A Comment on FACA

In the Summer 2008 number of Issues in Science and Technology there is a brief section (in From the Hill) titled "Bill introduced to close FACA 'loopholes'”. Citing concerns from the Congress that the advisory process has not been as open and unbiased as the Congress intends, the article states:

Testifying at the hearing, Sidney Shapiro, associate dean for research and development at the Wake Forest School of Law, cited several loopholes in FACA, which he argued allow the work of advisory committees to be completed in settings not subject to FACA regulations. He mentioned a “contractor loophole,” which allows agencies to hire private companies to organize advisory committees that are not subject to the FACA regulations; a “subcommittee loophole,” which allows agencies to divert the substantive committee work to subcommittees not subject to the regulations; and a “non-voting participant loophole,” which allows non–committee members to be involved in the work of the committee as long as they do not vote. FACA requires that members of federal advisory committees be designated as “special government employees” and thus be subject to official conflict of interest guidelines. Subcommittee members at the hearing expressed concerns about the last loophole, arguing that nonvoting members are able to strongly influence the work of committees without being subject to FACA regulations.

Comment: I thought a lot about scientific advice for some 20 years in which I worked for the U.S. Government and was responsible (among other functions) for obtaining scientific advice for my agency. I strongly agree that agencies need scientific advice that is as good as possible. Ideally it should be provided by disinterested scientists who are experts in the subject of interest, but sometimes it is all but impossible to find experts who have no interests in the issue for which advice is being sought. In those circumstances, it seems to me that one tries to get opinions from people with contrasting interests, and of course to be sure interests are declared so that they can be taken into account in considering the advice. I think a good scientific advisory committee always involves people who are not on the committee in its work, if you consider "involve" in a broad sense. There are always staff members from the Agency involved who provide information and assistance to the committee. When I used advisory committees I found it useful to have outsiders watching to provide feedback on possible problems in the process of the committee. Experts call upon their colleagues for informal advice. (A phone call is made: "I have a proposal that involves the use of method x. I have never used it, but I thought you told me that you had troubles with it two years ago. Remind me what they were......Do you think it would be a good idea to suggest a the proponent consider y as an alternative method?) It would be shooting the peer review process in the foot to install controls that would stop that kind of interaction. Indeed, good advisory committee meetings should be open. So you have an expert sitting in as an observer. I find it good practice to let the observers comment on the proceedings at an appropriate time. Even the "contractor loophole" should be considered carefully. Getting advice, as is the case in getting any kind of information, costs time, effort and money. Complying with FACA rules and regulations is actually quite costly, especially in terms of time. For important and complex policy issues, it is of course worthwhile to take the time and effort to use a transparent, open process to get the best possible advice. A contractor can often get outside advice faster and cheaper than can the government staff can through the FACA process. So there is a range of issues on which the the FACA process would be too slow or complicated to be used, but in which a contractor could provide timely and cost-effective advisory services. Do you really want a law that prevents a government agency from using such services? The result would be government agencies making decisions on a range of intermediate issues without advice that would generally improve the decision making. I would also mention that it is possible to use a civil society organization which would be likely to have very strong ethical controls to assure high quality, disinterested advice. The National Academies are prototypical of such organizations, but I also managed relationships with professional societies for such advice when I worked for the government. JAD