[Pages H10578-H10581]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 1997

Mr. HORN. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 2977) to amend the Federal Advisory Committee Act to clarify
public disclosure requirements that are applicable to the National
Academy of Sciences and the National Academy of Public Administration.
The Clerk read as follows:

H.R. 2977

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Federal Advisory Committee
Act Amendments of 1997''.

SEC. 2. AMENDMENTS TO THE FEDERAL ADVISORY COMMITTEE ACT.

(a) Exclusions From Definition.--Section 3(2) of the
Federal Advisory Committee act (5 U.S.C. App) is amended in
the matter following subparagraph (C), by striking ``such
term excludes'' and all that follows through the period and
inserting the following: ``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.''.
(b) Requirements Relating to the National Academy of
Sciences and the National Academy of Public Administration.--
Such act is further amended by redesignating section 15 as
section 16 and inserting after section 14 the following new
section:

``requirements relating to the national academy of sciences and the
national academy of public administration

``Sec. 15. (a) In General.--An agency may not use any
advice or recommendation provided by the National Academy of
Sciences or National Academy of Public Administration that
was developed by use of a committee created by that academy
under an agreement with an agency, unless--
``(1) the committee was not subject to any actual
management or control by an agency or an officer of the
Federal Government;
``(2) in the case of a committee created after the date of
the enactment of the Federal Advisory Committee Act
Amendments of 1997, the membership of the committee was
appointed in accordance with the requirements described in
subsection (b)(1); and
``(3) in developing the advice or recommendation, the
academy complied with--
``(A) subsection (b)(2) through (6), in the case of any
advice or recommendation provided by the National Academy of
Sciences; or
``(B) subsection (b)(2) and (5), in the case of any advice
or recommendation provided by the National Academy of Public
Administration.
``(b) Requirements.--The requirements referred to in
subsection (a) are as follows:
``(1) The Academy shall determine and provide public notice
of the names and brief biographies of individuals that the
Academy appoints or intends to appoint to serve on the
committee. The Academy shall determine and provide a
reasonable opportunity for the public to comment on such
appointments before they are made or, if the Academy
determines such prior comment is not practicable, in the
period immediately following the appointments. The Academy
shall make its best efforts to ensure that (A) no individual
appointed to serve on the committee has a conflict of
interest that is relevant to the functions to be performed,
unless such conflict is promptly and publicly disclosed and
the Academy determines that the conflict is unavoidable, (B)
the committee membership is fairly balanced as determined by
the Academy to be appropriate for the functions to be
performed, and (C) the final report of the Academy will be
the result of the Academy's independent judgment. The Academy
shall require that individuals that the Academy appoints or
intends to appoint to serve on the committee inform the
Academy of the individual's conflicts of interest that are
relevant to the functions to be performed.
``(2) The Academy shall determine and provide public notice
of committee meetings that will be open to the public.
``(3) The Academy shall ensure that meetings of the
committee to gather data from individuals who are not
officials, agents, or employees of the Academy are open to
the public, unless the Academy determines that a meeting
would disclose matters described in section 552(b) of
title 5, United States Code. The Academy shall make
available to the public, at reasonable charge if
appropriate, written materials presented to the committee
by individuals who are not officials, agents, or employees
of the Academy, unless the Academy determines that making
material available would disclose matters described in
that section.
``(4) The Academy shall make available to the public as
soon as practicable, at reasonable charge if appropriate, a
brief summary of any committee meeting that is not a data
gathering meeting, unless the Academy determines that the
summary would disclose matters described in section 552(b) of
title 5, United States Code. The summary shall identify the
committee members present, the topics discussed, materials
made available to the committee, and such other matters that
the Academy determines should be included.
``(5) The Academy shall make available to the public its
final report, at reasonable charge if appropriate, unless the
Academy determines that the report would disclose matters
described in section 552(b) of title 5, United States Code.
If the Academy determines that the report would disclose
matters described in that section, the Academy shall make
public an abbreviated version of the report that does not
disclose those matters.
``(6) After publication of the final report, the Academy
shall make publicly available the names of the principal
reviewers who reviewed the report in draft form and who are
not officials, agents, or employees of the Academy.
``(c) Regulations.--The Administrator of General Services
may issue regulations implementing this section.''.
(c) Effective Date and Application.--
(1) In General.--Except as provided in paragraph (2), this
section and the amendments made by this section shall take
effect on the date of the enactment of this Act.
(2) Retroactive Effect.--Subsection (a) and the amendments
made by subsection (a) shall be effective as of October 6,
1972, except that they shall not apply with respect to or
otherwise affect any particular advice or recommendations
that are subject to any judicial action filed before the date
of the enactment of this Act.

