[Congressional Record (Bound Edition), Volume 156 (2010), Part 10]
[House]
[Pages 13971-13974]
[From the U.S. 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.--

[[Page 13972]]

       ``(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;

[[Page 13973]]

       ``(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.
                                  ____

         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

[[Page 13974]]

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 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.

                          ____________________