IB 

Union Calendar No. 249 

109TH CONGRESS 

2D SESSION H. R. 5112 

[Report No. 109–445] 

To provide for reform in the operations of the executive branch. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 6, 2006 

Mr. TOM DAVIS of Virginia (for himself, Mr. WAXMAN, Mr. SHAYS, Mr. LANTOS, Mr. GUTKNECHT, Mr. OWENS, Mr. PLATTS, Mr. TOWNS, Mrs. MILLER of Michigan, Mrs. MALONEY, Mr. ISSA, Mr. CUMMINGS, Mr. DENT, 

Mr. KUCINICH, Ms. FOXX, Mr. CLAY, Ms. WATSON, Mr. LYNCH, Mr. 

VAN HOLLEN, Mr. HIGGINS, Ms. NORTON, Mr. KANJORSKI, and Mr. 

DAVIS of Illinois) introduced the following bill; which was referred to the 

Committee on Government Reform 

APRIL 27, 2006 

Committed to the Committee of the Whole House on the State of the Union 

and ordered to be printed 

A BILL 

To provide for reform in the operations of the executive 

branch. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


CCOLEMAN on PROD1PC71 with BILLS
2 

•HR 5112 RH 

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Executive Branch Re3 form Act of 2006’’. 

4 SEC. 2. REQUIREMENTS RELATING TO SIGNIFICANT CON5 TACTS. 

6 (a) IN GENERAL.—The Ethics in Government Act of 

7 1978 (5 U.S.C. App. 4) is amended by adding at the end 

8 the following new title: 

9 ‘‘TITLE VI—EXECUTIVE BRANCH 

10 DISCLOSURE OF SIGNIFICANT 

11 CONTACTS 

12 ‘‘SEC. 601. RECORDING AND REPORTING BY CERTAIN EXEC13 UTIVE BRANCH OFFICIALS OF SIGNIFICANT 

14 CONTACTS MADE TO THOSE OFFICIALS. 

15 ‘‘(a) IN GENERAL.—Not later than 30 days after the 

16 end of a calendar quarter, each covered executive branch 

17 official shall make a record of, and file with the Office 

18 of Government Ethics a report on, any significant contacts 

19 during the quarter between the covered executive branch 

20 official and any private party relating to an official govern21 ment action. If no such contacts occurred, each such offi22 cial shall make a record of, and file with the Office a re23 port on, this fact, at the same time. 

24 ‘‘(b) CONTENTS OF RECORD AND REPORT.—Each 

25 record made, and each report filed, under subsection (a) 

26 shall contain— 


CCOLEMAN on PROD1PC71 with BILLS
3 

•HR 5112 RH 

1 ‘‘(1) the name of the covered executive branch 

2 official; 

3 ‘‘(2) the name of each private party who had a 

4 significant contact with that official; and 

5 ‘‘(3) for each private party so named, a sum6 mary of the nature of the contact, including— 

7 ‘‘(A) the date of the contact; 

8 ‘‘(B) the subject matter of the contact and 

9 the specific executive branch action to which the 

10 contact relates; and 

11 ‘‘(C) if the contact was made on behalf of 

12 a client, the name of the client. 

13 ‘‘(c) WITHHOLDING FOIA-EXEMPT INFORMATION.— 

14 This section does not require the filing with the Office of 

15 Government Ethics of information that is exempt from 

16 public disclosure under section 552(b) of title 5, United 

17 States Code (popularly referred to at the ‘‘Freedom of In18 formation Act’’). 

19 ‘‘SEC. 602. AUTHORITIES AND RESPONSIBILITIES OF OF20 FICE OF GOVERNMENT ETHICS. 

21 ‘‘(a) IN GENERAL.—The Director of the Office of 

22 Government Ethics shall— 

23 ‘‘(1) promulgate regulations to implement this 

24 title, provide guidance and assistance on the record25 ing and reporting requirements of this title, and deVerDate Aug 31 2005 01:29 Apr 29, 2006 Jkt 049196 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5112.RH H5112

CCOLEMAN on PROD1PC71 with BILLS
4 

•HR 5112 RH 

1 velop common standards, rules, and procedures for 

2 compliance with this title; 

3 ‘‘(2) review, and, where necessary, verify the ac4 curacy, completeness, and timeliness of reports; 

5 ‘‘(3) develop filing, coding, and cross-indexing 

6 systems to carry out the purpose of this title, includ7 ing— 

8 ‘‘(A) a publicly available list of all private 

9 parties who made a significant contact; and 

10 ‘‘(B) computerized systems designed to 

11 minimize the burden of filing and maximize 

12 public access to reports filed under this title; 

