[Federal Register Volume 66, Number 139 (Thursday, July 19, 2001)]
[Rules and Regulations]
[Pages 37728-37750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17350]
[[Page 37727]]
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Part II
General Services Administration
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41 CFR Parts 101-6 and 102-3
Federal Advisory Committee Management; Final Rule
Federal Register / Vol. 66, No. 139 / Thursday, July 19, 2001 / Rules
and Regulations
[[Page 37728]]
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GENERAL SERVICES ADMINISTRATION
41 CFR Parts 101-6 and 102-3
[FPMR Amendment A-57]
RIN 3090-AG49
Federal Advisory Committee Management
AGENCY: Office of Governmentwide Policy, GSA.
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is revising Federal
Property Management Regulations (FPMR) coverage on Federal advisory
committee management and moving it into the Federal Management
Regulation (FMR). A cross-reference is added to the FPMR to direct
readers to the coverage in the FMR. The FMR coverage is written in
plain language to provide agencies with updated regulatory material
that is easy to read and understand. This action is necessary due to
legislative and policy changes that have occurred, and judicial
decisions that have been issued since the regulation was last updated.
It is based also on suggestions for improvement from other Federal
agencies and interested parties, and clarifies how the regulation
applies or does not apply to certain situations.
EFFECTIVE DATE: August 20, 2001.
FOR FURTHER INFORMATION CONTACT: Charles F. Howton, Deputy Director,
Committee Management Secretariat (202) 273-3561, or electronically at
the following Internet address: [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
GSA's authority for administering the Federal Advisory Committee
Act (FACA), as amended, 5 U.S.C., App. (also referred to as ``the
Act''), is contained in section 7 of the Act and Executive Order 12024
(42 FR 61445; 3 CFR 1977 Comp., p. 158). Under Executive Order 12024,
the President delegated to the Administrator of General Services all of
the functions vested in the President by the Act. GSA's
responsibilities for administering the Act have been delegated to the
Associate Administrator for Governmentwide Policy and to the Director
of the Committee Management Secretariat.
In a previous issue of the Federal Register (62 FR 31550, June 10,
1997), GSA published an Advance Notice of Proposed Rulemaking (ANPRM)
and requested comments. Additional comments were requested from the
Interagency Committee on Federal Advisory Committee Management. GSA
requested comments on: (1) Suggested issues to address; (2) specific
recommendations about changes needed in the current Federal Advisory
Committee Management subpart; (3) examples of situations where FACA was
either a useful tool or a hindrance to public involvement; and (4)
GSA's intent to include illustrative examples and principles. On
January 14, 2000, GSA published a proposed rule in the Federal Register
(65 FR 2504) and requested comments over a 60-day period ending on
March 14, 2000. All comments received were considered in drafting this
final rule.
This final rule provides administrative and interpretive guidelines
and management controls for Federal agencies to implement the
provisions of the Act, and is intended to improve the management and
operation of Federal advisory committees in the executive branch.
B. Discussion of Comments
Twenty-six commenters responded to the invitation for comments,
including twenty commenters from the executive branch and six
commenters from non-Federal sources. Of the twenty comments received
from executive branch sources, three comments were submitted by
subcomponents of a Federal department or agency. A total of fifty-nine
specific issues or recommendations were identified, of which seven were
either fully supportive of the proposed rule or concerned typographical
errors. GSA addressed the disposition of the remaining fifty-two issues
or recommendations as follows:
The Final Rule Should Include More Guidance Relating to the Management
of Advisory Committees, Including the Impact of Other Statutes and
Issues on Day-to-Day Operations
Several commenters provided suggestions regarding the addition of
guidance on issues that, although not addressed by the Act, likely
would improve the management of advisory committees. For example, one
commenter suggested that the final rule include a provision to
encourage agencies to streamline their internal processes and
procedures in order to expedite the establishment of advisory
committees. Other commenters requested that GSA: (1) Provide more
detailed provisions on the compensation of advisory committee members
and staff, and experts and consultants; (2) expand the range of
information required to be listed in an advisory committee's charter to
include the nature and disposition of records; and (3) incorporate new
regulatory requirements for increasing access to advisory committee
information, such as providing meeting notices, minutes, and reports
via the Internet.
In response to these recommendations, GSA expanded the number of
examples included within the final rule to illustrate how other
statutes or issues potentially could affect the effective management of
advisory committees.
In addition, GSA reorganized the examples and other guidance into
appendices to avoid any ambiguity between actions required by the Act
and the final rule, and actions that are suggested only within an
implementing framework of ``best practices.'' In the final rule, a
``Key Points and Principles'' appendix appears at the end of each
subpart to which it relates.
In applying the ``best practices'' offered in the appendices, users
of the final rule should continue to examine the extent to which other
factors, including agency-specific statutory provisions and internal
agency procedures, may affect a specific advisory committee or program.
Although GSA believes that the examples contained in the appendices to
the final rule represent the circumstances most commonly encountered
during the day-to-day management of advisory committees, the listing is
not exhaustive and must be supplemented based upon the unique
requirements of the user.
Provide Additional Guidance Regarding What Advisory Committees and
Their Subcommittees Must Do To Comply With the Act
Many commenters expressed concern over language contained in the
preamble to the proposed rule relating to coverage of subcommittees
under the Act. The preamble to the proposed rule noted that:
The applicability of the procedural requirements contained in
FACA and this proposed rule to subcommittees of advisory committees
has been clarified. GSA's current FACA regulation does not make
clear that subcommittees reporting to a parent committee are not
subject to FACA. Indeed, the regulation states just the opposite,
providing that ``[s]ubcommittees that do not function independently
of the full or parent advisory committee'' are subject to all
requirements of FACA except the requirement for a charter. (See 41
CFR 101-6.1007(b)(3).) This provision is problematic for two
reasons. First, it applies FACA more broadly than the statute itself
requires. Second, it essentially creates a special type
[[Page 37729]]
of advisory committee that is subject to some, but not all of FACA's
requirements, which has no foundation in the statute. Under FACA, a
group is either an advisory committee subject to all of the
statutory requirements, or it is not an advisory committee, and
therefore not subject to any of its requirements. Because a
subcommittee which reports to a parent committee is not an
``advisory committee'' under FACA, there is no legal basis for
applying any of FACA's requirements to such a subcommittee.
In evaluating the comments received, GSA notes that there were no
objections to the exclusions contained in Sec. 102-3.185 of the
proposed rule (now Sec. 102-3.160 of the final rule), relating to
``What activities of an advisory committee are not subject to the
notice and open meeting requirements of the Act?'' The exclusions in
Sec. 102-3.160 of the final rule continue to cover the types of
activities routinely performed by subcommittees. By this reasoning GSA
sought to bring into harmony these activities with those provisions in
the proposed rule differentiating subcommittees reporting to a parent
advisory committee from those reporting directly to a Federal officer
or agency.
However, the preamble to the proposed rule did not explain and
describe adequately the legal framework for GSA's decision to
differentiate subcommittees that report only to a parent advisory
committee more clearly from advisory committees that report directly to
a Federal officer or agency. The Act defines the term ``advisory
committee'' as ``any committee, * * * or any subcommittee or other
subgroup thereof which is established or utilized by the President or
an agency in the interest of obtaining advice or recommendations for
the President or one or more agencies or officers of the Federal
Government''. Under this definition, a subcommittee is an ``advisory
committee'' subject to the Act if it provides advice to the President
or a Federal officer or agency. Most subcommittees, however, report
only to a parent advisory committee and it is the parent committee that
is normally responsible for providing advice or recommendations to the
Government. In this conventional scenario, the subcommittee is not
subject to the Act because it is not providing advice to the
Government.
Case law supports this conclusion. In National Anti-Hunger
Coalition v. Executive Committee, 557 F.Supp. 524 (D.D.C.), aff'd, 711
F.2d 1071 (D.C. Cir. 1983), the question presented was whether the Act
applied to task forces reporting to the Executive Committee of the
President's Private Sector Survey on Cost Control in the Federal
Government. The task forces had no authority to make recommendations to
agencies or to the President. Instead, their function was to do the
``preliminary work of the survey, including fact-gathering, statistical
evaluations, and the formulation of preliminary reports.'' (557 F.Supp.
at 526). Although it was undisputed that the Executive Committee was
subject to the Act, the court held that the Act did not apply to the
task forces under the following reasoning:
There is no question that the task forces are intimately
involved in the gathering of information about federal programs and
the formulation of possible recommendations for consideration of the
Committee. That is not enough to render them subject to the FACA.
The Act itself applies only to committees ``established or utilized
by'' the President or an agency ``in the interest of obtaining
advice or recommendations for the President or one or more
agencies.'' The Act does not cover groups performing staff functions
such as those performed by the so-called task forces. (557 F.Supp.
at 529). (See also Association of American Physicians and Surgeons
v. Clinton, 997 F.2d 898, 911-913 (D.C. Cir. 1993).)
GSA believes that as a result of this decision, subcommittees that
report to a parent advisory committee generally are not subject to the
Act. GSA also believes that subcommittees whose advice or
recommendations are provided directly to a Federal officer or agency
are subject to the Act. However, GSA further believes that this
decision does not shield those subcommittees from coverage under the
Act whose advice or recommendations are not subject to deliberation by
their parent advisory committees.
From this reasoning, it is not permissible for parent advisory
committees simply to ``rubber-stamp'' the advice or recommendations of
their subcommittees, thereby depriving the public of its opportunity to
know about, and participate contemporaneously in, an advisory
committee's deliberations. Agencies are cautioned to avoid excluding
the public from attending any meeting where a subcommittee develops
advice or recommendations that are not expected to be reviewed and
considered by the parent advisory committee before being submitted to a
Federal officer or agency. These exclusions may run counter to the
provisions of the Act that require contemporaneous access to the
advisory committee deliberative process.
To address these issues more clearly, GSA strengthened language in
the final rule by: (1) Adding a new Sec. 102-3.35 that outlines
policies relating to subcommittees; (2) clarifying language in
Sec. 102-3.145 relating to subcommittee meetings; and (3) clarifying
the examples contained in Appendix A to Subpart C.
Correct and Clarify the Definition of ``Utilized''
Nine commenters recommended that GSA revise its definition of the
term, ``utilized'' to conform to governing case law.
As noted by some of the commenters, the definition of the term
``utilized'' in Sec. 102-3.30 of the proposed rule inadvertently
misstated the applicable legal test. The proposed rule stated that a
committee is ``utilized within the meaning of the Act when the
President or a Federal agency exercises actual management and control
over its operation.'' This construction would require an agency both to
have management of the committee and to exercise control over the
committee before the committee can be deemed ``utilized.'' The proper
statement of the ``utilized'' test is whether an agency either has
management of the committee or, in some fashion other than management,
exercises control over the committee.
The controlling legal authority is Washington Legal Foundation v.
U. . Sentencing Commission, 17 F.3d 1446 (D.C. Cir. 1994). In that
case, the appeals court gave structure to the U.S. Supreme Court's
prior decision interpreting the term ``utilized.'' (See Public Citizen
v. Department of Justice, 491 U.S. 440 (1989).) The appeals court ruled
that the word ``utilized'' indicates ``something along the lines of
actual management or control of the advisory committee.'' (17 F.3d at
1450). The operative criterion for determining whether a committee has
sufficiently close ties to an agency in order to render it ``utilized''
is whether the agency has either management of the committee or exerts
some other type of control, but not necessarily both.
Similarly, Sec. 102-3.50(b) of the proposed rule (now Sec. 102-
3.185(b) of the final rule) used the phrase ``actual management and
control'' with regard to section 15 of the Act. In explaining the
relationship between Federal agencies and the National Academy of
Sciences (NAS) and the National Academy of Public Administration (NAPA)
covered by section 15 of the Act, Sec. 102-3.50(b) of the proposed rule
states that ``[a]gencies must not manage or control the specific
procedures adopted by each academy.'' However, committees covered by
section 15 of the Act must be under both the actual management and the
control of the academies, not that of a Federal agency. In this
instance, the use of the conjunctive
[[Page 37730]]
word ``and'' is appropriate and indicates that the academies cannot
relinquish either management or control of their committees to Federal
agencies.
Accordingly, GSA revised the language contained in the final rule
by changing management and control to management or control in the
definition of the term ``utilized,'' now in Sec. 102-3.25 of the final
rule, and in those instances in which it appears in the ``Key Points
and Principles'' guidance in the appendices to the final rule.
