[Congressional Record Volume 143, Number 157 (Sunday, November 9, 1997)]
[House]
[Pages H10578-H10581]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 1997

  Mr. HORN. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 2977) to amend the Federal Advisory Committee Act to clarify 
public disclosure requirements that are applicable to the National 
Academy of Sciences and the National Academy of Public Administration.
  The Clerk read as follows:

                               H.R. 2977

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Federal Advisory Committee 
     Act Amendments of 1997''.

     SEC. 2. AMENDMENTS TO THE FEDERAL ADVISORY COMMITTEE ACT.

       (a) Exclusions From Definition.--Section 3(2) of the 
     Federal Advisory Committee act (5 U.S.C. App) is amended in 
     the matter following subparagraph (C), by striking ``such 
     term excludes'' and all that follows through the period and 
     inserting the following: ``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.''.
       (b) Requirements Relating to the National Academy of 
     Sciences and the National Academy of Public Administration.--
     Such act is further amended by redesignating section 15 as 
     section 16 and inserting after section 14 the following new 
     section:


  ``requirements relating to the national academy of sciences and the 
               national academy of public administration

       ``Sec. 15. (a) In General.--An agency may not use any 
     advice or recommendation provided by the National Academy of 
     Sciences or National Academy of Public Administration that 
     was developed by use of a committee created by that academy 
     under an agreement with an agency, unless--
       ``(1) the committee was not subject to any actual 
     management or control by an agency or an officer of the 
     Federal Government;
       ``(2) in the case of a committee created after the date of 
     the enactment of the Federal Advisory Committee Act 
     Amendments of 1997, the membership of the committee was 
     appointed in accordance with the requirements described in 
     subsection (b)(1); and
       ``(3) in developing the advice or recommendation, the 
     academy complied with--
       ``(A) subsection (b)(2) through (6), in the case of any 
     advice or recommendation provided by the National Academy of 
     Sciences; or
       ``(B) subsection (b)(2) and (5), in the case of any advice 
     or recommendation provided by the National Academy of Public 
     Administration.
       ``(b) Requirements.--The requirements referred to in 
     subsection (a) are as follows:
       ``(1) The Academy shall determine and provide public notice 
     of the names and brief biographies of individuals that the 
     Academy appoints or intends to appoint to serve on the 
     committee. The Academy shall determine and provide a 
     reasonable opportunity for the public to comment on such 
     appointments before they are made or, if the Academy 
     determines such prior comment is not practicable, in the 
     period immediately following the appointments. The Academy 
     shall make its best efforts to ensure that (A) no individual 
     appointed to serve on the committee has a conflict of 
     interest that is relevant to the functions to be performed, 
     unless such conflict is promptly and publicly disclosed and 
     the Academy determines that the conflict is unavoidable, (B) 
     the committee membership is fairly balanced as determined by 
     the Academy to be appropriate for the functions to be 
     performed, and (C) the final report of the Academy will be 
     the result of the Academy's independent judgment. The Academy 
     shall require that individuals that the Academy appoints or 
     intends to appoint to serve on the committee inform the 
     Academy of the individual's conflicts of interest that are 
     relevant to the functions to be performed.
       ``(2) The Academy shall determine and provide public notice 
     of committee meetings that will be open to the public.
       ``(3) The Academy shall ensure that meetings of the 
     committee to gather data from individuals who are not 
     officials, agents, or employees of the Academy are open to 
     the public, unless the Academy determines that a meeting 
     would disclose matters described in section 552(b) of 
     title 5, United States Code. The Academy shall make 
     available to the public, at reasonable charge if 
     appropriate, written materials presented to the committee 
     by individuals who are not officials, agents, or employees 
     of the Academy, unless the Academy determines that making 
     material available would disclose matters described in 
     that section.
       ``(4) The Academy shall make available to the public as 
     soon as practicable, at reasonable charge if appropriate, a 
     brief summary of any committee meeting that is not a data 
     gathering meeting, unless the Academy determines that the 
     summary would disclose matters described in section 552(b) of 
     title 5, United States Code. The summary shall identify the 
     committee members present, the topics discussed, materials 
     made available to the committee, and such other matters that 
     the Academy determines should be included.
       ``(5) The Academy shall make available to the public its 
     final report, at reasonable charge if appropriate, unless the 
     Academy determines that the report would disclose matters 
     described in section 552(b) of title 5, United States Code. 
     If the Academy determines that the report would disclose 
     matters described in that section, the Academy shall make 
     public an abbreviated version of the report that does not 
     disclose those matters.
       ``(6) After publication of the final report, the Academy 
     shall make publicly available the names of the principal 
     reviewers who reviewed the report in draft form and who are 
     not officials, agents, or employees of the Academy.
       ``(c) Regulations.--The Administrator of General Services 
     may issue regulations implementing this section.''.
       (c) Effective Date and Application.--
       (1) In General.--Except as provided in paragraph (2), this 
     section and the amendments made by this section shall take 
     effect on the date of the enactment of this Act.
       (2) Retroactive Effect.--Subsection (a) and the amendments 
     made by subsection (a) shall be effective as of October 6, 
     1972, except that they shall not apply with respect to or 
     otherwise affect any particular advice or recommendations 
     that are subject to any judicial action filed before the date 
     of the enactment of this Act.