13 ‘‘(4) make available for public inspection and 

14 copying at reasonable times the reports filed under 

15 this title; 

16 ‘‘(5) retain reports for a period of at least 6 

17 years after they are filed; 

18 ‘‘(6) compile and summarize, with respect to 

19 each reporting period, the information contained in 

20 reports filed with respect to such period in a clear 

21 and complete manner; 

22 ‘‘(7) notify any covered executive branch official 

23 in writing that may be in noncompliance with this 

24 title; and 


CCOLEMAN on PROD1PC71 with BILLS
5 

•HR 5112 RH 

1 ‘‘(8) notify the United States Attorney for the 

2 District of Columbia that a covered executive branch 

3 official may be in noncompliance with this title, if 

4 the covered executive branch official has been noti5 fied in writing and has failed to provide an appro6 priate response within 60 days after notice was 

7 given under paragraph (7). 

8 ‘‘SEC. 603. PENALTIES. 

9 ‘‘Whoever knowingly fails to— 

10 ‘‘(1) remedy a defective filing within 60 days 

11 after notice was given under paragraph (7); or 

12 ‘‘(2) comply with any other provision of this 

13 title; 

14 shall, upon proof of such knowing violation by a prepon15 derance of the evidence, be subject to a civil fine of not 

16 more than $50,000, depending on the extent and gravity 

17 of the violation. 

18 ‘‘SEC. 604. DEFINITIONS. 

19 ‘‘In this title: 

20 ‘‘(1) COVERED EXECUTIVE BRANCH OFFI21 CIAL.—The term ‘covered executive branch official’ 

22 means— 

23 ‘‘(A) any officer or employee serving in a 

24 position in level I, II, III, IV, or V of the ExecVerDate Aug 31 2005 01:29 Apr 29, 2006 Jkt 049196 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5112.RH H5112

CCOLEMAN on PROD1PC71 with BILLS
6 

•HR 5112 RH 

1 utive Schedule, as designated by statute or Ex2 ecutive order; 

3 ‘‘(B) any member of the uniformed serv4 ices whose pay grade is at or above O–7 under 

5 section 201 of title 37, United States Code; 

6 ‘‘(C) any officer or employee serving in a 

7 position of a confidential, policy-determining, 

8 policy-making, or policy-advocating character 

9 described in section 7511(b)(2)(B) of title 5, 

10 United States Code; and 

11 ‘‘(D) any officer or employee serving in a 

12 position of a confidential, policy-determining, 

13 policy-making, or policy advocating character, 

14 or any other individual functioning in the ca15 pacity of such an officer or employee, in the Ex16 ecutive Office of the President or the Office of 

17 the Vice President, but does not include the 

18 President or Vice President or the chief of staff 

19 of the President or Vice President. 

20 ‘‘(2) SIGNIFICANT CONTACT.—The term ‘sig21 nificant contact’ means oral or written communica22 tion (including electronic communication) that is 

23 made by a private party to a covered executive 

24 branch official in which such private party seeks to 

25 influence, or obtain nonpublic information about, ofVerDate Aug 31 2005 01:29 Apr 29, 2006 Jkt 049196 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5112.RH H5112

CCOLEMAN on PROD1PC71 with BILLS
7 

•HR 5112 RH 

1 ficial action by any officer or employee of the execu2 tive branch of the United States. 

3 ‘‘(3) PRIVATE PARTY.—The term ‘private party’ 

4 means any person or entity, but does not include a 

5 Federal, State, or local government official or a per6 son representing such an official.’’. 

7 (b) EFFECTIVE DATE.— 

8 (1) IN GENERAL.—Title VI of the Ethics in 

9 Government Act of 1978, as added by this section, 

10 takes effect 1 year after the date of the enactment 

11 of this Act, except as provided in paragraph (2). 

12 (2) INITIAL REGULATIONS.—The initial regula13 tions required by section 602 of that Act shall be 

14 promulgated— 

15 (A) in draft form, not later than 270 days 

16 after the date of the enactment of this Act; and 

17 (B) in final form, not later than 1 year 

18 after the date of the enactment of this Act. 