Clarify the Application of the Act to Agency Interactions With the
Public
Several commenters noted that Federal agencies are increasingly
reliant on local communities, individual citizens, and interested
parties to obtain information, advice, or recommendations on which to
base decisions. They expressed concerns that: (1) Uncertainty about the
scope of the Act creates a disincentive for Federal officers and
agencies wishing to engage in public outreach; (2) the requirements of
the Act are being interpreted differently within and among agencies;
and (3) GSA's current regulations do not adequately differentiate
between those groups and activities covered by the Act and others that
are not. (See 41 CFR 101-6.10.)
GSA recognizes that the broad definition in the Act of an
``advisory committee'' might be interpreted to extend coverage by the
Act to any gathering or two or more persons from whom the President or
other Federal officers or agencies seek advice or recommendations.
However, in the cases discussed above, the courts have rejected such a
broad reading of ``advisory committee.'' GSA believes that the sections
in the final rule on definitions and on groups not covered by the Act,
Secs. 102-3.25 and 102-3.40, respectively, clarify the limits of the
coverage by, or scope of, the Act when applied together.
Within this group of comments, GSA noted a consistent theme related
to the need for more information regarding public participation tools
and techniques that would allow for more collaboration that is not
subject to the Act. Although advisory committees support Federal
decisions in a variety of situations, GSA believes that the ability of
agencies to interact with the public in numerous other ways is
particularly important because advisory committees are only one method
for agencies to obtain the views of the public for their programs.
Federal agencies may engage in continuous collaboration using diverse,
but complimentary, tools, techniques, and methods. Whether or not a
selected approach includes the use of advisory committees, the
potential or perceived applicability of the Act must not prevent
constructive collaboration from taking place. Agencies are encouraged
to contact GSA concerning not only the use of Federal advisory
committees, but also for information about alternative forms of public
involvement.
In GSA's view, agencies have broad latitude to consult with the
public using many different approaches that are not subject to the Act.
Public consultation formats that generally fall outside of the scope of
the Act include public meetings, information exchange forums, meetings
initiated with or by non-governmental organizations, Federal
participation on groups that are not established or utilized by the
Government, and certain work products generated by contractors as a
result of consultation with the public.
While FACA is not a public participation statute, it directly
affects how the executive branch is held accountable for the use and
management of Federal advisory committees as a major means of obtaining
public involvement. Within this context, agencies wishing to consult
with private individuals, non-governmental organizations, or with the
public at large through other assemblages often must consider whether
or not the Act applies to a given situation.
The number and range of scenarios presented by the commenters
underscore the importance of presenting a clearer understanding of how
advisory committees are established by Federal agencies or how the
Government's relationship with groups not established within the
meaning of the Act may nevertheless become subject to the Act if they
are utilized. Based upon the comments received, the circumstances under
which advisory committees are established within the executive branch
appear to be well understood. Accordingly, GSA retained the language
contained in Sec. 102-3.30 of the proposed rule in Sec. 102-3.25 of the
final rule and throughout subpart B.
However, as noted in the above discussion of the proposed rule's
treatment of the term ``utilized,'' agencies must determine whether or
not their relationship with a group created by non-Federal entities
constitutes actual management or control within the meaning of the Act.
To help agencies make this determination, GSA has included within the
final rule several new examples illustrating the application of the
actual management or control test to different situations. These
additions are contained in the ``Key Points and Principles'' guidance
in Appendix A to Subpart A.
Explain the Relationship Between Committees Established by the National
Academy of Sciences (NAS) or the National Academy of Public
Administration (NAPA) and the Act
The Federal Advisory Committee Act Amendments of 1997, Public Law
105-153, December 17, 1997, established separate procedures for
committees that are managed and controlled by NAS or NAPA. Subpart E of
the final rule contains implementing instructions for the new section
15 of FACA.
Clarify the Distinction Between Advisory Committees Subject to the Act
and Operational Committees Not Covered by the Act
Five commenters suggested that further guidance in the final rule
is necessary to assist agencies in differentiating an operational
committee not covered by the Act from one that performs primarily
advisory functions and is, therefore, subject to the Act. GSA added
guidance within Appendix A to Subpart A listing those characteristics
generally associated with committees having primarily operational, as
opposed to advisory, functions.
Clarify the Applicability of the Act to Advisory Committee Meetings
Conducted Through Electronic Means
Four commenters supported GSA's language contained in the proposed
rule extending the definition of ``committee meeting'' to meetings
conducted in whole or part through electronic means. However, two
commenters suggested additional clarifications, which GSA has adopted.
First, GSA slightly modified the definition of ``committee
meeting'' contained in Sec. 102-3.25 of the final rule to include a
``gathering'' of advisory committee members whether in person or
through electronic means. This change was made to highlight coverage by
the Act of both physical and ``virtual'' meetings conducted by such
means as a teleconference, videoconference, the Internet, or other
electronic medium.
Second, GSA amended the language contained in Sec. 102-3.140 of the
final rule to provide for adequate public access to advisory committee
meetings that are conducted in whole or part through electronic means.
This change complements existing policy covering advisory committee
meetings that are held within a physical setting, such as a conference
room, by ensuring that agencies adequately plan for public
[[Page 37731]]
participation by adding additional capability (such as a designated
number of public call-in lines for a teleconference) to ensure access
to committee deliberations.
Provide Additional Guidance on Balanced Representation and Selection of
Members
One commenter expressed concern that the proposed rule did not
contain sufficient guidance on balanced representation and the
selection of members. GSA recognizes that the guidance contained in the
proposed rule is limited to the language of the Act, but believes that
the provisions of section 5(c) of the Act are broad enough to allow for
agency discretion in determining advisory committee representation and
membership relative to applicable statutes, Executive orders, and the
needs of the agency responsible for the advisory committee.
However, GSA added a list of possible considerations within
Appendix A to Subpart B that, while not comprehensive or universally
applicable, may help in developing a plan for balancing an advisory
committee's membership.
Emphasize the Importance of Maximizing an Advisory Committee's
Independent Judgment
Five commenters offered various suggestions to address the
requirement contained in section 5(b)(3) of the Act, which is intended
to ensure that the work products of an advisory committee reflect the
group's independent judgment.
Included among these suggestions were recommendations from the U.S.
Office of Government Ethics (OGE) that GSA modify the language
contained in Sec. 102-3.155 of the proposed rule (now contained in
Appendix A to Subpart C of the final rule) to clarify the applicability
of conflict of interest statutes and other Federal ethics rules to
advisory committee members. GSA adopted all of OGE's suggestions.
The remaining suggestions received concerned the appointment of
advisory committee members, including a recommended change to Sec. 102-
3.155 of the proposed rule (now Appendix A to Subpart C) to clarify
that: (1) An agency may appoint a member to an advisory committee based
upon the recommendation of an organization to be represented; and (2)
recommendations from an advisory committee may be a part of an agency's
process to nominate new members. GSA adopted these changes and
suggestions.
Provide Additional Guidance on the Management of Federal Records
GSA received suggestions from the National Archives and Records
Administration (NARA) regarding three areas where additional guidance
on records management issues could be useful. Specifically, NARA
recommended that Sec. 102-3.190 of the proposed rule: (1) Be expanded
to include all recordkeeping requirements specified by the Act, not
just those relating to advisory committee minutes; (2) include a
statement that records should be scheduled for disposition before
actual termination of the advisory committee; and (3) with regard to
information that must be included within an advisory committee's
charter, include a determination as to whether its records fall within
the Presidential Records Act, 44 U.S.C. Chap 22.
GSA addressed these recommendations by expanding Sec. 102-3.200 of
the proposed rule (now Appendix A to Subpart D) to include additional
guidance relating to records management and to highlight the
applicability and importance of Federal recordkeeping statutes and
policies to advisory committee operations. GSA decided to include this
guidance within this appendix because the Act generally is silent on
records management issues, with the exception of the responsibilities
of the CommitteeManagement Officer (CMO) in section 8(b)(2) of the Act.
Pursuant to the National Archives and Records Administration Act,
44 U.S.C.Chap. 21, the Archivist of the United States is responsible
for records management in the Federal Government, including the
issuance of regulations and guidance for records retention and
disposition. The Archivist, working in conjunction with the agencies''
Records Management Officers, also is responsible for identifying
records that are appropriate for transfer to the permanent Archives of
the United States and those that must be processed in accordance with
the Presidential Records Act.
Strengthen Provisions Relating to the Public's Access to Advisory
Committee Records
Two commenters suggested that the final rule contain more explicit
guidance regarding the public's access to committee records under
section 10(b) of the Act. In particular, the commenters recommended
adding language describing the circumstances under which records may be
withheld pursuant to the Freedom of Information Act (FOIA), as amended,
5 U.S.C. 552.
GSA believes that timely access to advisory committee records is an
important element of the public access provisions of the Act and,
therefore, agrees with these suggestions. GSA further believes that
there are two separate, but equally important issues related to the
availability of advisory committee records under section 10(b) of FACA:
(1) The extent to which records may be protected from disclosure under
FOIA; and (2) the extent to which agencies may require that requests
for non-exempt records be processed under the request and review
process established by section 552(a)(3) of FOIA.
Section 10(b) of the Act provides that:
Subject to section 552 of title 5, United States Code, the
records, reports, transcripts, minutes, appendixes, working papers,
drafts, studies, agenda, or other documents which were made
available to or prepared for or by each advisory committee shall be
available for public inspection and copying at a single location in
the offices of the advisory committee or the agency to which the
advisory committee reports until the advisory committee ceases to
exist.
The purpose of section 10(b) of the Act is to provide for the
contemporaneous availability of advisory committee records that, when
taken in conjunction with the ability to attend advisory committee
meetings, ensures that interested parties have a meaningful opportunity
to comprehend fully the work undertaken by the advisory committee.
Records covered by the exemptions set forth in section 552(b) of FOIA
generally may be withheld. However, it should be noted that FOIA
Exemption 5 generally cannot be used to withhold documents reflecting
an advisory committee's internal deliberations.
An opinion of the Office of Legal Counsel, U.S. Department of
Justice, 12 Op. O.L.C. 73, April 29, 1988, entitled ``Disclosure of
Advisory Committee Deliberative Materials,'' concludes that FOIA
Exemption 5 ``is not generally applicable to materials prepared by or
for an advisory committee, but that it does extend to protect
privileged documents delivered from the agency to an advisory
committee.'' The opinion further states that:
This construction gives meaning to exemption 5 without vitiating
Congress' enumeration of deliberative documents such as working
papers and drafts as subject to disclosure. It is also supported by
a close reading of exemption 5 itself. Because by its terms
exemption 5 protects only inter-agency and intra-agency documents
and because an advisory committee is not an agency, documents do not
receive the protection of exemption 5 by virtue of the fact that
they are prepared by an advisory committee. On
[[Page 37732]]
the other hand, documents prepared by an agency do not lose the
protection of exemption 5 by virtue of the fact that they are
delivered to an advisory committee.
In determining whether or not such records fall within these narrow
exclusions, the OLC opinion provides that consideration should be given
to determining whether or not section 10(b) of FACA is applicable in
the first instance. As noted in the OLC opinion:
Section 10(b) itself applies only to materials made available to
or prepared for or by an advisory committee established by statute
or reorganization plan or established or utilized by the President
or an agency. 5 U.S.C. app. I, 3(2), 10(b). Accordingly, in
determining whether a document is to be disclosed the first issue is
not whether it is subject to an exemption under 5 U.S.C. 552 but
whether it meets this threshold definition.
In explaining this threshold determination of whether particular
records are subject to the section 10(b) disclosure requirement, the
OLC opinion states that:
The courts and this Office have construed the concept of
advisory committees established or utilized by the President or an
agency to preclude section 10(b)'s application to the work prepared
by a staff member of an advisory committee or a staffing entity
within an advisory committee, such as an independent task force
limited to gathering information, or a subcommittee of the advisory
committee that is not itself established or utilized by the
President or agency, so long as the material was not used by the
committee as a whole.
Although advisory committee records may be withheld under the
provisions of FOIA if there is a reasonable expectation that the
records sought fall within the exemptions contained in section 552(b)
of FOIA, agencies may not require members of the public or other
interested parties to file requests for non-exempt advisory committee
records under the request and review process established by section
552(a)(3) of FOIA.
In Food Chemical News v. Department of Health and Human Services,
980 F.2d 1468, 299 U.S. App. DC 25, the appeals court held that:
Under section 10(b) of FACA an agency is generally obligated to make
available for public inspection and copying all materials that were
made available to or prepared for or by an advisory committee.
Except with respect to those materials that the agency reasonably
claims to be exempt from disclosure pursuant to FOIA, a member of
the public need not request disclosure in order for FACA 10(b)
materials to be made available. Thus, whenever practicable, all
10(b) materials must be available for public inspection and copying
before or on the date of the advisory committee meeting to which
they apply.
