[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1320 Referred in Senate (RFS)]

111th CONGRESS
  2d Session
                                H. R. 1320


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 27, 2010

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.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Federal Advisory 
Committee Act Amendments of 2010''.
    (b) Table of Contents.--The table of contents for 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. Application of Federal Advisory Committee Act to Trade Advisory 
                            Committees.
Sec. 7. Definitions.
Sec. 8. Effective date.

SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE.

    (a) Bar on Political Litmus Tests.--Section 9 of the Federal 
Advisory Committee Act (5 U.S.C. App.) is amended--
            (1) in the section heading by inserting ``membership;'' 
        after ``advisory committees;'';
            (2) by redesignating subsections (b) and (c) as subsections 
        (e) and (f), respectively; and
            (3) by inserting after subsection (a) the following:
    ``(b) Appointments Made Without Regard to Political Affiliation or 
Activity.--All appointments to advisory committees shall be made 
without regard to political affiliation or political activity, unless 
required by Federal statute.''.
    (b) Minimizing Conflicts of Interest.--Section 9 of the Federal 
Advisory Committee Act (5 U.S.C. App.) is further amended by inserting 
after subsection (b) (as added by subsection (a)) the following:
    ``(c) Public Nominations of Committee Members.--Prior to appointing 
members to an advisory committee, the head of an agency shall give 
interested persons an opportunity to suggest potential committee 
members. The agency shall include a request for comments in the Federal 
Register notice required under subsection (a) and provide a mechanism 
for interested persons to comment through the official website of the 
agency. The agency shall consider any comments submitted under this 
subsection in selecting the members of an advisory committee.
    ``(d) Designation of Committee Members.--
            ``(1) An individual appointed to an advisory committee who 
        is not a full-time or permanent part-time officer or employee 
        of the Federal Government shall be designated as--
                    ``(A) a special government employee, if the 
                individual is providing advice based on the 
                individual's expertise or experience; or
                    ``(B) a representative, if the individual is 
                representing the views of an entity or entities outside 
                of the Federal Government.
            ``(2) An agency may not designate committee members as 
        representatives to avoid subjecting them to Federal ethics 
        rules and requirements.
            ``(3) The designated agency ethics official for each agency 
        shall review the members of each advisory committee that 
        reports to the agency to determine whether each member's 
        designation is appropriate, and to redesignate members if 
        appropriate. The designated agency ethics official shall 
        certify to the head of the agency that such review has been 
        made--
                    ``(A) following the initial appointment of members; 
                and
                    ``(B) at the time a committee's charter is renewed, 
                or, in the case of a committee with an indefinite 
                charter, every 2 years.
            ``(4) The head of each agency shall inform each individual 
        appointed to an advisory committee that reports to the agency 
        whether the individual is appointed as a special government 
        employee or as a representative. The agency head shall provide 
        each committee member with an explanation of the differences 
        between special government employees and representatives and a 
        summary of applicable ethics requirements. The agency head, 
        acting through the designated agency ethics official, shall 
        obtain signed and dated written confirmation from each 
        committee member that the member received and reviewed the 
        information required by this paragraph.
            ``(5) The Director of the Office of Government Ethics shall 
        provide guidance to agencies on what to include in the summary 
        of ethics requirements required by paragraph (4).
            ``(6) The head of each agency shall, to the extent 
        practicable, develop and implement strategies to minimize the 
        need for written determinations under section 208(b)(1) of 
        title 18, United States Code. Strategies may include such 
        efforts as improving outreach efforts to potential committee 
        members and seeking public input on potential committee 
        members.''.
    (c) Regulations Implementing FACA.--Section 7(c) of the Federal 
Advisory Committee Act (5 U.S.C. App.) is amended by inserting after 
``(c)'' the following: ``The Administrator shall promulgate regulations 
as necessary to implement this Act.''.

SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FEDERAL ADVISORY COMMITTEE 
              ACT AND PUBLIC DISCLOSURE.

