[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2347 Referred in Senate (RFS)]
<DOC>
114th CONGRESS
2d Session
H. R. 2347
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 2, 2016
Received; read twice and referred to the Committee on Homeland Security
and Governmental Affairs
_______________________________________________________________________
AN ACT
To amend the Federal Advisory Committee Act to increase the
transparency of Federal advisory committees, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Federal Advisory
Committee Act Amendments of 2016''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Ensuring independent advice and expertise.
Sec. 3. Preventing efforts to circumvent the Federal Advisory Committee
Act and public disclosure.
Sec. 4. Increasing transparency of advisory committees.
Sec. 5. Managing Federal advisory committees.
Sec. 6. Comptroller General review and reports.
Sec. 7. Application of Federal Advisory Committee Act to Trade Advisory
Committees.
Sec. 8. Definitions.
Sec. 9. Technical and conforming amendments.
Sec. 10. Effective date.
Sec. 11. No additional funds authorized.
SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE.
(a) Bar on Political Litmus Tests.--Section 9 of the Federal
Advisory Committee Act (5 U.S.C. App.) is amended--
(1) in the section heading, by inserting ``membership;''
after ``advisory committees;'';
(2) by redesignating subsections (b) and (c) as subsections
(e) and (f), respectively; and
(3) by inserting after subsection (a) the following:
``(b) Appointments Made Without Regard to Political Affiliation or
Activity.--All appointments to advisory committees shall be made
without regard to political affiliation or political activity, unless
required by Federal statute.''.
(b) Minimizing Conflicts of Interest.--Section 9 of the Federal
Advisory Committee Act (5 U.S.C. App.), as amended by subsection (a) of
this section, is further amended by inserting after subsection (b) (as
added by such subsection (a)) the following:
``(c) Public Nominations of Committee Members.--Prior to appointing
members to an advisory committee, the head of an agency shall give
interested persons an opportunity to suggest potential committee
members. The agency shall include a request for comments in the Federal
Register notice required under subsection (a) and provide a mechanism
for interested persons to comment through the official website of the
agency. The agency shall consider any comments submitted under this
subsection in selecting the members of an advisory committee.
``(d) Designation of Committee Members.--
``(1) An individual appointed to an advisory committee who
is not a full-time or permanent part-time officer or employee
of the Federal Government shall be designated as--
``(A) a special Government employee, if the
individual is providing advice based on the
individual's expertise or experience; or
``(B) a representative, if the individual is
representing the views of an entity or entities outside
of the Federal Government.
``(2) An agency may not designate committee members as
representatives to avoid subjecting them to Federal ethics
rules and requirements.
``(3) The designated agency ethics official for each agency
shall review the members of each advisory committee that
reports to the agency to determine whether each member's
designation is appropriate, and to redesignate members if
appropriate. The designated agency ethics official shall
certify to the head of the agency that such review has been
made--
``(A) following the initial appointment of members;
and
``(B) at the time a committee's charter is renewed,
or, in the case of a committee with an indefinite
charter, every 2 years.
``(4) The head of each agency shall inform each individual
appointed to an advisory committee that reports to the agency
whether the individual is appointed as a special Government
employee or as a representative. The agency head shall provide
each committee member with an explanation of the differences
between special Government employees and representatives and a
summary of applicable ethics requirements. The agency head,
acting through the designated agency ethics official, shall
obtain signed and dated written confirmation from each
committee member that the member received and reviewed the
information required by this paragraph.
``(5) The Director of the Office of Government Ethics shall
provide guidance to agencies on what to include in the summary
of ethics requirements required by paragraph (4).
``(6) The head of each agency shall, to the extent
practicable, develop and implement strategies to minimize the
need for written determinations under section 208(b)(3) of
title 18, United States Code. Strategies may include such
efforts as improving outreach efforts to potential committee
members and seeking public input on potential committee
members.''.
(c) Regulations Implementing FACA.--Section 7(c) of the Federal
Advisory Committee Act (5 U.S.C. App.) is amended by inserting
``promulgate regulations and'' after ``The Administrator shall''.
