[Federal Register Volume 66, Number 139 (Thursday, July 19, 2001)]
[Rules and Regulations]
[Pages 37728-37750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17350]



[[Page 37727]]

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Part II





General Services Administration





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41 CFR Parts 101-6 and 102-3



Federal Advisory Committee Management; Final Rule

  Federal Register / Vol. 66, No. 139 / Thursday, July 19, 2001 / Rules 
and Regulations  

[[Page 37728]]


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GENERAL SERVICES ADMINISTRATION

41 CFR Parts 101-6 and 102-3

[FPMR Amendment A-57]
RIN 3090-AG49


Federal Advisory Committee Management

AGENCY: Office of Governmentwide Policy, GSA.

ACTION: Final rule.

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SUMMARY: The General Services Administration (GSA) is revising Federal 
Property Management Regulations (FPMR) coverage on Federal advisory 
committee management and moving it into the Federal Management 
Regulation (FMR). A cross-reference is added to the FPMR to direct 
readers to the coverage in the FMR. The FMR coverage is written in 
plain language to provide agencies with updated regulatory material 
that is easy to read and understand. This action is necessary due to 
legislative and policy changes that have occurred, and judicial 
decisions that have been issued since the regulation was last updated. 
It is based also on suggestions for improvement from other Federal 
agencies and interested parties, and clarifies how the regulation 
applies or does not apply to certain situations.

EFFECTIVE DATE: August 20, 2001.

FOR FURTHER INFORMATION CONTACT: Charles F. Howton, Deputy Director, 
Committee Management Secretariat (202) 273-3561, or electronically at 
the following Internet address: [email protected]. 

SUPPLEMENTARY INFORMATION:

A. Background

    GSA's authority for administering the Federal Advisory Committee 
Act (FACA), as amended, 5 U.S.C., App. (also referred to as ``the 
Act''), is contained in section 7 of the Act and Executive Order 12024 
(42 FR 61445; 3 CFR 1977 Comp., p. 158). Under Executive Order 12024, 
the President delegated to the Administrator of General Services all of 
the functions vested in the President by the Act. GSA's 
responsibilities for administering the Act have been delegated to the 
Associate Administrator for Governmentwide Policy and to the Director 
of the Committee Management Secretariat.
    In a previous issue of the Federal Register (62 FR 31550, June 10, 
1997), GSA published an Advance Notice of Proposed Rulemaking (ANPRM) 
and requested comments. Additional comments were requested from the 
Interagency Committee on Federal Advisory Committee Management. GSA 
requested comments on: (1) Suggested issues to address; (2) specific 
recommendations about changes needed in the current Federal Advisory 
Committee Management subpart; (3) examples of situations where FACA was 
either a useful tool or a hindrance to public involvement; and (4) 
GSA's intent to include illustrative examples and principles. On 
January 14, 2000, GSA published a proposed rule in the Federal Register 
(65 FR 2504) and requested comments over a 60-day period ending on 
March 14, 2000. All comments received were considered in drafting this 
final rule.
    This final rule provides administrative and interpretive guidelines 
and management controls for Federal agencies to implement the 
provisions of the Act, and is intended to improve the management and 
operation of Federal advisory committees in the executive branch.

B. Discussion of Comments

    Twenty-six commenters responded to the invitation for comments, 
including twenty commenters from the executive branch and six 
commenters from non-Federal sources. Of the twenty comments received 
from executive branch sources, three comments were submitted by 
subcomponents of a Federal department or agency. A total of fifty-nine 
specific issues or recommendations were identified, of which seven were 
either fully supportive of the proposed rule or concerned typographical 
errors. GSA addressed the disposition of the remaining fifty-two issues 
or recommendations as follows:

The Final Rule Should Include More Guidance Relating to the Management 
of Advisory Committees, Including the Impact of Other Statutes and 
Issues on Day-to-Day Operations

    Several commenters provided suggestions regarding the addition of 
guidance on issues that, although not addressed by the Act, likely 
would improve the management of advisory committees. For example, one 
commenter suggested that the final rule include a provision to 
encourage agencies to streamline their internal processes and 
procedures in order to expedite the establishment of advisory 
committees. Other commenters requested that GSA: (1) Provide more 
detailed provisions on the compensation of advisory committee members 
and staff, and experts and consultants; (2) expand the range of 
information required to be listed in an advisory committee's charter to 
include the nature and disposition of records; and (3) incorporate new 
regulatory requirements for increasing access to advisory committee 
information, such as providing meeting notices, minutes, and reports 
via the Internet.
    In response to these recommendations, GSA expanded the number of 
examples included within the final rule to illustrate how other 
statutes or issues potentially could affect the effective management of 
advisory committees.
    In addition, GSA reorganized the examples and other guidance into 
appendices to avoid any ambiguity between actions required by the Act 
and the final rule, and actions that are suggested only within an 
implementing framework of ``best practices.'' In the final rule, a 
``Key Points and Principles'' appendix appears at the end of each 
subpart to which it relates.
    In applying the ``best practices'' offered in the appendices, users 
of the final rule should continue to examine the extent to which other 
factors, including agency-specific statutory provisions and internal 
agency procedures, may affect a specific advisory committee or program. 
Although GSA believes that the examples contained in the appendices to 
the final rule represent the circumstances most commonly encountered 
during the day-to-day management of advisory committees, the listing is 
not exhaustive and must be supplemented based upon the unique 
requirements of the user.

Provide Additional Guidance Regarding What Advisory Committees and 
Their Subcommittees Must Do To Comply With the Act

    Many commenters expressed concern over language contained in the 
preamble to the proposed rule relating to coverage of subcommittees 
under the Act. The preamble to the proposed rule noted that:

    The applicability of the procedural requirements contained in 
FACA and this proposed rule to subcommittees of advisory committees 
has been clarified. GSA's current FACA regulation does not make 
clear that subcommittees reporting to a parent committee are not 
subject to FACA. Indeed, the regulation states just the opposite, 
providing that ``[s]ubcommittees that do not function independently 
of the full or parent advisory committee'' are subject to all 
requirements of FACA except the requirement for a charter. (See 41 
CFR 101-6.1007(b)(3).) This provision is problematic for two 
reasons. First, it applies FACA more broadly than the statute itself 
requires. Second, it essentially creates a special type

[[Page 37729]]

of advisory committee that is subject to some, but not all of FACA's 
requirements, which has no foundation in the statute. Under FACA, a 
group is either an advisory committee subject to all of the 
statutory requirements, or it is not an advisory committee, and 
therefore not subject to any of its requirements. Because a 
subcommittee which reports to a parent committee is not an 
``advisory committee'' under FACA, there is no legal basis for 
applying any of FACA's requirements to such a subcommittee.

    In evaluating the comments received, GSA notes that there were no 
objections to the exclusions contained in Sec. 102-3.185 of the 
proposed rule (now Sec. 102-3.160 of the final rule), relating to 
``What activities of an advisory committee are not subject to the 
notice and open meeting requirements of the Act?'' The exclusions in 
Sec. 102-3.160 of the final rule continue to cover the types of 
activities routinely performed by subcommittees. By this reasoning GSA 
sought to bring into harmony these activities with those provisions in 
the proposed rule differentiating subcommittees reporting to a parent 
advisory committee from those reporting directly to a Federal officer 
or agency.
    However, the preamble to the proposed rule did not explain and 
describe adequately the legal framework for GSA's decision to 
differentiate subcommittees that report only to a parent advisory 
committee more clearly from advisory committees that report directly to 
a Federal officer or agency. The Act defines the term ``advisory 
committee'' as ``any committee, * * * or any subcommittee or other 
subgroup thereof which is established or utilized by the President or 
an agency in the interest of obtaining advice or recommendations for 
the President or one or more agencies or officers of the Federal 
Government''. Under this definition, a subcommittee is an ``advisory 
committee'' subject to the Act if it provides advice to the President 
or a Federal officer or agency. Most subcommittees, however, report 
only to a parent advisory committee and it is the parent committee that 
is normally responsible for providing advice or recommendations to the 
Government. In this conventional scenario, the subcommittee is not 
subject to the Act because it is not providing advice to the 
Government.
    Case law supports this conclusion. In National Anti-Hunger 
Coalition v. Executive Committee, 557 F.Supp. 524 (D.D.C.), aff'd, 711 
F.2d 1071 (D.C. Cir. 1983), the question presented was whether the Act 
applied to task forces reporting to the Executive Committee of the 
President's Private Sector Survey on Cost Control in the Federal 
Government. The task forces had no authority to make recommendations to 
agencies or to the President. Instead, their function was to do the 
``preliminary work of the survey, including fact-gathering, statistical 
evaluations, and the formulation of preliminary reports.'' (557 F.Supp. 
at 526). Although it was undisputed that the Executive Committee was 
subject to the Act, the court held that the Act did not apply to the 
task forces under the following reasoning:

    There is no question that the task forces are intimately 
involved in the gathering of information about federal programs and 
the formulation of possible recommendations for consideration of the 
Committee. That is not enough to render them subject to the FACA. 
The Act itself applies only to committees ``established or utilized 
by'' the President or an agency ``in the interest of obtaining 
advice or recommendations for the President or one or more 
agencies.'' The Act does not cover groups performing staff functions 
such as those performed by the so-called task forces. (557 F.Supp. 
at 529). (See also Association of American Physicians and Surgeons 
v. Clinton, 997 F.2d 898, 911-913 (D.C. Cir. 1993).)

    GSA believes that as a result of this decision, subcommittees that 
report to a parent advisory committee generally are not subject to the 
Act. GSA also believes that subcommittees whose advice or 
recommendations are provided directly to a Federal officer or agency 
are subject to the Act. However, GSA further believes that this 
decision does not shield those subcommittees from coverage under the 
Act whose advice or recommendations are not subject to deliberation by 
their parent advisory committees.
    From this reasoning, it is not permissible for parent advisory 
committees simply to ``rubber-stamp'' the advice or recommendations of 
their subcommittees, thereby depriving the public of its opportunity to 
know about, and participate contemporaneously in, an advisory 
committee's deliberations. Agencies are cautioned to avoid excluding 
the public from attending any meeting where a subcommittee develops 
advice or recommendations that are not expected to be reviewed and 
considered by the parent advisory committee before being submitted to a 
Federal officer or agency. These exclusions may run counter to the 
provisions of the Act that require contemporaneous access to the 
advisory committee deliberative process.
    To address these issues more clearly, GSA strengthened language in 
the final rule by: (1) Adding a new Sec. 102-3.35 that outlines 
policies relating to subcommittees; (2) clarifying language in 
Sec. 102-3.145 relating to subcommittee meetings; and (3) clarifying 
the examples contained in Appendix A to Subpart C.

Correct and Clarify the Definition of ``Utilized''

    Nine commenters recommended that GSA revise its definition of the 
term, ``utilized'' to conform to governing case law.
    As noted by some of the commenters, the definition of the term 
``utilized'' in Sec. 102-3.30 of the proposed rule inadvertently 
misstated the applicable legal test. The proposed rule stated that a 
committee is ``utilized within the meaning of the Act when the 
President or a Federal agency exercises actual management and control 
over its operation.'' This construction would require an agency both to 
have management of the committee and to exercise control over the 
committee before the committee can be deemed ``utilized.'' The proper 
statement of the ``utilized'' test is whether an agency either has 
management of the committee or, in some fashion other than management, 
exercises control over the committee.
    The controlling legal authority is Washington Legal Foundation v. 
U. . Sentencing Commission, 17 F.3d 1446 (D.C. Cir. 1994). In that 
case, the appeals court gave structure to the U.S. Supreme Court's 
prior decision interpreting the term ``utilized.'' (See Public Citizen 
v. Department of Justice, 491 U.S. 440 (1989).) The appeals court ruled 
that the word ``utilized'' indicates ``something along the lines of 
actual management or control of the advisory committee.'' (17 F.3d at 
1450). The operative criterion for determining whether a committee has 
sufficiently close ties to an agency in order to render it ``utilized'' 
is whether the agency has either management of the committee or exerts 
some other type of control, but not necessarily both.
    Similarly, Sec. 102-3.50(b) of the proposed rule (now Sec. 102-
3.185(b) of the final rule) used the phrase ``actual management and 
control'' with regard to section 15 of the Act. In explaining the 
relationship between Federal agencies and the National Academy of 
Sciences (NAS) and the National Academy of Public Administration (NAPA) 
covered by section 15 of the Act, Sec. 102-3.50(b) of the proposed rule 
states that ``[a]gencies must not manage or control the specific 
procedures adopted by each academy.'' However, committees covered by 
section 15 of the Act must be under both the actual management and the 
control of the academies, not that of a Federal agency. In this 
instance, the use of the conjunctive

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word ``and'' is appropriate and indicates that the academies cannot 
relinquish either management or control of their committees to Federal 
agencies.
    Accordingly, GSA revised the language contained in the final rule 
by changing management and control to management or control in the 
definition of the term ``utilized,'' now in Sec. 102-3.25 of the final 
rule, and in those instances in which it appears in the ``Key Points 
and Principles'' guidance in the appendices to the final rule.