    (a) De Facto Members.--Section 4 of the Federal Advisory Committee 
Act (5 U.S.C. App.) is amended by adding at the end the following:
    ``(d) Treatment of Individual as Member.--An individual who is not 
a full-time or permanent part-time officer or employee of the Federal 
Government shall be regarded as a member of a committee if the 
individual regularly attends and fully participates in committee 
meetings as if the individual were a member, even if the individual 
does not have the right to vote or veto the advice or recommendations 
of the advisory committee.''.
    (b) Subcommittees.--Section 4 of the Federal Advisory Committee Act 
(5 U.S.C. App.) is amended by striking subsection (a) and inserting the 
following:
    ``(a) Application.--The provisions of this Act or of any rule, 
order, or regulation promulgated under this Act shall apply to each 
advisory committee, including any subcommittee or subgroup thereof, 
except to the extent that any Act of Congress establishing any such 
advisory committee specifically provides otherwise. Any subcommittee or 
subgroup that reports to a parent committee established under section 
9(a) is not required to comply with section 9(f). In this subsection, 
the term `subgroup' includes any working group, task force, or other 
entity formed for the purpose of assisting the committee or any 
subcommittee of the committee in its work.''.
    (c) Committees Created Under Contract.--Section 3(2) of the Federal 
Advisory Committee Act (5 U.S.C. App.) is amended in the matter 
following subparagraph (C) by adding at the end the following: ``An 
advisory committee is considered to be established by an agency, 
agencies, or the President if it is formed, created, or organized under 
contract, other transactional authority, cooperative agreement, grant, 
or otherwise at the request or direction of an agency, agencies, or the 
President.''.
    (d) Advisory Committees Containing Special Government Employees.--
Section 4 of the Federal Advisory Committee Act (5 U.S.C. App.) is 
further amended by adding at the end the following new subsection:
    ``(e) Special Government Employees.--Committee members appointed as 
special government employees shall not be considered full-time or 
permanent part-time officers or employees of the Federal Government for 
purposes of determining the applicability of this Act under section 
3(2).''.

SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COMMITTEES.

    (a) Information Requirement.--Section 11 of the Federal Advisory 
Committee Act (5 U.S.C. App.) is amended--
            (1) by striking the section designation and heading and 
        inserting the following:

``SEC. 11. DISCLOSURE OF INFORMATION.'';

