[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.

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

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.

----------------------------------------------------------------------------------------------------------------
                       Subject                                            Comment/suggestion
----------------------------------------------------------------------------------------------------------------
Definitions.........................................  Clarify the definition of ``Agency'' to indicate how it
                                                       applies within the context of the Act.
----------------------------------------------------------------------------------------------------------------
                                                      Interpret the role of ``consensus'' in defining ``advisory
                                                       committee.''
----------------------------------------------------------------------------------------------------------------
                                                      Describe the characteristics of an ``operational
                                                       committee.''
----------------------------------------------------------------------------------------------------------------
                                                      Revise the definition of ``utilize'' in light of
                                                       prevailing judicial opinions.
----------------------------------------------------------------------------------------------------------------
                                                      Clarify FACA's applicability or non-applicability to
                                                       meetings between Federal officials and contractors or
                                                       licensees.
----------------------------------------------------------------------------------------------------------------
                                                      Incorporate legislative changes including exclusions from
                                                       the Act's coverage under the Unfunded Mandates Reform Act
                                                       of 1995.
----------------------------------------------------------------------------------------------------------------
Committee Meetings..................................  Provide examples of non-deliberative committee activities
                                                       that are excluded from FACA's procedural requirements.
----------------------------------------------------------------------------------------------------------------
                                                      Outline what flexibility agencies have in providing notice
                                                       to the public regarding committee meetings, including
                                                       clarification on whether it is acceptable to run multiple
                                                       Federal Register notices for a committee's meeting
                                                       events.
----------------------------------------------------------------------------------------------------------------
Committee Members...................................  Explain whether an agency head can appoint members without
                                                       a lengthy process.
----------------------------------------------------------------------------------------------------------------
                                                      Describe the status of consultants as it relates to
                                                       committee roles and responsibilities.
----------------------------------------------------------------------------------------------------------------
                                                      Provide guidance regarding whether appointed members may
                                                       be offices or organizations (rather than individual
                                                       appointments) so that individual delegates would
                                                       participate at a given meeting.
----------------------------------------------------------------------------------------------------------------
                                                      Update the part's guidance regarding pay guidelines for
                                                       advisory committee members and staff.
----------------------------------------------------------------------------------------------------------------
Committee Records...................................  Clarify how long an agency must keep committee files once
                                                       the committee has been terminated.
----------------------------------------------------------------------------------------------------------------
                                                      Identify the committee documents that need to be sent to
                                                       the Library of Congress.
----------------------------------------------------------------------------------------------------------------

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.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 00-886 Filed 1-13-00; 8:45 am]
BILLING CODE 6820-34-P