69–006 

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 


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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 indiVerDate Aug 31 2005 01:08 May 17, 2008 Jkt 069006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6621 E:\HR\OC\HR650.XXX HR650

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vidual 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. 


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‘‘(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. 


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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). 

(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. 

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. 


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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). 4Food Chem. News v. Young, 900 F.2d 328 (D.C. Cir. 1990). 

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. 

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. 

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. 


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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 


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5 Ass’n of American Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 915 (D.C. Cir. 

1993). 

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 fulltime government officials.5

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 InforVerDate Aug 31 2005 23:53 May 16, 2008 Jkt 069006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR650.XXX HR650

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mation 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. 


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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 fulltime 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. 


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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 


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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. 


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CBO estimates that implementing H.R. 5687 would cost $25 mil- lion 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. 


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14 

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. ø(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.¿ 


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(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.—


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(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. 

ø(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. 

ø(c)¿ (e) No advisory committee shall meet or take any action 

until an advisory committee charter has been filed øwith (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; øand¿ 

(J) the date the charter is filedø.¿; 

(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. 

* * * * * * * 

øAVAILABILITY OF TRANSCRIPTS; ‘‘AGENCY PROCEEDING’’

øSEC. 11.¿ 


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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. 


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(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. 

ø(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. 

ø(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. 

* * * * * * * 


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(19) 

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. 

Æ 


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