Accordingly, GSA included language within Sec. 102-3.170 of the
final rule describing the policy to be followed in implementing section
10(b) of the Act, and included additional guidance in Appendix A to
Subpart D concerning the applicability of FOIA to records covered by
section 10(b) of FACA.
Improve the Organization of the Final Rule
During the course of evaluating comments received from all sources,
GSA conducted a review of the proposed rule's general organization and
structure for the purpose of achieving greater clarity and consistency
in presentation. This effort led to a number of changes, such as
redesignating the ``Key Points and Principles'' sections following each
subpart as appendices. Other changes were made throughout the final
rule to improve alignment between section headings and the material
that follows. Similar changes were made within the appendices in order
to improve the linkage between the examples or questions and the
corresponding guidance.
In addition, GSA reorganized the final rule to redesignate subpart
B as subpart E to improve the flow of information distinguishing
Federal advisory committees subject to the Act from those committees
created by the National Academy of Sciences (NAS) or the National
Academy of Public Administration (NAPA) which, if not utilized by the
executive branch, are not subject to the Act's provisions. Section
numbers previously assigned in the proposed rule affected by the
redesignation of subpart B as subpart E, subpart C as subpart B,
subpart D as subpart C, and subpart E as subpart D have been changed
accordingly.
C. Technical and Procedural Comments
The final rule incorporates several technical and procedural
recommendations made by a range of commenters, particularly in the
following sections or appendices:
------------------------------------------------------------------------
Section/Appendix Modification
------------------------------------------------------------------------
102-3.60.......................... Specific procedures for consulting
with the Secretariat have been
eliminated. GSA will issue separate
guidance to agencies covering the
administration of the consultation
requirement.
------------------------------------------------------------------------
Appendix A to Subpart B........... Addition of guidance relating to the
achievement of ``balanced''
advisory committee membership.
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Appendix A to Subpart B........... Addition of guidance covering the
legal duration of the charter of an
advisory committee required by
statute where Congress authorizes
the advisory committee for a period
exceeding two years.
------------------------------------------------------------------------
Appendix A to Subpart C........... Addition of guidance addressing the
designation of an alternate
Designated Federal Officer (DFO).
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102-3.130......................... All references to compensation
limits imposed by the Act have been
updated, and references to
alternative similar agency
compensation systems other than the
General Schedule have been
included.
------------------------------------------------------------------------
102-3.130......................... All references to the word,
``handicapped,'' have been replaced
with the phrase, ``with
disabilities.''
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Appendix A to Subpart D........... Addition of guidance regarding
activities that are not subject to
the notice and open meeting
requirements of the Act.
------------------------------------------------------------------------
102-3.165......................... The requirement for the completion
of advisory committee meeting
minutes now requires the DFO to
ensure certification within the
time limit specified.
------------------------------------------------------------------------
D. Consultation With Other Federal Agencies
Pursuant to section 7(d) of the Act, the guidelines contained in
this final rule with respect to uniform fair rates of compensation for
comparable services of members and staff of, and experts and
consultants to advisory committees have been established after
consultation with the U.S. Office of Personnel Management (OPM).
[[Page 37733]]
Although not required by the Act, the guidelines contained in this
final rule that refer to the applicability of conflict of interest
statutes and other Federal ethics rules to advisory committee members
have been established after consultation with the U.S. Office of
Government Ethics (OGE).
Although not required by the Act, the guidelines contained in this
final rule that relate to the management of advisory committee records
have been established after consultation with the National Archives and
Records Administration (NARA).
E. Executive Order 12866
GSA has determined that this final rule is a significant rule for
the purposes of Executive Order 12866 of September 30, 1993.
F. Regulatory Flexibility Act
GSA has determined that this final rule will not have a significant
economic impact on a substantial number of small entities (including
small businesses, small organizational units, and small governmental
jurisdictions) within the meaning of the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The rule does not impact small entities and applies
only to Federal officers and agencies.
G. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this final rule
does not contain any information collection requirements that require
the approval of the Office of Management and Budget (OMB) under 44
U.S.C. 3501, et seq.
H. Small Business Regulatory Enforcement Fairness Act
This final rule is being submitted for Congressional review as
prescribed under 5 U.S.C. 801.
List of Subjects in 41 CFR Parts 101-6 and 102-3
Advisory committees, Government property management.
Dated: July 5, 2001.
Stephen A. Perry,
Administrator of General Services.
For the reasons set forth in the preamble, GSA amends 41 CFR
chapters 101 and 102 as follows:
CHAPTER 101--[AMENDED]
PART 101-6--MISCELLANEOUS REGULATIONS
1. Subpart 101-6.10 is revised to read as follows:
Subpart 101-6.10--Federal Advisory Committee Management
Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)); sec. 7,
5 U.S.C., App.; and E.O. 12024, 3 CFR, 1977 Comp., p. 158.
Sec. 101-6.1001 Cross-reference to the Federal Management Regulation
(FMR) (41 CFR chapter 102, parts 102-1 through 102-220).
For Federal advisory committee management information previously
contained in this subpart, see FMR part 102-3 (41 CFR part 102-3).
CHAPTER 102--[AMENDED]
2. Part 102-3 is added to subchapter A of chapter 102 to read as
follows:
PART 102-3--FEDERAL ADVISORY COMMITTEE MANAGEMENT
Subpart A--What Policies Apply To Advisory Committees Established
Within the Executive Branch?
Sec.
102-3.5 What does this subpart cover and how does it apply?
102-3.10 What is the purpose of the Federal Advisory Committee Act?
102-3.15 Who are the intended users of this part?
102-3.20 How does this part meet the needs of its audience?
102-3.25 What definitions apply to this part?
102-3.30 What policies govern the use of advisory committees?
102-3.35 What policies govern the use of subcommittees?
102-3.40 What types of committees or groups are not covered by the
Act and this part?
Appendix A to Subpart A of Part 102-3--Key Points and Principles
Subpart B--How Are Advisory Committees Established, Renewed,
Reestablished, and Terminated?
102-3.45 What does this subpart cover and how does it apply?
102-3.50 What are the authorities for establishing advisory
committees?
102-3.55 What rules apply to the duration of an advisory committee?
102-3.60 What procedures are required to establish, renew, or
reestablish a discretionary advisory committee?
102-3.65 What are the public notification requirements for
discretionary advisory committees?
102-3.70 What are the charter filing requirements?
102-3.75 What information must be included in the charter of an
advisory committee?
102-3.80 How are minor charter amendments accomplished?
102-3.85 How are major charter amendments accomplished?
Appendix A to Subpart B of Part 102-3--Key Points and Principles
Subpart C--How Are Advisory Committees Managed?
102-3.90 What does this subpart cover and how does it apply?
102-3.95 What principles apply to the management of advisory
committees?
102-3.100 What are the responsibilities and functions of GSA?
102-3.105 What are the responsibilities of an agency head?
102-3.110 What are the responsibilities of a chairperson of an
independent Presidential advisory committee?
102-3.115 What are the responsibilities and functions of an agency
Committee Management Officer (CMO)?
102-3.120 What are the responsibilities and functions of a
Designated Federal Officer (DFO)?
102-3.125 How should agencies consider the roles of advisory
committee members and staff?
102-3.130 What policies apply to the appointment, and compensation
or reimbursement of advisory committee members, staff, and experts
and consultants?
Appendix A to Subpart C of Part 102-3--Key Points and Principles
Subpart D--Advisory Committee Meeting and Recordkeeping Procedures
102-3.135 What does this subpart cover and how does it apply?
102-3.140 What policies apply to advisory committee meetings?
102-3.145 What policies apply to subcommittee meetings?
102-3.150 How are advisory committee meetings announced to the
public?
102-3.155 How are advisory committee meetings closed to the public?
102-3.160 What activities of an advisory committee are not subject
to the notice and open meeting requirements of the Act?
102-3.165 How are advisory committee meetings documented?
102-3.170 How does an interested party obtain access to advisory
committee records?
102-3.175 What are the reporting and recordkeeping requirements for
an advisory committee?
Appendix A to Subpart D of Part 102-3--Key Points and Principles
Subpart E--How Does This Subpart Apply to Advice or Recommendations
Provided to Agencies by the National Academy of Sciences or the
National Academy of Public Administration?
102-3.180 What does this subpart cover and how does it apply?
102-3.185 What does this subpart require agencies to do?
Appendix A to Subpart E of Part 102-3--Key Points and Principles
Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)); sec. 7,
5 U.S.C., App.; and E.O. 12024, 3 CFR, 1977 Comp., p. 158.
[[Page 37734]]
Subpart A--What Policies Apply to Advisory Committees Established
Within the Executive Branch?
Sec. 102-3.5 What does this subpart cover and how does it apply?
This subpart provides the policy framework that must be used by
agency heads in applying the Federal Advisory Committee Act (FACA), as
amended (or ``the Act''), 5 U.S.C., App., to advisory committees they
establish and operate. In addition to listing key definitions
underlying the interpretation of the Act, this subpart establishes the
scope and applicability of the Act, and outlines specific exclusions
from its coverage.
Sec. 102-3.10 What is the purpose of the Federal Advisory Committee
Act?
FACA governs the establishment, operation, and termination of
advisory committees within the executive branch of the Federal
Government. The Act defines what constitutes a Federal advisory
committee and provides general procedures for the executive branch to
follow for the operation of these advisory committees. In addition, the
Act is designed to assure that the Congress and the public are kept
informed with respect to the number, purpose, membership, activities,
and cost of advisory committees.
Sec. 102-3.15 Who are the intended users of this part?
(a) The primary users of this Federal Advisory Committee Management
part are:
(1) Executive branch officials and others outside Government
currently involved with an established advisory committee;
(2) Executive branch officials who seek to establish or utilize an
advisory committee;
(3) Executive branch officials and others outside Government who
have decided to pursue, or who are already engaged in, a form of public
involvement or consultation and want to avoid inadvertently violating
the Act; and
(4) Field personnel of Federal agencies who are increasingly
involved with the public as part of their efforts to increase
collaboration and improve customer service.
(b) Other types of end-users of this part include individuals and
organizations outside of the executive branch who seek to understand
and interpret the Act, or are seeking additional guidance.
Sec. 102-3.20 How does this part meet the needs of its audience?
This Federal Advisory Committee Management part meets the general
and specific needs of its audience by addressing the following issues
and related topics:
(a) Scope and applicability. This part provides guidance on the
threshold issue of what constitutes an advisory committee and clarifies
the limits of coverage by the Act for the benefit of the intended users
of this part.
(b) Policies and guidelines. This part defines the policies,
establishes minimum requirements, and provides guidance to Federal
officers and agencies for the establishment, operation, administration,
and duration of advisory committees subject to the Act. This includes
reporting requirements that keep Congress and the public informed of
the number, purpose, membership, activities, benefits, and costs of
these advisory committees. These requirements form the basis for
implementing the Act at both the agency and Governmentwide levels.
(c) Examples and principles. This part provides summary-level key
points and principles at the end of each subpart that provide more
clarification on the role of Federal advisory committees in the larger
context of public involvement in Federal decisions and activities. This
includes a discussion of the applicability of the Act to different
decisionmaking scenarios.
Sec. 102-3.25 What definitions apply to this part?
The following definitions apply to this Federal Advisory Committee
Management part:
Act means the Federal Advisory Committee Act, as amended, 5 U.S.C.,
App.
Administrator means the Administrator of General Services.
Advisory committee subject to the Act, except as specifically
exempted by the Act or by other statutes, or as not covered by this
part, means any committee, board, commission, council, conference,
panel, task force, or other similar group, which is established by
statute, or established or utilized by the President or by an agency
official, for the purpose of obtaining advice or recommendations for
the President or on issues or policies within the scope of an agency
official's responsibilities.
Agency has the same meaning as in 5 U.S.C. 551(1).
Committee Management Officer (``CMO''), means the individual
designated by the agency head to implement the provisions of section
8(b) of the Act and any delegated responsibilities of the agency head
under the Act.
Committee Management Secretariat (``Secretariat''), means the
organization established pursuant to section 7(a) of the Act, which is
responsible for all matters relating to advisory committees, and
carries out the responsibilities of the Administrator under the Act and
Executive Order 12024 (3 CFR, 1977 Comp., p. 158).
Committee meeting means any gathering of advisory committee members
(whether in person or through electronic means) held with the approval
of an agency for the purpose of deliberating on the substantive matters
upon which the advisory committee provides advice or recommendations.
