I 

111TH CONGRESS 

1ST SESSION H. R. 1320 

To amend the Federal Advisory Committee Act to increase the transparency 

and accountability of Federal advisory committees, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 5, 2009 

Mr. CLAY (for himself and Mr. TOWNS) introduced the following bill; which 

was referred to the Committee on Oversight and Government Reform 

A BILL 

To amend the Federal Advisory Committee Act to increase 

the transparency and accountability 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 Act Amendments of 2009’’. 

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. 

Sec. 4. Increasing transparency of advisory committees. 


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Sec. 5. Comptroller General review and reports. 

Sec. 6. Definitions. 

Sec. 7. Effective date. 

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 (d) and (e), 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 activity, unless required by 

15 Federal statute.’’. 

16 (b) CONFLICTS OF INTEREST DISCLOSURE.—Section 

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

18 is further amended by inserting after subsection (b) (as 

19 added by subsection (a)) the following: 

20 ‘‘(c) CONFLICTS OF INTEREST DISCLOSURE.— 

21 ‘‘(1)(A) The head of each agency shall ensure 

22 that no individual appointed to serve on an advisory 

23 committee that reports to the agency has a conflict 

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1 formed by the advisory committee, unless the head 

2 of the agency determines that the need for the indi3 vidual’s services outweighs the potential impacts of 

4 the conflict of interest. 

5 ‘‘(B) If the head of the agency makes such a 

6 determination with respect to an individual, nothing 

7 in this subsection is intended to preclude the head 

8 of the agency from requiring the recusal of the indi9 vidual from particular aspects of the committee’s 

10 work. 

11 ‘‘(C) In the case of an individual appointed as 

12 a representative, the fact that an individual is asso13 ciated with the entity whose views are being rep14 resented by the individual shall not itself be consid15 ered a conflict of interest by the agency. 

16 ‘‘(2) The head of each agency shall require— 

17 ‘‘(A) that each individual the agency ap18 points or intends to appoint to serve on an ad19 visory committee as a representative inform the 

20 agency official responsible for appointing the in21 dividual in writing of any actual or potential 

22 conflict of interest— 

23 ‘‘(i) that exists before appointment or 

24 that arises while the individual is serving 

25 on the Committee; and 


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1 ‘‘(ii) that is relevant to the functions 

2 to be performed; and 

3 ‘‘(B) that, for an individual appointed to 

4 serve on an advisory committee, the conflict is 

5 publicly disclosed as described in section 11. 

6 ‘‘(3) Nothing in this subsection is intended to 

7 alter any requirement or obligation for a special 

8 Government employee under the Ethics in Govern9 ment Act (5 U.S.C. App.) or other applicable ethics 

10 law, including any requirement to file a financial dis11 closure report. The head of each agency shall require 

12 that each individual the agency appoints as a special 

13 Government employee inform the agency in writing 

14 of any conflict that exists before appointment or 

15 that arises while the individual is serving on the 

16 committee to the extent any financial disclosure re17 quired by the Ethics in Government Act (5 U.S.C. 

18 App.) or other applicable law would not uncover the 

19 conflict of interest as such term is defined in regula20 tions promulgated by the Office of Government Eth21 ics to carry out this subsection. 

22 ‘‘(4) The head of each agency shall ensure that 

23 each report of an advisory committee that reports to 

24 the agency is the result of the advisory committee’s 

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1 sory committee shall include in each report of the 

2 committee a statement describing the process used 

3 by the advisory committee in formulating the rec4 ommendations or conclusions contained in the re5 port.’’. 

6 (c) REGULATIONS.— 

7 (1) REGULATIONS RELATING TO CONFLICTS OF

8 INTEREST.—Not later than 180 days after the date 

9 of the enactment of this Act, the Director of the Of10 fice of Government Ethics, in consultation with the 

11 Administrator of General Services, shall promul12 gate— 

13 (A) regulations defining the term ‘‘conflict 

14 of interest’’; 

15 (B) regulations identifying the method by 

16 which individuals must disclose conflicts and 

17 the period of time for which a representative or 

18 special Government employee, or a candidate 

19 for appointment as a representative or special 

20 Government employee, shall look back in time 

21 to determine whether an interest is considered 

22 a conflict for the purpose of the notification re23 quirement in subsection (c) of section 9 of the 

24 Federal Advisory Committee Act, as added by 

25 this section; and 


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1 (C) such other regulations as the Director 

2 finds necessary to carry out and ensure the en3 forcement of such subsection (c). 