[[Page H10579]]

     SEC. 3. REPORT.

       Not later than 1 year after the date of the enactment of 
     this Act, the Administrator of General Services shall submit 
     a report to the Congress on the implementation of and 
     compliance with the amendments made by this Act.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California [Mr. Horn] and the gentleman from California [Mr. Waxman] 
each will control 20 minutes.
  The Chair recognizes the gentleman from California [Mr. Horn].
  Mr. HORN. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. HORN asked and was given permission to revise and extend his 
remarks and insert extraneous material.)
  Mr. HORN. Mr. Speaker, we will use much less than the amount given to 
either of us. We know the House has been working hard and late, and we 
are going to keep our comments to just a very few minutes on either 
side.
  Mr. Speaker, the Federal Advisory Committee Act was passed in 1972, 
as some of the senior Members will remember. For the last 25 years, the 
administration, Congress, and the various academies such as the 
National Academy of Sciences and the National Academy of Public 
Administration, have never questioned the applicability of this law. 
Recently, however, the United States Court of Appeals for the District 
of Columbia applied the law of the Federal Advisory Committee Act to 
the National Academy of Sciences.
  Last week, the Supreme Court announced that it will not review the 
appeals court's decision. The proposal before the House has been 
cleared with both of the academies, the Office of Management and 
Budget, the minority and the majority, and the chairman of the House 
Committee on Science. This proposal would return the National Academy 
of Sciences to its previous status under law which this House had 
followed for a quarter century.
  In addition, the legislation requires more openness when Federal 
agencies utilize the academies, similar to those of the National 
Academy of Sciences and the National Academy of Public Administration.
  This increased openness that is now required with their consent is 
the following:
  1. The names, biographies, and conflict of interest disclosures when 
committee members are nominated.
  2. Most data gathering committee meetings will be open to the public 
unless the type of meeting is excepted under the Freedom of Information 
Act.
  3. The names of reviewers of draft committee reports.
  4. Summaries of any closed committee meetings.
  The administration, the House and the Senate, both the majority and 
minority, all agree the academy should not be subject to the full 
process of the Federal Advisory Committee Act. The Senate is prepared 
to consider this legislation before the end of this session.
  The gentleman from California, [Mr. Waxman], the gentlewoman from New 
York [Mrs. Maloney], and the gentleman from Indiana [Mr. Burton] are 
cosponsors of H.R. 2977. Last week, the Subcommittee on Government 
Management, which I chair, held a hearing on this matter. We heard most 
helpful testimony from both sides of the recent court case. The 
litigants that brought the court case agreed that the full brunt of the 
Federal Advisory Committee Act should not apply to the academies.
  I strongly recommend favorable consideration of this bill to preserve 
the quality of the research provided to the Federal Government through 
the National Academy of Sciences and the National Academy of Public 
Administration.
  Our respective staffs have done an excellent job in developing the 
legislation before us. The members of this team included: For the 
Republicans, Russell George, chief counsel and staff director of the 
Subcommittee on Government Management, Information and Technology; 
Robert Alloway, professional staff member; Mark Brasher, senior policy 
advisor.
  For the Democrats, we are most appreciative of the work of Phil 
Barnett, chief counsel of the Committee on Government Reform and 
Oversight, who was joined by David McMillen, professional staff member, 
and Sheridan Pauker, research assistant.
  We all greatly appreciate the find legal drafting and long hours put 
in by Harry A. Savage, assistant legislative counsel.
  Mr. Speaker, I reserve the balance of my time.