19 SEC. 3. REQUIREMENTS RELATING TO STOPPING THE RE20 VOLVING DOOR. 

21 The Ethics in Government Act of 1978 (5 U.S.C. 

22 App. 4) is amended by adding at the end the following 

23 new title: 


CCOLEMAN on PROD1PC71 with BILLS
8 

•HR 5112 RH 

1 ‘‘TITLE VII—STOPPING THE 

2 REVOLVING DOOR 

3 ‘‘SEC. 701. TWO-YEAR COOLING-OFF PERIOD FOR PERSONS 

4 LEAVING GOVERNMENT SERVICE. 

5 ‘‘(a) IN GENERAL.—A covered executive branch offi6 cial shall not, for a period of two years after the termi7 nation of his employment, engage in any conduct that 

8 would be prohibited under subsections (c) or (d) of section 

9 207 of title 18, United States Code, if it occurred within 

10 one year after the termination of his employment. 

11 ‘‘(b) NO EFFECT ON SECTION 207.—This section 

12 does not expand, contract, or otherwise affect the applica13 tion of any waiver or criminal penalties under section 207 

14 of title 18, United States Code. 

15 ‘‘SEC. 702. PROHIBITION ON NEGOTIATION OF FUTURE EM16 PLOYMENT. 

17 ‘‘(a) PROHIBITION.—A covered executive branch offi18 cial shall not participate in any official matter in which, 

19 to the official’s knowledge, a person or organization with 

20 whom the official is negotiating or has any arrangement 

21 concerning prospective employment has a financial inter22 est, unless a waiver has been granted under subsection (b). 

23 ‘‘(b) WAIVERS ONLY WHEN EXCEPTIONAL CIR24 CUMSTANCES EXIST.—A waiver to subsection (a) is not 

25 available, and shall not be granted, to any individual exVerDate Aug 31 2005 01:29 Apr 29, 2006 Jkt 049196 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5112.RH H5112

CCOLEMAN on PROD1PC71 with BILLS
9 

•HR 5112 RH 

1 cept in a case which the Government official responsible 

2 for the individual’s appointment as a covered executive 

3 branch official determines that exceptional circumstances 

4 exist. Whenever such a determination is made, the Direc5 tor of the Office of Government Ethics shall independently 

6 investigate and review the circumstances relating to the 

7 determination, and the waiver shall not take effect until 

8 the date on which the Director certifies in writing that 

9 exceptional circumstances exist. 

10 ‘‘SEC. 703. COOLING-OFF PERIOD FOR CERTAIN PERSONS 

11 ENTERING GOVERNMENT SERVICE. 

12 ‘‘(a) IN GENERAL.—A covered executive branch offi13 cial shall not engage in conduct relating to a covered entity 

14 that would be prohibited under section 208 of title 18, 

15 United States Code, if the official had a financial interest 

16 in the covered entity, unless a waiver has been granted 

17 under subsection (b). 

18 ‘‘(b) WAIVER.—An agency’s designated ethics officer 

19 may, if the Director of the Office of Government Ethics 

20 approves, waive the prohibition in subsection (a) with re21 spect to a covered executive branch official of that agency 

22 upon a determination that the relationship between the 

23 covered executive branch official and the covered entity is 

24 not so substantial as to be deemed likely to affect the inVerDate Aug 31 2005 01:29 Apr 29, 2006 Jkt 049196 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5112.RH H5112

CCOLEMAN on PROD1PC71 with BILLS
10 

•HR 5112 RH 

1 tegrity of the services that the Government may expect 

2 from the official. 

3 ‘‘(c) DEFINITION.—In this section, the term ‘covered 

4 entity’ means an entity— 

5 ‘‘(1) in which the official, within the previous 2 

6 years, served as an officer, director, trustee, general 

7 partner, or employee; or 

8 ‘‘(2) for which the official, within the previous 

9 2 years, worked as a lobbyist, lawyer, or other rep10 resentative. 

11 ‘‘(d) NO EFFECT ON SECTION 208.—This section 

12 does not expand, contract, or otherwise affect the applica13 tion of any criminal penalties under section 208 of title 

14 18, United States Code. 

15 ‘‘SEC. 704. PENALTIES. 

16 ‘‘Whoever violates section 701, 702, or 703 of this 

17 title shall, upon proof of such knowing violation by a pre18 ponderance of the evidence, be subject to a civil fine of 

19 not more than $100,000, depending on the extent and 

20 gravity of the violation. 

21 ‘‘SEC. 705. DEFINITION. 

