I 

110TH CONGRESS 

2D SESSION H. R. 5687 

To amend the Federal Advisory Committee Act to increase the transparency 

and accountability of Federal advisory committees, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 3, 2008 

Mr. CLAY (for himself and Mr. WAXMAN) introduced the following bill; which 

was referred to the Committee on Oversight and Government Reform 

A BILL 

To amend the Federal Advisory Committee Act to increase 

the transparency and accountability of Federal advisory 

committees, and for other purposes. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Federal Advisory Committee Act Amendments of 2008’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 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. 


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Sec. 5. Comptroller General review and reports. 

Sec. 6. Definition. 

Sec. 7. Effective date. 

1 SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE. 

2 (a) BAR ON POLITICAL LITMUS TESTS.—Section 9 

3 of the Federal Advisory Committee Act (5 U.S.C. App.) 

4 is amended— 

5 (1) in the section heading by inserting ‘‘mem6 bership;’’ after ‘‘advisory committees;’’; 

7 (2) by redesignating subsections (b) and (c) as 

8 subsections (d) and (e), respectively; and 

9 (3) by inserting after subsection (a) the fol10 lowing: 

11 ‘‘(b) APPOINTMENTS MADE WITHOUT REGARD TO

12 POLITICAL AFFILIATION OR ACTIVITY.—All appointments 

13 to advisory committees shall be made without regard to 

14 political affiliation or political activity, unless required by 

15 Federal statute.’’. 

16 (b) CONFLICTS OF INTEREST DISCLOSURE.—Section 

17 9 of the Federal Advisory Committee Act (5 U.S.C. App.) 

18 is further amended by inserting after subsection (b) (as 

19 added by subsection (a)) the following: 

20 ‘‘(c) CONFLICTS OF INTEREST DISCLOSURE.— 

21 ‘‘(1) The head of each agency shall ensure that 

22 no individual appointed to serve on an advisory com23 mittee that reports to the agency has a conflict of 

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1 formed by the advisory committee, unless the head 

2 of the agency determines that the conflict is un3 avoidable and that the need for the individual’s serv4 ices outweighs the potential impacts of the conflict 

5 of interest. The head of each agency shall require 

6 that each individual the agency appoints or intends 

7 to appoint to serve on an advisory committee inform 

8 the agency official responsible for appointing the in9 dividual of any actual or potential conflict of interest 

10 the individual has that is relevant to the functions 

11 to be performed and that, for an individual ap12 pointed to serve on an advisory committee, the con13 flict is publicly disclosed as described in section 11. 

14 ‘‘(2) The head of each agency shall ensure that 

15 each report of an advisory committee that reports to 

16 the agency is the result of the advisory committee’s 

17 independent judgment. Each advisory committee 

18 shall include in each report of the committee a state19 ment describing the process used by the advisory 

20 committee in formulating the recommendations or 

21 conclusions contained in the report.’’. 

22 (c) REGULATIONS AND GUIDANCE.—Not later than 

23 180 days after the date of the enactment of this Act, the 

24 Administrator of General Services, in consultation with 

25 the Director of the Office of Government Ethics, shall— 


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1 (1) promulgate regulations defining conflict of 

2 interest and such other regulations as the Adminis3 trator finds necessary to carry out and ensure the 

4 enforcement of this section; and 

5 (2) issue guidance for agencies and advisory 

6 committees on procedures and best practices for en7 suring that advisory committees provide independent 

8 advice and expertise. 

9 SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FED10 ERAL ADVISORY COMMITTEE ACT AND PUB11 LIC DISCLOSURE. 

12 (a) DE FACTO MEMBERS.—Section 4 of the Federal 

13 Advisory Committee Act (5 U.S.C. App.) is amended by 

14 adding at the end the following: 

15 ‘‘(d) TREATMENT OF INDIVIDUAL AS MEMBER.—An 

16 individual who is not a full-time or permanent part-time 

17 officer or employee of the Federal Government shall be 

18 regarded as a member of a committee if the individual 

19 regularly attends and participates in committee meetings 

20 as if the individual were a member, even if the individual 

21 does not have the right to vote or veto the advice or rec22 ommendations of the advisory committee.’’. 

