H. Rept. 113-184 - 113th Congress (2013-2014)
July 30, 2013, As Reported by the Oversight and Government Reform Committee

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House Report 113-184 - CITIZEN EMPOWERMENT ACT




[House Report 113-184]
[From the U.S. Government Publishing Office]


113th Congress                                            Rept. 113-184
                   }   HOUSE OF REPRESENTATIVES   {
 1st Session       }                              {            Part 1
======================================================================
 
                        CITIZEN EMPOWERMENT ACT

                                _______
                                

 July 30, 2013.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Issa, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2711]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 2711) to amend title 5, United 
States Code, to establish certain procedures for conducting in-
person or telephonic interactions by Executive branch employees 
with individuals, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     3
Explanation of Amendments........................................     4
Committee Consideration..........................................     4
Roll Call Votes..................................................     5
Correspondence...................................................     6
Application of Law to the Legislative Branch.....................     8
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     8
Statement of General Performance Goals and Objectives............     8
Duplication of Federal Programs..................................     8
Disclosure of Directed Rule Makings..............................     8
Federal Advisory Committee Act...................................     8
Unfunded Mandate Statement.......................................     8
Earmark Identification...........................................     9
Committee Estimate...............................................     9
Budget Authority and Congressional Budget Office Cost Estimate...     9
Changes in Existing Law Made by the Bill as Reported.............    10
Minority Views...................................................    12
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Citizen Empowerment Act''.

SEC. 2. AMENDMENTS.

  (a) In General.--Part III of title 5, United States Code, is amended 
by inserting after chapter 79, the following:

            ``CHAPTER 79A--SERVICES TO MEMBERS OF THE PUBLIC

``Sec.
``7921. Procedure for in-person and telephonic interactions conducted 
by Executive Branch employees.

``Sec. 7921. Procedure for in-person and telephonic interactions 
                    conducted by Executive Branch employees

  ``(a) Purpose.--The purpose of this section is to ensure that 
individuals have the right to record in-person and telephonic 
interactions with Executive agency employees and to ensure that 
individuals who are the target of enforcement actions conducted by 
Executive agency employees are notified of such right.
  ``(b) Definitions.--For purposes of this section--
          ``(1) the term `telephonic' means by telephone or other 
        similar electronic device; and
          ``(2) the term `employee' means an employee of an Executive 
        agency.
  ``(c) Consent of Executive Agency Employees.--Participation by an 
employee, acting in an official capacity, in an in-person or telephonic 
interaction shall constitute consent by the employee to a recording of 
that interaction by any participant in the interaction.
  ``(d) Notice of Rights When Federal Employees Engaged in Certain 
Actions.--A notice of an individual's right to record conversations 
with employees shall be included in any written material provided by an 
Executive agency to the individual concerning an audit, investigation, 
inspection, or enforcement action that could result in the imposition 
of a fine, forfeiture of property, civil monetary penalty, or criminal 
penalty against, or the collection of an unpaid tax, fine, or penalty 
from, such individual or a business owned or operated by such 
individual.
  ``(e) Official Representative.--Any person who is permitted to 
represent before an Executive agency an individual under this section 
shall receive the same notice as required under subsection (d) with 
respect to such individual.
  ``(f) No Cause of Action.--This section does not create any express 
or implied private right of action.
  ``(g) Disciplinary Action.--An employee who violates this section 
shall be subject to appropriate disciplinary action in accordance with 
otherwise applicable provisions of law.
  ``(h) Public Information Concerning Right to Record.--
          ``(1) Posting on agency web sites.--Within 180 days after the 
        date of the enactment of this Act, each Executive agency shall 
        post prominently on its Web site information explaining the 
        right of individuals to record interactions with employees.
          ``(2) OMB guidance.--Within 90 days after the date of the 
        enactment of this Act, the Office of Management and Budget 
        shall issue guidance to Executive agencies concerning 
        implementation of paragraph (1).''.
  (b) Clerical Amendment.--The analysis for part III of title 5, United 
States Code, is amended by inserting after the item relating to chapter 
79 the following:

``79A. Services to members of the public....................    7921''.

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 2711 ensures that individuals have a right to record 
their meetings and telephone exchanges with federal officials, 
including regulatory officials engaged in enforcement 
activities. Individuals are to be notified of such right by 
federal agencies.