[[Page H10579]]

SEC. 3. REPORT.

Not later than 1 year after the date of the enactment of
this Act, the Administrator of General Services shall submit
a report to the Congress on the implementation of and
compliance with the amendments made by this Act.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
California [Mr. Horn] and the gentleman from California [Mr. Waxman]
each will control 20 minutes.
The Chair recognizes the gentleman from California [Mr. Horn].
Mr. HORN. Mr. Speaker, I yield myself such time as I may consume.
(Mr. HORN asked and was given permission to revise and extend his
remarks and insert extraneous material.)
Mr. HORN. Mr. Speaker, we will use much less than the amount given to
either of us. We know the House has been working hard and late, and we
are going to keep our comments to just a very few minutes on either
side.
Mr. Speaker, the Federal Advisory Committee Act was passed in 1972,
as some of the senior Members will remember. For the last 25 years, the
administration, Congress, and the various academies such as the
National Academy of Sciences and the National Academy of Public
Administration, have never questioned the applicability of this law.
Recently, however, the United States Court of Appeals for the District
of Columbia applied the law of the Federal Advisory Committee Act to
the National Academy of Sciences.
Last week, the Supreme Court announced that it will not review the
appeals court's decision. The proposal before the House has been
cleared with both of the academies, the Office of Management and
Budget, the minority and the majority, and the chairman of the House
Committee on Science. This proposal would return the National Academy
of Sciences to its previous status under law which this House had
followed for a quarter century.
In addition, the legislation requires more openness when Federal
agencies utilize the academies, similar to those of the National
Academy of Sciences and the National Academy of Public Administration.
This increased openness that is now required with their consent is
the following:
1. The names, biographies, and conflict of interest disclosures when
committee members are nominated.
2. Most data gathering committee meetings will be open to the public
unless the type of meeting is excepted under the Freedom of Information
Act.
3. The names of reviewers of draft committee reports.
4. Summaries of any closed committee meetings.
The administration, the House and the Senate, both the majority and
minority, all agree the academy should not be subject to the full
process of the Federal Advisory Committee Act. The Senate is prepared
to consider this legislation before the end of this session.
The gentleman from California, [Mr. Waxman], the gentlewoman from New
York [Mrs. Maloney], and the gentleman from Indiana [Mr. Burton] are
cosponsors of H.R. 2977. Last week, the Subcommittee on Government
Management, which I chair, held a hearing on this matter. We heard most
helpful testimony from both sides of the recent court case. The
litigants that brought the court case agreed that the full brunt of the
Federal Advisory Committee Act should not apply to the academies.
I strongly recommend favorable consideration of this bill to preserve
the quality of the research provided to the Federal Government through
the National Academy of Sciences and the National Academy of Public
Administration.
Our respective staffs have done an excellent job in developing the
legislation before us. The members of this team included: For the
Republicans, Russell George, chief counsel and staff director of the
Subcommittee on Government Management, Information and Technology;
Robert Alloway, professional staff member; Mark Brasher, senior policy
advisor.
For the Democrats, we are most appreciative of the work of Phil
Barnett, chief counsel of the Committee on Government Reform and
Oversight, who was joined by David McMillen, professional staff member,
and Sheridan Pauker, research assistant.
We all greatly appreciate the find legal drafting and long hours put
in by Harry A. Savage, assistant legislative counsel.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I ask consent that correspondence from Franklin D.
Raines, Director, Office of Management and Budget, Executive Office of
the President, dated October 28, 1997, and two letters from Dr. Bruce
Alberts, president, National Academy of Sciences, dated November 9,
1997.
Also included is my full statement in lieu of a committee report.
Executive Office of the President, Office of Management
and Budget,
Washington, DC, October 28, 1997.
Hon. Stephen Horn,
Chairman, Subcommittee on Government Management, Information
and Technology, Committee on Government Reform and
Oversight, House of Representatives, Washington, DC.
Dear Chairman Horn: This letter presents the views of the
Administration on proposed legislation that would amend the
Federal Advisory Committee Act, 5 U.S.C. App. 2, to clarify
that the Act applies to committees that are subject to actual
management and control by Federal officials.
The need for this legislation was created by the recent
decision of the U.S. Court of Appeals for the District of
Columbia Circuit in Animal Legal Defense Fund, Inc. v.
Shalala, 114 F.3d 1209 (D.C. Cir. 1997), that FACA should
apply to panels of the National Academy of Sciences. In so
deciding, the court of appeals appears to have misinterpreted
what Congress intended when it adopted FACA in 1972. The
concept of extending FACA to privately managed and controlled
organizations outside the Federal government such as the
National Academy of Sciences was discussed and rejected when
the FACA legislation was adopted by the House of
Representatives. 118 Cong. Rec. 31.421 (1972). The
Administration believes that Congress did not intend to apply
FACA in this situation. The Executive Branch has consistently
followed this interpretation of Congressional intent since
1973. The court decision is directly contrary to that
longstanding interpretation.
Moreover, while the full impact of the court of appeal's
decision remains to be clarified, implementing this decision
may impose significant burdens on the Federal government.
More than 450 NAS panels potentially could become subject to
FACA. This is almost equal to the total number of
discretionary committees (committees created under general
agency authorization) that are now subject to FACA in all
Federal agencies. Thus, implementation would almost double
the number of discretionary committees subject to the FACA
chartering requirements, almost double the number of
discretionary committees that must be monitored by Federal
officials, and significantly increase the administrative
burdens on OMB and GSA in overseeing FACA committees. In
addition, there is a risk that other entities outside the
Federal government might subsequently be deemed ```quasi-
public'' and thus subject to FACA.
As now written, FACA applies to advisory committees that
are ``established'' or ``utilized'' by Federal agencies. 5
U.S.C. App. 2, section 3(2). Congress can remedy the problem
created by the recent court decision by clarifying that a
``utilized'' committee means one that is subject to actual
management and control by a Federal agency. This
interpretation is consistent with decisions handed down by
appellate courts prior to the 1997 decision in Animal Legal
Defense Fund, which have held that FACA applies only when
committees are subject to actual management and control by
agency officials. See Washington Legal Found, v. U.S.
Sentencing Comm'n, 17 F.3d 1446 (D.C. Cir. 1994); Food
Chemical News v. Young, 900 F.2d 328 (D.C. Cir.), cert.
denied, 498 U.S. 846 (1990). Adoption of this language would
also be consistent with administrative policy that the
Executive Branch has followed for the past 25 years.
Sincerely,
Franklin D. Raines,
Director.
____

