Federal Advisory Committee Management

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 will be added to the FPMR to direct

readers to the coverage in the FMR. The FMR coverage is written in

plain language and will provide agencies with updated regulatory

material that is easy to read and understand.

DATES: Comments on this proposed rule must be received by March 14,

2000.

ADDRESSES: General Services Administration, Office of Governmentwide

Policy, Committee Management Secretariat (MC), 1800 F Street NW (Room

G-230), Washington, DC 20405. Copies of all documents received are

available for public inspection at the same location.

In addition to providing written comments at the address listed

above, interested parties may file comments electronically at the

following Internet address: [email protected], or by facsimile to

(202) 273-3559.

FOR FURTHER INFORMATION CONTACT: Charles F. Howton, Deputy Director,

Committee Management Secretariat (202) 273-3561.

SUPPLEMENTARY INFORMATION:

Background

GSA's authority for administering the Federal Advisory Committee

Act as amended, (5 U.S.C. App. 2) also referred to as the ``Act'' or

``FACA'' 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, as amended, except

that the Annual Report to the Congress required by section 6(c) is

prepared by the Administrator for the President's consideration and

transmittal to the Congress. 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.

Why Is the Rule Being Revised?

GSA's regulations implementing the Act are being revised for the

following reasons:

Ten years have elapsed since the regulation was last updated.

Revisions are needed due to legislative changes, shifts in Federal

policy, and decisions issued by the Supreme Court and other Federal

Courts.

Growing reliance on public involvement in Federal decisionmaking

has surfaced the need to differentiate advisory committees covered by

FACA from alternate, but related sources of advice and recommendations.

There is also a need to promote Governmentwide consistency in applying

the Act within a variety of decisionmaking and public outreach

situations.

GSA has determined that there is a need to simplify the way it

works with Federal agencies to implement the Act. Consequently, the

rule is being revised, in part, to emphasize GSA's customer focus.

How Did GSA Determine What Changes to Make?

The Committee Management Secretariat conducted an internal

management review of the current regulation that resulted in a list of

recommended changes and a plan for revising the rule. Then, following

the plan, the Secretariat:

Published an Advance Notice of Proposed rulemaking (ANPRM) in the

Federal Register with a request for comments (62 FR 31550, June 10,

1997).

Conducted outreach to end-users of the regulation, including

notification of 4,000 Federal and state officials nationwide of its

plan to issue a new rule. Stakeholders contacted were asked at the

beginning to provide input into the rulemaking process. The Secretariat

also invited them to provide any information (such as case studies,

best practices, or articles) that would be useful in developing a

comprehensive regulation.

Requested comments from the Interagency Committee on Federal

Advisory Committee Management.

Established a Core Regulatory Revision Team of Secretariat staff

and FACA experts from the Departments of Agriculture, Defense, the

Interior, Justice, and Transportation; the Environmental Protection

Agency; and the National Science Foundation to analyze issues and

recommendations resulting from the comments and feedback from other

outreach efforts.

What Significant Revisions Are Being Made?

The proposed rule includes the following significant revisions:

The definition of an advisory committee that is ``utilized''

subject to FACA has been updated to reflect judicial opinions issued

since the rule was last revised. This revision emphasizes the degree to

which the Executive Branch exercises ``actual management and control''

over a group not directly established by an agency official. Factors

used in the current rule to determine whether a group is ``utilized,''

such as the desire for group consensus or the establishment of

``preferred sources of advice,'' have been de-emphasized. Instead, the

proposed rule applies an ``actual management and control'' test that is

consistent with current case law construing FACA's scope. (See

Washington Legal Found. v. United States Sentencing Commission, 17 F.

3d (D.C. Cir. 1994), Food Chemical News v. Young, (900 F. 2d 328 (D.C.

Cir.), cert. denied, 498 U.S. 846 (1990)).

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 102-3.35(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 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.

The process used by GSA to consult with agency heads regarding the

establishment, re-establishment, and renewal of advisory committees has

been revised to offer more options. These changes are intended to

eliminate the need for agencies to consult with GSA on a committee-by-

committee

[[Page 2505]]

basis; instead, a new annual planning and approval process will be

implemented. Accordingly, GSA and agency staffs will be able to devote

more time to reviewing the substantive activities of advisory

committees.

The provisions of amendments to FACA and other legislation enacted

since the current rule was last revised have been incorporated. These

changes include exclusions from the Act's coverage for elected

officials of state, local, and tribal governments, as well as for

committees created by the National Academy of Sciences (NAS) and the

National Academy of Public Administration (NAPA).

The format of the proposed rule reflects the use of ``plain

language'' concepts and includes ``key points and principles'' to

illustrate how the Act applies to given situations. In addition, GSA

reorganized the rule so the end-user could find needed information more

quickly.

To Whom Does This Regulation Apply?

This part solely applies to Departments and agencies within the

Executive Branch. It does not apply to committees that advise only the

Legislative and Judicial Branches of the U.S. Government, or state,

local or tribal governments.

Discussion of Comments

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 suggested issues to address, specific

recommendations about changes needed in the current part, examples of

situations where FACA was either a useful tool or a hindrance to public

involvement, and GSA's intent to include illustrative examples and

principles.

All comments received were considered in drafting this proposed

rule, which is intended to improve the management and operation of

Federal advisory committees in the Executive Branch.

Twenty-nine commenters submitted formal written comments. Other

commenters contacted GSA verbally to offer support for revising the

part and to state that they had no formal comments to make at that

time.

Most of the comments received related to four general

recommendations discussed below. Other comments are summarized by topic

in the table at the end of this section.

Provide Clear Explanations of FACA's Scope and Applicability

Several commenters noted that Federal agencies are increasingly

reliant on local communities, individual citizens, and interested

parties to obtain information, advice, and recommendations on which to

base decisions. They expressed concerns that: (a) Uncertainty about the

Act's scope creates a disincentive for Federal officials wishing to

engage in public outreach; (b) the Act's requirements are being

interpreted differently within and among agencies; and (c) GSA's

regulations do not adequately differentiate between those groups and

activities covered by FACA and others that are not.

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 without creating

a conflict with FACA. GSA believes this requirement to be particularly

important because advisory committees support Federal decisions in a

variety of situations. GSA concurs with the need for Federal agencies

to engage in continuous collaboration using diverse, but complimentary,

tools, techniques, and methods. Whether or not the selected approaches

include the use of advisory committees, the potential or perceived

applicability of FACA must not prevent collaboration from taking place.

Agencies are encouraged to contact GSA concerning not only the use of

advisory committees but of other alternative forms of public

involvement.

While FACA is not a public participation statute, it directly

affects how the Executive Branch is held accountable for the use and

management of advisory committees as a major means of obtaining public

involvement. GSA agrees that the proposed rule needs to provide clearer

guidance for comparing and reconciling the Act's requirements with

other Federal statutes that affect how and when the Government must

consult the public during the decisionmaking process. Accordingly, it

is especially important for the end-users of this rule to have access

to clear policies and principles that can be used to appropriately

employ advisory committees to satisfy public consultation requirements

mandated either generally or specifically by law.

Provide Additional Guidance Regarding What Advisory Committees and

Their Subcommittees Must Do to Comply With FACA

Suggestions received from both Federal and non-Federal commenters

reflected a need to define more specifically both the requirements of

FACA and the procedures contained in GSA's regulations that apply to

subcommittees of chartered advisory committees. Commenters expressed

concerns that chartered committees may in some instances merely

``rubber stamp'' recommendations produced by their subcommittees

without adequate public disclosure. Other commenters stressed the need

to provide flexibility to subcommittees whose recommendations are

subject to meaningful public disclosure through deliberations by the

parent committee.