  Mr. Speaker, I ask consent that correspondence from Franklin D. 
Raines, Director, Office of Management and Budget, Executive Office of 
the President, dated October 28, 1997, and two letters from Dr. Bruce 
Alberts, president, National Academy of Sciences, dated November 9, 
1997.
  Also included is my full statement in lieu of a committee report.
         Executive Office of the President, Office of Management 
           and Budget,
                                 Washington, DC, October 28, 1997.
     Hon. Stephen Horn,
     Chairman, Subcommittee on Government Management, Information 
         and Technology, Committee on Government Reform and 
         Oversight, House of Representatives, Washington, DC.
       Dear Chairman Horn: This letter presents the views of the 
     Administration on proposed legislation that would amend the 
     Federal Advisory Committee Act, 5 U.S.C. App. 2, to clarify 
     that the Act applies to committees that are subject to actual 
     management and control by Federal officials.
       The need for this legislation was created by the recent 
     decision of the U.S. Court of Appeals for the District of 
     Columbia Circuit in Animal Legal Defense Fund, Inc. v. 
     Shalala, 114 F.3d 1209 (D.C. Cir. 1997), that FACA should 
     apply to panels of the National Academy of Sciences. In so 
     deciding, the court of appeals appears to have misinterpreted 
     what Congress intended when it adopted FACA in 1972. The 
     concept of extending FACA to privately managed and controlled 
     organizations outside the Federal government such as the 
     National Academy of Sciences was discussed and rejected when 
     the FACA legislation was adopted by the House of 
     Representatives. 118 Cong. Rec. 31.421 (1972). The 
     Administration believes that Congress did not intend to apply 
     FACA in this situation. The Executive Branch has consistently 
     followed this interpretation of Congressional intent since 
     1973. The court decision is directly contrary to that 
     longstanding interpretation.
       Moreover, while the full impact of the court of appeal's 
     decision remains to be clarified, implementing this decision 
     may impose significant burdens on the Federal government. 
     More than 450 NAS panels potentially could become subject to 
     FACA. This is almost equal to the total number of 
     discretionary committees (committees created under general 
     agency authorization) that are now subject to FACA in all 
     Federal agencies. Thus, implementation would almost double 
     the number of discretionary committees subject to the FACA 
     chartering requirements, almost double the number of 
     discretionary committees that must be monitored by Federal 
     officials, and significantly increase the administrative 
     burdens on OMB and GSA in overseeing FACA committees. In 
     addition, there is a risk that other entities outside the 
     Federal government might subsequently be deemed ```quasi-
     public'' and thus subject to FACA.
       As now written, FACA applies to advisory committees that 
     are ``established'' or ``utilized'' by Federal agencies. 5 
     U.S.C. App. 2, section 3(2). Congress can remedy the problem 
     created by the recent court decision by clarifying that a 
     ``utilized'' committee means one that is subject to actual 
     management and control by a Federal agency. This 
     interpretation is consistent with decisions handed down by 
     appellate courts prior to the 1997 decision in Animal Legal 
     Defense Fund, which have held that FACA applies only when 
     committees are subject to actual management and control by 
     agency officials. See Washington Legal Found, v. U.S. 
     Sentencing Comm'n, 17 F.3d 1446 (D.C. Cir. 1994); Food 
     Chemical News v. Young, 900 F.2d 328 (D.C. Cir.), cert. 
     denied, 498 U.S. 846 (1990). Adoption of this language would 
     also be consistent with administrative policy that the 
     Executive Branch has followed for the past 25 years.
           Sincerely,
                                               Franklin D. Raines,
     Director.
                                                                    ____

