Federal Advisory Committee Act Amendments of 2019

IIB 116TH CONGRESS 1ST SESSION H. R. 1608 IN THE SENATE OF THE UNITED STATES MARCH 13, 2019 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 2 HR 1608 RFS SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1 (a) SHORT TITLE.—This Act may be cited as the 2 ‘‘Federal Advisory Committee Act Amendments of 2019’’. 3 (b) TABLE OF CONTENTS.—The table of contents for 4 this Act is as follows: 5 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 com- mittees. 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. 6 (a) BAR ON POLITICAL LITMUS TESTS.—Section 9 7 of the Federal Advisory Committee Act (5 U.S.C. App.) 8 is amended— 9 (1) in the section heading, by inserting ‘‘MEM- 10 BERSHIP;’’ after ‘‘ADVISORY COMMITTEES;’’; 11 (2) by redesignating subsections (b) and (c) as 12 subsections (e) and (f), respectively; and 13 (3) by inserting after subsection (a) the fol- 14 lowing: 15 ‘‘(b) APPOINTMENTS MADE WITHOUT REGARD TO 16 POLITICAL AFFILIATION OR ACTIVITY.—All appointments 17 to advisory committees shall be made without regard to 18 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 3 HR 1608 RFS political affiliation or political campaign activity, unless re- 1 quired by Federal statute.’’. 2 (b) MINIMIZING CONFLICTS OF INTEREST.—Section 3 9 of the Federal Advisory Committee Act (5 U.S.C. App.), 4 as amended by subsection (a) of this section, is further 5 amended by inserting after subsection (b) (as added by 6 such subsection (a)) the following: 7 ‘‘(c) PUBLIC NOMINATIONS OF COMMITTEE MEM- 8 BERS.— 9 ‘‘(1) Before making an appointment to an advi- 10 sory committee, the head of an agency shall— 11 ‘‘(A) solicit nominations for potential com- 12 mittee members; 13 ‘‘(B) if the head of the agency is required 14 to publish a notice under subsection (a)(2), in- 15 clude in the notice a solicitation for nomina- 16 tions of potential committee members; and 17 ‘‘(C) provide in the notice under subpara- 18 graph (B) a mechanism for interested persons 19 to comment through a publicly available website 20 of the agency. 21 ‘‘(2) The head of an agency shall consider any 22 comments submitted in accordance with paragraph 23 (1)(C) in appointing the members of an advisory 24 committee. 25 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 4 HR 1608 RFS ‘‘(3) The head of an agency shall solicit nomi- 1 nations under paragraph (1) not less frequently than 2 once every 2 years. 3 ‘‘(4) Notwithstanding paragraph (1), if a va- 4 cancy in an advisory committee occurs before the 5 next scheduled solicitation for nominations under 6 this subsection, an agency may appoint a member 7 from among individuals that were previously nomi- 8 nated to be a member of the advisory committee. 9 ‘‘(d) DESIGNATION OF COMMITTEE MEMBERS.— 10 ‘‘(1) An individual appointed to an advisory 11 committee who is not a full-time or permanent part- 12 time officer or employee of the Federal Government 13 shall be designated as— 14 ‘‘(A) a special Government employee, if the 15 individual is providing advice based on the indi- 16 vidual’s expertise or experience; or 17 ‘‘(B) a representative, if the individual is 18 representing the views of an entity or entities 19 outside of the Federal Government. 20 ‘‘(2) An agency may not designate committee 21 members as representatives to avoid subjecting them 22 to Federal ethics rules and requirements. 23 ‘‘(3) The designated agency ethics official for 24 each agency shall review the members of each advi- 25 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 5 HR 1608 RFS sory committee that reports to the agency to deter- 1 mine whether each member’s designation is appro- 2 priate, and to redesignate members if appropriate. 3 The designated agency ethics official shall certify to 4 the head of the agency that such review has been 5 made— 6 ‘‘(A) following the initial appointment of 7 members; and 8 ‘‘(B) at the time a committee’s charter is 9 renewed, or, in the case of a committee with an 10 indefinite charter, every 2 years. 11 ‘‘(4) The head of each agency shall inform each 12 individual who is not a full-time or permanent part- 13 time officer or employee of the Federal Government 14 appointed to an advisory committee that reports to 15 the agency whether the individual is appointed as a 16 special Government employee or as a representative. 