Clarify the Application of the Act to Agency Interactions With the 
Public

    Several commenters noted that Federal agencies are increasingly 
reliant on local communities, individual citizens, and interested 
parties to obtain information, advice, or recommendations on which to 
base decisions. They expressed concerns that: (1) Uncertainty about the 
scope of the Act creates a disincentive for Federal officers and 
agencies wishing to engage in public outreach; (2) the requirements of 
the Act are being interpreted differently within and among agencies; 
and (3) GSA's current regulations do not adequately differentiate 
between those groups and activities covered by the Act and others that 
are not. (See 41 CFR 101-6.10.)
    GSA recognizes that the broad definition in the Act of an 
``advisory committee'' might be interpreted to extend coverage by the 
Act to any gathering or two or more persons from whom the President or 
other Federal officers or agencies seek advice or recommendations. 
However, in the cases discussed above, the courts have rejected such a 
broad reading of ``advisory committee.'' GSA believes that the sections 
in the final rule on definitions and on groups not covered by the Act, 
Secs. 102-3.25 and 102-3.40, respectively, clarify the limits of the 
coverage by, or scope of, the Act when applied together.
    Within this group of comments, GSA noted a consistent theme related 
to the need for more information regarding public participation tools 
and techniques that would allow for more collaboration that is not 
subject to the Act. Although advisory committees support Federal 
decisions in a variety of situations, GSA believes that the ability of 
agencies to interact with the public in numerous other ways is 
particularly important because advisory committees are only one method 
for agencies to obtain the views of the public for their programs. 
Federal agencies may engage in continuous collaboration using diverse, 
but complimentary, tools, techniques, and methods. Whether or not a 
selected approach includes the use of advisory committees, the 
potential or perceived applicability of the Act must not prevent 
constructive collaboration from taking place. Agencies are encouraged 
to contact GSA concerning not only the use of Federal advisory 
committees, but also for information about alternative forms of public 
involvement.
    In GSA's view, agencies have broad latitude to consult with the 
public using many different approaches that are not subject to the Act. 
Public consultation formats that generally fall outside of the scope of 
the Act include public meetings, information exchange forums, meetings 
initiated with or by non-governmental organizations, Federal 
participation on groups that are not established or utilized by the 
Government, and certain work products generated by contractors as a 
result of consultation with the public.
    While FACA is not a public participation statute, it directly 
affects how the executive branch is held accountable for the use and 
management of Federal advisory committees as a major means of obtaining 
public involvement. Within this context, agencies wishing to consult 
with private individuals, non-governmental organizations, or with the 
public at large through other assemblages often must consider whether 
or not the Act applies to a given situation.
    The number and range of scenarios presented by the commenters 
underscore the importance of presenting a clearer understanding of how 
advisory committees are established by Federal agencies or how the 
Government's relationship with groups not established within the 
meaning of the Act may nevertheless become subject to the Act if they 
are utilized. Based upon the comments received, the circumstances under 
which advisory committees are established within the executive branch 
appear to be well understood. Accordingly, GSA retained the language 
contained in Sec. 102-3.30 of the proposed rule in Sec. 102-3.25 of the 
final rule and throughout subpart B.
    However, as noted in the above discussion of the proposed rule's 
treatment of the term ``utilized,'' agencies must determine whether or 
not their relationship with a group created by non-Federal entities 
constitutes actual management or control within the meaning of the Act. 
To help agencies make this determination, GSA has included within the 
final rule several new examples illustrating the application of the 
actual management or control test to different situations. These 
additions are contained in the ``Key Points and Principles'' guidance 
in Appendix A to Subpart A.

Explain the Relationship Between Committees Established by the National 
Academy of Sciences (NAS) or the National Academy of Public 
Administration (NAPA) and the Act

    The Federal Advisory Committee Act Amendments of 1997, Public Law 
105-153, December 17, 1997, established separate procedures for 
committees that are managed and controlled by NAS or NAPA. Subpart E of 
the final rule contains implementing instructions for the new section 
15 of FACA.

Clarify the Distinction Between Advisory Committees Subject to the Act 
and Operational Committees Not Covered by the Act

    Five commenters suggested that further guidance in the final rule 
is necessary to assist agencies in differentiating an operational 
committee not covered by the Act from one that performs primarily 
advisory functions and is, therefore, subject to the Act. GSA added 
guidance within Appendix A to Subpart A listing those characteristics 
generally associated with committees having primarily operational, as 
opposed to advisory, functions.

Clarify the Applicability of the Act to Advisory Committee Meetings 
Conducted Through Electronic Means

    Four commenters supported GSA's language contained in the proposed 
rule extending the definition of ``committee meeting'' to meetings 
conducted in whole or part through electronic means. However, two 
commenters suggested additional clarifications, which GSA has adopted.
    First, GSA slightly modified the definition of ``committee 
meeting'' contained in Sec. 102-3.25 of the final rule to include a 
``gathering'' of advisory committee members whether in person or 
through electronic means. This change was made to highlight coverage by 
the Act of both physical and ``virtual'' meetings conducted by such 
means as a teleconference, videoconference, the Internet, or other 
electronic medium.
    Second, GSA amended the language contained in Sec. 102-3.140 of the 
final rule to provide for adequate public access to advisory committee 
meetings that are conducted in whole or part through electronic means. 
This change complements existing policy covering advisory committee 
meetings that are held within a physical setting, such as a conference 
room, by ensuring that agencies adequately plan for public

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participation by adding additional capability (such as a designated 
number of public call-in lines for a teleconference) to ensure access 
to committee deliberations.

Provide Additional Guidance on Balanced Representation and Selection of 
Members

    One commenter expressed concern that the proposed rule did not 
contain sufficient guidance on balanced representation and the 
selection of members. GSA recognizes that the guidance contained in the 
proposed rule is limited to the language of the Act, but believes that 
the provisions of section 5(c) of the Act are broad enough to allow for 
agency discretion in determining advisory committee representation and 
membership relative to applicable statutes, Executive orders, and the 
needs of the agency responsible for the advisory committee.
    However, GSA added a list of possible considerations within 
Appendix A to Subpart B that, while not comprehensive or universally 
applicable, may help in developing a plan for balancing an advisory 
committee's membership.

Emphasize the Importance of Maximizing an Advisory Committee's 
Independent Judgment

    Five commenters offered various suggestions to address the 
requirement contained in section 5(b)(3) of the Act, which is intended 
to ensure that the work products of an advisory committee reflect the 
group's independent judgment.
    Included among these suggestions were recommendations from the U.S. 
Office of Government Ethics (OGE) that GSA modify the language 
contained in Sec. 102-3.155 of the proposed rule (now contained in 
Appendix A to Subpart C of the final rule) to clarify the applicability 
of conflict of interest statutes and other Federal ethics rules to 
advisory committee members. GSA adopted all of OGE's suggestions.
    The remaining suggestions received concerned the appointment of 
advisory committee members, including a recommended change to Sec. 102-
3.155 of the proposed rule (now Appendix A to Subpart C) to clarify 
that: (1) An agency may appoint a member to an advisory committee based 
upon the recommendation of an organization to be represented; and (2) 
recommendations from an advisory committee may be a part of an agency's 
process to nominate new members. GSA adopted these changes and 
suggestions.

Provide Additional Guidance on the Management of Federal Records

    GSA received suggestions from the National Archives and Records 
Administration (NARA) regarding three areas where additional guidance 
on records management issues could be useful. Specifically, NARA 
recommended that Sec. 102-3.190 of the proposed rule: (1) Be expanded 
to include all recordkeeping requirements specified by the Act, not 
just those relating to advisory committee minutes; (2) include a 
statement that records should be scheduled for disposition before 
actual termination of the advisory committee; and (3) with regard to 
information that must be included within an advisory committee's 
charter, include a determination as to whether its records fall within 
the Presidential Records Act, 44 U.S.C. Chap 22.
    GSA addressed these recommendations by expanding Sec. 102-3.200 of 
the proposed rule (now Appendix A to Subpart D) to include additional 
guidance relating to records management and to highlight the 
applicability and importance of Federal recordkeeping statutes and 
policies to advisory committee operations. GSA decided to include this 
guidance within this appendix because the Act generally is silent on 
records management issues, with the exception of the responsibilities 
of the CommitteeManagement Officer (CMO) in section 8(b)(2) of the Act.
    Pursuant to the National Archives and Records Administration Act, 
44 U.S.C.Chap. 21, the Archivist of the United States is responsible 
for records management in the Federal Government, including the 
issuance of regulations and guidance for records retention and 
disposition. The Archivist, working in conjunction with the agencies'' 
Records Management Officers, also is responsible for identifying 
records that are appropriate for transfer to the permanent Archives of 
the United States and those that must be processed in accordance with 
the Presidential Records Act.

Strengthen Provisions Relating to the Public's Access to Advisory 
Committee Records

    Two commenters suggested that the final rule contain more explicit 
guidance regarding the public's access to committee records under 
section 10(b) of the Act. In particular, the commenters recommended 
adding language describing the circumstances under which records may be 
withheld pursuant to the Freedom of Information Act (FOIA), as amended, 
5 U.S.C. 552.
    GSA believes that timely access to advisory committee records is an 
important element of the public access provisions of the Act and, 
therefore, agrees with these suggestions. GSA further believes that 
there are two separate, but equally important issues related to the 
availability of advisory committee records under section 10(b) of FACA: 
(1) The extent to which records may be protected from disclosure under 
FOIA; and (2) the extent to which agencies may require that requests 
for non-exempt records be processed under the request and review 
process established by section 552(a)(3) of FOIA.
    Section 10(b) of the Act provides that:

    Subject to section 552 of title 5, United States Code, the 
records, reports, transcripts, minutes, appendixes, working papers, 
drafts, studies, agenda, or other documents which were made 
available to or prepared for or by each advisory committee shall be 
available for public inspection and copying at a single location in 
the offices of the advisory committee or the agency to which the 
advisory committee reports until the advisory committee ceases to 
exist.

    The purpose of section 10(b) of the Act is to provide for the 
contemporaneous availability of advisory committee records that, when 
taken in conjunction with the ability to attend advisory committee 
meetings, ensures that interested parties have a meaningful opportunity 
to comprehend fully the work undertaken by the advisory committee. 
Records covered by the exemptions set forth in section 552(b) of FOIA 
generally may be withheld. However, it should be noted that FOIA 
Exemption 5 generally cannot be used to withhold documents reflecting 
an advisory committee's internal deliberations.
    An opinion of the Office of Legal Counsel, U.S. Department of 
Justice, 12 Op. O.L.C. 73, April 29, 1988, entitled ``Disclosure of 
Advisory Committee Deliberative Materials,'' concludes that FOIA 
Exemption 5 ``is not generally applicable to materials prepared by or 
for an advisory committee, but that it does extend to protect 
privileged documents delivered from the agency to an advisory 
committee.'' The opinion further states that:

    This construction gives meaning to exemption 5 without vitiating 
Congress' enumeration of deliberative documents such as working 
papers and drafts as subject to disclosure. It is also supported by 
a close reading of exemption 5 itself. Because by its terms 
exemption 5 protects only inter-agency and intra-agency documents 
and because an advisory committee is not an agency, documents do not 
receive the protection of exemption 5 by virtue of the fact that 
they are prepared by an advisory committee. On

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the other hand, documents prepared by an agency do not lose the 
protection of exemption 5 by virtue of the fact that they are 
delivered to an advisory committee.

    In determining whether or not such records fall within these narrow 
exclusions, the OLC opinion provides that consideration should be given 
to determining whether or not section 10(b) of FACA is applicable in 
the first instance. As noted in the OLC opinion:

    Section 10(b) itself applies only to materials made available to 
or prepared for or by an advisory committee established by statute 
or reorganization plan or established or utilized by the President 
or an agency. 5 U.S.C. app. I, 3(2), 10(b). Accordingly, in 
determining whether a document is to be disclosed the first issue is 
not whether it is subject to an exemption under 5 U.S.C. 552 but 
whether it meets this threshold definition.

    In explaining this threshold determination of whether particular 
records are subject to the section 10(b) disclosure requirement, the 
OLC opinion states that:

    The courts and this Office have construed the concept of 
advisory committees established or utilized by the President or an 
agency to preclude section 10(b)'s application to the work prepared 
by a staff member of an advisory committee or a staffing entity 
within an advisory committee, such as an independent task force 
limited to gathering information, or a subcommittee of the advisory 
committee that is not itself established or utilized by the 
President or agency, so long as the material was not used by the 
committee as a whole.

    Although advisory committee records may be withheld under the 
provisions of FOIA if there is a reasonable expectation that the 
records sought fall within the exemptions contained in section 552(b) 
of FOIA, agencies may not require members of the public or other 
interested parties to file requests for non-exempt advisory committee 
records under the request and review process established by section 
552(a)(3) of FOIA.
    In Food Chemical News v. Department of Health and Human Services, 
980 F.2d 1468, 299 U.S. App. DC 25, the appeals court held that:

Under section 10(b) of FACA an agency is generally obligated to make 
available for public inspection and copying all materials that were 
made available to or prepared for or by an advisory committee. 
Except with respect to those materials that the agency reasonably 
claims to be exempt from disclosure pursuant to FOIA, a member of 
the public need not request disclosure in order for FACA 10(b) 
materials to be made available. Thus, whenever practicable, all 
10(b) materials must be available for public inspection and copying 
before or on the date of the advisory committee meeting to which 
they apply.

    Accordingly, GSA included language within Sec. 102-3.170 of the 
final rule describing the policy to be followed in implementing section 
10(b) of the Act, and included additional guidance in Appendix A to 
Subpart D concerning the applicability of FOIA to records covered by 
section 10(b) of FACA.

Improve the Organization of the Final Rule

    During the course of evaluating comments received from all sources, 
GSA conducted a review of the proposed rule's general organization and 
structure for the purpose of achieving greater clarity and consistency 
in presentation. This effort led to a number of changes, such as 
redesignating the ``Key Points and Principles'' sections following each 
subpart as appendices. Other changes were made throughout the final 
rule to improve alignment between section headings and the material 
that follows. Similar changes were made within the appendices in order 
to improve the linkage between the examples or questions and the 
corresponding guidance.
    In addition, GSA reorganized the final rule to redesignate subpart 
B as subpart E to improve the flow of information distinguishing 
Federal advisory committees subject to the Act from those committees 
created by the National Academy of Sciences (NAS) or the National 
Academy of Public Administration (NAPA) which, if not utilized by the 
executive branch, are not subject to the Act's provisions. Section 
numbers previously assigned in the proposed rule affected by the 
redesignation of subpart B as subpart E, subpart C as subpart B, 
subpart D as subpart C, and subpart E as subpart D have been changed 
accordingly.

C. Technical and Procedural Comments

    The final rule incorporates several technical and procedural 
recommendations made by a range of commenters, particularly in the 
following sections or appendices:

------------------------------------------------------------------------
         Section/Appendix                       Modification
------------------------------------------------------------------------
102-3.60..........................   Specific procedures for consulting
                                     with the Secretariat have been
                                     eliminated. GSA will issue separate
                                     guidance to agencies covering the
                                     administration of the consultation
                                     requirement.
------------------------------------------------------------------------
Appendix A to Subpart B...........  Addition of guidance relating to the
                                     achievement of ``balanced''
                                     advisory committee membership.
------------------------------------------------------------------------
Appendix A to Subpart B...........  Addition of guidance covering the
                                     legal duration of the charter of an
                                     advisory committee required by
                                     statute where Congress authorizes
                                     the advisory committee for a period
                                     exceeding two years.
------------------------------------------------------------------------
Appendix A to Subpart C...........  Addition of guidance addressing the
                                     designation of an alternate
                                     Designated Federal Officer (DFO).
------------------------------------------------------------------------
102-3.130.........................  All references to compensation
                                     limits imposed by the Act have been
                                     updated, and references to
                                     alternative similar agency
                                     compensation systems other than the
                                     General Schedule have been
                                     included.
------------------------------------------------------------------------
102-3.130.........................  All references to the word,
                                     ``handicapped,'' have been replaced
                                     with the phrase, ``with
                                     disabilities.''
------------------------------------------------------------------------
Appendix A to Subpart D...........  Addition of guidance regarding
                                     activities that are not subject to
                                     the notice and open meeting
                                     requirements of the Act.
------------------------------------------------------------------------
102-3.165.........................  The requirement for the completion
                                     of advisory committee meeting
                                     minutes now requires the DFO to
                                     ensure certification within the
                                     time limit specified.
------------------------------------------------------------------------

D. Consultation With Other Federal Agencies

    Pursuant to section 7(d) of the Act, the guidelines contained in 
this final rule with respect to uniform fair rates of compensation for 
comparable services of members and staff of, and experts and 
consultants to advisory committees have been established after 
consultation with the U.S. Office of Personnel Management (OPM).