       ``Strike Section 3(2)(C) and all that follows in Section 
     3(2) and insert in lieu thereof:
       `3(2)(C) established or utilized by one or more agencies, 
     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 terms exclude:
       (i) any committee created by an entity other than an agency 
     or officer of the Federal Government and not subject to 
     actual management and control by such agencies or officers, 
     and
       (ii) any committee composed wholly of full-time, or 
     permanent part-time, employees of the Federal Government. The 
     Administrator shall prescribe regulations for the purposes of 
     this subsection'.''
                                                                    ____



                                 National Academy of Sciences,

                                 Washington, DC, November 9, 1997.
     Hon. Stephen Horn,
     Chairman, Subcommittee on Government Management, Information 
         and Technology, Committee on Government Reform and 
         Oversight, House of Representatives, Washington, DC.
       Dear Mr. Chairman: I am writing on behalf of the National 
     Academy of Sciences to explain how the Academy intends to 
     apply

[[Page H10580]]

     the requirements of the Federal Advisory Committee Act of 
     1997 to Academy committees that are currently working on 
     contracts or agreements with federal agencies.
       Under the Act, the Academy is not required to apply the 
     procedures of section 15 to committees that are currently 
     underway. This makes sense, because the appointment 
     provisions of section 15 could not be applied retroactively 
     to committees whose members have already been appointed. 
     There are, however, some provisions of section 15 that 
     depending upon the stage of a committee's work could be 
     reasonably applied to ongoing committees. For example, if a 
     committee has not yet concluded its data gathering process, 
     the requirement that data gathering meetings be open to the 
     public could be followed by the committee.
       On behalf of the Academy, you have my assurance that the 
     Academy will apply the procedures set forth in section 15 to 
     committees that are currently underway to the fullest extent 
     that is reasonable and practicable.
           Sincerely,

                                                Bruce Alberts,

                                                        President,
     National Academy of Sciences.
                                                                    ____



                                 National Academy of Sciences,

                                 Washington, DC, November 9, 1997.
     Hon. Stephen Horn,
     House of Representatives,
     Washington, DC.
       Dear Congressman Horn: I understand that some concerns have 
     been raised concerning the use of the Section 552(b) 
     exceptions as a basis for closing meetings provided in HR 
     2977.
       I wish to assure you that we subscribe fully to the goal of 
     providing as much openness as possible in our work. In 
     particular, we have no intention of using Section 552(b)(5), 
     which deals with interagency memoranda, as a basis for 
     closing meetings of Academy committees. In fact, it is the 
     Academy's standard practice not to treat the type of material 
     covered by Section 552(b)(5) as confidential input to any 
     Academy deliberative process. This procedure insures that, 
     inasmuch as possible, all the information that a committee 
     uses to reach its conclusion is in the public record.
           Sincerely,
                                                    Bruce Alberts,
     President.
                                                                    ____


Statement of Representative Horn on the Federal Advisory Committee Act 
                           Amendments of 1997

