[Senate Report 115-217]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 362
115th Congress     }                                     {      Report
                                 SENATE
 2d Session        }                                     {     115-217                                
_______________________________________________________________________




           FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2017

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                H.R. 70

             TO AMEND THE FEDERAL ADVISORY COMMITTEE ACT TO
INCREASE THE TRANSPARENCY OF FEDERAL ADVISORY COMMITTEES, AND FOR OTHER 
                                PURPOSES




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








                 March 22, 2018.--Ordered to be printed

                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                         WASHINGTON : 2018 


























        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
         Catharine A. Bailey, Director of Governmental Affairs
              Jennifer L. Selde, Professional Staff Member
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk















                                                     Calendar No. 362
115th Congress     }                                    {      Report
                                 SENATE
 2d Session        }                                    {     115-217 
======================================================================



 
           FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2017

                                _______
                                

                 March 22, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany H.R. 70]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 70) to amend the 
Federal Advisory Committee Act to increase the transparency of 
Federal advisory committees, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
 IV. Section-by-Section Analysis......................................5
  V. Evaluation of Regulatory Impact..................................7
 VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Act, as Reported.............9

                         I. Purpose and Summary

    H.R. 70, the Federal Advisory Committee Act Amendments of 
2017, amends the Federal Advisory Committee Act (FACA), to 
improve and modernize existing transparency requirements for 
Federal advisory committees, and to close loopholes that have 
been used to circumvent current requirements. H.R. 70 also 
strengthens FACA's provisions aimed at preserving advisory 
committee independence, both from Federal agencies and from 
members' conflicts of interest or political affiliation. 
Finally, H.R. 70 seeks to improve agency compliance with FACA 
by requiring agencies to designate a senior official to 
implement FACA and by having the Government Accountability 
Office (GAO) review and report on compliance.

