IIB 

110TH CONGRESS 

2D SESSION H. R. 5687 

IN THE SENATE OF THE UNITED STATES 

JUNE 25, 2008 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

AN ACT 

To amend the Federal Advisory Committee Act to increase 

the transparency and accountability of Federal advisory 

committees, and for other purposes. 

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 

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

9 is 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

17 POLITICAL AFFILIATION OR ACTIVITY.—All appointments 

18 to advisory committees shall be made without regard to 

19 political affiliation or political activity, unless required by 

20 Federal statute.’’. 

21 (b) CONFLICTS OF INTEREST DISCLOSURE.—Section 

22 9 of the Federal Advisory Committee Act (5 U.S.C. App.) 


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

2 added by subsection (a)) the following: 

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

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

5 that no individual appointed to serve on an advisory 

6 committee that reports to the agency has a conflict 

7 of interest that is relevant to the functions to be per8 formed by the advisory committee, unless the head 

9 of the agency determines that the need for the indi10 vidual’s services outweighs the potential impacts of 

11 the conflict of interest. 

12 ‘‘(B) If the head of the agency makes such a 

13 determination with respect to an individual, nothing 

14 in this subsection is intended to preclude the head 

15 of the agency from requiring the recusal of the indi16 vidual from particular aspects of the committee’s 

17 work. 

18 ‘‘(C) In the case of an individual appointed as 

19 a representative, the fact that an individual is asso20 ciated with the entity whose views are being rep21 resented by the individual shall not itself be consid22 ered a conflict of interest by the agency. 

23 ‘‘(2) The head of each agency shall require— 

24 ‘‘(A) that each individual the agency ap25 points or intends to appoint to serve on an adVerDate Aug 31 2005 05:20 Jun 26, 2008 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5687.RFS H5687

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1 visory committee as a representative inform the 

2 agency official responsible for appointing the in3 dividual in writing of any actual or potential 

4 conflict of interest— 

5 ‘‘(i) that exists before appointment or 

6 that arises while the individual is serving 

7 on the Committee; and 

8 ‘‘(ii) that is relevant to the functions 

9 to be performed; and 

10 ‘‘(B) that, for an individual appointed to 

11 serve on an advisory committee, the conflict is 

12 publicly disclosed as described in section 11. 

13 ‘‘(3) Nothing in this subsection is intended to 

14 alter any requirement or obligation for a special 

15 Government employee under the Ethics in Govern16 ment Act (5 U.S.C. App.) or other applicable ethics 

17 law, including any requirement to file a financial dis18 closure report. The head of each agency shall require 

19 that each individual the agency appoints as a special 

20 Government employee inform the agency in writing 

21 of any conflict that exists before appointment or 

22 that arises while the individual is serving on the 

23 committee to the extent any financial disclosure re24 quired by the Ethics in Government Act (5 U.S.C. 

25 app.) or other applicable law would not uncover the 


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1 conflict of interest as such term is defined in regula2 tions promulgated by the Office of Government Eth3 ics to carry out this subsection. 

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

5 each report of an advisory committee that reports to 

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

7 judgment, independent from the agency. Each advi8 sory committee shall include in each report of the 

9 committee a statement describing the process used 

10 by the advisory committee in formulating the rec11 ommendations or conclusions contained in the re12 port.’’. 

13 (c) REGULATIONS.— 

14 (1) REGULATIONS RELATING TO CONFLICTS OF

15 INTEREST.—Not later than 180 days after the date 

16 of the enactment of this Act, the Director of the Of17 fice of Government Ethics, in consultation with the 

18 Administrator of General Services, shall promul19 gate— 

20 (A) regulations defining the term ‘‘conflict 

21 of interest’’; 

22 (B) regulations identifying the method by 

23 which individuals must disclose conflicts and 

24 the period of time for which a representative or 

25 special Government employee, or a candidate 


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1 for appointment as a representative or special 

2 Government employee, shall look back in time 

3 to determine whether an interest is considered 

4 a conflict for the purpose of the notification re5 quirement in subsection (c) of section 9 of the 

6 Federal Advisory Committee Act, as added by 

7 this section; and 

8 (C) such other regulations as the Director 

9 finds necessary to carry out and ensure the en10 forcement of such subsection (c). 

11 (2) REGULATIONS IMPLEMENTING FACA.—Sec12 tion 7(c) of the Federal Advisory Committee Act (5 

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

14 following: ‘‘The Administrator shall promulgate reg15 ulations as necessary to implement this Act.’’. 

16 SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FED17 ERAL ADVISORY COMMITTEE ACT AND PUB18 LIC DISCLOSURE. 

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

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

21 adding at the end the following: 

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

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

24 officer or employee of the Federal Government shall be 

25 regarded as a member of a committee if the individual 


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1 regularly attends and participates in committee meetings 

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

3 does not have the right to vote or veto the advice or rec4 ommendations of the advisory committee.’’. 

5 (b) INTERAGENCY ADVISORY COMMITTEES.—Section 

6 11 of the Federal Advisory Committee Act (5 U.S.C. 