Committee member means an individual who serves by appointment or
invitation on an advisory committee or subcommittee.
Committee staff means any Federal employee, private individual, or
other party (whether under contract or not) who is not a committee
member, and who serves in a support capacity to an advisory committee
or subcommittee.
Designated Federal Officer (``DFO''), means an individual
designated by the agency head, for each advisory committee for which
the agency head is responsible, to implement the provisions of sections
10(e) and (f) of the Act and any advisory committee procedures of the
agency under the control and supervision of the CMO.
Discretionary advisory committee means any advisory committee that
is established under the authority of an agency head or authorized by
statute. An advisory committee referenced in general (non-specific)
authorizing language or Congressional committee report language is
discretionary, and its establishment or termination is within the legal
discretion of an agency head.
Independent Presidential advisory committee means any Presidential
advisory committee not assigned by the Congress in law, or by President
or the President's delegate, to an agency for administrative and other
support.
Non-discretionary advisory committee means any advisory committee
either required by statute or by Presidential directive. A non-
discretionary advisory committee required by statute generally is
identified specifically in a statute by name, purpose, or functions,
and its establishment or termination is beyond the legal discretion of
an agency head.
Presidential advisory committee means any advisory committee
authorized by the Congress or directed by the President to advise the
President.
Subcommittee means a group, generally not subject to the Act, that
reports to an advisory committee and not directly to a Federal officer
or
[[Page 37735]]
agency, whether or not its members are drawn in whole or in part from
the parent advisory committee.
Utilized for the purposes of the Act, does not have its ordinary
meaning. A committee that is not established by the Federal Government
is utilized within the meaning of the Act when the President or a
Federal office or agency exercises actual management or control over
its operation.
Sec. 102-3.30 What policies govern the use of advisory committees?
The policies to be followed by Federal departments and agencies in
establishing and operating advisory committees consistent with the Act
are as follows:
(a) Determination of need in the public interest. A discretionary
advisory committee may be established only when it is essential to the
conduct of agency business and when the information to be obtained is
not already available through another advisory committee or source
within the Federal Government. Reasons for deciding that an advisory
committee is needed may include whether:
(1) Advisory committee deliberations will result in the creation or
elimination of (or change in) regulations, policies, or guidelines
affecting agency business;
(2) The advisory committee will make recommendations resulting in
significant improvements in service or reductions in cost; or
(3) The advisory committee's recommendations will provide an
important additional perspective or viewpoint affecting agency
operations.
(b) Termination. An advisory committee must be terminated when:
(1) The stated objectives of the committee have been accomplished;
(2) The subject matter or work of the committee has become obsolete
by the passing of time or the assumption of the committee's functions
by another entity;
(3) The agency determines that the cost of operation is excessive
in relation to the benefits accruing to the Federal Government;
(4) In the case of a discretionary advisory committee, upon the
expiration of a period not to exceed two years, unless renewed;
(5) In the case of a non-discretionary advisory committee required
by Presidential directive, upon the expiration of a period not to
exceed two years, unless renewed by authority of the President; or
(6) In the case of a non-discretionary advisory committee required
by statute, upon the expiration of the time explicitly specified in the
statute, or implied by operation of the statute.
(c) Balanced membership. An advisory committee must be fairly
balanced in its membership in terms of the points of view represented
and the functions to be performed.
(d) Open meetings. Advisory committee meetings must be open to the
public except where a closed or partially-closed meeting has been
determined proper and consistent with the exemption(s) of the
Government in the Sunshine Act, 5 U.S.C. 552b(c), as the basis for
closure.
(e) Advisory functions only. The function of advisory committees is
advisory only, unless specifically provided by statute or Presidential
directive.
Sec. 102-3.35 What policies govern the use of subcommittees?
(a) In general, the requirements of the Act and the policies of
this Federal Advisory Committee Management part do not apply to
subcommittees of advisory committees that report to a parent advisory
committee and not directly to a Federal officer or agency. However,
this section does not preclude an agency from applying any provision of
the Act and this part to any subcommittee of an advisory committee in
any particular instance.
(b) The creation and operation of subcommittees must be approved by
the agency establishing the parent advisory committee.
Sec. 102-3.40 What types of committees or groups are not covered by
the Act and this part?
The following are examples of committees or groups that are not
covered by the Act or this Federal Advisory Committee Management part:
(a) Committees created by the National Academy of Sciences (NAS) or
the National Academy of Public Administration (NAPA). Any committee
created by NAS or NAPA in accordance with section 15 of the Act, except
as otherwise covered by subpart E of this part;
(b) Advisory committees of the Central Intelligence Agency and the
Federal Reserve System. Any advisory committee established or utilized
by the Central Intelligence Agency or the Federal Reserve System;
(c) Committees exempted by statute. Any committee specifically
exempted from the Act by law;
(d) Committees not actually managed or controlled by the executive
branch. Any committee or group created by non-Federal entities (such as
a contractor or private organization), provided that these committees
or groups are not actually managed or controlled by the executive
branch;
(e) Groups assembled to provide individual advice. Any group that
meets with a Federal official(s), including a public meeting, where
advice is sought from the attendees on an individual basis and not from
the group as a whole;
(f) Groups assembled to exchange facts or information. Any group
that meets with a Federal official(s) for the purpose of exchanging
facts or information;
(g) Intergovernmental committees. Any committee composed wholly of
full-time or permanent part-time officers or employees of the Federal
Government and elected officers of State, local and tribal governments
(or their designated employees with authority to act on their behalf),
acting in their official capacities. However, the purpose of such a
committee must be solely to exchange views, information, or advice
relating to the management or implementation of Federal programs
established pursuant to statute, that explicitly or inherently share
intergovernmental responsibilities or administration (see guidelines
issued by the Office of Management and Budget (OMB) on section 204(b)
of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1534(b), OMB
Memorandum M-95-20, dated September 21, 1995, available from the
Committee Management Secretariat (MC), General Services Administration,
1800 F Street, NW., Washington, DC 20405-0002);
(h) Intragovernmental committees. Any committee composed wholly of
full-time or permanent part-time officers or employees of the Federal
Government;
(i) Local civic groups. Any local civic group whose primary
function is that of rendering a public service with respect to a
Federal program;
(j) Groups established to advise State or local officials. Any
State or local committee, council, board, commission, or similar group
established to advise or make recommendations to State or local
officials or agencies; and
(k) Operational committees. Any committee established to perform
primarily operational as opposed to advisory functions. Operational
functions are those specifically authorized by statute or Presidential
directive, such as making or implementing Government decisions or
policy. A committee designated operational may be covered by the Act if
it becomes primarily advisory in nature. It is the responsibility of
the administering agency to determine whether a committee is primarily
operational. If so, it does not fall under
[[Page 37736]]
the requirements of the Act and this part.
Appendix A to Subpart A of Part 102-3--Key Points and Principles
This appendix provides additional guidance in the form of
answers to frequently asked questions and identifies key points and
principles that may be applied to situations not covered elsewhere
in this subpart. The guidance follows:
Appendix A to Subpart A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Key points and principles Section(s) Question(s) Guidance
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. FACA applies to advisory 102-3.25, 102-3.40(d), 102-3.40(f) 1. A local citizens group wants to A. The answer to questions 1, 2,
committees that are either meet with a Federal official(s) to and 3 is yes, if the agency does
``established'' or ``utilized'' help improve the condition of a not either ``establish'' or
by an agency. forest's trails and quality of ``utilize'' (exercise ``actual
concessions. May the Government meet management or control'' over)
with the group without chartering the group. (i) Although there is
the group under the Act? no precise legal definition of
2. May an agency official attend ``actual management or
meetings of external groups where control,'' the following factors
advice may be offered to the may be used by an agency to
Government during the course of determine whether or not a group
discussions? is ``utilized'' within the
3. May an agency official participate meaning of the Act: (a) Does the
in meetings of groups or agency manage or control the
organizations as a member without group's membership or otherwise
chartering the group under the Act? determine its composition? (b)
4. Is the Act applicable to meetings Does the agency manage or
between agency officials and their control the group's agenda? (c)
contractors, licensees, or other Does the agency fund the group's
``private sector program partners?'' activities? (ii) Answering
``yes'' to any or all of
questions 1, 2, or 3 does not
automatically mean the group is
``utilized'' within the meaning
of the Act. However, an agency
may need to reconsider the
status of the group under the
Act if the relationship in
question essentially is
indistinguishable from an
advisory committee established
by the agency.
B. The answer to question 4 is
no. Agencies often meet with
contractors and licensees,
individually and as a group, to
discuss specific matters
involving a contract's
solicitation, issuance, and
implementation, or an agency's
efforts to ensure compliance
with its regulations. Such
interactions are not subject to
the Act because these groups are
not ``established'' or
``utilized'' for the purpose of
obtaining advice or
recommendations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
II. The development of consensus 102-3.25, 102-3.40(d), 102-3.40(f) 1. If, during a public meeting of the A. No, the public meeting need
among all or some of the ``town hall'' type called by an not be stopped. (i) A group must
attendees at a public meeting agency, it appears that the audience either be ``established'' or
or similar forum does not is achieving consensus, or a common ``utilized'' by the executive
automatically invoke FACA. point of view, is this an indication branch in order for the Act to
that the meeting is subject to the apply. (ii) Public meetings
Act and must be stopped? represent a chance for
individuals to voice their
opinions and/or share
information. In that sense,
agencies do not either
``establish'' the assemblage of
individuals as an advisory
committee or ``utilize'' the
attendees as an advisory
committee because there are no
elements of either
``management'' or ``control''
present or intended.
[[Page 37737]]
III. Meetings between a Federal 102-3.40(e) 1. May an agency official meet with a A. The answer to questions 1 and
official(s) and a collection of number of persons collectively to 2 is yes. The Act applies only
individuals where advice is obtain their individual views where a group is established or
sought from the attendees on an without violating the Act? utilized to provide advice or
individual basis are not 2. Does the concept of an recommendations ``as a group.''
subject to the Act. ``individual'' apply only to (i) A mere assemblage or
``natural persons?'' collection of individuals where
the attendees are providing
individual advice is not acting
``as a group'' under the Act.
(ii) In this respect,
``individual'' is not limited to
``natural persons.'' Where the
group consists of
representatives of various
existing organizations, each
representative individually may
provide advice on behalf of that
person's organization without
violating the Act, if those
organizations themselves are not
``managed or controlled'' by the
agency.
--------------------------------------------------------------------------------------------------------------------------------------------------------
IV. Meetings between Federal, 102-3.40(g) 1. Is the exclusion from the Act A. Yes. The scope of activities
State, local, and tribal covering elected officials of State, covered by the exclusion from
elected officials are not local, and tribal governments acting the Act for intergovernmental
subject to the Act. in their official capacities also activities should be construed
applicable to associations of State broadly to facilitateFederal/
officials? State/local/tribal discussions
on shared intergovernmental
program responsibilities or
administration. Pursuant to a
Presidential delegation, the
Office of Management and Budget
(OMB) issued guidelines for this
exemption, authorized by section
204(b) of the Unfunded Mandates
Reform Act of 1995, 2U.S.C.
1534(b). (See OMB Memorandum M-
95-20, dated September 21, 1995,
published at 60 FR 50651
(September 29, 1995), and which
is available from the Committee
Management Secretariat (MC),
General Services Administration,
1800 F Street, NW, Washington,
DC 20405-0002).
--------------------------------------------------------------------------------------------------------------------------------------------------------
V. Advisory committees 102-3.30(e), 102-3.40(k) 1. Are ``operational committees'' A. No, so long as the operational
established under the Act may subject to the Act, even if they may functions performed by the
perform advisory functions engage in some advisory activities? committee constitute the
only, unless authorized to ``primary'' mission of the
perform ``operational'' duties committee. Only committees
by the Congress or by established or utilized by the
Presidential directive. executive branch in the interest
of obtaining advice or
recommendations are subject to
the Act. However, without
specific authorization by the
Congress or direction by the
President, Federal functions
(decisionmaking or operations)
cannot be delegated to, or
assumed by, non-Federal
individuals or entities.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 37738]]
VI. Committees authorized by the 102-3.40(k) 1. What characteristics are common to A. In answer to question 1, non-
Congress in law or by ``operational committees?'' advisory, or ``operational''
Presidential directive to 2. A committee created by the committees generally have the
perform primarily Congress by statute is responsible, following characteristics: (i)
``operational'' functions are for example, for developing plans Specific functions and/or
not subject to the Act. and events to commemorate the authorities provided by the
contributions of wildlife to the Congress in law or by
enjoyment of the Nation's parks. Presidential directive; (ii) The
Part of the committee's role ability to make and implement
includes providing advice to certain traditionally Governmental
Federal agencies as may be necessary decisions; and (iii) The
to coordinate these events. Is this authority to perform specific
committee subject to FACA? tasks to implement a Federal
program.