Subcommittees perform essential tasks and are an efficient means

for accomplishing the work of chartered advisory committees. GSA agrees

that agencies should assure that subcommittees are appropriately

reporting to agency officials through their parent committees and that

there is reasonable opportunity for the public to have access to the

deliberative process. Accordingly, this proposed rule includes language

further clarifying the relationship between a parent committee and its

subcommittees.

The Format of GSA's Regulations Should be Improved to Better

Communicate FACA's Requirements

To communicate FACA's requirements more clearly, some commenters

requested that GSA's new part be written to include illustrative

examples of how FACA policies and guidelines should be applied. In

addition, several suggestions were made that GSA should use a ``plain

language'' approach in drafting the rule.

GSA's ANPRM noted that the rule's format would reflect ``plain

language'' principles and make use of more examples to demonstrate

important policies and principles. By adopting this approach, GSA seeks

to make it easier for users of the rule to apply FACA's requirements at

the many decisionmaking levels where advisory committees are used to

support public participation and consultation.

GSA Should Streamline Its Processes Related to the Establishment,

Renewal, Reestablishment, and Termination of Federal Advisory

Committees

Several Federal agency commenters suggested that GSA's new

regulations incorporate steps to streamline the

[[Page 2506]]

process of creating and managing advisory committees. In particular,

these commenters suggested that information collected by GSA as part of

its efforts to prepare the Annual Report of the President on Federal

Advisory Committees could eliminate GSA's need to collect what appeared

to be the same or similar information as part of the justification for

continuing advisory committees.

This proposed rule reflects GSA's efforts to reengineer its process

for consulting with Federal agencies on the establishment, renewal,

reestablishment, and termination of advisory committees. In addition,

the proposed rule provides agencies with more options regarding the way

they choose to interact with GSA on these issues.

Since this rule was last revised, many factors have influenced

GSA's business processes in this area. For example, there have been

several initiatives to reduce the number and costs of advisory

committees directly created by the Executive Branch. The current means

to accomplish these outcomes are based on Executive Order 12838 of

February 10, 1993, and its implementing policy document, OMB Circular

A-135 of October 5, 1994. These policies and practices are reflected in

the way this proposed rule governs committee life-cycle issues. Other

changes outlined in the proposed rule reflect GSA's desire to

streamline the processes associated with managing advisory committees

by leveraging advances in telecommunications and computer technologies,

including the Internet.

Miscellaneous Comments and Suggestions

In addition to the comments addressed in the four general

recommendations above, the following miscellaneous comments and

suggestions were received.

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Subject Comment/suggestion

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Definitions......................................... Clarify the definition of ``Agency'' to indicate how it

applies within the context of the Act.

----------------------------------------------------------------------------------------------------------------

Interpret the role of ``consensus'' in defining ``advisory

committee.''

----------------------------------------------------------------------------------------------------------------

Describe the characteristics of an ``operational

committee.''

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Revise the definition of ``utilize'' in light of

prevailing judicial opinions.

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Clarify FACA's applicability or non-applicability to

meetings between Federal officials and contractors or

licensees.

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Incorporate legislative changes including exclusions from

the Act's coverage under the Unfunded Mandates Reform Act

of 1995.

----------------------------------------------------------------------------------------------------------------

Committee Meetings.................................. Provide examples of non-deliberative committee activities

that are excluded from FACA's procedural requirements.

----------------------------------------------------------------------------------------------------------------

Outline what flexibility agencies have in providing notice

to the public regarding committee meetings, including

clarification on whether it is acceptable to run multiple

Federal Register notices for a committee's meeting

events.

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Committee Members................................... Explain whether an agency head can appoint members without

a lengthy process.

----------------------------------------------------------------------------------------------------------------

Describe the status of consultants as it relates to

committee roles and responsibilities.

----------------------------------------------------------------------------------------------------------------

Provide guidance regarding whether appointed members may

be offices or organizations (rather than individual

appointments) so that individual delegates would

participate at a given meeting.

----------------------------------------------------------------------------------------------------------------

Update the part's guidance regarding pay guidelines for

advisory committee members and staff.

----------------------------------------------------------------------------------------------------------------

Committee Records................................... Clarify how long an agency must keep committee files once

the committee has been terminated.

----------------------------------------------------------------------------------------------------------------

Identify the committee documents that need to be sent to

the Library of Congress.

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Executive Order 12866

GSA has determined that this proposed rule is not a significant

regulatory action for purposes of Executive Order 12866 of September

30, 1993.

Regulatory Flexibility Act

The proposed rule is not expected to have a significant economic

impact on a substantial number of small entities within the meaning of

the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.

Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed

rule does not impose recordkeeping or information collection

requirements, or the collection of information from offerors,

contractors, or members of the public which require the approval of the

Office of Management and Budget (OMB) under 44 U.S.C. 501, et seq.

Small Business Regulatory Enforcement Fairness Act

This proposed rule is considered a major rule under 5 U.S.C. 804.

List of Subjects in 41 CFR Parts 101-6 and 102-3

Advisory committees.

Dated: January 10, 2000.

G. Martin Wagner,

Associate Administrator for Governmentwide Policy.

For the reasons set forth in the preamble, it is proposed to amend

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:

[[Page 2507]]

Subpart 101-6.10--Federal Advisory Committee Management

Authority: 5 U.S.C. App.; 40 U.S.C. 486(c); Sec. 205(c), 63

Stat. 390; and EO 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 3 (41 CFR 102-3).

CHAPTER 102--[AMENDED]

2. Part 102-3 is added to subchapter A 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 What policies govern the use of Federal advisory

committees?

102-3.20 Who should use this part?

102-3.25 How does this part meet the needs of its audience?

102-3.30 What definitions apply to this part?

102-3.35 What types of advisory committees or groups are

specifically excluded from FACA and this part?

102-3.40 Key points and principles.

Subpart B--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?

102-3.45 What does this subpart cover and how does it apply?

102-3.50 What does this subpart require agencies to do?

102-3.55 Key points and principles.

Subpart C--How Are Advisory Committees Established, Reestablished,

Renewed, and Terminated?

102-3.60 What does this subpart cover and how does it apply?

102-3.65 Who can establish advisory committees?

102-3.70 What rules apply to the duration of an advisory committee?

102-3.75 What actions are required to establish, reestablish, or

renew an advisory committee?

102-3.80 What are the public notification requirements for

discretionary advisory committees?

102-3.85 What charter filing requirements must be addressed by

agencies?

102-3.90 What information must be included in a committee's

charter?

102-3.95 How are minor charter amendments accomplished?

102-3.100 How are major charter amendments accomplished?

102-3.105 Key points and principles.

Subpart D--How Are Advisory Committees Managed?

102-3.110 What does this subpart cover and how does it apply?

102-3.115 What oversight functions are assigned by FACA to the

Congress?

102-3.120 What responsibilities and functions are assigned by FACA

to GSA?

102-3.125 What roles and responsibilities for managing advisory

committees are assigned by FACA to agency heads?

102-3.130 What roles and responsibilities for managing advisory

committees are assigned by FACA to the Chairperson of an independent

presidential advisory committee?

102-3.135 What roles and responsibilities for managing advisory

committees are assigned by FACA to an agency Committee Management

Officer (CMO)?

102-3.140 What roles and responsibilities for managing advisory

committees are assigned by FACA to the Designated Federal Officer

(DFO)?

102-3.145 What is the role of committee members and staff?

