[Federal Register Volume 89, Number 76 (Thursday, April 18, 2024)]
[Rules and Regulations]
[Pages 27673-27689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08215]



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GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-3

[FMR CASE 2022-01; DOCKET NO. GSA-FMR-2022-0015; SEQUENCE NO. 1]
RIN 3090-AK59


Federal Management Regulation; Federal Advisory Committee 
Management

AGENCY: Office of Governmentwide Policy (OGP), General Services 
Administration (GSA).

ACTION: Final rule.

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SUMMARY: GSA is issuing a final rule amending the Federal Management 
Regulation (FMR) to update the regulations concerning Federal Advisory 
Committee Management. This action is necessary to clarify FACA 
requirements and incorporate legislative and policy changes that have 
occurred since the regulation was last updated in July of 2001.

DATES: Effective: May 20, 2024.

FOR FURTHER INFORMATION CONTACT: Ms. Lorelei Kowalski, Director, 
Committee Management Secretariat, Office of Asset and Transportation 
Management, Office of Government-wide Policy, at 202-208-6035 or email 
at [email protected]. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FMR Case 2022-01.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Federal Advisory Committee Act (FACA or ``the Act''), as 
amended, 5 U.S.C. chapter 10, (codified at 5 U.S.C. 1001 et seq.), 
governs the establishment, operation, and termination of advisory 
committees within the executive branch of the Federal Government. FACA 
defines what constitutes a Federal advisory committee and provides 
general procedures for the executive branch to follow for the operation 
of these committees. Advisory committees are a useful tool for 
``furnishing expert advice, ideas, and diverse opinions to the Federal 
Government,'' sec. 2(a) (codified at 5 U.S.C. 1002(a)), and the Act 
helps to ensure that Congress and the public are kept informed 
regarding the number, purpose, membership, activities, and cost of 
advisory committees, sec. 2(b)(5) (codified at 5 U.S.C. 1002(b)(5)).
    The Act not only formalized a process for establishing, operating, 
overseeing, and terminating these advisory bodies, it also created the 
Committee Management Secretariat (``Secretariat''), a GSA Office whose 
task it is to provide oversight on the FACA program, work with 
executive branch agencies and departments regarding compliance with the 
Act, and report on executive branch activities under the Act. The GSA's 
authority for administering FACA is contained in sec. 7(c) (codified at 
5 U.S.C. 1006(c) of the Act and Executive Order (E.O.) 12024 (42 FR 
61445; 3 CFR, 1977 Comp., p. 158). E.O. 12024 delegated to the 
Administrator of General Services almost all of ``the functions vested 
in the President by the Federal Advisory Committee Act''. GSA's 
authority includes ``prescrib[ing] administrative guidelines and 
management controls applicable to advisory committees, and, to the 
maximum extent feasible, provid[ing] advice, assistance, and guidance 
to advisory committees to improve their performance.'' The 
Administrator of General Services delegated all of their FACA-related 
responsibilities to the Secretariat. See 41 CFR 102-3.100. Executive 
orders and congressional revisions have clarified the application of 
the Act in 1993, 1997, 1998, 2010, and 2019. There have also been a 
number of Presidential actions that further clarified the operation of 
Federal advisory committees, particularly with respect to advisory 
committee membership.
    This final rule amends the FMR to update current policy and 
legislative requirements; help ensure that regulations concerning 
Federal Advisory Committee Management are user-friendly; clarify and 
update key roles; increase transparency, diversity, equity, access, 
accessibility, and inclusion throughout advisory committee processes 
and procedures; update the language regarding merger; and implement 
process improvements as proposed with changes published on November 2, 
2023, at 88 FR 75248. It is also based on suggestions for improvement 
from other Federal agencies and interested parties, including public 
comments, which are detailed in section II.B. of this document. This 
final rule is intended to improve the clarity of regulations concerning 
management and operation of Federal advisory committees in the 
executive branch, which will in turn enhance the performance of 
advisory committees.

