I 

112TH CONGRESS 

1ST SESSION H. R. 3124 

To amend the Federal Advisory Committee Act to increase the transparency 

of Federal advisory committees, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 6, 2011 

Mr. CLAY (for himself, Mr. CUMMINGS, Mr. TOWNS, Mrs. MALONEY, Ms. 

NORTON, Mr. KUCINICH, Mr. TIERNEY, Mr. LYNCH, Mr. COOPER, Mr. 

CONNOLLY of Virginia, Mr. QUIGLEY, Mr. DAVIS of Illinois, Mr. BRALEY

of Iowa, Mr. WELCH, Mr. YARMUTH, Mr. MURPHY of Connecticut, and 

Ms. SPEIER) introduced the following bill; which was referred to the Committee on Oversight and Government Reform, and in addition to the 

Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions 

as fall within the jurisdiction of the committee concerned 

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 Act Amendments of 2011’’. 


rfrederick on DSK6VPTVN1PROD with BILLS
2 

•HR 3124 IH

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

2 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. 

3 SEC. 2. ENSURING INDEPENDENT ADVICE AND EXPERTISE. 

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

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

6 is amended— 

7 (1) in the section heading, by inserting ‘‘MEM8 BERSHIP;’’ after ‘‘ADVISORY COMMITTEES;’’; 

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

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

11 (3) by inserting after subsection (a) the fol12 lowing: 

13 ‘‘(b) APPOINTMENTS MADE WITHOUT REGARD TO

14 POLITICAL AFFILIATION OR ACTIVITY.—All appointments 

15 to advisory committees shall be made without regard to 

16 political affiliation or political activity, unless required by 

17 Federal statute.’’. 

18 (b) MINIMIZING CONFLICTS OF INTEREST.—Section 

19 9 of the Federal Advisory Committee Act (5 U.S.C. App.) 


rfrederick on DSK6VPTVN1PROD with BILLS
3 

•HR 3124 IH

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

2 added by subsection (a)) the following: 

3 ‘‘(c) PUBLIC NOMINATIONS OF COMMITTEE MEM4 BERS.—Prior to appointing members to an advisory com5 mittee, the head of an agency shall give interested persons 

6 an opportunity to suggest potential committee members. 

7 The agency shall include a request for comments in the 

8 Federal Register notice required under subsection (a) and 

9 provide a mechanism for interested persons to comment 

10 through the official website of the agency. The agency 

11 shall consider any comments submitted under this sub12 section in selecting the members of an advisory committee. 

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

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

15 committee who is not a full-time or permanent part16 time officer or employee of the Federal Government 

17 shall be designated as— 

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

19 individual is providing advice based on the indi20 vidual’s expertise or experience; or 

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

22 representing the views of an entity or entities 

23 outside of the Federal Government. 


rfrederick on DSK6VPTVN1PROD with BILLS
4 

•HR 3124 IH

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

2 members as representatives to avoid subjecting them 

3 to Federal ethics rules and requirements. 

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

5 each agency shall review the members of each advi6 sory committee that reports to the agency to deter7 mine whether each member’s designation is appro8 priate, and to redesignate members if appropriate. 

9 The designated agency ethics official shall certify to 

10 the head of the agency that such review has been 

11 made— 

12 ‘‘(A) following the initial appointment of 

13 members; and 

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

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

16 indefinite charter, every 2 years. 

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

18 individual appointed to an advisory committee that 

19 reports to the agency whether the individual is ap20 pointed as a special Government employee or as a 

21 representative. The agency head shall provide each 

22 committee member with an explanation of the dif23 ferences between special Government employees and 

24 representatives and a summary of applicable ethics 

25 requirements. The agency head, acting through the 


rfrederick on DSK6VPTVN1PROD with BILLS
5 

•HR 3124 IH

1 designated agency ethics official, shall obtain signed 

2 and dated written confirmation from each committee 

3 member that the member received and reviewed the 

4 information required by this paragraph. 

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

6 Ethics shall provide guidance to agencies on what to 

7 include in the summary of ethics requirements re8 quired by paragraph (4). 

9 ‘‘(6) The head of each agency shall, to the ex10 tent practicable, develop and implement strategies to 

11 minimize the need for written determinations under 

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

13 Strategies may include such efforts as improving 

14 outreach efforts to potential committee members and 

15 seeking public input on potential committee mem16 bers.’’. 