102-3.150 What other policies or requirements must be addressed by

the agency head and included in the agency's guidelines implementing

the Act?

102-3.155 Key points and principles.

Subpart E--Advisory Committee Meeting and Recordkeeping Procedures

102-3.160 What does this subpart cover and how does it apply?

102-3.165 What basic policies apply to advisory committee meetings?

102-3.170 What basic policies apply to subcommittee meetings?

102-3.175 How are committee meetings announced to the public?

102-3.180 How are advisory committee meetings closed to the public?

102-3.185 What activities of an advisory committee are not subject

to the notice and open meeting requirements of the Act?

102-3.190 How are advisory committee meetings documented?

102-3.195 What reports must be prepared by an agency covering the

activities of each advisory committee it establishes or utilizes?

102-3.200 Key points and principles.

Authority: 5 U.S.C. App.; 40 U.S.C. 486(c); Sec. 205(c), 63

Stat. 390; and EO 12024, 3 CFR, 1977 Comp., p. 158.

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 Act to advisory committees they establish.

In addition to listing key definitions underlying the interpretation of

the Act, this subpart establishes the Act's scope and applicability and

outlines specific exclusions from its coverage.

Sec. 102-3.10 What is the purpose of the Federal Advisory Committee

Act?

The Federal Advisory Committee Act as amended (5 U.S.C. App. 2),

governs the establishment, operation, and termination of advisory

committees within the Executive Branch of the Federal Government. The

Federal Advisory Committee Act, also referred to as the ``Act'' or

``FACA'', defines what constitutes a Federal advisory committee and

provides general procedures for the Executive Branch to follow for the

operation of these 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 What policies govern the use of Federal advisory

committees?

The policy to be followed by Federal Departments, agencies, and

commissions, consistent with the Federal Advisory Committee Act, as

amended, is as follows:

(a) Determination of need in the public interest. An advisory

committee may be established only when it is essential to the conduct

of agency business. Decision criteria may include whether committee

deliberations will result in the creation or elimination of (or change

in) regulations, guidelines, or rules affecting agency business;

whether the information to be obtained is already available through

another advisory committee or source within the Federal Government;

whether the committee will make recommendations resulting in

significant improvements in service or reductions in cost; or whether

the committee's recommendations will provide an important additional

perspective or viewpoint affecting agency operations.

(b) Termination. An advisory committee must be terminated whenever

the stated objectives of the committee have been accomplished; the

subject matter or work of the committee has become obsolete by the

passing of time or the assumption of the committee's main functions by

another entity; or the agency determines that the cost of operation is

excessive in relation to the benefits accruing to the Federal

Government.

(c) Balanced membership. An advisory committee must be fairly

balanced in its membership in terms of

[[Page 2508]]

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 bases for closure in the

Government in the Sunshine Act, 5 U.S.C. 552b(c).

(e) Advisory functions only. The function of advisory committees is

advisory only, unless specifically authorized by law.

Sec. 102-3.20 Who should use this part?

The primary users of this 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 who have decided to

pursue, or who are already engaged in, a form of public involvement or

consultation and want to avoid inadvertently violating FACA; 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 interpret the

Act, or are seeking additional guidance.

Sec. 102-3.25 How does this part meet the needs of its audience?

This part meets the general and specific needs of its audience by

addressing the following issues and related topics:

(a) Policies and guidelines. This part defines the policies,

establishes minimum requirements, and provides guidance to agency

management for the establishment, operation, administration, and

duration of advisory committees subject to the Act, as amended. This

includes reporting standards 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 the agency and Governmentwide levels.

(b) Examples and principles. Each subpart of this part provides

summary-level key points and principles to 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.

(c) Scope and applicability. This subpart provides guidance on the

threshold issue of what constitutes an advisory committee. The Act's

broad definition of an ``advisory committee,'' as noted many times by

the judiciary, could be interpreted to extend the Act's coverage to any

gathering of two or more persons from whom the President or other

Federal official seeks advice and/or information. Accordingly, this

subpart clarifies the Act's limits for the benefit of those Federal

officials responsible for interacting with the public.

Sec. 102-3.30 What definitions apply to this part?

The following definitions apply to this 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 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 any agency official for the purpose of obtaining

advice or recommendations on issues or policies which are within the

scope of his or her official responsibilities.

Agency has the same meaning as in section 551(i) of Title 5 of the

United States Code.

Committee Management Secretariat (Secretariat), means the

organization established pursuant to the Act which is responsible for

all matters relating to advisory committees, and carries out the

Administrator's responsibilities under the Act and Executive Order

12024 (3 CFR, 1977 Comp., p. 158).

Committee meeting means any gathering of committee members or

subcommittee members (whether in person or through electronic means)

authorized by an agency for the purpose of deliberating on the

substantive matters upon which the committee provides advice and

recommendations.

Committee member means an individual who serves by appointment and/

or invitation on an advisory committee or subcommittee.

Committee staff means any Federal employee, private individual,

consultant, or other party (whether under contract or not) who serves

in a support capacity to an advisory committee or subcommittee.

Discretionary advisory committee means any advisory committee that

is established under an agency head's authority or authorized by law.

Advisory committees referenced by general (non-specific) authorizing

language or committee report language are discretionary.

Independent Presidential advisory committee means any Presidential

advisory committee not assigned by the President, or the President's

delegate, or by the Congress in law, to an agency for administrative

and other support.

Non-discretionary advisory committee means any advisory committee

either mandated by Presidential directive or by statute. A non-

discretionary advisory committee mandated by statute is:

(1) Specifically identified in statute by name, specific purpose or

functions; and

(2) A committee whose creation or termination is beyond an agency's

legal discretion.

Presidential advisory committee means any advisory committee

authorized by the President or the Congress which directly advises the

President.

Subcommittee means a group that reports to a chartered advisory

committee and not directly to the agency, whether or not its members

are drawn in whole or in part from the parent 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 agency exercises actual management and control over its

operation.

Sec. 102-3.35 What types of advisory committees or groups are

specifically excluded from FACA and this part?

The following are examples of advisory committees or groups that

are not covered by the Act or this part:

(a) Committees established by the National Academy of Sciences

(NAS) or the National Academy of Public Administration (NAPA). Any

committee created by NAS or NAPA;

(b) Committees exempted by statute. Any advisory committee

specifically exempted from the Act by law;

(c) 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 such committees

or groups are not actually managed or controlled by the Executive

Branch;

(d) Committees of the Central Intelligence Agency and the Federal

Reserve System. Any advisory committee established or utilized by the

[[Page 2509]]

Central Intelligence Agency or the Federal Reserve System;

(e) Groups assembled to provide individual advice. Any meeting

initiated by the President or Federal official(s) with more than one

individual to obtain the advice of individual attendees. However,

agencies should be aware that such a group would be covered by the Act

if it is utilized within the meaning of this part;

(f) Intergovernmental committees. Any committee composed wholly of

Federal officials 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 committee must be solely to exchange views, information, or

advice relating to the management or implementation of Federal programs

established pursuant to public law that explicitly or inherently share

intergovernmental responsibilities or administration. (See the Office

of Management and Budget's (OMB's) guidelines on section 204(b) of the

Unfunded Mandates Reform Act of 1995, 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);

(g) Intra-Governmental committees. Any committee composed wholly of

full-time or permanent part-time officers or employees of the Federal

Government;

(h) Local civic groups. Any local civic croup whose primary

function is that of rendering a public service with respect to a

Federal program, or any state or local committee, council, board,

commission, or similar group established to advise or make

recommendations to state or local officials or agencies;

(i) Meetings with an individual. Any meeting initiated by the

President or Federal official(s) for the purpose of obtaining advice

and/or recommendations from one individual;

(j) Meetings with non-utilized groups. Any meeting initiated by a

group that is not utilized by the executive branch with the President

or Federal official(s) to express the group's views; and

(k) Operational committees. Any committee established to perform

primarily operational as opposed to advisory functions. Operational

functions are those specifically authorized by law, such as making or

implementing Government decisions or policy. An operational committee

may be covered by the Act if it becomes primarily advisory in nature.

