientific and Technical Federal Advisory Commitees, by Origin and Purpose ORIGIN PURPOSE President Secretary/Independent Agency Administrator Congress Agency Executive Science for policy President’s Council on Bioethics EPA Science Advisory Board EPA Clean Air Act Advisory Committee CDC/HRSA Advisory Committee on HIV and STD Prevention and Treatment Policy for science National Science Board DOD Defense Science Board DHS Science and Technology Advisory Committee NOAA Science Advisory Board Program evaluation or direction President’s Council of Advisors on Science and Technology DOE National Petroleum Council NRC Advisory Committee on Reactor Safeguards DOI Land Processes DAAC Science Advisory Panel Proposal review Architectural and Transportation Barriers Compliance Board’s 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 DOI Exxon Valdez Oil Spill Public Advisory Committee Note: CDC = Centers for Disease Control and Prevention DAAC = Distributed Active Archive Center DOD = U.S. Department of Defense DOE = U.S. Department of Energy DHHS = U.S. Department of Health and Human Services DHS = Department of Homeland Security DOI = U.S. Department of the Interior EPA = Environmental Protection Agency HRSA = Health Resources and Services Administration NIH = National Institutes of Health (NIH) which is within DHHS NOAA = National Oceanic and Atmospheric Administration NRC = U.S. Nuclear Regulatory Commission NSF = National Science Foundation OSTP = White House Office of Science and Technology Policy USDA = United States Department of Agriculture
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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration work of such committees is advisory, federal agencies often adopt their recommendations. Thus, advisory committees have substantial influence on 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 The committee identified three mechanisms by which reform or transparency could improve the federal advisory committee appointment process: (1) adhering to an appropriate set of criteria in the selection process, (2) clarifying and making more public the appointment process itself, and (3) ensuring that the agency units responsible for committee appointments are sufficiently staffed, trained, and expert in the process. FACA 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”2 (emphasis added) and that 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.”3 S&T issues sometimes generate separate 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 1 S. Rep. No. 1098, 92nd Cong., 2nd Sess. 13 (1972). 2 5 U.S.C. Appendix §§ 5(b)(2). 3 5 U.S.C. Appendix §§ 5(b)(3).
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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration should be selected for their scientific and technical knowledge and credentials in their areas of focus 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 more appropriate to ask S&T experts to provide information, such as voting record, political party affiliation, or position on a particular policy, than to ask them for other personal and immaterial information, such as religious preference. A 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 these provisions can apply to advisory committee candidates appointed to particular categories of federal employment. 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).4 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 4 Government Accountability Office. 2004. Legal Principles Applicable to Selection of Federal Advisory Committee Members, B-303767. Accessed October 18. (Available at http://www.gao.gov/decisions/other/303767.htm)tp://www.gao.gov/decisions/other/303767.htm).
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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration policy in which the best scientists, engineers, and health professionals are selected because of their expertise with their opinions publicly disclosed than by a policy that excludes them because of their presumed opinions on S&T issues. Given the importance of advisory committees to S&T policy and national policies in general, members of the scientific and technical communities need to be aware of the processes used to create such committees or to appoint or nominate people to serve on them. The pool of potential candidates needs to be as expansive as possible to encourage qualified experts to consider 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 processes public. According to the GAO, access to information about specific committees in the GSA performance database is too limited across the board.5 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. The practice of open nominations varies across agencies and even within agencies. At the Department of Commerce, for example, there is no provision on the public web page of the Advisory Committee for Commercial Remote Sensing for nominations from the public, whereas the Census Advisory Committees in the same department are clearly open to public participation in the nomination process. The authors of this report believe that the Environmental Protection Agency (EPA) Science Advisory Board has a model Web site, with regard to the method and selection criteria of the board and related committees, Federal Register notices requesting nominations for a particular committee, and later descriptions of 5 GAO, Testimony of Robin M. Nazzaro, House of Representatives, Committee on Oversight and Government Relations, GAO-08-611T, April 2008.
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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration how a particular committee was formed. It also posts biographical 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 follow-up on a short-term basis with the minutes of open sessions of committee meetings. Procedural mechanisms of this type should be in place for all federal advisory committees. The categories of appointments to advisory committees also require careful consideration. People are appointed under different authorities or mechanisms. For example, current Office of Government Ethics 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 represent. These 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 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 companies, or their institutions are found to have a particular interest. A fourth category of people serving on federal advisory 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 these panels do
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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration 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 the Food and Drug Administration (FDA) also use consultants on an ad hoc 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: (1) it can influence a person’s willingness to serve on the basis of the level of financial and other information that must be disclosed; and (2) it has 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 such information is important to public trust in the process, and expect consistent and less confusing procedural requirements than are currently prevalent. 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. Efforts are needed to clarify and identify the conflict-of-interest principles that will apply to committee membership. As a first step toward public disclosure, the General Services Administration should post on its Web site and elsewhere the categorizations of appointments—that is, whether a committee member is to be classified as an SGE, an 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 reexamined 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
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Science and Technology for America’s Progress: Ensuring the Best Presidential Appointments in the New Administration 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. The Committee Management Secretariat (CMS) was created in 1972 under FACA to monitor and report on executive branch compliance with the Federal Advisory Committee Act. Besides providing annual reports on federal advisory committees, the secretariat 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 Secretariat have indicated that GSA has done a good job over the years in providing information and guidance on federal advisory committees. In addition to the Secretariat, 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, agency committee-management staff needs to understand the mission of the agency and the tasks assigned to the advisory committee, and to be able to recognize and identify people who meet the criteria described above. The President should ensure that his administration makes the process for nominating and appointing people to advisory committees explicit and transparent. The administration should examine current federal advisory committee appointment categories to see that they are appropriate to meet the nation’s needs. When a federal advisory committee requires members with scientific or technical proficiency, persons nominated to provide that expertise should be selected solely on the basis of their scientific and technical knowledge and credentials and their professional and personal integrity.
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