Federal Advisory Committee Act Amendments of 2019

II 116TH CONGRESS 1ST SESSION S. 1220 To amend the Federal Advisory Committee Act to increase the transparency of Federal advisory committees, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 11, 2019 Mr. PORTMAN (for himself and Ms. HASSAN) introduced the following bill; which was read twice and referred to the Committee on Homeland Secu- rity and Governmental Affairs A BILL 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 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Federal Advisory Committee Act Amendments of 2019’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 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. VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 2 •S 1220 IS 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. 12. Determination of budgetary effects. SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE. 1 (a) BAR ON POLITICAL LITMUS TESTS.—Section 9 2 of the Federal Advisory Committee Act (5 U.S.C. App.) 3 is amended— 4 (1) in the section heading, by inserting ‘‘MEM- 5 BERSHIP;’’ after ‘‘ADVISORY COMMITTEES;’’; 6 (2) by redesignating subsections (b) and (c) as 7 subsections (e) and (f), respectively; and 8 (3) by inserting after subsection (a) the fol- 9 lowing: 10 ‘‘(b) APPOINTMENTS MADE WITHOUT REGARD TO 11 POLITICAL AFFILIATION OR ACTIVITY.—All appointments 12 to advisory committees shall be made without regard to 13 political affiliation or political campaign activity, unless re- 14 quired by Federal statute.’’. 15 (b) MINIMIZING CONFLICTS OF INTEREST.—Section 16 9 of the Federal Advisory Committee Act (5 U.S.C. App.), 17 as amended by subsection (a) of this section, is further 18 amended by inserting after subsection (b) (as added by 19 such subsection (a)) the following: 20 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 3 •S 1220 IS ‘‘(c) PUBLIC NOMINATIONS OF COMMITTEE MEM- 1 BERS.— 2 ‘‘(1) Before making an appointment to an advi- 3 sory committee, the head of an agency shall— 4 ‘‘(A) solicit nominations for potential com- 5 mittee members; 6 ‘‘(B) if the head of the agency is required 7 to publish a notice under subsection (a)(2), in- 8 clude in the notice a solicitation for nomina- 9 tions of potential committee members; and 10 ‘‘(C) provide in the notice under subpara- 11 graph (B) a mechanism for interested persons 12 to comment through a publicly available website 13 of the agency. 14 ‘‘(2) The head of an agency shall consider any 15 comments submitted in accordance with paragraph 16 (1)(C) in appointing the members of an advisory 17 committee. 18 ‘‘(3) The head of an agency shall solicit nomi- 19 nations under paragraph (1) not less frequently than 20 once every 2 years. 21 ‘‘(4) Notwithstanding paragraph (1), if a va- 22 cancy in an advisory committee occurs before the 23 next scheduled solicitation for nominations under 24 this subsection, an agency may appoint a member 25 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 4 •S 1220 IS from among individuals that were previously nomi- 1 nated to be a member of the advisory committee. 2 ‘‘(d) DESIGNATION OF COMMITTEE MEMBERS.— 3 ‘‘(1) An individual appointed to an advisory 4 committee who is not a full-time or permanent part- 5 time officer or employee of the Federal Government 6 shall be designated as— 7 ‘‘(A) a special Government employee, if the 8 individual is providing advice based on the indi- 9 vidual’s expertise or experience; or 10 ‘‘(B) a representative, if the individual is 11 representing the views of an entity or entities 12 outside of the Federal Government. 13 ‘‘(2) An agency may not designate committee 14 members as representatives to avoid subjecting them 15 to Federal ethics rules and requirements. 16 ‘‘(3) The designated agency ethics official for 17 each agency shall review the members of each advi- 18 sory committee that reports to the agency to deter- 19 mine whether each member’s designation is appro- 20 priate, and to redesignate members if appropriate. 21 The designated agency ethics official shall certify to 22 the head of the agency that such review has been 23 made— 24 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 5 •S 1220 IS ‘‘(A) following the initial appointment of 1 members; and 2 ‘‘(B) at the time a committee’s charter is 3 renewed, or, in the case of a committee with an 4 indefinite charter, every 2 years. 