17 (c) REGULATIONS IMPLEMENTING FACA.—Section 

18 7(c) of the Federal Advisory Committee Act (5 U.S.C. 

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

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

21 (d) ENSURING INDEPENDENT ADVICE AND REC22 OMMENDATIONS.—The Federal Advisory Committee Act 

23 (5 U.S.C. App.) is amended— 

24 (1) in section 8— 


rfrederick on DSK6VPTVN1PROD with BILLS
6 

•HR 3124 IH

1 (A) in the section heading, by inserting 

2 ‘‘INDEPENDENT ADVICE AND REC3 OMMENDATIONS;’’ after ‘‘RESPONSIBIL4 ITIES OF AGENCY HEADS;’’ 

5 (B) by redesignating subsection (b) as sub6 section (c); and 

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

8 following: 

9 ‘‘(b) The head of each agency shall ensure that advice 

10 and recommendations of an advisory committee that re11 ports to the agency are the result of the advisory commit12 tee’s judgment, independent from the agency. Each advi13 sory committee shall include a statement describing the 

14 process used by the advisory committee in formulating the 

15 advice and recommendations when they are transmitted 

16 to the agency.’’; and 

17 (2) in section 10— 

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

19 CHAIR’’ after ‘‘ATTENDANCE’’; and 

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

21 following new subsection: 

22 ‘‘(g) The Chair shall not be an employee of the agen23 cy to which the advisory committee reports, unless di24 rected to chair a meeting by the head of the agency.’’. 


rfrederick on DSK6VPTVN1PROD with BILLS
7 

•HR 3124 IH

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

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

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

6 adding at the end the following new subsection: 

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

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

9 officer or employee of the Federal Government shall be 

10 regarded as a member of a committee if the individual 

11 regularly attends and participates in committee meetings 

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

13 does not have the right to vote or veto the advice or rec14 ommendations of the advisory committee.’’. 

15 (b) SUBCOMMITTEES.—Section 4 of the Federal Ad16 visory Committee Act (5 U.S.C. App.) is amended by 

17 striking subsection (a) and inserting the following: 

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

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

20 shall apply to each advisory committee, including any sub21 committee or subgroup thereof, except to the extent that 

22 any Act of Congress establishing any such advisory com23 mittee specifically provides otherwise. Any subcommittee 

24 or subgroup that reports to a parent committee estab25 lished under section 9(a) is not required to comply with 

26 section 9(f). In this subsection, the term ‘subgroup’ inVerDate Mar 15 2010 01:57 Oct 08, 2011 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124

rfrederick on DSK6VPTVN1PROD with BILLS
8 

•HR 3124 IH

1 cludes any working group, task force, or other entity 

2 formed for the purpose of assisting the committee or any 

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

4 (c) COMMITTEES CREATED UNDER CONTRACT.— 

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

6 U.S.C. App.) is amended in the matter following subpara7 graph (C) by adding at the end the following: ‘‘An advi8 sory committee is considered to be established by an agen9 cy, agencies, or the President if it is formed, created, or 

10 organized under contract, other transactional authority, 

11 cooperative agreement, grant, or otherwise at the request 

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

13 (d) ADVISORY COMMITTEES CONTAINING SPECIAL

14 GOVERNMENT EMPLOYEES.—Section 4 of the Federal Ad15 visory Committee Act (5 U.S.C. App.), as amended by 

16 subsections (a) and (b) of this section, is further amended 

17 by adding at the end the following new subsection: 

18 ‘‘(e) SPECIAL GOVERNMENT EMPLOYEES.—Com19 mittee members appointed as special Government employ20 ees shall not be considered full-time or permanent part21 time officers or employees of the Federal Government for 

22 purposes of determining the applicability of this Act under 

23 section 3(2).’’. 


rfrederick on DSK6VPTVN1PROD with BILLS
9 

•HR 3124 IH

1 SEC. 4. INCREASING TRANSPARENCY OF ADVISORY COM2 MITTEES. 

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

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

5 amended to read as follows: 

6 ‘‘SEC. 11. DISCLOSURE OF INFORMATION. 

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

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

9 committee reports shall make publicly available in accord10 ance with subsection (b) the following information: 

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

12 ‘‘(2) A description of the process used to estab13 lish and appoint the members of the advisory com14 mittee, including the following: 

15 ‘‘(A) The process for identifying prospec16 tive members. 

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

18 balance of viewpoints or expertise. 

