[Federal Register Volume 65, Number 10 (Friday, January 14, 2000)]
[Proposed Rules]
[Pages 2504-2519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-886]
[[Page 2503]]
Part IV
General Services Administration
_______________________________________________________________________
41 CFR Parts 101-6 and 102-3
Federal Advisory Committee Management; Proposed Rule
Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 /
Proposed Rules
[[Page 2504]]
GENERAL SERVICES ADMINISTRATION
41 CFR Parts 101-6 and 102-3
[FPMR Amendment A- ]
RIN 3090-AG49
Federal Advisory Committee Management
AGENCY: Office of Governmentwide Policy, GSA.
ACTION: Proposed rule.
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SUMMARY: The General Services Administration (GSA) is revising Federal
Property Management Regulations (FPMR) coverage on Federal advisory
committee management and moving it into the Federal Management
Regulation (FMR). A cross-reference 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.
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Interpret the role of ``consensus'' in defining ``advisory
committee.''
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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.
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Committee Meetings.................................. Provide examples of non-deliberative committee activities
that are excluded from FACA's procedural requirements.
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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.
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Describe the status of consultants as it relates to
committee roles and responsibilities.
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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.
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Committee Records................................... Clarify how long an agency must keep committee files once
the committee has been terminated.
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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:
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[[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