House Report 110-650 - FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2008

[House Report 110-650]
[From the U.S. Government Publishing Office]

110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-650

======================================================================

FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2008

_______

May 15, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Waxman, from the Committee on Oversight and Government Reform,
submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany H.R. 5687]

[Including cost estimate of the Congressional Budget Office]

The Committee on Oversight and Government Reform, to whom was
referred the bill (H.R. 5687) to amend the Federal Advisory
Committee Act to increase the transparency and accountability
of Federal advisory committees, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.

CONTENTS

Page
Purpose and Summary.............................................. 5
Background and Need for Legislation.............................. 5
Legislative History.............................................. 6
Section-by-Section............................................... 7
Explanation of Amendments........................................ 10
Committee Consideration.......................................... 11
Roll Call Votes.................................................. 11
Application of Law to the Legislative Branch..................... 11
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 11
Statement of General Performance Goals and Objectives............ 11
Constitutional Authority Statement............................... 11
Federal Advisory Committee Act................................... 11
Unfunded Mandate Statement....................................... 11
Earmark Identification........................................... 12
Committee Estimate............................................... 12
Budget Authority and Congressional Budget Office Cost Estimate... 12
Changes in Existing Law Made by the Bill, as Reported............ 14
The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Federal Advisory
Committee Act Amendments of 2008''.
(b) Table of Contents.--The table of contents for this Act is as
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Ensuring independent advice and expertise.
Sec. 3. Preventing efforts to circumvent the Federal Advisory Committee
Act and public disclosure.
Sec. 4. Increasing transparency of advisory committees.
Sec. 5. Comptroller General review and reports.
Sec. 6. Definitions.
Sec. 7. Effective date.

SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE.

(a) Bar on Political Litmus Tests.--Section 9 of the Federal Advisory
Committee Act (5 U.S.C. App.) is amended--
(1) in the section heading by inserting ``membership;'' after
``advisory committees;'';
(2) by redesignating subsections (b) and (c) as subsections
(d) and (e), respectively; and
(3) by inserting after subsection (a) the following:
``(b) Appointments Made Without Regard to Political Affiliation or
Activity.--All appointments to advisory committees shall be made
without regard to political affiliation or political activity, unless
required by Federal statute.''.
(b) Conflicts of Interest Disclosure.--Section 9 of the Federal
Advisory Committee Act (5 U.S.C. App.) is further amended by inserting
after subsection (b) (as added by subsection (a)) the following:
``(c) Conflicts of Interest Disclosure.--
``(1) The head of each agency shall ensure that no individual
appointed to serve on an advisory committee that reports to the
agency has a conflict of interest that is relevant to the
functions to be performed by the advisory committee, unless the
head of the agency determines that the conflict is unavoidable
and that the need for the individual's services outweighs the
potential impacts of the conflict of interest. The head of each
agency shall require that each individual the agency appoints
or intends to appoint to serve on an advisory committee inform
the agency official responsible for appointing the individual
of any actual or potential conflict of interest the individual
has that is relevant to the functions to be performed and that,
for an individual appointed to serve on an advisory committee,
the conflict is publicly disclosed as described in section 11.
``(2) The head of each agency shall ensure that each report
of an advisory committee that reports to the agency is the
result of the advisory committee's judgment, independent from
the agency. Each advisory committee shall include in each
report of the committee a statement describing the process used
by the advisory committee in formulating the recommendations or
conclusions contained in the report.''.
(c) Regulations.--
(1) Regulations relating to conflicts of interest.--Not later
than 180 days after the date of the enactment of this Act, the
Director of the Office of Government Ethics, in consultation
with the Administrator of General Services, shall promulgate
regulations defining conflict of interest and such other
regulations as the Director finds necessary to carry out and
ensure the enforcement of subsection (c) of section 9 of the
Federal Advisory Committee Act, as added by this section.
(2) Regulations implementing faca.--Section 7(c) of the
Federal Advisory Committee Act (5 U.S.C. App.) is amended by
inserting after ``(c)'' the following: ``The Administrator
shall promulgate regulations as necessary to implement this
Act.''.

SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FEDERAL ADVISORY COMMITTEE
ACT AND PUBLIC DISCLOSURE.