(d) Ensuring Independent Advice and Recommendations.--The Federal
Advisory Committee Act (5 U.S.C. App.) is amended--
(1) in section 8--
(A) in the section heading, by inserting
``independent advice and recommendations;'' after
``responsibilities of agency heads;'';
(B) by redesignating subsection (b) as subsection
(c); and
(C) by inserting after subsection (a) the
following:
``(b) The head of each agency shall ensure that the agency does not
interfere with the free and independent participation, expression of
views, and deliberation by committee members. Each advisory committee
shall include a statement describing the process used by the advisory
committee in formulating the advice and recommendations when they are
transmitted to the agency.''; and
(2) in section 10--
(A) in the section heading, by inserting ``;
chair'' after ``attendance''; and
(B) by inserting after subsection (f) the following
new subsection:
``(g) The Chair shall not be an employee of the agency to which the
advisory committee reports, unless--
``(1) a statute specifically authorizes selection of such
an employee as the Chair; or
``(2) the head of the agency directs an employee to serve
as the Chair.''.
SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FEDERAL ADVISORY COMMITTEE
ACT AND PUBLIC DISCLOSURE.
(a) De Facto Members.--Section 4 of the Federal Advisory Committee
Act (5 U.S.C. App.) is amended by adding at the end the following new
subsection:
``(d) Treatment of Individual as Member.--An individual who is not
a full-time or permanent part-time officer or employee of the Federal
Government shall be regarded as a member of a committee if the
individual regularly attends and participates in committee meetings as
if the individual were a member, even if the individual does not have
the right to vote or veto the advice or recommendations of the advisory
committee.''.
(b) Subcommittees.--Section 4 of the Federal Advisory Committee Act
(5 U.S.C. App.), as amended by subsection (a) of this section, is
further amended by striking subsection (a) and inserting the following:
``(a) Application.--The provisions of this Act or of any rule,
order, or regulation promulgated under this Act shall apply to each
advisory committee, including any subcommittee or subgroup thereof,
except to the extent that any Act of Congress establishing any such
advisory committee specifically provides otherwise. Any subcommittee or
subgroup that reports to a parent committee established under section
9(a) is not required to comply with section 9(f).''.
(c) Committees Created Under Contract.--Section 3(2) of the Federal
Advisory Committee Act (5 U.S.C. App.) is amended in the matter
following subparagraph (C) by adding at the end the following: ``An
advisory committee is considered to be established by an agency,
agencies, or the President if it is formed, created, or organized under
contract, other transactional authority, cooperative agreement, grant,
or otherwise at the request or direction of an agency, agencies, or the
President.''.
(d) Advisory Committees Containing Special Government Employees.--
Section 4 of the Federal Advisory Committee Act (5 U.S.C. App.), as
amended by subsections (a) and (b) of this section, is further amended
by adding at the end the following new subsection:
``(e) Special Government Employees.--Committee members appointed as
special Government employees shall not be considered full-time or
permanent part-time officers or employees of the Federal Government for
purposes of determining the applicability of this Act under section
3(2).''.
SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COMMITTEES.
(a) Information Requirement.--Section 11 of the Federal Advisory
Committee Act (5 U.S.C. App.) is amended to read as follows:
``SEC. 11. DISCLOSURE OF INFORMATION.
``(a) In General.--With respect to each advisory committee, the
head of the agency to which the advisory committee reports shall make
publicly available in accordance with subsection (b) the following
information:
``(1) The charter of the advisory committee.
``(2) A description of the process used to establish and
appoint the members of the advisory committee, including the
following:
``(A) The process for identifying prospective
members.
``(B) The process of selecting members for balance
of viewpoints or expertise.
``(C) The reason each member was appointed to the
committee.
``(D) A justification of the need for
representative members, if any.
``(3) A list of all current members, including, for each
member, the following:
``(A) The name of any person or entity that
nominated the member.
``(B) Whether the member is designated as a special
Government employee or a representative.