II. Discussion of the Final Rule

A. Summary of Significant Changes

Incorporating Legislative Updates
    Section 102-3.40 is revised to reflect a legislative change that 
was made by the Intelligence Authorization Act for Fiscal Year 2010 
(Pub. L. 111-259), which states that the Director of National 
Intelligence may determine that, for reasons related to national 
security, FACA is not applicable to advisory committees of the Office 
of the Director of National Intelligence.
Removing Unnecessary Language and Information
    To make regulations concerning Federal Advisory Committee 
Management more user-friendly--and ultimately enhance the performance 
of advisory committees--GSA is removing certain language and 
information from part 102-3. See also E.O. 14058 on Transforming 
Federal Customer Experience and Service Delivery to Rebuild Trust in 
Government (directing agency heads to identify opportunities, as 
appropriate and consistent with applicable law, to modify their 
regulations to enhance customer experience and service delivery 
outcomes). Appendices throughout part 102-3 are removed because that 
information--guidance in the form of answers to frequently asked 
questions--is better suited for GSA's Federal Advisory Committee 
Management website (www.gsa.gov/faca), where GSA can more easily 
``provide advice, assistance, and guidance to advisory committees to 
improve their performance.'' Section 7(c) (codified at 5 U.S.C. 
1006(c)). GSA is removing unnecessary language throughout part 102-3 
because it either does not add meaningful clarification to the 
implementation of the Act, is not easily understandable, or is 
duplicative of language included elsewhere. For example, 41 CFR 102-
3.30(b) on termination currently provides requirements for terminating 
an advisory committee, which are essentially repeated in 41 CFR 102-
3.55 on the duration of committees. GSA is also aware that the 
difference between ``termination'' and ``duration'' has been a source 
of confusion during the advisory committee chartering process. 
Accordingly, GSA is revising both of those sections in order to remove 
duplicative language and help ensure that the Act's use of those terms 
is consistently applied throughout GSA's regulations.
    Similarly, GSA is removing certain language from 41 CFR 102-3.130 
that is already captured in other regulations or policies governing the 
appointment, compensation, or reimbursement of advisory committee 
members, staff, experts, and consultants. For example, the Office of 
Personnel Management (OPM) establishes policy for

