[Congressional Record (Bound Edition), Volume 154 (2008), Part 10]
[House]
[Pages 13550-13553]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  2115
           FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2008

  Mr. CLAY. Mr. Speaker, I move to suspend the rules and pass 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, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 5687

       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

[[Page 13551]]

     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.

[[Page 13552]]

     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).

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Missouri (Mr. Clay) and the gentlewoman from North Carolina (Ms. Foxx) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Missouri.


                             General Leave

  Mr. CLAY. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Missouri?
  There was no objection.
  Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
  I rise today in support of H.R. 5687, the Federal Advisory Committee 
Act Amendments of 2008.
  H.R. 5687, which I introduced along with Chairman Waxman on April 3, 
2008, was reported out of the Committee on Oversight and Government 
Reform on May 15 of 2008. The FACA amendments will improve the balance, 
transparency, and independence of Federal advisory committees.
  Congress passed FACA in 1972 to address the rising costs and lack of 
accountability among Federal advisory committees. However, FACA has 
been undermined by loopholes that have been created over the years.
  H.R. 5687 strengthens FACA by closing those loopholes. For example, 
the bill clarifies that FACA applies to subcommittees, ensuring that 
agencies cannot avoid the requirements of FACA by conducting business 
through subcommittees. The bill also increases the disclosure 
requirements for advisory committees and requires agencies to obtain 
conflict of interest disclosures.
  As amended, H.R. 5687 takes into account recommendations made by the 
Office of Government Ethics and other stakeholders. The amendment makes 
the conflict of interest restrictions on advisory committee members 
more workable while preserving the bill's requirement of public 
disclosure. The amendment also clarifies that agencies have the 
authority to require advisory committee members to recuse themselves 
when the committee's work will impact their personal interests.
  Mr. Speaker, this legislation will improve the advisory committee 
process. I urge my colleagues to support passage.
  Mr. Speaker, I reserve the balance of my time.
  Ms. FOXX. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this legislation will make a number of changes to the 
Federal Advisory Committee Act, legislation enacted in 1972 to govern 
the operations, expenditures, and report requirements of advisory 
committees established to help Federal agencies on policy and other 
issues.
  Specifically, this legislation would further increase the disclosure 
requirements for advisory committees and minimize the use of political 
affiliations in making appointments to advisory committees.
  Today over 1,000 Federal advisory committees are involved in making 
key decisions that affect everyone's life on vital issues such as 
health care, civil rights, and national security. Increasing 
transparency and public involvement are essential to having a free and 
open process.
  In strengthening the disclosure and transparency requirements of 
Federal advisory committees, however, we must be careful not to hinder 
the process by which the President and other executive branch agencies 
receive expert advice from these committees.
  I am cautiously optimistic this legislation strikes a balance between 
these two priorities, but I trust the majority will continue to work 
with us as H.R. 5687 moves forward to make sure we do not impose any 
unnecessary burden upon advisory committees or their members.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CLAY. Mr. Speaker, I certainly look forward to working with the 
gentlewoman from North Carolina and her colleagues to perfect this bill 
and to get it to a point where we can all agree on it.
  Mr. Speaker, I continue to reserve the balance of my time.
  Mr. WAXMAN. Mr. Speaker, H.R. 5687, the Federal Advisory Committee 
Act Amendments of 2008, makes needed improvements to one of our core 
open government laws. I want to thank Chairman Clay for introducing 
this bill and for his continued leadership in support of open 
government.
  Advisory committees play a critical role in giving the President and 
agencies advice on complex issues. The Federal Advisory Committee Act, 
FACA, is intended to make the advisory committee process open and 
accountable to protect the independence and integrity of these 
committees. But in recent years, FACA has been undermined by the 
practices of the Bush administration. This bill is our response to 
these abuses:
  One of my concerns over the last 8 years has been the growth of 
secrecy. This bill says that White House task forces can no longer 
operate in total secrecy. They must disclose whom they meet with and 
what recommendations they receive from special interests.
  After President Bush was elected, he put Vice President Cheney in 
charge of a task force to develop the administration's energy policy. 
Vice President Cheney and his staff met secretly with oil, gas, 
nuclear, and coal executives. They developed a policy that has enriched 
the energy companies and their executives at the expense of American 
consumers, our energy security, and our environment.
  This bill says that task forces like the Vice President's energy task 
force must come out from the shadows.
  Another issue the bill addresses is the growing politicization of 
science. As documented in a Committee staff report in August 2003, the 
administration manipulated scientific advisory committees by employing 
political litmus tests and filling advisory committees with members 
with conflicts of interest. H.R. 5687 says that advisory panels must be 
independent and requires agencies to obtain conflict of interest 
disclosures from all prospective committee members. The bill prohibits 
an agency from appointing an individual with a relevant conflict