[[Page 37733]]

    Although not required by the Act, the guidelines contained in this 
final rule that refer to the applicability of conflict of interest 
statutes and other Federal ethics rules to advisory committee members 
have been established after consultation with the U.S. Office of 
Government Ethics (OGE).
    Although not required by the Act, the guidelines contained in this 
final rule that relate to the management of advisory committee records 
have been established after consultation with the National Archives and 
Records Administration (NARA).

E. Executive Order 12866

    GSA has determined that this final rule is a significant rule for 
the purposes of Executive Order 12866 of September 30, 1993.

F. Regulatory Flexibility Act

    GSA has determined that this final rule will not have a significant 
economic impact on a substantial number of small entities (including 
small businesses, small organizational units, and small governmental 
jurisdictions) within the meaning of the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The rule does not impact small entities and applies 
only to Federal officers and agencies.

G. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this final rule 
does not contain any information collection requirements that require 
the approval of the Office of Management and Budget (OMB) under 44 
U.S.C. 3501, et seq.

H. Small Business Regulatory Enforcement Fairness Act

    This final rule is being submitted for Congressional review as 
prescribed under 5 U.S.C. 801.

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

    Advisory committees, Government property management.

    Dated: July 5, 2001.
Stephen A. Perry,
Administrator of General Services.

    For the reasons set forth in the preamble, GSA amends 41 CFR 
chapters 101 and 102 as follows:

CHAPTER 101--[AMENDED]

PART 101-6--MISCELLANEOUS REGULATIONS

    1. Subpart 101-6.10 is revised to read as follows:

Subpart 101-6.10--Federal Advisory Committee Management

    Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)); sec. 7, 
5 U.S.C., App.; and E.O. 12024, 3 CFR, 1977 Comp., p. 158.


Sec. 101-6.1001  Cross-reference to the Federal Management Regulation 
(FMR) (41 CFR chapter 102, parts 102-1 through 102-220).

    For Federal advisory committee management information previously 
contained in this subpart, see FMR part 102-3 (41 CFR part 102-3).

CHAPTER 102--[AMENDED]

    2. Part 102-3 is added to subchapter A of chapter 102 to read as 
follows:

PART 102-3--FEDERAL ADVISORY COMMITTEE MANAGEMENT

Subpart A--What Policies Apply To Advisory Committees Established 
Within the Executive Branch?
Sec.
102-3.5  What does this subpart cover and how does it apply?
102-3.10  What is the purpose of the Federal Advisory Committee Act?
102-3.15  Who are the intended users of this part?
102-3.20  How does this part meet the needs of its audience?
102-3.25  What definitions apply to this part?
102-3.30  What policies govern the use of advisory committees?
102-3.35  What policies govern the use of subcommittees?
102-3.40  What types of committees or groups are not covered by the 
Act and this part?
Appendix A to Subpart A of Part 102-3--Key Points and Principles
Subpart B--How Are Advisory Committees Established, Renewed, 
Reestablished, and Terminated?
102-3.45  What does this subpart cover and how does it apply?
102-3.50  What are the authorities for establishing advisory 
committees?
102-3.55  What rules apply to the duration of an advisory committee?
102-3.60  What procedures are required to establish, renew, or 
reestablish a discretionary advisory committee?
102-3.65  What are the public notification requirements for 
discretionary advisory committees?
102-3.70  What are the charter filing requirements?
102-3.75  What information must be included in the charter of an 
advisory committee?
102-3.80  How are minor charter amendments accomplished?
102-3.85  How are major charter amendments accomplished?
Appendix A to Subpart B of Part 102-3--Key Points and Principles
Subpart C--How Are Advisory Committees Managed?
102-3.90  What does this subpart cover and how does it apply?
102-3.95  What principles apply to the management of advisory 
committees?
102-3.100  What are the responsibilities and functions of GSA?
102-3.105  What are the responsibilities of an agency head?
102-3.110  What are the responsibilities of a chairperson of an 
independent Presidential advisory committee?
102-3.115  What are the responsibilities and functions of an agency 
Committee Management Officer (CMO)?
102-3.120  What are the responsibilities and functions of a 
Designated Federal Officer (DFO)?
102-3.125  How should agencies consider the roles of advisory 
committee members and staff?
102-3.130  What policies apply to the appointment, and compensation 
or reimbursement of advisory committee members, staff, and experts 
and consultants?
Appendix A to Subpart C of Part 102-3--Key Points and Principles
Subpart D--Advisory Committee Meeting and Recordkeeping Procedures
102-3.135  What does this subpart cover and how does it apply?
102-3.140  What policies apply to advisory committee meetings?
102-3.145  What policies apply to subcommittee meetings?
102-3.150  How are advisory committee meetings announced to the 
public?
102-3.155  How are advisory committee meetings closed to the public?
102-3.160  What activities of an advisory committee are not subject 
to the notice and open meeting requirements of the Act?
102-3.165  How are advisory committee meetings documented?
102-3.170  How does an interested party obtain access to advisory 
committee records?
102-3.175  What are the reporting and recordkeeping requirements for 
an advisory committee?
Appendix A to Subpart D of Part 102-3--Key Points and Principles
Subpart E--How Does This Subpart Apply to Advice or Recommendations 
Provided to Agencies by the National Academy of Sciences or the 
National Academy of Public Administration?
102-3.180  What does this subpart cover and how does it apply?
102-3.185  What does this subpart require agencies to do?
Appendix A to Subpart E of Part 102-3--Key Points and Principles

    Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)); sec. 7, 
5 U.S.C., App.; and E.O. 12024, 3 CFR, 1977 Comp., p. 158.

[[Page 37734]]

Subpart A--What Policies Apply to Advisory Committees Established 
Within the Executive Branch?


Sec. 102-3.5  What does this subpart cover and how does it apply?

    This subpart provides the policy framework that must be used by 
agency heads in applying the Federal Advisory Committee Act (FACA), as 
amended (or ``the Act''), 5 U.S.C., App., to advisory committees they 
establish and operate. In addition to listing key definitions 
underlying the interpretation of the Act, this subpart establishes the 
scope and applicability of the Act, and outlines specific exclusions 
from its coverage.


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

    FACA governs the establishment, operation, and termination of 
advisory committees within the executive branch of the Federal 
Government. The Act defines what constitutes a Federal advisory 
committee and provides general procedures for the executive branch to 
follow for the operation of these advisory committees. In addition, the 
Act is designed to assure that the Congress and the public are kept 
informed with respect to the number, purpose, membership, activities, 
and cost of advisory committees.


Sec. 102-3.15  Who are the intended users of this part?

    (a) The primary users of this Federal Advisory Committee Management 
part are:
    (1) Executive branch officials and others outside Government 
currently involved with an established advisory committee;
    (2) Executive branch officials who seek to establish or utilize an 
advisory committee;
    (3) Executive branch officials and others outside Government who 
have decided to pursue, or who are already engaged in, a form of public 
involvement or consultation and want to avoid inadvertently violating 
the Act; and
    (4) Field personnel of Federal agencies who are increasingly 
involved with the public as part of their efforts to increase 
collaboration and improve customer service.
    (b) Other types of end-users of this part include individuals and 
organizations outside of the executive branch who seek to understand 
and interpret the Act, or are seeking additional guidance.


Sec. 102-3.20  How does this part meet the needs of its audience?

    This Federal Advisory Committee Management part meets the general 
and specific needs of its audience by addressing the following issues 
and related topics:
    (a) Scope and applicability. This part provides guidance on the 
threshold issue of what constitutes an advisory committee and clarifies 
the limits of coverage by the Act for the benefit of the intended users 
of this part.
    (b) Policies and guidelines. This part defines the policies, 
establishes minimum requirements, and provides guidance to Federal 
officers and agencies for the establishment, operation, administration, 
and duration of advisory committees subject to the Act. This includes 
reporting requirements that keep Congress and the public informed of 
the number, purpose, membership, activities, benefits, and costs of 
these advisory committees. These requirements form the basis for 
implementing the Act at both the agency and Governmentwide levels.
    (c) Examples and principles. This part provides summary-level key 
points and principles at the end of each subpart that provide more 
clarification on the role of Federal advisory committees in the larger 
context of public involvement in Federal decisions and activities. This 
includes a discussion of the applicability of the Act to different 
decisionmaking scenarios.


Sec. 102-3.25  What definitions apply to this part?

    The following definitions apply to this Federal Advisory Committee 
Management part:
    Act means the Federal Advisory Committee Act, as amended, 5 U.S.C., 
App.
    Administrator means the Administrator of General Services.
    Advisory committee subject to the Act, except as specifically 
exempted by the Act or by other statutes, or as not covered by this 
part, means any committee, board, commission, council, conference, 
panel, task force, or other similar group, which is established by 
statute, or established or utilized by the President or by an agency 
official, for the purpose of obtaining advice or recommendations for 
the President or on issues or policies within the scope of an agency 
official's responsibilities.
    Agency has the same meaning as in 5 U.S.C. 551(1).
    Committee Management Officer (``CMO''), means the individual 
designated by the agency head to implement the provisions of section 
8(b) of the Act and any delegated responsibilities of the agency head 
under the Act.
    Committee Management Secretariat (``Secretariat''), means the 
organization established pursuant to section 7(a) of the Act, which is 
responsible for all matters relating to advisory committees, and 
carries out the responsibilities of the Administrator under the Act and 
Executive Order 12024 (3 CFR, 1977 Comp., p. 158).
    Committee meeting means any gathering of advisory committee members 
(whether in person or through electronic means) held with the approval 
of an agency for the purpose of deliberating on the substantive matters 
upon which the advisory committee provides advice or recommendations.
    Committee member means an individual who serves by appointment or 
invitation on an advisory committee or subcommittee.
    Committee staff means any Federal employee, private individual, or 
other party (whether under contract or not) who is not a committee 
member, and who serves in a support capacity to an advisory committee 
or subcommittee.
    Designated Federal Officer (``DFO''), means an individual 
designated by the agency head, for each advisory committee for which 
the agency head is responsible, to implement the provisions of sections 
10(e) and (f) of the Act and any advisory committee procedures of the 
agency under the control and supervision of the CMO.
    Discretionary advisory committee means any advisory committee that 
is established under the authority of an agency head or authorized by 
statute. An advisory committee referenced in general (non-specific) 
authorizing language or Congressional committee report language is 
discretionary, and its establishment or termination is within the legal 
discretion of an agency head.
    Independent Presidential advisory committee means any Presidential 
advisory committee not assigned by the Congress in law, or by President 
or the President's delegate, to an agency for administrative and other 
support.
    Non-discretionary advisory committee means any advisory committee 
either required by statute or by Presidential directive. A non-
discretionary advisory committee required by statute generally is 
identified specifically in a statute by name, purpose, or functions, 
and its establishment or termination is beyond the legal discretion of 
an agency head.
    Presidential advisory committee means any advisory committee 
authorized by the Congress or directed by the President to advise the 
President.
    Subcommittee means a group, generally not subject to the Act, that 
reports to an advisory committee and not directly to a Federal officer 
or

[[Page 37735]]

agency, whether or not its members are drawn in whole or in part from 
the parent advisory committee.
    Utilized for the purposes of the Act, does not have its ordinary 
meaning. A committee that is not established by the Federal Government 
is utilized within the meaning of the Act when the President or a 
Federal office or agency exercises actual management or control over 
its operation.


Sec. 102-3.30  What policies govern the use of advisory committees?

    The policies to be followed by Federal departments and agencies in 
establishing and operating advisory committees consistent with the Act 
are as follows:
    (a) Determination of need in the public interest. A discretionary 
advisory committee may be established only when it is essential to the 
conduct of agency business and when the information to be obtained is 
not already available through another advisory committee or source 
within the Federal Government. Reasons for deciding that an advisory 
committee is needed may include whether:
    (1) Advisory committee deliberations will result in the creation or 
elimination of (or change in) regulations, policies, or guidelines 
affecting agency business;
    (2) The advisory committee will make recommendations resulting in 
significant improvements in service or reductions in cost; or
    (3) The advisory committee's recommendations will provide an 
important additional perspective or viewpoint affecting agency 
operations.
    (b) Termination. An advisory committee must be terminated when:
    (1) The stated objectives of the committee have been accomplished;
    (2) The subject matter or work of the committee has become obsolete 
by the passing of time or the assumption of the committee's functions 
by another entity;
    (3) The agency determines that the cost of operation is excessive 
in relation to the benefits accruing to the Federal Government;
    (4) In the case of a discretionary advisory committee, upon the 
expiration of a period not to exceed two years, unless renewed;
    (5) In the case of a non-discretionary advisory committee required 
by Presidential directive, upon the expiration of a period not to 
exceed two years, unless renewed by authority of the President; or
    (6) In the case of a non-discretionary advisory committee required 
by statute, upon the expiration of the time explicitly specified in the 
statute, or implied by operation of the statute.
    (c) Balanced membership. An advisory committee must be fairly 
balanced in its membership in terms of the points of view represented 
and the functions to be performed.
    (d) Open meetings. Advisory committee meetings must be open to the 
public except where a closed or partially-closed meeting has been 
determined proper and consistent with the exemption(s) of the 
Government in the Sunshine Act, 5 U.S.C. 552b(c), as the basis for 
closure.
    (e) Advisory functions only. The function of advisory committees is 
advisory only, unless specifically provided by statute or Presidential 
directive.


Sec. 102-3.35  What policies govern the use of subcommittees?