              II. Background and the Need for Legislation

    Federal Government officials often consult with individuals 
outside of the Federal Government via commissions, committees, 
councils, task forces, or boards--bodies that are collectively 
referred to as Federal advisory committees.\1\ As discussed 
below, since their recommendations help inform public policy, 
Congress has deemed it appropriate to require public 
transparency of advisory committee membership and activities.
---------------------------------------------------------------------------
    \1\Meghan M. Stuessy, Cong. Research Serv., R44253, Federal 
Advisory Committees: An Introduction and Overview 1 (2016), available 
at http://www.crs.gov/reports/pdf/R44253.
---------------------------------------------------------------------------
    Starting in 1970, a series of Congressional hearings 
revealed the ways in which advisory committees were being used 
by agencies to cherry-pick industry leaders to advise on policy 
in secret.\2\ In addition, agencies did not have a standard set 
of requirements for advisory committee operations, resulting in 
uncontrolled costs, missing reports on activities, and 
duplication of roles between multiple committees.\3\ As a 
result, Congress passed FACA in 1972 to give uniform guidance 
to agencies on how to operate advisory committees and report on 
their activities.\4\
---------------------------------------------------------------------------
    \2\Advisory Committees: Hearings Before the S. Comm. on Gov't 
Operations Subcomm. on Intergovernmental Relations, 91st Cong. (1970).
    \3\Presidential Advisory Committees: Hearings Before the H. Comm on 
Gov't Operations Special Studies Subcomm., 91st Cong. (1970).
    \4\P.L. 92-463; S. Rep. No. 92-1098, at 1 (1972).
---------------------------------------------------------------------------
    However, some agencies have circumvented some FACA 
requirements by exploiting existing loopholes in the law. A 
2008 congressional hearing found Federal agencies are able to 
circumvent FACA requirements by hiring contractors to operate 
advisory committees, allowing non-voting members to participate 
in committee activities, and creating subcommittees of advisory 
committees to carry out the work of the full committee.\5\ 
Advisory committee members made up of contractors or the 
subcommittees of advisory committees are not currently required 
to publicly report on meetings held, as FACA requires for other 
advisory committees, thereby diminishing public transparency.
---------------------------------------------------------------------------
    \5\Examining The Federal Advisory Committee Act--Current Issues and 
Developments: Hearing Before the H. Comm. on Oversight and Gov't Reform 
Subcomm. on Information Policy, Census, and National Archives, 110th 
Cong. (2008) (Testimony of Sidney Shapiro, Assoc. Dean for Research and 
Dev., Wake Forest School of Law), available at https://www.gpo.gov/
fdsys/pkg/CHRG-110hhrg44910/pdf/CHRG-110hhrg44910.pdf. On the 
``contractor loophole'': Mr. Shapiro cited a panel formed under 
contract the Food and Drug Administration to advise it on issues 
relating to food and cosmetic safety and a peer review panel formed 
under contract by the Environmental Protection Agency to report on the 
carcinogenic effects of benzene. The D.C. Circuit Court determined FACA 
did not apply to either panel. On the ``nonvoting participant 
loophole'': Mr. Shapiro cited the National Energy Policy Development 
Group, a national energy plan task force chaired by the Vice President 
and composed of federal officials, which met with energy producers and 
trade associations, but the D.C. Circuit Court found did not need to 
comply to FACA because the non-government individuals did not have a 
voting role. On the ``subcommittee loophole'': Mr. Shapiro cited the 
Grace Commission, which was created to recommend to the President how 
to make government operate more efficiently. The Commission created 
tasks force, three of which reviewed food programs for low-income 
individuals. The National Anti-Hunger Coalition sued to gain access to 
the records and reports prepared by the task forces, but the D.C. 
Circuit Court ruled that because the Grace Commission still needed to 
consider their work, FACA transparency provisions did not apply to the 
task forces.
---------------------------------------------------------------------------
    Additionally, according to the Administrative Conference of 
the United States (ACUS), an independent Federal agency 
responsible for recommending improvements to Federal 
administrative process and procedure, non-government groups 
argue that FACA does not adequately provide for transparency 
into, or allow for public participation in, advisory committee 
activities.\6\ ACUS has recommended that advisory committees 
modernize the way they report information to the public. These 
recommendations for improving transparency include requiring 
agencies to post on a website all documents which are required 
to be made publically available under FACA in advance of 
meeting dates to which the documents apply.\7\ ACUS also 
recommended that agencies post on their websites videos of open 
advisory committee meetings.\8\
---------------------------------------------------------------------------
    \6\Admin. Conference of the U. S., Admin. Conference Recommendation 
2011-7, The Federal Advisory Committee Act--Issues and Proposed Reforms 
6 (2011) [hereinafter ACUS Recommendations], available at https://
www.acus.gov/sites/default/files/documents/Recommendation-2011-7-
Federal-Advisory-Committee-Act.pdf.
    \7\Id. at 13.
    \8\Id.
---------------------------------------------------------------------------
    Agencies have also misused FACA provisions aimed at 
providing transparency over potential conflict of interests for 
advisory committee members. A 2004 GAO report raised concerns 
that agencies were not taking appropriate steps to disclose 
potential conflicts of interest of advisory committee 
members.\9\ Federal committee members can either be designated 
as a special government employee, a paid or non-paid status 
performing temporary duties for the government,\10\ or they can 
be designated as a representative of a stakeholder in a 
specific policy area.\11\ While Federal statute requires that 
special government employees comply with Office of Government 