(a) De Facto Members.--Section 4 of the Federal Advisory Committee
Act (5 U.S.C. App.) is amended by adding at the end the following:
``(d) Treatment of Individual as Member.--An individual who is not a
full-time or permanent part-time officer or employee of the Federal
Government shall be regarded as a member of a committee if the
individual regularly attends and participates in committee meetings as
if the individual were a member, even if the individual does not have
the right to vote or veto the advice or recommendations of the advisory
committee.''.
(b) Interagency Advisory Committees.--Section 11 of the Federal
Advisory Committee Act (5 U.S.C. App.) is amended by adding at the end
the following:
``(f) Interagency Advisory Committees.--(1) Any communication
between--
``(A) an interagency advisory committee established by the
President or the Vice President or any member or staff acting
on behalf of such an interagency advisory committee, and
``(B) any person who is not an officer or employee of the
Federal Government,
shall be made available for public inspection and copying. Any portion
of a communication that involves a matter described in section 552(b)
of title 5, United States Code, or that is subject to a valid
constitutionally based privilege against such disclosure, may be
withheld from public disclosure.
``(2) In this subsection, the term `interagency advisory committee'
means any committee, board, commission, council, conference, panel,
task force, or other similar group, or any subcommittee or other
subgroup thereof, established in the interest of obtaining advice or
recommendations for the President or the Vice President, that is
composed wholly of full-time, or permanent part-time, officers or
employees of the Federal Government and includes officers or employees
of at least two separate Federal agencies but does not include an
advisory committee as defined in section 3(2) of this Act.
``(3) This subsection is not intended to apply to cabinet meetings,
the National Security Council, the Council of Economic Advisors, or any
other permanent advisory body established by statute.''.
(c) Subcommittees.--Section 4 of the Federal Advisory Committee Act
(5 U.S.C. App.) is amended by striking subsection (a) and inserting the
following:
``(a) Application.--The provisions of this Act or of any rule, order,
or regulation promulgated under this Act shall apply to each advisory
committee, including any subcommittee or subgroup thereof, except to
the extent that any Act of Congress establishing any such advisory
committee specifically provides otherwise. Any subcommittee or subgroup
that reports to a parent committee established under section 9(a) is
not required to comply with section 9(e). In this subsection, the term
`subgroup' includes any working group, task force, or other entity
formed for the purpose of assisting the committee or any subcommittee
of the committee in its work.''.
(d) Committees Created Under Contract.--Section 3(2) of the Federal
Advisory Committee Act (5 U.S.C. App.) is amended in the matter
following subparagraph (C) by adding at the end the following: ``An
advisory committee is considered to be established by an agency,
agencies, or the President, if it is formed, created, or organized
under contract, other transactional authority, cooperative agreement,
grant, or otherwise at the request or direction of, an agency,
agencies, or the President.''.
(e) Advisory Committees Containing Special Government Employees.--
Section 4 of the Federal Advisory Committee Act (5 U.S.C. App.) is
further amended by adding at the end the following new subsection:
``(e) Special Government Employees.--Committee members appointed as
special government employees shall not be considered full-time or part-
time officers or employees of the Federal Government for purposes of
determining the applicability of this Act under section 3(2).''.

SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COMMITTEES.

(a) Information Requirement.--Section 11 of the Federal Advisory
Committee Act (5 U.S.C. App.) is amended--
(1) by striking the section designation and heading and
inserting the following:

``SEC. 11. DISCLOSURE OF INFORMATION.'';

(2) by redesignating subsection (a) as subsection (d) and in
that subsection--
(A) by inserting the following subsection heading:
``Availability of Paper Copies of Transcripts.--''; and
(B) by inserting after ``duplication,'' the
following: ``paper'';
(3) by striking ``(b)'' and inserting ``(e) Agency Proceeding
Defined.--''; and
(4) by inserting before subsection (d), as redesignated by
paragraph (2), the following new subsections:
``(a) In General.--With respect to each advisory committee, the head
of the agency to which the advisory committee reports shall make
publicly available in accordance with subsection (b) the following
information:
``(1) The charter of the advisory committee.
``(2) A description of the process used to establish and
appoint the members of the advisory committee, including the
following:
``(A) The process for identifying prospective
members.
``(B) The process of selecting members for balance of
viewpoints or expertise.
``(C) A justification of the need for representative
members, if any.
``(3) A list of all current members, including, for each
member, the following:
``(A) The name of any person or entity that nominated
the member.
``(B) The reason the member was appointed to the
committee.
``(C) Whether the member is designated as a special
government employee or a representative.
``(D) In the case of a representative, the
individuals or entity whose viewpoint the member
represents.
``(E) Any conflict of interest relevant to the
functions to be performed by the committee.
``(4) A list of all members designated as special government
employees for whom written certifications were made under
section 208(b) of title 18, United States Code, a summary
description of the conflict necessitating the certification,
and the reason for granting the certification.
``(5) A summary of the process used by the advisory committee
for making decisions.
``(6) Transcripts or audio or video recordings of all
meetings of the committee.
``(7) Any written determination by the President or the head
of the agency to which the advisory committee reports, pursuant
to section 10(d), to close a meeting or any portion of a
meeting and the reasons for such determination.
``(8) Notices of future meetings of the committee.
``(9) Any additional information considered relevant by the
head of the agency to which the advisory committee reports.
``(b) Manner of Disclosure.--
``(1) Except as provided in paragraph (2), the head of an
agency shall make the information required to be disclosed
under this section available electronically on the official
public internet site of the agency at least 15 calendar days
before each meeting of an advisory committee. If the head of
the agency determines that such timing is not practicable for
any required information, he shall make the information
available as soon as practicable but no later than 48 hours
before the next meeting of the committee.
``(2) The head of an agency shall make available
electronically, on the official public internet site of the
agency, a transcript or audio or video recording of each
advisory committee meeting not later than 7 calendar days after
the meeting.
``(c) Provision of Information by Administrator of General
Services.--The Administrator of General Services shall provide, on the
official public internet site of the General Services Administration,
electronic access to the information made available by each agency
under this section.''.
(b) Charter Filing.--Section 9(e) of the Federal Advisory Committee
Act (5 U.S.C. App.), as redesignated by section 2, is amended--
(1) by striking ``with (1) the Administrator,'' and all that
follows through ``, or'' and inserting ``(1) with the
Administrator and'';
(2) by striking ``and'' at the end of subparagraph (I);
(3) by striking the period and inserting a semicolon at the
end of subparagraph (J); and
(4) by adding at the end the following new subparagraphs:
``(K) the authority under which the committee is established;
``(L) the estimated number of members and a description of
the expertise needed to carry out the objectives of the
committee;
``(M) a description of whether the committee will be composed
of special government employees, representatives, or members
from both categories; and
``(N) whether the committee has the authority to create
subcommittees and if so, the individual authorized to exercise
such authority.''.