    (a) In general, the requirements of the Act and the policies of 
this Federal Advisory Committee Management part do not apply to 
subcommittees of advisory committees that report to a parent advisory 
committee and not directly to a Federal officer or agency. However, 
this section does not preclude an agency from applying any provision of 
the Act and this part to any subcommittee of an advisory committee in 
any particular instance.
    (b) The creation and operation of subcommittees must be approved by 
the agency establishing the parent advisory committee.


Sec. 102-3.40  What types of committees or groups are not covered by 
the Act and this part?

    The following are examples of committees or groups that are not 
covered by the Act or this Federal Advisory Committee Management part:
    (a) Committees created by the National Academy of Sciences (NAS) or 
the National Academy of Public Administration (NAPA). Any committee 
created by NAS or NAPA in accordance with section 15 of the Act, except 
as otherwise covered by subpart E of this part;
    (b) Advisory committees of the Central Intelligence Agency and the 
Federal Reserve System. Any advisory committee established or utilized 
by the Central Intelligence Agency or the Federal Reserve System;
    (c) Committees exempted by statute. Any committee specifically 
exempted from the Act by law;
    (d) Committees not actually managed or controlled by the executive 
branch. Any committee or group created by non-Federal entities (such as 
a contractor or private organization), provided that these committees 
or groups are not actually managed or controlled by the executive 
branch;
    (e) Groups assembled to provide individual advice. Any group that 
meets with a Federal official(s), including a public meeting, where 
advice is sought from the attendees on an individual basis and not from 
the group as a whole;
    (f) Groups assembled to exchange facts or information. Any group 
that meets with a Federal official(s) for the purpose of exchanging 
facts or information;
    (g) Intergovernmental committees. Any committee composed wholly of 
full-time or permanent part-time officers or employees of the Federal 
Government and elected officers of State, local and tribal governments 
(or their designated employees with authority to act on their behalf), 
acting in their official capacities. However, the purpose of such a 
committee must be solely to exchange views, information, or advice 
relating to the management or implementation of Federal programs 
established pursuant to statute, that explicitly or inherently share 
intergovernmental responsibilities or administration (see guidelines 
issued by the Office of Management and Budget (OMB) on section 204(b) 
of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1534(b), OMB 
Memorandum M-95-20, dated September 21, 1995, available from the 
Committee Management Secretariat (MC), General Services Administration, 
1800 F Street, NW., Washington, DC 20405-0002);
    (h) Intragovernmental committees. Any committee composed wholly of 
full-time or permanent part-time officers or employees of the Federal 
Government;
    (i) Local civic groups. Any local civic group whose primary 
function is that of rendering a public service with respect to a 
Federal program;
    (j) Groups established to advise State or local officials. Any 
State or local committee, council, board, commission, or similar group 
established to advise or make recommendations to State or local 
officials or agencies; and
    (k) Operational committees. Any committee established to perform 
primarily operational as opposed to advisory functions. Operational 
functions are those specifically authorized by statute or Presidential 
directive, such as making or implementing Government decisions or 
policy. A committee designated operational may be covered by the Act if 
it becomes primarily advisory in nature. It is the responsibility of 
the administering agency to determine whether a committee is primarily 
operational. If so, it does not fall under

[[Page 37736]]

the requirements of the Act and this part.

Appendix A to Subpart A of Part 102-3--Key Points and Principles

    This appendix provides additional guidance in the form of 
answers to frequently asked questions and identifies key points and 
principles that may be applied to situations not covered elsewhere 
in this subpart. The guidance follows:

                                                                 Appendix A to Subpart A
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Key points and principles                      Section(s)                                Question(s)                            Guidance
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. FACA applies to advisory       102-3.25, 102-3.40(d), 102-3.40(f)            1. A local citizens group wants to     A. The answer to questions 1, 2,
 committees that are either                                                      meet with a Federal official(s) to     and 3 is yes, if the agency does
 ``established'' or ``utilized''                                                 help improve the condition of a        not either ``establish'' or
 by an agency.                                                                   forest's trails and quality of         ``utilize'' (exercise ``actual
                                                                                 concessions. May the Government meet   management or control'' over)
                                                                                 with the group without chartering      the group. (i) Although there is
                                                                                 the group under the Act?               no precise legal definition of
                                                                                2. May an agency official attend        ``actual management or
                                                                                 meetings of external groups where      control,'' the following factors
                                                                                 advice may be offered to the           may be used by an agency to
                                                                                 Government during the course of        determine whether or not a group
                                                                                 discussions?                           is ``utilized'' within the
                                                                                3. May an agency official participate   meaning of the Act: (a) Does the
                                                                                 in meetings of groups or               agency manage or control the
                                                                                 organizations as a member without      group's membership or otherwise
                                                                                 chartering the group under the Act?    determine its composition? (b)
                                                                                4. Is the Act applicable to meetings    Does the agency manage or
                                                                                 between agency officials and their     control the group's agenda? (c)
                                                                                 contractors, licensees, or other       Does the agency fund the group's
                                                                                 ``private sector program partners?''   activities? (ii) Answering
                                                                                                                        ``yes'' to any or all of
                                                                                                                        questions 1, 2, or 3 does not
                                                                                                                        automatically mean the group is
                                                                                                                        ``utilized'' within the meaning
                                                                                                                        of the Act. However, an agency
                                                                                                                        may need to reconsider the
                                                                                                                        status of the group under the
                                                                                                                        Act if the relationship in
                                                                                                                        question essentially is
                                                                                                                        indistinguishable from an
                                                                                                                        advisory committee established
                                                                                                                        by the agency.
                                                                                                                       B. The answer to question 4 is
                                                                                                                        no. Agencies often meet with
                                                                                                                        contractors and licensees,
                                                                                                                        individually and as a group, to
                                                                                                                        discuss specific matters
                                                                                                                        involving a contract's
                                                                                                                        solicitation, issuance, and
                                                                                                                        implementation, or an agency's
                                                                                                                        efforts to ensure compliance
                                                                                                                        with its regulations. Such
                                                                                                                        interactions are not subject to
                                                                                                                        the Act because these groups are
                                                                                                                        not ``established'' or
                                                                                                                        ``utilized'' for the purpose of
                                                                                                                        obtaining advice or
                                                                                                                        recommendations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
II. The development of consensus  102-3.25, 102-3.40(d), 102-3.40(f)            1. If, during a public meeting of the  A. No, the public meeting need
 among all or some of the                                                        ``town hall'' type called by an        not be stopped. (i) A group must
 attendees at a public meeting                                                   agency, it appears that the audience   either be ``established'' or
 or similar forum does not                                                       is achieving consensus, or a common    ``utilized'' by the executive
 automatically invoke FACA.                                                      point of view, is this an indication   branch in order for the Act to
                                                                                 that the meeting is subject to the     apply. (ii) Public meetings
                                                                                 Act and must be stopped?               represent a chance for
                                                                                                                        individuals to voice their
                                                                                                                        opinions and/or share
                                                                                                                        information. In that sense,
                                                                                                                        agencies do not either
                                                                                                                        ``establish'' the assemblage of
                                                                                                                        individuals as an advisory
                                                                                                                        committee or ``utilize'' the
                                                                                                                        attendees as an advisory
                                                                                                                        committee because there are no
                                                                                                                        elements of either
                                                                                                                        ``management'' or ``control''
                                                                                                                        present or intended.

[[Page 37737]]

 
III. Meetings between a Federal   102-3.40(e)                                   1. May an agency official meet with a  A. The answer to questions 1 and
 official(s) and a collection of                                                 number of persons collectively to      2 is yes. The Act applies only
 individuals where advice is                                                     obtain their individual views          where a group is established or
 sought from the attendees on an                                                 without violating the Act?             utilized to provide advice or
 individual basis are not                                                       2. Does the concept of an               recommendations ``as a group.''
 subject to the Act.                                                             ``individual'' apply only to           (i) A mere assemblage or
                                                                                 ``natural persons?''                   collection of individuals where
                                                                                                                        the attendees are providing
                                                                                                                        individual advice is not acting
                                                                                                                        ``as a group'' under the Act.
                                                                                                                        (ii) In this respect,
                                                                                                                        ``individual'' is not limited to
                                                                                                                        ``natural persons.'' Where the
                                                                                                                        group consists of
                                                                                                                        representatives of various
                                                                                                                        existing organizations, each
                                                                                                                        representative individually may
                                                                                                                        provide advice on behalf of that
                                                                                                                        person's organization without
                                                                                                                        violating the Act, if those
                                                                                                                        organizations themselves are not
                                                                                                                        ``managed or controlled'' by the
                                                                                                                        agency.
--------------------------------------------------------------------------------------------------------------------------------------------------------
IV. Meetings between Federal,     102-3.40(g)                                   1. Is the exclusion from the Act       A. Yes. The scope of activities
 State, local, and tribal                                                        covering elected officials of State,   covered by the exclusion from
 elected officials are not                                                       local, and tribal governments acting   the Act for intergovernmental
 subject to the Act.                                                             in their official capacities also      activities should be construed
                                                                                 applicable to associations of State    broadly to facilitateFederal/
                                                                                 officials?                             State/local/tribal discussions
                                                                                                                        on shared intergovernmental
                                                                                                                        program responsibilities or
                                                                                                                        administration. Pursuant to a
                                                                                                                        Presidential delegation, the
                                                                                                                        Office of Management and Budget
                                                                                                                        (OMB) issued guidelines for this
                                                                                                                        exemption, authorized by section
                                                                                                                        204(b) of the Unfunded Mandates
                                                                                                                        Reform Act of 1995, 2U.S.C.
                                                                                                                        1534(b). (See OMB Memorandum M-
                                                                                                                        95-20, dated September 21, 1995,
                                                                                                                        published at 60 FR 50651
                                                                                                                        (September 29, 1995), and which
                                                                                                                        is available from the Committee
                                                                                                                        Management Secretariat (MC),
                                                                                                                        General Services Administration,
                                                                                                                        1800 F Street, NW, Washington,
                                                                                                                        DC 20405-0002).
--------------------------------------------------------------------------------------------------------------------------------------------------------
V. Advisory committees            102-3.30(e), 102-3.40(k)                      1. Are ``operational committees''      A. No, so long as the operational
 established under the Act may                                                   subject to the Act, even if they may   functions performed by the
 perform advisory functions                                                      engage in some advisory activities?    committee constitute the
 only, unless authorized to                                                                                             ``primary'' mission of the
 perform ``operational'' duties                                                                                         committee. Only committees
 by the Congress or by                                                                                                  established or utilized by the
 Presidential directive.                                                                                                executive branch in the interest
                                                                                                                        of obtaining advice or
                                                                                                                        recommendations are subject to
                                                                                                                        the Act. However, without
                                                                                                                        specific authorization by the
                                                                                                                        Congress or direction by the
                                                                                                                        President, Federal functions
                                                                                                                        (decisionmaking or operations)
                                                                                                                        cannot be delegated to, or
                                                                                                                        assumed by, non-Federal
                                                                                                                        individuals or entities.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 37738]]

 
VI. Committees authorized by the  102-3.40(k)                                   1. What characteristics are common to  A. In answer to question 1, non-
 Congress in law or by                                                           ``operational committees?''            advisory, or ``operational''
 Presidential directive to                                                      2. A committee created by the           committees generally have the
 perform primarily                                                               Congress by statute is responsible,    following characteristics: (i)
 ``operational'' functions are                                                   for example, for developing plans      Specific functions and/or
 not subject to the Act.                                                         and events to commemorate the          authorities provided by the
                                                                                 contributions of wildlife to the       Congress in law or by
                                                                                 enjoyment of the Nation's parks.       Presidential directive; (ii) The
                                                                                 Part of the committee's role           ability to make and implement
                                                                                 includes providing advice to certain   traditionally Governmental
                                                                                 Federal agencies as may be necessary   decisions; and (iii) The
                                                                                 to coordinate these events. Is this    authority to perform specific
                                                                                 committee subject to FACA?             tasks to implement a Federal
                                                                                                                        program.
                                                                                                                       B. Agencies are responsible for
                                                                                                                        determining whether or not a
                                                                                                                        committee primarily provides
                                                                                                                        advice or recommendations and
                                                                                                                        is, therefore, subject to the
                                                                                                                        Act, or is primarily
                                                                                                                        ``operational'' and not covered
                                                                                                                        by FACA.
                                                                                                                       C. The answer to question 2 is
                                                                                                                        no. The committee is not subject
                                                                                                                        to the Act because: (i) Its
                                                                                                                        functions are to plan and
                                                                                                                        implement specific tasks; (ii)
                                                                                                                        The committee has been granted
                                                                                                                        the express authority by the
                                                                                                                        Congress to perform its
                                                                                                                        statutorily required functions;
                                                                                                                        and (iii) Its incidental role of
                                                                                                                        providing advice to other
                                                                                                                        Federal agencies is secondary to
                                                                                                                        its primarily operational role
                                                                                                                        of planning and implementing
                                                                                                                        specific tasks and performing
                                                                                                                        statutory functions.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Subpart B--How Are Advisory Committees Established, Renewed, 
Reestablished, and Terminated?


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

    Requirements for establishing and terminating advisory committees 
vary depending on the establishing entity and the source of authority 
for the advisory committee. This subpart covers the procedures 
associated with the establishment, renewal, reestablishment, and 
termination of advisory committees. These procedures include consulting 
with the Secretariat, preparing and filing an advisory committee 
charter, publishing notice in the Federal Register, and amending an 
advisory committee charter.


Sec. 102-3.50  What are the authorities for establishing advisory 
committees?

    FACA identifies four sources of authority for establishing an 
advisory committee:
    (a) Required by statute. By law where the Congress establishes an 
advisory committee, or specifically directs the President or an agency 
to establish it (non-discretionary);
    (b) Presidential authority. By Executive order of the President or 
other Presidential directive (non-discretionary);
    (c) Authorized by statute. By law where the Congress authorizes, 
but does not direct the President or an agency to establish it 
(discretionary); or
    (d) Agency authority. By an agency under general authority in title 
5 of the United States Code or under other general agency-authorizing 
statutes (discretionary).


Sec. 102-3.55  What rules apply to the duration of an advisory 
committee?