22 ‘‘In this title, the term ‘covered executive branch offi23 cial’ means— 

24 ‘‘(1) any officer or employee serving in a posi25 tion in level I, II, III, IV, or V of the Executive 


CCOLEMAN on PROD1PC71 with BILLS
11 

•HR 5112 RH 

1 Schedule, as designated by statute or Executive 

2 order; 

3 ‘‘(2) any member of the uniformed services 

4 whose pay grade is at or above O–7 under section 

5 201 of title 37, United States Code; 

6 ‘‘(3) any officer or employee serving in a posi7 tion of a confidential, policy-determining, policy8 making, or policy-advocating character described in 

9 section 7511(b)(2)(B) of title 5, United States Code; 

10 ‘‘(4) any officer or employee serving in a posi11 tion of a confidential, policy-determining, policy12 making, or policy advocating character, or any other 

13 individual functioning in the capacity of such an of14 ficer or employee, in the Executive Office of the 

15 President or the Office of the Vice President; and 

16 ‘‘(5) the Vice President.’’. 

17 SEC. 4. ADDITIONAL PROVISIONS RELATING TO PROCURE18 MENT OFFICIALS. 

19 (a) ELIMINATION OF LOOPHOLES THAT ALLOW

20 FORMER FEDERAL OFFICIALS TO ACCEPT COMPENSA21 TION FROM CONTRACTORS OR RELATED ENTITIES.—Sec22 tion 27(d) of the Office of Federal Procurement Policy 

23 Act (41 U.S.C. 423(d)) is amended— 

24 (1) in paragraph (1)— 


CCOLEMAN on PROD1PC71 with BILLS
12 

•HR 5112 RH 

1 (A) by striking ‘‘or consultant’’ and insert2 ing ‘‘consultant, lawyer, or lobbyist’’; 

3 (B) by striking ‘‘one year’’ and inserting 

4 ‘‘two years’’; and 

5 (C) in subparagraph (C), by striking ‘‘per6 sonally made for the Federal agency—’’ and in7 serting ‘‘participated personally and substan8 tially in—’’; and 

9 (2) by amending paragraph (2) to read as fol10 lows: 

11 ‘‘(2) Paragraph (1) shall not prohibit a former 

12 official of a Federal agency from accepting com13 pensation from any division or affiliate of a con14 tractor that does not produce the same or similar 

15 products or services as the entity of the contractor 

16 that is responsible for the contract referred to in 

17 subparagraph (A), (B), or (C) of such paragraph if 

18 the agency’s designated ethics officer determines 

19 that— 

20 ‘‘(A) the offer of compensation is not a re21 ward for any action described in paragraph (1); 

22 and 

23 ‘‘(B) acceptance of the compensation is ap24 propriate and will not affect the integrity of the 

25 procurement process.’’. 


CCOLEMAN on PROD1PC71 with BILLS
13 

•HR 5112 RH 

1 (b) REQUIREMENT FOR FEDERAL PROCUREMENT

2 OFFICERS TO DISCLOSE JOB OFFERS MADE TO REL3 ATIVES.—Section 27(c)(1) of such Act (41 U.S.C. 

4 423(c)(1)) is amended by inserting after ‘‘that official’’ 

5 the following: ‘‘or for a relative of that official (as defined 

6 in section 3110 of title 5, United States Code),’’. 

7 (c) REQUIREMENT ON AWARD OF GOVERNMENT

8 CONTRACTS TO FORMER EMPLOYERS.—Section 27 of 

9 such Act (41 U.S.C. 423) is amended by adding at the 

10 end the following new subsection: 

11 ‘‘(i) PROHIBITION ON INVOLVEMENT BY CERTAIN

12 FORMER CONTRACTOR EMPLOYEES IN PROCURE13 MENTS.—An employee of the Federal Government who is 

14 a former employee of a contractor with the Federal Gov15 ernment shall not be personally and substantially involved 

16 with any award of a contract to the employee’s former em17 ployer, or the administration of such a contract, for the 

18 two-year period beginning on the date on which the em19 ployee leaves the employment of the contractor.’’. 

20 (d) REGULATIONS.—Section 27 of such Act (41 

21 U.S.C. 423) is further amended by adding at the end of 

22 the following new subsection: 

23 ‘‘(j) REGULATIONS.—The Administrator, in consulta24 tion with the Director of the Office of Government Ethics, 

25 shall— 


CCOLEMAN on PROD1PC71 with BILLS
14 

•HR 5112 RH 

1 ‘‘(1) promulgate regulations to carry out and 

2 ensure the enforcement of this section; and 

3 ‘‘(2) monitor and investigate individual and 

4 agency compliance with this section.’’. 