SEC. 5. COMPTROLLER GENERAL REVIEW AND REPORTS.

(a) Review.--The Comptroller General of the United States shall
review compliance by agencies with the Federal Advisory Committee Act,
as amended by this Act, including whether agencies are appropriately
appointing advisory committee members as either special government
employees or representatives.
(b) Report.--The Comptroller General shall submit to the committees
described in subsection (c) two reports on the results of the review,
as follows:
(1) The first report shall be submitted not later than one
year after the date of promulgation of regulations under
section 2.
(2) The second report shall be submitted not later than five
years after such date of promulgation of regulations.
(c) Committees.--The committees described in this subsection are the
Committee on Oversight and Government Reform of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs of the Senate.

SEC. 6. DEFINITIONS.

Section 3 of the Federal Advisory Committee Act (5 U.S.C. App.) is
amended by adding at the end the following new paragraphs:
``(5) The term `representative' means an individual who is
not a full-time or part-time employee of the Federal Government
and who is appointed to an advisory committee to represent the
views of an entity or entities outside the Federal Government.
``(6) The term `special Government employee' has the same
meaning as in section 202(a) of title 18, United States
Code.''.

SEC. 7. EFFECTIVE DATE.

This Act shall take effect 30 days after the date of the enactment of
this Act, except as otherwise provided in section 2(c)(1).

Purpose and Summary

H.R. 5687, the Federal Advisory Committee Act Amendments of
2008, was introduced on April 3, 2008, by Reps. Wm. Lacy Clay
and Henry A. Waxman. H.R. 5687 would strengthen the Federal
Advisory Committee Act (FACA) and close loopholes that have
developed in the implementation of the Act.

Background and Need for Legislation

FACA was enacted in 1972 in response to concerns that
federal advisory committees were becoming increasingly common
but had little oversight or accountability. FACA was aimed at
making federal advisory committees more accountable,
transparent, balanced, and independent from the influence of
special interests. Advisory committees play a critical role in
giving the president and agencies advice on complex issues such
as reducing chemical and biological threats, drinking water
standards, and how to reduce infant mortality. According to the
General Services Administration (GSA), there were more than 900
advisory committees in 2007 with over 65,000 members.
Agencies have not consistently implemented FACA in a way
that ensures that advisory committees are appropriately
transparent and balanced. As documented in a staff report,
there is evidence that appointments to scientific advisory
boards have been based on the political views of a potential
appointee rather than the candidate's scientific expertise.\1\
H.R. 5687 prohibits the selection of a committee member based
on the member's political affiliation or activity.
---------------------------------------------------------------------------
\1\Committee on Government Reform, Special Investigations Division,
U.S. House of Representatives, Politics and Science in the Bush
Administration (Aug. 2003) (online at http://oversight.house.gov/
documents/20080130103545.pdf).
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The independence of advisory committees has been impaired
by conflicts of interest. To address this issue, the bill
requires agencies to obtain disclosures of relevant conflicts
of interest from all prospective committee members and
prohibits agencies from appointing an individual with a
relevant conflict of interest unless the conflict is
unavoidable and the need for the individual's services
outweighs the potential impacts of the conflict. The bill also
requires agencies to publicly disclose the conflicts of members
appointed to advisory committees.
The courts have created loopholes in FACA that undermine
the purposes of the Act. One loophole in FACA created by the
courts is a retreat from the de facto membership doctrine.
Under FACA, a committee made up exclusively of federal
government employees is not considered an ``advisory
committee'' for purposes of the Act. The D.C. Circuit Court of
Appeals held in Ass'n of American Physicians & Surgeons, Inc.
v. Clinton that even if a committee is formally made up only of
federal employees, if a private citizen regularly attends and
participates in a committee as if he were a member that person
is considered a member and the committee must comply with
FACA.\2\ Then in In re Cheney, the D.C. Circuit Court of
Appeals moved away from the de facto membership doctrine by
holding that an individual can be considered a member of an
advisory committee only if the individual has a vote or veto
over the committee's decisions.\3\ H.R. 5687 clarifies that a
participant who is not a federal government employee is
considered a member of a committee if he regularly attends and
participates in committee meetings as if he were a member, even
if he cannot vote.
---------------------------------------------------------------------------
\2\Ass'n of American Physicians and Surgeons, Inc. v. Clinton, 997
F.2d 898, 915 (D.C. Cir. 1993).
\3\In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005).
---------------------------------------------------------------------------
In Food Chemical News v. Young,\4\ the D.C. Circuit Court
of Appeals created another loophole in FACA under which the
requirements of FACA do not apply to committees set up by
contractors. H.R. 5687 closes this loophole by clarifying that
an advisory committee is considered to be established by an
agency or the president if it is formed under contract at the
request or direction of an agency or the president.
---------------------------------------------------------------------------
\4\Food Chem. News v. Young, 900 F.2d 328 (D.C. Cir. 1990).
---------------------------------------------------------------------------
The bill also clarifies that subcommittees and task forces
set up by advisory committees are required to comply with FACA.
In 2001, GSA changed its regulations to say that subcommittees
do not have to comply with FACA. Under this 2001 change, an
advisory committee can avoid the open meeting and disclosure
requirements of FACA by conducting its business through
subcommittees.
Another problem addressed by the bill is the lack of
transparency in interagency advisory committees. These
committees are not subject to FACA if they are composed only of
federal employees. This bill addresses concerns with the growth
of secrecy in the executive branch by providing that White
House task forces must disclose whom they meet with and what
recommendations they receive from special interests.