4 (2) REGULATIONS IMPLEMENTING FACA.—Sec5 tion 7(c) of the Federal Advisory Committee Act (5 

6 U.S.C. App.) is amended by inserting after ‘‘(c)’’ the 

7 following: ‘‘The Administrator shall promulgate reg8 ulations as necessary to implement this Act.’’. 

9 SEC. 3. PREVENTING EFFORTS TO CIRCUMVENT THE FED10 ERAL ADVISORY COMMITTEE ACT AND PUB11 LIC DISCLOSURE. 

12 (a) DE FACTO MEMBERS.—Section 4 of the Federal 

13 Advisory Committee Act (5 U.S.C. App.) is amended by 

14 adding at the end the following: 

15 ‘‘(d) TREATMENT OF INDIVIDUAL AS MEMBER.—An 

16 individual who is not a full-time or permanent part-time 

17 officer or employee of the Federal Government shall be 

18 regarded as a member of a committee if the individual 

19 regularly attends and participates in committee meetings 

20 as if the individual were a member, even if the individual 

21 does not have the right to vote or veto the advice or rec22 ommendations of the advisory committee.’’. 

23 (b) SUBCOMMITTEES.—Section 4 of the Federal Ad24 visory Committee Act (5 U.S.C. App.) is amended by 

25 striking subsection (a) and inserting the following: 


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

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

3 shall apply to each advisory committee, including any sub4 committee or subgroup thereof, except to the extent that 

5 any Act of Congress establishing any such advisory com6 mittee specifically provides otherwise. Any subcommittee 

7 or subgroup that reports to a parent committee estab8 lished under section 9(a) is not required to comply with 

9 section 9(e). In this subsection, the term ‘subgroup’ in10 cludes any working group, task force, or other entity 

11 formed for the purpose of assisting the committee or any 

12 subcommittee of the committee in its work.’’. 

13 (c) COMMITTEES CREATED UNDER CONTRACT.— 

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

15 U.S.C. App.) is amended in the matter following subpara16 graph (C) by adding at the end the following: ‘‘An advi17 sory committee is considered to be established by an agen18 cy, agencies, or the President, if it is formed, created, or 

19 organized under contract, other transactional authority, 

20 cooperative agreement, grant, or otherwise at the request 

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

22 (d) ADVISORY COMMITTEES CONTAINING SPECIAL

23 GOVERNMENT EMPLOYEES.—Section 4 of the Federal Ad24 visory Committee Act (5 U.S.C. App.) is further amended 

25 by adding at the end the following new subsection: 


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1 ‘‘(e) SPECIAL GOVERNMENT EMPLOYEES.—Com2 mittee members appointed as special government employ3 ees shall not be considered full-time or part-time officers 

4 or employees of the Federal Government for purposes of 

5 determining the applicability of this Act under section 

6 3(2).’’. 

7 SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COM8 MITTEES. 

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

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

11 amended— 

12 (1) by striking the section designation and 

13 heading and inserting the following: 

14 ‘‘SEC. 11. DISCLOSURE OF INFORMATION.’’; 

15 (2) by redesignating subsection (a) as sub16 section (d) and in that subsection— 

17 (A) by inserting the following subsection 

18 heading: ‘‘AVAILABILITY OF PAPER COPIES OF

19 TRANSCRIPTS.—’’; and 

20 (B) by inserting after ‘‘duplication,’’ the 

21 following: ‘‘paper’’; 

22 (3) by striking ‘‘(b)’’ and inserting ‘‘(e) AGEN23 CY PROCEEDING DEFINED.—’’; and 


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1 (4) by inserting before subsection (d), as redes2 ignated by paragraph (2), the following new sub3 sections: 

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

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

6 committee reports shall make publicly available in accord7 ance with subsection (b) the following information: 

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

9 ‘‘(2) A description of the process used to estab10 lish and appoint the members of the advisory com11 mittee, including the following: 

12 ‘‘(A) The process for identifying prospec13 tive members. 

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

15 balance of viewpoints or expertise. 

16 ‘‘(C) A justification of the need for rep17 resentative members, if any. 

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

19 for each member, the following: 

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

21 that nominated the member. 

22 ‘‘(B) The reason the member was ap23 pointed to the committee. 


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1 ‘‘(C) Whether the member is designated as 

2 a special government employee or a representa3 tive. 

4 ‘‘(D) In the case of a representative, the 

5 individuals or entity whose viewpoint the mem6 ber represents. 

7 ‘‘(E) Any conflict of interest relevant to 

8 the functions to be performed by the committee. 