7 App.) is amended by adding at the end the following: 

8 ‘‘(f) INTERAGENCY ADVISORY COMMITTEES.—(1) 

9 Any communication between— 

10 ‘‘(A) an interagency advisory committee estab11 lished by the President or the Vice President or any 

12 member or staff acting on behalf of such an inter13 agency advisory committee, and 

14 ‘‘(B) any person who is not an officer or em15 ployee of the Federal Government, 

16 shall be made available for public inspection and 

17 copying. Any portion of a communication that in18 volves a matter described in section 552(b) of title 

19 5, United States Code, or that is subject to a valid 

20 constitutionally based privilege against such disclo21 sure, may be withheld from public disclosure. 

22 ‘‘(2) In this subsection, the term ‘interagency advi23 sory committee’ means any committee, board, commission, 

24 council, conference, panel, task force, or other similar 

25 group, or any subcommittee or other subgroup thereof, esVerDate Aug 31 2005 05:20 Jun 26, 2008 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5687.RFS H5687

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1 tablished in the interest of obtaining advice or rec2 ommendations for the President or the Vice President, 

3 that is composed wholly of full-time, or permanent part4 time, officers or employees of the Federal Government and 

5 includes officers or employees of at least two separate Fed6 eral agencies but does not include an advisory committee 

7 as defined in section 3(2) of this Act. 

8 ‘‘(3) This subsection is not intended to apply to cabi9 net meetings, the National Security Council, the Council 

10 of Economic Advisors, or any other permanent advisory 

11 body established by statute.’’. 

12 (c) SUBCOMMITTEES.—Section 4 of the Federal Ad13 visory Committee Act (5 U.S.C. App.) is amended by 

14 striking subsection (a) and inserting the following: 

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

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

17 shall apply to each advisory committee, including any sub18 committee or subgroup thereof, except to the extent that 

19 any Act of Congress establishing any such advisory com20 mittee specifically provides otherwise. Any subcommittee 

21 or subgroup that reports to a parent committee estab22 lished under section 9(a) is not required to comply with 

23 section 9(e). In this subsection, the term ‘subgroup’ in24 cludes any working group, task force, or other entity 


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1 formed for the purpose of assisting the committee or any 

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

3 (d) COMMITTEES CREATED UNDER CONTRACT.— 

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

5 U.S.C. App.) is amended in the matter following subpara6 graph (C) by adding at the end the following: ‘‘An advi7 sory committee is considered to be established by an agen8 cy, agencies, or the President, if it is formed, created, or 

9 organized under contract, other transactional authority, 

10 cooperative agreement, grant, or otherwise at the request 

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

12 (e) ADVISORY COMMITTEES CONTAINING SPECIAL

13 GOVERNMENT EMPLOYEES.—Section 4 of the Federal Ad14 visory Committee Act (5 U.S.C. App.) is further amended 

15 by adding at the end the following new subsection: 

16 ‘‘(e) SPECIAL GOVERNMENT EMPLOYEES.—Com17 mittee members appointed as special government employ18 ees shall not be considered full-time or part-time officers 

19 or employees of the Federal Government for purposes of 

20 determining the applicability of this Act under section 

21 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 striking the section designation and 

7 heading and inserting the following: 

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 striking ‘‘(b)’’ and inserting ‘‘(e) AGEN17 CY PROCEEDING DEFINED.—’’; 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. An agency may withhold from disclo6 sure any information that would be exempt from dis7 closure under section 552 of title 5, United States 

8 Code. 

9 ‘‘(2) The head of an agency shall make avail10 able electronically, on the official public internet site 

11 of the agency, a transcript or audio or video record12 ing of each advisory committee meeting not later 

13 than 30 calendar days after the meeting. 

14 ‘‘(c) PROVISION OF INFORMATION BY ADMINIS15 TRATOR OF GENERAL SERVICES.—The Administrator of 

16 General Services shall provide, on the official public inter17 net site of the General Services Administration, electronic 

18 access to the information made available by each agency 

19 under this section.’’. 

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

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

22 by section 2, is amended— 

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

24 and all that follows through ‘‘, or’’ and inserting 

25 ‘‘(1) 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 

8 is established; 

9 ‘‘(L) the estimated number of members and a 

10 description of the expertise needed to carry out the 

11 objectives of the committee; 

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

13 will be composed of special government employees, 

14 representatives, or members from both categories; 

15 and 

16 ‘‘(N) whether the committee has the authority 

17 to create subcommittees and if so, the agency official 

18 authorized to exercise such authority.’’. 

19 SEC. 5. COMPTROLLER GENERAL REVIEW AND REPORTS. 

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

21 States shall review compliance by agencies with the Fed22 eral Advisory Committee Act, as amended by this Act, in23 cluding whether agencies are appropriately appointing ad24 visory committee members as either special government 

25 employees 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 reg6 ulations under section 2. 

7 (2) The second report shall be submitted not 

8 later than five years after such date of promulgation 

9 of regulations. 

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

11 subsection are the Committee on Oversight and Govern12 ment Reform of the House of Representatives and the 

13 Committee on Homeland Security and Governmental Af14 fairs of the 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 fol18 lowing 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’ 

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

3 18, United States Code.’’. 

4 SEC. 7. EFFECTIVE DATE. 

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

6 the enactment of this Act, except as otherwise provided 

7 in section 2(c)(1). 

Passed the House of Representatives June 24, 2008. 

Attest: LORRAINE C. MILLER, 

Clerk. 


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