    (a) An advisory committee automatically terminates two years after 
its date of establishment unless:
    (1) The statutory authority used to establish the advisory 
committee provides a different duration;
    (2) The President or agency head determines that the advisory 
committee has fulfilled the purpose for which it was established and 
terminates the advisory committee earlier;
    (3) The President or agency head determines that the advisory 
committee is no longer carrying out the purpose for which it was 
established and terminates the advisory committee earlier; or
    (4) The President or agency head renews the committee not later 
than two years after its date of establishment in accordance with 
Sec. 102-3.60. If an advisory committee needed by the President or an 
agency terminates because it was not renewed in a timely manner, or if 
the advisory committee has been terminated under the provisions of 
Sec. 102-3.30(b), it can be reestablished in accordance with Sec. 102-
3.60.
    (b) When an advisory committee terminates, the agency shall notify 
the Secretariat of the effective date of the termination.


Sec. 102-3.60  What procedures are required to establish, renew, or 
reestablish a discretionary advisory committee?

    (a) Consult with the Secretariat. Before establishing, renewing, or 
reestablishing a discretionary advisory committee and filing the 
charter as addressed later in Sec. 102-3.70, the agency head must 
consult with the Secretariat. As part of this consultation, agency 
heads are encouraged to engage in constructive dialogue with the 
Secretariat. With a full understanding of the background and purpose 
behind the proposed advisory committee, the Secretariat may share its 
knowledge and experience with the agency on how best to make use of the 
proposed advisory committee, suggest alternate methods of attaining its 
purpose that the agency may wish to consider, or inform the agency of a 
pre-existing advisory committee performing similar functions.
    (b) Include required information in the consultation. Consultations 
covering the establishment, renewal, and reestablishment of advisory 
committees must, as a minimum, contain the following information:

[[Page 37739]]

    (1) Explanation of need. An explanation stating why the advisory 
committee is essential to the conduct of agency business and in the 
public interest;
    (2) Lack of duplication of resources. An explanation stating why 
the advisory committee's functions cannot be performed by the agency, 
another existing committee, or other means such as a public hearing; 
and
    (3) Fairly balanced membership. A description of the agency's plan 
to attain fairly balanced membership. The plan will ensure that, in the 
selection of members for the advisory committee, the agency will 
consider a cross-section of those directly affected, interested, and 
qualified, as appropriate to the nature and functions of the advisory 
committee. Advisory committees requiring technical expertise should 
include persons with demonstrated professional or personal 
qualifications and experience relevant to the functions and tasks to be 
performed.


Sec. 102-3.65  What are the public notification requirements for 
discretionary advisory committees?

    A notice to the public in the Federal Register is required when a 
discretionary advisory committee is established, renewed, or 
reestablished.
    (a) Procedure. Upon receiving notice from the Secretariat that its 
review is complete in accordance with Sec. 102-3.60(a), the agency must 
publish a notice in the Federal Register announcing that the advisory 
committee is being established, renewed, or reestablished. For the 
establishment of a new advisory committee, the notice also must 
describe the nature and purpose of the advisory committee and affirm 
that the advisory committee is necessary and in the public interest.
    (b) Time required for notices. Notices of establishment and 
reestablishment of advisory committees must appear at least 15 calendar 
days before the charter is filed, except that the Secretariat may 
approve less than 15 calendar days when requested by the agency for 
good cause. This requirement for advance notice does not apply to 
advisory committee renewals, notices of which may be published 
concurrently with the filing of the charter.


Sec. 102-3.70  What are the charter filing requirements?

    No advisory committee may meet or take any action until a charter 
has been filed by the Committee Management Officer (CMO) designated in 
accordance with section 8(b) of the Act, or by another agency official 
designated by the agency head.
    (a) Requirement for discretionary advisory committees. To 
establish, renew, or reestablish a discretionary advisory committee, a 
charter must be filed with:
    (1) The agency head;
    (2) The standing committees of the Senate and the House of 
Representatives having legislative jurisdiction of the agency, the date 
of filing with which constitutes the official date of establishment for 
the advisory committee;
    (3) The Library of Congress, Anglo-American Acquisitions Division, 
Government Documents Section, Federal Advisory Committee Desk, 101 
Independence Avenue, SE., Washington, DC 20540-4172; and
    (4) The Secretariat, indicating the date the charter was filed in 
accordance with paragraph (a)(2) of this section.
    (b) Requirement for non-discretionary advisory committees. Charter 
filing requirements for non-discretionary advisory committees are the 
same as those in paragraph (a) of this section, except the date of 
establishment for a Presidential advisory committee is the date the 
charter is filed with the Secretariat.
    (c) Requirement for subcommittees that report directly to the 
Government. Subcommittees that report directly to a Federal officer or 
agency must comply with this subpart and include in a charter the 
information required by Sec. 102-3.75.


Sec. 102-3.75  What information must be included in the charter of an 
advisory committee?

    (a) Purpose and contents of an advisory committee charter. An 
advisory committee charter is intended to provide a description of an 
advisory committee's mission, goals, and objectives. It also provides a 
basis for evaluating an advisory committee's progress and 
effectiveness. The charter must contain the following information:
    (1) The advisory committee's official designation;
    (2) The objectives and the scope of the advisory committee's 
activity;
    (3) The period of time necessary to carry out the advisory 
committee's purpose(s);
    (4) The agency or Federal officer to whom the advisory committee 
reports;
    (5) The agency responsible for providing the necessary support to 
the advisory committee;
    (6) A description of the duties for which the advisory committee is 
responsible and specification of the authority for any non-advisory 
functions;
    (7) The estimated annual costs to operate the advisory committee in 
dollars and person years;
    (8) The estimated number and frequency of the advisory committee's 
meetings;
    (9) The planned termination date, if less than two years from the 
date of establishment of the advisory committee;
    (10) The name of the President's delegate, agency, or organization 
responsible for fulfilling the reporting requirements of section 6(b) 
of the Act, if appropriate; and
    (11) The date the charter is filed in accordance with Sec. 102-
3.70.
    (b) The provisions of paragraphs (a)(1) through (11) of this 
section apply to all subcommittees that report directly to a Federal 
officer or agency.


Sec. 102-3.80  How are minor charter amendments accomplished?

    (a) Responsibility and limitation. The agency head is responsible 
for amending the charter of an advisory committee. Amendments may be 
either minor or major. The procedures for making changes and filing 
amended charters will depend upon the authority basis for the advisory 
committee. Amending any existing advisory committee charter does not 
constitute renewal of the advisory committee under Sec. 102-3.60.
    (b) Procedures for minor amendments. To make a minor amendment to 
an advisory committee charter, such as changing the name of the 
advisory committee or modifying the estimated number or frequency of 
meetings, the following procedures must be followed:
    (1) Non-discretionary advisory committees. The agency head must 
ensure that any minor technical changes made to current charters are 
consistent with the relevant authority. When the Congress by law, or 
the President by Executive order, changes the authorizing language that 
has been the basis for establishing an advisory committee, the agency 
head or the chairperson of an independent Presidential advisory 
committee must amend those sections of the current charter affected by 
the new statute or Executive order, and file the amended charter as 
specified in Sec. 102-3.70.
    (2) Discretionary advisory committees. The charter of a 
discretionary advisory committee may be amended when an agency head 
determines that technical provisions of a filed charter are inaccurate, 
or specific provisions have changed or become obsolete with the passing 
of time, and that these amendments will not alter the advisory 
committee's objectives and scope

[[Page 37740]]

substantially. The agency must amend the charter language as necessary 
and file the amended charter as specified in Sec. 102-3.70.


Sec. 102-3.85  How are major charter amendments accomplished?

    Procedures for making major amendments to advisory committee 
charters, such as substantial changes in objectives and scope, duties, 
and estimated costs, are the same as in Sec. 102-3.80, except that for 
discretionary advisory committees an agency must:
    (a) Consult with the Secretariat on the amended language, and 
explain the purpose of the changes and why they are necessary; and
    (b) File the amended charter as specified in Sec. 102-3.70.

Appendix A to Subpart B of Part 102-3--Key Points and Principles

    This appendix provides additional guidance in the form of 
answers to frequently asked questions and identifies key points and 
principles that may be applied to situations not covered elsewhere 
in this subpart. The guidance follows:


                                                                 Appendix A to Subpart B
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Key points and principles                   Section(s)                          Question(s)                               Guidance
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. Agency heads must consult with the      102-3.60, 102-3.115.........  1. Can an agency head delegate to the     A. Yes. Many administrative functions
 Secretariat prior to establishing a                                      Committee Management Officer (CMO)        performed to implement the Act may
 discretionary advisory committee.                                        responsibility for consulting with the    be delegated. However, those
                                                                          Secretariat regarding the                 functions related to approving the
                                                                          establishment, renewal, or                final establishment, renewal, or
                                                                          reestablishment of discretionary          reestablishment of discretionary
                                                                          advisory committees?                      advisory committees are reserved for
                                                                                                                    the agency head. Each agency CMO
                                                                                                                    should assure that their internal
                                                                                                                    processes for managing advisory
                                                                                                                    committees include appropriate
                                                                                                                    certifications by the agency head.
--------------------------------------------------------------------------------------------------------------------------------------------------------
II. Agency heads are responsible for       102-3.60(a), 102-3.105......  1. Who retains final authority for        A. Although agency heads retain final
 complying with the Act, including                                        establishing or renewing a                authority for establishing or
 determining which discretionary advisory                                 discretionary advisory committee?         renewing discretionary advisory
 committees should be established and                                                                               committees, these decisions should
 renewed.                                                                                                           be consistent with Sec.  102-
                                                                                                                    3.105(e) and reflect consultation
                                                                                                                    with the Secretariat under Sec.  102-
                                                                                                                    3.60(a).
--------------------------------------------------------------------------------------------------------------------------------------------------------
III. An advisory committee must be fairly  102-3.30(c), 102-3.60(b)(3).  1. What factors should be considered in   A. The composition of an advisory
 balanced in its membership in terms of                                   achieving a ``balanced'' advisory         committee's membership will depend
 the points of view represented and the                                   committee membership?                     upon several factors, including: (i)
 functions to be performed.                                                                                         The advisory committee's mission;
                                                                                                                    (ii) The geographic, ethnic, social,
                                                                                                                    economic, or scientific impact of
                                                                                                                    the advisory committee's
                                                                                                                    recommendations; (iii) The types of
                                                                                                                    specific perspectives required, for
                                                                                                                    example, such as those of consumers,
                                                                                                                    technical experts, the public at-
                                                                                                                    large, academia, business, or other
                                                                                                                    sectors; (iv) The need to obtain
                                                                                                                    divergent points of view on the
                                                                                                                    issues before the advisory
                                                                                                                    committee; and (v) The relevance of
                                                                                                                    State, local, or tribal governments
                                                                                                                    to the development of the advisory
                                                                                                                    committee's recommendations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
IV. Charters for advisory committees       102-3.70(b).................  1. If an advisory committee's duration    A. Yes. Section 14(b)(2) of the Act
 required by statute must be filed every                                  exceeds two years, must a charter be      provides that: Any advisory
 two years regardless of the duration                                     filed with the Congress and GSA every     committee established by an Act of
 provided in the statute.                                                 two years?                                Congress shall file a charter upon
                                                                                                                    the expiration of each successive
                                                                                                                    two-year period following the date
                                                                                                                    of enactment of the Act establishing
                                                                                                                    such advisory committee.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Subpart C--How Are Advisory Committees Managed?


Sec. 102-3.90  What does this subpart cover and how does it apply?

    This subpart outlines specific responsibilities and functions to be 
carried out by the General Services Administration (GSA), the agency 
head, the Committee Management Officer (CMO), and the Designated 
Federal Officer (DFO) under the Act.


Sec. 102-3.95  What principles apply to the management of advisory 
committees?

    Agencies are encouraged to apply the following principles to the 
management of their advisory committees:
    (a) Provide adequate support. Before establishing an advisory 
committee, agencies should identify requirements and assure that 
adequate resources are available to support anticipated activities. 
Considerations related to support include office space, necessary 
supplies and equipment, Federal staff support, and access to key 
decisionmakers.
    (b) Focus on mission. Advisory committee members and staff should 
be fully aware of the advisory committee's mission, limitations, if 
any, on its duties, and the agency's goals and objectives. In general, 
the more specific an advisory committee's tasks and the more focused 
its activities are, the higher the likelihood will be that the advisory 
committee will fulfill its mission.

[[Page 37741]]

    (c) Follow plans and procedures. Advisory committee members and 
their agency sponsors should work together to assure that a plan and 
necessary procedures covering implementation are in place to support an 
advisory committee's mission. In particular, agencies should be clear 
regarding what functions an advisory committee can perform legally and 
those that it cannot perform.
    (d) Practice openness. In addition to achieving the minimum 
standards of public access established by the Act and this part, 
agencies should seek to be as inclusive as possible. For example, 
agencies may wish to explore the use of the Internet to post advisory 
committee information and seek broader input from the public.
    (e) Seek feedback. Agencies continually should seek feedback from 
advisory committee members and the public regarding the effectiveness 
of the advisory committee's activities. At regular intervals, agencies 
should communicate to the members how their advice has affected agency 
programs and decisionmaking.


Sec. 102-3.100  What are the responsibilities and functions of GSA?

    (a) Under section 7 of the Act, the General Services Administration 
(GSA) prepares regulations on Federal advisory committees to be 
prescribed by the Administrator of General Services, issues other 
administrative guidelines and management controls for advisory 
committees, and assists other agencies in implementing and interpreting 
the Act. Responsibility for these activities has been delegated by the 
Administrator to the GSA Committee Management Secretariat.
    (b) The Secretariat carries out its responsibilities by:
    (1) Conducting an annual comprehensive review of Governmentwide 
advisory committee accomplishments, costs, benefits, and other 
indicators to measure performance;
    (2) Developing and distributing Governmentwide training regarding 
the Act and related statutes and principles;
    (3) Supporting the Interagency Committee on Federal Advisory 
Committee Management in its efforts to improve compliance with the Act;
    (4) Designing and maintaining a Governmentwide shared Internet-
based system to facilitate collection and use of information required 
by the Act;
    (5) Identifying performance measures that may be used to evaluate 
advisory committee accomplishments; and
    (6) Providing recommendations for transmittal by the Administrator 
to the Congress and the President regarding proposals to improve 
accomplishment of the objectives of the Act.


Sec. 102-3.105  What are the responsibilities of an agency head?

