[Congressional Record Volume 162, Number 33 (Tuesday, March 1, 2016)]
[House]
[Pages H1057-H1060]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2016
Mr. RUSSELL. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 2347) to amend the Federal Advisory Committee Act to
increase the transparency 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. 2347
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 2016''.
(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. Managing Federal advisory committees.
Sec. 6. Comptroller General review and reports.
Sec. 7. Application of Federal Advisory Committee Act to Trade Advisory
Committees.
Sec. 8. Definitions.
Sec. 9. Technical and conforming amendments.
Sec. 10. Effective date.
Sec. 11. No additional funds authorized.
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.), as amended by
subsection (a) of this section, is further amended by
inserting after subsection (b) (as added by such 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--
[[Page H1058]]
``(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)(3) 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 ``promulgate regulations and'' after ``The
Administrator shall''.
(d) Ensuring Independent Advice and Recommendations.--The
Federal Advisory Committee Act (5 U.S.C. App.) is amended--
(1) in section 8--
(A) in the section heading, by inserting ``independent
advice and recommendations;'' after ``responsibilities of
agency heads;'';
(B) by redesignating subsection (b) as subsection (c); and
(C) by inserting after subsection (a) the following:
``(b) The head of each agency shall ensure that the agency
does not interfere with the free and independent
participation, expression of views, and deliberation by
committee members. Each advisory committee shall include a
statement describing the process used by the advisory
committee in formulating the advice and recommendations when
they are transmitted to the agency.''; and
(2) in section 10--
(A) in the section heading, by inserting ``; chair'' after
``attendance''; and
(B) by inserting after subsection (f) the following new
subsection:
``(g) The Chair shall not be an employee of the agency to
which the advisory committee reports, unless--
``(1) a statute specifically authorizes selection of such
an employee as the Chair; or
``(2) the head of the agency directs an employee to serve
as the Chair.''.
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 new subsection:
``(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
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.), as amended by subsection (a)
of this section, is further 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).''.
(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.), as amended by subsections (a) and (b) of
this section, 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 to read as
follows:
``SEC. 11. DISCLOSURE OF INFORMATION.
``(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) Detailed minutes of all meetings of the committee and
a description of committee efforts to make meetings
accessible to the public using online technologies (such as
video recordings) or other techniques (such as audio
recordings).
``(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) In general.--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 website of the agency and to the
Administrator 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, such head 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) Website availability.--The head of an agency shall
make available electronically, on the official public website
of the agency, detailed minutes and, to the extent available,
a transcript or audio or video recording of each advisory
committee meeting not later than 30 calendar days after such
meeting.
``(3) Grant reviews.--In the case of grant reviews,
disclosure of information required by subsection (a)(3) may
be provided in the aggregate rather than by individual grant.
``(c) Provision of Information by Administrator of General
Services.--The Administrator of General Services shall
provide, on the official public website of the General
Services Administration, electronic access to the information
made available by each agency under this section.
``(d) Availability of Meeting Materials.--Except where
prohibited by contractual agreements entered into prior to
the effective date of this Act, agencies and advisory
committees shall make available to any person, at actual cost
of duplication, copies of advisory committee meeting
materials.''.
(b) Charter Filing.--Subsection (f) of section 9 of the
Federal Advisory Committee
[[Page H1059]]
Act (5 U.S.C. App.), as redesignated by section 2(a) of this
Act, is amended to read as follows:
``(f) No advisory committee shall meet or take any action
until an advisory committee charter has been filed with the
Administrator, the head of the agency to whom any advisory
committee reports, and the standing committees of the Senate
and of the House of Representatives having legislative
jurisdiction of such agency. Such charter shall contain the
following information in the following order:
``(1) The committee's official designation.
``(2) The authority under which the committee is
established.
``(3) The committee's objectives and the scope of its
activity.
``(4) A description of the duties for which the committee
is responsible, and, if such duties are not solely advisory,
a specification of the authority for such functions.
``(5) The agency or official to whom the committee reports.
``(6) The agency responsible for providing the necessary
support for the committee.
``(7) The responsibilities of the officer or employee of
the Federal Government designated under section 10(e).
``(8) The estimated number and frequency of committee
meetings.
``(9) The period of time necessary for the committee to
carry out its purposes.
``(10) The committee's termination date, if less than two
years from the date of the committee's establishment.
``(11) The estimated number of members and a description of
the expertise needed to carry out the objectives of the
committee.
``(12) A description of whether the committee will be
composed of special Government employees, representatives, or
members from both categories.
``(13) Whether the agency intends to create subcommittees
and if so, the agency official authorized to exercise such
authority.
