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



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

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



 
           FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2008

                                _______
                                

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

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 5687]

      [Including cost estimate of the Congressional Budget Office]

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

                                CONTENTS

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

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

SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE.

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

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

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

SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COMMITTEES.

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

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

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

SEC. 5. COMPTROLLER GENERAL REVIEW AND REPORTS.

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

SEC. 6. DEFINITIONS.

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

SEC. 7. EFFECTIVE DATE.

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

                          Purpose and Summary

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

                  Background and Need for Legislation

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

                          Legislative History

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

                           Section-by-Section


Section 1. Short title

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

Section 2. Ensuring independent advice and expertise

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

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

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

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

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

Section 4. Increasing transparency of advisory committees

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

Section 5. Comptroller general review and reports

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

Section 6. Definitions

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

Section 7. Effective date

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

                       Explanation of Amendments

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

                        Committee Consideration

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

                            Roll Call Votes

    No roll call votes were held.

              Application of Law to the Legislative Branch

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

  Statement of Oversight Findings and Recommendations of the Committee

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

         Statement of General Performance Goals and Objectives

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

                   Constitutional Authority Statement

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

                     Federal Advisory Committee Act

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

                       Unfunded Mandate Statement

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

                         Earmark Identification

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

                           Committee Estimate

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

     Budget Authority and Congressional Budget Office Cost Estimate

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

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

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

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

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

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

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

         Changes in Existing Law Made by the Bill, as Reported

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

FEDERAL ADVISORY COMMITTEE ACT

           *       *       *       *       *       *       *



                              DEFINITIONS

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

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *

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

                      APPLICABILITY; RESTRICTIONS

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

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *


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

  Sec. 7. (a) * * *

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *


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

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

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *


          [AVAILABILITY OF TRANSCRIPTS; ``AGENCY PROCEEDING''

  [Sec. 11.]

SEC. 11. DISCLOSURE OF INFORMATION.

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

           *       *       *       *       *       *       *


              ADDITIONAL VIEWS OF RANKING MEMBER TOM DAVIS

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

                                  
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