B. Agencies are responsible for
determining whether or not a
committee primarily provides
advice or recommendations and
is, therefore, subject to the
Act, or is primarily
``operational'' and not covered
by FACA.
C. The answer to question 2 is
no. The committee is not subject
to the Act because: (i) Its
functions are to plan and
implement specific tasks; (ii)
The committee has been granted
the express authority by the
Congress to perform its
statutorily required functions;
and (iii) Its incidental role of
providing advice to other
Federal agencies is secondary to
its primarily operational role
of planning and implementing
specific tasks and performing
statutory functions.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subpart B--How Are Advisory Committees Established, Renewed,
Reestablished, and Terminated?
Sec. 102-3.45 What does this subpart cover and how does it apply?
Requirements for establishing and terminating advisory committees
vary depending on the establishing entity and the source of authority
for the advisory committee. This subpart covers the procedures
associated with the establishment, renewal, reestablishment, and
termination of advisory committees. These procedures include consulting
with the Secretariat, preparing and filing an advisory committee
charter, publishing notice in the Federal Register, and amending an
advisory committee charter.
Sec. 102-3.50 What are the authorities for establishing advisory
committees?
FACA identifies four sources of authority for establishing an
advisory committee:
(a) Required by statute. By law where the Congress establishes an
advisory committee, or specifically directs the President or an agency
to establish it (non-discretionary);
(b) Presidential authority. By Executive order of the President or
other Presidential directive (non-discretionary);
(c) Authorized by statute. By law where the Congress authorizes,
but does not direct the President or an agency to establish it
(discretionary); or
(d) Agency authority. By an agency under general authority in title
5 of the United States Code or under other general agency-authorizing
statutes (discretionary).
Sec. 102-3.55 What rules apply to the duration of an advisory
committee?
(a) An advisory committee automatically terminates two years after
its date of establishment unless:
(1) The statutory authority used to establish the advisory
committee provides a different duration;
(2) The President or agency head determines that the advisory
committee has fulfilled the purpose for which it was established and
terminates the advisory committee earlier;
(3) The President or agency head determines that the advisory
committee is no longer carrying out the purpose for which it was
established and terminates the advisory committee earlier; or
(4) The President or agency head renews the committee not later
than two years after its date of establishment in accordance with
Sec. 102-3.60. If an advisory committee needed by the President or an
agency terminates because it was not renewed in a timely manner, or if
the advisory committee has been terminated under the provisions of
Sec. 102-3.30(b), it can be reestablished in accordance with Sec. 102-
3.60.
(b) When an advisory committee terminates, the agency shall notify
the Secretariat of the effective date of the termination.
Sec. 102-3.60 What procedures are required to establish, renew, or
reestablish a discretionary advisory committee?
(a) Consult with the Secretariat. Before establishing, renewing, or
reestablishing a discretionary advisory committee and filing the
charter as addressed later in Sec. 102-3.70, the agency head must
consult with the Secretariat. As part of this consultation, agency
heads are encouraged to engage in constructive dialogue with the
Secretariat. With a full understanding of the background and purpose
behind the proposed advisory committee, the Secretariat may share its
knowledge and experience with the agency on how best to make use of the
proposed advisory committee, suggest alternate methods of attaining its
purpose that the agency may wish to consider, or inform the agency of a
pre-existing advisory committee performing similar functions.
(b) Include required information in the consultation. Consultations
covering the establishment, renewal, and reestablishment of advisory
committees must, as a minimum, contain the following information:
[[Page 37739]]
(1) Explanation of need. An explanation stating why the advisory
committee is essential to the conduct of agency business and in the
public interest;
(2) Lack of duplication of resources. An explanation stating why
the advisory committee's functions cannot be performed by the agency,
another existing committee, or other means such as a public hearing;
and
(3) Fairly balanced membership. A description of the agency's plan
to attain fairly balanced membership. The plan will ensure that, in the
selection of members for the advisory committee, the agency will
consider a cross-section of those directly affected, interested, and
qualified, as appropriate to the nature and functions of the advisory
committee. Advisory committees requiring technical expertise should
include persons with demonstrated professional or personal
qualifications and experience relevant to the functions and tasks to be
performed.
Sec. 102-3.65 What are the public notification requirements for
discretionary advisory committees?
A notice to the public in the Federal Register is required when a
discretionary advisory committee is established, renewed, or
reestablished.
(a) Procedure. Upon receiving notice from the Secretariat that its
review is complete in accordance with Sec. 102-3.60(a), the agency must
publish a notice in the Federal Register announcing that the advisory
committee is being established, renewed, or reestablished. For the
establishment of a new advisory committee, the notice also must
describe the nature and purpose of the advisory committee and affirm
that the advisory committee is necessary and in the public interest.
(b) Time required for notices. Notices of establishment and
reestablishment of advisory committees must appear at least 15 calendar
days before the charter is filed, except that the Secretariat may
approve less than 15 calendar days when requested by the agency for
good cause. This requirement for advance notice does not apply to
advisory committee renewals, notices of which may be published
concurrently with the filing of the charter.
Sec. 102-3.70 What are the charter filing requirements?
No advisory committee may meet or take any action until a charter
has been filed by the Committee Management Officer (CMO) designated in
accordance with section 8(b) of the Act, or by another agency official
designated by the agency head.
(a) Requirement for discretionary advisory committees. To
establish, renew, or reestablish a discretionary advisory committee, a
charter must be filed with:
(1) The agency head;
(2) The standing committees of the Senate and the House of
Representatives having legislative jurisdiction of the agency, the date
of filing with which constitutes the official date of establishment for
the advisory committee;
(3) The Library of Congress, Anglo-American Acquisitions Division,
Government Documents Section, Federal Advisory Committee Desk, 101
Independence Avenue, SE., Washington, DC 20540-4172; and
(4) The Secretariat, indicating the date the charter was filed in
accordance with paragraph (a)(2) of this section.
(b) Requirement for non-discretionary advisory committees. Charter
filing requirements for non-discretionary advisory committees are the
same as those in paragraph (a) of this section, except the date of
establishment for a Presidential advisory committee is the date the
charter is filed with the Secretariat.
(c) Requirement for subcommittees that report directly to the
Government. Subcommittees that report directly to a Federal officer or
agency must comply with this subpart and include in a charter the
information required by Sec. 102-3.75.
Sec. 102-3.75 What information must be included in the charter of an
advisory committee?
(a) Purpose and contents of an advisory committee charter. An
advisory committee charter is intended to provide a description of an
advisory committee's mission, goals, and objectives. It also provides a
basis for evaluating an advisory committee's progress and
effectiveness. The charter must contain the following information:
(1) The advisory committee's official designation;
(2) The objectives and the scope of the advisory committee's
activity;
(3) The period of time necessary to carry out the advisory
committee's purpose(s);
(4) The agency or Federal officer to whom the advisory committee
reports;
(5) The agency responsible for providing the necessary support to
the advisory committee;
(6) A description of the duties for which the advisory committee is
responsible and specification of the authority for any non-advisory
functions;
(7) The estimated annual costs to operate the advisory committee in
dollars and person years;
(8) The estimated number and frequency of the advisory committee's
meetings;
(9) The planned termination date, if less than two years from the
date of establishment of the advisory committee;
(10) The name of the President's delegate, agency, or organization
responsible for fulfilling the reporting requirements of section 6(b)
of the Act, if appropriate; and
(11) The date the charter is filed in accordance with Sec. 102-
3.70.
(b) The provisions of paragraphs (a)(1) through (11) of this
section apply to all subcommittees that report directly to a Federal
officer or agency.
Sec. 102-3.80 How are minor charter amendments accomplished?
(a) Responsibility and limitation. The agency head is responsible
for amending the charter of an advisory committee. Amendments may be
either minor or major. The procedures for making changes and filing
amended charters will depend upon the authority basis for the advisory
committee. Amending any existing advisory committee charter does not
constitute renewal of the advisory committee under Sec. 102-3.60.
(b) Procedures for minor amendments. To make a minor amendment to
an advisory committee charter, such as changing the name of the
advisory committee or modifying the estimated number or frequency of
meetings, the following procedures must be followed:
(1) Non-discretionary advisory committees. The agency head must
ensure that any minor technical changes made to current charters are
consistent with the relevant authority. When the Congress by law, or
the President by Executive order, changes the authorizing language that
has been the basis for establishing an advisory committee, the agency
head or the chairperson of an independent Presidential advisory
committee must amend those sections of the current charter affected by
the new statute or Executive order, and file the amended charter as
specified in Sec. 102-3.70.
(2) Discretionary advisory committees. The charter of a
discretionary advisory committee may be amended when an agency head
determines that technical provisions of a filed charter are inaccurate,
or specific provisions have changed or become obsolete with the passing
of time, and that these amendments will not alter the advisory
committee's objectives and scope
[[Page 37740]]
substantially. The agency must amend the charter language as necessary
and file the amended charter as specified in Sec. 102-3.70.
Sec. 102-3.85 How are major charter amendments accomplished?
Procedures for making major amendments to advisory committee
charters, such as substantial changes in objectives and scope, duties,
and estimated costs, are the same as in Sec. 102-3.80, except that for
discretionary advisory committees an agency must:
(a) Consult with the Secretariat on the amended language, and
explain the purpose of the changes and why they are necessary; and
(b) File the amended charter as specified in Sec. 102-3.70.
Appendix A to Subpart B of Part 102-3--Key Points and Principles
This appendix provides additional guidance in the form of
answers to frequently asked questions and identifies key points and
principles that may be applied to situations not covered elsewhere
in this subpart. The guidance follows:
Appendix A to Subpart B
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Key points and principles Section(s) Question(s) Guidance
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. Agency heads must consult with the 102-3.60, 102-3.115......... 1. Can an agency head delegate to the A. Yes. Many administrative functions
Secretariat prior to establishing a Committee Management Officer (CMO) performed to implement the Act may
discretionary advisory committee. responsibility for consulting with the be delegated. However, those
Secretariat regarding the functions related to approving the
establishment, renewal, or final establishment, renewal, or
reestablishment of discretionary reestablishment of discretionary
advisory committees? advisory committees are reserved for
the agency head. Each agency CMO
should assure that their internal
processes for managing advisory
committees include appropriate
certifications by the agency head.
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II. Agency heads are responsible for 102-3.60(a), 102-3.105...... 1. Who retains final authority for A. Although agency heads retain final
complying with the Act, including establishing or renewing a authority for establishing or
determining which discretionary advisory discretionary advisory committee? renewing discretionary advisory
committees should be established and committees, these decisions should
renewed. be consistent with Sec. 102-
3.105(e) and reflect consultation
with the Secretariat under Sec. 102-
3.60(a).
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III. An advisory committee must be fairly 102-3.30(c), 102-3.60(b)(3). 1. What factors should be considered in A. The composition of an advisory
balanced in its membership in terms of achieving a ``balanced'' advisory committee's membership will depend
the points of view represented and the committee membership? upon several factors, including: (i)
functions to be performed. The advisory committee's mission;
(ii) The geographic, ethnic, social,
economic, or scientific impact of
the advisory committee's
recommendations; (iii) The types of
specific perspectives required, for
example, such as those of consumers,
technical experts, the public at-
large, academia, business, or other
sectors; (iv) The need to obtain
divergent points of view on the
issues before the advisory
committee; and (v) The relevance of
State, local, or tribal governments
to the development of the advisory
committee's recommendations.
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IV. Charters for advisory committees 102-3.70(b)................. 1. If an advisory committee's duration A. Yes. Section 14(b)(2) of the Act
required by statute must be filed every exceeds two years, must a charter be provides that: Any advisory
two years regardless of the duration filed with the Congress and GSA every committee established by an Act of
provided in the statute. two years? Congress shall file a charter upon
the expiration of each successive
two-year period following the date
of enactment of the Act establishing
such advisory committee.
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Subpart C--How Are Advisory Committees Managed?
Sec. 102-3.90 What does this subpart cover and how does it apply?
This subpart outlines specific responsibilities and functions to be
carried out by the General Services Administration (GSA), the agency
head, the Committee Management Officer (CMO), and the Designated
Federal Officer (DFO) under the Act.
Sec. 102-3.95 What principles apply to the management of advisory
committees?