5 ‘‘(4) The head of each agency shall inform each 6 individual who is not a full-time or permanent part- 7 time officer or employee of the Federal Government 8 appointed to an advisory committee that reports to 9 the agency whether the individual is appointed as a 10 special Government employee or as a representative. 11 The agency head shall provide each committee mem- 12 ber with an explanation of the differences between 13 special Government employees and representatives 14 and a summary of applicable ethics requirements. 15 The agency head, acting through the designated 16 agency ethics official, shall obtain signed and dated 17 written confirmation from each committee member 18 that the member received and reviewed the informa- 19 tion required by this paragraph. 20 ‘‘(5) The Director of the Office of Government 21 Ethics shall provide guidance to agencies on what to 22 include in the summary of ethics requirements re- 23 quired by paragraph (4). 24 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 6 •S 1220 IS ‘‘(6) The head of each agency shall, to the ex- 1 tent practicable, develop and implement strategies to 2 minimize the need for written determinations under 3 section 208(b)(3) of title 18, United States Code. 4 Strategies may include such efforts as improving 5 outreach efforts to potential committee members and 6 seeking public input on potential committee mem- 7 bers. 8 ‘‘(7) Nothing in this subsection shall be con- 9 strued to supersede the inapplicability of this Act 10 with respect to peer review groups appointed under 11 paragraph (16) of section 402(b) of the Public 12 Health Service Act (42 U.S.C. 282(b)), as described 13 in the flush text following paragraph (25)(B) of such 14 section.’’. 15 (c) REGULATIONS IMPLEMENTING FACA.—Section 16 7(c) of the Federal Advisory Committee Act (5 U.S.C. 17 App.) is amended by inserting ‘‘promulgate regulations 18 and’’ after ‘‘The Administrator shall’’. 19 (d) ENSURING INDEPENDENT ADVICE AND REC- 20 OMMENDATIONS.—The Federal Advisory Committee Act 21 (5 U.S.C. App.) is amended— 22 (1) in section 8— 23 (A) in the section heading, by inserting 24 ‘‘INDEPENDENT ADVICE AND REC- 25 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 7 •S 1220 IS OMMENDATIONS;’’ after ‘‘RESPONSIBIL- 1 ITIES OF AGENCY HEADS;’’; 2 (B) by redesignating subsection (b) as sub- 3 section (c); and 4 (C) by inserting after subsection (a) the 5 following: 6 ‘‘(b) The head of each agency shall ensure that the 7 agency does not interfere with the free and independent 8 participation, expression of views, and deliberation by 9 committee members. Each advisory committee shall in- 10 clude a statement describing the process used by the advi- 11 sory committee in formulating the advice and rec- 12 ommendations when they are transmitted to the agency.’’; 13 and 14 (2) in section 10— 15 (A) in the section heading, by inserting ‘‘; 16 CHAIR’’ after ‘‘ATTENDANCE’’; and 17 (B) by inserting after subsection (f) the 18 following new subsection: 19 ‘‘(g) The chair shall not be an employee of the agency 20 to which the advisory committee reports, unless— 21 ‘‘(1) a statute specifically authorizes selection of 22 such an employee as the chair; or 23 ‘‘(2) the head of the agency directs an employee 24 to serve as the chair.’’. 25 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 8 •S 1220 IS SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FED- 1 ERAL ADVISORY COMMITTEE ACT AND PUB- 2 LIC DISCLOSURE. 3 (a) SUBCOMMITTEES.—Section 4 of the Federal Ad- 4 visory Committee Act (5 U.S.C. App.) is amended by 5 striking subsection (a) and inserting the following: 6 ‘‘(a) APPLICATION.—The provisions of this Act or of 7 any rule, order, or regulation promulgated under this Act 8 shall apply to each advisory committee, including any sub- 9 committee or subgroup thereof, except to the extent that 10 any Act of Congress establishing any such advisory com- 11 mittee specifically provides otherwise. Any subcommittee 12 or subgroup that reports to a parent committee estab- 13 lished under section 9(a) is not required to comply with 14 section 9(f).’’. 15 (b) COMMITTEES CREATED UNDER CONTRACT.— 16 Section 3(2) of the Federal Advisory Committee Act (5 17 U.S.C. App.) is amended in the matter following subpara- 18 graph (C) by adding at the end the following: ‘‘An advi- 19 sory committee is considered to be established by an agen- 20 cy, agencies, or the President if it is formed, created, or 21 organized under contract, other transactional authority, 22 cooperative agreement, grant, or otherwise at the request 23 or direction of an agency, agencies, or the President.’’