5 SEC. 5. PROHIBITION ON UNAUTHORIZED EXPENDITURE 

6 OF FUNDS FOR PUBLICITY OR PROPAGANDA 

7 PURPOSES. 

8 (a) PROHIBITION.—Chapter 13 of title 31, United 

9 States Code, is amended by adding at the end the fol10 lowing new section: 

11 ‘‘§ 1355. Prohibition on unauthorized expenditure of 

12 funds for publicity or propaganda pur13 poses 

14 ‘‘An officer or employee of the United States Govern15 ment may not make or authorize an expenditure or obliga16 tion of funds for publicity or propaganda purposes within 

17 the United States unless authorized by law.’’. 

18 (b) CLERICAL AMENDMENT.—The table of sections 

19 for chapter 13 of such title is amended by adding at the 

20 end the following new item: 

‘‘1355. Prohibition on unauthorized expenditure of funds for publicity or propaganda purposes.’’. 


CCOLEMAN on PROD1PC71 with BILLS
15 

•HR 5112 RH 

1 SEC. 6. REQUIREMENT FOR DISCLOSURE OF FEDERAL 

2 SPONSORSHIP OF ALL FEDERAL ADVER3 TISING OR OTHER COMMUNICATION MATE4 RIALS. 

5 (a) REQUIREMENT.—Each advertisement or other 

6 communication paid for by an Executive agency, either di7 rectly or through a contract awarded by the Executive 

8 agency, shall include a prominent notice informing the tar9 get audience that the advertisement or other communica10 tion is paid for by that Executive agency. 

11 (b) ADVERTISEMENT OR OTHER COMMUNICATION.— 

12 In this section, the term ‘‘advertisement or other commu13 nication’’ includes— 

14 (1) an advertisement disseminated in any form, 

15 including print or by any electronic means; and 

16 (2) a communication by an individual in any 

17 form, including speech, print, or by any electronic 

18 means. 

19 (c) EXECUTIVE AGENCY.—In this section, the term 

20 ‘‘Executive agency’’ has the meaning provided in section 

21 105 of title 5, United States Code. 

22 SEC. 7. ELIMINATION OF ‘‘PSEUDO’’ CLASSIFICATION. 

23 (a) REPORTS ON THE PROLIFERATING USE OF

24 ‘‘PSEUDO’’ CLASSIFICATION DESIGNATIONS.— 

25 (1) REPORT BY FEDERAL AGENCIES.—Not later 

26 than six months after the date of the enactment of 


CCOLEMAN on PROD1PC71 with BILLS
16 

•HR 5112 RH 

1 this Act, each federal agency shall submit to the Ar2 chivist of the United States and the congressional 

3 committees described in subsection (d) a report de4 scribing the use of ‘‘pseudo’’ classification designa5 tions. 

6 (2) MATTERS COVERED.—Each such agency 

7 shall report on, at a minimum, the following: 

8 (A) The number of ‘‘pseudo’’classification 

9 designation policies used by the agency. 

10 (B) Any existing guidance, instruction, di11 rective, or regulations regarding the agency’s 

12 use of ‘‘pseudo’’ classification designations. 

13 (C) The number and level of experience 

14 and training of Federal agency, office, and con15 tractor personnel authorized to make ‘‘pseudo’’ 

16 classification designations. 

17 (D) The cost of placing and maintaining 

18 information under each ‘‘pseudo’’ classification 

19 designation. 

20 (E) The extent to which information 

21 placed under ‘‘pseudo’’ classification designa22 tions has subsequently been released under sec23 tion 552 of title 5, United States Code (popu24 larly known as the Freedom of Information 

25 Act). 


CCOLEMAN on PROD1PC71 with BILLS
17 

•HR 5112 RH 

1 (F) The extent to which ‘‘pseudo’’ classi2 fication designations have been used to withhold 

3 from the public information that is not author4 ized to be withheld by Federal statute, or by an 

5 Executive order relating to the classification of 

6 national security information. 

7 (G) The statutory provisions described in 

8 subsection (c). 

9 (3) REPORT BY THE ARCHIVIST OF THE

10 UNITED STATES.—Not later than 9 months after the 

11 date of the enactment of this Act, the Archivist of 

12 the United States shall issue to the congressional 

13 committees described in subsection (d) a report on 

14 the use of ‘‘pseudo’’ classification designations 

15 across the executive branch that is based on the in16 formation provided by agencies, as well as input 

17 from the Director of National Intelligence, Federal 

18 agencies, offices, and contractors. All federal agen19 cies, offices, and contractors shall cooperate fully 

20 and promptly with all requests by the Archivist in 

21 the fulfillment of this paragraph. 

22 (4) NOTICE AND COMMENT.—The Archivist 

23 shall provide notice and an opportunity for public 

24 comment on the report. 


