IB 

Union Calendar No. 411 

110TH CONGRESS 

2D SESSION H. R. 5687 

[Report No. 110–650] 

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 

MAY 15, 2008 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on April 3, 2008] 

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, 


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

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

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

5 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. 

6 SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE. 

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

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

9 amended— 

10 (1) in the section heading by inserting ‘‘MEM11 BERSHIP;’’ after ‘‘ADVISORY COMMITTEES;’’; 

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

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

14 (3) by inserting after subsection (a) the fol15 lowing: 

16 ‘‘(b) APPOINTMENTS MADE WITHOUT REGARD TO PO17 LITICAL AFFILIATION OR ACTIVITY.—All appointments to 

18 advisory committees shall be made without regard to polit19 ical affiliation or political activity, unless required by Fed20 eral statute.’’. 

21 (b) CONFLICTS OF INTEREST DISCLOSURE.—Section 9 

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


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1 further amended by inserting after subsection (b) (as added 

2 by subsection (a)) the following: 

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

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

5 no individual appointed to serve on an advisory com6 mittee that reports to the agency has a conflict of in7 terest that is relevant to the functions to be performed 

8 by the advisory committee, unless the head of the 

9 agency determines that the conflict is unavoidable 

10 and that the need for the individual’s services out11 weighs the potential impacts of the conflict of interest. 

12 The head of each agency shall require that each indi13 vidual the agency appoints or intends to appoint to 

14 serve on an advisory committee inform the agency of15 ficial responsible for appointing the individual of any 

16 actual or potential conflict of interest the individual 

17 has that is relevant to the functions to be performed 

18 and that, for an individual appointed to serve on an 

19 advisory committee, the conflict is publicly disclosed 

20 as described in section 11. 

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

22 each report of an advisory committee that reports to 

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

24 judgment, independent from the agency. Each advi25 sory committee shall include in each report of the 


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1 committee a statement describing the process used by 

2 the advisory committee in formulating the rec3 ommendations or conclusions contained in the re4 port.’’. 

5 (c) REGULATIONS.— 

6 (1) REGULATIONS RELATING TO CONFLICTS OF

7 INTEREST.—Not later than 180 days after the date of 

8 the enactment of this Act, the Director of the Office 

9 of Government Ethics, in consultation with the Ad10 ministrator of General Services, shall promulgate reg11 ulations defining conflict of interest and such other 

12 regulations as the Director finds necessary to carry 

13 out and ensure the enforcement of subsection (c) of 

14 section 9 of the Federal Advisory Committee Act, as 

15 added by this section. 

16 (2) REGULATIONS IMPLEMENTING FACA.—Sec17 tion 7(c) of the Federal Advisory Committee Act (5 

18 U.S.C. App.) is amended by inserting after ‘‘(c)’’ the 

19 following: ‘‘The Administrator shall promulgate regu20 lations as necessary to implement this Act.’’. 


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1 SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FED2 ERAL ADVISORY COMMITTEE ACT AND PUB3 LIC DISCLOSURE. 

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

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

6 adding at the end the following: 

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

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

9 officer or employee of the Federal Government shall be re10 garded as a member of a committee if the individual regu11 larly attends and participates in committee meetings as if 

12 the individual were a member, even if the individual does 

13 not have the right to vote or veto the advice or recommenda14 tions of the advisory committee.’’. 

15 (b) INTERAGENCY ADVISORY COMMITTEES.—Section 

16 11 of the Federal Advisory Committee Act (5 U.S.C. App.) 

17 is amended by adding at the end the following: 

18 ‘‘(f) INTERAGENCY ADVISORY COMMITTEES.—(1) Any 

19 communication between— 

20 ‘‘(A) an interagency advisory committee estab21 lished by the President or the Vice President or any 

22 member or staff acting on behalf of such an inter23 agency advisory committee, and 

24 ‘‘(B) any person who is not an officer or em25 ployee of the Federal Government, 


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1 shall be made available for public inspection and 

2 copying. Any portion of a communication that in3 volves a matter described in section 552(b) of title 5, 

4 United States Code, or that is subject to a valid con5 stitutionally based privilege against such disclosure, 

6 may be withheld from public disclosure. 

