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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 790 Introduced in Senate (IS)]

<DOC>

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.

    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 Transparency Act''.
    (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. 12. Determination of budgetary effects.

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 campaign 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.--
            ``(1) Before making an appointment to an advisory 
        committee, the head of an agency shall--
                    ``(A) solicit nominations for potential committee 
                members;
                    ``(B) if the head of the agency is required to 
                publish a notice under subsection (a)(2), include in 
                the notice a solicitation for nominations of potential 
                committee members; and
                    ``(C) provide in the notice under subparagraph (B) 
                a mechanism for interested persons to comment through a 
                publicly available website of the agency.
            ``(2) The head of an agency shall consider any comments 
        submitted in accordance with paragraph (1)(C) in appointing the 
        members of an advisory committee.
            ``(3) The head of an agency shall solicit nominations under 
        paragraph (1) not less frequently than once every 2 years.
            ``(4) Notwithstanding paragraph (1), if a vacancy in an 
        advisory committee occurs before the next scheduled 
        solicitation for nominations under this subsection, an agency 
        may appoint a member from among individuals that were 
        previously nominated to be a member of the 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 
        who is not a full-time or permanent part-time officer or 
        employee of the Federal Government 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.
            ``(7) Nothing in this subsection shall be construed to 
        supersede the inapplicability of this Act with respect to peer 
        review groups appointed under paragraph (16) of section 402(b) 
        of the Public Health Service Act (42 U.S.C. 282(b)), as 
        described in the flush text following paragraph (25)(B) of such 
        section.''.
    (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) Subcommittees.--Section 4 of the Federal Advisory Committee Act 
(5 U.S.C. App.) is 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).''.
    (b) 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.''.
    (c) Advisory Committees Containing Special Government Employees.--
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) 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--
                            ``(i) designated as a special Government 
                        employee;
                            ``(ii) a representative; or
                            ``(iii) a full-time or permanent part-time 
                        officer or employee of the Federal Government.
                    ``(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 subsection (a) available electronically on a 
        publicly available 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 a publicly available 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 45 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 shall provide, on a publicly available 
website of the General Services Administration, electronic access to 
the information made available by each agency under this section.
    ``(d) Availability of Meeting Materials.--
            ``(1) In general.--Except as provided in paragraph (2) and 
        where prohibited by contractual agreements entered into prior 
        to the effective date of the Federal Advisory Committee 
        Transparency Act, agencies and advisory committees shall make 
        available to any person, at actual cost of duplication, copies 
        of advisory committee meeting materials.
            ``(2) Applicability.--Nothing in this subsection shall be 
        construed to require the disclosure of information that is 
        protected from mandatory disclosure by statute.''.
    (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 2 
        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 full- or part-time Government employees, special 
        Government employees, representatives, or a combination of 
        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) ensure the establishment, management, and supervision 
        of the advisory committees of the agency, including 
        establishing procedures, performance measures, and outcomes for 
        such committees;
            ``(3) ensure the assembly and maintenance of 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) ensure the maintenance of 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 
(5 U.S.C. App.), as amended by this Act, including whether agencies are 
appropriately appointing advisory committee members who are not full-
time or permanent part-time officers or employees of the Federal 
Government 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 1 
        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 5 
        years after such date of promulgation of regulations.
    (c) Committees.--The committees described in this subsection are 
the Committee on Oversight and 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 and the amendments made by 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.

SEC. 12. DETERMINATION OF BUDGETARY EFFECTS.

    The budgetary effects of this Act, for the purpose of complying 
with the Statutory Pay-As-You-Go Act of 2010 (2 U.S.C. 931 et seq.), 
shall be determined by reference to the latest statement titled 
``Budgetary Effects of PAYGO Legislation'' for this Act, submitted for 
printing in the Congressional Record by the Chairman of the House 
Budget Committee, provided that such statement has been submitted prior 
to the vote on passage.
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