CCOLEMAN on PROD1PC71 with BILLS
18 

•HR 5112 RH 

1 (b) ELIMINATION OF ‘‘PSEUDO’’ CLASSIFICATION

2 DESIGNATIONS.— 

3 (1) REGULATIONS.—Not later than 15 months 

4 after the date of the enactment of this Act, the Ar5 chivist of the United States shall promulgate regula6 tions banning the use of ‘‘pseudo’’ classification des7 ignations. 

8 (2) STANDARDS FOR INFORMATION CONTROL

9 DESIGNATIONS.—If the Archivist determines that 

10 there is a need for some agencies to use information 

11 control designations to safeguard information prior 

12 to review for disclosure, beyond those designations 

13 established by statute or by an Executive Order re14 lating to the classification of national security infor15 mation, the regulations under paragraph (1) shall 

16 establish standards for the use of those designations 

17 by agencies. Such standards shall address, at a min18 imum, the following issues: 

19 (A) Standards for utilizing the information 

20 control designations in a manner that is nar21 rowly tailored to maximize public access to in22 formation. 

23 (B) Procedures for providing specified 

24 Federal officials with authority to utilize the inVerDate Aug 31 2005 01:29 Apr 29, 2006 Jkt 049196 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H5112.RH H5112

CCOLEMAN on PROD1PC71 with BILLS
19 

•HR 5112 RH 

1 formation control designations, including train2 ing and certification requirements. 

3 (C) Categories of information that may be 

4 assigned the information control designations. 

5 (D) The duration of the information con6 trol designations and the process by which they 

7 will be removed. 

8 (E) Procedures for identifying, marking, 

9 dating, and tracking information assigned the 

10 information control designations, including the 

11 identity of officials making the designations. 

12 (F) Specific limitations and prohibitions 

13 against using the information control designa14 tions. 

15 (G) Procedures for members of the public 

16 to challenge the use of the information control 

17 designations. 

18 (H) The manner in which the use of the 

19 information control designations relates to the 

20 procedures of each agency or office under sec21 tion 552 of title 5, United States Code. 

22 (3) REGULATION TO CONSTITUTE SOLE AU23 THORITY.—A regulation promulgated pursuant to 

24 this subsection shall constitute the sole authority by 

25 which Federal agencies, offices, or contractors are 


CCOLEMAN on PROD1PC71 with BILLS
20 

•HR 5112 RH 

1 permitted to control information for the purposes of 

2 safeguarding information prior to review for disclo3 sure, other than authority granted by Federal stat4 ute or by an Executive order relating to the classi5 fication of national security information. 

6 (c) REVIEW OF STATUTORY BARRIERS TO PUBLIC

7 ACCESS INFORMATION.— 

8 (1) REVIEW OF STATUTES.—As part of the re9 port required under subsection (a)(3), the Archivist 

10 shall examine existing Federal statutes that allow 

11 Federal agencies, offices, or contractors to control, 

12 protect, or otherwise withhold information based on 

13 security concerns. 

14 (2) RECOMMENDATIONS.—The report shall 

15 make recommendations on potential changes to the 

16 Federal statutes examined under paragraph (1) that 

17 would improve public access to information governed 

18 by such statutes. 

19 (d) DEFINITIONS.—In this section: 

20 (1) The term ‘‘congressional committees’’ 

21 means the Committees on Government Reform, Ju22 diciary, Homeland Security, and Appropriations of 

23 the House of Representatives and the Committees 

24 on Homeland Security and Governmental Affairs, 

25 Judiciary, and Appropriations of the Senate. 


CCOLEMAN on PROD1PC71 with BILLS
21 

•HR 5112 RH 

1 (2) The term ‘‘ ‘pseudo’ classification designa2 tions’’ means information control designations, in3 cluding ‘‘sensitive but unclassified’’ and ‘‘for official 

4 use only’’, that are not defined by Federal statute, 

5 or by an Executive order relating to the classifica6 tion of national security information, but that are 

7 used to manage, direct, or route Government infor8 mation, or control the accessibility of Government 

9 information, regardless of its form or format. 