                  BACKGROUND AND NEED FOR LEGISLATION

    Federal agencies not only get to write rules, they get to 
enforce them. According to George Washington University law 
professor Jonathan Turley, ``a citizen is 10 times more likely 
to be tried by an agency than by an actual court. In any given 
year, federal judges conduct roughly 95,000 adjudicatory 
proceedings, including trials, while federal agencies complete 
more than 939,000.''
    In these proceedings, citizens have fewer rights than in a 
courtroom. It is the case that some Federal officials have 
intimidated, coerced, or lied to individuals, violating the 
public trust and potentially breaking laws. When Federal 
officials behave badly, far too often the citizen lacks 
evidence to prove the misconduct occurred.
    This bill ensures that individuals have the right to record 
their meetings and telephone exchanges with federal regulatory 
officials engaged in enforcement activities, and requires that 
agencies take steps to notify individuals of such right, by 
providing notification in written material concerning an audit, 
inspection, investigation, etc. and on agency websites.
    The manager's amendment ensures that law enforcement 
officers (LEOs) would not be impacted adversely. It would not 
restrict the ability of LEOs to conduct, e.g., undercover 
investigations and wiretap surveillance.

                          LEGISLATIVE HISTORY

    H.R. 2711 was introduced by Rep. Lynn Jenkins on July 17, 
2013. The legislation was considered by the Oversight and 
Government Reform Committee on July 24, 2013. The Committee 
adopted an amendment in the nature of a substitute (ANS) 
offered by Mr. Issa. The ANS made substantial changes to the 
legislation, and was agreed to by voice vote. The bill was 
reported favorably to the House, as amended, a quorum being 
present, by voice vote.

                           Section-by-Section


Section 1. Short title

    The title of this legislation is the ``Citizen Empowerment 
Act.''

Section 2. Amendments

    The section adds a new chapter to title 5, U.S.C., 
``Chapter 79A--Services to Members of the Public,'' and inserts 
the following:
    Sec. 7921. Procedures for in-person and telephonic 
interactions conducted by executive branch employees.''
    The purpose of this section is to ensure that individuals 
have the right to record in-person and telephonic interactions 
with Executive agency employees and to ensure that individuals 
who are the target of enforcement actions conducted by 
Executive agency employees are notified of such right.
    Definitions:
          (1) The term ``telephonic'' means by telephone or 
        other similar electronic device; and
          (2) The term ``employee'' means an employee of an 
        Executive agency.
    Consent of Executive Agency Employees. Under this section, 
there is implied consent given by any Executive agency employee 
to record a conversation when an employee is acting in an 
official capacity. This revises the existing status quo, in 
which the federal official can arbitrarily decide whether to 
consent to a recording on a case by case basis, with respect to 
certain jurisdictions.
    Notice of Rights When Federal Employees Engaged in Certain 
Actions. A notice of an individual's right to record 
conversations with employees is to be included in any written 
material provided by an Executive agency to the individual 
concerning an audit, investigation, inspection, or enforcement 
action that could result in the imposition of a fine, 
forfeiture of property, civil monetary penalty, or criminal 
penalty against, or the collection of an unpaid tax, fine, or 
penalty from that individual or their business.
    Official Representation. Those with legal authority to 
represent a covered individual shall receive the same notice.
    No Cause of Action. This section does not create any 
express or implied private right of action.
    Disciplinary Action. An employee who violates this section 
is subject to appropriate disciplinary action.
    Public Information Concerning Right to Record. Within 90 
days, OMB must issue guidance to agencies on posting the 
rights.
    Within 180 days, agencies must prominently post the right 
to record.

                       Explanation of Amendments

    The Committee adopted an amendment in the nature of a 
substitute offered by Mr. Issa. The ANS made substantial 
changes to the legislation and was agreed to by voice vote.
    The Committee rejected by a vote of 14 ayes to 18 noes an 
amendment offered by Mr. Cummings that would have stipulated 
that nothing in the bill shall supersede any provisions of 
state law. The amendment was rejected because it is extraneous; 
the legislation does not over-ride or pre-empt state laws.

                        Committee Consideration

    On July 24, 2013, the Committee met in open session and 
ordered reported favorably the bill, H.R. 2711 as amended, by 
voice vote, a quorum being present.
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              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill ensures that individuals have the right to record in-
person and telephonic interactions with Executive agency 
employees and to ensure that individuals who are the target of 
enforcement actions conducted by Executive agency employees are 
notified of such right. Legislative branch employees and their 
families, to the extent that they are otherwise eligible for 
the benefits provided by this legislation, have equal access to 
its benefits.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                    Duplication of Federal Programs

    No provision of H.R. 2711 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    Within 90 days of enactment, OMB must issue guidance to 
agencies on posting information concerning individuals' right 
to record interactions with employees.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    H.R. 2711 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 2711. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 2711 from the Director of 
Congressional Budget Office:

                                                     July 29, 2013.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2711, the Citizens 
Empowerment Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 2711--Citizens Empowerment Act