``Strike Section 3(2)(C) and all that follows in Section
3(2) and insert in lieu thereof:
`3(2)(C) established or utilized by one or more agencies,
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 terms exclude:
(i) any committee created by an entity other than an agency
or officer of the Federal Government and not subject to
actual management and control by such agencies or officers,
and
(ii) any committee composed wholly of full-time, or
permanent part-time, employees of the Federal Government. The
Administrator shall prescribe regulations for the purposes of
this subsection'.''
____

National Academy of Sciences,

Washington, DC, November 9, 1997.
Hon. Stephen Horn,
Chairman, Subcommittee on Government Management, Information
and Technology, Committee on Government Reform and
Oversight, House of Representatives, Washington, DC.
Dear Mr. Chairman: I am writing on behalf of the National
Academy of Sciences to explain how the Academy intends to
apply

[[Page H10580]]

the requirements of the Federal Advisory Committee Act of
1997 to Academy committees that are currently working on
contracts or agreements with federal agencies.
Under the Act, the Academy is not required to apply the
procedures of section 15 to committees that are currently
underway. This makes sense, because the appointment
provisions of section 15 could not be applied retroactively
to committees whose members have already been appointed.
There are, however, some provisions of section 15 that
depending upon the stage of a committee's work could be
reasonably applied to ongoing committees. For example, if a
committee has not yet concluded its data gathering process,
the requirement that data gathering meetings be open to the
public could be followed by the committee.
On behalf of the Academy, you have my assurance that the
Academy will apply the procedures set forth in section 15 to
committees that are currently underway to the fullest extent
that is reasonable and practicable.
Sincerely,

