[Congressional Record Volume 156, Number 110 (Monday, July 26, 2010)]
[House]
[Pages H6017-H6020]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2010
Ms. NORTON. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 1320) to amend the Federal Advisory Committee Act to
increase the transparency and accountability of Federal advisory
committees, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 1320
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
[[Page H6018]]
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.
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from
the District of Columbia (Ms. Norton) and the gentleman from Alabama
(Mr. Bonner) each will control 20 minutes.
The Chair recognizes the gentlewoman from the District of Columbia.
Ms. NORTON. Madam Speaker, I yield myself such time as I may consume.
H.R. 1320, the Federal Advisory Committee Act Amendments, was
introduced by Representative Clay, chairman of the Oversight
Committee's Information Policy Subcommittee, on March 5, 2009.
Representative Clay introduced a similar bill last Congress that
passed the House by voice vote. This legislation amends the Federal
Advisory Committee Act, known as FACA, which is a cornerstone of open
government. It was enacted in 1972 in response to concerns that Federal
advisory committees were not objective and had little oversight or
accountability.
FACA requires that committees be balanced, transparent, and
independent from the influence of special interests.
Agencies have not consistently implemented FACA, and the courts have
created loopholes that undermine the purposes of the act. H.R. 1320
closes those loopholes and strengthens FACA, H.R. 1320 promotes
independent advisory committees by requiring committee members to be
appointed without regard to political affiliation. It will also provide
that the committee members who are appointed as experts must comply
with conflict of interest and other ethics requirements.
H.R. 1320 improves the transparency of advisory committees by
requiring agencies to disclose more information about committees. For
example, agencies are required to provide information about the process
used to identify and appoint committee members, the process of
selecting members for balance, and a justification of need for any
members that represent stakeholder interests.
Agencies must disclose when a committee member is issued a conflict
of interest waiver and provide a copy of the waiver, a summary of the
need for the waiver, and a reason for granting it.
Agencies also must disclose when meetings are taking place, and
following a committee meeting, the agency must provide a transcript or
recording of the meeting. Currently, advisory committees can avoid
having public meetings and other requirements of FACA by conducting
business through subcommittees.
{time} 1650
The bill closes that loophole and makes it clear that FACA applies to
subcommittees. The bill also clarifies that committees set up by
contractors are subject to FACA. This bill is the epitome of good
government. I urge my colleagues to support it.
House of Representatives,
Committee on Ways and Means,
Washington, DC, July 21, 2010.
Hon. Edolphus Towns,
Chairman, Committee on Oversight and Government Reform,
Rayburn House Office Building, Washington, DC.
Dear Mr. Chairman: I am writing regarding H.R. 1320, the
``Federal Advisory Committee Act Amendments of 2009.'' As you
know, the Committee on Ways and Means had concerns regarding
this bill because the Federal Trade Advisory Committees are
established under the Trade Act of 1974, as amended.
In 2008, our two Committees exchanged letters regarding
similar legislation introduced in the 110th Congress, H.R.
5687. Recently, an understanding was reached on modifications
to the current bill, H.R. 1320, that would address my
Committee's concerns. I appreciate your willingness, and the
willingness of your staff, to work with me and my staff on
this important legislation.
To expedite this legislation for Floor consideration, the
Committee will forgo action on this bill. This is being done
with the understanding that it does not in any way prejudice
the Committee with respect to the appointment of conferees or
the full exercise of its jurisdictional prerogatives on this
bill or similar legislation in the future.
I would appreciate your response to this letter, confirming
this understanding with respect to H.R. 1320, and would ask
that a copy of our exchange of letters on this matter be
included in the Committee report on the bill and in the
Congressional Record during House Floor consideration of this
bill.
Once again, thank you for your work and cooperation on this
legislation.
Sincerely,
Sander M. Levin,
Acting Chairman.
[[Page H6019]]
____
House of Representatives, Committee on Oversight and
Government Reform,
Washington, DC, July 21, 2010.
Hon. Sander M. Levin,
Chairman, Committee on Ways and Means, Longworth House Office
Building, Washington, DC.
Dear Chairman Levin: Thank you for your letter regarding
your Committee's interest in H.R. 1320, the Federal Advisory
Committee Act Amendments of 2009.
I appreciate your willingness to support early floor
consideration of this important legislation. I understand and
agree that this is without prejudice to your Committee's
jurisdictional interests in this legislation as amended or
similar legislation in the future. In the event a House-
Senate conference on this or similar legislation is convened,
I would support your request for an appropriate number of
conferees.
I will include a copy of your letter and this response in
the committee report on the bill and in the Congressional
Record during floor consideration of this bill. Thank you for
your cooperation as we work towards enactment of this
legislation.
Sincerely,
Edolplus Towns,
Chairman.
I reserve the balance of my time.
Mr. BONNER. Madam Speaker, I yield myself such time as I may consume.
I rise today in support of H.R. 1320, the Federal Advisory Committee
Act Amendments of 2010.