Legislative History

H.R. 5687 was introduced on April 3, 2008, and referred to
the Committee on Oversight and Government Reform. A draft of
the bill was discussed at a meeting of the Subcommittee on
Information Policy, Census, and National Archives on April 2,
2008. The Committee considered H.R. 5687 on April 9, 2008, and
ordered H.R. 5687 to be reported, as amended, by a voice vote.

Section-by-Section

Section 1. Short title

Subsection (a) provides that the short title of H.R. 5687
is the ``Federal Advisory Committee Act Amendments of 2008.''
Subsection (b) provides a table of contents.

Section 2. Ensuring independent advice and expertise

Subsection (a) requires that appointments to advisory
committees be made without regard to political affiliation or
political activity, unless such consideration is required by
federal statute.
Subsection (b) requires agencies to obtain disclosures from
prospective committee members of actual or potential conflicts
of interest that may be relevant to the functions the advisory
committee will perform. This subsection prohibits agencies from
appointing an advisory committee member who has a relevant
conflict unless the head of the agency determines that the
conflict is unavoidable and that the need for the individual's
services outweighs the potential impacts of the conflict. The
agency must also publicly disclose the conflict of interest if
the individual is appointed to a committee. This subsection
applies to all committee members, including members appointed
as special government employees and members appointed as
representatives.
This subsection requires the head of each agency to ensure
that any report of an advisory committee is the result of the
advisory committee's independent judgment. Advisory committees
are required under this subsection to include a description in
any report of the committee of the process used by the
committee in formulating the recommendations or conclusions
contained in the report.
Subsection (c) requires the Director of the Office of
Government Ethics (OGE), in consultation with the Administrator
of GSA, to issue regulations within six months of enactment
defining conflict of interest and such other regulations as the
Director finds necessary to implement and enforce the conflict
disclosure requirements added by the bill. Currently, agencies
are required to obtain financial disclosures from special
government employees but agencies do not have to obtain any
information on potential conflicts from representative members.
Nothing in this bill is intended to impact existing financial
disclosure requirements or the compliance of special government
employees with those requirements.
This subsection requires OGE to issue regulations in order
to provide guidance to agencies on information agencies should
obtain from potential and current committee members in order to
elicit potential conflicts, including financial or other
interests which could conflict with the ability of an
individual to serve objectively. OGE should evaluate whether
agencies should obtain information about relevant conflicts
from potential committee members for a period longer than the
one year period covered by financial disclosure requirements.
Representative members are appointed to represent the views
of an outside party. A representative member's association with
the entity the member is appointed to represent should not
itself be cause for exclusion from a committee. However, a
representative member may have a conflict of interest outside
of that association alone that is relevant to the work of the
committee and, under this section, the agency head must weigh
the potential impacts of such a conflict before appointing the
member and must disclose any such conflict if the member is
appointed.
This subsection also amends FACA to provide the
Administrator of GSA the authority to promulgate regulations as
necessary to implement the Act.

Section 3. Preventing efforts to circumvent the Federal Advisory
Committee Act and public disclosure

Subsection (a) provides that a participant who is not a
federal government employee is considered a member of a
committee if he regularly attends and participates in committee
meetings as if he were a member, even if he does not have the
right to vote. Any person who attends or participates in an
advisory committee meeting will not necessarily be considered a
member under this subsection. This subsection is aimed at
covering individuals who regularly participate in the fact-
gathering or deliberative process of an advisory committee.
Under this subsection, an advisory committee may not avoid FACA
by only giving federal employees the right to vote while having
individuals who are not federal employees participate as if
they were members. As the D.C. Circuit Court of Appeals
articulated in Ass'n of American Physicians & Surgeons, Inc. v.
Clinton:

When an advisory committee of wholly government
officials brings in a ``consultant'' for a one-time
meeting, FACA is not triggered because the consultant
is not really a member of the advisory committee. . . .
But a consultant may still be properly described as a
member of an advisory committee if his involvement and
role are functionally indistinguishable from those of
other members. Whether they exercise any supervisory or
decisionmaking authority is irrelevant. If a
``consultant'' regularly attends and fully participates
in working group meetings as if he were a ``member,''
he should be regarded as a member. Then his status as a
private citizen would disqualify the working group from
the section 3(2) exemption for meetings of full-time
government officials.\5\
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\5\Ass'n of American Physicians and Surgeons, Inc. v. Clinton, 997
F.2d 898, 915 (D.C. Cir. 1993).