Bruce Alberts,

President,
National Academy of Sciences.
____

National Academy of Sciences,

Washington, DC, November 9, 1997.
Hon. Stephen Horn,
House of Representatives,
Washington, DC.
Dear Congressman Horn: I understand that some concerns have
been raised concerning the use of the Section 552(b)
exceptions as a basis for closing meetings provided in HR
2977.
I wish to assure you that we subscribe fully to the goal of
providing as much openness as possible in our work. In
particular, we have no intention of using Section 552(b)(5),
which deals with interagency memoranda, as a basis for
closing meetings of Academy committees. In fact, it is the
Academy's standard practice not to treat the type of material
covered by Section 552(b)(5) as confidential input to any
Academy deliberative process. This procedure insures that,
inasmuch as possible, all the information that a committee
uses to reach its conclusion is in the public record.
Sincerely,
Bruce Alberts,
President.
____

Statement of Representative Horn on the Federal Advisory Committee Act
Amendments of 1997

Mr. Speaker, I move to suspend the rules and pass the bill,
H.R. 2977.
The Federal Advisory Committee Act was passed in 1972. It
governs the activities of advisory committees created by the
Government to obtain expert views and advice on complex
issues confronting our Nation. The Act was designed to
address two major concerns. First, at that time, advisory
committees seemed to be disorganized, duplicative, and
generally in need of oversight. Second, committee activities
often took place without public participation, making it hard
to know whether the committees were really acting in the
public interest.
The Act required advisory committees to adhere to certain
procedural rules. These rules included, among others: open
meetings, involvement by Federal Government officials, and
balanced membership. It also provided Office of Management
and Budget oversight which was subsequently transferred to
the General Services Administration.
Congress did not intend that this legislation would apply
to the National Academy of Sciences. The National Academy of
Sciences in an independent organization of scientists and
academics that was chartered by Congress in 1863. It
frequently sets up committees that provide independent advice
to the Government: 90% of these reports are requested by
government agencies and/or legislative committees of
Congress.
The only other group affected by this bill is the National
Academy of Public Administration. It is also an independent
organization, founded in 1967 and chartered by Congress in
1984 to assist Federal, State, and local governments on
matters of efficiency and accountability.
Congress did not intend for the Act to apply to either of
these Academies. This intent in relation to the Academy of
Sciences was expressly noted during the deliberations on the
legislation in the House of Representatives.
[Quote from Congressional Record of September 20, 1972,
H3142, follows:]
Mr. Horton. Am I correct in the understanding that this
bill does not apply to such organizations as the National
Academy of Sciences and its various committees which make
studies and submit reports to the Federal agencies on
request?
Mr. Holifield. The gentleman is quite correct. If he will
refer to the joint explanatory statement of the committee of
conference at page 10, the first full paragraph, it states as
follows: ``The Act does not apply to persons or organizations
which have contractual relationships with Federal agencies
nor to advisory committees not directly established by or for
such agencies.'' As the gentleman knows, the National Academy
of Sciences was founded by Congress and, therefore, it comes
under that category.
Mr. Horton. So it would be excluded?
Mr. Holified. That is correct.
For the last twenty-five years the Administration,
Congress, and the Academies have never questioned the
applicability of this law.
Recently, the United States Court of Appeals for the
District of Columbia decision applied the law to the National
Academy of Sciences. That case is the: Animal Legal Defense
Fund, Inc., et al. v. Donna E. Shalala, et al., 104 F.3rd 424
(D.C. Circuit 1997). Last week the Supreme Court announced it
will not review the appeal court's decision.
The proposal before the house would return the National
Academy of Sciences to the status under the law that it held
before the recent court rulings. In addition, the legislation
requires more openness when Federal agencies utilize the
Academies.
These increased openness requirements are:
1. Post for public comment the names, biographies, and
conflict of interest disclosures when committee members are
nominated.
2. Invite public attendance at all data gathering committee
meetings. (Of course, the exemptions established by the
Freedom of Information Act would still apply for items such
as privacy and national security issues.)
3. Post for the public record the names of reviewers of
draft committee reports. And,
4. Make summaries available to the public of any committee
meetings which are closed.
These changes will benefit the public and Federal agencies
and will also contribute to the quality and credibility of
Academy reports.
Furthermore, the proposal requires a General Services
Administration [GSA] study within one year to assess the
implementation of this legislation.
There seems to be broad agreement on this bill. The
Administration, the House, and the Senate--both the Majority
and the Minority--all agree that the Academies should not be
subject to the full process of the Federal Advisory Committee
Act.
The Academies are valuable to America precisely because
they are independent of agency influence; because they bring
together the best professionals and experts with impressive
backgrounds and because they derive their recommendations
from multiple perspectives. They are asked to study and issue
only when it is important, complex, and controversial. This
bill will help preserve their high quality, objective,
independent studies while also adding more openness.
The Senate is prepared to quickly consider this legislation
before the end of this session. The Senate is awaiting House
action.
The subcommittee on Government Management, Information and
Technology, which I chair, held a hearing on this matter last
week. GSA, GAO, and OMB have expressed support for this
effort. This legislative is fully supported by Mr. Burton,
chairman of the full committee. Mr. Waxman, the Ranking
Democratic Member on the full Committee on Government Reform
and Oversight is also a co-sponsor of this bill, so is Ms.
Maloney, the Ranking Democratic Member on the Subcommittee.
The litigants that brought the successful court case also
testified before our subcommittee and they too agree that the
full brunt of the Federal Advisory Committee Act should not
apply to the Academies.
I strongly recommend favorable consideration of this bill
to preserve the quality of the research provided to the
Federal Government by the National Academy of Sciences and
the National Academy of Public Administration.
Mr. WAXMAN. Mr. Speaker, I yield myself such time as I may consume.
(Mr. WAXMAN asked and was given permission to revise and extend his
remarks and insert extraneous material.)
Mr. WAXMAN. Mr. Speaker, I rise in strong support of H.R. 2977, the
Federal Advisory Committee Act Amendments of 1997. I ask unanimous
consent to revise and extend my remarks and to insert extraneous
material into the Record.
Recent federal court decisions have held that the National Academy of
Sciences committees convened by federal agencies or Congress are
subject to the Federal Advisory Committee Act.
The Federal Advisory Committee Act includes important measures that
provide for public scrutiny of taxpayer-funded advisory committees.
This Act, however, also imposes some procedures which may affect the
independence of the National Academy of Sciences and the National
Academy of Public Administration, an advisory body with a similar
congressional charter to the National Academy of Sciences.
The Federal Advisory Committee Act Amendments of 1997 strike a
balance between the Academies' need for independence and the public's
right to know about the advisors and procedures used to produce
technical or policy advice for the government.
These amendments require that the National Academy of Sciences
appoint members without conflicts of interest--or else promptly
disclose any unavoidable conflicts of interest to the public. The bill
requires the Academy to make public the names and backgrounds of
appointed committee members and creates a public comment period on
these members. This public comment period must occur before committee
members are finally appointed unless this is not practicable due to
unusual time constraints.