Agencies are encouraged to apply the following principles to the
management of their advisory committees:
(a) Provide adequate support. Before establishing an advisory
committee, agencies should identify requirements and assure that
adequate resources are available to support anticipated activities.
Considerations related to support include office space, necessary
supplies and equipment, Federal staff support, and access to key
decisionmakers.
(b) Focus on mission. Advisory committee members and staff should
be fully aware of the advisory committee's mission, limitations, if
any, on its duties, and the agency's goals and objectives. In general,
the more specific an advisory committee's tasks and the more focused
its activities are, the higher the likelihood will be that the advisory
committee will fulfill its mission.
[[Page 37741]]
(c) Follow plans and procedures. Advisory committee members and
their agency sponsors should work together to assure that a plan and
necessary procedures covering implementation are in place to support an
advisory committee's mission. In particular, agencies should be clear
regarding what functions an advisory committee can perform legally and
those that it cannot perform.
(d) Practice openness. In addition to achieving the minimum
standards of public access established by the Act and this part,
agencies should seek to be as inclusive as possible. For example,
agencies may wish to explore the use of the Internet to post advisory
committee information and seek broader input from the public.
(e) Seek feedback. Agencies continually should seek feedback from
advisory committee members and the public regarding the effectiveness
of the advisory committee's activities. At regular intervals, agencies
should communicate to the members how their advice has affected agency
programs and decisionmaking.
Sec. 102-3.100 What are the responsibilities and functions of GSA?
(a) Under section 7 of the Act, the General Services Administration
(GSA) prepares regulations on Federal advisory committees to be
prescribed by the Administrator of General Services, issues other
administrative guidelines and management controls for advisory
committees, and assists other agencies in implementing and interpreting
the Act. Responsibility for these activities has been delegated by the
Administrator to the GSA Committee Management Secretariat.
(b) The Secretariat carries out its responsibilities by:
(1) Conducting an annual comprehensive review of Governmentwide
advisory committee accomplishments, costs, benefits, and other
indicators to measure performance;
(2) Developing and distributing Governmentwide training regarding
the Act and related statutes and principles;
(3) Supporting the Interagency Committee on Federal Advisory
Committee Management in its efforts to improve compliance with the Act;
(4) Designing and maintaining a Governmentwide shared Internet-
based system to facilitate collection and use of information required
by the Act;
(5) Identifying performance measures that may be used to evaluate
advisory committee accomplishments; and
(6) Providing recommendations for transmittal by the Administrator
to the Congress and the President regarding proposals to improve
accomplishment of the objectives of the Act.
Sec. 102-3.105 What are the responsibilities of an agency head?
The head of each agency that establishes or utilizes one or more
advisory committees must:
(a) Comply with the Act and this Federal Advisory Committee
Management part;
(b) Issue administrative guidelines and management controls that
apply to all of the agency's advisory committees subject to the Act;
(c) Designate a Committee Management Officer (CMO);
(d) Provide a written determination stating the reasons for closing
any advisory committee meeting to the public, in whole or in part, in
accordance with the exemption(s) of the Government in the Sunshine Act,
5 U.S.C. 552b(c), as the basis for closure;
(e) Review, at least annually, the need to continue each existing
advisory committee, consistent with the public interest and the purpose
or functions of each advisory committee;
(f) Determine that rates of compensation for members (if they are
paid for their services) and staff of, and experts and consultants to
advisory committees are justified and that levels of agency support are
adequate;
(g) Develop procedures to assure that the advice or recommendations
of advisory committees will not be inappropriately influenced by the
appointing authority or by any special interest, but will instead be
the result of the advisory committee's independent judgment;
(h) Assure that the interests and affiliations of advisory
committee members are reviewed for conformance with applicable conflict
of interest statutes, regulations issued by the U.S. Office of
Government Ethics (OGE) including any supplemental agency requirements,
and other Federal ethics rules;
(i) Designate a Designated Federal Officer (DFO) for each advisory
committee and its subcommittees; and
(j) Provide the opportunity for reasonable participation by the
public in advisory committee activities, subject to Sec. 102-3.140 and
the agency's guidelines.
Sec. 102-3.110 What are the responsibilities of a chairperson of an
independent Presidential advisory committee?
The chairperson of an independent Presidential advisory committee
must:
(a) Comply with the Act and this Federal Advisory Committee
Management part;
(b) Consult with the Secretariat concerning the designation of a
Committee Management Officer (CMO) and Designated Federal Officer
(DFO); and
(c) Consult with the Secretariat in advance regarding any proposal
to close any meeting in whole or in part.
Sec. 102-3.115 What are the responsibilities and functions of an
agency Committee Management Officer (CMO)?
In addition to implementing the provisions of section 8(b) of the
Act, the CMO will carry out all responsibilities delegated by the
agency head. The CMO also should ensure that sections 10(b), 12(a), and
13 of the Act are implemented by the agency to provide for appropriate
recordkeeping. Records to be kept by the CMO include, but are not
limited to:
(a) Charter and membership documentation. A set of filed charters
for each advisory committee and membership lists for each advisory
committee and subcommittee;
(b) Annual comprehensive review. Copies of the information provided
as the agency's portion of the annual comprehensive review of Federal
advisory committees, prepared according to Sec. 102-3.175(b);
(c) Agency guidelines. Agency guidelines maintained and updated on
committee management operations and procedures; and
(d) Closed meeting determinations. Agency determinations to close
or partially close advisory committee meetings required by Sec. 102-
3.105.
Sec. 102-3.120 What are the responsibilities and functions of a
Designated Federal Officer (DFO)?
The agency head or, in the case of an independent Presidential
advisory committee, the Secretariat, must designate a Federal officer
or employee who must be either full-time or permanent part-time, to be
the DFO for each advisory committee and its subcommittees, who must:
(a) Approve or call the meeting of the advisory committee or
subcommittee;
(b) Approve the agenda, except that this requirement does not apply
to a Presidential advisory committee;
(c) Attend the meetings;
(d) Adjourn any meeting when he or she determines it to be in the
public interest; and
(e) Chair the meeting when so directed by the agency head.
Sec. 102-3.125 How should agencies consider the roles of advisory
committee members and staff?
FACA does not assign any specific responsibilities to members of
advisory
[[Page 37742]]
committees and staff, although both perform critical roles in achieving
the goals and objectives assigned to advisory committees. Agency heads,
Committee Management Officers (CMOs), and Designated Federal Officers
(DFOs) should consider the distinctions between these roles and how
they relate to each other in the development of agency guidelines
implementing the Act and this Federal Advisory Committee Management
part. In general, these guidelines should reflect:
(a) Clear operating procedures. Clear operating procedures should
provide for the conduct of advisory committee meetings and other
activities, and specify the relationship among the advisory committee
members, the DFO, and advisory committee or agency staff;
(b) Agency operating policies. In addition to compliance with the
Act, advisory committee members and staff may be required to adhere to
additional agency operating policies; and
(c) Other applicable statutes. Other agency-specific statutes and
regulations may affect the agency's advisory committees directly or
indirectly. Agencies should ensure that advisory committee members and
staff understand these requirements.
Sec. 102-3.130 What policies apply to the appointment, and
compensation or reimbursement of advisory committee members, staff, and
experts and consultants?
In developing guidelines to implement the Act and this Federal
Advisory Committee Management part at the agency level, agency heads
must address the following issues concerning advisory committee member
and staff appointments, and considerations with respect to uniform fair
rates of compensation for comparable services, or expense reimbursement
of members, staff, and experts and consultants:
(a) Appointment and terms of advisory committee members. Unless
otherwise provided by statute, Presidential directive, or other
establishment authority, advisory committee members serve at the
pleasure of the appointing or inviting authority. Membership terms are
at the sole discretion of the appointing or inviting authority.
(b) Compensation guidelines. Each agency head must establish
uniform compensation guidelines for members and staff of, and experts
and consultants to an advisory committee.
(c) Compensation of advisory committee members not required.
Nothing in this subpart requires an agency head to provide compensation
to any member of an advisory committee, unless otherwise required by a
specific statute.
(d) Compensation of advisory committee members. When an agency has
authority to set pay administratively for advisory committee members,
it may establish appropriate rates of pay (including any applicable
locality pay authorized by the President's Pay Agent under 5 U.S.C.
5304(h)), not to exceed the rate for level IV of the Executive Schedule
under 5 U.S.C. 5315, unless a higher rate expressly is allowed by
another statute. However, the agency head personally must authorize a
rate of basic pay in excess of the maximum rate of basic pay
established for the General Schedule under 5 U.S.C. 5332, or
alternative similar agency compensation system. This maximum rate
includes any applicable locality payment under 5 U.S.C. 5304. The
agency may pay advisory committee members on either an hourly or a
daily rate basis. The agency may not provide additional compensation in
any form, such as bonuses or premium pay.
(e) Compensation of staff. When an agency has authority to set pay
administratively for advisory committee staff, it may establish
appropriate rates of pay (including any applicable locality pay
authorized by the President's Pay Agent under 5 U.S.C. 5304(h)), not to
exceed the rate for level IV of the Executive Schedule under 5 U.S.C.
5315, unless a higher rate expressly is allowed by another statute.
However, the agency head personally must authorize a rate of basic pay
in excess of the maximum rate of basic pay established for the General
Schedule under 5 U.S.C. 5332, or alternative similar agency
compensation system. This maximum rate includes any applicable locality
payment under 5 U.S.C. 5304. The agency must pay advisory committee
staff on an hourly rate basis. The agency may provide additional
compensation, such as bonuses or premium pay, so long as aggregate
compensation paid in a calendar year does not exceed the rate for level
IV of the Executive Schedule, with appropriate proration for a partial
calendar year.
(f) Other compensation considerations. In establishing rates of pay
for advisory committee members and staff, the agency must comply with
any applicable statutes, Executive orders, regulations, or
administrative guidelines. In determining an appropriate rate of basic
pay for advisory committee members and staff, an agency must give
consideration to the significance, scope, and technical complexity of
the matters with which the advisory committee is concerned, and the
qualifications required for the work involved. The agency also should
take into account the rates of pay applicable to Federal employees who
have duties that are similar in terms of difficulty and responsibility.
An agency may establish rates of pay for advisory committee staff based
on the pay these persons would receive if they were covered by the
General Schedule in 5 U.S.C. Chapter 51 and Chapter 53, subchapter III,
or by an alternative similar agency compensation system.
(g) Compensation of experts and consultants. Whether or not an
agency has other authority to appoint and compensate advisory committee
members or staff, it also may employ experts and consultants under 5
U.S.C. 3109 to perform work for an advisory committee. Compensation of
experts and consultants may not exceed the maximum rate of basic pay
established for the General Schedule under 5 U.S.C. 5332 (that is, the
GS-15, step 10 rate, excluding locality pay or any other supplement),
unless a higher rate expressly is allowed by another statute. The
appointment and compensation of experts and consultants by an agency
must be in conformance with applicable regulations issued by the U. S.
Office of Personnel Management (OPM) (See 5 CFR part 304.).
(h) Federal employees assigned to an advisory committee. Any
advisory committee member or staff person who is a Federal employee
when assigned duties to an advisory committee remains covered during
the assignment by the compensation system that currently applies to
that employee, unless that person's current Federal appointment is
terminated. Any staff person who is a Federal employee must serve with
the knowledge of the Designated Federal Officer (DFO) for the advisory
committee to which that person is assigned duties, and the approval of
the employee's direct supervisor.
(i) Other appointment considerations. An individual who is
appointed as an advisory committee member or staff person immediately
following termination of another Federal appointment with a full-time
work schedule may receive compensation at the rate applicable to the
former appointment, if otherwise allowed by applicable law (without
regard to the limitations on pay established in paragraphs (d) and (e)
of this section). Any advisory committee staff person who is not a
current Federal employee serving under an assignment must be appointed
in accordance with applicable agency procedures, and in consultation
with the DFO and the
[[Page 37743]]
members of the advisory committee involved.
(j) Gratuitous services. In the absence of any special limitations
applicable to a specific agency, nothing in this subpart prevents an
agency from accepting the gratuitous services of an advisory committee
member or staff person who is not a Federal employee, or expert or
consultant, who agrees in advance and in writing to serve without
compensation.
(k) Travel expenses. Advisory committee members and staff, while
engaged in the performance of their duties away from their homes or
regular places of business, may be allowed reimbursement for travel
expenses, including per diem in lieu of subsistence, as authorized by 5
U.S.C. 5703, for persons employed intermittently in the Government
service.
(l) Services for advisory committee members with disabilities.
