II 

117TH CONGRESS 

1ST SESSION S. 790 

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 

MARCH 17 (legislative day, MARCH 16), 2021 

Mr. PORTMAN (for himself and Ms. HASSAN) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend the Federal Advisory Committee Act to increase 

the transparency of Federal advisory committees, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Federal Advisory Committee Transparency Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 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. 


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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. 12. Determination of budgetary effects. 

1 SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE. 

2 (a) BAR ON POLITICAL LITMUS TESTS.—Section 9 

3 of the Federal Advisory Committee Act (5 U.S.C. App.) 

4 is amended— 

5 (1) in the section heading, by inserting ‘‘MEM6 BERSHIP;’’ after ‘‘ADVISORY COMMITTEES;’’; 

7 (2) by redesignating subsections (b) and (c) as 

8 subsections (e) and (f), respectively; and 

9 (3) by inserting after subsection (a) the fol10 lowing: 

11 ‘‘(b) APPOINTMENTS MADE WITHOUT REGARD TO

12 POLITICAL AFFILIATION OR ACTIVITY.—All appointments 

13 to advisory committees shall be made without regard to 

14 political affiliation or political campaign activity, unless re15 quired by Federal statute.’’. 

16 (b) MINIMIZING CONFLICTS OF INTEREST.—Section 

17 9 of the Federal Advisory Committee Act (5 U.S.C. App.), 

18 as amended by subsection (a) of this section, is further 

19 amended by inserting after subsection (b) (as added by 

20 such subsection (a)) the following: 


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1 ‘‘(c) PUBLIC NOMINATIONS OF COMMITTEE MEM2 BERS.— 

3 ‘‘(1) Before making an appointment to an advi4 sory committee, the head of an agency shall— 

5 ‘‘(A) solicit nominations for potential com6 mittee members; 

7 ‘‘(B) if the head of the agency is required 

8 to publish a notice under subsection (a)(2), in9 clude in the notice a solicitation for nomina10 tions of potential committee members; and 

11 ‘‘(C) provide in the notice under subpara12 graph (B) a mechanism for interested persons 

13 to comment through a publicly available website 

14 of the agency. 

15 ‘‘(2) The head of an agency shall consider any 

16 comments submitted in accordance with paragraph 

17 (1)(C) in appointing the members of an advisory 

18 committee. 

19 ‘‘(3) The head of an agency shall solicit nomi20 nations under paragraph (1) not less frequently than 

21 once every 2 years. 

22 ‘‘(4) Notwithstanding paragraph (1), if a va23 cancy in an advisory committee occurs before the 

24 next scheduled solicitation for nominations under 

25 this subsection, an agency may appoint a member 


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1 from among individuals that were previously nomi2 nated to be a member of the advisory committee. 

3 ‘‘(d) DESIGNATION OF COMMITTEE MEMBERS.— 

4 ‘‘(1) An individual appointed to an advisory 

5 committee who is not a full-time or permanent part6 time officer or employee of the Federal Government 

7 shall be designated as— 

8 ‘‘(A) a special Government employee, if the 

9 individual is providing advice based on the indi10 vidual’s expertise or experience; or 

11 ‘‘(B) a representative, if the individual is 

12 representing the views of an entity or entities 

13 outside of the Federal Government. 

14 ‘‘(2) An agency may not designate committee 

15 members as representatives to avoid subjecting them 

16 to Federal ethics rules and requirements. 

17 ‘‘(3) The designated agency ethics official for 

18 each agency shall review the members of each advi19 sory committee that reports to the agency to deter20 mine whether each member’s designation is appro21 priate, and to redesignate members if appropriate. 

22 The designated agency ethics official shall certify to 

23 the head of the agency that such review has been 

24 made— 


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1 ‘‘(A) following the initial appointment of 

2 members; and 

3 ‘‘(B) at the time a committee’s charter is 

4 renewed, or, in the case of a committee with an 

5 indefinite charter, every 2 years. 

6 ‘‘(4) The head of each agency shall inform each 

7 individual who is not a full-time or permanent part8 time officer or employee of the Federal Government 

9 appointed to an advisory committee that reports to 

10 the agency whether the individual is appointed as a 

11 special Government employee or as a representative. 

12 The agency head shall provide each committee mem13 ber with an explanation of the differences between 

14 special Government employees and representatives 

15 and a summary of applicable ethics requirements. 