It is the responsibility of the administering agency to determine

whether such a committee is primarily operational. If so, it would not

fall under the requirements of the Act and this part.

Sec. 102-3.40 Key points and principles.

The following table provides additional guidance in the form of

answers to frequently asked questions and the identification of Key

Points and Principles that may be applied to situations not covered

elsewhere in this subpart:

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Key points and principles Section Question(s) Guidance

----------------------------------------------------------------------------------------------------------------

I. Definition of ``utilized''....... 102-3.30 1. Can an agency accept Yes, if the agency does not

advice and recommendations exercise ``actual

from external groups on a management and control''

one-time or regular basis over the group.

without violating FACA? A. Although there is no

2. Can an agency meet on a precise legal definition of

one-time or regular basis ``actual management and

with local citizen groups control,'' the following

seeking to provide advice factors may be used by an

and recommendations on agency in determining

environmental or other whether or not a group is

issues without violating utilized within the meaning

FACA? of the Act:

3. A local citizens group Does the agency

would like to meet with appoint the group's members

local Federal Officials to or otherwise determine its

help improve the condition composition?

of the forest's trails and Does the agency set

quality of concessions. May the group's agenda?

the Government meet with Does the agency

the group without a fund the group's

committee chartered under activities?

FACA? B. Answering ``yes'' to any

4. May an agency official or all of these questions

attend meetings of external does not automatically mean

groups where advice and the group is utilized

recommendations are offered within the meaning of the

to the Government during Act. However, an agency may

the course of discussions? need to reconsider the

status of the group under

FACA if the relationship in

question is essentially

indistinguishable from an

advisory committee

established by an agency.

----------------------------------------------------------------------------------------------------------------

II. Is the group ``utilized''?...... 102-3.30 1. If, during the course of No, such public activities

a public hearing, ``Town are often used by the

Meeting,'' or similar Government to obtain

event, advice and information from the public

recommendations are offered at-large. Since the

to a Federal official by Government does not

virtue of perceived group ``manage or control''

consensus or cohesion, must (utilize) the assembled

the meeting be adjourned group, FACA does not apply.

until the group is

chartered under FACA?

----------------------------------------------------------------------------------------------------------------

[[Page 2510]]

III. Definition of an ``advisory 102-3.30 1. If, during a public No, the public meeting need

committee''. meeting called by an not be stopped.

agency, it appears that the A. A group must either be

audience is achieving established or utilized by

consensus, must the meeting the Executive Branch, or,

be stopped? in the case of an advisory

2. Is the presence of committee mandated by

``consensus'' during a statute, have a substantive

meeting the most important reporting relationship to

factor in defining an the President or another

``advisory committee'' Federal official.

subject to FACA? B. Although all advisory

committees strive toward

achieving consensus on the

issues before them, this

goal is not always

attainable. In some cases,

it is known in advance that

consensus is not possible

given the subject matter

being addressed.

Accordingly, the desire to

achieve consensus, or its

development during public

meetings, does not have a

direct bearing upon the

applicability of the Act to

a given group.

----------------------------------------------------------------------------------------------------------------

IV. Exclusions from FACA's coverage. 102-3.35(f) 1. Is the exclusion from Yes. The scope of activities

FACA covering elected covered by the exclusion

officials of state, local, from FACA for

and tribal governments intergovernmental

acting in their official activities should be

capacities also applicable construed broadly to

to associations of state facilitate Federal-State

officials or similar discussions on

groups? intergovernmental

responsibilities or

administration.

A. Excluded activities

include those related to:

Seeking consensus.

Exchanging views,

information, advice, and/or

recommendations.

Facilitating any

other interaction relating

to intergovernmental

responsibilities or

administration.

B. Pursuant to a

Presidential delegation,

the Office of Management

and Budget issued

guidelines for this

exemption, found in section

204(b) of the Unfunded

Mandates Reform Act of

1995, 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.

----------------------------------------------------------------------------------------------------------------

V. Advisory committees established 102-3.15(e) 1. Are ``operational Only committees established

under FACA may perform advisory committees'' subject to or utilized by the

functions only. FACA? Executive Branch in the

2. What are the interest of obtaining

characteristics of an advice or recommendations

``operational committee''? are subject to FACA.

Agencies are responsible

for determining whether or

not a committee is

``operational'' and

therefore, not subject to

FACA.

A. Committees that are not

advisory in nature are not

subject to the Act.

However, without specific

authorization by the

Congress, Federal functions

(decisionmaking or

operations) cannot be

delegated to, or assumed

by, non-Federal individuals

or entities.

B. Non-advisory, or

``operational'' committees

have the following

characteristics:

Specific functions

and/or authorities provided

by the Congress by law.

An ability to make

and implement decisions.

A dedicated budget

and staff.

A legal,

authoritative relationship

with an agency.

A membership which

is appointed by the

President, the Congress and/

or an agency head.

----------------------------------------------------------------------------------------------------------------

[[Page 2511]]

VI. Definition of an ``advisory 102-3.30 1. Is FACA applicable to No. Agencies often meet with

committee.'' meetings between Federal contractors and licensees,

officials and contractors individually and as a

or licensees? 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 FACA.

----------------------------------------------------------------------------------------------------------------

VII. Definition of ``Agency''....... 102-3.30 1. What definition of ``Agency'' has the same

``Agency'' is used to meaning as in section

interpret FACA's 551(i) of Title 5 of the

application? United States Code.

----------------------------------------------------------------------------------------------------------------

Subpart B--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. 102-3.45 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

use by agencies 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 recommendation was

developed by use of a committee created by that academy. For purposes

of this section, 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. 102-3.50 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 NAS or NAPA under an

agreement between the agency and an academy if such advice or

recommendation was developed by use of a committee created by that

academy unless:

(1) The committee was not subject to any actual management or

control by an agency or an officer of the Federal Government; and

(2) In the case of the NAS, the academy certifies that it has

complied substantially with the requirements of subsection (b) of

section 15 of the Act; or

(3) In the case of the NAPA, the academy has certified that it has

substantially complied with the requirements of subsections (b)(1),

(2), and (5) of section 15 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, any committee created and used by an academy in

the development of any advice or recommendation to be provided by the

academy to an agency must be subject to 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 the NAS or NAPA that are consistent

with the requirements of this subpart to obtain advice or

recommendations from such academy. Such funding agreements must

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 have been substantially complied

with in performing the work required under the agreement.

Sec. 102-3.55 Key points and principles.

The following table provides additional guidance in the form of

answers to frequently asked questions and the identification of Key

Points and Principles that can be applied to questions and situations

not covered elsewhere in this subpart:

----------------------------------------------------------------------------------------------------------------

Key points and principles Section Question(s) Guidance

----------------------------------------------------------------------------------------------------------------

I. Section 15 of FACA provides that 102-3.50(a) 1. May agencies rely upon an Yes. NAS and NAPA are

NAS and NAPA may adopt separate academy certification completely separate

procedures for complying with the regarding compliance with organizations, each

Act. Section 15 of the Act if independently chartered by

different policies and the Congress for different

procedures are adopted by purposes, and Congress has

NAS and NAPA? recognized that 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 Section 15

provisions that apply to

that academy.