[[Page 13553]]

of interest unless the head of the agency determines that the need for 
the individual's services outweighs the potential impacts of the 
conflict. The bill requires agencies to publicly disclose the conflicts 
of advisory committee members on their Web sites.
  H.R. 5687 also prohibits using political loyalty as a basis for 
making appointments to advisory committees.
  H.R. 5687 addresses other loopholes that have emerged in FACA over 
the years. It says that FACA panels cannot avoid public disclosure by 
operating through subcommittees. This was the tactic used by the 
President's Commission to Strengthen Social Security. The legislation 
also closes the ``de facto member'' loophole by clarifying that 
agencies cannot avoid FACA by giving Federal employees the right to 
vote on an advisory committee but then having private sector 
individuals participate in the committee as if they were members.
  A number of improvements have been made to the bill based on comments 
from the Office of Government Ethics, OGE, and others. For example, the 
amendment clarifies that nothing in the bill is intended to weaken 
existing ethics requirements for special government employees. Under 
the amendment, a committee member appointed as a special government 
employee will be required to disclose any conflict of interest, as OGE 
defines that term, beyond what is disclosed in the member's financial 
disclosure report. This is intended to prevent special government 
employees from having to disclose the same conflict twice if they would 
already be required to disclose it through a financial disclosure 
report.
  The bill leaves it to OGE to determine what disclosures are required 
beyond what has to be reported in a financial disclosure report. OGE 
should consider what interests a committee member may have that would 
not be uncovered in a financial disclosure report but that still may 
compromise the member's objectivity. For example, a committee member 
who held a position 2 years ago with an entity that would be affected 
by a decision of the committee could be considered to have a conflict 
even though the member's previous position would not be reported in a 
financial disclosure report.
  Last year, we enacted reforms to another important open government 
law, the Freedom of Information Act. I hope this year we will continue 
our efforts to improve the transparency and accountability of 
government by enacting this bill. I urge my colleagues to support H.R. 
5687.
  I submit the following letters for the Record:
                                         House of Representatives,


                                  Committee on Ways and Means,

                                    Washington, DC, June 24, 2008.
     Hon. Henry Waxman,
     Chairman, Committee on Oversight and Government Reform, House 
         of Representatives, Rayburn House Office Building, 
         Washington, DC.
       Dear Chairman: The Committee on Ways and Means applauds 
     your efforts to foster greater federal advisory committee 
     transparency and accountability. However, the Committee has 
     concerns about some potential unintended effects that your 
     bill, H.R. 5687, the Federal Advisory Committee Act 
     Amendments of 2008, might have on the advisory committee 
     system established under the Trade Act of 1974, as amended. 
     While the Committee is still reviewing H.R. 5687, of 
     particular serious concern are sections 2 and 4 of the bill.
       The Committee will forgo action on this bill and will not 
     oppose its consideration on the suspension calendar based on 
     our understanding that changes will be made to H.R. 5687 as 
     it moves through the legislative process. These changes will 
     ensure that application of the Federal Advisory Committee Act 
     on the trade advisory committees under the Trade Act of 1974, 
     as amended, is consistent with and does not extend beyond 
     requirements set forth in current law.
       This request is made with the understanding that it does 
     not in any way prejudice the Committee with respect to the 
     appointment of conferees or the full exercise of its 
     jurisdictional prerogatives on this bill or similar 
     legislation in the future.
       The Committee intends to look for opportunities to improve 
     the transparency and accountability of the federal advisory 
     committees established under the Trade Act of 1974, as 
     amended, in ways consistent with their purpose and aim. We 
     look forward to soliciting your suggestions for reform.
           Sincerely,
                                                Charles B. Rangel,
                                                         Chairman.
                                  ____
                                  
         House of Representatives, Committee on Oversight and 
           Government Reform,
                                    Washington, DC, June 24, 2008.
     Hon. Charles B. Rangel,
     Chairman, Committee on Ways and Means,
     Longworth House Office Building, Washington, DC.
       Dear Chairman Rangel: I understand there are special 
     circumstances surrounding the creation and functioning of the 
     advisory committee system established under the Trade Act of 
     1974, as amended.
       As the bill moves through the legislative process, changes 
     to H.R. 5687, the Federal Advisory Committee Amendments Act 
     of 2008, will be made to address fully the concerns raised by 
     the Committee on Ways and Means to your satisfaction.
       I look forward to working with the Committee on Ways and 
     Means as this bill moves through the legislative process.
           Sincerely,
                                                  Henry A. Waxman,
                                                         Chairman.

  Ms. FOXX. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  Mr. CLAY. Mr. Speaker, I urge my colleagues to vote in favor of this 
bill.
  Mr. Speaker, I have no further requests for time, and I yield back 
the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Missouri (Mr. Clay) that the House suspend the rules and 
pass the bill, H.R. 5687, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

                          ____________________