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.

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..

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).

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:

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.

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.

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.

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.

Effective date

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