Ethics (OGE) conflict-of-interest regulations, representatives 
are not required to disclose conflicts of interest, since their 
interest is understood to be that of the stakeholder they are 
chosen to represent.\12\
---------------------------------------------------------------------------
    \9\Gov't Accountability Office, GAO-04-328, Federal Advisory 
Committees: Additional Guidance Could Help Agencies Better Ensure 
Independence and Balance 5 (2004) [hereinafter 2004 GAO Report], 
available at https://www.gao.gov/assets/250/242039.pdf.
    \10\Id. at 11.
    \11\Id. at 13.
    \12\Id.
---------------------------------------------------------------------------
    GAO found that some agencies were designating all of its 
advisory committee members as representatives, even when the 
individuals were selected for the committees based on their 
personal experience and knowledge and did not represent the 
views of a particular stakeholder.\13\ Further, the OGE has 
raised concerns that agencies may designate these individuals 
as representatives specifically to avoid ethics compliance.\14\
---------------------------------------------------------------------------
    \13\Id. at 17.
    \14\Office of Gov't Ethics, DO-04-022, Memorandum on SGEs and 
Representatives on Federal Advisory Committees 2 (2004), available at 
https://www.oge.gov/web/oge.nsf/Legal%20Advisories/
AAF9F5045D71FA1385257E96005FBDC3/$FILE/do-04-022.pdf?open.
---------------------------------------------------------------------------
    GAO also recommended changes to improve advisory committee 
membership, including improving independence and diversity in 
membership experiences.\15\ To ensure a balance of membership 
on committees, the GAO suggested that agencies ask the public 
for nominations for committee membership.\16\ This 
recommendation was separately made by ACUS as a proposal to 
improve transparency and objectivity of Federal advisory 
committees.\17\
---------------------------------------------------------------------------
    \15\Gov't Accountability Office, GAO-08-611T, Federal Advisory 
Committee Act: Issues Related to the Independence and Balance of 
Advisory Committees 11 (2008), available at https://www.gao.gov/assets/
120/119486.pdf.
    \16\2004 GAO Report at 41.
    \17\ACUS Recommendations at 13.
---------------------------------------------------------------------------
    To remove loopholes which have unintentionally shielded 
certain advisory committee activities from FACA requirements, 
including public reporting, H.R. 70 expands the definition of 
advisory committee to include advisory committees which are 
formed under contract or grant. It also clarifies that FACA and 
its corresponding rules and regulations apply to subcommittees, 
or other subgroups, created by advisory committees, except that 
subcommittees do not have to submit separate charters. Finally, 
H.R. 70 clarifies that any individual, regardless of their 
voting status within the committee, who participates in the 
committee meetings as if they were a member, should be 
considered a member of the committee for purposes of compliance 
with FACA.
    To address ACUS recommendations to modernize FACA reporting 
requirements, H.R. 70 requires agencies to post on the agency 
website all documents which are required to be made publicly 
available under FACA, in advance of meeting dates to which the 
documents apply. H.R. 70 also states that after any committee 
meeting, a video or audio recording, or transcript should be 
published with the official meeting minutes and required 
documents. This is not intended to override any existing FACA 
exemptions, including those related to trade, national 
security, and other confidential or sensitive topics.
    With the goal of improving transparency over possible 
conflict of interests, H.R. 70 requires agencies to publicly 
release a list of all members for a given committee, including 
whether or not they are designated as a special government 
employee or representative, and who nominated the individual 
for service. For individuals selected as a representative, the 
agency is asked to specify which group or interest they have 
been selected to represent. Agencies are also required to 
publicly release information related to conflict-of-interest 
waivers granted to special government employees.
    To discourage agencies from labeling their advisory 
committee members as representatives by default, H.R. 70 
codifies a definition of special government employee and 
representative and asks each agency's ethics officer to review 
advisory committee members' designation. OGE's current and 
future guidance on how agencies may determine advisory 
committee members' appointments should help further clarify 
this matter.\18\
---------------------------------------------------------------------------
    \18\Office of Gov't Ethics, Advisory Committee Members, Feb. 25, 
2016, available at https://www.oge.gov/Web/oge.nsf/Resources/
Advisory+Committee+Members. See also Office of Gov't Ethics, 82 x 22, 
Memorandum dated July 9, 1982 from J. Jackson Walter Director of the 
Office of Government Ethics to Heads of Departments and Agencies of the 
Executive Branch regarding Members of Federal Advisory Committees and 
the Conflict-of-Interest Statutes (1982), available at https://
www.oge.gov/Web/oge.nsf/0/986E5BB2E29A5CDB85257E96005FBBC6/$FILE/
39cf3009de3340b9a96158c14f88b8ae3.pdf; Office of Gov't Ethics, DO-05-
012, Memorandum on Federal Advisory Committee Appointments (2005), 
available at https://www.oge.gov/web/oge.nsf/Legal%20Advisories/
A568AF31159DD16485257E96005FBDCC/$FILE/do-05-012_.pdf?open.
---------------------------------------------------------------------------
    Finally, to improve transparency over committee membership, 
H.R. 70 requires agencies to publicly release the criteria used 
to select committee members, including the process for 
selecting a balance in viewpoints and experience. Following the 
recommendations of GAO and ACUS on the need to increase 
diversity in membership experiences and expertise, H.R. 70 
directs agencies to take public comments on nominations for 
committee membership and instructs agencies to consider any 
public nominations submitted in this way. However, this is not 
meant to instruct agencies to only consider publicly-nominated 
individuals when selecting advisory committee members.