Subsection (b) requires public disclosure of any
communications between an interagency committee established by
the president or vice president, or any member or staff acting
on behalf of the committee, and any outside person who is not a
government employee. An interagency advisory committee is
defined as a committee, task force, or other similar group, or
any subcommittee or subgroup thereof, established in the
interest of obtaining advice or recommendations for the
president or the vice president, that is composed wholly of
full-time, or permanent part-time, officers or employees of the
federal government and includes officers or employees of at
least two separate federal agencies but does not include an
advisory committee as defined by FACA. Under this subsection,
such communications must be made available for public
inspection and copying. This subsection clarifies that any
portion of a communication that falls within an exemption under
the Freedom of Information Act or that is subject to a valid
constitutionally based privilege against such disclosure may be
withheld. This subsection also provides that it is not intended
to apply to cabinet meetings, the National Security Council,
the Council of Economic Advisors, or any other permanent
advisory body established by statute.
This subsection is not intended to address the issue of
whether executive privilege protects communications between the
president and outside parties. This subsection does not subject
interagency advisory committees to any of the requirements of
FACA besides the requirement that communications with outside
parties be made publicly available.
Subsection (c) requires subcommittees and task forces set
up by advisory committees to comply with FACA except that a
subcommittee that reports to a parent committee does not have
to comply with the FACA requirements related to filing a
charter.
Subsection (d) provides that an advisory committee is
considered to be established by an agency or the president (and
therefore is subject to FACA) if it is formed, created, or
organized under contract, other transactional authority, or
otherwise at the request or direction of an agency or the
president.
Subsection (e) clarifies that an advisory committee that
includes members appointed as special government employees is
subject to the requirements of FACA.

Section 4. Increasing transparency of advisory committees

Subsection (a) requires the head of each agency to make
publicly available, for each advisory committee that reports to
the agency, certain information such as: the charter of the
committee; the process of selecting members for balance of
viewpoints and expertise; a list of all current members; the
reason each member was appointed; whether each member is
designated as a special government employee or a
representative; any conflict of interest relevant to the
functions to be performed by the committee; a summary of the
process used by the committee to make decisions; and
transcripts or audio or video recordings of all meetings of the
committee.
Agencies are required under this subsection to make the
specified information available on the agency's official
Internet site at least 15 days before each committee meeting.
If the agency head determines that a particular piece of
information cannot be made available within that time, the
agency head must make the information available as soon as
practicable but at least 48 hours before the next committee
meeting. Transcripts or audio or video recordings are required
to be made available within 7 days after a meeting. GSA must
provide access on its Internet site to the information made
available by agencies under this section.
Subsection (b) enhances the disclosure requirements for
advisory committee charters by requiring committee charters to
include: the authority under which the committee is
established; the estimated number of members and a description
of the expertise needed to carry out the objectives of the
committee; a description of whether the committee will be
composed of special government employees, representatives, or
members from both categories; and whether the committee has the
authority to create subcommittees and if so, the individual
authorized to exercise such authority.

Section 5. Comptroller general review and reports

Subsection (a) requires the Government Accountability
Office (GAO) to review agency compliance with FACA, including
whether agencies are appropriately appointing advisory
committee members as either special government employees or
representatives.
Subsection (b) requires GAO to submit to the committees
identified in subsection (c) two reports on the results of
GAO's review. GAO must submit one report within one year of the
regulations promulgated by OGE under section 2 and must submit
a second report within five years of the date OGE promulgates
the required regulations.
Subsection (c) identifies the committees GAO must report to
as the Committee on Oversight and Government Reform of the
House of Representatives and the Committee on Homeland Security
and Governmental Affairs of the Senate.

Section 6. Definitions

This section includes the following definitions:
The term ``representative'' means an individual who is not
a full-time or part-time federal government employee who is
appointed to an advisory committee to represent the views of an
non-governmental entity; and
The term ``special government employee'' has the same
meaning as in section 202(a) of title 18 United States Code.
That section provides, in part, that a special government
employee is an officer or employee of the executive or
legislative branch, of any independent agency, or of the
District of Columbia, who is retained, designated, appointed,
or employed to perform, with or without compensation, temporary
duties either on a full-time or intermittent basis for no more
than 130 days during any period of 365 consecutive days.

Section 7. Effective date

This Act shall take effect 30 days after the date of
enactment except as otherwise provided in section 2(c)(1) which
requires the Director of OGE to promulgate regulations within 6
months of enactment.

Explanation of Amendments

Mr. Waxman offered an amendment in the nature of a
substitute, passed by voice vote, to: provide the GSA with the
authority to promulgate regulations under FACA; require the
Office of Government Ethics, rather than GSA, to issue
regulations defining conflict of interest; enhance the
disclosure requirements for advisory committee charters; and
clarify that the provision in the bill related to interagency
advisory committees only applies to committees that are made up
wholly of federal employees and that include employees of at
least two separate federal agencies and that the provision does
not cover cabinet meetings, the National Security Council, the
Council of Economic Advisors, or any other permanent authority
established by statute.