19 ‘‘(C) The reason each member was ap20 pointed to the committee. 

21 ‘‘(D) A justification of the need for rep22 resentative members, if any. 

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

24 for each member, the following: 

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

26 that nominated the member. 


rfrederick on DSK6VPTVN1PROD with BILLS
10 

•HR 3124 IH

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

2 a special Government employee or a representa3 tive. 

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

5 individuals or entity whose viewpoint the mem6 ber represents. 

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

8 Government employees for whom written certifi9 cations were made under section 208(b) of title 18, 

10 United States Code, a copy of each such certifi11 cation, a summary description of the conflict necessi12 tating the certification, and the reason for granting 

13 the certification. 

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

15 or any recusal known to the agency that occurs dur16 ing the course of a meeting or other work of the 

17 committee. 

18 ‘‘(6) A summary of the process used by the ad19 visory committee for making decisions. 

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

21 committee and a description of committee efforts to 

22 make meetings accessible to the public using online 

23 technologies (such as video recordings) or other 

24 techniques (such as audio recordings). 


rfrederick on DSK6VPTVN1PROD with BILLS
11 

•HR 3124 IH

1 ‘‘(8) Any written determination by the Presi2 dent or the head of the agency to which the advisory 

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

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

5 reasons for such determination. 

6 ‘‘(9) Notices of future meetings of the com7 mittee. 

8 ‘‘(10) Any additional information considered 

9 relevant by the head of the agency to which the advi10 sory committee reports. 

11 ‘‘(b) MANNER OF DISCLOSURE.— 

12 ‘‘(1) IN GENERAL.—Except as provided in para13 graph (2), the head of an agency shall make the in14 formation required to be disclosed under this section 

15 available electronically on the official public website 

16 of the agency and to the Administrator at least 15 

17 calendar days before each meeting of an advisory 

18 committee. If the head of the agency determines that 

19 such timing is not practicable for any required infor20 mation, such head shall make the information avail21 able as soon as practicable but no later than 48 

22 hours before the next meeting of the committee. An 

23 agency may withhold from disclosure any informa24 tion that would be exempt from disclosure under sec25 tion 552 of title 5, United States Code. 


rfrederick on DSK6VPTVN1PROD with BILLS
12 

•HR 3124 IH

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

2 agency shall make available electronically, on the of3 ficial public website of the agency, detailed minutes 

4 and, to the extent available, a transcript or audio or 

5 video recording of each advisory committee meeting 

6 not later than 30 calendar days after such meeting. 

7 ‘‘(3) GRANT REVIEWS.—In the case of grant re8 views, disclosure of information required by sub9 section (a)(3) may be provided in the aggregate 

10 rather than by individual grant. 

11 ‘‘(c) PROVISION OF INFORMATION BY ADMINIS12 TRATOR OF GENERAL SERVICES.—The Administrator of 

13 General Services shall provide, on the official public 

14 website of the General Services Administration, electronic 

15 access to the information made available by each agency 

16 under this section. 

17 ‘‘(d) AVAILABILITY OF MEETING MATERIALS.—Ex18 cept where prohibited by contractual agreements entered 

19 into prior to the effective date of this Act, agencies and 

20 advisory committees shall make available to any person, 

21 at actual cost of duplication, copies of advisory committee 

22 meeting materials.’’. 

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

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


rfrederick on DSK6VPTVN1PROD with BILLS
13 

•HR 3124 IH

1 redesignated by section 2(a), is amended to read as fol2 lows: 

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

4 action until an advisory committee charter has been filed 

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

6 any advisory committee reports, and the standing commit7 tees of the Senate and of the House of Representatives 

8 having legislative jurisdiction of such agency. Such charter 

9 shall contain the following information in the following 

10 order: 

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

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

13 is established. 

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

15 of its activity. 

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

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

18 solely advisory, a specification of the authority for 

19 such functions. 

20 ‘‘(5) The agency or official to whom the com21 mittee reports. 

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

23 necessary support for the committee. 


rfrederick on DSK6VPTVN1PROD with BILLS
14 

•HR 3124 IH

1 ‘‘(7) The responsibilities of the officer or em2 ployee of the Federal Government designated under 

3 section 10(e). 

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

5 committee meetings. 

6 ‘‘(9) The period of time necessary for the com7 mittee to carry out its purposes. 

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

9 than two years from the date of the committee’s es10 tablishment. 