16 The agency head, acting through the designated 

17 agency ethics official, shall obtain signed and dated 

18 written confirmation from each committee member 

19 that the member received and reviewed the informa20 tion required by this paragraph. 

21 ‘‘(5) The Director of the Office of Government 

22 Ethics shall provide guidance to agencies on what to 

23 include in the summary of ethics requirements re24 quired by paragraph (4). 


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1 ‘‘(6) The head of each agency shall, to the ex2 tent practicable, develop and implement strategies to 

3 minimize the need for written determinations under 

4 section 208(b)(3) of title 18, United States Code. 

5 Strategies may include such efforts as improving 

6 outreach efforts to potential committee members and 

7 seeking public input on potential committee mem8 bers. 

9 ‘‘(7) Nothing in this subsection shall be con10 strued to supersede the inapplicability of this Act 

11 with respect to peer review groups appointed under 

12 paragraph (16) of section 402(b) of the Public 

13 Health Service Act (42 U.S.C. 282(b)), as described 

14 in the flush text following paragraph (25)(B) of such 

15 section.’’. 

16 (c) REGULATIONS IMPLEMENTING FACA.—Section 

17 7(c) of the Federal Advisory Committee Act (5 U.S.C. 

18 App.) is amended by inserting ‘‘promulgate regulations 

19 and’’ after ‘‘The Administrator shall’’. 

20 (d) ENSURING INDEPENDENT ADVICE AND REC21 OMMENDATIONS.—The Federal Advisory Committee Act 

22 (5 U.S.C. App.) is amended— 

23 (1) in section 8— 

24 (A) in the section heading, by inserting 

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1 OMMENDATIONS;’’ after ‘‘RESPONSIBIL2 ITIES OF AGENCY HEADS;’’; 

3 (B) by redesignating subsection (b) as sub4 section (c); and 

5 (C) by inserting after subsection (a) the 

6 following: 

7 ‘‘(b) The head of each agency shall ensure that the 

8 agency does not interfere with the free and independent 

9 participation, expression of views, and deliberation by 

10 committee members. Each advisory committee shall in11 clude a statement describing the process used by the advi12 sory committee in formulating the advice and rec13 ommendations when they are transmitted to the agency.’’; 

14 and 

15 (2) in section 10— 

16 (A) in the section heading, by inserting ‘‘; 

17 CHAIR’’ after ‘‘ATTENDANCE’’; and 

18 (B) by inserting after subsection (f) the 

19 following new subsection: 

20 ‘‘(g) The chair shall not be an employee of the agency 

21 to which the advisory committee reports, unless— 

22 ‘‘(1) a statute specifically authorizes selection of 

23 such an employee as the chair; or 

24 ‘‘(2) the head of the agency directs an employee 

25 to serve as the chair.’’. 


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1 SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FED2 ERAL ADVISORY COMMITTEE ACT AND PUB3 LIC DISCLOSURE. 

4 (a) SUBCOMMITTEES.—Section 4 of the Federal Ad5 visory Committee Act (5 U.S.C. App.) is amended by 

6 striking subsection (a) and inserting the following: 

7 ‘‘(a) APPLICATION.—The provisions of this Act or of 

8 any rule, order, or regulation promulgated under this Act 

9 shall apply to each advisory committee, including any sub10 committee or subgroup thereof, except to the extent that 

11 any Act of Congress establishing any such advisory com12 mittee specifically provides otherwise. Any subcommittee 

13 or subgroup that reports to a parent committee estab14 lished under section 9(a) is not required to comply with 

15 section 9(f).’’. 

16 (b) COMMITTEES CREATED UNDER CONTRACT.— 

17 Section 3(2) of the Federal Advisory Committee Act (5 

18 U.S.C. App.) is amended in the matter following subpara19 graph (C) by adding at the end the following: ‘‘An advi20 sory committee is considered to be established by an agen21 cy, agencies, or the President if it is formed, created, or 

22 organized under contract, other transactional authority, 

23 cooperative agreement, grant, or otherwise at the request 

24 or direction of an agency, agencies, or the President.’’. 

25 (c) ADVISORY COMMITTEES CONTAINING SPECIAL

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1 visory Committee Act (5 U.S.C. App.) is amended by add2 ing at the end the following new subsection: 

3 ‘‘(d) SPECIAL GOVERNMENT EMPLOYEES.—Com4 mittee members appointed as special Government employ5 ees shall not be considered full-time or permanent part6 time officers or employees of the Federal Government for 

7 purposes of determining the applicability of this Act under 

8 section 3(2).’’. 