Committee Consideration

On Wednesday, April 9, 2008, the Committee met in open
session and ordered H.R. 5687 to be reported, as amended, to
the House by a voice vote.

Roll Call Votes

No roll call votes were held.

Application of Law to the Legislative Branch

Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to terms and conditions of
employment or access to public services and accommodations.
H.R. 5687 strengthens requirements for federal advisory
committees in the executive branch under the Federal Advisory
Committee Act. This bill does not relate to employment or
access to public services and accommodations in the legislative
branch.

Statement of Oversight Findings and Recommendations of the Committee

In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report, including the need to close loopholes created by
the courts in interpreting the Federal Advisory Committee Act
and the need to increase accountability and transparency in
federal advisory committees.

Statement of General Performance Goals and Objectives

In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report, including strengthening the Federal Advisory
Committee Act and closing loopholes that have been created in
the interpretation of the Act.

Constitutional Authority Statement

Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 5687. Article I, section 8, clause 18 of the
Constitution of the United States grants the Congress the power
to enact this law.

Federal Advisory Committee Act

The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., section 5(b).

Unfunded Mandate Statement

Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement on
whether the provisions of the report include unfunded mandates.
In compliance with this requirement the Committee has received
a letter from the Congressional Budget Office included herein.

Earmark Identification

H.R. 5687 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI.

Committee Estimate

Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 5687. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.

Budget Authority and Congressional Budget Office Cost Estimate

With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 5687 from the Director of
the Congressional Budget Office:

May 7, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5687, the Federal
Advisory Committee Act Amendments of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.

H.R. 5687--Federal Advisory Committee Act Amendments of 2008

Summary: H.R. 5687 would amend the Federal Advisory
Committee Act (FACA). The legislation would require that all
appointments to advisory committees be made without regard to
political affiliation, and it would address the disclosure of
conflicts of interest among committee members. In addition,
H.R. 5687 would require more information about committee
activities to be made available to the public, including
transcripts of meetings. Finally, the legislation would require
additional reports to the Congress by the Government
Accountability Office concerning the appointment of advisory
committee members.
CBO estimates that implementing H.R. 5687 would cost $25
million in 2009 and $125 million over the 2009-2013 period,
assuming appropriation of the necessary amounts. H.R. 5687
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act (UMRA) and would
not affect the budgets of state, local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5687 is shown in the following table.
The cost of this legislation falls primarily within budget
function 800 (general government) but would affect all budget
functions that contain federal advisory committees.

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2009 2010 2011 2012 2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level...................................... 25 25 25 25 25
Estimated Outlays.................................................. 25 25 25 25 25
----------------------------------------------------------------------------------------------------------------

Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the start of fiscal year 2009, that
the necessary funds will be provided for each year, and that
spending will follow historical patterns for similar
activities.
FACA governs the behavior of federal advisory committees.
Those committees provide independent advice and recommendations
to the federal government. According to the General Services
Administration (GSA), there are almost 1,000 advisory
committees, composed of about 65,000 members, which provide
advice and recommendations to 52 departments and agencies. GSA
estimates that the total cost to operate those advisory
committees during fiscal year 2007 was about $350 million.
As currently required by FACA, GSA maintains and
administers management guidelines for committees. The Office of
Government Ethics (OGE) within GSA is responsible for
developing regulations and guidance for advisory committee
members, who serve as special government employees and must
meet certain requirements pertaining to conflicts of interest.
In addition, FACA requires that the advice provided by the
committees be objective and available to the public. Meetings
of each advisory committee are presumptively open to the
public, with certain specified exemptions. Notice of such
meetings must be published in advance and all papers, records,
and minutes of meetings must be made available for public
inspection, subject to the Freedom of Information Act.
According to GSA, OGE, and other agencies, most of the
provisions of H.R. 5687 would expand the current practices of
the federal government regarding the use of advisory
committees. Information from those sources indicates that
implementing the bill would require agencies to increase
oversight of advisory committees, issue new regulations,
prepare additional reports, and make transcripts available to
the public. CBO estimates that those activities would increase
costs by $25 million in 2009 and $125 million over the 2009-
2013 period.
Intergovernmental and private-sector impact: H.R. 5687
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal Costs: Matthew Pickford;
Impact on State, Local, and Tribal Governments: Elizabeth Cove;
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):

FEDERAL ADVISORY COMMITTEE ACT

* * * * * * *

DEFINITIONS

Sec. 3. For the purpose of this Act--
(1) * * *
(2) The term ``advisory committee'' means any
committee, board, commission, council, conference,
panel, task force, or other similar group, or any
subcommittee or other subgroup thereof (hereafter in
this paragraph referred to as ``committee''), which
is--
(A) * * *

* * * * * * *

in the interest of obtaining advice or recommendations
for the President or one or more agencies or officers
of the Federal Government, except that such term
excludes (i) any committee that is composed wholly of
full-time, or permanent part-time, officers or
employees of the Federal Government, and (ii) any
committee that is created by the National Academy of
Sciences or the National Academy of Public
Administration. An advisory committee is considered to
be established by an agency, agencies, or the
President, if it is formed, created, or organized under
contract, other transactional authority, cooperative
agreement, grant, or otherwise at the request or
direction of, an agency, agencies, or the President.