7 ‘‘(2) In this subsection, the term ‘interagency advisory 

8 committee’ means any committee, board, commission, coun9 cil, conference, panel, task force, or other similar group, or 

10 any subcommittee or other subgroup thereof, established in 

11 the interest of obtaining advice or recommendations for the 

12 President or the Vice President, that is composed wholly 

13 of full-time, or permanent part-time, officers or employees 

14 of the Federal Government and includes officers or employ15 ees of at least two separate Federal agencies but does not 

16 include an advisory committee as defined in section 3(2) 

17 of this Act. 

18 ‘‘(3) This subsection is not intended to apply to cabinet 

19 meetings, the National Security Council, the Council of 

20 Economic Advisors, or any other permanent advisory body 

21 established by statute.’’. 

22 (c) SUBCOMMITTEES.—Section 4 of the Federal Advi23 sory Committee Act (5 U.S.C. App.) is amended by striking 

24 subsection (a) and inserting the following: 


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

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

3 shall apply to each advisory committee, including any sub4 committee or subgroup thereof, except to the extent that any 

5 Act of Congress establishing any such advisory committee 

6 specifically provides otherwise. Any subcommittee or sub7 group that reports to a parent committee established under 

8 section 9(a) is not required to comply with section 9(e). In 

9 this subsection, the term ‘subgroup’ includes any working 

10 group, task force, or other entity formed for the purpose of 

11 assisting the committee or any subcommittee of the com12 mittee in its work.’’. 

13 (d) COMMITTEES CREATED UNDER CONTRACT.—Sec14 tion 3(2) of the Federal Advisory Committee Act (5 U.S.C. 

15 App.) is amended in the matter following subparagraph (C) 

16 by adding at the end the following: ‘‘An advisory committee 

17 is considered to be established by an agency, agencies, or 

18 the President, if it is formed, created, or organized under 

19 contract, other transactional authority, cooperative agree20 ment, grant, or otherwise at the request or direction of, an 

21 agency, agencies, or the President.’’. 

22 (e) ADVISORY COMMITTEES CONTAINING SPECIAL

23 GOVERNMENT EMPLOYEES.—Section 4 of the Federal Advi24 sory Committee Act (5 U.S.C. App.) is further amended by 

25 adding at the end the following new subsection: 


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1 ‘‘(e) SPECIAL GOVERNMENT EMPLOYEES.—Committee 

2 members appointed as special government employees shall 

3 not be considered full-time or part-time officers or employ4 ees of the Federal Government for purposes of determining 

5 the applicability of this Act under section 3(2).’’. 

6 SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COM7 MITTEES. 

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

9 Federal Advisory Committee Act (5 U.S.C. App.) is amend10 ed— 

11 (1) by striking the section designation and head12 ing and inserting the following: 

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

14 (2) by redesignating subsection (a) as subsection 

15 (d) and in that subsection— 

16 (A) by inserting the following subsection 

17 heading: ‘‘AVAILABILITY OF PAPER COPIES OF

18 TRANSCRIPTS.—’’; and 

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

20 following: ‘‘paper’’; 

21 (3) by striking ‘‘(b)’’ and inserting ‘‘(e) AGENCY

22 PROCEEDING DEFINED.—’’; and 

23 (4) by inserting before subsection (d), as redesig24 nated by paragraph (2), the following new sub25 sections: 


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

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

3 committee reports shall make publicly available in accord4 ance with subsection (b) the following information: 

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

6 ‘‘(2) A description of the process used to establish 

7 and appoint the members of the advisory committee, 

8 including the following: 

9 ‘‘(A) The process for identifying prospective 

10 members. 

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

12 balance of viewpoints or expertise. 

13 ‘‘(C) A justification of the need for rep14 resentative members, if any. 

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

16 each member, the following: 

17 ‘‘(A) The name of any person or entity that 

18 nominated the member. 

19 ‘‘(B) The reason the member was appointed 

20 to the committee. 

21 ‘‘(C) Whether the member is designated as a 

22 special government employee or a representative. 

23 ‘‘(D) In the case of a representative, the in24 dividuals or entity whose viewpoint the member 

25 represents. 


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1 ‘‘(E) Any conflict of interest relevant to the 

2 functions to be performed by the committee. 

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

4 government employees for whom written certifications 

5 were made under section 208(b) of title 18, United 

6 States Code, a summary description of the conflict ne7 cessitating the certification, and the reason for grant8 ing the certification. 