    The head of each agency that establishes or utilizes one or more 
advisory committees must:
    (a) Comply with the Act and this Federal Advisory Committee 
Management part;
    (b) Issue administrative guidelines and management controls that 
apply to all of the agency's advisory committees subject to the Act;
    (c) Designate a Committee Management Officer (CMO);
    (d) Provide a written determination stating the reasons for closing 
any advisory committee meeting to the public, in whole or in part, in 
accordance with the exemption(s) of the Government in the Sunshine Act, 
5 U.S.C. 552b(c), as the basis for closure;
    (e) Review, at least annually, the need to continue each existing 
advisory committee, consistent with the public interest and the purpose 
or functions of each advisory committee;
    (f) Determine that rates of compensation for members (if they are 
paid for their services) and staff of, and experts and consultants to 
advisory committees are justified and that levels of agency support are 
adequate;
    (g) Develop procedures to assure that the advice or recommendations 
of advisory committees will not be inappropriately influenced by the 
appointing authority or by any special interest, but will instead be 
the result of the advisory committee's independent judgment;
    (h) Assure that the interests and affiliations of advisory 
committee members are reviewed for conformance with applicable conflict 
of interest statutes, regulations issued by the U.S. Office of 
Government Ethics (OGE) including any supplemental agency requirements, 
and other Federal ethics rules;
    (i) Designate a Designated Federal Officer (DFO) for each advisory 
committee and its subcommittees; and
    (j) Provide the opportunity for reasonable participation by the 
public in advisory committee activities, subject to Sec. 102-3.140 and 
the agency's guidelines.


Sec. 102-3.110  What are the responsibilities of a chairperson of an 
independent Presidential advisory committee?

    The chairperson of an independent Presidential advisory committee 
must:
    (a) Comply with the Act and this Federal Advisory Committee 
Management part;
    (b) Consult with the Secretariat concerning the designation of a 
Committee Management Officer (CMO) and Designated Federal Officer 
(DFO); and
    (c) Consult with the Secretariat in advance regarding any proposal 
to close any meeting in whole or in part.


Sec. 102-3.115  What are the responsibilities and functions of an 
agency Committee Management Officer (CMO)?

    In addition to implementing the provisions of section 8(b) of the 
Act, the CMO will carry out all responsibilities delegated by the 
agency head. The CMO also should ensure that sections 10(b), 12(a), and 
13 of the Act are implemented by the agency to provide for appropriate 
recordkeeping. Records to be kept by the CMO include, but are not 
limited to:
    (a) Charter and membership documentation. A set of filed charters 
for each advisory committee and membership lists for each advisory 
committee and subcommittee;
    (b) Annual comprehensive review. Copies of the information provided 
as the agency's portion of the annual comprehensive review of Federal 
advisory committees, prepared according to Sec. 102-3.175(b);
    (c) Agency guidelines. Agency guidelines maintained and updated on 
committee management operations and procedures; and
    (d) Closed meeting determinations. Agency determinations to close 
or partially close advisory committee meetings required by Sec. 102-
3.105.


Sec. 102-3.120  What are the responsibilities and functions of a 
Designated Federal Officer (DFO)?

    The agency head or, in the case of an independent Presidential 
advisory committee, the Secretariat, must designate a Federal officer 
or employee who must be either full-time or permanent part-time, to be 
the DFO for each advisory committee and its subcommittees, who must:
    (a) Approve or call the meeting of the advisory committee or 
subcommittee;
    (b) Approve the agenda, except that this requirement does not apply 
to a Presidential advisory committee;
    (c) Attend the meetings;
    (d) Adjourn any meeting when he or she determines it to be in the 
public interest; and
    (e) Chair the meeting when so directed by the agency head.


Sec. 102-3.125  How should agencies consider the roles of advisory 
committee members and staff?

    FACA does not assign any specific responsibilities to members of 
advisory

[[Page 37742]]

committees and staff, although both perform critical roles in achieving 
the goals and objectives assigned to advisory committees. Agency heads, 
Committee Management Officers (CMOs), and Designated Federal Officers 
(DFOs) should consider the distinctions between these roles and how 
they relate to each other in the development of agency guidelines 
implementing the Act and this Federal Advisory Committee Management 
part. In general, these guidelines should reflect:
    (a) Clear operating procedures. Clear operating procedures should 
provide for the conduct of advisory committee meetings and other 
activities, and specify the relationship among the advisory committee 
members, the DFO, and advisory committee or agency staff;
    (b) Agency operating policies. In addition to compliance with the 
Act, advisory committee members and staff may be required to adhere to 
additional agency operating policies; and
    (c) Other applicable statutes. Other agency-specific statutes and 
regulations may affect the agency's advisory committees directly or 
indirectly. Agencies should ensure that advisory committee members and 
staff understand these requirements.


Sec. 102-3.130  What policies apply to the appointment, and 
compensation or reimbursement of advisory committee members, staff, and 
experts and consultants?

    In developing guidelines to implement the Act and this Federal 
Advisory Committee Management part at the agency level, agency heads 
must address the following issues concerning advisory committee member 
and staff appointments, and considerations with respect to uniform fair 
rates of compensation for comparable services, or expense reimbursement 
of members, staff, and experts and consultants:
    (a) Appointment and terms of advisory committee members. Unless 
otherwise provided by statute, Presidential directive, or other 
establishment authority, advisory committee members serve at the 
pleasure of the appointing or inviting authority. Membership terms are 
at the sole discretion of the appointing or inviting authority.
    (b) Compensation guidelines. Each agency head must establish 
uniform compensation guidelines for members and staff of, and experts 
and consultants to an advisory committee.
    (c) Compensation of advisory committee members not required. 
Nothing in this subpart requires an agency head to provide compensation 
to any member of an advisory committee, unless otherwise required by a 
specific statute.
    (d) Compensation of advisory committee members. When an agency has 
authority to set pay administratively for advisory committee members, 
it may establish appropriate rates of pay (including any applicable 
locality pay authorized by the President's Pay Agent under 5 U.S.C. 
5304(h)), not to exceed the rate for level IV of the Executive Schedule 
under 5 U.S.C. 5315, unless a higher rate expressly is allowed by 
another statute. However, the agency head personally must authorize a 
rate of basic pay in excess of the maximum rate of basic pay 
established for the General Schedule under 5 U.S.C. 5332, or 
alternative similar agency compensation system. This maximum rate 
includes any applicable locality payment under 5 U.S.C. 5304. The 
agency may pay advisory committee members on either an hourly or a 
daily rate basis. The agency may not provide additional compensation in 
any form, such as bonuses or premium pay.
    (e) Compensation of staff. When an agency has authority to set pay 
administratively for advisory committee staff, it may establish 
appropriate rates of pay (including any applicable locality pay 
authorized by the President's Pay Agent under 5 U.S.C. 5304(h)), not to 
exceed the rate for level IV of the Executive Schedule under 5 U.S.C. 
5315, unless a higher rate expressly is allowed by another statute. 
However, the agency head personally must authorize a rate of basic pay 
in excess of the maximum rate of basic pay established for the General 
Schedule under 5 U.S.C. 5332, or alternative similar agency 
compensation system. This maximum rate includes any applicable locality 
payment under 5 U.S.C. 5304. The agency must pay advisory committee 
staff on an hourly rate basis. The agency may provide additional 
compensation, such as bonuses or premium pay, so long as aggregate 
compensation paid in a calendar year does not exceed the rate for level 
IV of the Executive Schedule, with appropriate proration for a partial 
calendar year.
    (f) Other compensation considerations. In establishing rates of pay 
for advisory committee members and staff, the agency must comply with 
any applicable statutes, Executive orders, regulations, or 
administrative guidelines. In determining an appropriate rate of basic 
pay for advisory committee members and staff, an agency must give 
consideration to the significance, scope, and technical complexity of 
the matters with which the advisory committee is concerned, and the 
qualifications required for the work involved. The agency also should 
take into account the rates of pay applicable to Federal employees who 
have duties that are similar in terms of difficulty and responsibility. 
An agency may establish rates of pay for advisory committee staff based 
on the pay these persons would receive if they were covered by the 
General Schedule in 5 U.S.C. Chapter 51 and Chapter 53, subchapter III, 
or by an alternative similar agency compensation system.
    (g) Compensation of experts and consultants. Whether or not an 
agency has other authority to appoint and compensate advisory committee 
members or staff, it also may employ experts and consultants under 5 
U.S.C. 3109 to perform work for an advisory committee. Compensation of 
experts and consultants may not exceed the maximum rate of basic pay 
established for the General Schedule under 5 U.S.C. 5332 (that is, the 
GS-15, step 10 rate, excluding locality pay or any other supplement), 
unless a higher rate expressly is allowed by another statute. The 
appointment and compensation of experts and consultants by an agency 
must be in conformance with applicable regulations issued by the U. S. 
Office of Personnel Management (OPM) (See 5 CFR part 304.).
    (h) Federal employees assigned to an advisory committee. Any 
advisory committee member or staff person who is a Federal employee 
when assigned duties to an advisory committee remains covered during 
the assignment by the compensation system that currently applies to 
that employee, unless that person's current Federal appointment is 
terminated. Any staff person who is a Federal employee must serve with 
the knowledge of the Designated Federal Officer (DFO) for the advisory 
committee to which that person is assigned duties, and the approval of 
the employee's direct supervisor.
    (i) Other appointment considerations. An individual who is 
appointed as an advisory committee member or staff person immediately 
following termination of another Federal appointment with a full-time 
work schedule may receive compensation at the rate applicable to the 
former appointment, if otherwise allowed by applicable law (without 
regard to the limitations on pay established in paragraphs (d) and (e) 
of this section). Any advisory committee staff person who is not a 
current Federal employee serving under an assignment must be appointed 
in accordance with applicable agency procedures, and in consultation 
with the DFO and the

[[Page 37743]]

members of the advisory committee involved.
    (j) Gratuitous services. In the absence of any special limitations 
applicable to a specific agency, nothing in this subpart prevents an 
agency from accepting the gratuitous services of an advisory committee 
member or staff person who is not a Federal employee, or expert or 
consultant, who agrees in advance and in writing to serve without 
compensation.
    (k) Travel expenses. Advisory committee members and staff, while 
engaged in the performance of their duties away from their homes or 
regular places of business, may be allowed reimbursement for travel 
expenses, including per diem in lieu of subsistence, as authorized by 5 
U.S.C. 5703, for persons employed intermittently in the Government 
service.
    (l) Services for advisory committee members with disabilities. 
While performing advisory committee duties, an advisory committee 
member with disabilities may be provided services by a personal 
assistant for employees with disabilities, if the member qualifies as 
an individual with disabilities as provided in section 501 of the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, and does not 
otherwise qualify for assistance under 5 U.S.C. 3102 by reason of being 
a Federal employee.

Appendix A to Subpart C of Part 102-3--Key Points and Principles

    This appendix provides additional guidance in the form of 
answers to frequently asked questions and identifies key points and 
principles that may be applied to situations not covered elsewhere 
in this subpart. The guidance follows:

                                                                 Appendix A to Subpart C
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Key points and principles                        Section                                 Question(s)                            Guidance
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. FACA does not specify the      102-3.105, 102-3.130(a).....................  1. Does the appointment of an          A. No. Each agency head may
 manner in which advisory                                                        advisory committee member              specify those policies and
 committee members and staff                                                     necessarily result in a lengthy        procedures, consistent with the
 must be appointed.                                                              process?                               Act and this part, or other
                                                                                                                        specific authorizing statute,
                                                                                                                        governing the appointment of
                                                                                                                        advisory committee members and
                                                                                                                        staff.
                                                                                                                       B. Some factors that affect how
                                                                                                                        long the appointment process
                                                                                                                        takes include: (i) Solicitation
                                                                                                                        of nominations; (ii) Conflict of
                                                                                                                        interest clearances; (iii)
                                                                                                                        Security or background
                                                                                                                        evaluations; (iv) Availability
                                                                                                                        of candidates; and (v) Other
                                                                                                                        statutory or administrative
                                                                                                                        requirements.
                                                                                                                       C. In addition, the extent to
                                                                                                                        which agency heads have
                                                                                                                        delegated responsibility for
                                                                                                                        selecting members varies from
                                                                                                                        agency to agency and may become
                                                                                                                        an important factor in the time
                                                                                                                        it takes to finalize the
                                                                                                                        advisory committee's membership.
--------------------------------------------------------------------------------------------------------------------------------------------------------
II. Agency heads retain the       102-3.130(a)................................  1. Can an agency head select for       A. The answer to question 1 is
 final authority for selecting                                                   membership on an advisory committee    yes. Organizations may propose
 advisory committee members,                                                     from among nominations submitted by    for membership individuals to
 unless otherwise provided for                                                   an organization?                       represent them on an advisory
 by a specific statute or                                                                                               committee. However, the agency
 Presidential directive.                                                                                                head establishing the advisory
                                                                                                                        committee, or other appointing
                                                                                                                        authority, retains the final
                                                                                                                        authority for selecting all
                                                                                                                        members.
                                                                                2. If so, can different persons        B. The answer to question 2 also
                                                                                 represent the organization at          is yes. Alternates may represent
                                                                                 different meetings?                    an appointed member with the
                                                                                                                        approval of the establishing
                                                                                                                        agency, where the agency head is
                                                                                                                        the appointing authority.
III. An agency may compensate     102-3.130(d), 102-3.130(e), 102-3.130(g)....  1. May members and staff be            A. The answer to question 1 is
 advisory committee members and                                                  compensated for their service or       yes. (i) However, FACA limits
 staff, and also employ experts                                                  duties on an advisory committee?       compensation for advisory
 and consultants.                                                               2. Are the guidelines the same for      committee members and staff to
                                                                                 compensating both members and staff?   the rate for level IV of the
                                                                                3. May experts and consultants be       Executive Schedule, unless
                                                                                 employed to perform other advisory     higher rates expressly are
                                                                                 committee work?                        allowed by other statutes. (ii)
                                                                                                                        Although FACA provides for
                                                                                                                        compensation guidelines, the Act
                                                                                                                        does not require an agency to
                                                                                                                        compensate its advisory
                                                                                                                        committee members.