17 The agency head shall provide each committee mem- 18 ber with an explanation of the differences between 19 special Government employees and representatives 20 and a summary of applicable ethics requirements. 21 The agency head, acting through the designated 22 agency ethics official, shall obtain signed and dated 23 written confirmation from each committee member 24 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 6 HR 1608 RFS that the member received and reviewed the informa- 1 tion required by this paragraph. 2 ‘‘(5) The Director of the Office of Government 3 Ethics shall provide guidance to agencies on what to 4 include in the summary of ethics requirements re- 5 quired by paragraph (4). 6 ‘‘(6) The head of each agency shall, to the ex- 7 tent practicable, develop and implement strategies to 8 minimize the need for written determinations under 9 section 208(b)(3) of title 18, United States Code. 10 Strategies may include such efforts as improving 11 outreach efforts to potential committee members and 12 seeking public input on potential committee mem- 13 bers. 14 ‘‘(7) Nothing in this subsection shall be con- 15 strued to supersede the inapplicability of this Act 16 with respect to peer review groups appointed under 17 paragraph (16) of section 402(b) of the Public 18 Health Service Act, as described in the flush text 19 following paragraph (25)(B) of such section.’’. 20 (c) REGULATIONS IMPLEMENTING FACA.—Section 21 7(c) of the Federal Advisory Committee Act (5 U.S.C. 22 App.) is amended by inserting ‘‘promulgate regulations 23 and’’ after ‘‘The Administrator shall’’. 24 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 7 HR 1608 RFS (d) ENSURING INDEPENDENT ADVICE AND REC- 1 OMMENDATIONS.—The Federal Advisory Committee Act 2 (5 U.S.C. App.) is amended— 3 (1) in section 8— 4 (A) in the section heading, by inserting 5 ‘‘INDEPENDENT ADVICE AND REC- 6 OMMENDATIONS;’’ after ‘‘RESPONSIBIL- 7 ITIES OF AGENCY HEADS;’’; 8 (B) by redesignating subsection (b) as sub- 9 section (c); and 10 (C) by inserting after subsection (a) the 11 following: 12 ‘‘(b) The head of each agency shall ensure that the 13 agency does not interfere with the free and independent 14 participation, expression of views, and deliberation by 15 committee members. Each advisory committee shall in- 16 clude a statement describing the process used by the advi- 17 sory committee in formulating the advice and rec- 18 ommendations when they are transmitted to the agency.’’; 19 and 20 (2) in section 10— 21 (A) in the section heading, by inserting ‘‘; 22 CHAIR’’ after ‘‘ATTENDANCE’’; and 23 (B) by inserting after subsection (f) the 24 following new subsection: 25 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 8 HR 1608 RFS ‘‘(g) The chair shall not be an employee of the agency 1 to which the advisory committee reports, unless— 2 ‘‘(1) a statute specifically authorizes selection of 3 such an employee as the chair; or 4 ‘‘(2) the head of the agency directs an employee 5 to serve as the chair.’’. 6 SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FED- 7 ERAL ADVISORY COMMITTEE ACT AND PUB- 8 LIC DISCLOSURE. 9 (a) SUBCOMMITTEES.—Section 4 of the Federal Ad- 10 visory Committee Act (5 U.S.C. App.) is amended by 11 striking subsection (a) and inserting the following: 12 ‘‘(a) APPLICATION.—The provisions of this Act or of 13 any rule, order, or regulation promulgated under this Act 14 shall apply to each advisory committee, including any sub- 15 committee or subgroup thereof, except to the extent that 16 any Act of Congress establishing any such advisory com- 17 mittee specifically provides otherwise. Any subcommittee 18 or subgroup that reports to a parent committee estab- 19 lished under section 9(a) is not required to comply with 20 section 9(f).’’. 21 (b) COMMITTEES CREATED UNDER CONTRACT.— 22 Section 3(2) of the Federal Advisory Committee Act (5 23 U.S.C. App.) is amended in the matter following subpara- 24 graph (C) by adding at the end the following: ‘‘An advi- 25 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 9 HR 1608 RFS sory committee is considered to be established by an agen- 1 cy, agencies, or the President if it is formed, created, or 2 organized under contract, other transactional authority, 3 cooperative agreement, grant, or otherwise at the request 4 or direction of an agency, agencies, or the President.’’