                        III. Legislative History

    Representative Wm. Lacy Clay (D-MO) introduced H.R. 70 on 
January 3, 2017. The bill passed the House on January 4, 2017, 
under suspension of the rules.
    On January 5, 2017, the Act was referred to the Committee 
on Homeland Security and Governmental Affairs. The Committee 
considered H.R. 70 at a business meeting on October 4, 2017. 
The Committee favorably reported the Act by voice vote en bloc. 
Senators present for the vote were Johnson, Lankford, Daines, 
McCaskill, Tester, Heitkamp, Hassan, and Harris.

        IV. Section-by-Section Analysis of the Act, as Reported


Section 1. Short title; table of contents

    This section designates the short title of the Act as the 
``Federal Advisory Committee Act Amendments of 2017.'' This 
section also lays out the table of contents for the Act.

Sec. 2. Ensuring independent advice and expertise

    This section prohibits agencies from appointing an 
individual to an advisory committee based on his or her 
political affiliation, unless the law requires the committee to 
have appointments based on political affiliation. It also 
requires that agencies give opportunity for public comment to 
suggest members for advisory committees.
    Additionally, this section requires that all advisory 
committee members who are not Federal Government employees be 
designated as either a special government employee, who 
provides advice based on his or her own expertise, or as a 
representative of a group outside of the Federal Government. 
These special government employees should be selected with 
consideration of his or her conflicts of interests, as defined 
by 18 U.S.C. Sec. 208(b)(3), so that each agency minimizes 
conflicts of interest in advisory committees.
    Finally, this section preserves the independence of 
advisory committees by directing agencies to not interfere with 
their activities and prohibiting agency employees from serving 
as the chair of an advisory committee, unless the authorizing 
statute specifically states otherwise or the head of an agency 
directs the employee to serve as chair.

Sec. 3. Preventing efforts to circumvent the Federal Advisory Committee 
        Act and public disclosure

    This section closes several loopholes used to circumvent 
FACA requirements. First, it specifies that individuals who 
participate in committee meetings as if they were members shall 
be considered committee members, even if they do not have a 
right to vote on committee recommendations.
    Second, this section states that FACA requirements apply to 
all subcommittees of advisory committees, unless the 
legislation authorizing the advisory committee states 
otherwise, with the exception that subcommittees do not need to 
file their own charter.
    Third, this section clarifies that advisory committees 
formed under a contract, grant, or other transactional 
authority are subject to FACA requirements.
    Finally, this section clarifies that the individuals 
referenced in the previous section who are designated as 
special government employees according to their selection on a 
committee based on their own expertise, should not be 
considered a Federal Government employee for the purposes of 
determining whether or not an advisory committee is comprised 
entirely of Federal employees, and thus exempt from FACA 
requirements.

Sec. 4. Increasing transparency of Advisory Committees

    This section lists what information an agency shall make 
public for each advisory committee as well as how and when the 
agency must make this information public.
    This section also amends what information must be included 
in the charters which advisory committees are required to file 
every two years.

Sec. 5. Managing Federal Advisory Committees

    This section amends the responsibilities of the Advisory 
Committee Management Officer, the individual responsible for 
implementing the laws and regulations for advisory committees 
and serves as the primary point of contact for the General 
Services Administration.

Sec. 6. Comptroller General Review and Reports

    This section asks the GAO to review agency compliance with 
FACA as amended by this bill and submit two reports to Congress 
on agency compliance.