[[Page 37744]]

 
                                                                                                                       B. The answer to question 2 is
                                                                                                                        no. The guidelines for
                                                                                                                        compensating members and staff
                                                                                                                        are similar, but not identical.
                                                                                                                        For example, the differences are
                                                                                                                        that: (i) An agency ``may'' pay
                                                                                                                        members on either an hourly or a
                                                                                                                        daily rate basis, and ``may
                                                                                                                        not'' provide additional
                                                                                                                        compensation in any form, such
                                                                                                                        as bonuses or premium pay; while
                                                                                                                        (ii) An agency ``must'' pay
                                                                                                                        staff on an hourly rate basis
                                                                                                                        only, and ``may'' provide
                                                                                                                        additional compensation, so long
                                                                                                                        as aggregate compensation paid
                                                                                                                        in a calendar year does not
                                                                                                                        exceed the rate for level IV of
                                                                                                                        the Executive Schedule, with
                                                                                                                        appropriate proration for a
                                                                                                                        partial calendar year.
                                                                                                                       C. The answer to question 3 is
                                                                                                                        yes. Other work not part of the
                                                                                                                        duties of advisory committee
                                                                                                                        members or staff may be
                                                                                                                        performed by experts and
                                                                                                                        consultants. For additional
                                                                                                                        guidance on the employment of
                                                                                                                        experts and consultants,
                                                                                                                        agencies should consult the
                                                                                                                        applicable regulations issued by
                                                                                                                        the U. S. Office of Personnel
                                                                                                                        Management (OPM). (See 5 CFR
                                                                                                                        part 304.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
IV. Agency heads are responsible  102-3.105(h)................................  1. Are all advisory committee members  A. The answer to question 1 is
 for ensuring that the interests                                                 subject to conflict of interest        no. Whether an advisory
 and affiliations of advisory                                                    statutes and other Federal ethics      committee member is subject to
 committee members are reviewed                                                  rules?                                 Federal ethics rules is
 for conformance with applicable                                                2. Who should be consulted for          dependent on the member's
 conflict of interest statutes                                                   guidance on the proper application     status. The determination of a
 and other Federal ethics rules..                                                of Federal ethics rules to advisory    member's status on an advisory
                                                                                 committee members?                     committee is largely a personnel
                                                                                                                        classification matter for the
                                                                                                                        appointing agency. Most advisory
                                                                                                                        committee members will serve
                                                                                                                        either as a ``representative''
                                                                                                                        or a ``special Government
                                                                                                                        employee'' (SGE), based on the
                                                                                                                        role the member will play. In
                                                                                                                        general, SGEs are covered by
                                                                                                                        regulations issued by the U. S.
                                                                                                                        Office of Government Ethics
                                                                                                                        (OGE) and certain conflict of
                                                                                                                        interest statutes,while
                                                                                                                        representatives are not subject
                                                                                                                        to these ethics requirements.
                                                                                                                       B. The answer to question 2 is
                                                                                                                        the agency's Designated Agency
                                                                                                                        Ethics Official (DAEO), who
                                                                                                                        should be consulted prior to
                                                                                                                        appointing members to an
                                                                                                                        advisory committee in order to
                                                                                                                        apply Federal ethics rules
                                                                                                                        properly.
--------------------------------------------------------------------------------------------------------------------------------------------------------
V. An agency head may delegate    102-3.105(c), 102-3.105(i)..................  1. Must an agency's CMO and each       A. The answer to question 1 is
 responsibility for appointing a                                                 advisory committee DFO be appointed    no. The agency head may delegate
 Committee Management Officer                                                    by the agency head?                    responsibility for appointing
 (CMO) or Designated Federal                                                                                            the CMO and DFOs. However, these
 Officer (DFO); however, there                                                                                          appointments, including
 may be only one CMO for each                                                                                           alternate selections, should be
 agency..                                                                                                               documented consistent with the
                                                                                                                        agency's policies and
                                                                                                                        procedures.

[[Page 37745]]

 
                                                                                2. May an agency have more than one    B. The answer to question 2 also
                                                                                 CMO?                                   is no. The functions of the CMO
                                                                                                                        are specified in the Act and
                                                                                                                        include oversight responsibility
                                                                                                                        for all advisory committees
                                                                                                                        within the agency. Accordingly,
                                                                                                                        only one CMO may be appointed to
                                                                                                                        perform these functions. The
                                                                                                                        agency may, however, create
                                                                                                                        additional positions, including
                                                                                                                        those in its subcomponents,
                                                                                                                        which are subordinate to the
                                                                                                                        CMO's agencywide
                                                                                                                        responsibilities and functions.
--------------------------------------------------------------------------------------------------------------------------------------------------------
VI. FACA is the principal         102-3.125(c)................................  1. Do other statutes or regulations    A. Yes. While the Act provides a
 statute pertaining to advisory                                                  affect the way an agency carries out   general framework for managing
 committees. However, other                                                      its advisory committee management      advisory committees
 statutes may impact their use                                                   program?                               Governmentwide, other factors
 and operations..                                                                                                       may affect how advisory
                                                                                                                        committees are managed. These
                                                                                                                        include: (i) The statutory or
                                                                                                                        Presidential authority used to
                                                                                                                        establish an advisory committee;
                                                                                                                        (ii) A statutory limitation
                                                                                                                        placed on an agency regarding
                                                                                                                        its annual expenditures for
                                                                                                                        advisory committees; (iii)
                                                                                                                        Presidential or agency
                                                                                                                        management directives; (iv) The
                                                                                                                        applicability of conflict of
                                                                                                                        interest statutes and other
                                                                                                                        Federal ethics rules; (v) Agency
                                                                                                                        regulations affecting advisory
                                                                                                                        committees; and (vi) Other
                                                                                                                        requirements imposed by statute
                                                                                                                        or regulation on an agency or
                                                                                                                        its programs, such as those
                                                                                                                        governing the employment of
                                                                                                                        experts and consultants or the
                                                                                                                        management of Federal records.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Subpart D--Advisory Committee Meeting and Recordkeeping Procedures


Sec. 102-3.135  What does this subpart cover and how does it apply?

    This subpart establishes policies and procedures relating to 
meetings and other activities undertaken by advisory committees and 
their subcommittees. This subpart also outlines what records must be 
kept by Federal agencies and what other documentation, including 
advisory committee minutes and reports, must be prepared and made 
available to the public.


Sec. 102-3.140  What policies apply to advisory committee meetings?

    The agency head, or the chairperson of an independent Presidential 
advisory committee, must ensure that:
    (a) Each advisory committee meeting is held at a reasonable time 
and in a manner or place reasonably accessible to the public, to 
include facilities that are readily accessible to and usable by persons 
with disabilities, consistent with the goals of section 504 of the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. 794;
    (b) The meeting room or other forum selected is sufficient to 
accommodate advisory committee members, advisory committee or agency 
staff, and a reasonable number of interested members of the public;
    (c) Any member of the public is permitted to file a written 
statement with the advisory committee;
    (d) Any member of the public may speak to or otherwise address the 
advisory committee if the agency's guidelines so permit; and
    (e) Any advisory committee meeting conducted in whole or part by a 
teleconference, videoconference, the Internet, or other electronic 
medium meets the requirements of this subpart.


Sec. 102-3.145  What policies apply to subcommittee meetings?

    If a subcommittee makes recommendations directly to a Federal 
officer or agency, or if its recommendations will be adopted by the 
parent advisory committee without further deliberations by the parent 
advisory committee, then the subcommittee's meetings must be conducted 
in accordance with all openness requirements of this subpart.


Sec. 102-3.150  How are advisory committee meetings announced to the 
public?

    (a) A notice in the Federal Register must be published at least 15 
calendar days prior to an advisory committee meeting, which includes:
    (1) The name of the advisory committee (or subcommittee, if 
applicable);
    (2) The time, date, place, and purpose of the meeting;
    (3) A summary of the agenda, and/or topics to be discussed;
    (4) A statement whether all or part of the meeting is open to the 
public or closed; if the meeting is closed state the reasons why, 
citing the specific exemption(s) of the Government in the Sunshine Act, 
5 U.S.C. 552b(c), as the basis for closure; and
    (5) The name and telephone number of the Designated Federal Officer 
(DFO) or other responsible agency official who may be contacted for 
additional information concerning the meeting.
    (b) In exceptional circumstances, the agency or an independent 
Presidential advisory committee may give less than 15 calendar days 
notice, provided that the reasons for doing so are included in the 
advisory committee meeting notice published in the Federal Register.


Sec. 102-3.155  How are advisory committee meetings closed to the 
public?

    To close all or part of an advisory committee meeting, the 
Designated Federal Officer (DFO) must:
    (a) Obtain prior approval. Submit a request to the agency head, or 
in the case of an independent Presidential

[[Page 37746]]

advisory committee, the Secretariat, citing the specific exemption(s) 
of the Government in the Sunshine Act, 5 U.S.C. 552b(c), that justify 
the closure. The request must provide the agency head or the 
Secretariat sufficient time (generally, 30 calendar days) to review the 
matter in order to make a determination before publication of the 
meeting notice required by Sec. 102-3.150.
    (b) Seek General Counsel review. The General Counsel of the agency 
or, in the case of an independent Presidential advisory committee, the 
General Counsel of GSA should review all requests to close meetings.
    (c) Obtain agency determination. If the agency head, or in the case 
of an independent Presidential advisory committee, the Secretariat, 
finds that the request is consistent with the provisions in the 
Government in the Sunshine Act and FACA, the appropriate agency 
official must issue a determination that all or part of the meeting be 
closed.
    (d) Assure public access to determination. The agency head or the 
chairperson of an independent Presidential advisory committee must make 
a copy of the determination available to the public upon request.


Sec. 102-3.160  What activities of an advisory committee are not 
subject to the notice and open meeting requirements of the Act?

    The following activities of an advisory committee are excluded from 
the procedural requirements contained in this subpart:
    (a) Preparatory work. Meetings of two or more advisory committee or 
subcommittee members convened solely to gather information, conduct 
research, or analyze relevant issues and facts in preparation for a 
meeting of the advisory committee, or to draft position papers for 
deliberation by the advisory committee; and
    (b) Administrative work. Meetings of two or more advisory committee 
or subcommittee members convened solely to discuss administrative 
matters of the advisory committee or to receive administrative 
information from a Federal officer or agency.


Sec. 102-3.165  How are advisory committee meetings documented?

    (a) The agency head or, in the case of an independent Presidential 
advisory committee, the chairperson must ensure that detailed minutes 
of each advisory committee meeting, including one that is closed or 
partially closed to the public, are kept. The chairperson of each 
advisory committee must certify the accuracy of all minutes of advisory 
committee meetings.
    (b) The minutes must include:
    (1) The time, date, and place of the advisory committee meeting;
    (2) A list of the persons who were present at the meeting, 
including advisory committee members and staff, agency employees, and 
members of the public who presented oral or written statements;
    (3) An accurate description of each matter discussed and the 
resolution, if any, made by the advisory committee regarding such 
matter; and
    (4) Copies of each report or other document received, issued, or 
approved by the advisory committee at the meeting.
    (c) The Designated Federal Officer (DFO) must ensure that minutes 
are certified within 90 calendar days of the meeting to which they 
relate.


Sec. 102-3.170  How does an interested party obtain access to advisory 
committee records?

    Timely access to advisory committee records is an important element 
of the public access requirements of the Act. Section 10(b) of the Act 
provides for the contemporaneous availability of advisory committee 
records that, when taken in conjunction with the ability to attend 
committee meetings, provide a meaningful opportunity to comprehend 
fully the work undertaken by the advisory committee. Although advisory 
committee records may be withheld under the provisions of the Freedom 
of Information Act (FOIA), as amended, if there is a reasonable 
expectation that the records sought fall within the exemptions 
contained in section 552(b) of FOIA, agencies may not require members 
of the public or other interested parties to file requests for non-
exempt advisory committee records under the request and review process 
established by section 552(a)(3) of FOIA.


Sec. 102-3.175  What are the reporting and recordkeeping requirements 
for an advisory committee?

    (a) Presidential advisory committee follow-up report. Within one 
year after a Presidential advisory committee has submitted a public 
report to the President, a follow-up report required by section 6(b) of 
the Act must be prepared and transmitted to the Congress detailing the 
disposition of the advisory committee's recommendations. The 
Secretariat shall assure that these reports are prepared and 
transmitted to the Congress as directed by the President, either by the 
President's delegate, by the agency responsible for providing support 
to a Presidential advisory committee, or by the responsible agency or 
organization designated in the charter of the Presidential advisory 
committee pursuant to Sec. 102-3.75(a)(10). In performing this 
function, GSA may solicit the assistance of the President's delegate, 
the Office of Management and Budget (OMB), or the responsible agency 
Committee Management Officer (CMO), as appropriate. Reports shall be 
consistent with specific guidance provided periodically by the 
Secretariat.
    (b) Annual comprehensive review of Federal advisory committees. To 
conduct an annual comprehensive review of each advisory committee as 
specified in section 7(b) of the Act, GSA requires Federal agencies to 
report information on each advisory committee for which a charter has 
been filed in accordance with Sec. 102-3.70, and which is in existence 
during any part of a Federal fiscal year. Committee Management Officers 
(CMOs), Designated Federal Officers (DFOs), and other responsible 
agency officials will provide this information by data filed 
electronically with GSA on a fiscal year basis, using a Governmentwide 
shared Internet-based system that GSA maintains. This information shall 
be consistent with specific guidance provided periodically by the 
Secretariat. The preparation of these electronic submissions by 
agencies has been assigned interagency report control number (IRCN) 
0304-GSA-AN.
    (c) Annual report of closed or partially-closed meetings. In 
accordance with section 10(d) of the Act, advisory committees holding 
closed or partially-closed meetings must issue reports at least 
annually, setting forth a summary of activities and such related 
matters as would be informative to the public consistent with the 
policy of 5 U.S.C. 552(b).
    (d) Advisory committee reports. Subject to 5 U.S.C. 552, 8 copies 
of each report made by an advisory committee, including any report of 
closed or partially-closed meetings as specified in paragraph (c) of 
this section and, where appropriate, background papers prepared by 
experts or consultants, must be filed with the Library of Congress as 
required by section 13 of the Act for public inspection and use at the 
location specified Sec. 102-3.70(a)(3).
    (e) Advisory committee records. Official records generated by or 
for an advisory committee must be retained for the duration of the 
advisory committee. Upon termination of the advisory committee, the 
records must be processed in accordance with the Federal Records Act 
(FRA), 44 U.S.C. Chapters 21, 29-33, and regulations issued by the 
National Archives and Records Administration (NARA) (see 36 CFR parts 
1220, 1222, 1228, and 1234),

[[Page 37747]]

or in accordance with the Presidential Records Act (PRA), 44 U.S.C. 
Chapter 22.