9 ‘‘(5) A summary of the process used by the advi10 sory committee for making decisions. 

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

12 all meetings of the committee. 

13 ‘‘(7) Any written determination by the President 

14 or the head of the agency to which the advisory com15 mittee reports, pursuant to section 10(d), to close a 

16 meeting or any portion of a meeting and the reasons 

17 for such determination. 

18 ‘‘(8) Notices of future meetings of the committee. 

19 ‘‘(9) Any additional information considered rel20 evant by the head of the agency to which the advisory 

21 committee reports. 

22 ‘‘(b) MANNER OF DISCLOSURE.— 

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

24 head of an agency shall make the information re25 quired to be disclosed under this section available 


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1 electronically on the official public internet site of the 

2 agency at least 15 calendar days before each meeting 

3 of an advisory committee. If the head of the agency 

4 determines that such timing is not practicable for any 

5 required information, he shall make the information 

6 available as soon as practicable but no later than 48 

7 hours before the next meeting of the committee. 

8 ‘‘(2) The head of an agency shall make available 

9 electronically, on the official public internet site of the 

10 agency, a transcript or audio or video recording of 

11 each advisory committee meeting not later than 7 cal12 endar days after the meeting. 

13 ‘‘(c) PROVISION OF INFORMATION BY ADMINISTRATOR

14 OF GENERAL SERVICES.—The Administrator of General 

15 Services shall provide, on the official public internet site 

16 of the General Services Administration, electronic access to 

17 the information made available by each agency under this 

18 section.’’. 

19 (b) CHARTER FILING.—Section 9(e) of the Federal Ad20 visory Committee Act (5 U.S.C. App.), as redesignated by 

21 section 2, is amended— 

22 (1) by striking ‘‘with (1) the Administrator,’’ 

23 and all that follows through ‘‘, or’’ and inserting ‘‘(1) 

24 with the Administrator and’’; 


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1 (2) by striking ‘‘and’’ at the end of subpara2 graph (I); 

3 (3) by striking the period and inserting a semi4 colon at the end of subparagraph (J); and 

5 (4) by adding at the end the following new sub6 paragraphs: 

7 ‘‘(K) the authority under which the committee is 

8 established; 

9 ‘‘(L) the estimated number of members and a de10 scription of the expertise needed to carry out the ob11 jectives of the committee; 

12 ‘‘(M) a description of whether the committee will 

13 be composed of special government employees, rep14 resentatives, or members from both categories; and 

15 ‘‘(N) whether the committee has the authority to 

16 create subcommittees and if so, the individual author17 ized to exercise such authority.’’. 

18 SEC. 5. COMPTROLLER GENERAL REVIEW AND REPORTS. 

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

20 States shall review compliance by agencies with the Federal 

21 Advisory Committee Act, as amended by this Act, including 

22 whether agencies are appropriately appointing advisory 

23 committee members as either special government employees 

24 or representatives. 


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

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

3 on the results of the review, as follows: 

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

5 than one year after the date of promulgation of regu6 lations under section 2. 

7 (2) The second report shall be submitted not later 

8 than five years after such date of promulgation of reg9 ulations. 

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

11 subsection are the Committee on Oversight and Government 

12 Reform of the House of Representatives and the Committee 

13 on Homeland Security and Governmental Affairs of the 

14 Senate. 

15 SEC. 6. DEFINITIONS. 

16 Section 3 of the Federal Advisory Committee Act (5 

17 U.S.C. App.) is amended by adding at the end the following 

18 new paragraphs: 

19 ‘‘(5) The term ‘representative’ means an indi20 vidual who is not a full-time or part-time employee 

21 of the Federal Government and who is appointed to 

22 an advisory committee to represent the views of an 

23 entity or entities outside the Federal Government. 


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1 ‘‘(6) The term ‘special Government employee’ has 

2 the same meaning as in section 202(a) of title 18, 

3 United States Code.’’. 

4 SEC. 7. EFFECTIVE DATE. 

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

6 enactment of this Act, except as otherwise provided in sec7 tion 2(c)(1). 


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Union Calendar No. 411 

110TH CONGRESS 

2D SESSION H. R. 5687 

[Report No. 110

–650] 

A BILL 

To amend the Federal Advisory Committee Act to 

poses. Federal advisory committees, and for other purincrease the transparency and accountability of 

MAY 15, 2008 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


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