The Federal Advisory Committee Act, first signed into law in 1972, is
an important safeguard of the public's right to know. Congress
originally passed FACA to formally establish Federal advisory
committees and set guidelines for their creation and management in
response to beliefs by many citizens and Members of Congress that such
committees were duplicative, inefficient, and lacked adequate control
or oversight. FACA required formal reporting and oversight procedures,
balanced membership, open meetings, and ensured the advice provided by
committees be objective and accessible to the public.
Federal advisory committees bring together private and governmental
experts to examine issues and recommend statutory, regulatory, or other
actions. There are over 900 active committees with nearly 64,000 total
members that provide advice and recommendations to 50 Federal agencies.
These committees make key decisions affecting every American on vital
issues such as health care, civil rights, and national security.
Congress intended FACA to shed some light into how agencies make
decisions based upon advice and recommendations from individuals
outside of government. It also ensures that the benefits received from
such committees are justified to taxpayers.
As originally introduced and reported, H.R. 1320 enhanced the
advisory committee selection process and expanded the disclosure of
conflicts of interest of committee members. The introduced and reported
version of H.R. 1320 was essentially the same bill that many of my
colleagues supported last Congress when it passed by a voice vote.
However, Madam Speaker, over the past year the bill that many of our
colleagues supported in the last Congress was watered down by the
majority; and until recent changes, Madam Speaker, we would have been
asked to support a bill that was promoting less transparency. Following
talks with the administration, the majority proposed a revised version
of H.R. 1320 this spring that reduced transparency, limited disclosure,
and weakened the prohibition on conflicts of interest. This came as a
shock to many of my Republican colleagues on the Committee on Oversight
and Government Reform, as a 2004 GAO investigation found that agencies
were using advisory committees to avoid disclosing conflicts of
interest.
Thankfully, at the urging of Republican members on the Committee on
Oversight and Government Reform, Democrat and Republican members of
that committee were able to work together and have given this body
today a bill that increases transparency and accountability of both the
committees and the agencies that they advise. H.R. 1320 provides strong
protections against conflicts of interest and robust transparency into
the workings of these committees. The bill also closes a loophole that
many agencies were using to get around financial disclosure
requirements and ethics requirements for members of those committees.
I commend Mr. Clay, Chairman Towns, Ranking Member Issa, and other
distinguished members of the committee for their hard work and desire
to make the Federal Government more transparent and open and
accountable to the American people.
I urge all Members to support H.R. 1320.
I reserve the balance of my time.
Ms. NORTON. Madam Speaker, I'm pleased to yield such time as he may
consume to the gentleman from Missouri (Mr. Clay), the chairman of the
Oversight and Government Reform Committee's Subcommittee on Information
Policy, Census, and National Archives, the author of the bill before
us.
Mr. CLAY. I thank my colleague from the District of Columbia for
yielding.
Madam Speaker, H.R. 1320, the Federal Advisory Committee Act
Amendments, strengthens one of our central open-government laws.
Advisory committees provide the President and agencies with expert
advice on complex issues. Current examples include the National
Commission on Fiscal Responsibility and Reform that was established to
advise the President on policies to achieve fiscal sustainability and
the National Commission on the BP Deepwater Horizon Oil Spill.
FACA is intended to ensure that advisory committees like these
provide objective advice and operate in a way that is open and
accessible to the public. But over time, FACA has been undermined by
inconsistent implementation. This bill closes loopholes that allow
agencies to get around the act and makes the advisory committee process
more transparent.
This bill is being brought up with an amendment that addresses
feedback we received from the Office of Government Ethics. The primary
change addresses how agencies appoint members to advisory committees.
The GAO has identified improper designation of committee members as one
of the primary problems with implementation of FACA.
GAO found that some agencies are avoiding Federal ethics rules by
appointing members that should be appointed as special government
employees as representative members.
The amendment to H.R. 1320 will require agencies to properly
designate committee members and require agency ethics officials to
certify the designation. If an agency appoints a member to represent a
specific interest, the agency has to put information on its Web site
justifying its decision and identify the interest the member
represents.
The amendment also makes improvements to the bill proposed by
Oversight and Government Reform Committee Ranking Member Issa.
Specifically, these changes include requiring agencies to establish a
process that allows the public to nominate potential committee members
and requiring agencies to disclose when a committee member is recused
because of a conflict of interest.
A section has also been added to the bill to make the bill consistent
with the way trade advisory committees are treated under the Trade Act.
Trade committees are exempt from FACA's open meetings requirement and
H.R. 1320 will preserve that exemption.
H.R. 1320 will shed light on who is advising the government, how they
are advising the government, and what they are saying. I urge any
colleagues to support this important open-government legislation.
{time} 1700
Mr. BONNER. Madam Speaker, I am happy to encourage our Members to
support passage of this bill.
I yield back the balance of my time.
General Leave
Ms. NORTON. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material on H.R. 1320, as amended.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from the District of Columbia?
There was no objection.
Ms. NORTON. I have no further speakers, and I ask my colleagues to
join me in supporting this measure.
I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by
[[Page H6020]]
the gentlewoman from the District of Columbia (Ms. Norton) that the
House suspend the rules and pass the bill, H.R. 1320, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. BONNER. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
____________________