Sec. 7. Application of Federal Advisory Committee Act to Trade Advisory 
        Committees

    This section amends the existing exemption for Trade 
Advisory Committees to publically release the transcripts or 
recordings of their meetings to ensure that Trade Advisory 
Committees are also exempt from the new requirements for 
advisory committee meeting publication in section 4 of this 
legislation.

Sec. 8. Definitions

    This section adds the same definition of ``special 
Government employee'' which is in Title 18 of the United States 
Code.

Sec. 9. Technical and conforming amendments

    This section changes the compensation limit for members and 
staff of advisory committees and corrects a definition for 
``individuals with disabilities.''

Sec. 10. Effective date

    This section establishes the effective date of the Act as 
30 days after enactment.

Sec. 11. No additional funds authorized

    This section provides that no further funds are authorized 
to carry out this Act.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this Act and determined 
that the Act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the Act contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate


                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 17, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 70, the Federal 
Advisory Committee Act Amendments of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 70--Federal Advisory Committee Act Amendments of 2017

    Summary: H.R. 70 would amend the Federal Advisory Committee 
Act (FACA), which governs the operation of most federal 
advisory committees, to require agencies to disclose additional 
information about committee activities to the public. It also 
would expand the act to cover additional federal committees and 
would require the Government Accountability Office (GAO) to 
submit reports to the Congress concerning the appointment of 
advisory committee members. More than 1,000 advisory committees 
provide advice and guidance to federal agencies on many 
subjects ranging from organ donation to the operations of the 
Department of Homeland Security. Those committees, which may 
also be called commissions, councils, or task forces, have been 
created to collect a variety of viewpoints on specific policy 
issues. They can provide advice or make recommendations to 
federal agencies.
    CBO estimates that implementing H.R. 70 would cost $70 
million over the 2018-2022 period, assuming appropriation of 
the necessary amounts. Enacting the bill could affect direct 
spending by agencies not funded through annual appropriations; 
therefore, pay-as-you-go procedures apply. CBO estimates, 
however, that any net increase in spending by those agencies 
would be negligible. Enacting the bill would not affect 
revenues.
    CBO estimates that enacting H.R. 70 would not significantly 
affect net direct spending or on-budget deficits in any of the 
four consecutive 10-year periods beginning in 2028.
    H.R. 70 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 70 is shown in the following table. 
The costs of this legislation fall primarily within budget 
function 800 (general government) but would affect all budget 
functions that include funding for federal advisory committees.

----------------------------------------------------------------------------------------------------------------
                                    By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------------------------------------
                                                                2018    2019    2020    2021    2022   2018-2022
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level................................      15      15      15      15      15        75
Estimated Outlays............................................      10      15      15      15      15        70
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that H.R. 
70 will be enacted in fiscal year 2018 and that the necessary 
funds will be provided each year. Estimated outlays are based 
on historical patterns for similar activities.
    FACA governs the activities of federal advisory committees. 
Those committees provide independent advice and recommendations 
to the federal government. According to the General Services 
Administration (GSA), there are approximately 1,000 advisory 
committees, with about 70,000 members, that provide advice and 
recommendations to about 50 departments and agencies. GSA 
estimates that the total cost to manage those advisory 
committees during fiscal year 2016 was $424 million.
    Under FACA, GSA maintains management guidelines for 
committees and advises committees on implementing those 
guidelines. The Office of Government Ethics is responsible for 
developing regulations and guidance for advisory committee 
members who serve as special government employees and must meet 
certain requirements pertaining to conflicts of interest. In 
addition, FACA requires that the advice provided by the 
committees be objective and publicly available. Meetings of 
advisory committees are generally open to the public, with 
certain specified exceptions. Notice of such meetings must be 
published in advance; all papers, records, and minutes of 
meetings must be made available for public inspection, and such 
information is subject to disclosure under the Freedom of 
Information Act.
    According to GSA and other agencies, H.R. 70 would impose 
more-stringent ethics requirements on all advisory committee 
members. Agencies would have to make more information about 
such committees available to the public, make the procedures 
for establishing an advisory committee and selecting its 
members more transparent to the public, and extend FACA 
regulations to cover additional advisory committees that are 
currently exempt. Under the bill, GAO would be required to 
produce two reports over the next five years that examine how 
agencies are appointing advisory committee members. Based on 
the current cost of administering advisory committees and 
preparing reports, CBO estimates that implementing the bill 
would cost each major agency around $1 million a year--or about 
$15 million annually.
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. H.R. 70 could affect direct spending by agencies not 
funded through annual appropriations. CBO estimates, however, 
that any net increase in spending by those agencies would be 
negligible. Enacting the bill would not affect revenues.
    Increase in long term direct spending and deficits: CBO 
estimates that enacting H.R. 70 would not significantly affect 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    Mandates: H.R. 70 contains no intergovernmental or private-
sector mandates as defined in UMRA.
    Estimate prepared by: Federal costs: Matthew Pickford; 
Mandates: Zachary Byrum.
    Estimate approved by: H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Act, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