. 5 (c) ADVISORY COMMITTEES CONTAINING SPECIAL 6 GOVERNMENT EMPLOYEES.—Section 4 of the Federal Ad- 7 visory Committee Act (5 U.S.C. App.), as amended by 8 subsections (a) and (b) of this section, is further amended 9 by adding at the end the following new subsection: 10 ‘‘(d) SPECIAL GOVERNMENT EMPLOYEES.—Com- 11 mittee members appointed as special Government employ- 12 ees shall not be considered full-time or permanent part- 13 time officers or employees of the Federal Government for 14 purposes of determining the applicability of this Act under 15 section 3(2).’’. 16 SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COM- 17 MITTEES. 18 (a) INFORMATION REQUIREMENT.—Section 11 of the 19 Federal Advisory Committee Act (5 U.S.C. App.) is 20 amended to read as follows: 21 ‘‘SEC. 11. DISCLOSURE OF INFORMATION. 22 ‘‘(a) IN GENERAL.—With respect to each advisory 23 committee, the head of the agency to which the advisory 24 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 10 HR 1608 RFS committee reports shall make publicly available in accord- 1 ance with subsection (b) the following information: 2 ‘‘(1) The charter of the advisory committee. 3 ‘‘(2) A description of the process used to estab- 4 lish and appoint the members of the advisory com- 5 mittee, including the following: 6 ‘‘(A) The process for identifying prospec- 7 tive members. 8 ‘‘(B) The process of selecting members for 9 balance of viewpoints or expertise. 10 ‘‘(C) The reason each member was ap- 11 pointed to the committee. 12 ‘‘(D) A justification of the need for rep- 13 resentative members, if any. 14 ‘‘(3) A list of all current members, including, 15 for each member, the following: 16 ‘‘(A) The name of any person or entity 17 that nominated the member. 18 ‘‘(B) Whether the member is— 19 ‘‘(i) designated as a special Govern- 20 ment employee; 21 ‘‘(ii) a representative; or 22 ‘‘(iii) a full-time or permanent part- 23 time officer or employee of the Federal 24 Government. 25 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 11 HR 1608 RFS ‘‘(C) In the case of a representative, the 1 individuals or entity whose viewpoint the mem- 2 ber represents. 3 ‘‘(4) A list of all members designated as special 4 Government employees for whom written certifi- 5 cations were made under section 208(b) of title 18, 6 United States Code, a copy of each such certifi- 7 cation, a summary description of the conflict necessi- 8 tating the certification, and the reason for granting 9 the certification. 10 ‘‘(5) Any recusal agreement made by a member 11 or any recusal known to the agency that occurs dur- 12 ing the course of a meeting or other work of the 13 committee. 14 ‘‘(6) A summary of the process used by the ad- 15 visory committee for making decisions. 16 ‘‘(7) Detailed minutes of all meetings of the 17 committee and a description of committee efforts to 18 make meetings accessible to the public using online 19 technologies (such as video recordings) or other 20 techniques (such as audio recordings). 21 ‘‘(8) Any written determination by the Presi- 22 dent or the head of the agency to which the advisory 23 committee reports, pursuant to section 10(d), to 24 VerDate Sep 11 2014 23:00 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1608.RFS H1608 kjohnson on DSK79L0C42 with BILLS 12 HR 1608 RFS close a meeting or any portion of a meeting and the 1 reasons for such determination. 2 ‘‘(9) Notices of future meetings of the com- 3 mittee. 4 ‘‘(10) Any additional information considered 5 relevant by the head of the agency to which the advi- 6 sory committee reports. 7 ‘‘(b) MANNER OF DISCLOSURE.— 8 ‘‘(1) IN GENERAL.—Except as provided in para- 9 graph (2), the head of an agency shall make the in- 10 formation required to be disclosed under subsection 11 (a) available electronically on a publicly available 12 website of the agency and to the Administrator at 13 least 15 calendar days before each meeting of an ad- 14 visory committee. If the head of the agency deter- 15 mines that such timing is not practicable for any re- 16 quired information, such head shall make the infor- 17 mation available as soon as practicable but no later 18 than 48 hours before the next meeting of the com- 19 mittee. An agency may withhold from disclosure any 20 informati [Text truncated for display. Full text available on Congress.gov.]