9 SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COM10 MITTEES. 

11 (a) INFORMATION REQUIREMENT.—Section 11 of the 

12 Federal Advisory Committee Act (5 U.S.C. App.) is 

13 amended to read as follows: 

14 ‘‘SEC. 11. DISCLOSURE OF INFORMATION. 

15 ‘‘(a) IN GENERAL.—With respect to each advisory 

16 committee, the head of the agency to which the advisory 

17 committee reports shall make publicly available in accord18 ance with subsection (b) the following information: 

19 ‘‘(1) The charter of the advisory committee. 

20 ‘‘(2) A description of the process used to estab21 lish and appoint the members of the advisory com22 mittee, including the following: 

23 ‘‘(A) The process for identifying prospec24 tive members. 


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1 ‘‘(B) The process of selecting members for 

2 balance of viewpoints or expertise. 

3 ‘‘(C) The reason each member was ap4 pointed to the committee. 

5 ‘‘(D) A justification of the need for rep6 resentative members, if any. 

7 ‘‘(3) A list of all current members, including, 

8 for each member, the following: 

9 ‘‘(A) The name of any person or entity 

10 that nominated the member. 

11 ‘‘(B) Whether the member is— 

12 ‘‘(i) designated as a special Govern13 ment employee; 

14 ‘‘(ii) a representative; or 

15 ‘‘(iii) a full-time or permanent part16 time officer or employee of the Federal 

17 Government. 

18 ‘‘(C) In the case of a representative, the 

19 individuals or entity whose viewpoint the mem20 ber represents. 

21 ‘‘(4) A list of all members designated as special 

22 Government employees for whom written certifi23 cations were made under section 208(b) of title 18, 

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1 tating the certification, and the reason for granting 

2 the certification. 

3 ‘‘(5) Any recusal agreement made by a member 

4 or any recusal known to the agency that occurs dur5 ing the course of a meeting or other work of the 

6 committee. 

7 ‘‘(6) A summary of the process used by the ad8 visory committee for making decisions. 

9 ‘‘(7) Detailed minutes of all meetings of the 

10 committee and a description of committee efforts to 

11 make meetings accessible to the public using online 

12 technologies (such as video recordings) or other 

13 techniques (such as audio recordings). 

14 ‘‘(8) Any written determination by the Presi15 dent or the head of the agency to which the advisory 

16 committee reports, pursuant to section 10(d), to 

17 close a meeting or any portion of a meeting and the 

18 reasons for such determination. 

19 ‘‘(9) Notices of future meetings of the com20 mittee. 

21 ‘‘(10) Any additional information considered 

22 relevant by the head of the agency to which the advi23 sory committee reports. 

24 ‘‘(b) MANNER OF DISCLOSURE.— 


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1 ‘‘(1) IN GENERAL.—Except as provided in para2 graph (2), the head of an agency shall make the in3 formation required to be disclosed under subsection 

4 (a) available electronically on a publicly available 

5 website of the agency and to the Administrator at 

6 least 15 calendar days before each meeting of an ad7 visory committee. If the head of the agency deter8 mines that such timing is not practicable for any re9 quired information, such head shall make the infor10 mation available as soon as practicable but no later 

11 than 48 hours before the next meeting of the com12 mittee. An agency may withhold from disclosure any 

13 information that would be exempt from disclosure 

14 under section 552 of title 5, United States Code. 

15 ‘‘(2) WEBSITE AVAILABILITY.—The head of an 

16 agency shall make available electronically, on a pub17 licly available website of the agency, detailed min18 utes and, to the extent available, a transcript or 

19 audio or video recording of each advisory committee 

20 meeting not later than 45 calendar days after such 

21 meeting. 

22 ‘‘(3) GRANT REVIEWS.—In the case of grant re23 views, disclosure of information required by sub24 section (a)(3) may be provided in the aggregate 

25 rather than by individual grant. 