* * * * * * *

(5) The term ``representative'' means an individual
who is not a full-time or part-time employee of the
Federal Government and who is appointed to an advisory
committee to represent the views of an entity or
entities outside the Federal Government.
(6) The term ``special Government employee'' has the
same meaning as in section 202(a) of title 18, United
States Code.

APPLICABILITY; RESTRICTIONS

Sec. 4. [(a) The provisions of this Act or of any rule,
order, or regulation promulgated under this Act shall apply to
each advisory committee except to the extent that any Act of
Congress establishing any such advisory committee specifically
provides otherwise.]
(a) Application.--The provisions of this Act or of any rule,
order, or regulation promulgated under this Act shall apply to
each advisory committee, including any subcommittee or subgroup
thereof, except to the extent that any Act of Congress
establishing any such advisory committee specifically provides
otherwise. Any subcommittee or subgroup that reports to a
parent committee established under section 9(a) is not required
to comply with section 9(e). In this subsection, the term
``subgroup'' includes any working group, task force, or other
entity formed for the purpose of assisting the committee or any
subcommittee of the committee in its work.

* * * * * * *

(d) Treatment of Individual as Member.--An individual who is
not a full-time or permanent part-time officer or employee of
the Federal Government shall be regarded as a member of a
committee if the individual regularly attends and participates
in committee meetings as if the individual were a member, even
if the individual does not have the right to vote or veto the
advice or recommendations of the advisory committee.
(e) Special Government Employees.--Committee members
appointed as special government employees shall not be
considered full-time or part-time officers or employees of the
Federal Government for purposes of determining the
applicability of this Act under section 3(2).

* * * * * * *

RESPONSIBILITIES OF THE ADMINISTRATOR OF GENERAL SERVICES; COMMITTEE
MANAGEMENT SECRETARIAT, ESTABLISHMENT; REVIEW; RECOMMENDATIONS TO
PRESIDENT AND CONGRESS; AGENCY COOPERATION; PERFORMANCE GUIDELINES;
UNIFORM PAY GUIDELINES; TRAVEL EXPENSES; EXPENSE RECOMMENDATIONS

Sec. 7. (a) * * *

* * * * * * *

(c) The Administrator shall promulgate regulations as
necessary to implement this Act. The Administrator shall
prescribe administrative guidelines and management controls
applicable to advisory committees, and, to the maximum extent
feasible, provide advice, assistance, and guidance to advisory
committees to improve their performance. In carrying out his
functions under this subsection, the Administrator shall
consider the recommendations of each agency head with respect
to means of improving the performance of advisory committees
whose duties are related to such agency.

* * * * * * *

establishment and purpose of advisory committees; membership;
publication in federal register; charter: filing, contents, copy

Sec. 9. (a) * * *
(b) Appointments Made Without Regard to Political Affiliation
or Activity.--All appointments to advisory committees shall be
made without regard to political affiliation or political
activity, unless required by Federal statute.
(c) Conflicts of Interest Disclosure.--
(1) The head of each agency shall ensure that no
individual appointed to serve on an advisory committee
that reports to the agency has a conflict of interest
that is relevant to the functions to be performed by
the advisory committee, unless the head of the agency
determines that the conflict is unavoidable and that
the need for the individual's services outweighs the
potential impacts of the conflict of interest. The head
of each agency shall require that each individual the
agency appoints or intends to appoint to serve on an
advisory committee inform the agency official
responsible for appointing the individual of any actual
or potential conflict of interest the individual has
that is relevant to the functions to be performed and
that, for an individual appointed to serve on an
advisory committee, the conflict is publicly disclosed
as described in section 11.
(2) The head of each agency shall ensure that each
report of an advisory committee that reports to the
agency is the result of the advisory committee's
judgment, independent from the agency. Each advisory
committee shall include in each report of the committee
a statement describing the process used by the advisory
committee in formulating the recommendations or
conclusions contained in the report.
[(b)] (d) Unless otherwise specifically provided by statute
or Presidential directive, advisory committees shall be
utilized solely for advisory functions. Determinations of
action to be taken and policy to be expressed with respect to
matters upon which an advisory committee reports or makes
recommendations shall be made solely by the President or an
officer of the Federal Government.
[(c)] (e) No advisory committee shall meet or take any action
until an advisory committee charter has been filed [with (1)
the Administrator, in the case of Presidential advisory
committees, or] (1) with the Administrator and (2) with the
head of the agency to whom any advisory committee reports and
with the standing committees of the Senate and of the House of
Representatives having legislative jurisdiction of such agency.
Such charter shall contain the following information:
(A) * * *

* * * * * * *

(I) the committee's termination date, if less than
two years from the date of the committee's
establishment; [and]
(J) the date the charter is filed[.];
(K) the authority under which the committee is
established;
(L) the estimated number of members and a description
of the expertise needed to carry out the objectives of
the committee;
(M) a description of whether the committee will be
composed of special government employees,
representatives, or members from both categories; and
(N) whether the committee has the authority to create
subcommittees and if so, the individual authorized to
exercise such authority.