Appendix A to Subpart D of Part 102-3--Key Points and Principles

    This appendix provides additional guidance in the form of 
answers to frequently asked questions and identifies key points and 
principles that may be applied to situations not covered elsewhere 
in this subpart. The guidance follows:

                                                                 Appendix A to Subpart D
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Key points and principles                      Section(s)                                Question(s)                            Guidance
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. With some exceptions,          102-3.140, 102-3.145(a), 102-3.155..........  1. Must all advisory committee and     A. No. Advisory committee
 advisory committee meetings are                                                 subcommittee meetings be open to the   meetings may be closed when
 open to the public.                                                             public?                                appropriate, in accordance with
                                                                                                                        the exemption(s) for closure
                                                                                                                        contained in the Government in
                                                                                                                        the Sunshine Act, 5 U.S.C.
                                                                                                                        552b(c). (i) Subcommittees that
                                                                                                                        report to a parent advisory
                                                                                                                        committee, and not directly to a
                                                                                                                        Federal officer or agency, are
                                                                                                                        not required to open their
                                                                                                                        meetings to the public or comply
                                                                                                                        with the procedures in the Act
                                                                                                                        for announcing meetings. (ii)
                                                                                                                        However, agencies are cautioned
                                                                                                                        to avoid excluding the public
                                                                                                                        from attending any meeting where
                                                                                                                        a subcommittee develops advice
                                                                                                                        or recommendations that are not
                                                                                                                        expected to be reviewed and
                                                                                                                        considered by the parent
                                                                                                                        advisory committee before being
                                                                                                                        submitted to a Federal officer
                                                                                                                        or agency. These exclusions may
                                                                                                                        run counter to the provisions of
                                                                                                                        the Act requiring
                                                                                                                        contemporaneous access to the
                                                                                                                        advisory committee deliberative
                                                                                                                        process.
--------------------------------------------------------------------------------------------------------------------------------------------------------
II. Notices must be published in  102-3.150...................................  1. Can agencies publish a single       A. Yes, agencies may publish a
 the Federal Register announcing                                                 Federal Register notice announcing     single notice announcing
 advisory committee meetings.                                                    multiple advisory committee            multiple meetings so long as
                                                                                 meetings?                              these notices contain all of the
                                                                                                                        information required by Sec.
                                                                                                                        102-3.150. (i) ``Blanket
                                                                                                                        notices'' should not announce
                                                                                                                        meetings so far in advance as to
                                                                                                                        prevent the public from
                                                                                                                        adequately being informed of an
                                                                                                                        advisory committee's schedule.
                                                                                                                        (ii) An agency's Office of
                                                                                                                        General Counsel should be
                                                                                                                        consulted where these notices
                                                                                                                        include meetings that are either
                                                                                                                        closed or partially closed to
                                                                                                                        the public.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 37748]]

 
III. Although certain advisory    102-3.170...................................  1. May an agency require the use of    A. No. Section 10(b) of FACA
 committee records may be                                                        its internal FOIA procedures for       provides that: Subject to
 withheld under the Freedom of                                                   access to advisory committee records   section 552 of title 5, United
 Information Act (FOIA), as                                                      that are not exempt from release       States Code, the records,
 amended, 5 U.S.C. 552, agencies                                                 under FOIA?                            reports, transcripts, minutes,
 may not require the use of FOIA                                                                                        appendixes, working papers,
 procedures for records                                                                                                 drafts, studies, agenda, or
 available under section 10(b)                                                                                          other documents which were made
 of FACA.                                                                                                               available to or prepared for or
                                                                                                                        by each advisory committee shall
                                                                                                                        be available for public
                                                                                                                        inspection and copying at a
                                                                                                                        single location in the offices
                                                                                                                        of the advisory committee or the
                                                                                                                        agency to which the advisory
                                                                                                                        committee reports until the
                                                                                                                        advisory committee ceases to
                                                                                                                        exist. (i) The purpose of
                                                                                                                        section 10(b) of the Act is to
                                                                                                                        provide for the contemporaneous
                                                                                                                        availability of advisory
                                                                                                                        committee records that, when
                                                                                                                        taken in conjunction with the
                                                                                                                        ability to attend advisory
                                                                                                                        committee meetings, provide a
                                                                                                                        meaningful opportunity to
                                                                                                                        comprehend fully the work
                                                                                                                        undertaken by the advisory
                                                                                                                        committee. (ii) Although
                                                                                                                        advisory committee records may
                                                                                                                        be withheld under the provisions
                                                                                                                        of FOIA if there is a reasonable
                                                                                                                        expectation that the records
                                                                                                                        sought fall within the
                                                                                                                        exemptions contained in section
                                                                                                                        552(b) of FOIA, agencies may not
                                                                                                                        require members of the public or
                                                                                                                        other interested parties to file
                                                                                                                        requests for non-exempt advisory
                                                                                                                        committee records under the
                                                                                                                        request and review process
                                                                                                                        established by section 552(a)(3)
                                                                                                                        of FOIA. (iii)  Records covered
                                                                                                                        by the exemptions set forth in
                                                                                                                        section 552(b) of FOIA may be
                                                                                                                        withheld. An opinion of the
                                                                                                                        Office of Legal Counsel (OLC),
                                                                                                                        U.S. Department of Justice
                                                                                                                        concludes that: FACA requires
                                                                                                                        disclosure of written advisory
                                                                                                                        committee documents, including
                                                                                                                        predecisional materials such as
                                                                                                                        drafts, working papers, and
                                                                                                                        studies. The disclosure
                                                                                                                        exemption available to agencies
                                                                                                                        under exemption 5 of FOIA for
                                                                                                                        predecisional documents and
                                                                                                                        other privileged materials is
                                                                                                                        narrowly limited in the context
                                                                                                                        of FACA to privileged ``inter-
                                                                                                                        agency or intra-agency''
                                                                                                                        documents prepared by an agency
                                                                                                                        and transmitted to an advisory
                                                                                                                        committee. The language of the
                                                                                                                        FACA statute and its legislative
                                                                                                                        history support this restrictive
                                                                                                                        application of exemption 5 to
                                                                                                                        requests for public access to
                                                                                                                        advisory committee documents.
                                                                                                                        Moreover, since an advisory
                                                                                                                        committee is not itself an
                                                                                                                        agency, this construction is
                                                                                                                        supported by the express
                                                                                                                        language of exemption 5 which
                                                                                                                        applies only to inter-agency or
                                                                                                                        intra-agency materials. (iv)
                                                                                                                        Agencies first should determine,
                                                                                                                        however, whether or not records
                                                                                                                        being sought by the public fall
                                                                                                                        within the scope of FACA in
                                                                                                                        general, and section 10(b) of
                                                                                                                        the Act in particular, prior to
                                                                                                                        applying the available
                                                                                                                        exemptions under FOIA. (See OLC
                                                                                                                        Opinion 12 Op. O.L.C. 73, dated
                                                                                                                        April 29, 1988, which is
                                                                                                                        available from the Committee
                                                                                                                        Management Secretariat (MC),
                                                                                                                        General Services Administration,
                                                                                                                        1800 F Street, NW., Washington,
                                                                                                                        DC 20405-0002.)

[[Page 37749]]

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
IV. Advisory committee records    102-175(e)..................................  1. How must advisory committee         A. In order to ensure proper
 must be managed in accordance                                                   records be treated and preserved?      records management, the
 with the Federal Records Act                                                                                           Committee Management Officer
 (FRA), 44 U.S.C. Chapters 21,                                                                                          (CMO), Designated Federal
 29-33, and regulations issued                                                                                          Officer (DFO), or other
 by the National Archives and                                                                                           representative of the advisory
 Records Administration (NARA)                                                                                          committee, in coordination with
 (see 36 CFR parts 1220, 1222,                                                                                          the agency's Records Management
 1228, and 1234), or the                                                                                                Officer, should clarify upon the
 Presidential Records Act (PRA),                                                                                        establishment of the advisory
 44 U.S.C. Chapter 22.                                                                                                  committee whether its records
                                                                                                                        will be managed in accordance
                                                                                                                        with the FRA or the PRA.
                                                                                                                       B. Official records generated by
                                                                                                                        or for an advisory committee
                                                                                                                        must be retained for the
                                                                                                                        duration of the advisory
                                                                                                                        committee. Responsible agency
                                                                                                                        officials are encouraged to
                                                                                                                        contact their agency's Records
                                                                                                                        Management Officer or NARA as
                                                                                                                        soon as possible after the
                                                                                                                        establishment of the advisory
                                                                                                                        committee to receive guidance on
                                                                                                                        how to establish effective
                                                                                                                        records management practices.
                                                                                                                        Upon termination of the advisory
                                                                                                                        committee, the records must be
                                                                                                                        processed in accordance with the
                                                                                                                        FRA and regulations issued by
                                                                                                                        NARA, or in accordance with the
                                                                                                                        PRA.
                                                                                                                       C. The CMO, DFO, or other
                                                                                                                        representative of an advisory
                                                                                                                        committee governed by the FRA,
                                                                                                                        in coordination with the
                                                                                                                        agency's Records Management
                                                                                                                        Officer, must contact NARA in
                                                                                                                        sufficient time to review the
                                                                                                                        process for submitting any
                                                                                                                        necessary disposition schedules
                                                                                                                        of the advisory committee's
                                                                                                                        records upon termination. In
                                                                                                                        order to ensure the proper
                                                                                                                        disposition of the advisory
                                                                                                                        committee's records, disposition
                                                                                                                        schedules need to be submitted
                                                                                                                        to NARA no later than 6 months
                                                                                                                        before the termination of the
                                                                                                                        advisory committee.
                                                                                                                       D. For Presidential advisory
                                                                                                                        committees governed by the PRA,
                                                                                                                        the CMO, DFO, or other
                                                                                                                        representative of the advisory
                                                                                                                        committee should consult with
                                                                                                                        the White House Counsel on the
                                                                                                                        preservation of any records
                                                                                                                        subject to the PRA, and may also
                                                                                                                        confer with NARA officials.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Subpart E--How Does This Subpart Apply to Advice or Recommendations 
Provided to Agencies by the National Academy of Sciences or the 
National Academy of Public Administration?


Sec. 102-3.180  What does this subpart cover and how does it apply?

    This subpart provides guidance to agencies on compliance with 
section 15 of the Act. Section 15 establishes requirements that apply 
only in connection with a funding or other written agreement involving 
an agency's use of advice or recommendations provided to the agency by 
the National Academy of Sciences (NAS) or the National Academy of 
Public Administration (NAPA), if such advice or recommendations were 
developed by use of a committee created by either academy. For purposes 
of this subpart, NAS also includes the National Academy of Engineering, 
the Institute of Medicine, and the National Research Council. Except 
with respect to NAS committees that were the subject of judicial 
actions filed before December 17, 1997, no part of the Act other than 
section 15 applies to any committee created by NAS or NAPA.


Sec. 102-3.185  What does this subpart require agencies to do?

    (a) Section 15 requirements. An agency may not use any advice or 
recommendation provided to an agency by the National Academy of 
Sciences (NAS) or the National Academy of Public Administration (NAPA) 
under an agreement between the agency and an academy, if such advice or 
recommendation was developed by use of a committee created by either 
academy, unless:
    (1) The committee was not subject to any actual management or 
control by an agency or officer of the Federal Government; and
    (2) In the case of NAS, the academy certifies that it has complied 
substantially with the requirements of section 15(b) of the Act; or
    (3) In the case of NAPA, the academy certifies that it has complied 
substantially with the requirements of sections 15(b) (1), (2), and (5) 
of the Act.
    (b) No agency management or control. Agencies must not manage or 
control the specific procedures adopted by each academy to comply with 
the requirements of section 15 of the Act that are applicable to that 
academy. In addition, however, any committee created and used by an 
academy in the development of any advice or recommendation to be 
provided by the

[[Page 37750]]

academy to an agency must be subject to both actual management and 
control by that academy and not by the agency.
    (c) Funding agreements. Agencies may enter into contracts, grants, 
and cooperative agreements with NAS or NAPA that are consistent with 
the requirements of this subpart to obtain advice or recommendations 
from such academy. These funding agreements require, and agencies may 
rely upon, a written certification by an authorized representative of 
the academy provided to the agency upon delivery to the agency of each 
report containing advice or recommendations required under the 
agreement that:
    (1) The academy has adopted policies and procedures that comply 
with the applicable requirements of section 15 of the Act; and
    (2) To the best of the authorized representative's knowledge and 
belief, these policies and procedures substantially have been complied 
with in performing the work required under the agreement.

Appendix A to Subpart E of Part 102-3--Key Points and Principles

    This appendix provides additional guidance in the form of 
answers to frequently asked questions and identifies key points and 
principles that may be applied to situations not covered elsewhere 
in this subpart. The guidance follows:

                                                                 Appendix A to Subpart E
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    Key points and principles                      Section(s)                                Question(s)                            Guidance
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. Section 15 of the Act allows   102-3.185(a)................................  1. May agencies rely upon an academy   A. Yes. NAS and NAPA are
 the National Academy of                                                         certification regarding compliance     completely separate
 Sciences (NAS) and the National                                                 with section 15 of the Act if          organizations. Each is
 Academy of Public                                                               different policies and procedures      independently chartered by the
 Administration (NAPA) to adopt                                                  are adopted by NAS and NAPA?           Congress for different purposes,
 separate procedures for                                                                                                and Congress has recognized that
 complying with FACA.                                                                                                   the two organizations are
                                                                                                                        structured and operate
                                                                                                                        differently. Agencies should
                                                                                                                        defer to the discretion of each
                                                                                                                        academy to adopt policies and
                                                                                                                        procedures that will enable it
                                                                                                                        to comply substantially with the
                                                                                                                        provisions of section 15 of the
                                                                                                                        Act that apply to that academy.
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II. Section 15 of the Act allows  102-3.185(c)................................  1. Can an agency enter into a funding  A. Yes, if the members of the
 agencies to enter into funding                                                  agreement with an academy which        committee are selected by the
 agreements with NAS and NAPA                                                    provides for the preparation of one    academy and if the committee's
 without the academies'                                                          or more academy reports containing     meetings, deliberations, and the
 committees being ``managed'' or                                                 advice or recommendations to the       preparation of reports are all
 ``controlled''.                                                                 agency, to be developed by the         controlled by the academy. Under
                                                                                 academy by use of a committee          these circumstances, neither the
                                                                                 created by the academy, without        existence of the funding
                                                                                 subjecting an academy to ``actual      agreement nor the fact that it
                                                                                 management or control'' by the         contemplates use by the academy
                                                                                 agency?                                of an academy committee would
                                                                                                                        constitute actual management or
                                                                                                                        control of the committee by the
                                                                                                                        agency.
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[FR Doc. 01-17350 Filed 7-18-01; 8:45 am]
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