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compensating Federal employees and hiring experts and consultants, and 
GSA need not repeat those policies in 41 CFR 102-3.130.
Updating Key Roles
    Consistent with the agency's responsibility to ``prescribe 
administrative guidelines and management controls applicable to 
advisory committees,'' sec. 7(c) (codified at 5 U.S.C. 1006(c)), GSA is 
adding two key roles at 41 CFR 102-3.25. The Act refers to a chair of 
each advisory committee, see sec. 10 (codified at 5 U.S.C. 1009), but 
does not define the contours of that role so GSA added a definition for 
a ``chairperson.'' GSA is also adding a definition for a ``Group 
Federal Officer'' to capture a key role that some agencies use to 
support their FACA programs, as GSA believes it is helpful to formally 
recognize what continues to be a key role for some agencies. GSA is 
also clarifying the definitions and responsibilities of the following 
existing key roles:
     The Secretariat in 41 CFR 102-3.100 to reflect a more 
comprehensive description of actual Secretariat activities, update 
terminology, and recognize a government-wide interagency group that was 
created after GSA published a final rule in 2001, see Federal Advisory 
Committee Management, 66 FR 37727 (July 19, 2001) (hereinafter ``2001 
Final Rule'').
     The agency head in 41 CFR 102-3.105 regarding their role 
with advisory committee charters and members.
     The Committee Management Officer (CMO) in 41 CFR 102-3.115 
to help clarify the full scope and importance of the CMO, including 
acknowledgment of common actions implemented by CMOs across the 
executive branch in managing their agency's Federal advisory committee 
program.
     The Designated Federal Officer (DFO) in 41 CFR 102-3.120 
to better reflect the central function of the DFO under the Act--
including ensuring compliance with the Act, serving as a point of 
contact for members of the public, and maintaining appropriate record 
keeping and reporting of committee activities.
    Overall, these revisions will improve the clarity of FACA-related 
responsibilities, which will in turn enhance the performance of 
advisory committees.
Supporting Fairly Balanced Committee Membership
    The Act states that advisory committees must be ``fairly balanced 
in terms of the points of view represented and the functions to be 
performed.'' Section 5(b)(2), (c) (codified at 5 U.S.C. 1004(b)(2), 
(c)). Further, the Act's ``legislative history makes clear that the 
fairly balanced requirement was designed to ensure that persons or 
groups directly affected by the work of a particular advisory committee 
would have some representation on the committee.'' Nat'l Anti-Hunger 
Coal. v. Exec. Comm. of President's Priv. Sector Surv. on Cost Control, 
711 F.2d 1071, 1074 n. 2 (D.C. Cir. 1983).
    While the Act itself does not provide instructions on how agencies 
are to attain fairly balanced committee membership, the legislative 
history indicates that the Act, ``[i]n the interest of economy and 
organization,'' places ``substantial power in [the implementing agency] 
to establish guidelines for advisory committees and to direct the 
agencies' use of them.'' 118 Cong. Rec. 16302 (1972) (statement of Rep. 
Moss) (referring to responsibilities that initially belonged to the 
Office of Management and Budget, which were later transferred to GSA in 
E.O. 12024); 118 Cong. Rec. 16305 (1972) (statement of Rep. Fascell) 
(referring to responsibilities that were eventually transferred to GSA 
and stating that the Act ``is explicit and without any ambiguity as to 
the kind of authority [that the implementing agency] would have in 
making the guidelines''); and 118 Cong. Rec. 30280 (1972) (statement of 
Sen. Roth) (recognizing that the Act would ``offer[ ] improved tools 
for the management of committees by [the implementing agency]'').
    Over the past forty years, GSA has issued regulatory requirements 
and subregulatory guidance on how to ensure fairly balanced committee 
membership. Since 1983, GSA's regulations have required agencies to 
consider a ``cross-section'' of ``interested'' persons and groups with 
demonstrated professional or personal qualifications or experience to 
contribute to the ``functions'' and tasks to be performed. See Federal 
Advisory Committee Management, 48 FR 19324 (Apr. 28, 1983). In response 
to comments, that language evolved over time, before settling in 1989 
on the formulation that exists in the current regulatory text: that 
agencies must consider ``a cross-section of those directly affected, 
interested, and qualified, as appropriate to the nature and functions 
of the committee,'' which should ``include persons with demonstrated 
professional or personal qualifications and experience relevant to the 
functions and tasks to be performed'' by the advisory committee. See 
Federal Advisory Committee Management, 54 FR 41215 (Oct. 5, 1989). 
Further, in 2001, GSA responded to a commenter seeking further guidance 
on how to achieve fairly balanced committee membership by including an 
Appendix that encouraged agencies to consider several factors, 
including (1) the advisory committee's mission; (2) the geographic, 
ethnic, social, economic, or scientific impact of the advisory 
committee's recommendations; (3) the types of specific perspectives 
required, such as those of consumers, technical experts, the public at-
large, academia, business, or other sectors; (4) the need to obtain 
divergent points of view on the issues before the advisory committee; 
and (5) the relevance of State, local, or Tribal Governments to the 
development of the advisory committee's recommendations. See 2001 Final 
Rule, 66 FR 37727, 37740.
    Consistent with the agency's responsibility to ``prescribe 
administrative guidelines and management controls applicable to 
advisory committees, and . . . [to] provide advice, assistance, and 
guidance to advisory committees to improve their performance,'' sec. 
7(c) (codified at 5 U.S.C. 1006(c))--and in an effort to help 
committees to actually attain fairly balanced membership--GSA has long 
required agencies to submit ``a description of the agency's plan to 
attain balanced membership,'' 48 FR 19324 (Apr. 28, 1983). More 
recently, in an effort to collect more substantive information 
regarding an agency's plan to attain a fairly balanced membership, GSA 
released guidance to the FACA community in 2011 on ``Preparing 
Membership Balance Plans'' (MBPs). See https://www.gsa.gov/cdnstatic/MembershipBalancePlanGuidance-November_2011.pdf.
    GSA is now updating the regulatory language pertaining to the MBP 
(specifically at 41 CFR 102-3.60) to reflect GSA's longstanding 
guidance as described above. Furthermore, in response to feedback from 
agencies and consistent with recent Presidential Actions supporting 
diversity, equity, inclusion, and accessibility,\1\ GSA is clarifying 
the procedures for submitting an MBP that helps ensure fairly balanced 
committee membership. This includes requiring an agency to provide