----------------------------------------------------------------------------------------------------------------

[[Page 2512]]

II. Section 15 of FACA provides that 102-3.50(c) 1. Can an agency enter into Yes, if the members of the

agencies may enter into funding a funding agreement with an committee are selected by

agreements with NAS and NAPA academy which provides for the academy and if the

without the academies' advisory the preparation of one or committee's meetings,

committees being ``utilized'' as more academy reports deliberations, and the

defined in Sec. 102-3.30. containing advice or preparation of reports are

recommendations to the all controlled by the

agency, to be developed by academy. Under these

the academy by use of a circumstances, neither the

committee created by the existence of the funding

academy, without violating agreement nor the fact that

the prohibition against it contemplates use by the

agency management and academy of an academy

control of academy committee would constitute

committees? actual management and

control of the committee by

the agency.

----------------------------------------------------------------------------------------------------------------

Subpart C--How Are Advisory Committees Established, Reestablished,

Renewed, and Terminated?

Sec. 102-3.60 What does this subpart cover and how does it apply?

Requirements for establishing and terminating advisory committees

vary depending on the establishing entity (President or agency) and the

source of authority for the committee. This subpart covers the

procedures associated with establishing, renewing, reestablishing, and

terminating committees. These procedures include consulting with the

Secretariat, preparing and filing a committee charter, publishing

notice in the Federal Register, and amending a committee charter.

Sec. 102-3.65 Who can establish advisory committees?

Only the President and the heads of agencies can establish advisory

committees under the Act. FACA identifies four sources of authority for

establishing an advisory committee:

(a) Directed by law. By law where the Congress specifically directs

the President or an agency to establish it (non-discretionary);

(b) Authorized by law. By law where the Congress authorizes but

does not direct the President or an agency to establish it

(discretionary);

(c) Presidential authority. By executive order of the President or

other Presidential directive (non-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

law (discretionary).

Sec. 102-3.70 What rules apply to the duration of an advisory

committee?

An advisory committee automatically terminates 2 years after its

date of establishment unless:

(a) The statutory authority used to establish the advisory

committee provides a different duration;

(b) The President or agency head determines that the advisory

committee has fulfilled the purpose for which it was established and

terminates the committee earlier;

(c) 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 committee earlier; or

(d) The President or agency head, following appropriate procedures,

renews the committee. If an advisory committee needed by the President

or agency terminates because it was not renewed in a timely manner, it

can be reestablished in accordance with Sec. 102-3.75.

Sec. 102-3.75 What procedures are required to establish, reestablish,

or renew an advisory committee?

(a) Consult with the Secretariat. Before establishing, renewing, or

reestablishing a discretionary advisory committee and filing the

committee Charter as outlined in this section, the agency head must

consult with the Secretariat regarding its plans. Although the

consultation must follow the procedures outlined in this section,

agency heads are encouraged to go beyond the minimum and 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 committee or suggest alternate

methods of attaining its purpose that the agency may wish to consider.

(b) Consultation options. Agency heads have the following options

in satisfying the requirement for consulting with the Secretariat:

(1) Develop and submit an annual plan. Agency heads may develop and

submit an annual plan identifying those committees they intend to

establish, reestablish, renew, and terminate during the fiscal year; or

(2) Submit a letter and the proposed charter. Agency heads may

submit a letter and a proposed charter for each type of committee

transaction to the Secretariat. The letter must include the information

contained in paragraph (c) of this section.

(c) Include required information in the consultation. Consultations

covering the establishment, reestablishment, and renewal of advisory

committees must, as a minimum, contain the following information:

(1) Explanation of need. An explanation stating why the 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 committee's functions cannot be performed by the agency, another

existing advisory committee of the agency, 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. For purposes of attaining fair

balance, agencies will consider for membership interested persons and

groups with professional or personal qualifications or experience

directly relating to the functions and tasks to be performed. This

should be construed neither to limit the participation nor compel the

selection of any particular individual or group to obtain divergent

points of view that are relevant to the business of the advisory

committee.

Sec. 102-3.80 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, reestablished, or

renewed.

(a) Procedure. Upon receiving notification of the completed review

from the Secretariat in accordance with Sec. 102-3.75(a) or (b), the

agency must publish a notice in the Federal Register announcing that

the committee is being established, reestablished, or renewed. For a

new committee, such notice must also include statements describing the

nature and purpose of the committee

[[Page 2513]]

and affirming that the 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 committee charter is filed, except that the Secretariat

may approve less than 15 days when requested by the agency for good

cause. This requirement for advance notice does not apply to committee

renewals, notices of which may be published concurrently with the

filing of the charter.

Sec. 102-3.85 What charter filing requirements must be addressed by

agencies?

No advisory committee may meet or take any action until a charter

has been filed.

(a) Basic requirement for discretionary advisory committees. To

establish, reestablish, or renew 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 under this section constitutes the official date of

establishment for the committee);

(3) The Library of Congress, Anglo-American Acquisition Division,

Government Documents Section, Federal Advisory Committee Desk,

Washington, DC 20540; and

(4) The Secretariat, indicating the date the charter was filed in

accordance with paragraph (a)(2) of this section.

(b) Basic 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 Presidential advisory committees is the date the

charter is filed with the Secretariat.

(c) Basic requirement for subcommittees that report directly to an

agency official. Subcommittees that report directly to an agency

official must comply with this subpart and develop a charter in

accordance with Sec. 102-3.90.

Sec. 102-3.90 What information must be included in a committee's

charter?

(a) Purpose and contents of committee charter. An advisory

committee charter is intended to provide a description of a committee's

mission, goals and objectives. It also provides a basis for evaluating

a committee's progress and its effectiveness. The advisory committee

charter must contain the following information:

(1) The committee's official designation;

(2) The objectives and the scope of the committee's activity;

(3) The period of time necessary to carry out the committee's

purpose(s);

(4) The agency or official to whom the committee reports;

(5) The agency responsible for providing the necessary support to

the committee;

(6) A description of the duties for which the committee is

responsible and specification of the authority for any non-advisory

functions;

(7) The estimated annual operation costs to operate the committee

in dollars and person years;

(8) The estimated number and frequency of committee meetings;

(9) The planned termination date, if less than 2 years from the

date of establishment of the committee;

(10) The name of the individual and/or organization responsible for

fulfilling the provisions of section 6(b) of FACA, which requires a

report to the Congress 1 year after a Presidential advisory committee

provides public recommendations to the President; and

(11) The date the committee charter is filed in accordance with

Sec. 102-3.85.

(b) The provisions of paragraphs (a)(1) through (a)(11) of this

section apply to all subcommittees that report directly to an agency.

Sec. 102-3.95 How are minor charter amendments accomplished?

(a) Responsibility and limitation. The agency head is responsible

for amending the charter of an advisory committee. Such amendments may

be either minor or major. The procedures for making amendments and

filing revised charters will depend upon the authority basis for the

committee. However, agencies are reminded that amending any existing

advisory committee charter does not constitute renewal of the committee

under Sec. 102-3.75.

(b) Amendment procedures. To make a minor amendment to a committee

charter, such as revising 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 authorizing 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 law or Executive Order, and file

the amended charter as specified in Sec. 102-3.85.

(2) Discretionary advisory committees. The charter of a

discretionary advisory committee may be amended when an agency head

determines that the existing charter no longer accurately reflects the

objectives or functions of the committee. The agency must amend the

charter language as necessary and file the amended charter as specified

in Sec. 102-3.85.