``(14) The estimated annual operating costs in dollars and
full-time equivalent positions for such committee.
``(15) The recordkeeping requirements of the committee.
``(16) The date the charter is filed.
A copy of any such charter shall also be furnished to the
Library of Congress.''.
SEC. 5. MANAGING FEDERAL ADVISORY COMMITTEES.
(a) Committee Management Officers.--Subsection (c) of
section 8 of the Federal Advisory Committee Act (5 U.S.C.
App.), as redesignated by section 2(d) of this Act, is
amended to read as follows:
``(c) The head of each agency that has an advisory
committee shall designate an Advisory Committee Management
Officer who shall--
``(1) be a senior official who is--
``(A) an expert in implementing the requirements of this
Act and regulations promulgated pursuant to this Act; and
``(B) the primary point of contact for the General Services
Administration;
``(2) be responsible for the establishment, management, and
supervision of the advisory committees of the agency,
including establishing procedures, performance measures, and
outcomes for such committees;
``(3) assemble and maintain the reports, records, and other
papers (including advisory committee meeting materials) of
any such committee during its existence;
``(4) ensure any such committee and corresponding agency
staff adhere to the provisions of this Act and any
regulations promulgated pursuant to this Act;
``(5) maintain records on each employee of any such
committee and completion of training required for any such
employee;
``(6) be responsible for providing the information required
in section 7(b) of this Act to the Administrator; and
``(7) carry out, on behalf of that agency, the provisions
of section 552 of title 5, United States Code, with respect
to the reports, records, and other papers described in
paragraph (3).''.
SEC. 6. 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 7(c) of the Federal Advisory Committee Act (5 U.S.C.
App.), as amended by section 2(c).
(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. 7. 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(f)(2)(A)) is amended by striking ``subsections (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), (b)(2), and (d) of
section 11 of the Federal Advisory Committee Act''.
SEC. 8. 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
meaning given that term in section 202(a) of title 18, United
States Code.''.
SEC. 9. TECHNICAL AND CONFORMING AMENDMENTS.
Section 7(d)(1) of the Federal Advisory Committee Act (5
U.S.C. App.) is amended--
(1) in subparagraph (A), by striking ``the rate specified
for GS-18 of the General Schedule under section 5332'' and
inserting ``the rate for level IV of the Executive Schedule
under section 5315''; and
(2) in subparagraph (C)(i), by striking ``handicapped
individuals (within the meaning of section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 794))'' and inserting
``individuals with disabilities (as defined in section 7(20)
of the Rehabilitation Act of 1973 (29 U.S.C. 705(20)))''.
SEC. 10. EFFECTIVE DATE.
This Act shall take effect 30 days after the date of the
enactment of this Act.
SEC. 11. NO ADDITIONAL FUNDS AUTHORIZED.
No additional funds are authorized to carry out the
requirements of this Act and the amendments made by this Act.
Such requirements shall be carried out using amounts
otherwise authorized.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Oklahoma (Mr. Russell) and the gentleman from Missouri (Mr. Clay) each
will control 20 minutes.
The Chair recognizes the gentleman from Oklahoma.
General Leave
Mr. RUSSELL. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days to revise and extend their remarks and
include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Oklahoma?
There was no objection.
Mr. RUSSELL. Mr. Speaker, I yield myself such time as I may consume.
I rise today in support of H.R. 2347, introduced by Congressman
William ``Lacy'' Clay. H.R. 2347 was introduced by Representative Clay
to help improve the governance and transparency of the Federal advisory
committees.
Congress acknowledged the merits of using advisory committees to
acquire viewpoints from business, academic, and other interests when it
passed the Federal Advisory Committee Act in 1972.
While not necessarily well known, Federal advisory committees are
small bodies of people who provide advice, guidance, or recommendations
to Federal policymakers on a wide range of topics. All told, in fiscal
year 2014, 825 Federal advisory committees held 7,173 meetings at a
cost to the American taxpayer of more than $334 million.
While these committees undoubtedly provided a number of valuable
insights, it is important that we continue to work to ensure that these
committees produce the best value for the taxpayer.
Unfortunately, some agencies note that the FACA requirements are
cumbersome and resource intensive, thus reducing the ability of the
committees to focus on substantive issues in a timely fashion.
Both governmental agencies and private groups say that the 1972 act
does not do enough to require agencies to promote openness and
transparency.
Mr. Speaker, H.R. 2347 works to address these problems and bring
transparency to Federal advisory committees and the Federal agency
decisionmaking process.