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the Secretariat with an MBP that addresses how the agency will ensure 
representation of all points of view required for fairly balanced 
committee membership--including groups and entities potentially 
affected, those with relevant lived experience, and persons with 
demonstrated professional or personal qualifications--as well as how 
the agency intends to conduct broad outreach to ensure that the call 
for nominees reaches the interested parties and stakeholder groups 
likely to possess those points of view. GSA is also adding clarifying 
language regarding points of view agencies should consider to achieve 
fairly balanced membership.
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    \1\ E.O. 13985 (86 FR 7009; https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government) and E.O. 
14091 (88 FR 10825; https://www.federalregister.gov/documents/2023/02/22/2023-03779/further-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal).
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    By seeking out individuals for potential membership that have 
relevant professional and/or lived experience with topics likely to 
come before the advisory committee, agencies can help to ensure that 
those insights and experiences inform and enhance the committee's work. 
See Syreeta Skelton-Wilson et al., ``Methods and Emerging Strategies to 
Engage People with Lived Experience,'' Office of the Assistant 
Secretary for Planning and Evaluation, U.S. Department of Health and 
Human Services (Dec. 20, 2021), https://aspe.hhs.gov/sites/default/files/documents/62e7a64c60e10c47484b763aa9868f99/lived-experience-brief.pdf. For example, by engaging individuals with relevant lived 
experience, ``[s]ome initiatives, especially those involving 
legislatively mandated advisory groups or research commissions, [have] 
reported benefits such as an improved ability to deliver responsive 
services, programming, training, and technical assistance.'' Id. at 6. 
These changes will help to continue improving the quality of committee 
conclusions and recommendations--ultimately enhancing the performance 
of advisory committees.
    Further, GSA is updating the rules and principles that apply to the 
management of advisory committees (specifically at 41 CFR 102-3.95 and 
102-3.140), including (a) clarifying that adequate committee support 
includes access to adequate virtual meeting capabilities and access to 
communication modes that are more inclusive; (b) encouraging agencies 
to be as transparent, equitable, inclusive, accessible, and timely as 
possible when providing public access to committee activities and 
materials; and (c) fostering active engagement, participation, and 
expression from all committee members and any member dissenting 
opinions, as applicable. These changes will help improve public access 
to advisory committees and membership engagement, which will in turn 
enhance the performance of advisory committees.
    Finally, GSA is improving public access to advisory committee 
meetings through amendments to 41 CFR 102-3.65, 102-3.150, and 102-
3.165. The Act specifies that meeting notices shall be published in the 
Federal Register and states that GSA ``shall prescribe regulations to 
provide for other types of public notice to insure that all interested 
persons are notified of each meeting in advance.'' Section 10(a)(2) 
(codified at 5 U.S.C. 1009(a)(2)). These revisions accordingly seek to 
expand public notification beyond publication in the Federal Register 
by encouraging use of agency websites and other online forums, and will 
improve public access and the subsequent performance of those advisory 
committees.
Updating the Language Regarding Merger
    The Act instructs the Administrator of General Services to conduct 
an annual ``review of the activities and responsibilities of each 
advisory committee,'' in part ``to determine . . . whether the 
committee should be merged with other advisory committees.'' Section 
7(b) (codified at 5 U.S.C. 1006(b)). Historically, merger of advisory 
committees has been infrequent. More recently, however, merger has 
become a more routine occurrence during the consultation process. 
Accordingly, to appropriately account for that trend, GSA is adding the 
term ``merge'' throughout part 102-3--namely, to sections that apply to 
actions taken by an agency in the establishment, reestablishment, 
renewal, operation, and termination of Federal advisory committees.
Implementing Process Improvements--Charters
    The Act identifies certain information that must be included in the 
charter for each committee. See sec. 9 (codified at 5 U.S.C. 1008). 
Over a decade ago--consistent with the Administrator's responsibility 
to ``provide advice, assistance, and guidance to advisory committees to 
improve their performance,'' sec. 7(c) (codified at 5 U.S.C. 1006(c))--
GSA issued guidance on Preparing Federal Advisory Committee Charters, 
available at: https://www.gsa.gov/cdnstatic/Preparing_FAC_Charters_%28F%29-110211.pdf. In addition to setting forth 
the requirements included in sec. 9 of the Act (codified at 5 U.S.C. 
1008), the guidance also includes other information that enhances the 
transparency of advisory committee operation to the public, such as 
information on the advisory committee's authority, formation of 
subcommittees, and recordkeeping. GSA is now updating the charter 
section at 41 CFR 102-3.75 to reflect this current guidance--ultimately 
with the goal of increasing transparency with respect to the operation 
of each advisory committee and enhancing the performance of advisory 
committees.
    Further, GSA is revising the charter amendment process. The current 
regulatory process for amending charters (per the 2001 Final Rule) 
stipulates two separate processes for amendments--one that applies to 
minor changes, and the other that applies to major changes. Those 
processes, however, are identical except for a requirement to consult 
with the Secretariat as to any major changes. Although GSA's intent was 
to forgo the need for consultation with the Secretariat if the changes 
were truly minor, there has been confusion in the FACA community 
regarding what specifically constitutes a minor amendment. Further, 
this confusion has resulted in a number of agencies choosing to consult 
with the Secretariat on all charter amendments. Accordingly, to 
eliminate confusion, GSA is consolidating the charter amendment 
sections into a singular process in 41 CFR 102-3.80. In addition, 
consistent with GSA's priority of increasing transparency with respect 
to advisory committee activities (as explained above), GSA is requiring 
that agencies post notice of the amendment to the relevant advisory 
committee website (if one exists).
Implementing Process Improvements--Agency Administrative Guidelines
    The Act requires each agency head to ``establish uniform 
administrative guidelines and management controls for advisory 
committees established by that agency.'' Section 8(a) (codified at 5 
U.S.C. 1007(a)). In recent years, the FACA community has inquired about 
appropriate content for those guidelines. In response, GSA is revising 
41 CFR 102-3.125 to clarify some of the operational components that 
agency administrative guidelines should reflect--such as specifying the 
content of committee bylaws and providing instructions on how to 
identify, calculate, and document advisory committee costs.
Severability
    GSA is adding a new subpart on severability at 41 CFR 102-3.190, 
which states that all provisions included in