Sec. 102-3.100 How are major charter amendments accomplished?

Procedures for making major amendments to advisory committee

charters, such as substantial changes in a committee's scope and

objectives and related funding, are the same as in Sec. 102-3.95,

except that for discretionary advisory committees an agency must:

(a) Submit the proposed amended charter with a letter to the

Secretariat requesting GSA's views on the amended language, along with

an explanation of the purpose of the changes and why they are

necessary. The Secretariat will review the proposed changes and notify

the agency of GSA's views within 15 calendar days of the request, if

possible; and

(b) Following review by the Secretariat, file the amended charter

as specified in Sec. 102-3.85.

Sec. 102-3.105 Key points and principles.

The following table provides additional guidance in the form of

answers to frequently asked questions and the identification of Key

Points and Principles that can be applied to questions and situations

not covered elsewhere in this subpart:

[[Page 2514]]

----------------------------------------------------------------------------------------------------------------

Key points and principles Section Question(s) Guidance

----------------------------------------------------------------------------------------------------------------

I. Only the President and the heads 102-3.65 1. Can an agency head Yes. Many administrative

of agencies can establish advisory delegate responsibility for functions performed to

committees under the Act. consulting with the implement the Act may be

Secretariat regarding the delegated. However, those

establishment, functions related to

reestablishment, or renewal approving the final

of advisory committees? establishment,

reestablishment, or renewal

of committees are reserved

for the agency head. Each

agency Committee Management

Officer (CMO) should assure

that their internal

processes for managing

advisory committees include

appropriate certifications

by the agency head.

----------------------------------------------------------------------------------------------------------------

II. Agency heads are responsible for 102-3.125(e) 1. Who retains the final Agency heads retain final

complying with FACA, including 102-3.75(a) authority for establishing authority for establishing,

determining which advisory an advisory committee? reestablishing, or renewing

committees should be established. a particular committee.

Such decisions should be

consistent with Sec. 102-

3.125(e) and reflect

consultation with the

Secretariat under Sec. 102-

3.75(a).

----------------------------------------------------------------------------------------------------------------

Subpart D--How Are Advisory Committees Managed?

Sec. 102-3.110 What does this subpart cover and how does it apply?

This subpart provides the framework for maximizing the

contributions of advisory committees to the Government by establishing

specific responsibilities. FACA provides for specific functions to be

carried out by the Congress, the agency head and the CMO, the DFO, and

GSA. In general, the following principles are emphasized:

(a) Provide committee support. Before establishing an advisory

committee, agencies should identify requirements and assure that

adequate resources are available to support related to committee

activities. Considerations related to support include office space,

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, desired outcomes,

and limitations, if any. In general, the more specific a committee's

task and the more focused its activities, the higher the likelihood of

success.

(c) Follow plans and procedures. Advisory committee members and

their agency sponsors should work together to assure that a plan and

necessary procedures are in place to support the committee's goals. In

particular, agencies should be clear regarding what functions the

committee can legally perform and those that it cannot.

(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 committee

information.

(e) Seek feedback. Agencies should continually seek feedback from

advisory committee members and the public regarding the effectiveness

of the committee's activities. At regular intervals, agencies should

communicate to the committee how its advice has affected their programs

and decisionmaking.

Sec. 102-3.115 What responsibilities are assigned by FACA to the

Congress?

In the exercise of its legislative review function, each standing

committee of the Senate and the House of Representatives is responsible

for a continuing review of the activities of each advisory committee

under its jurisdiction to determine whether such advisory committee

should be abolished or merged with any other advisory committee,

whether the responsibilities of such advisory committee should be

revised, and whether such advisory committee performs a necessary

function not already being performed.

Sec. 102-3.120 What responsibilities and functions are assigned by

FACA to GSA?

(a) The functions under Section 7 of the Act are performed for the

Administrator by the Secretariat. The Secretariat prescribes

regulations, administrative guidelines and management controls for

advisory committees, and assists other agencies in implementing and

interpreting the Act.

(b) The Secretariat carries out its responsibilities by:

(1) Carrying out an annual comprehensive review of Governmentwide

committee accomplishments, costs, benefits, and other efforts to

measure performance;

(2) Developing and distributing Governmentwide training regarding

the Act and related principles and statutes;

(3) Supporting the Interagency Committee on Federal Advisory

Committee Management in its efforts to improve compliance with FACA;

(4) Designing and maintaining a Governmentwide shared data system

to facilitate collection of information required by the Act;

(5) Identifying performance measures that may be used to evaluate

committee accomplishments; and

(6) Providing recommendations to the President and the Congress

regarding proposals to improve the accomplishment of the Act's

objectives.

Sec. 102-3.125 What roles and responsibilities for managing advisory

committees are assigned by FACA to agency heads?

The head of each agency that establishes or utilizes one or more

advisory committees must:

(a) Comply with the Act and this part;

(b) Issue administrative guidelines and management controls that

apply to all advisory committees subject to the Act;

(c) Designate a CMO;

(d) Provide a written determination stating the reasons for closing

any advisory committee meeting, in whole or in part, to the public in

accordance with the bases for closure in the Government in the Sunshine

Act, 5 U.S.C. 552b(c);

(e) Review, at least annually, the need to continue each existing

advisory committee, consistent with the public interest and the purpose

of functions of each committee;

(f) Determine that rates of pay for advisory committee members and/

or staff are justified and levels of agency support are adequate;

(g) Appoint a DFO for each advisory committee and its

subcommittees; and

(h) Provide the opportunity for reasonable participation by the

public in

[[Page 2515]]

advisory committee activities, subject to the agency's guidelines and

Sec. 102-3.165.

Sec. 102-3.130 What roles and responsibilities for managing advisory

committees are assigned by FACA to the Chairperson of an independent

presidential advisory committee?

The Chairperson of an independent Presidential advisory committee

must comply with the Act and this part and must:

(a) Consult with the Secretariat concerning the role of the DFO and

CMO;

(b) Fulfill the responsibilities of an agency head as specified in

this subpart; and

(c) Consult with the Secretariat at least 30 days in advance

regarding any proposal to close any meeting in whole or in part.

Sec. 102-3.135 What roles and responsibilities for managing advisory

committees are assigned by FACA to 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 should also 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 approved

charters for each advisory committee and membership lists for each

advisory committee and subcommittee;

(b) Annual report. Copies of the agency's portion of the Annual

Report of the President on Federal Advisory Committees required by

Sec. 102-3.195(b);

(c) Agency guidelines. Agency guidelines on committee management

operations and procedures as maintained and updated; and

(d) Closed meeting determinations. Agency determinations to close

advisory committee meetings as required by Sec. 102-3.125.

Sec. 102-3.140 What roles and responsibilities for managing advisory

committees are assigned by FACA to the 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 may 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. 102-3.145 What is the role of committee members and staff?

The Act does not assign any specific responsibilities to members of

advisory committees and staff. However, both members and staff perform

critical roles in achieving the goals and objectives assigned to

advisory committees. Agency heads, CMOs, and DFOs should consider these

roles in the development of agency guidelines implementing the Act and

this part. In general, such guidelines should reflect:

(a) Clear operating procedures. Clear operating procedures for the

conduct of advisory committee meetings, including the relationship

between the advisory committee and its DFO;

(b) Agency operating policies. In addition to the compliance with

the Act, committee members and staff may be required to adhere to

additional agency operating policies; and

(c) Other applicable statutes. Other agency-specific laws and

regulations may affect the agency's advisory committees directly or

indirectly. Committee members and staff must understand these

requirements.