23 (b) WHITE HOUSE INTERAGENCY ADVISORY COM24 MITTEES.—Section 11 of the Federal Advisory Committee 


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1 Act (5 U.S.C. App.) is amended by adding at the end the 

2 following: 

3 ‘‘(f) WHITE HOUSE INTERAGENCY ADVISORY COM4 MITTEES.—Any communication between— 

5 ‘‘(1) an interagency committee or task force es6 tablished by the President or the Vice President or 

7 any member or staff acting on behalf of such an 

8 interagency committee or task force, and 

9 ‘‘(2) any person who is not an officer or em10 ployee of the Federal Government, 

11 shall be made available for public inspection and copying. 

12 Any portion of a communication that involves a matter 

13 described in section 552(b) of title 5, United States Code, 

14 or that is subject to a valid constitutionally based privilege 

15 against such disclosure, may be withheld from public dis16 closure.’’. 

17 (c) SUBCOMMITTEES.—Section 4 of the Federal Ad18 visory Committee Act (5 U.S.C. App.) is amended by 

19 striking subsection (a) and inserting the following: 

20 ‘‘(a) APPLICATION.—The provisions of this Act or of 

21 any rule, order, or regulation promulgated under this Act 

22 shall apply to each advisory committee, including any sub23 committee or subgroup thereof, except to the extent that 

24 any Act of Congress establishing any such advisory com25 mittee specifically provides otherwise. Any subcommittee 


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1 or subgroup that reports to a parent committee estab2 lished under section 9(a) is not required to comply with 

3 section 9(e). In this subsection, the term ‘subgroup’ in4 cludes any working group, task force, or other entity 

5 formed for the purpose of assisting the committee or any 

6 subcommittee of the committee in its work.’’. 

7 (d) COMMITTEES CREATED UNDER CONTRACT.— 

8 Section 3(2) of the Federal Advisory Committee Act (5 

9 U.S.C. App.) is amended in the matter following subpara10 graph (C) by adding at the end the following: ‘‘An advi11 sory committee is considered to be established by an agen12 cy, agencies, or the President, if it is formed, created, or 

13 organized under contract, other transactional authority, 

14 cooperative agreement, grant, or otherwise at the request 

15 or direction of, an agency, agencies, or the President.’’. 

16 (e) ADVISORY COMMITTEES CONTAINING SPECIAL

17 GOVERNMENT EMPLOYEES.—Section 4 of the Federal Ad18 visory Committee Act (5 U.S.C. App.) is further amended 

19 by adding at the end the following new subsection: 

20 ‘‘(e) SPECIAL GOVERNMENT EMPLOYEES.—Com21 mittee members appointed as special government employ22 ees shall not be considered full-time or part-time officers 

23 or employees of the Federal Government for purposes of 

24 determining the applicability of this Act under section 

25 3(2).’’. 


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1 SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COM2 MITTEES. 

3 (a) INFORMATION REQUIREMENT.—Section 11 of the 

4 Federal Advisory Committee Act (5 U.S.C. App.) is 

5 amended— 

6 (1) by amending the section heading to read as 

7 follows: 

8 ‘‘SEC. 11. DISCLOSURE OF INFORMATION.’’; 

9 (2) by redesignating subsection (a) as sub10 section (d) and in that subsection— 

11 (A) by inserting the following subsection 

12 heading: ‘‘AVAILABILITY OF PAPER COPIES OF

13 TRANSCRIPTS.—’’; and 

14 (B) by inserting after ‘‘duplication,’’ the 

15 following: ‘‘paper’’; 

16 (3) by redesignating subsection (b) as sub17 section (e); and 

18 (4) by inserting before subsection (d), as redes19 ignated by paragraph (2), the following new sub20 sections: 

21 ‘‘(a) IN GENERAL.—With respect to each advisory 

22 committee, the head of the agency to which the advisory 

23 committee reports shall make publicly available in accord24 ance with subsection (b) the following information: 

25 ‘‘(1) The charter of the advisory committee. 


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1 ‘‘(2) A description of the process used to estab2 lish and appoint the members of the advisory com3 mittee, including the following: 

4 ‘‘(A) The process for identifying prospec5 tive members. 

6 ‘‘(B) The process of selecting members for 

7 balance of viewpoints or expertise. 

8 ‘‘(C) A justification of the need for rep9 resentative members, if any. 

10 ‘‘(3) A list of all current members, including, 

11 for each member, the following: 

12 ‘‘(A) The name of any person or entity 

13 that nominated the member. 

