[Congressional Record: June 24, 2008 (House)]
[Page H5994-H5997]
{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 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.''.
[[Page H5995]]
(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).
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.
[[Page H5996]]
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 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
[[Page H5997]]
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.
____________________
