On June 14, 2019, President Donald Trump issued Executive Order (E.O.) 13875, "Evaluating and Improving the Utility of Federal Advisory Committees." The E.O. intends to evaluate, reduce, and limit the number of federal advisory committees (FACs) subject to the Federal Advisory Committee Act (FACA; 5 U.S.C. Appendix—Federal Advisory Committee Act; as amended), including statutory committees established by Congress. E.O. 13875 is similar to a previous E.O. issued by President William Clinton. Questions remain, however, about whether President Clinton's E.O. was effective in reducing the number of and costs associated with FACs and how the implementation and outcome of the recent E.O. may differ.
FACs provide a formal forum for members of the public to provide expertise, advice, and recommendations to the federal government on a variety of issues. FACs are often established to acquire new ideas from non-governmental experts, remove certain controversial topics from politically charged arenas, and reduce the workload of executive branch employees and Members of Congress. Many of the roughly 1,000 FACs are required to operate according to FACA requirements for open meetings, records access, and reporting requirements.
A FAC may be established in one of four ways: (1) required by statute, (2) authorized by statute, (3) under general agency authority, or (4) by presidential directive. Unlike a FAC that is statutorily required, a FAC authorized by statute may be created if an agency agrees that it is necessary. No statutorily required FAC may be terminated without congressional cooperation. The General Services Administration's (GSA) Committee Management Secretariat is responsible for all administrative matters relating to FACs.
In 1993, President Clinton issued E.O. 12838 to reduce the number of FACs. President Clinton ordered a one-third reduction of FACs established by presidential directive, under agency authority, or authorized by law. E.O. 12838 directed the Office of Management and Budget (OMB) and executive agencies to create detailed justifications for the continued existence of any such FACs or a brief recommendation for their termination.
If an agency wanted to create a new FAC for purposes of national security, health or safety, or other similar national interests, the agency was required to consult with and gain the approval of OMB.
OMB issued guidance on the implementation of this E.O. in Circular A-135, which affirmed that new FACs should be created sparingly and that the Administration would not support the statutory establishment of FACA-exempt FACs. It required each agency to annually report to GSA and OMB on efforts to maintain FAC limits. The circular required OMB to set FAC ceilings for each agency and work with agencies to develop legislation for Congress to terminate unnecessary statutory FACs.
In 1997, the Government Accountability Office (GAO) found that the overall number of FACs declined by one-third since 1993. The number of members per committee rose by an average of eight during the period, and committee costs rose by roughly $28,000 per committee in 1993 dollars. GAO suggested that increased costs and membership may have been the result of FAC mergers. According to contemporary annual reports on FACA issued by GSA, statutory FACs declined from 444 in FY1993 to 422 in FY1997.
E.O. 13875 combines much of the guidance contained in E.O. 12838 and Circular A-135, including the one-third reduction of non-statutorily required FACs and a rigorous review of proposed FACs. However, E.O. 13875 differs in the criteria to be used to assess FAC utility, how it exempts certain types of FACs and agencies, and the government-wide cap on the number of non-statutory FACs.
Significantly, E.O. 13875 applies to FACs that are created under agency authority and those authorized by statute. However, it does not apply to merit review panels, such as those at the National Institutes of Health, or FACs in independent regulatory agencies. By September 30, 2019, the order expects that at least one-third of these types of FACs will be terminated based on the following criteria:
It is unclear whether OMB or the agency will make the final termination decision. E.O. 13875 requires an agency to apply for a waiver from OMB to create a new FAC if the number of FACs authorized by statute or established under agency authority government-wide exceeds 350. An agency may receive a waiver if OMB determines that the FAC is necessary for the delivery of essential services or program efficacy or is otherwise warranted by the public interest. It is unclear if an agency that successfully reduces its own number of FACs would have to apply for a waiver if the government-wide reduction is not met.
Figure 1 below illustrates the number of active FACs subject to FACA by establishment authority from FY2008 to FY2017. The number of FACs has grown by 15.2% during that period.
Of 1,019 active FACs subject to FACA in FY2017, 542 (53.2%) were required by statute and are not immediately affected by E.O. 13875. An additional 433 FACs were either authorized by statute (181, or 17.7%) or created under agency authority (252, or 24.7%) and thus are conceivably affected by E.O. 13875. This number may include merit review panels or FACs at independent regulatory agencies, which appear to be excluded. Based on 2017 data, a one-third reduction in FAC authorized by statute or created under agency authority would mean no more than 289 such FACs and the termination of at least 144 FACs to be in compliance with E.O. 13875.
Figure 1. Number of Active Federal Advisory Committees Subject to FACA
Source: CRS analysis of information in the FACA Database at http://facadatabase.gov/.
Notes: CRS has not validated the accuracy and completeness of the information contained in the FACA Database. Data from FY2017 reflects the latest information publicly available from GSA.