       Mr. Speaker, I move to suspend the rules and pass the bill, 
     H.R. 2977.
       The Federal Advisory Committee Act was passed in 1972. It 
     governs the activities of advisory committees created by the 
     Government to obtain expert views and advice on complex 
     issues confronting our Nation. The Act was designed to 
     address two major concerns. First, at that time, advisory 
     committees seemed to be disorganized, duplicative, and 
     generally in need of oversight. Second, committee activities 
     often took place without public participation, making it hard 
     to know whether the committees were really acting in the 
     public interest.
       The Act required advisory committees to adhere to certain 
     procedural rules. These rules included, among others: open 
     meetings, involvement by Federal Government officials, and 
     balanced membership. It also provided Office of Management 
     and Budget oversight which was subsequently transferred to 
     the General Services Administration.
       Congress did not intend that this legislation would apply 
     to the National Academy of Sciences. The National Academy of 
     Sciences in an independent organization of scientists and 
     academics that was chartered by Congress in 1863. It 
     frequently sets up committees that provide independent advice 
     to the Government: 90% of these reports are requested by 
     government agencies and/or legislative committees of 
     Congress.
       The only other group affected by this bill is the National 
     Academy of Public Administration. It is also an independent 
     organization, founded in 1967 and chartered by Congress in 
     1984 to assist Federal, State, and local governments on 
     matters of efficiency and accountability.
       Congress did not intend for the Act to apply to either of 
     these Academies. This intent in relation to the Academy of 
     Sciences was expressly noted during the deliberations on the 
     legislation in the House of Representatives.
       [Quote from Congressional Record of September 20, 1972, 
     H3142, follows:]
       Mr. Horton. Am I correct in the understanding that this 
     bill does not apply to such organizations as the National 
     Academy of Sciences and its various committees which make 
     studies and submit reports to the Federal agencies on 
     request?
       Mr. Holifield. The gentleman is quite correct. If he will 
     refer to the joint explanatory statement of the committee of 
     conference at page 10, the first full paragraph, it states as 
     follows: ``The Act does not apply to persons or organizations 
     which have contractual relationships with Federal agencies 
     nor to advisory committees not directly established by or for 
     such agencies.'' As the gentleman knows, the National Academy 
     of Sciences was founded by Congress and, therefore, it comes 
     under that category.
       Mr. Horton. So it would be excluded?
       Mr. Holified. That is correct.
       For the last twenty-five years the Administration, 
     Congress, and the Academies have never questioned the 
     applicability of this law.
       Recently, the United States Court of Appeals for the 
     District of Columbia decision applied the law to the National 
     Academy of Sciences. That case is the: Animal Legal Defense 
     Fund, Inc., et al. v. Donna E. Shalala, et al., 104 F.3rd 424 
     (D.C. Circuit 1997). Last week the Supreme Court announced it 
     will not review the appeal court's decision.
       The proposal before the house would return the National 
     Academy of Sciences to the status under the law that it held 
     before the recent court rulings. In addition, the legislation 
     requires more openness when Federal agencies utilize the 
     Academies.
       These increased openness requirements are:
       1. Post for public comment the names, biographies, and 
     conflict of interest disclosures when committee members are 
     nominated.
       2. Invite public attendance at all data gathering committee 
     meetings. (Of course, the exemptions established by the 
     Freedom of Information Act would still apply for items such 
     as privacy and national security issues.)
       3. Post for the public record the names of reviewers of 
     draft committee reports. And,
       4. Make summaries available to the public of any committee 
     meetings which are closed.
       These changes will benefit the public and Federal agencies 
     and will also contribute to the quality and credibility of 
     Academy reports.
       Furthermore, the proposal requires a General Services 
     Administration [GSA] study within one year to assess the 
     implementation of this legislation.
       There seems to be broad agreement on this bill. The 
     Administration, the House, and the Senate--both the Majority 
     and the Minority--all agree that the Academies should not be 
     subject to the full process of the Federal Advisory Committee 
     Act.
       The Academies are valuable to America precisely because 
     they are independent of agency influence; because they bring 
     together the best professionals and experts with impressive 
     backgrounds and because they derive their recommendations 
     from multiple perspectives. They are asked to study and issue 
     only when it is important, complex, and controversial. This 
     bill will help preserve their high quality, objective, 
     independent studies while also adding more openness.
       The Senate is prepared to quickly consider this legislation 
     before the end of this session. The Senate is awaiting House 
     action.
       The subcommittee on Government Management, Information and 
     Technology, which I chair, held a hearing on this matter last 
     week. GSA, GAO, and OMB have expressed support for this 
     effort. This legislative is fully supported by Mr. Burton, 
     chairman of the full committee. Mr. Waxman, the Ranking 
     Democratic Member on the full Committee on Government Reform 
     and Oversight is also a co-sponsor of this bill, so is Ms. 
     Maloney, the Ranking Democratic Member on the Subcommittee. 
     The litigants that brought the successful court case also 
     testified before our subcommittee and they too agree that the 
     full brunt of the Federal Advisory Committee Act should not 
     apply to the Academies.
       I strongly recommend favorable consideration of this bill 
     to preserve the quality of the research provided to the 
     Federal Government by the National Academy of Sciences and 
     the National Academy of Public Administration.
  Mr. WAXMAN. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. WAXMAN asked and was given permission to revise and extend his 
remarks and insert extraneous material.)
  Mr. WAXMAN. Mr. Speaker, I rise in strong support of H.R. 2977, the 
Federal Advisory Committee Act Amendments of 1997. I ask unanimous 
consent to revise and extend my remarks and to insert extraneous 
material into the Record.
  Recent federal court decisions have held that the National Academy of 
Sciences committees convened by federal agencies or Congress are 
subject to the Federal Advisory Committee Act.
  The Federal Advisory Committee Act includes important measures that 
provide for public scrutiny of taxpayer-funded advisory committees. 
This Act, however, also imposes some procedures which may affect the 
independence of the National Academy of Sciences and the National 
Academy of Public Administration, an advisory body with a similar 
congressional charter to the National Academy of Sciences.
  The Federal Advisory Committee Act Amendments of 1997 strike a 
balance between the Academies' need for independence and the public's 
right to know about the advisors and procedures used to produce 
technical or policy advice for the government.
  These amendments require that the National Academy of Sciences 
appoint members without conflicts of interest--or else promptly 
disclose any unavoidable conflicts of interest to the public. The bill 
requires the Academy to make public the names and backgrounds of 
appointed committee members and creates a public comment period on 
these members. This public comment period must occur before committee 
members are finally appointed unless this is not practicable due to 
unusual time constraints.