It also clarifies transparency of committee membership by requiring
members to be selected without political affiliation, giving agency
heads authorization to require members to fully disclose conflicts of
interest and treating those individuals who regularly attend and
participate in committee meetings to be considered as a member, even if
they are not allowed to vote.
H.R. 2347 classifies transparency of committee activities further by
ensuring the committee's advice, information, and recommendations are
judgments of the committee and not the agency and, also, by requiring
each agency to make available on their Web site the committee and its
activities.
Mr. Speaker, I urge my colleagues to support this important
legislation.
I reserve the balance of my time.
[[Page H1060]]
House of Representatives, Committee on Oversight and
Government Reform,
Washington, DC, December 10, 2015.
Hon. Kevin Brady,
Chairman, Committee on Ways and Means, Washington, DC.
Dear Mr. Chairman: On October 9, 2015, the Committee on
Oversight and Government Reform ordered reported without
amendment H.R. 2347, the Federal Advisory Committee Act
Amendments of 2015, by unanimous consent. The bill was
referred primarily to the Committee on Oversight and
Government Reform, with an additional referral to the
Committee on Ways and Means.
I ask that you allow the Ways and Means Committee to be
discharged from further consideration of the bill so that it
may be scheduled by the Majority Leader. This discharge in no
way affects your jurisdiction over the subject matter of the
bill, and it will not serve as precedent for future
referrals. In addition, should a conference on the bill be
necessary, I would support your request to have the Committee
on Ways and Means represented on the conference committee.
Finally, I would be pleased to include this letter and any
response in the bill report filed by the Committee on
Oversight and Government Reform, as well as in the
Congressional Record during floor consideration, to
memorialize our understanding.
Thank you for your consideration of my request.
Sincerely,
Jason Chaffetz,
Chairman.
____
House of Representatives,
Committee on Ways and Means,
Washington, DC, December 10, 2015.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
Washington, DC.
Dear Mr. Chairman: Thank you for your letter regarding the
Committee on Ways and Means' jurisdictional interest in H.R.
2347, the ``Federal Advisory Committee Act Amendments of
2015.'' I wanted to notify you that the Committee on Ways and
Means will forgo action on H.R. 2347 so that it may proceed
expeditiously to the House floor for consideration.
This is conditional on our mutual understanding and
agreement that doing so will in no way diminish or alter the
jurisdiction of the Committee on Ways and Means. In addition,
the Committee reserves that right to seek conferees and
requests your support when such a request is made.
I would appreciate a response to this letter confirming
this understanding with respect to H.R. 2347, and would ask
that a copy of our exchange of letters on this matter be
included in the Congressional Record during Floor
consideration of H.R. 2347.
Sincerely,
Kevin Brady,
Chairman.
Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
Let me first thank my colleague, the gentleman from Oklahoma (Mr.
Russell), as well as the majority party for working with us to get this
bill to this forum and to get it ready for passage.
I rise in strong support of the Federal Advisory Committee Act
Amendments. I have introduced this bill in each of the last four
Congresses, and I am hopeful that this time the bill will make it to
enactment.
{time} 1300
The Federal Advisory Committee Act is one of our core open government
laws. FACA is intended to ensure that advisory committees provide
objective advice and operate with transparency. Over time, however,
agencies have implemented FACA inconsistently and judges have created
loopholes in the law.
This bill closes the loopholes that allow agencies to get around the
Act. Currently, agencies can avoid FACA's requirements by conducting
committee business through subcommittees. This bill makes it clear that
FACA applies to subcommittees as well as to the parent committees.
The bill also clarifies that a committee that is set up by a
contractor is subject to FACA if it is formed under the direction of
the President or an agency. Under FACA, agencies would be required to
disclose how advisory members are chosen, whether they have financial
conflicts of interest if they are appointed to provide their own
expertise, and who they work for if they are representing a specific
interest.
This bill includes changes to lower the cost of implementation based
on discussions with the Congressional Budget Office. Specifically, the
bill would include a more streamlined definition of what would be
considered a committee under the bill.
This bill will make the government more accountable by shedding light
on who is advising the government and on how one is advising the
government.
I thank my colleagues for their cooperation in this effort. This is a
good government bill, and I urge its passage.
Madam Speaker, I yield back the balance of my time.
Mr. RUSSELL. Madam Speaker, I urge the adoption of the bill.
I yield back the balance of my time.
The SPEAKER pro tempore (Ms. Ros-Lehtinen). The question is on the
motion offered by the gentleman from Oklahoma (Mr. Russell) that the
House suspend the rules and pass the bill, H.R. 2347, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
____________________