H.R. 5687 (110th): Federal Advisory Committee Act Amendments of 2008

The text of the bill below is as of Jun 25, 2008 (Referred to Senate Committee).

Source: GPO

HR 5687 RFS

110th CONGRESS

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.