Sec. 102-3.150 What other policies or requirements must be addressed

by the agency head and included in the agency's guidelines implementing

the Act?

In developing guidelines implementing the Act and this part at the

agency level, agency heads must address the following issues related to

committee members and staff:

(a) Duration of appointment. Unless otherwise provided by statute,

Presidential Directive, or the establishing authority, advisory

committee members serve at the pleasure of the appointing authority.

Membership terms are at the sole discretion of the appointing

authority, unless otherwise provided for by the committee's

establishment authority.

(b) Pay and compensation guidelines. Each agency head must

establish uniform pay and compensation guidelines for members and staff

of an advisory committee.

(c) Compensation not required. Nothing in this subpart requires an

agency head to provide compensation, unless otherwise provided by law,

to a member of an advisory committee.

(d) Determination of need to provide compensation. When

compensation is deemed appropriate by an agency, it must fix the pay of

the members of an advisory committee to the daily equivalent of a rate

of the General Schedule in 5 U.S.C. 5332 unless the members are

appointed as consultants and compensated under 5 U.S.C. 3109. In

determining an appropriate rate of pay for the members, 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 of the members of the advisory committee. An

agency may not fix the pay of the members of an advisory committee at a

rate higher than the daily equivalent of the maximum rate for a GS-15

under the General Schedule, unless a higher rate is mandated by

statute, or the head of the agency has personally determined that a

higher rate of pay under the General Schedule is justified and

necessary. The head of the agency must review such a determination

annually. An agency may not fix the pay of the members of an advisory

committee at a rate of pay higher than the daily equivalent of a rate

for level IV of the Executive Schedule, as provided in 5 U.S.C. 5332.

(e) Compensation of staff members. An agency may set the pay of

each advisory committee staff member at a rate of the General Schedule

in which the Staff member's position would appropriately be placed (5

U.S.C. Chapter 51). An agency may not set the pay of a staff member at

a rate higher than the daily equivalent of the maximum rate for GS-15,

unless the agency head has determined that under the General Schedule

the staff member's position would appropriately be placed at a grade

higher than GS-15. This determination must be reviewed annually by the

agency head. A staff member who is a Federal employee must serve with

the knowledge of the DFO and the approval of the employee's direct

supervisor. Staff members who are not Federal employees must be

appointed in accordance with applicable agency procedures following

consultation with the advisory committee.

(f) Other pay considerations. In establishing rates of

compensation, the agency head must comply with any applicable statutes,

regulations, Executive Orders, and administrative guidelines.

(g) Pay for consultants to an advisory committee. An agency must

set the pay of a consultant to an advisory committee after giving

consideration to the

[[Page 2516]]

qualifications required of the consultant and the significance, scope,

and technical complexity of the work performed. The compensation may

not exceed the maximum rate of pay authorized by 5 U.S.C. 3109, and

must be in accordance with any applicable statutes, regulations,

Executive Orders, and administrative guidelines.

(h) Gratuitous services. In the absence of any special limitations

applicable to a specific agency, nothing in this part prevents an

agency from accepting the gratuitous services of an advisory committee

member, staff member, or consultant who agrees in advance to serve

without compensation.

(i) Travel expenses. Advisory committee members and staff members,

while engaged in the performance of their duties away from their homes

or regular places of business, may be allowed travel expenses,

including per diem in lieu of subsistence, as authorized by section

5703 of Title 5, United States Code, for persons employed

intermittently in the Government service.

(j) Services for committee members with physical disabilities.

While performing advisory committee duties, an advisory committee

member with a physical disability may be provided services by a

personal assistant for handicapped employees if the member qualifies as

a handicapped individual as defined by section 501 of the

Rehabilitation Act of 1973 (29 U.S.C. 794) and does not otherwise

qualify for assistance under 5 U.S.C. 3102 by reason of being an

employee of an agency.

(k) Exclusions for Federal employees. Nothing in this subpart

prevents any person who (without regard to his or her service with an

advisory committee) is a full-time Federal employee from receiving

compensation at a rate at which he or she otherwise would be

compensated as a full-time Federal employee.

(l) Exclusions for former Federal employees. Nothing in this

subpart prevents any person who immediately before his or her service

with an advisory committee was a full-time Federal employee from

receiving compensation at the rate at which he or she was compensated

as a full-time Federal employee.

Sec. 102-3.155 Key points and principles.

The following table provides additional guidance in the form of

answers to frequently asked questions and the identification of Key

Points and Principles that can be applied to questions and situations

not covered elsewhere in this subpart:

----------------------------------------------------------------------------------------------------------------

Key points and principles Section Question(s) Guidance

----------------------------------------------------------------------------------------------------------------

I. FACA does not specify the manner 102-3.15(c) 1. Does the appointment of No. Each agency head may

in which committee members must be an advisory committee specify those policies and

appointed by an agency head. member necessarily result procedures, consistent with

However, advisory committees must in a lengthy process? the Act and this rule,

be fairly balanced. governing the appointment

of advisory committee

members and staff. Some

factors that affect how

long the appointment

process takes include:

Solicitation of

nominations.

Conflict of

interest clearances.

Security/background

evaluations.

Availability of

candidates.

Other statutory or

administrative

requirements.

----------------------------------------------------------------------------------------------------------------

II. Agencies may provide support to 102-3.145 1. Can advisory committee A. In some agencies,

an advisory committee in the form members be appointed as advisory committee members

of staff or consultants, as consultants? are appointed as

appropriate. 2. What is the status of consultants in order to

consultants as it relates compensate them for their

to committee roles and services. Compensation is

responsibilities? normally required only in

those instances where it is

necessary to achieve a

balanced membership.

B. Consultants may also be

appointed as staff to an

advisory committee. In such

cases, consultants serve to

provide the committee with

needed information and

support, and not as

committee members. The

appointment of consultants

is not governed by FACA,

but is subject to other

statutes, policies, and

internal agency procedures.

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[[Page 2517]]

III. Responsibilities of agency 102-3.125 1. Can an organization, as A. No; organizations cannot

heads. opposed to an individual, be committee members.

be appointed as a committee However, individuals may be

member? appointed as members to

2. If so, can different represent organizations,

persons represent the including associations and

organization at different other organized interests.

meetings? B. Alternates may represent

the appointed member with

the approval of the

sponsoring agency. The

appointment of committee

members as representatives

or Special Government

Employees (SGEs) must be

determined by the

appointing agency based

upon the role to be played

by the member. Depending

upon the method of

appointment, members may be

covered by regulations

issued by the U.S. Office

of Government Ethics (OGE).

and related statutes.

----------------------------------------------------------------------------------------------------------------

IV. Responsibilities of agency heads 102-3.125 1. Must an agency's The agency head may delegate

Committee Management responsibility for

Officer (CMO) and each appointing the CMO and

committee Designated DFOs. However, such

Federal Official (DFO) be appointments, including

appointed by the agency alternate selections,

head? should be documented

2. May an agency have more consistent with the

than one CMO? agency's policies and

procedures.

A. The role of the agency's

CMO is specified in the Act

and includes oversight

responsibilities for all

committees within the

agency. Accordingly, only

one CMO may be appointed to

perform these functions.

B. The agency may, however,

create additional positions

which are subordinate to

the CMO's agencywide roles

and responsibilities.

V. The Federal Advisory Committee 102-3.150 1. Do other statutes or Yes. While FACA provides a

Act is the principal statute regulations affect the way general framework for

pertaining to advisory committees. an agency manages its managing committees

However, other statutes may impact advisory committee Governmentwide, other

their use. management program? factors may affect how

advisory committees are

used and managed. These

include:

The statutory or

Presidential authority used

to establish an advisory

committee.