``(C) In the case of a representative, the
individuals or entity whose viewpoint the member
represents.
``(4) A list of all members designated as special
Government employees for whom written certifications were made
under section 208(b) of title 18, United States Code, a copy of
each such certification, a summary description of the conflict
necessitating the certification, and the reason for granting
the certification.
``(5) Any recusal agreement made by a member or any recusal
known to the agency that occurs during the course of a meeting
or other work of the committee.
``(6) A summary of the process used by the advisory
committee for making decisions.
``(7) Detailed minutes of all meetings of the committee and
a description of committee efforts to make meetings accessible
to the public using online technologies (such as video
recordings) or other techniques (such as audio recordings).
``(8) Any written determination by the President or the
head of the agency to which the advisory committee reports,
pursuant to section 10(d), to close a meeting or any portion of
a meeting and the reasons for such determination.
``(9) Notices of future meetings of the committee.
``(10) Any additional information considered relevant by
the head of the agency to which the advisory committee reports.
``(b) Manner of Disclosure.--
``(1) In general.--Except as provided in paragraph (2), the
head of an agency shall make the information required to be
disclosed under this section available electronically on the
official public website of the agency and to the Administrator
at least 15 calendar days before each meeting of an advisory
committee. If the head of the agency determines that such
timing is not practicable for any required information, such
head shall make the information available as soon as
practicable but no later than 48 hours before the next meeting
of the committee. An agency may withhold from disclosure any
information that would be exempt from disclosure under section
552 of title 5, United States Code.
``(2) Website availability.--The head of an agency shall
make available electronically, on the official public website
of the agency, detailed minutes and, to the extent available, a
transcript or audio or video recording of each advisory
committee meeting not later than 30 calendar days after such
meeting.
``(3) Grant reviews.--In the case of grant reviews,
disclosure of information required by subsection (a)(3) may be
provided in the aggregate rather than by individual grant.
``(c) Provision of Information by Administrator of General
Services.--The Administrator of General Services shall provide, on the
official public website of the General Services Administration,
electronic access to the information made available by each agency
under this section.
``(d) Availability of Meeting Materials.--Except where prohibited
by contractual agreements entered into prior to the effective date of
this Act, agencies and advisory committees shall make available to any
person, at actual cost of duplication, copies of advisory committee
meeting materials.''.
(b) Charter Filing.--Subsection (f) of section 9 of the Federal
Advisory Committee Act (5 U.S.C. App.), as redesignated by section 2(a)
of this Act, is amended to read as follows:
``(f) No advisory committee shall meet or take any action until an
advisory committee charter has been filed with the Administrator, the
head of the agency to whom any advisory committee reports, and the
standing committees of the Senate and of the House of Representatives
having legislative jurisdiction of such agency. Such charter shall
contain the following information in the following order:
``(1) The committee's official designation.
``(2) The authority under which the committee is
established.
``(3) The committee's objectives and the scope of its
activity.
``(4) A description of the duties for which the committee
is responsible, and, if such duties are not solely advisory, a
specification of the authority for such functions.
``(5) The agency or official to whom the committee reports.
``(6) The agency responsible for providing the necessary
support for the committee.
``(7) The responsibilities of the officer or employee of
the Federal Government designated under section 10(e).
``(8) The estimated number and frequency of committee
meetings.
``(9) The period of time necessary for the committee to
carry out its purposes.
``(10) The committee's termination date, if less than two
years from the date of the committee's establishment.
``(11) The estimated number of members and a description of
the expertise needed to carry out the objectives of the
committee.
``(12) A description of whether the committee will be
composed of special Government employees, representatives, or
members from both categories.
``(13) Whether the agency intends to create subcommittees
and if so, the agency official authorized to exercise such
authority.
``(14) The estimated annual operating costs in dollars and
full-time equivalent positions for such committee.
``(15) The recordkeeping requirements of the committee.
``(16) The date the charter is filed.
A copy of any such charter shall also be furnished to the Library of
Congress.''.
SEC. 5. MANAGING FEDERAL ADVISORY COMMITTEES.