. 24 (c) ADVISORY COMMITTEES CONTAINING SPECIAL 25 GOVERNMENT EMPLOYEES.—Section 4 of the Federal Ad- 26 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 9 •S 1220 IS visory Committee Act (5 U.S.C. App.) is amended by add- 1 ing at the end the following new subsection: 2 ‘‘(d) SPECIAL GOVERNMENT EMPLOYEES.—Com- 3 mittee members appointed as special Government employ- 4 ees shall not be considered full-time or permanent part- 5 time officers or employees of the Federal Government for 6 purposes of determining the applicability of this Act under 7 section 3(2).’’. 8 SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COM- 9 MITTEES. 10 (a) INFORMATION REQUIREMENT.—Section 11 of the 11 Federal Advisory Committee Act (5 U.S.C. App.) is 12 amended to read as follows: 13 ‘‘SEC. 11. DISCLOSURE OF INFORMATION. 14 ‘‘(a) IN GENERAL.—With respect to each advisory 15 committee, the head of the agency to which the advisory 16 committee reports shall make publicly available in accord- 17 ance with subsection (b) the following information: 18 ‘‘(1) The charter of the advisory committee. 19 ‘‘(2) A description of the process used to estab- 20 lish and appoint the members of the advisory com- 21 mittee, including the following: 22 ‘‘(A) The process for identifying prospec- 23 tive members. 24 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 10 •S 1220 IS ‘‘(B) The process of selecting members for 1 balance of viewpoints or expertise. 2 ‘‘(C) The reason each member was ap- 3 pointed to the committee. 4 ‘‘(D) A justification of the need for rep- 5 resentative members, if any. 6 ‘‘(3) A list of all current members, including, 7 for each member, the following: 8 ‘‘(A) The name of any person or entity 9 that nominated the member. 10 ‘‘(B) Whether the member is— 11 ‘‘(i) designated as a special Govern- 12 ment employee; 13 ‘‘(ii) a representative; or 14 ‘‘(iii) a full-time or permanent part- 15 time officer or employee of the Federal 16 Government. 17 ‘‘(C) In the case of a representative, the 18 individuals or entity whose viewpoint the mem- 19 ber represents. 20 ‘‘(4) A list of all members designated as special 21 Government employees for whom written certifi- 22 cations were made under section 208(b) of title 18, 23 United States Code, a copy of each such certifi- 24 cation, a summary description of the conflict necessi- 25 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 11 •S 1220 IS tating the certification, and the reason for granting 1 the certification. 2 ‘‘(5) Any recusal agreement made by a member 3 or any recusal known to the agency that occurs dur- 4 ing the course of a meeting or other work of the 5 committee. 6 ‘‘(6) A summary of the process used by the ad- 7 visory committee for making decisions. 8 ‘‘(7) Detailed minutes of all meetings of the 9 committee and a description of committee efforts to 10 make meetings accessible to the public using online 11 technologies (such as video recordings) or other 12 techniques (such as audio recordings). 13 ‘‘(8) Any written determination by the Presi- 14 dent or the head of the agency to which the advisory 15 committee reports, pursuant to section 10(d), to 16 close a meeting or any portion of a meeting and the 17 reasons for such determination. 18 ‘‘(9) Notices of future meetings of the com- 19 mittee. 20 ‘‘(10) Any additional information considered 21 relevant by the head of the agency to which the advi- 22 sory committee reports. 23 ‘‘(b) MANNER OF DISCLOSURE.— 24 VerDate Sep 11 2014 03:16 Apr 23, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1220.IS S1220 kjohnson on DSK79L0C42 with BILLS 12 •S 1220 IS ‘‘(1) IN GENERAL.—Except as provided in para- 1 graph (2), the head of an agency shall make the in- 2 formation required to be disclosed under subsection 3 (a) available electronically on a publicly available 4 website of the agency and to the Administrator at 5 least 15 calendar days before each meeting of an ad- 6 visory committee. If the head of the agency deter- 7 mines that such timing is not practicable for any re- 8 quired information, such head shall make the infor- [Text truncated for display. Full text available on Congress.gov.]