[Federal Register Volume 85, Number 216 (Friday, November 6, 2020)]
[Notices]
[Pages 71104-71106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24726]


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DEPARTMENT OF LABOR


Secretary's Order 10-2020--Statement of Policy Regarding 
Independence of Advisory Committee Members

ACTION: Notice.

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SUPPLEMENTARY INFORMATION: 
    1. Purpose. To strengthen the quality and reliability of advice 
provided by advisory committees to the Department of Labor, by 
identifying factors to be used in selecting committee members that will 
increase transparency in the disbursement of taxpayer dollars, enhance 
public confidence in advisory committees, and promote efficiency in the 
selection of candidates to serve on advisory committees.
    2. Authorities and Directives Affected.

[[Page 71105]]

    A. Authorities. This Order is issued pursuant to the following 
authorities:
    1. 29 U.S.C. 551 et seq.;
    2. 5 U.S.C. 301-02; and
    3. 5 U.S.C. app. 2 Sec. Sec.  1-15.
    B. Directives Affected. This Order does not affect the authorities 
and responsibilities assigned by any other Secretary's Order.
    3. Definitions.
    ``Committee'' means any advisory committee, committee, board, task 
force, or working group to which the Secretary of Labor or the designee 
of the Secretary appoints individuals subject to the Federal Advisory 
Committee Act (FACA), and the subcommittees of such bodies. This term 
does not include internal committees, boards, task forces, or working 
groups, or apply to purely interagency committees, boards, task forces, 
or working groups.
    ``Organization'' means any organized concern, whether legally 
recognized or otherwise.
    4. Background.
    The Department's Committees provide advice and recommendations that 
agency heads and other decision-makers may use in fulfilling the 
Department's mission of promoting the welfare of the American 
workforce. The Department sponsors several Committees, which focus 
separately on the use of labor market data, employee benefit plans, job 
training programs, international labor standards, trade agreement 
policy, and worker safety and health.
    Under FACA, Committees can be established by Congress, the 
President, or the Department. FACA requires that all Committees operate 
in an independent, orderly, balanced, and transparent manner. 
Membership selection is a critical step in fulfilling these goals. All 
members must be qualified and knowledgeable in their respective fields, 
and must be positioned to offer counsel and advice independent of any 
motive other than the best interests of the Department and those it 
serves. Unless otherwise provided by statute, Presidential directive, 
or other authority establishing a Committee, the Secretary or his 
designee has the authority and responsibility to appoint Committee 
members. This authority includes the prerogative to establish 
eligibility and selection criteria to ensure the Department receives 
the best advice possible from a broad spectrum of experts and 
stakeholders. This statement of policy sets forth factors to consider 
in selecting members to help ensure these FACA requirements are met.
    This Policy Statement is intended to provide notice to the public 
and direction to the Department on how the Secretary or his designees 
will consider the financial interests of potential Committee members. 
Policies and requirements are already in place which prohibit Committee 
members from participating in certain matters in which they have a 
financial interest. See 18 U.S.C. 208; 5 CFR part 2640; DLMS 1604(A), 
1605(C), 1614(E). This Policy Statement is not intended to change or 
add to those provisions, create any mandatory rules restricting 
otherwise-eligible individuals from serving on Committees, or to affect 
the fair balance of Committee members required by FACA.\1\
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    \1\ The Department's current FACA Committees comprise 
representatives of employees, employers, experts in fields such as 
economics and occupational health and safety, and the general 
public. The Department does not believe its contracts and grants go 
disproportionately to any one of these groups, or that any large 
percentage of any of these groups is in receipt of Department 
contracts or grants. Special provisions have been made in Sec.  6(B) 
of this Statement for employees of state, local and tribal entities, 
as those entities do regularly and predictably receive Department 
funding.
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    Instead, this Statement serves the separate purpose of aiming to 
ensure that the Department receives high-quality advice and that the 
public has confidence in the expertise of Committee members. The 
Department's portfolio of contracts and grants has grown over time, as 
have the number of laws and regulations on which Committee members may 
be asked to provide advice, increasing the circumstances where 
Committee members may be called to provide advice on Department 
programs as to which their professional judgment may be influenced, or 
appear to be influenced, by their financial interests. This influence 
or appearance of influence may not rise to the level of an ethical or 
legal concern covered by existing laws and policies, but may 
nonetheless diminish the integrity of advice given the Department in 
ways that are inconsistent with the Department's interest in obtaining 
the most reliable and impartial advice possible. This Statement helps 
guard against such concerns. Further, this Statement promotes public 
confidence in the Department by helping to ensure that advice given to 
the Department is free of bias, and instead solely reflects Committee 
members' experience and expertise.\2\
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    \2\ On the public's confidence in public institutions, see, for 
example, Pew Research Center, ``Americans' View of Government: Low 
Trust, but Some Positive Performance Ratings'' (September 14, 2020), 
https://www.pewresearch.org/politics/2020/09/14/americans-views-of-government-low-trust-but-some-positive-performance-ratings/; Gallup, 
``Confidence in U.S. Institutions Still Below Historical Norms'' 
(June 15, 2015), news.gallup.com/poll/183593/confidence-institutions-below-historical-norms.aspx.
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    5. Responsibilities.
    A. The Deputy Secretary is delegated authority and assigned 
responsibility for issuing written guidance, as necessary, to implement 
this Policy Statement.
    B. The Solicitor of Labor is responsible for providing legal advice 
to the Department on all matters arising in the implementation and 
administration of this Policy Statement.
    6. Factors for Consideration. In making Committee appointments, the 
Secretary or his designee will consider whether prospective Committee 
members are sufficiently financially independent from the Department 
programs and activities for which they may be called upon to provide 
advice.
    A. In circumstances where a prospective member (or any spouse, 
parent, or child of a prospective member) is:
    (i) A principal investigator or co-investigator on a research 
project funded by a Department grant;
    (ii) an officer or employee of an Organization in receipt of a 
Department grant; or
    (iii) an officer or employee of an Organization in receipt of 
disbursements under a contract with the Department,