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part 102-3 are separate and severable from one another.
    Regulations concerning Federal Advisory Committee Management do a 
number of things--from outlining public notification requirements to 
explaining the role of an agency head. Overall, each constituent 
element in part 102-3 operates independently to help ensure that 
standards and uniform procedures govern the establishment, operation, 
administration, and duration of advisory committees. See sec. 2(b)(4) 
(codified at 5 U.S.C. 1002(b)(4)).
    Accordingly, if any particular provision in part 102-3 were to be 
stayed or invalidated by a reviewing court, the remaining provisions 
would continue to function effectively for advisory committees. For 
example, if 41 CFR 102-3.75 on charter requirements were invalidated, 
that would not make 41 CFR 102-3.155, which lists the requirements for 
facilitating an advisory committee meeting that is closed to the 
public, unworkable. Likewise, if 41 CFR 102-3.60(b)(3) on attaining 
fairly balanced membership were invalidated, that would not prevent an 
agency from relying on the definitions in 41 CFR 102-3.25 to understand 
what ``committee staff'' means.
    Further, any cross-references that appear throughout part 102-3 are 
duplicative and are intended only to make the regulations more user-
friendly. Invalidation of a particular provision that is cross-
referenced elsewhere will not materially alter the provision that 
contains the cross-reference.
    In summary, removal of any particular provision from part 102-3 
would not render the entire regulatory scheme unworkable. Thus, GSA 
considers each of the provisions in part 102-3 to be separate and 
severable from one another. In the event of a stay or invalidation of 
any particular provision, it is GSA's intention that the remaining 
provisions shall continue in effect.