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

12 description of the expertise needed to carry out the 

13 objectives of the committee. 

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

15 will be composed of special Government employees, 

16 representatives, or members from both categories. 

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

18 subcommittees and if so, the agency official author19 ized to exercise such authority. 

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

21 dollars and full-time equivalent positions for such 

22 committee. 

23 ‘‘(15) The recordkeeping requirements of the 

24 committee. 

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


rfrederick on DSK6VPTVN1PROD with BILLS
15 

•HR 3124 IH

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

2 Library of Congress.’’. 

3 SEC. 5. MANAGING FEDERAL ADVISORY COMMITTEES. 

4 (a) COMMITTEE MANAGEMENT OFFICERS.—Sub5 section (c) of section 8 of the Federal Advisory Committee 

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

7 amended to read as follows: 

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

9 committee shall designate an Advisory Committee Man10 agement Officer who shall— 

11 ‘‘(1) be a senior official who is— 

12 ‘‘(A) an expert in implementing the re13 quirements of this Act and regulations promul14 gated pursuant to this Act; and 

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

16 General Services Administration; 

17 ‘‘(2) be responsible for the establishment, man18 agement, and supervision of the advisory committees 

19 of the agency, including establishing procedures, per20 formance measures, and outcomes for such commit21 tees; 

22 ‘‘(3) assemble and maintain the reports, 

23 records, and other papers (including advisory com24 mittee meeting materials) of any such committee 

25 during its existence; 


rfrederick on DSK6VPTVN1PROD with BILLS
16 

•HR 3124 IH

1 ‘‘(4) ensure any such committee and cor2 responding agency staff adhere to the provisions of 

3 this Act and any regulations promulgated pursuant 

4 to this Act; 

5 ‘‘(5) maintain records on each employee of any 

6 such committee and completion of training required 

7 for any such employee; 

8 ‘‘(6) be responsible for providing the informa9 tion required in section 7(b) of this Act to the Ad10 ministrator; and 

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

12 provisions of section 552 of title 5, United States 

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

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

15 SEC. 6. COMPTROLLER GENERAL REVIEW AND REPORTS. 

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

17 States shall review compliance by agencies with the Fed18 eral Advisory Committee Act, as amended by this Act, in19 cluding whether agencies are appropriately appointing ad20 visory committee members as either special Government 

21 employees or representatives. 

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

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

24 on the results of the review, as follows: 


rfrederick on DSK6VPTVN1PROD with BILLS
17 

•HR 3124 IH

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

2 than one year after the date of promulgation of reg3 ulations under section 7(c) of the Federal Advisory 

4 Committee Act (5 U.S.C. App.), as amended by sec5 tion 2(c). 

6 (2) The second report shall be submitted not 

7 later than five years after such date of promulgation 

8 of regulations. 

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

10 subsection are the Committee on Oversight and Govern11 ment Reform of the House of Representatives and the 

12 Committee on Homeland Security and Governmental Af13 fairs of the Senate. 

14 SEC. 7. APPLICATION OF FEDERAL ADVISORY COMMITTEE 

15 ACT TO TRADE ADVISORY COMMITTEES. 

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

17 U.S.C. 2155(f)(2)(A)) is amended by striking ‘‘subsection 

18 (a) and (b) of sections 10 and 11 of the Federal Advisory 

19 Committee Act’’ and inserting ‘‘subsections (a) and (b) 

20 of section 10 and subsections (a)(7), (a)(8), (a)(9), (b)(2), 

21 and (d) of section 11 of the Federal Advisory Committee 

22 Act’’. 


rfrederick on DSK6VPTVN1PROD with BILLS
18 

•HR 3124 IH

1 SEC. 8. 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 paragraph: 

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

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

7 18, United States Code.’’. 

8 SEC. 9. TECHNICAL AND CONFORMING AMENDMENTS. 

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

10 Act (5 U.S.C. App.) is amended— 

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

12 specified for GS–18 of the General Schedule under 

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

14 the Executive Schedule under section 5315’’; and 

15 (2) in subparagraph (C)(i), by striking ‘‘handi16 capped individuals (within the meaning of section 

17 501 of the Rehabilitation Act of 1973 (29 U.S.C. 

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

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

20 of 1973 (29 U.S.C. 705(20))’’. 

21 SEC. 10. EFFECTIVE DATE. 

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

23 the enactment of this Act. 

Æ 


rfrederick on DSK6VPTVN1PROD with BILLS