            (2) by redesignating subsection (a) as subsection (d) and 
        in that subsection--
                    (A) by inserting the following subsection heading: 
                ``Availability of Paper Copies of Transcripts.--''; and
                    (B) by inserting after ``duplication,'' the 
                following: ``paper'';
            (3) by striking ``(b)'' and inserting ``(e) Agency 
        Proceeding Defined.--''; and
            (4) by inserting before subsection (d), as redesignated by 
        paragraph (2), the following new subsections:
    ``(a) In General.--With respect to each advisory committee, the 
head of the agency to which the advisory committee reports shall make 
publicly available in accordance with subsection (b) the following 
information:
            ``(1) The charter of the advisory committee.
            ``(2) A description of the process used to establish and 
        appoint the members of the advisory committee, including the 
        following:
                    ``(A) The process for identifying prospective 
                members.
                    ``(B) The process of selecting members for balance 
                of viewpoints or expertise.
                    ``(C) The reason each member was appointed to the 
                committee.
                    ``(D) A justification of the need for 
                representative members, if any.
            ``(3) A list of all current members, including, for each 
        member, the following:
                    ``(A) The name of any person or entity that 
                nominated the member.
                    ``(B) Whether the member is designated as a special 
                government employee or a representative.
                    ``(C) In the case of a representative, the 
                individuals or entity whose viewpoint the member 
                represents.
            ``(4) A list of all members designated as special 
        government employees for whom written certifications were made 
        under section 208(b) of title 18, United States Code, a copy of 
        each such certification, a summary description of the conflict 
        necessitating the certification, and the reason for granting 
        the certification.
            ``(5) Any recusal agreement made by a member or any recusal 
        known to the agency that occurs during the course of a meeting 
        or other work of the committee.
            ``(6) A summary of the process used by the advisory 
        committee for making decisions.
            ``(7) Transcripts or audio or video recordings of all 
        meetings of the committee.
            ``(8) Any written determination by the President or the 
        head of the agency to which the advisory committee reports, 
        pursuant to section 10(d), to close a meeting or any portion of 
        a meeting and the reasons for such determination.
            ``(9) Notices of future meetings of the committee.
            ``(10) Any additional information considered relevant by 
        the head of the agency to which the advisory committee reports.
    ``(b)  Manner of Disclosure.--
            ``(1) Except as provided in paragraph (2), the head of an 
        agency shall make the information required to be disclosed 
        under this section available electronically on the official 
        public internet site of the agency at least 15 calendar days 
        before each meeting of an advisory committee. If the head of 
        the agency determines that such timing is not practicable for 
        any required information, he shall make the information 
        available as soon as practicable but no later than 48 hours 
        before the next meeting of the committee. An agency may 
        withhold from disclosure any information that would be exempt 
        from disclosure under section 552 of title 5, United States 
        Code.
            ``(2) The head of an agency shall make available 
        electronically, on the official public internet site of the 
        agency, a transcript or audio or video recording of each 
        advisory committee meeting as required by subsection (a)(6) not 
        later than 30 calendar days after the meeting.
    ``(c) Provision of Information by Administrator of General 
Services.--The Administrator of General Services shall provide, on the 
official public internet site of the General Services Administration, 
electronic access to the information made available by each agency 
under this section.''.
    (b) Charter Filing.--Section 9(f) of the Federal Advisory Committee 
Act (5 U.S.C. App.), as redesignated by section 2, is amended--
            (1) by striking ``with (1) the Administrator,'' and all 
        that follows through ``, or'' and inserting ``(1) with the 
        Administrator and'';
            (2) by striking ``and'' at the end of subparagraph (I);
            (3) by striking the period and inserting a semicolon at the 
        end of subparagraph (J); and
            (4) by adding at the end the following new subparagraphs:
            ``(K) the authority under which the committee is 
        established;
            ``(L) the estimated number of members and a description of 
        the expertise needed to carry out the objectives of the 
        committee;
            ``(M) a description of whether the committee will be 
        composed of special government employees, representatives, or 
        members from both categories; and
            ``(N) whether the committee has the authority to create 
        subcommittees and if so, the agency official authorized to 
        exercise such authority.''.

SEC. 5. COMPTROLLER GENERAL REVIEW AND REPORTS.

    (a) Review.--The Comptroller General of the United States shall 
review compliance by agencies with the Federal Advisory Committee Act, 
as amended by this Act, including whether agencies are appropriately 
appointing advisory committee members as either special government 
employees or representatives.
    (b) Report.--The Comptroller General shall submit to the committees 
described in subsection (c) two reports on the results of the review, 
as follows:
            (1) The first report shall be submitted not later than one 
        year after the date of promulgation of regulations under 
        section 2.
            (2) The second report shall be submitted not later than 
        five years after such date of promulgation of regulations.
    (c) Committees.--The committees described in this subsection are 
the Committee on Oversight and Government Reform of the House of 
Representatives and the Committee on Homeland Security and Governmental 
Affairs of the Senate.

SEC. 6. APPLICATION OF FEDERAL ADVISORY COMMITTEE ACT TO TRADE ADVISORY 
              COMMITTEES.

    Section 135(f)(2)(A) of the Trade Act of 1974 (19 U.S.C. 2155) is 
amended by striking ``subsection (a) and (b) of sections 10 and 11 of 
the Federal Advisory Committee Act'' and inserting ``subsections (a) 
and (b) of section 10 and subsections (a)(7), (a)(8), (a)(9), (d), and 
(e) of section 11 of the Federal Advisory Committee Act''.

SEC. 7. DEFINITIONS.

    Section 3 of the Federal Advisory Committee Act (5 U.S.C. App.) is 
amended by adding at the end the following new paragraph:
            ``(5) The term `special Government employee' has the same 
        meaning as in section 202(a) of title 18, United States 
        Code.''.

SEC. 8. EFFECTIVE DATE.

    This Act shall take effect 30 days after the date of the enactment 
of this Act.

            Passed the House of Representatives July 26, 2010.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.