B. Analysis of Public Comments

    The proposed rule was published in the Federal Register on November 
2, 2023 (88 FR 75248). Comments were received from eight respondents, 
several of which also included positive feedback in addition to 
multiple comments. Three respondents expressed support for the proposed 
revisions to increase diversity, equity, inclusion, accessibility, and 
transparency in committee procedures. In particular, the respondents 
included positive feedback on the proposed changes to encourage broad 
stakeholder outreach, ensure stakeholder access to participate and 
contribute to Federal advisory committees, and update the regulatory 
language on the MBP. Specifically, one respondent agreed with the 
proposed revisions in 41 CFR 102-3.60 and 102-3.65 that increase public 
transparency and provide additional MBP guidance. Of the comments 
received, there were fourteen topics within the scope of the final 
rule. An analysis of these public comments follows:
    Comment 1: One commenter was concerned about removing the 
Appendices throughout the Part and moving the content to a website 
without comprehensively cross walking the information and 
interpretations conveyed in the Appendices in the updated rule. They 
felt it could weaken agency defenses in a challenge to their 
application of FACA procedures if the agency cited a website instead of 
a regulation.
    Response: GSA disagrees. GSA included common ``best practices'' 
guidance in the 2001 Final Rule in the form of Appendices to each 
subpart, and intentionally separated this guidance from the regulatory 
text. GSA will make the content of the Appendices readily available on 
the GSA Federal Advisory Committee Management website. GSA understands 
and appreciates their utility for the management of advisory 
committees, but the Appendices are not an enforceable part of the 
regulation.
    Comment 2: One commenter objected to the question-and-answer format 
of the regulation, believing it led to questions about the scope of the 
sections and makes searching for a subject more difficult.
    Response: GSA disagrees. The question-and-answer format is 
preferred by GSA and is consistent with the format in the rest of the 
FMR. Further, it is considered an acceptable format for regulations by 
the Office of the Federal Register.
    Comment 3: Several commenters commended GSA on proposed language 
surrounding outreach to diverse communities and encouraged addressing 
the needs of stakeholders with limited resources to further strengthen 
equity and public accountability. Suggestions included that GSA work 
with agencies to develop and launch a robust education effort to tackle 
awareness barriers on the Federal advisory committee process; and 
encourage agencies to consider offering satellite locations that may 
enable committee members or members of the public to participate if 
they cannot travel to a meeting or lack access to high-speed internet 
in their own homes.
    Response: The rule outlines at a high level (with examples) what 
should be considered regarding committee support, language access, 
meeting access, etc. Further specificity and ``how to'' is more 
appropriately addressed in the downstream agency implementation 
policies once the rule is in effect.
    Comment 4: One commenter strongly supported the new language on 
MBPs and requested that the regulation also require that these plans be 
made available to the public to support the principles of transparency.
    Response: GSA agrees and already requires the agencies to upload 
MBPs (if they are created) in the Charter section of the FACA database 
(https://www.facadatabase.gov/FACA/s/). GSA is formalizing this 
requirement by adding it to 41 CFR 102-3.60(b)(3).
    Comment 5: One commenter recommended that advisory committees never 
include ``stakeholders'' or business interests due to a concern about 
stakeholder influence in agency decision-making.
    Response: GSA disagrees. Section 5 of the Act (codified at 5 U.S.C. 
1004) requires the membership of the advisory committee to be fairly 
balanced in terms of the points of view represented and the functions 
to be performed by the advisory committee. GSA interprets this 
statutory requirement as the basis for agencies to conduct outreach to 
stakeholders, which could include business interests, during the 
committee formation process as these groups and entities are 
potentially affected by the work of a Federal advisory committee or may 
have qualifications and experience relevant to the functions and tasks 
to be performed. Per sec. 2(b)(6) of the Act (codified at 5 U.S.C. 
1002(b)(6)) ''the function of advisory committees should be advisory 
only, and that all matters under their consideration should be 
determined, in accordance with law, by the official, agency, or officer 
involved.'' Therefore, per the Act, the executive branch retains the 
authority for decision-making.
    Comment 6: One commenter stated that some Federal advisory 
committees do not post their meeting minutes, meeting handouts, and 
other non-exempt documentation online as they should, and Freedom of 
Information Act (FOIA) requests should not be necessary for accessing 
such information. The commenter stated the rule does not explicitly 
address this issue and proposed specific language for GSA to add in 41 
CFR 102-3.140(b) (which addresses posting of Federal Register notices, 
agendas, and supporting materials) and 102-3.175(d) (which addresses 
the filing of advisory committee reports, and, where appropriate, 
background papers prepared by experts or consultants, with the Library 
of Congress). Another