(a) Committee Management Officers.--Subsection (c) of section 8 of
the Federal Advisory Committee Act (5 U.S.C. App.), as redesignated by
section 2(d) of this Act, is amended to read as follows:
``(c) The head of each agency that has an advisory committee shall
designate an Advisory Committee Management Officer who shall--
``(1) be a senior official who is--
``(A) an expert in implementing the requirements of
this Act and regulations promulgated pursuant to this
Act; and
``(B) the primary point of contact for the General
Services Administration;
``(2) be responsible for the establishment, management, and
supervision of the advisory committees of the agency, including
establishing procedures, performance measures, and outcomes for
such committees;
``(3) assemble and maintain the reports, records, and other
papers (including advisory committee meeting materials) of any
such committee during its existence;
``(4) ensure any such committee and corresponding agency
staff adhere to the provisions of this Act and any regulations
promulgated pursuant to this Act;
``(5) maintain records on each employee of any such
committee and completion of training required for any such
employee;
``(6) be responsible for providing the information required
in section 7(b) of this Act to the Administrator; and
``(7) carry out, on behalf of that agency, the provisions
of section 552 of title 5, United States Code, with respect to
the reports, records, and other papers described in paragraph
(3).''.
SEC. 6. COMPTROLLER GENERAL REVIEW AND REPORTS.
(a) Review.--The Comptroller General of the United States shall
review compliance by agencies with the Federal Advisory Committee Act,
as amended by this Act, including whether agencies are appropriately
appointing advisory committee members as either special Government
employees or representatives.
(b) Report.--The Comptroller General shall submit to the committees
described in subsection (c) two reports on the results of the review,
as follows:
(1) The first report shall be submitted not later than one
year after the date of promulgation of regulations under
section 7(c) of the Federal Advisory Committee Act (5 U.S.C.
App.), as amended by section 2(c).
(2) The second report shall be submitted not later than
five years after such date of promulgation of regulations.
(c) Committees.--The committees described in this subsection are
the Committee on Oversight and Government Reform of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs of the Senate.
SEC. 7. APPLICATION OF FEDERAL ADVISORY COMMITTEE ACT TO TRADE ADVISORY
COMMITTEES.
Section 135(f)(2)(A) of the Trade Act of 1974 (19 U.S.C.
2155(f)(2)(A)) is amended by striking ``subsections (a) and (b) of
sections 10 and 11 of the Federal Advisory Committee Act'' and
inserting ``subsections (a) and (b) of section 10 and subsections
(a)(7), (a)(8), (a)(9), (b)(2), and (d) of section 11 of the Federal
Advisory Committee Act''.
SEC. 8. DEFINITIONS.
Section 3 of the Federal Advisory Committee Act (5 U.S.C. App.) is
amended by adding at the end the following new paragraph:
``(5) The term `special Government employee' has the
meaning given that term in section 202(a) of title 18, United
States Code.''.
SEC. 9. TECHNICAL AND CONFORMING AMENDMENTS.
Section 7(d)(1) of the Federal Advisory Committee Act (5 U.S.C.
App.) is amended--
(1) in subparagraph (A), by striking ``the rate specified
for GS-18 of the General Schedule under section 5332'' and
inserting ``the rate for level IV of the Executive Schedule
under section 5315''; and
(2) in subparagraph (C)(i), by striking ``handicapped
individuals (within the meaning of section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 794))'' and inserting
``individuals with disabilities (as defined in section 7(20) of
the Rehabilitation Act of 1973 (29 U.S.C. 705(20)))''.
SEC. 10. EFFECTIVE DATE.
This Act shall take effect 30 days after the date of the enactment
of this Act.
SEC. 11. NO ADDITIONAL FUNDS AUTHORIZED.
No additional funds are authorized to carry out the requirements of
this Act and the amendments made by this Act. Such requirements shall
be carried out using amounts otherwise authorized.
Passed the House of Representatives March 1, 2016.
Attest:
KAREN L. HAAS,
Clerk.