[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5687 Referred in Senate (RFS)]

  2d Session
                                H. R. 5687


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 25, 2008

Received; read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 AN ACT


 
      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. 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)(A) 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 
        need for the individual's services outweighs the potential 
        impacts of the conflict of interest.
            ``(B) If the head of the agency makes such a determination 
        with respect to an individual, nothing in this subsection is 
        intended to preclude the head of the agency from requiring the 
        recusal of the individual from particular aspects of the 
        committee's work.
            ``(C) In the case of an individual appointed as a 
        representative, the fact that an individual is associated with 
        the entity whose views are being represented by the individual 
        shall not itself be considered a conflict of interest by the 
        agency.
            ``(2) The head of each agency shall require--
                    ``(A) that each individual the agency appoints or 
                intends to appoint to serve on an advisory committee as 
                a representative inform the agency official responsible 
                for appointing the individual in writing of any actual 
                or potential conflict of interest--
                            ``(i) that exists before appointment or 
                        that arises while the individual is serving on 
                        the Committee; and
                            ``(ii) that is relevant to the functions to 
                        be performed; and
                    ``(B) that, for an individual appointed to serve on 
                an advisory committee, the conflict is publicly 
                disclosed as described in section 11.
            ``(3) Nothing in this subsection is intended to alter any 
        requirement or obligation for a special Government employee 
        under the Ethics in Government Act (5 U.S.C. App.) or other 
        applicable ethics law, including any requirement to file a 
        financial disclosure report. The head of each agency shall 
        require that each individual the agency appoints as a special 
        Government employee inform the agency in writing of any 
        conflict that exists before appointment or that arises while 
        the individual is serving on the committee to the extent any 
        financial disclosure required by the Ethics in Government Act 
        (5 U.S.C. app.) or other applicable law would not uncover the 
        conflict of interest as such term is defined in regulations 
        promulgated by the Office of Government Ethics to carry out 
        this subsection.
            ``(4) 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--
                    (A) regulations defining the term ``conflict of 
                interest'';
                    (B) regulations identifying the method by which 
                individuals must disclose conflicts and the period of 
                time for which a representative or special Government 
                employee, or a candidate for appointment as a 
                representative or special Government employee, shall 
                look back in time to determine whether an interest is 
                considered a conflict for the purpose of the 
                notification requirement in subsection (c) of section 9 
                of the Federal Advisory Committee Act, as added by this 
                section; and
                    (C) such other regulations as the Director finds 
                necessary to carry out and ensure the enforcement of 
                such subsection (c).
            (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. An agency may 
        withhold from disclosure any information that would be exempt 
        from disclosure under section 552 of title 5, United States 
        Code.
            ``(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 30 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 agency official 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).

            Passed the House of Representatives June 24, 2008.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.