14 ‘‘(B) The reason the member was ap15 pointed to the committee. 

16 ‘‘(C) Whether the member is designated as 

17 a special government employee or a representa18 tive. 

19 ‘‘(D) In the case of a representative, the 

20 individuals or entity whose viewpoint the mem21 ber represents. 

22 ‘‘(E) Any conflict of interest relevant to 

23 the functions to be performed by the committee. 

24 ‘‘(4) A list of all members designated as special 

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1 cations were made under section 208(b) of title 18, 

2 United States Code, a summary description of the 

3 conflict necessitating the certification, and the rea4 son for granting the certification. 

5 ‘‘(5) A summary of the process used by the ad6 visory committee for making decisions. 

7 ‘‘(6) Transcripts or audio or video recordings of 

8 all meetings of the committee. 

9 ‘‘(7) Any written determination by the Presi10 dent or the head of the agency to which the advisory 

11 committee reports, pursuant to section 10(d), to 

12 close a meeting or any portion of a meeting and the 

13 reasons for such determination. 

14 ‘‘(8) Notices of future meetings of the com15 mittee. 

16 ‘‘(9) Any additional information considered rel17 evant by the head of the agency to which the advi18 sory committee reports. 

19 ‘‘(b) MANNER OF DISCLOSURE.— 

20 ‘‘(1) Except as provided in paragraph (2), the 

21 head of an agency shall make the information re22 quired to be disclosed under this section available 

23 electronically on the official public internet site of 

24 the agency at least 15 calendar days before each 

25 meeting of an advisory committee. If the head of the 


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1 agency determines that such timing is not prac2 ticable for any required information, he shall make 

3 the information available as soon as practicable but 

4 no later than 48 hours before the next meeting of 

5 the committee. 

6 ‘‘(2) The head of an agency shall make avail7 able electronically, on the official public internet site 

8 of the agency, a transcript or audio or video record9 ing of each advisory committee meeting not later 

10 than 7 calendar days after the meeting. 

11 ‘‘(c) PROVISION OF INFORMATION BY ADMINIS12 TRATOR OF GENERAL SERVICES.—The Administrator of 

13 General Services shall provide, on the official public inter14 net site of the General Services Administration, electronic 

15 access to the information made available by each agency 

16 under this section.’’. 

17 (b) CHARTER FILING.—Section 9(e) of the Federal 

18 Advisory Committee Act (5 U.S.C. App.), as redesignated 

19 by section 2, is amended by striking ‘‘with (1) the Admin20 istrator,’’ and all that follows through ‘‘, or’’ and inserting 

21 ‘‘(1) with the Administrator and’’. 

22 SEC. 5. COMPTROLLER GENERAL REVIEW AND REPORTS. 

23 (a) REVIEW.—The Comptroller General of the United 

24 States shall review compliance by agencies with the Fed25 eral Advisory Committee Act, as amended by this Act, inVerDate Aug 31 2005 06:50 Apr 05, 2008 Jkt 069200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5687.IH H5687

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1 cluding whether agencies are appropriately appointing ad2 visory committee members as either special government 

3 employees or representatives. 

4 (b) REPORT.—The Comptroller General shall submit 

5 to the committees described in subsection (c) two reports 

6 on the results of the review, as follows: 

7 (1) The first report shall be submitted not later 

8 than one year after the date of promulgation of reg9 ulations under section 2. 

10 (2) The second report shall be submitted not 

11 later than five years after such date of promulgation 

12 of regulations. 

13 (c) COMMITTEES.—The committees described in this 

14 subsection are the Committee on Oversight and Govern15 ment Reform of the House of Representatives and the 

16 Committee on Homeland Security and Governmental Af17 fairs of the Senate. 

18 SEC. 6. DEFINITION. 

19 Section 3 of the Federal Advisory Committee Act (5 

20 U.S.C. App.) is amended by adding at the end the fol21 lowing new paragraph: 

22 ‘‘(5) The term ‘special Government employee’ 

23 has the same meaning as in section 202(a) of title 

24 18, United States Code.’’. 


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1 SEC. 7. EFFECTIVE DATE. 

2 This Act shall take effect 30 days after the date of 

3 the enactment of this Act, except as otherwise provided 

4 in section 2(c). 

Æ 


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