While performing advisory committee duties, an advisory committee
member with disabilities may be provided services by a personal
assistant for employees with disabilities, if the member qualifies as
an individual with disabilities as provided in section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, and does not
otherwise qualify for assistance under 5 U.S.C. 3102 by reason of being
a Federal employee.
Appendix A to Subpart C of Part 102-3--Key Points and Principles
This appendix provides additional guidance in the form of
answers to frequently asked questions and identifies key points and
principles that may be applied to situations not covered elsewhere
in this subpart. The guidance follows:
Appendix A to Subpart C
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Key points and principles Section Question(s) Guidance
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I. FACA does not specify the 102-3.105, 102-3.130(a)..................... 1. Does the appointment of an A. No. Each agency head may
manner in which advisory advisory committee member specify those policies and
committee members and staff necessarily result in a lengthy procedures, consistent with the
must be appointed. process? Act and this part, or other
specific authorizing statute,
governing the appointment of
advisory committee members and
staff.
B. Some factors that affect how
long the appointment process
takes include: (i) Solicitation
of nominations; (ii) Conflict of
interest clearances; (iii)
Security or background
evaluations; (iv) Availability
of candidates; and (v) Other
statutory or administrative
requirements.
C. In addition, the extent to
which agency heads have
delegated responsibility for
selecting members varies from
agency to agency and may become
an important factor in the time
it takes to finalize the
advisory committee's membership.
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II. Agency heads retain the 102-3.130(a)................................ 1. Can an agency head select for A. The answer to question 1 is
final authority for selecting membership on an advisory committee yes. Organizations may propose
advisory committee members, from among nominations submitted by for membership individuals to
unless otherwise provided for an organization? represent them on an advisory
by a specific statute or committee. However, the agency
Presidential directive. head establishing the advisory
committee, or other appointing
authority, retains the final
authority for selecting all
members.
2. If so, can different persons B. The answer to question 2 also
represent the organization at is yes. Alternates may represent
different meetings? an appointed member with the
approval of the establishing
agency, where the agency head is
the appointing authority.
III. An agency may compensate 102-3.130(d), 102-3.130(e), 102-3.130(g).... 1. May members and staff be A. The answer to question 1 is
advisory committee members and compensated for their service or yes. (i) However, FACA limits
staff, and also employ experts duties on an advisory committee? compensation for advisory
and consultants. 2. Are the guidelines the same for committee members and staff to
compensating both members and staff? the rate for level IV of the
3. May experts and consultants be Executive Schedule, unless
employed to perform other advisory higher rates expressly are
committee work? allowed by other statutes. (ii)
Although FACA provides for
compensation guidelines, the Act
does not require an agency to
compensate its advisory
committee members.
[[Page 37744]]
B. The answer to question 2 is
no. The guidelines for
compensating members and staff
are similar, but not identical.
For example, the differences are
that: (i) An agency ``may'' pay
members on either an hourly or a
daily rate basis, and ``may
not'' provide additional
compensation in any form, such
as bonuses or premium pay; while
(ii) An agency ``must'' pay
staff on an hourly rate basis
only, and ``may'' provide
additional compensation, so long
as aggregate compensation paid
in a calendar year does not
exceed the rate for level IV of
the Executive Schedule, with
appropriate proration for a
partial calendar year.
C. The answer to question 3 is
yes. Other work not part of the
duties of advisory committee
members or staff may be
performed by experts and
consultants. For additional
guidance on the employment of
experts and consultants,
agencies should consult the
applicable regulations issued by
the U. S. Office of Personnel
Management (OPM). (See 5 CFR
part 304.)
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IV. Agency heads are responsible 102-3.105(h)................................ 1. Are all advisory committee members A. The answer to question 1 is
for ensuring that the interests subject to conflict of interest no. Whether an advisory
and affiliations of advisory statutes and other Federal ethics committee member is subject to
committee members are reviewed rules? Federal ethics rules is
for conformance with applicable 2. Who should be consulted for dependent on the member's
conflict of interest statutes guidance on the proper application status. The determination of a
and other Federal ethics rules.. of Federal ethics rules to advisory member's status on an advisory
committee members? committee is largely a personnel
classification matter for the
appointing agency. Most advisory
committee members will serve
either as a ``representative''
or a ``special Government
employee'' (SGE), based on the
role the member will play. In
general, SGEs are covered by
regulations issued by the U. S.
Office of Government Ethics
(OGE) and certain conflict of
interest statutes,while
representatives are not subject
to these ethics requirements.
B. The answer to question 2 is
the agency's Designated Agency
Ethics Official (DAEO), who
should be consulted prior to
appointing members to an
advisory committee in order to
apply Federal ethics rules
properly.
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V. An agency head may delegate 102-3.105(c), 102-3.105(i).................. 1. Must an agency's CMO and each A. The answer to question 1 is
responsibility for appointing a advisory committee DFO be appointed no. The agency head may delegate
Committee Management Officer by the agency head? responsibility for appointing
(CMO) or Designated Federal the CMO and DFOs. However, these
Officer (DFO); however, there appointments, including
may be only one CMO for each alternate selections, should be
agency.. documented consistent with the
agency's policies and
procedures.
[[Page 37745]]
2. May an agency have more than one B. The answer to question 2 also
CMO? is no. The functions of the CMO
are specified in the Act and
include oversight responsibility
for all advisory committees
within the agency. Accordingly,
only one CMO may be appointed to
perform these functions. The
agency may, however, create
additional positions, including
those in its subcomponents,
which are subordinate to the
CMO's agencywide
responsibilities and functions.
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VI. FACA is the principal 102-3.125(c)................................ 1. Do other statutes or regulations A. Yes. While the Act provides a
statute pertaining to advisory affect the way an agency carries out general framework for managing
committees. However, other its advisory committee management advisory committees
statutes may impact their use program? Governmentwide, other factors
and operations.. may affect how advisory
committees are managed. These
include: (i) The statutory or
Presidential authority used to
establish an advisory committee;
(ii) A statutory limitation
placed on an agency regarding
its annual expenditures for
advisory committees; (iii)
Presidential or agency
management directives; (iv) The
applicability of conflict of
interest statutes and other
Federal ethics rules; (v) Agency
regulations affecting advisory
committees; and (vi) Other
requirements imposed by statute
or regulation on an agency or
its programs, such as those
governing the employment of
experts and consultants or the
management of Federal records.
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Subpart D--Advisory Committee Meeting and Recordkeeping Procedures
Sec. 102-3.135 What does this subpart cover and how does it apply?
This subpart establishes policies and procedures relating to
meetings and other activities undertaken by advisory committees and
their subcommittees. This subpart also outlines what records must be
kept by Federal agencies and what other documentation, including
advisory committee minutes and reports, must be prepared and made
available to the public.
Sec. 102-3.140 What policies apply to advisory committee meetings?
The agency head, or the chairperson of an independent Presidential
advisory committee, must ensure that:
(a) Each advisory committee meeting is held at a reasonable time
and in a manner or place reasonably accessible to the public, to
include facilities that are readily accessible to and usable by persons
with disabilities, consistent with the goals of section 504 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. 794;
(b) The meeting room or other forum selected is sufficient to
accommodate advisory committee members, advisory committee or agency
staff, and a reasonable number of interested members of the public;
(c) Any member of the public is permitted to file a written
statement with the advisory committee;
(d) Any member of the public may speak to or otherwise address the
advisory committee if the agency's guidelines so permit; and
(e) Any advisory committee meeting conducted in whole or part by a
teleconference, videoconference, the Internet, or other electronic
medium meets the requirements of this subpart.
Sec. 102-3.145 What policies apply to subcommittee meetings?
If a subcommittee makes recommendations directly to a Federal
officer or agency, or if its recommendations will be adopted by the
parent advisory committee without further deliberations by the parent
advisory committee, then the subcommittee's meetings must be conducted
in accordance with all openness requirements of this subpart.
Sec. 102-3.150 How are advisory committee meetings announced to the
public?
(a) A notice in the Federal Register must be published at least 15
calendar days prior to an advisory committee meeting, which includes:
(1) The name of the advisory committee (or subcommittee, if
applicable);
(2) The time, date, place, and purpose of the meeting;
(3) A summary of the agenda, and/or topics to be discussed;
(4) A statement whether all or part of the meeting is open to the
public or closed; if the meeting is closed state the reasons why,
citing the specific exemption(s) of the Government in the Sunshine Act,
5 U.S.C. 552b(c), as the basis for closure; and
(5) The name and telephone number of the Designated Federal Officer
(DFO) or other responsible agency official who may be contacted for
additional information concerning the meeting.
(b) In exceptional circumstances, the agency or an independent
Presidential advisory committee may give less than 15 calendar days
notice, provided that the reasons for doing so are included in the
advisory committee meeting notice published in the Federal Register.
Sec. 102-3.155 How are advisory committee meetings closed to the
public?
To close all or part of an advisory committee meeting, the
Designated Federal Officer (DFO) must:
(a) Obtain prior approval. Submit a request to the agency head, or
in the case of an independent Presidential
[[Page 37746]]
advisory committee, the Secretariat, citing the specific exemption(s)
of the Government in the Sunshine Act, 5 U.S.C. 552b(c), that justify
the closure. The request must provide the agency head or the
Secretariat sufficient time (generally, 30 calendar days) to review the
matter in order to make a determination before publication of the
meeting notice required by Sec. 102-3.150.
(b) Seek General Counsel review. The General Counsel of the agency
or, in the case of an independent Presidential advisory committee, the
General Counsel of GSA should review all requests to close meetings.
(c) Obtain agency determination. If the agency head, or in the case
of an independent Presidential advisory committee, the Secretariat,
finds that the request is consistent with the provisions in the
Government in the Sunshine Act and FACA, the appropriate agency
official must issue a determination that all or part of the meeting be
closed.
(d) Assure public access to determination. The agency head or the
chairperson of an independent Presidential advisory committee must make
a copy of the determination available to the public upon request.
Sec. 102-3.160 What activities of an advisory committee are not
subject to the notice and open meeting requirements of the Act?
The following activities of an advisory committee are excluded from
the procedural requirements contained in this subpart:
(a) Preparatory work. Meetings of two or more advisory committee or
subcommittee members convened solely to gather information, conduct
research, or analyze relevant issues and facts in preparation for a
meeting of the advisory committee, or to draft position papers for
deliberation by the advisory committee; and
(b) Administrative work. Meetings of two or more advisory committee
or subcommittee members convened solely to discuss administrative
matters of the advisory committee or to receive administrative
information from a Federal officer or agency.
Sec. 102-3.165 How are advisory committee meetings documented?
(a) The agency head or, in the case of an independent Presidential
advisory committee, the chairperson must ensure that detailed minutes
of each advisory committee meeting, including one that is closed or
partially closed to the public, are kept. The chairperson of each
advisory committee must certify the accuracy of all minutes of advisory
committee meetings.
(b) The minutes must include:
(1) The time, date, and place of the advisory committee meeting;
(2) A list of the persons who were present at the meeting,
including advisory committee members and staff, agency employees, and
members of the public who presented oral or written statements;
(3) An accurate description of each matter discussed and the
resolution, if any, made by the advisory committee regarding such
matter; and
(4) Copies of each report or other document received, issued, or
approved by the advisory committee at the meeting.
(c) The Designated Federal Officer (DFO) must ensure that minutes
are certified within 90 calendar days of the meeting to which they
relate.
Sec. 102-3.170 How does an interested party obtain access to advisory
committee records?
Timely access to advisory committee records is an important element
of the public access requirements of the Act. Section 10(b) of the Act
provides for the contemporaneous availability of advisory committee
records that, when taken in conjunction with the ability to attend
committee meetings, provide a meaningful opportunity to comprehend
fully the work undertaken by the advisory committee. Although advisory
committee records may be withheld under the provisions of the Freedom
of Information Act (FOIA), as amended, if there is a reasonable
expectation that the records sought fall within the exemptions
contained in section 552(b) of FOIA, agencies may not require members
of the public or other interested parties to file requests for non-
exempt advisory committee records under the request and review process
established by section 552(a)(3) of FOIA.
Sec. 102-3.175 What are the reporting and recordkeeping requirements
for an advisory committee?
(a) Presidential advisory committee follow-up report. Within one
year after a Presidential advisory committee has submitted a public
report to the President, a follow-up report required by section 6(b) of
the Act must be prepared and transmitted to the Congress detailing the
disposition of the advisory committee's recommendations. The
Secretariat shall assure that these reports are prepared and
transmitted to the Congress as directed by the President, either by the
President's delegate, by the agency responsible for providing support
to a Presidential advisory committee, or by the responsible agency or
organization designated in the charter of the Presidential advisory
committee pursuant to Sec. 102-3.75(a)(10). In performing this
function, GSA may solicit the assistance of the President's delegate,
the Office of Management and Budget (OMB), or the responsible agency
Committee Management Officer (CMO), as appropriate. Reports shall be
consistent with specific guidance provided periodically by the
Secretariat.