    Under H.R. 2711, participation by a federal employee, 
acting in an official capacity, in an in-person or telephone 
conversation would constitute consent to a recording of that 
conversation by another participant in the conversation. The 
bill would require federal employees to provide written notice 
of the public's right to record a conversation before meetings 
or phone calls take place. Agencies would be required to 
include a right-to-record statement on all written materials 
provided to the public as well as post that statement on their 
websites. Guidance on those statements would be provided by the 
Office of Management and Budget.
    CBO expects that updating preprinted communications with 
the public would have no significant impact on administrative 
costs. The legislation also could affect direct spending by 
agencies not funded through annual appropriations; therefore, 
pay-as-you-go procedures apply. CBO estimates, however, that 
any net increase in spending by those agencies would not be 
significant. Enacting the bill would not affect revenues.
    H.R. 2711 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *



                          PART III--EMPLOYEES

                      Subpart A--General Provisions

Chap.                                                               Sec.
      Definitions...................................................2101
     * * * * * * *

           Subpart F--Labor-Management and Employee Relations

     * * * * * * *
7921Services to members of the public.................................

           *       *       *       *       *       *       *


SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

           *       *       *       *       *       *       *


             CHAPTER 79A--SERVICES TO MEMBERS OF THE PUBLIC

Sec.
7921. Procedure for in-person and telephonic interactions conducted by 
          Executive Branch employees.

Sec. 7921. Procedure for in-person and telephonic interactions 
                    conducted by Executive Branch employees

  (a) Purpose.--The purpose of this section is to ensure that 
individuals have the right to record in-person and telephonic 
interactions with Executive agency employees and to ensure that 
individuals who are the target of enforcement actions conducted 
by Executive agency employees are notified of such right.
  (b) Definitions.--For purposes of this section--
          (1) the term ``telephonic'' means by telephone or 
        other similar electronic device; and
          (2) the term ``employee'' means an employee of an 
        Executive agency.
  (c) Consent of Executive Agency Employees.--Participation by 
an employee, acting in an official capacity, in an in-person or 
telephonic interaction shall constitute consent by the employee 
to a recording of that interaction by any participant in the 
interaction.
  (d) Notice of Rights When Federal Employees Engaged in 
Certain Actions.--A notice of an individual's right to record 
conversations with employees shall be included in any written 
material provided by an Executive agency to the individual 
concerning an audit, investigation, inspection, or enforcement 
action that could result in the imposition of a fine, 
forfeiture of property, civil monetary penalty, or criminal 
penalty against, or the collection of an unpaid tax, fine, or 
penalty from, such individual or a business owned or operated 
by such individual.
  (e) Official Representative.--Any person who is permitted to 
represent before an Executive agency an individual under this 
section shall receive the same notice as required under 
subsection (d) with respect to such individual.
  (f) No Cause of Action.--This section does not create any 
express or implied private right of action.
  (g) Disciplinary Action.--An employee who violates this 
section shall be subject to appropriate disciplinary action in 
accordance with otherwise applicable provisions of law.
  (h) Public Information Concerning Right to Record.--
          (1) Posting on agency web sites.--Within 180 days 
        after the date of the enactment of this Act, each 
        Executive agency shall post prominently on its Web site 
        information explaining the right of individuals to 
        record interactions with employees.
          (2) OMB guidance.--Within 90 days after the date of 
        the enactment of this Act, the Office of Management and 
        Budget shall issue guidance to Executive agencies 
        concerning implementation of paragraph (1).

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    H.R. 2711, the Citizen Empowerment Act, was considered by 
the Committee without a single hearing. The bill as amended 
would interfere with laws put in place by 12 states to protect 
the privacy of their citizens.
    The bill would presumptively deem every federal employee to 
have consented to the recording of every conversation they have 
in their official capacity. This would preempt the laws of the 
12 states that require every party's consent before a 
conversation can be recorded. These laws protect individuals in 
those states regardless of whether the individual is a federal 
employee.
    H.R. 2711 may also have an adverse impact on law 
enforcement. The Federal Law Enforcement Officers Association 
sent a letter to the Committee that stated:

          This legislation puts law enforcement activities at 
        risk and does a disservice to the brave men and women 
        who are asked to put their lives on the line to protect 
        us from terrorists and criminals.\1\
---------------------------------------------------------------------------
    \1\Letter from Frank Terreri, National Vice President for 
Legislative Affairs, Federal Law Enforcement Officers Association, to 
Chairman Darrell E. Issa and Ranking Member Elijah E. Cummings, House 
Committee on Oversight and Government Reform (July 29, 2013).

    The full letter is attached for inclusion in the report on 
this legislation.
    The Committee should take the time to hold hearings and 
solicit the input of impacted states, law enforcement 
organizations, federal employee unions, and constitutional and 
privacy experts before bringing this legislation to the House 
floor.

                                                Elijah E. Cummings.
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