the Secretary or his designee will consider whether the grant or 
contract in question is so directly related to the Department programs, 
activities, or other matters about which the prospective member may be 
called upon to provide advice that it would cause an objective, 
disinterested observer to entertain a significant doubt about the 
prospective member's ability to provide independent, high-quality 
advice to the Department with respect to such programs, activities, or 
other matters.
    B. Except under the circumstances described in Sec.  6(A)(i), a 
prospective member's position (or any spouse's, parent's, or child's 
position) as an officer or employee of an institution of higher 
education or a state, tribal, or local government agency shall not be 
considered when determining whether the prospective member is 
sufficiently independent from the relevant Department programs and 
activities.
    C. The purpose of this Policy Statement is to improve the quality 
of advice given to the Department and should be followed to the extent 
it accomplishes that objective. For instance, some Committee members 
are called upon to provide advice with

[[Page 71106]]

respect to national security or veterans affairs, or are part of a 
Committee that involves other federal agencies or international bodies, 
where heavy reliance on the factors above may impede rather than 
further the Department's ability to obtain quality advice. The 
Secretary or his designee may give less weight to the factors above 
when doing so is in the best interests of the Department.
    7. Certification. Candidates for Committee membership subject to 
this Policy Statement shall provide, in writing, sufficient information 
for the Secretary or his designee to consider the factors articulated 
in Sec.  6(A) of this Statement, in such form as the Secretary or his 
designee may prescribe.
    8. Application and Exceptions.
    A. This Policy Statement shall apply only to the appointments or 
reappointments of individuals to Committees made after the Effective 
Date of this Statement.
    B. This Policy Statement shall not apply to ex officio members.
    C. This Policy Statement shall not apply to members and prospective 
members of the Advisory Board on Toxic Substances and Worker Health.\3\
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    \3\ Congress has previously enacted specific protections 
regarding the independence of these Committee members.
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    D. This Policy Statement shall not apply to appointments made by 
someone other than the Secretary or his designee.
    E. In cases where a Committee member's independence comes into 
question for a reason articulated under Sec.  6 of this Order after his 
appointment, the Committee member may serve the remainder of his term 
on such Committee. The member should, however, consider recusing 
himself from providing advice to the Department on any programs or 
activities as to which he would not be considered financially 
independent under this Statement.
    9. Privacy. This Policy Statement is subject to the applicable 
laws, regulations, and procedures concerning the privacy of Committee 
candidates.
    10. Controlling Law; Administrative Matters. This Policy Statement 
is intended to be general in nature, and accordingly shall be construed 
and implemented consistent with more specific requirements of any 
statute, Executive Order, or other law governing the composition of a 
particular Committee. If a conflict arises, the specific statute, 
Executive Order, or other law shall govern. The appointment 
considerations articulated in this Statement are in addition to 
internal administrative procedures regarding the appointment of 
individuals to Committees.
    11. Redelegation of Authority. Except as otherwise provided within 
this Policy Statement or by law, all authorities delegated in this 
Order may be redelegated to serve the purposes of this Statement.
    12. Effective Date. This Order is effective immediately.

    Signed in Washington, DC, this 2nd day of November, 2020.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020-24726 Filed 11-5-20; 8:45 am]
BILLING CODE 4510-HL-P