TITLE 5--APPENDIX

           *       *       *       *       *       *       *


FEDERAL ADVISORY COMMITTEE ACT

           *       *       *       *       *       *       *



SEC 3. DEFINITIONS.

           *       *       *       *       *       *       *


          (1) * * *
          (2) * * *
                  (A) * * *
                  (B) * * *
                  (C) established or utilized by one or more 
                agencies, in the interest of obtaining advice 
                or recommendations for the President or one or 
                more agencies or officers of the Federal 
                Government, except that such term excludes (i) 
                any committee that is composed wholly of full-
                time, or permanent part-time, officers or 
                employees of the Federal Government, and (ii) 
                any committee that is created by the National 
                Academy of Sciences or the National Academy of 
                Public Administration. 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.

           *       *       *       *       *       *       *

          (5) The term ``special Government employee'' has the 
        meaning given that term in section 202(a) of title 18, 
        United States Code.

           *       *       *       *       *       *       *


SEC. 4. APPLICABILITY; RESTRICTIONS.

    [(a) The provisions of this Act or of any rule, order, or 
regulation promulgated under this Act shall apply to each 
advisory committee except to the extent that any Act of 
Congress establishing any such advisory committee specifically 
provides otherwise.]
    (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).
    (b) * * *
    (c) * * *
    (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.
    (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. 7. RESPONSIBILITIES OF THE ADMINISTRATOR OF GENERAL SERVICES; 
                    COMMITTEE MANAGEMENT SECRETARIAT, ESTABLISHMENT; 
                    REVIEW; RECOMMENDATIONS TO PRESIDENT AND CONGRESS; 
                    AGENCY COOPERATION; PERFORMANCE GUIDELINES; UNIFORM 
                    PAY GUIDELINES; TRAVEL EXPENSES; EXPENSE 
                    RECOMMENDATIONS.

    (a) * * *
    (b) * * *
    (c) The Administrator shall promulgate regulations and 
prescribe administrative guidelines and management controls 
applicable to advisory committees, and, to the maximum extent 
feasible, provide advice, assistance, and guidance to advisory 
committees to improve their performance. In carrying out his 
functions under this subsection, the Administrator shall 
consider the recommendations of each agency head with respect 
to means of improving the performance of advisory committees 
whose duties are related to such agency.
    (d) * * *
          (1) * * *
                  (A) no member of any advisory committee or of 
                the staff of any advisory committee shall 
                receive compensation at a rate in excess of 
                [the rate specified for GS-18 of the General 
                Schedule under section 5332] the rate for level 
                IV of the Executive Schedule under section 5315 
                of title 5, United States Code;
                  (B) * * *
                  (C) * * *
                          (i) who are blind or deaf or who 
                        otherwise qualify as [handicapped 
                        individuals (within the meaning of 
                        section 501 of the Rehabilitation Act 
                        of 1973 (29 U.S.C. 794))] individuals 
                        with disabilities (as defined in 
                        section 7(20) of the Rehabilitation Act 
                        of 1973 (29 U.S.C. 705 (20))), and

           *       *       *       *       *       *       *


SEC. 8. RESPONSIBILITIES OF AGENCY HEADS; INDEPENDENT ADVICE AND 
                    RECOMMENDATIONS; ADVISORY COMMITTEE MANAGEMENT 
                    OFFICER, DESIGNATION.

