Federal Advisory Committee Act Amendments of 2008

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

2d Session
H. R. 5687

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

June 25, 2008

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

_______________________________________________________________________

AN ACT

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

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

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

SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE.

(a) Bar on Political Litmus Tests.--Section 9 of the Federal
Advisory Committee Act (5 U.S.C. App.) is amended--
(1) in the section heading by inserting ``membership;''
after ``advisory committees;'';
(2) by redesignating subsections (b) and (c) as subsections
(d) and (e), respectively; and
(3) by inserting after subsection (a) the following:
``(b) Appointments Made Without Regard to Political Affiliation or
Activity.--All appointments to advisory committees shall be made
without regard to political affiliation or political activity, unless
required by Federal statute.''.
(b) Conflicts of Interest Disclosure.--Section 9 of the Federal
Advisory Committee Act (5 U.S.C. App.) is further amended by inserting
after subsection (b) (as added by subsection (a)) the following:
``(c) Conflicts of Interest Disclosure.--
``(1)(A) The head of each agency shall ensure that no
individual appointed to serve on an advisory committee that
reports to the agency has a conflict of interest that is
relevant to the functions to be performed by the advisory
committee, unless the head of the agency determines that the
need for the individual's services outweighs the potential
impacts of the conflict of interest.
``(B) If the head of the agency makes such a determination
with respect to an individual, nothing in this subsection is
intended to preclude the head of the agency from requiring the
recusal of the individual from particular aspects of the
committee's work.
``(C) In the case of an individual appointed as a
representative, the fact that an individual is associated with
the entity whose views are being represented by the individual
shall not itself be considered a conflict of interest by the
agency.
``(2) The head of each agency shall require--
``(A) that each individual the agency appoints or
intends to appoint to serve on an advisory committee as
a representative inform the agency official responsible
for appointing the individual in writing of any actual
or potential conflict of interest--
``(i) that exists before appointment or
that arises while the individual is serving on
the Committee; and
``(ii) that is relevant to the functions to
be performed; and
``(B) that, for an individual appointed to serve on
an advisory committee, the conflict is publicly
disclosed as described in section 11.
``(3) Nothing in this subsection is intended to alter any
requirement or obligation for a special Government employee
under the Ethics in Government Act (5 U.S.C. App.) or other
applicable ethics law, including any requirement to file a
financial disclosure report. The head of each agency shall
require that each individual the agency appoints as a special
Government employee inform the agency in writing of any
conflict that exists before appointment or that arises while
the individual is serving on the committee to the extent any
financial disclosure required by the Ethics in Government Act
(5 U.S.C. app.) or other applicable law would not uncover the
conflict of interest as such term is defined in regulations
promulgated by the Office of Government Ethics to carry out
this subsection.
``(4) The head of each agency shall ensure that each report
of an advisory committee that reports to the agency is the
result of the advisory committee's judgment, independent from
the agency. Each advisory committee shall include in each
report of the committee a statement describing the process used
by the advisory committee in formulating the recommendations or
conclusions contained in the report.''.
(c) Regulations.--
(1) Regulations relating to conflicts of interest.--Not
later than 180 days after the date of the enactment of this
Act, the Director of the Office of Government Ethics, in
consultation with the Administrator of General Services, shall
promulgate--
(A) regulations defining the term ``conflict of
interest'';
(B) regulations identifying the method by which
individuals must disclose conflicts and the period of
time for which a representative or special Government
employee, or a candidate for appointment as a
representative or special Government employee, shall
look back in time to determine whether an interest is
considered a conflict for the purpose of the
notification requirement in subsection (c) of section 9
of the Federal Advisory Committee Act, as added by this
section; and
(C) such other regulations as the Director finds
necessary to carry out and ensure the enforcement of
such subsection (c).
(2) Regulations implementing faca.--Section 7(c) of the
Federal Advisory Committee Act (5 U.S.C. App.) is amended by
inserting after ``(c)'' the following: ``The Administrator
shall promulgate regulations as necessary to implement this
Act.''.