A Congressional

limitation placed on an

agency regarding its annual

expenditures for advisory

committees.

Presidential or

agency management

directives.

The applicability

of conflict-of-interest

statutes.

Agency regulations

affecting advisory

committees.

Other requirements

imposed by law or

regulation on an agency or

its programs, such as those

governing the disposition

of Federal records.

----------------------------------------------------------------------------------------------------------------

Subpart E--Advisory Committee Meeting and Recordkeeping Procedures

Sec. 102-3.160 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

committee minutes and reports, must be prepared and made available to

the public.

Sec. 102-3.165 What basic 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;

(b) The meeting room size is sufficient to accommodate advisory

committee members, 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; and

(d) Any member of the public may speak at the advisory committee

meeting if the agency's guidelines so permit.

Sec. 102-3.170 What basic policies apply to subcommittee meetings?

(a) Deliberations of subcommittees may lead to decisions that are

adopted by a parent committee without further deliberation or

discussion by the parent committee. If subcommittees conduct

deliberations that lead to advice or

[[Page 2518]]

recommendations that could later by adopted by their parent committee

without further deliberations, such meetings should be subject to all

openness and recordkeeping policies of this subpart.

(b) Certain subcommittee activities, however, are wholly devoted to

providing a full review of recommendations by the parent committee and

may be carried out under the provisions of Sec. 102-3.185.

Sec. 102-3.175 How are committee meetings announced to the public?

The agency or the Chairperson of an independent Presidential

advisory committee must publish at least 15 calendar days prior to an

advisory committee meeting a notice in the Federal Register, which

includes:

(a) The name of the advisory committee or subcommittee;

(b) The time, date, place, and purpose of the meeting;

(c) A summary of the agenda;

(d) A statement whether all or part of the meeting is open to the

public or closed, and if closed, the reasons why, citing the bases for

closure contained in the Government in the Sunshine Act, 5 U.S.C.

552b(c); and

(e) The name and telephone number of the DFO or other individual

who may be contacted for additional information concerning the meeting.

Sec. 102-3.180 How are advisory committee meetings closed to the

public?

To close all or part of a committee meeting, the DFO must:

(a) Obtain prior approval. Submit a request to the agency head or

in the case of an independent Presidential advisory committee, the

Secretariat, citing the specific bases for closure in 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 at least 30

days to review the matter in order to make a determination before

publication of the meeting notice required by Sec. 102-3.170.

(b) Seek General Counsel review. The General Counsel of the agency

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, he or she 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. 102-3.185 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) Committee pre-deliberative work. Meetings of two or more

advisory committee or subcommittee members convened solely to gather

information or conduct research for a chartered advisory committee, to

analyze relevant issues and facts, or to draft proposed position papers

for deliberation by the advisory committee or a subcommittee of the

advisory committee.

(b) Committee administrative work. Meetings of two or more advisory

committee or subcommittee members convened solely to discuss

administrative matters of the committee not related to deliberation

concerning the committee's functions, scope, and advice or

recommendations to the Executive Branch.

Sec. 102-3.190 How are advisory committee meetings documented?

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 are kept. The chairperson of each

advisory committee must certify to the accuracy of all minutes of

advisory committee meetings. The minutes must include:

(a) The time, date, and place of the committee meeting;

(b) A list of the persons who were present at the meeting,

including committee members and staff, agency employees, and members of

the public who presented oral or written statements;

(c) An accurate description of each matter discussed and the

resolution, if any, made by the committee regarding such matter;

(d) Copies of each report or other document received, issued, or

approved by the committee; and (e) Minutes of advisory committee and

subcommittee meetings must be finalized within 90 calendar days of the

meeting(s) covered.

Sec. 102-3.195 What reports must be prepared by an agency covering the

activities of each advisory committee it establishes or utilizes?

(a) Presidential committee follow-up report. Within one year after

a Presidential advisory committee has submitted a public report to the

President, a follow-up report will be prepared and transmitted to the

Congress detailing the disposition of the committee's recommendations

in accordance with section 6(b) of the Act. The Secretariat shall

assure that such reports are prepared and transmitted to the Congress

as directed by the President; either by his 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. 102-3.90(j). In

performing this function, GSA may solicit the assistance of the Office

of Management and Budget and other appropriate organizations. Reports

shall be consistent with specific instructions issued periodically by

the Secretariat.

(b) Annual Report of the President on Federal Advisory Committees.

The President's annual report to the Congress must be prepared by GSA

consistent with the information specified in section 6(c) of the Act.

The report will be based on data filed electronically on a fiscal year

basis by each agency, using a shared Internet-based system maintained

by GSA and furnished in accordance with instructions provided annually

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 meetings. In accordance with section

10(d) of the Act, advisory committees holding closed meetings must

issue reports at least annually, setting forth a summary of activities

consistent with the policy of section 552(b) of Title 5, United States

Code.

(d) Disposition of all committee reports. Subject to section 552 of

Title 5, United States Code, eight copies of each report made by an

advisory committee, including any report on closed meetings as

specified in paragraph (c) of this section, and, where appropriate,

background papers prepared by 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. 102-3.85(a)(3).

(e) Disposition of committee records. Official records generated by

or for an advisory committee must be retained for the life of the

committee and, upon termination, handled in accordance with regulations

issued by the National Archives and Records Administration (NARA).

Sec. 102-3.200 Key points and principles.

The following table provides additional guidance in the form of

answers to frequently asked questions

[[Page 2519]]

and the identification of Key Points and Principles that can be applied

to questions and situations not covered elsewhere in this subpart:

----------------------------------------------------------------------------------------------------------------

Key points and principles Section Question(s) Guidance

----------------------------------------------------------------------------------------------------------------

I. With some exceptions, advisory 102-3.15(d) 1. Must all advisory No. Advisory committee

committee meetings are open to the committee and subcommittee meetings, when appropriate,

public. activities be open to the may be closed in accordance

public? with the bases for closure

under the Government in the

Sunshine Act.

A. Subcommittees that report

to a parent committee, and

not directly to a Federal

official, need not open

their sessions to the

public or comply with the

Act's procedures for

announcing meetings.

B. However, Agencies are

cautioned to avoid

excluding the public from

attending any meeting where

a subcommittee develops

substantive advice or

recommendations which are

subject to only nominal

review by the parent

committee before being

submitted to a Federal

agency or official. Such

exclusions would run

counter to FACA's

provisions requiring

contemporaneous access to

the committee deliberative

process.

II. Notices must be published in the 102-3.175 1. Can agencies publish a Yes, agencies may publish a

Federal Register announcing single Federal Register single notice announcing

committee meetings. notice announcing multiple multiple meetings as long

committee meetings? as such notices contain all

of the information

contained in Sec. 102-

3.175. Such ``blanket

notices'' should not

announce meetings so far in

advance as to prevent the

public from being

adequately informed of a

committee's schedule. The

bases for closure for each

session still must be

reviewed on a

contemporaneous basis.

----------------------------------------------------------------------------------------------------------------

III. Advisory committee records must 102-195(e) 1. How long must an agency Following a committee's

be managed in accordance with keep committee files once termination, its records

regulations issued by the National the committee has been should be scheduled for

Archives and Records Administration terminated? disposition in accordance

(NARA). with NARA regulations. The

agency's records management

officer should be consulted

for further details.

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[FR Doc. 00-886 Filed 1-13-00; 8:45 am]

BILLING CODE 6820-34-P