    (a) * * *
    [(b) The head of each agency which has an advisory 
committee shall designate an Advisory Committee Management 
Officer who shall--
          [(1) exercise control and supervision over the 
        establishment, procedures, and accomplishments of 
        advisory committees established by that agency;
          [(2) assemble and maintain the reports, records, and 
        other papers of any such committee during its 
        existence; and
          [(3) carry out, on behalf of that agency, the 
        provisions of section 552 of title 5, United States 
        Code, with respect to such reports, records, and other 
        papers.]
    (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.
    (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, or other 
        papers described in paragraph (3).

           *       *       *       *       *       *       *


SEC. 9. ESTABLISHMENT AND PURPOSE OF ADVISORY COMMITTEES; MEMBERSHIP; 
                    PUBLICATION IN FEDERAL REGISTER; CHARTER: FILING, 
                    CONTENTS, COPY.

    (a) * * *
    (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.
    (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)(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.
    [(b)](e) Unless otherwise specifically provided by statute 
or Presidential directive, advisory committees shall be 
utilized solely for advisory functions. Determinations of 
action to be taken and policy to be expressed with respect to 
matters upon which an advisory committee reports or makes 
recommendations shall be made solely by the President or an 
officer of the Federal Government.
    [(c)](f) No advisory committee shall meet or take any 
action until an advisory committee charter has been filed with 
[(1)] the Administrator, [in the case of Presidential advisory 
committees, or (2) with] the head of the agency to whom any 
advisory committee [reports and with] 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 of 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 2 
        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 dollar 
        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. 10. ADVISORY COMMITTEE PROCEDURES; MEETINGS; NOTICE, PUBLICATION 
                    IN FEDERAL REGISTER; REGULATIONS; MINUTES; 
                    CERTIFICATION; ANNUAL REPORT; FEDERAL OFFICER OR 
                    EMPLOYEE, ATTENDANCE; CHAIR.

    (a) * * *

           *       *       *       *       *       *       *

    (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. 11. [AVAILABILITY OF TRANSCRIPTS; ``AGENCY PROCEEDING''] 
                    DISCLOSURE OF INFORMATION.

    [(a) 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 transcripts of agency 
proceedings or advisory committee meetings.
    [(b) As used in this section ``agency proceeding'' means 
any proceeding as defined in section 551(12) of title 5, United 
States Code.]
    (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.

           *       *       *       *       *       *       *


TITLE 19--CUSTOMS DUTIES

           *       *       *       *       *       *       *


CHAPTER 12--TRADE ACT OF 1974

           *       *       *       *       *       *       *



Subchapter 1--Negotiating and Other Authority

           *       *       *       *       *       *       *



PART 3--HEARINGS AND ADVICE CONCERNING NEGOTIATIONS

           *       *       *       *       *       *       *



SEC. 2155. INFORMATION AND ADVICE FROM PRIVATE AND PUBLIC SECTORS

           *       *       *       *       *       *       *


    (a) * * *

           *       *       *       *       *       *       *

    (f) * * *
          (1) * * *
          (2) * * *
                  (A) the meetings of advisory committees 
                established under subsections (b) and (c) of 
                this section shall be exempt from the 
                requirements of [subsections (a) and (b) of 
                sections 10 and 11 of the Federal Advisory 
                Committee Act] 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 (relating to 
                open meetings, public notice, public 
                participation, and public availability of 
                documents), whenever and to the extent it is 
                determined by the President or the President's 
                designee that such meetings will be concerned 
                with matters the disclosure of which would 
                seriously compromise the development by the 
                United States Government of trade policy, 
                priorities, negotiating objectives, or 
                bargaining positions with respect to matters 
                referred to in subsection (a) of this section, 
                and that meetings may be called of such special 
                task forces, plenary meetings of chairmen, or 
                other such groups made up of members of the 
                committees established under subsections (b) 
                and (c) of this section; and

           *       *       *       *       *       *       *


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