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

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

SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COMMITTEES.

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

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

(2) by redesignating subsection (a) as subsection (d) and
in that subsection--
(A) by inserting the following subsection heading:
``Availability of Paper Copies of Transcripts.--''; and
(B) by inserting after ``duplication,'' the
following: ``paper'';
(3) by striking ``(b)'' and inserting ``(e) Agency
Proceeding Defined.--''; and
(4) by inserting before subsection (d), as redesignated by
paragraph (2), the following new subsections:
``(a) In General.--With respect to each advisory committee, the
head of the agency to which the advisory committee reports shall make
publicly available in accordance with subsection (b) the following
information:
``(1) The charter of the advisory committee.
``(2) A description of the process used to establish and
appoint the members of the advisory committee, including the
following:
``(A) The process for identifying prospective
members.
``(B) The process of selecting members for balance
of viewpoints or expertise.
``(C) A justification of the need for
representative members, if any.
``(3) A list of all current members, including, for each
member, the following:
``(A) The name of any person or entity that
nominated the member.
``(B) The reason the member was appointed to the
committee.
``(C) Whether the member is designated as a special
government employee or a representative.
``(D) In the case of a representative, the
individuals or entity whose viewpoint the member
represents.
``(E) Any conflict of interest relevant to the
functions to be performed by the committee.
``(4) A list of all members designated as special
government employees for whom written certifications were made
under section 208(b) of title 18, United States Code, a summary
description of the conflict necessitating the certification,
and the reason for granting the certification.
``(5) A summary of the process used by the advisory
committee for making decisions.
``(6) Transcripts or audio or video recordings of all
meetings of the committee.
``(7) Any written determination by the President or the
head of the agency to which the advisory committee reports,
pursuant to section 10(d), to close a meeting or any portion of
a meeting and the reasons for such determination.
``(8) Notices of future meetings of the committee.
``(9) Any additional information considered relevant by the
head of the agency to which the advisory committee reports.
``(b)  Manner of Disclosure.--
``(1) Except as provided in paragraph (2), the head of an
agency shall make the information required to be disclosed
under this section available electronically on the official
public internet site of the agency at least 15 calendar days
before each meeting of an advisory committee. If the head of
the agency determines that such timing is not practicable for
any required information, he shall make the information
available as soon as practicable but no later than 48 hours
before the next meeting of the committee. An agency may
withhold from disclosure any information that would be exempt
from disclosure under section 552 of title 5, United States
Code.
``(2) The head of an agency shall make available
electronically, on the official public internet site of the
agency, a transcript or audio or video recording of each
advisory committee meeting not later than 30 calendar days
after the meeting.
``(c) Provision of Information by Administrator of General
Services.--The Administrator of General Services shall provide, on the
official public internet site of the General Services Administration,
electronic access to the information made available by each agency
under this section.''.
(b) Charter Filing.--Section 9(e) of the Federal Advisory Committee
Act (5 U.S.C. App.), as redesignated by section 2, is amended--
(1) by striking ``with (1) the Administrator,'' and all
that follows through ``, or'' and inserting ``(1) with the
Administrator and'';
(2) by striking ``and'' at the end of subparagraph (I);
(3) by striking the period and inserting a semicolon at the
end of subparagraph (J); and
(4) by adding at the end the following new subparagraphs:
``(K) the authority under which the committee is
established;
``(L) the estimated number of members and a description of
the expertise needed to carry out the objectives of the
committee;
``(M) a description of whether the committee will be
composed of special government employees, representatives, or
members from both categories; and
``(N) whether the committee has the authority to create
subcommittees and if so, the agency official authorized to
exercise such authority.''.

SEC. 5. COMPTROLLER GENERAL REVIEW AND REPORTS.

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

SEC. 6. DEFINITIONS.

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

SEC. 7. EFFECTIVE DATE.

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

Passed the House of Representatives June 24, 2008.

Attest:

LORRAINE C. MILLER,

Clerk.