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commenter had a similar comment and believed GSA should require the 
posting of Federal advisory committee records to the FACA database in 
an accessible, complete, and timely manner to allow for public access 
and advisory committee transparency.
    Response: GSA believes the language in the rule is very similar to 
and covers the commenter's suggested language for 41 CFR 102-3.140(b), 
except that 41 CFR 102-3.140(b) does not refer to records being exempt 
from disclosure under the FOIA, or include an option for posting 
Federal advisory committee records to the FACA database. GSA disagrees 
that 41 CFR 102-3.140(b) should include a reference to records being 
exempt from disclosure under the FOIA, since this is a given under the 
Act. GSA also disagrees with including a requirement to post all 
records a committee generates to the FACA database, since the database 
was not designed or intended as a repository for all Federal advisory 
committee records. GSA requires select documents, such as charters and 
MBPs, to be uploaded into the FACA database and allows agencies the 
option to upload meeting minutes (or provide a URL) and Federal 
advisory committee reports. Even if the records are not posted on a 
committee website, they are available to the public upon request under 
sec. 10(b) of the Act (codified at 5 U.S.C. 1009(b)) as soon as they 
are available or at the time they are provided to the advisory 
committee members. The first commenter above also requested that 
advisory committee reports be posted to the FACA database or on the 
agency website at 41 CFR 102-3.175(d), which addresses reporting and 
recordkeeping requirements, not best practices. GSA disagrees and 
believes 41 CFR 102-3.175(d) includes what is required: language that 
reports must be made publicly available through the Library of 
Congress. Posting on a website is a best practice and not a FACA 
requirement. In addition, websites are already addressed in 41 CFR 102-
3.120(b), which recommends that the DFO maintain a website for their 
Federal advisory committee and post advisory committee reports, among 
other information. Posting Federal advisory committee reports to the 
FACA database is already an option and many agencies do.
    Comment 7: One commenter requested GSA designate a point of contact 
as oversight for Federal advisory committees and suggested that if it 
is the CMO that this should be clearly stated in 41 CFR 102-3.115, 
which covers the responsibilities and functions of an agency CMO.
    Response: GSA believes additional clarification is not needed in 
the rule. Section 8(b) of the Act (codified at 5 U.S.C. 1007(b)) 
specifies that the CMO shall ``exercise control and supervision over 
the establishment, procedures, and accomplishments of advisory 
committees established by that agency.'' This is an oversight role for 
the Federal advisory committees under the CMO's purview. Accordingly, 
41 CFR 102-3.25 and 102-3.115 reiterate the requirement for the CMO to 
implement the provisions of sec. 8(b) of the Act (codified at 5 U.S.C. 
1007(b)).
    Comment 8: One commenter requested that the rule address how an 
advisory committee may obtain access to Agency records that might 
otherwise be withheld from the public under the FOIA, as amended, 5 
U.S.C. 552.
    Response: GSA disagrees that the rule should address this issue, 
because the FACA regulation cannot usurp the FOIA statute.
    Comment 9: One commenter requested the rule require that DFOs 
successfully complete GSA's FACA Management Training with regular 
recertification in 41 CFR102-3.120, which addresses the 
responsibilities and functions of a DFO.
    Response: GSA agrees with the importance of FACA training but 
believes agency CMOs are in the best position to identify specific 
training needs for agency staff. 41 CFR 102-3.115 already specifies 
that part of the CMO management of their agency FACA program includes 
``providing training for agency staff supporting the FACA program.'' 
GSA will revise this section to clarify that this could include GSA's 
government-wide training.
    Comment 10: One commenter commended GSA for taking important steps 
to address accessibility barriers that prevent individuals from 
participating in the advisory committee process but encourages agencies 
to consider how best to reach impacted people who do not have access to 
consistent internet connections about advisory committee meetings. The 
commenter noted that although the addition of websites and social media 
to the rule expanded the avenues for announcing advisory committee 
meetings beyond the Federal Register, they suggested GSA encourage 
agencies to utilize traditional media, especially local radio and 
newspapers, that are often more accessible to underserved and 
underrepresented communities, especially in rural areas. They also 
cited the difficulties when the burden is on the public to self-
identify the need for any accommodations to participate in the advisory 
committee process, and asked GSA to look for ways to minimize any 
unnecessary burdens in the rule.
    Response: GSA agrees that agencies should consider how to best 
reach stakeholders potentially impacted by the work of a Federal 
advisory committee. The rule, in 41 CFR 102-3.150(c), allows agencies 
to use their expertise and discretion to reach their relevant 
stakeholders. The regulation does not restrict their options and 
websites and social media are just examples. Regarding accommodations, 
agencies are already required to comply with relevant sections of the 
Rehabilitation Act of 1973, amended, 29 U.S.C. 794. This regulation is 
not intended to broaden the requirements of another law.
    Comment 11: One commenter suggested that GSA consider compensation 
for missed work or other reimbursements to help address the 
accessibility barriers that often prevent people from traditionally 
underserved communities from participating in the policymaking process.
    Response: FACA is a transparency law, and it anticipated that not 
all interested persons would be able to attend meetings. The Act has a 
provision in sec. 10(b) (codified at 5 U.S.C. 1009(b)) to ensure access 
to Federal advisory committee materials, even if an individual is 
unable to attend a meeting. FACA also permits anyone to submit written 
comments to any advisory committee. Except as otherwise provided by 
law, Federal appropriations may not be used for travel and attendance 
of meetings by members of the public.
    Comment 12: One commenter recommended not adopting the revisions to 
41 CFR 102-3.160, which describes the activities of an advisory 
committee that are not subject to the notice and open meeting 
requirements of the Act. The commenter cited a number of concerns 
regarding the revisions, including that they: would bar closed meetings 
for preparatory work by subcommittees that includes ``deliberation;'' 
remove the phrase ``to draft position papers for deliberation by the 
advisory committee'' from the definition of ``preparatory work'' 
meetings; may decrease transparency while increasing agency 
administration burdens; and require certain subcommittee meetings to be 
open, which would lead to issues scheduling/rescheduling meetings, and 
constrain subcommittee activities and member participation.
    Response: Preparatory meetings are not closed; they are not 
required to be open to the public. GSA's revisions were intended to 
clarify but not change