(b) Annual comprehensive review of Federal advisory committees. To
conduct an annual comprehensive review of each advisory committee as
specified in section 7(b) of the Act, GSA requires Federal agencies to
report information on each advisory committee for which a charter has
been filed in accordance with Sec. 102-3.70, and which is in existence
during any part of a Federal fiscal year. Committee Management Officers
(CMOs), Designated Federal Officers (DFOs), and other responsible
agency officials will provide this information by data filed
electronically with GSA on a fiscal year basis, using a Governmentwide
shared Internet-based system that GSA maintains. This information shall
be consistent with specific guidance provided periodically by the
Secretariat. The preparation of these electronic submissions by
agencies has been assigned interagency report control number (IRCN)
0304-GSA-AN.
(c) Annual report of closed or partially-closed meetings. In
accordance with section 10(d) of the Act, advisory committees holding
closed or partially-closed meetings must issue reports at least
annually, setting forth a summary of activities and such related
matters as would be informative to the public consistent with the
policy of 5 U.S.C. 552(b).
(d) Advisory committee reports. Subject to 5 U.S.C. 552, 8 copies
of each report made by an advisory committee, including any report of
closed or partially-closed meetings as specified in paragraph (c) of
this section and, where appropriate, background papers prepared by
experts or consultants, must be filed with the Library of Congress as
required by section 13 of the Act for public inspection and use at the
location specified Sec. 102-3.70(a)(3).
(e) Advisory committee records. Official records generated by or
for an advisory committee must be retained for the duration of the
advisory committee. Upon termination of the advisory committee, the
records must be processed in accordance with the Federal Records Act
(FRA), 44 U.S.C. Chapters 21, 29-33, and regulations issued by the
National Archives and Records Administration (NARA) (see 36 CFR parts
1220, 1222, 1228, and 1234),
[[Page 37747]]
or in accordance with the Presidential Records Act (PRA), 44 U.S.C.
Chapter 22.
Appendix A to Subpart D of Part 102-3--Key Points and Principles
This appendix provides additional guidance in the form of
answers to frequently asked questions and identifies key points and
principles that may be applied to situations not covered elsewhere
in this subpart. The guidance follows:
Appendix A to Subpart D
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Key points and principles Section(s) Question(s) Guidance
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I. With some exceptions, 102-3.140, 102-3.145(a), 102-3.155.......... 1. Must all advisory committee and A. No. Advisory committee
advisory committee meetings are subcommittee meetings be open to the meetings may be closed when
open to the public. public? appropriate, in accordance with
the exemption(s) for closure
contained in the Government in
the Sunshine Act, 5 U.S.C.
552b(c). (i) Subcommittees that
report to a parent advisory
committee, and not directly to a
Federal officer or agency, are
not required to open their
meetings to the public or comply
with the procedures in the Act
for announcing meetings. (ii)
However, agencies are cautioned
to avoid excluding the public
from attending any meeting where
a subcommittee develops advice
or recommendations that are not
expected to be reviewed and
considered by the parent
advisory committee before being
submitted to a Federal officer
or agency. These exclusions may
run counter to the provisions of
the Act requiring
contemporaneous access to the
advisory committee deliberative
process.
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II. Notices must be published in 102-3.150................................... 1. Can agencies publish a single A. Yes, agencies may publish a
the Federal Register announcing Federal Register notice announcing single notice announcing
advisory committee meetings. multiple advisory committee multiple meetings so long as
meetings? these notices contain all of the
information required by Sec.
102-3.150. (i) ``Blanket
notices'' should not announce
meetings so far in advance as to
prevent the public from
adequately being informed of an
advisory committee's schedule.
(ii) An agency's Office of
General Counsel should be
consulted where these notices
include meetings that are either
closed or partially closed to
the public.
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[[Page 37748]]
III. Although certain advisory 102-3.170................................... 1. May an agency require the use of A. No. Section 10(b) of FACA
committee records may be its internal FOIA procedures for provides that: Subject to
withheld under the Freedom of access to advisory committee records section 552 of title 5, United
Information Act (FOIA), as that are not exempt from release States Code, the records,
amended, 5 U.S.C. 552, agencies under FOIA? reports, transcripts, minutes,
may not require the use of FOIA appendixes, working papers,
procedures for records drafts, studies, agenda, or
available under section 10(b) other documents which were made
of FACA. available to or prepared for or
by each advisory committee shall
be available for public
inspection and copying at a
single location in the offices
of the advisory committee or the
agency to which the advisory
committee reports until the
advisory committee ceases to
exist. (i) The purpose of
section 10(b) of the Act is to
provide for the contemporaneous
availability of advisory
committee records that, when
taken in conjunction with the
ability to attend advisory
committee meetings, provide a
meaningful opportunity to
comprehend fully the work
undertaken by the advisory
committee. (ii) Although
advisory committee records may
be withheld under the provisions
of FOIA if there is a reasonable
expectation that the records
sought fall within the
exemptions contained in section
552(b) of FOIA, agencies may not
require members of the public or
other interested parties to file
requests for non-exempt advisory
committee records under the
request and review process
established by section 552(a)(3)
of FOIA. (iii) Records covered
by the exemptions set forth in
section 552(b) of FOIA may be
withheld. An opinion of the
Office of Legal Counsel (OLC),
U.S. Department of Justice
concludes that: FACA requires
disclosure of written advisory
committee documents, including
predecisional materials such as
drafts, working papers, and
studies. The disclosure
exemption available to agencies
under exemption 5 of FOIA for
predecisional documents and
other privileged materials is
narrowly limited in the context
of FACA to privileged ``inter-
agency or intra-agency''
documents prepared by an agency
and transmitted to an advisory
committee. The language of the
FACA statute and its legislative
history support this restrictive
application of exemption 5 to
requests for public access to
advisory committee documents.
Moreover, since an advisory
committee is not itself an
agency, this construction is
supported by the express
language of exemption 5 which
applies only to inter-agency or
intra-agency materials. (iv)
Agencies first should determine,
however, whether or not records
being sought by the public fall
within the scope of FACA in
general, and section 10(b) of
the Act in particular, prior to
applying the available
exemptions under FOIA. (See OLC
Opinion 12 Op. O.L.C. 73, dated
April 29, 1988, which is
available from the Committee
Management Secretariat (MC),
General Services Administration,
1800 F Street, NW., Washington,
DC 20405-0002.)
[[Page 37749]]
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IV. Advisory committee records 102-175(e).................................. 1. How must advisory committee A. In order to ensure proper
must be managed in accordance records be treated and preserved? records management, the
with the Federal Records Act Committee Management Officer
(FRA), 44 U.S.C. Chapters 21, (CMO), Designated Federal
29-33, and regulations issued Officer (DFO), or other
by the National Archives and representative of the advisory
Records Administration (NARA) committee, in coordination with
(see 36 CFR parts 1220, 1222, the agency's Records Management
1228, and 1234), or the Officer, should clarify upon the
Presidential Records Act (PRA), establishment of the advisory
44 U.S.C. Chapter 22. committee whether its records
will be managed in accordance
with the FRA or the PRA.
B. Official records generated by
or for an advisory committee
must be retained for the
duration of the advisory
committee. Responsible agency
officials are encouraged to
contact their agency's Records
Management Officer or NARA as
soon as possible after the
establishment of the advisory
committee to receive guidance on
how to establish effective
records management practices.
Upon termination of the advisory
committee, the records must be
processed in accordance with the
FRA and regulations issued by
NARA, or in accordance with the
PRA.
C. The CMO, DFO, or other
representative of an advisory
committee governed by the FRA,
in coordination with the
agency's Records Management
Officer, must contact NARA in
sufficient time to review the
process for submitting any
necessary disposition schedules
of the advisory committee's
records upon termination. In
order to ensure the proper
disposition of the advisory
committee's records, disposition
schedules need to be submitted
to NARA no later than 6 months
before the termination of the
advisory committee.
D. For Presidential advisory
committees governed by the PRA,
the CMO, DFO, or other
representative of the advisory
committee should consult with
the White House Counsel on the
preservation of any records
subject to the PRA, and may also
confer with NARA officials.
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Subpart E--How Does This Subpart Apply to Advice or Recommendations
Provided to Agencies by the National Academy of Sciences or the
National Academy of Public Administration?
Sec. 102-3.180 What does this subpart cover and how does it apply?
This subpart provides guidance to agencies on compliance with
section 15 of the Act. Section 15 establishes requirements that apply
only in connection with a funding or other written agreement involving
an agency's use of advice or recommendations provided to the agency by
the National Academy of Sciences (NAS) or the National Academy of
Public Administration (NAPA), if such advice or recommendations were
developed by use of a committee created by either academy. For purposes
of this subpart, NAS also includes the National Academy of Engineering,
the Institute of Medicine, and the National Research Council. Except
with respect to NAS committees that were the subject of judicial
actions filed before December 17, 1997, no part of the Act other than
section 15 applies to any committee created by NAS or NAPA.
Sec. 102-3.185 What does this subpart require agencies to do?
(a) Section 15 requirements. An agency may not use any advice or
recommendation provided to an agency by the National Academy of
Sciences (NAS) or the National Academy of Public Administration (NAPA)
under an agreement between the agency and an academy, if such advice or
recommendation was developed by use of a committee created by either
academy, unless:
(1) The committee was not subject to any actual management or
control by an agency or officer of the Federal Government; and
(2) In the case of NAS, the academy certifies that it has complied
substantially with the requirements of section 15(b) of the Act; or
(3) In the case of NAPA, the academy certifies that it has complied
substantially with the requirements of sections 15(b) (1), (2), and (5)
of the Act.
(b) No agency management or control. Agencies must not manage or
control the specific procedures adopted by each academy to comply with
the requirements of section 15 of the Act that are applicable to that
academy. In addition, however, any committee created and used by an
academy in the development of any advice or recommendation to be
provided by the
[[Page 37750]]
academy to an agency must be subject to both actual management and
control by that academy and not by the agency.
(c) Funding agreements. Agencies may enter into contracts, grants,
and cooperative agreements with NAS or NAPA that are consistent with
the requirements of this subpart to obtain advice or recommendations
from such academy. These funding agreements require, and agencies may
rely upon, a written certification by an authorized representative of
the academy provided to the agency upon delivery to the agency of each
report containing advice or recommendations required under the
agreement that:
(1) The academy has adopted policies and procedures that comply
with the applicable requirements of section 15 of the Act; and
(2) To the best of the authorized representative's knowledge and
belief, these policies and procedures substantially have been complied
with in performing the work required under the agreement.
Appendix A to Subpart E of Part 102-3--Key Points and Principles
This appendix provides additional guidance in the form of
answers to frequently asked questions and identifies key points and
principles that may be applied to situations not covered elsewhere
in this subpart. The guidance follows:
Appendix A to Subpart E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Key points and principles Section(s) Question(s) Guidance
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. Section 15 of the Act allows 102-3.185(a)................................ 1. May agencies rely upon an academy A. Yes. NAS and NAPA are
the National Academy of certification regarding compliance completely separate
Sciences (NAS) and the National with section 15 of the Act if organizations. Each is
Academy of Public different policies and procedures independently chartered by the
Administration (NAPA) to adopt are adopted by NAS and NAPA? Congress for different purposes,
separate procedures for and Congress has recognized that
complying with FACA. the two organizations are
structured and operate
differently. Agencies should
defer to the discretion of each
academy to adopt policies and
procedures that will enable it
to comply substantially with the
provisions of section 15 of the
Act that apply to that academy.
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II. Section 15 of the Act allows 102-3.185(c)................................ 1. Can an agency enter into a funding A. Yes, if the members of the
agencies to enter into funding agreement with an academy which committee are selected by the
agreements with NAS and NAPA provides for the preparation of one academy and if the committee's
without the academies' or more academy reports containing meetings, deliberations, and the
committees being ``managed'' or advice or recommendations to the preparation of reports are all
``controlled''. agency, to be developed by the controlled by the academy. Under
academy by use of a committee these circumstances, neither the
created by the academy, without existence of the funding
subjecting an academy to ``actual agreement nor the fact that it
management or control'' by the contemplates use by the academy
agency? of an academy committee would
constitute actual management or
control of the committee by the
agency.
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[FR Doc. 01-17350 Filed 7-18-01; 8:45 am]
BILLING CODE 6820-34-U