[[Page H10581]]

More meetings of the National Academy of Sciences will be made open
to the public. If meetings are closed, the Academy must provide
summaries of closed meetings to the public. The purpose of this
provision is to provide a summary of the committee's deliberations, as
well as a list of the committee members present and other matters
determined by the Academy.
The burden of insuring compliance with this legislation falls on the
agencies. Agencies may not use the advice or recommendations provided
by the Academy unless the procedural requirements set forth in the
legislation have been followed by the Academy.
A letter from the National Academy of Sciences clarifies an important
technical issue relating to the use of the section 552(b) exceptions.
Pursuant to my earlier unanimous consent request, I am inserting this
letter in the record for publication.
I urge my colleagues to adopt these amendments.

National Academy of Sciences,

Washington, DC, November 9, 1997.
Hon. Henry Waxman,
U.S. House of Representatives, Washington, DC.
Dear Congressman Waxman: I understand that some concerns
have been raised concerning the use of the Section 552(b)
exceptions as a basis for closing meetings provided in H.R.
2977.
I wish to assure you that we subscribe fully to the goal of
providing as much openness as possible in our work. In
particular, we have no intention of using Section 552(b)(5),
which deals with interagency memoranda, as a basis for
closing meetings of Academy committees. In fact, it is the
Academy's standard practice not to treat the type of material
covered by Section 552(b)(5) as confidential input to any
Academy deliberative process. This procedure insures that, in
as much as possible, all the information that a committee
uses to reach its conclusions is in the public records.
Sincerely,
Burce Alberts,
President.

Mr. WAXMAN. Mr. Speaker, I yield back the balance of my time.
Mr. HORN. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from California (Mr. Horn) that the House suspend the rules
and pass the bill, H.R. 2977.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.

____________________