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1 ‘‘(c) PROVISION OF INFORMATION BY ADMINIS2 TRATOR OF GENERAL SERVICES.—The Administrator 

3 shall provide, on a publicly available website of the General 

4 Services Administration, electronic access to the informa5 tion made available by each agency under this section. 

6 ‘‘(d) AVAILABILITY OF MEETING MATERIALS.— 

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graph (2) and where prohibited by contractual 

9 agreements entered into prior to the effective date of 

10 the Federal Advisory Committee Transparency Act, 

11 agencies and advisory committees shall make avail12 able to any person, at actual cost of duplication, cop13 ies of advisory committee meeting materials. 

14 ‘‘(2) APPLICABILITY.—Nothing in this sub15 section shall be construed to require the disclosure 

16 of information that is protected from mandatory dis17 closure by statute.’’. 

18 (b) CHARTER FILING.—Subsection (f) of section 9 of 

19 the Federal Advisory Committee Act (5 U.S.C. App.), as 

20 redesignated by section 2(a) of this Act, is amended to 

21 read as follows: 

22 ‘‘(f) No advisory committee shall meet or take any 

23 action until an advisory committee charter has been filed 

24 with the Administrator, the head of the agency to whom 

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1 tees of the Senate and of the House of Representatives 

2 having legislative jurisdiction of such agency. Such charter 

3 shall contain the following information in the following 

4 order: 

5 ‘‘(1) The committee’s official designation. 

6 ‘‘(2) The authority under which the committee 

7 is established. 

8 ‘‘(3) The committee’s objectives and the scope 

9 of its activity. 

10 ‘‘(4) A description of the duties for which the 

11 committee is responsible, and, if such duties are not 

12 solely advisory, a specification of the authority for 

13 such functions. 

14 ‘‘(5) The agency or official to whom the com15 mittee reports. 

16 ‘‘(6) The agency responsible for providing the 

17 necessary support for the committee. 

18 ‘‘(7) The responsibilities of the officer or em19 ployee of the Federal Government designated under 

20 section 10(e). 

21 ‘‘(8) The estimated number and frequency of 

22 committee meetings. 

23 ‘‘(9) The period of time necessary for the com24 mittee to carry out its purposes. 


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1 ‘‘(10) The committee’s termination date, if less 

2 than 2 years from the date of the committee’s estab3 lishment. 

4 ‘‘(11) The estimated number of members and a 

5 description of the expertise needed to carry out the 

6 objectives of the committee. 

7 ‘‘(12) A description of whether the committee 

8 will be composed of full- or part-time Government 

9 employees, special Government employees, represent10 atives, or a combination of categories. 

11 ‘‘(13) Whether the agency intends to create 

12 subcommittees and if so, the agency official author13 ized to exercise such authority. 

14 ‘‘(14) The estimated annual operating costs in 

15 dollars and full-time equivalent positions for such 

16 committee. 

17 ‘‘(15) The recordkeeping requirements of the 

18 committee. 

19 ‘‘(16) The date the charter is filed. 

20 A copy of any such charter shall also be furnished to the 

21 Library of Congress.’’. 

22 SEC. 5. MANAGING FEDERAL ADVISORY COMMITTEES. 

23 (a) COMMITTEE MANAGEMENT OFFICERS.—Sub24 section (c) of section 8 of the Federal Advisory Committee 


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1 Act (5 U.S.C. App.), as redesignated by section 2(d) of 

2 this Act, is amended to read as follows: 

3 ‘‘(c) The head of each agency that has an advisory 

4 committee shall designate an Advisory Committee Man5 agement Officer who shall— 

6 ‘‘(1) be a senior official who is— 

7 ‘‘(A) an expert in implementing the re8 quirements of this Act and regulations promul9 gated pursuant to this Act; and 

10 ‘‘(B) the primary point of contact for the 

11 General Services Administration; 

12 ‘‘(2) ensure the establishment, management, 

13 and supervision of the advisory committees of the 

14 agency, including establishing procedures, perform15 ance measures, and outcomes for such committees; 

16 ‘‘(3) ensure the assembly and maintenance of 

17 the reports, records, and other papers (including ad18 visory committee meeting materials) of any such 

19 committee during its existence; 

20 ‘‘(4) ensure any such committee and cor21 responding agency staff adhere to the provisions of 

22 this Act and any regulations promulgated pursuant 

23 to this Act; 


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1 ‘‘(5) ensure the maintenance of records on each 

2 employee of any such committee and completion of 

3 training required for any such employee; 

4 ‘‘(6) be responsible for providing the informa5 tion required in section 7(b) of this Act to the Ad6 ministrator; and 

7 ‘‘(7) carry out, on behalf of that agency, the 

8 provisions of section 552 of title 5, United States 

9 Code, with respect to the reports, records, and other 

10 papers described in paragraph (3).’’. 