* * * * * * *

[AVAILABILITY OF TRANSCRIPTS; ``AGENCY PROCEEDING''

[Sec. 11.]

SEC. 11. DISCLOSURE OF INFORMATION.

(a) In General.--With respect to each advisory committee, the
head of the agency to which the advisory committee reports
shall make publicly available in accordance with subsection (b)
the following information:
(1) The charter of the advisory committee.
(2) A description of the process used to establish
and appoint the members of the advisory committee,
including the following:
(A) The process for identifying prospective
members.
(B) The process of selecting members for
balance of viewpoints or expertise.
(C) A justification of the need for
representative members, if any.
(3) A list of all current members, including, for
each member, the following:
(A) The name of any person or entity that
nominated the member.
(B) The reason the member was appointed to
the committee.
(C) Whether the member is designated as a
special government employee or a
representative.
(D) In the case of a representative, the
individuals or entity whose viewpoint the
member represents.
(E) Any conflict of interest relevant to the
functions to be performed by the committee.
(4) A list of all members designated as special
government employees for whom written certifications
were made under section 208(b) of title 18, United
States Code, a summary description of the conflict
necessitating the certification, and the reason for
granting the certification.
(5) A summary of the process used by the advisory
committee for making decisions.
(6) Transcripts or audio or video recordings of all
meetings of the committee.
(7) Any written determination by the President or the
head of the agency to which the advisory committee
reports, pursuant to section 10(d), to close a meeting
or any portion of a meeting and the reasons for such
determination.
(8) Notices of future meetings of the committee.
(9) Any additional information considered relevant by
the head of the agency to which the advisory committee
reports.
(b) Manner of Disclosure.--
(1) Except as provided in paragraph (2), the head of
an agency shall make the information required to be
disclosed under this section available electronically
on the official public internet site of the agency at
least 15 calendar days before each meeting of an
advisory committee. If the head of the agency
determines that such timing is not practicable for any
required information, he shall make the information
available as soon as practicable but no later than 48
hours before the next meeting of the committee.
(2) The head of an agency shall make available
electronically, on the official public internet site of
the agency, a transcript or audio or video recording of
each advisory committee meeting not later than 7
calendar days after the meeting.
(c) Provision of Information by Administrator of General
Services.--The Administrator of General Services shall provide,
on the official public internet site of the General Services
Administration, electronic access to the information made
available by each agency under this section.
[(a)] (d) Availability of Paper Copies of Transcripts.--
Except where prohibited by contractual agreements entered into
prior to the effective date of this Act, agencies and advisory
committees shall make available to any person, at actual cost
of duplication, paper copies of transcripts of agency
proceedings or advisory committee meetings.
[(b)] (e) Agency Proceeding Defined--As used in this section
``agency proceeding'' means any proceeding as defined in
section 551(12) of title 5, United States Code.
(f) Interagency Advisory Committees.--(1) Any communication
between--
(A) an interagency advisory committee established by
the President or the Vice President or any member or
staff acting on behalf of such an interagency advisory
committee, and
(B) any person who is not an officer or employee of
the Federal Government,
shall be made available for public inspection and copying. Any
portion of a communication that involves a matter described in
section 552(b) of title 5, United States Code, or that is
subject to a valid constitutionally based privilege against
such disclosure, may be withheld from public disclosure.
(2) In this subsection, the term ``interagency advisory
committee'' means any committee, board, commission, council,
conference, panel, task force, or other similar group, or any
subcommittee or other subgroup thereof, established in the
interest of obtaining advice or recommendations for the
President or the Vice President, that is composed wholly of
full-time, or permanent part-time, officers or employees of the
Federal Government and includes officers or employees of at
least two separate Federal agencies but does not include an
advisory committee as defined in section 3(2) of this Act.
(3) This subsection is not intended to apply to cabinet
meetings, the National Security Council, the Council of
Economic Advisors, or any other permanent advisory body
established by statute.

* * * * * * *

ADDITIONAL VIEWS OF RANKING MEMBER TOM DAVIS

I concur with the majority's assertion that ``the courts
have created loopholes in FACA that undermine the purposes of
the Act.''
In addition to the loopholes highlighted by the majority,
the U.S. Court of Appeals for the District of Columbia created
another loophole in Association of American Physicians and
Surgeons, Inc. v. Hillary Rodham Clinton, 997 F.2d 898 (D.C.
Cir. 1993), which I believe we should work to close in this
legislation.
In that case, the U.S. Court of Appeals ruled that the
spouse of a President was a federal employee for purposes of
determining whether FACA applied to a committee upon which a
presidential spouse was a member. In so finding, the Court
determined that a committee chaired by the spouse of a
President and composed of federal agency employees was allowed
to hold meetings in secret, without being subjected to FACA's
public disclosure requirements.
This ruling overturned an earlier decision by the U.S.
District Court which determined that the spouse of a President
was not a federal employee, and therefore the committee was an
advisory body whose business must be open to the public
pursuant to FACA.
This bill should be amended to prevent certain high-level
advisory committees from evading transparency and
accountability by using this presidential spouse loophole. The
loophole could be closed by clarifying, in statute, that a
spouse of the President is not a federal employee for purposes
of determining whether FACA applies to a committee on which a
presidential spouse is a member.