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

10 government employees for whom written certifi11 cations were made under section 208(b) of title 18, 

12 United States Code, a summary description of the 

13 conflict necessitating the certification, and the rea14 son for granting the certification. 

15 ‘‘(5) A summary of the process used by the ad16 visory committee for making decisions. 

17 ‘‘(6) Transcripts or audio or video recordings of 

18 all meetings of the committee. 

19 ‘‘(7) Any written determination by the Presi20 dent or the head of the agency to which the advisory 

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

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

23 reasons for such determination. 

24 ‘‘(8) Notices of future meetings of the com25 mittee. 


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1 ‘‘(9) Any additional information considered rel2 evant by the head of the agency to which the advi3 sory committee reports. 

4 ‘‘(b) MANNER OF DISCLOSURE.— 

5 ‘‘(1) Except as provided in paragraph (2), the 

6 head of an agency shall make the information re7 quired to be disclosed under this section available 

8 electronically on the official public internet site of 

9 the agency at least 15 calendar days before each 

10 meeting of an advisory committee. If the head of the 

11 agency determines that such timing is not prac12 ticable for any required information, he shall make 

13 the information available as soon as practicable but 

14 no later than 48 hours before the next meeting of 

15 the committee. An agency may withhold from disclo16 sure any information that would be exempt from dis17 closure under section 552 of title 5, United States 

18 Code. 

19 ‘‘(2) The head of an agency shall make avail20 able electronically, on the official public internet site 

21 of the agency, a transcript or audio or video record22 ing of each advisory committee meeting not later 

23 than 30 calendar days after the meeting. 

24 ‘‘(c) PROVISION OF INFORMATION BY ADMINIS25 TRATOR OF GENERAL SERVICES.—The Administrator of 


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1 General Services shall provide, on the official public inter2 net site of the General Services Administration, electronic 

3 access to the information made available by each agency 

4 under this section.’’. 

5 (b) CHARTER FILING.—Section 9(e) of the Federal 

6 Advisory Committee Act (5 U.S.C. App.), as redesignated 

7 by section 2, is amended— 

8 (1) by striking ‘‘with (1) the Administrator,’’ 

9 and all that follows through ‘‘, or’’ and inserting 

10 ‘‘(1) with the Administrator and’’; 

11 (2) by striking ‘‘and’’ at the end of subpara12 graph (I); 

13 (3) by striking the period and inserting a semi14 colon at the end of subparagraph (J); and 

15 (4) by adding at the end the following new sub16 paragraphs: 

17 ‘‘(K) the authority under which the committee 

18 is established; 

19 ‘‘(L) the estimated number of members and a 

20 description of the expertise needed to carry out the 

21 objectives of the committee; 

22 ‘‘(M) a description of whether the committee 

23 will be composed of special government employees, 

24 representatives, or members from both categories; 

25 and 


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1 ‘‘(N) whether the committee has the authority 

2 to create subcommittees and if so, the agency official 

3 authorized to exercise such authority.’’. 

4 SEC. 5. COMPTROLLER GENERAL REVIEW AND REPORTS. 

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

6 States shall review compliance by agencies with the Fed7 eral Advisory Committee Act, as amended by this Act, in8 cluding whether agencies are appropriately appointing ad9 visory committee members as either special government 

10 employees or representatives. 

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

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

13 on the results of the review, as follows: 

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

15 than one year after the date of promulgation of reg16 ulations under section 2. 

17 (2) The second report shall be submitted not 

18 later than five years after such date of promulgation 

19 of regulations. 

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

21 subsection are the Committee on Oversight and Govern22 ment Reform of the House of Representatives and the 

23 Committee on Homeland Security and Governmental Af24 fairs of the Senate. 


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1 SEC. 6. DEFINITIONS. 

2 Section 3 of the Federal Advisory Committee Act (5 

3 U.S.C. App.) is amended by adding at the end the fol4 lowing new paragraphs: 

5 ‘‘(5) The term ‘representative’ means an indi6 vidual who is not a full-time or part-time employee 

7 of the Federal Government and who is appointed to 

8 an advisory committee to represent the views of an 

9 entity or entities outside the Federal Government. 

10 ‘‘(6) The term ‘special Government employee’ 

11 has the same meaning as in section 202(a) of title 

12 18, United States Code.’’. 

13 SEC. 7. EFFECTIVE DATE. 

14 This Act shall take effect 30 days after the date of 

15 the enactment of this Act, except as otherwise provided 

16 in section 2(c)(1). 

Æ 


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