11 SEC. 6. COMPTROLLER GENERAL REVIEW AND REPORTS. 

12 (a) REVIEW.—The Comptroller General of the United 

13 States shall review compliance by agencies with the Fed14 eral Advisory Committee Act (5 U.S.C. App.), as amended 

15 by this Act, including whether agencies are appropriately 

16 appointing advisory committee members who are not full17 time or permanent part-time officers or employees of the 

18 Federal Government as either special Government employ19 ees or representatives. 

20 (b) REPORT.—The Comptroller General shall submit 

21 to the committees described in subsection (c) two reports 

22 on the results of the review, as follows: 

23 (1) The first report shall be submitted not later 

24 than 1 year after the date of promulgation of regula25 tions under section 7(c) of the Federal Advisory 


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1 Committee Act (5 U.S.C. App.), as amended by sec2 tion 2(c). 

3 (2) The second report shall be submitted not 

4 later than 5 years after such date of promulgation 

5 of regulations. 

6 (c) COMMITTEES.—The committees described in this 

7 subsection are the Committee on Oversight and Reform 

8 of the House of Representatives and the Committee on 

9 Homeland Security and Governmental Affairs of the Sen10 ate. 

11 SEC. 7. APPLICATION OF FEDERAL ADVISORY COMMITTEE 

12 ACT TO TRADE ADVISORY COMMITTEES. 

13 Section 135(f)(2)(A) of the Trade Act of 1974 (19 

14 U.S.C. 2155(f)(2)(A)) is amended by striking ‘‘sub15 sections (a) and (b) of sections 10 and 11 of the Federal 

16 Advisory Committee Act’’ and inserting ‘‘subsections (a) 

17 and (b) of section 10 and subsections (a)(7), (a)(8), 

18 (a)(9), (b)(2), and (d) of section 11 of the Federal Advi19 sory Committee Act’’. 

20 SEC. 8. DEFINITIONS. 

21 Section 3 of the Federal Advisory Committee Act (5 

22 U.S.C. App.) is amended by adding at the end the fol23 lowing new paragraph: 


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1 ‘‘(5) The term ‘special Government employee’ 

2 has the meaning given that term in section 202(a) 

3 of title 18, United States Code.’’. 

4 SEC. 9. TECHNICAL AND CONFORMING AMENDMENTS. 

5 Section 7(d)(1) of the Federal Advisory Committee 

6 Act (5 U.S.C. App.) is amended— 

7 (1) in subparagraph (A), by striking ‘‘the rate 

8 specified for GS–18 of the General Schedule under 

9 section 5332’’ and inserting ‘‘the rate for level IV of 

10 the Executive Schedule under section 5315’’; and 

11 (2) in subparagraph (C)(i), by striking ‘‘handi12 capped individuals (within the meaning of section 

13 501 of the Rehabilitation Act of 1973 (29 U.S.C. 

14 794))’’ and inserting ‘‘individuals with disabilities 

15 (as defined in section 7(20) of the Rehabilitation Act 

16 of 1973 (29 U.S.C. 705(20))’’. 

17 SEC. 10. EFFECTIVE DATE. 

18 This Act and the amendments made by this Act shall 

19 take effect 30 days after the date of the enactment of this 

20 Act. 

21 SEC. 11. NO ADDITIONAL FUNDS AUTHORIZED. 

22 No additional funds are authorized to carry out the 

23 requirements of this Act and the amendments made by 

24 this Act. Such requirements shall be carried out using 

25 amounts otherwise authorized. 


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1 SEC. 12. DETERMINATION OF BUDGETARY EFFECTS. 

2 The budgetary effects of this Act, for the purpose of 

3 complying with the Statutory Pay-As-You-Go Act of 2010 

4 (2 U.S.C. 931 et seq.), shall be determined by reference 

5 to the latest statement titled ‘‘Budgetary Effects of 

6 PAYGO Legislation’’ for this Act, submitted for printing 

7 in the Congressional Record by the Chairman of the 

8 House Budget Committee, provided that such statement 

9 has been submitted prior to the vote on passage. 

Æ 


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