10 SEC. 8. NATIONAL SECURITY WHISTLEBLOWER RIGHTS. 

11 Chapter 23 of title 5, United States Code, is amended 

12 by adding after section 2303 the following new section: 

13 ‘‘§ 2303a. National security whistleblower rights 

14 ‘‘(a) PROHIBITION OF REPRISALS.—In addition to 

15 any rights provided in Title VII of Public Law 105–272, 

16 section 2303 of title 5, United States Code, or any other 

17 law, an employee or applicant for employment of a covered 

18 agency may not be discharged, demoted, or otherwise dis19 criminated against, including denying, suspending, or re20 voking a security clearance or otherwise restricting access 

21 to classified or sensitive information, as a reprisal for dis22 closing covered information to an authorized Member of 

23 Congress or to an authorized official of an executive agen24 cy, the Department of Justice, or the Inspector General 

25 of the employee’s employing covered agency. 


CCOLEMAN on PROD1PC71 with BILLS
22 

•HR 5112 RH 

1 ‘‘(b) INVESTIGATION OF COMPLAINTS.—An employee 

2 or applicant for employment of a covered agency who be3 lieves he has been subjected to a reprisal prohibited by 

4 subsection (a) may submit a complaint to the Inspector 

5 General and head of the covered agency. The Inspector 

6 General shall investigate the complaint and, unless the In7 spector General determines that the complaint is frivolous, 

8 submit a report of the findings of the investigation within 

9 180 days to the employee or applicant for employment and 

10 the head of the covered agency. 

11 ‘‘(c) REMEDY.— 

12 ‘‘(1) Within 210 days of the filing of the com13 plaint, the head of the covered agency shall issue an 

14 order accepting or rejecting the complaint, or por15 tions thereof, taking into consideration the report 

16 issued by the Inspector General under subsection 

17 (b), if any. If the head of the covered agency accepts 

18 the complaint, he shall implement corrective action 

19 to return the complainant, as nearly as possible, to 

20 the position he would have held had the reprisal not 

21 occurred, including voiding any directive or order de22 nying, suspending, or revoking a security clearance 

23 or otherwise restricting access to classified or sen24 sitive information that constituted a reprisal, as well 

25 as providing back pay and related benefits, medical 


CCOLEMAN on PROD1PC71 with BILLS
23 

•HR 5112 RH 

1 costs incurred, travel expenses, and any other rea2 sonable and foreseeable consequential damages in3 cluding attorney’s fees and costs. If the head of the 

4 covered agency rejects the complaint, he shall issue 

5 a report to the employee or applicant for employ6 ment detailing the reasons for the rejection. 

7 ‘‘(2)(A) If the head of the covered agency, in 

8 the process of implementing corrective action under 

9 (c)(1), voids a directive or order denying, sus10 pending, or revoking a security clearance or other11 wise restricting access to classified or sensitive infor12 mation that constituted a reprisal, the head of the 

13 covered agency may re-initiate procedures to issue a 

14 directive or order denying, suspending, or revoking 

15 a security clearance or otherwise restricting access 

16 to classified or sensitive information only if those re17 initiated procedures are based exclusively on national 

18 security concerns and are unrelated to the actions 

19 constituting the original reprisal. 

20 ‘‘(B) In any case in which the head of a covered 

21 agency re-initiates procedures under (2)(A), the 

22 head of the covered agency shall issue an unclassi23 fied report to its IG and authorized members of 

24 Congress (with a classified annex if necessary), de25 tailing the circumstances of the agency’s re-initiated 


CCOLEMAN on PROD1PC71 with BILLS
24 

•HR 5112 RH 

1 procedures and describing the manner in which 

2 those procedures are based exclusively on national 

3 security concerns and are unrelated to the actions 

4 constituting the original reprisal. The head of the 

5 covered agency shall also provide periodic updates to 

6 the IG and authorized members of Congress detail7 ing any significant actions taken as a result of those 

8 procedures, and shall respond promptly to inquiries 

9 from authorized Members of Congress regarding the 

10 status of those procedures. 

11 ‘‘(3) If the head of the covered agency has not 

12 accepted or rejected the complaint within 210 days 

13 of the filing of the complaint, and there is no show14 ing that such delay is due to the bad faith of the 

15 complainant, the complainant shall be deemed to 

16 have exhausted his or her administrative remedies 

17 with respect to the complaint, and the complainant 

18 may bring an action at law or equity for de novo re19 view to seek any relief described in (c)(1) in the ap20 propriate district court of the United States, which 

21 shall have jurisdiction over such action without re22 gard to the amount in controversy. A petition to re23 view a final decision under this subsection shall be 

24 filed in the United States Court of Appeals for the 

25 Federal Circuit. 


CCOLEMAN on PROD1PC71 with BILLS
25 

•HR 5112 RH 

1 ‘‘(4) The complainant may obtain review of any 

2 order issued under this section in the appropriate 

3 district court of the United States or the United 

4 States Court of Appeals for the Federal Circuit. No 

5 petition seeking such review may be filed more than 

6 60 days after issuance of the order by the head of 

7 the agency. Review shall conform to chapter 7 of 

8 title 5. A petition to review a final decision of a dis9 trict court under this subsection shall be filed in the 