[[Page H10581]]

  More meetings of the National Academy of Sciences will be made open 
to the public. If meetings are closed, the Academy must provide 
summaries of closed meetings to the public. The purpose of this 
provision is to provide a summary of the committee's deliberations, as 
well as a list of the committee members present and other matters 
determined by the Academy.
  The burden of insuring compliance with this legislation falls on the 
agencies. Agencies may not use the advice or recommendations provided 
by the Academy unless the procedural requirements set forth in the 
legislation have been followed by the Academy.
  A letter from the National Academy of Sciences clarifies an important 
technical issue relating to the use of the section 552(b) exceptions. 
Pursuant to my earlier unanimous consent request, I am inserting this 
letter in the record for publication.
  I urge my colleagues to adopt these amendments.


                                 National Academy of Sciences,

                                 Washington, DC, November 9, 1997.
     Hon. Henry Waxman,
     U.S. House of Representatives, Washington, DC.
       Dear Congressman Waxman: I understand that some concerns 
     have been raised concerning the use of the Section 552(b) 
     exceptions as a basis for closing meetings provided in H.R. 
     2977.
       I wish to assure you that we subscribe fully to the goal of 
     providing as much openness as possible in our work. In 
     particular, we have no intention of using Section 552(b)(5), 
     which deals with interagency memoranda, as a basis for 
     closing meetings of Academy committees. In fact, it is the 
     Academy's standard practice not to treat the type of material 
     covered by Section 552(b)(5) as confidential input to any 
     Academy deliberative process. This procedure insures that, in 
     as much as possible, all the information that a committee 
     uses to reach its conclusions is in the public records.
           Sincerely,
                                                    Burce Alberts,
                                                        President.

  Mr. WAXMAN. Mr. Speaker, I yield back the balance of my time.
  Mr. HORN. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from California (Mr. Horn) that the House suspend the rules 
and pass the bill, H.R. 2977.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________