[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5687 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 5687

      To amend the Federal Advisory Committee Act to increase the 
transparency and accountability of Federal advisory committees, and for 
                            other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 3, 2008

 Mr. Clay (for himself and Mr. Waxman) introduced the following bill; 
 which was referred to the Committee on Oversight and Government Reform

_______________________________________________________________________

                                 A BILL


 
      To amend the Federal Advisory Committee Act to increase the 
transparency and accountability of Federal advisory committees, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

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. Definition.
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 independent judgment. 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 and Guidance.--Not later than 180 days after the 
date of the enactment of this Act, the Administrator of General 
Services, in consultation with the Director of the Office of Government 
Ethics, shall--
            (1) promulgate regulations defining conflict of interest 
        and such other regulations as the Administrator finds necessary 
        to carry out and ensure the enforcement of this section; and
            (2) issue guidance for agencies and advisory committees on 
        procedures and best practices for ensuring that advisory 
        committees provide independent advice and expertise.

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) White House 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) White House Interagency Advisory Committees.--Any 
communication between--
            ``(1) an interagency committee or task force established by 
        the President or the Vice President or any member or staff 
        acting on behalf of such an interagency committee or task 
        force, and
            ``(2) 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.''.
    (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 amending the section heading to read as follows:

``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 redesignating subsection (b) as subsection (e); 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 by 
striking ``with (1) the Administrator,'' and all that follows through 
``, or'' and inserting ``(1) with the Administrator and''.

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. DEFINITION.

    Section 3 of the Federal Advisory Committee Act (5 U.S.C. App.) is 
amended by adding at the end the following new paragraph:
            ``(5) 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).
                                 <all>