10 United States Court of Appeals for the Federal Cir11 cuit. 

12 ‘‘(5)(A) If, in any action for damages or relief 

13 under subsections (c)(3) or (c)(4), an executive 

14 branch agency moves to withhold information from 

15 discovery based on a claim that disclosure would be 

16 inimical to national security by asserting the privi17 lege commonly referred to as the ‘‘state secrets privi18 lege,’’ and if the assertion of such privilege prevents 

19 the plaintiff from establishing an element in support 

20 of the plaintiff’s claim, the court shall resolve the 

21 disputed issue of fact or law in favor of the plaintiff, 

22 provided that an inspector general investigation 

23 under subsection (b) has resulted in substantial con24 firmation of that element, or those elements, of the 

25 plaintiff’s claim. 


CCOLEMAN on PROD1PC71 with BILLS
26 

•HR 5112 RH 

1 ‘‘(B) In any case in which an executive branch 

2 agency asserts the privilege commonly referred to as 

3 the ‘‘state secrets privilege,’’ whether or not an in4 spector general has conducted an investigation under 

5 subsection (b), the head of that agency shall, at the 

6 same time it asserts the privilege, issue a report to 

7 authorized Members of Congress, accompanied by a 

8 classified annex if necessary, describing the reasons 

9 for the assertion, explaining why the court hearing 

10 the matter does not have the ability to maintain the 

11 protection of classified information related to the as12 sertion, detailing the steps the agency has taken to 

13 arrive at a mutually agreeable settlement with the 

14 employee or applicant for employment, setting forth 

15 the date on which the classified information at issue 

16 will be declassified, and providing all relevant infor17 mation about the underlying substantive matter. 

18 ‘‘(d) CONSTRUCTION.—Nothing in this section may 

19 be construed to authorize the discharge of, demotion of, 

20 or discrimination against an employee for a disclosure 

21 other than a disclosure protected by subsection (a) of this 

22 section or to modify or derogate from a right or remedy 

23 otherwise available to the employee or applicant for em24 ployment. 

25 ‘‘(e) DEFINITIONS.—In this section: 


CCOLEMAN on PROD1PC71 with BILLS
27 

•HR 5112 RH 

1 ‘‘(1) The term ‘‘covered information,’’ including 

2 classified information, is information that an em3 ployee reasonably believes to provide direct and spe4 cific evidence of— 

5 ‘‘(A) a violation of any law, rule, or regula6 tion, or 

7 ‘‘(B) gross mismanagement, a gross waste 

8 of funds, an abuse of authority, or a substantial 

9 and specific danger to public health or safety. 

10 ‘‘(2) The term ‘‘covered agency’’ means one of 

11 the following: 

12 ‘‘(A) The Central Intelligence Agency. 

13 ‘‘(B) The Defense Intelligence Agency. 

14 ‘‘(C) The National Imagery and Mapping 

15 Agency. 

16 ‘‘(D) The National Security Agency. 

17 ‘‘(E) The Federal Bureau of Investigation. 

18 ‘‘(F) The National Reconnaissance Office. 

19 ‘‘(G) Any other Executive agency, or ele20 ment or unit thereof, determined by the Presi21 dent under section 2302(a)(2)(C)(ii) of title 5, 

22 United States Code, to have as its principal 

23 function the conduct of foreign intelligence or 

24 counterintelligence activities. 


CCOLEMAN on PROD1PC71 with BILLS
28 

•HR 5112 RH 

1 ‘‘(3) The term ‘‘authorized member of Con2 gress’’ means a member of the House Permanent 

3 Select Committee on Intelligence, the Senate Select 

4 Committee on Intelligence, the House Committee on 

5 Government Reform, the Senate Committee on 

6 Homeland Security and Governmental Affairs, and 

7 the committees of the House of Representatives or 

8 the Senate that have oversight over the program 

9 about which the covered information is disclosed.’’. 


CCOLEMAN on PROD1PC71 with BILLS

CCOLEMAN on PROD1PC71 with BILLS
Union Calendar No. 249 

109TH CONGRESS 

2D SESSION H. R. 5112 

[Report No. 109

–445] 

A BILL 

To provide for reform in the operations of the 

executive branch. 

APRIL 27, 2006 

Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 


CCOLEMAN on PROD1PC71 with BILLS