[[Page 27678]]

the policy behind the 2001 rulemaking concerning preparatory work. GSA 
removed ``to draft position papers for deliberation by the advisory 
committee'' because it was an example, is not required as part of the 
definition, and does not mean the concept does not apply. The revisions 
to 41 CFR 102-3.160 were not intended to require certain subcommittee 
meetings to be open; they were to clarify how preparatory work applies 
to subcommittee meetings that are open to the public. GSA revised 41 
CFR 102-3.160 to clarify the misunderstanding.
    Comment 13: One commenter requested clarification on whether a 
recording of a virtual meeting, without specifically posting advisory 
committee records, is consistent with Federal Advisory Committee 
Management or the Office of Management and Budget's (OMB's) Circular A-
130.
    Response: FACA does not preclude an agency from recording a virtual 
meeting, and the Act and regulation clarify what materials must be made 
available to the public upon request.
    Comment 14: One commenter requested that GSA address the ability of 
an advisory committee to review Confidential Business Information.
    Response: Access to Confidential Business Information is not 
prohibited by the Act and would be subject to provisions under the 
Government in the Sunshine Act.

III. Expected Costs and Benefits

    This final rule will have a cost impact on the Federal Government; 
however, it will not impact the private sector or State, local, or 
Tribal Governments, as it relates solely to agency administration and 
management. GSA has already incorporated a number of the changes into 
the consultation process that occurs between the agencies and GSA, the 
government-wide training for agencies and personnel involved with 
advisory committee work, and routine interactions regarding agency 
committee management programs.
    GSA conducted an economic analysis of the proposed changes and 
determined that during the first and subsequent years after publication 
of the rule, there are compliance costs associated with the final rule. 
GSA estimates the overall total additional undiscounted cost of this 
final rule to be $7,007,404 over a ten-year period. See section VI.A 
(providing a full breakdown of compliance costs). There are numerous 
benefits described throughout section I--including implementing 
legislative updates; helping to ensure that regulations concerning 
Federal Advisory Committee Management are user-friendly; clarifying and 
updating key FACA roles; increasing transparency, diversity, equity, 
access, accessibility, and inclusion throughout advisory committee 
processes and procedures; updating language regarding merger; and 
implementing process improvements with respect to advisory committee 
charters and agency administrative guidelines. It is intended that 
overall, this final rule will improve the clarity of regulations 
concerning management and operation of Federal advisory committees in 
the executive branch, which will in turn enhance the performance of 
advisory committees.

IV. Executive Orders 12866, 13563, and 14094

    E.O.s 12866, 13563, and 14094 direct agencies to assess all costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. E.O. 14094 supplements 
and reaffirms the principles, structures, and definitions governing 
contemporary regulatory review established in E.O. 12866 and E.O. 
13563. OMB's Office of Information and Regulatory Affairs (OIRA) has 
designated this rule as a significant regulatory action and, therefore, 
it was subject to review under sec. 6(b) of E.O. 12866.

V. Congressional Review Act

    OIRA has determined that this rule is not a ``major rule'' under 5 
U.S.C. 804(2). Title II, subtitle E of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also 
known as the Congressional Review Act or CRA, generally provides that 
before a rule may take effect, unless excepted, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. This rule is excepted from CRA reporting requirements 
prescribed under 5 U.S.C. 801 as it relates to agency management or 
personnel under 5 U.S.C. 804(3)(B).

VI. Regulatory Flexibility Act

    GSA certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This 
final rule applies only to Federal agencies and employees.

A. Government Costs

    GSA has determined, based on an economic model, that there are 
compliance costs associated with the final rule. The following section 
is a list of activities related to regulatory familiarization and 
compliance that GSA anticipates will occur. Compliance activities would 
take place in the FACA community and would consist of amending 
charters, revising guidelines, training, and outreach for diversity, 
equity, inclusion, access, and accessibility. These assumptions were 
generated based on internal GSA expertise. GSA estimates this cost by 
multiplying the time required to conduct the compliance activity by the 
estimated compensation. GSA calculates the estimated hourly 
compensation using OPM's 2023 General Schedule (GS) Rest of United 
States Locality Pay Table and the full fringe benefit cost 
factor.2 3 4
---------------------------------------------------------------------------

    \2\ OPM General Schedule (https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2023/general-schedule).
    \3\ OMB Memo M-08-13, dated March 11, 2008 (https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2008/m08-13.pdf).
    \4\ Fact Sheet: Computing Hourly Rates of Pay Using the 2087-
Hour Divisor (https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/computing-hourly-rates-of-pay-using-the-2087-hour-divisor/).
---------------------------------------------------------------------------

1. Amending Charters
    GSA estimates it will take 25 government employees on average with 
a GS-14 step five average hourly rate of $86.12/hour, three hours each 
in years 1 to 10 to amend charters with updated information from this 
rule. Therefore, GSA estimates the total estimated cost for this part 
of the final rule per year to be $6,459 (= [25 employees] x [$86.12/
hour] x [3 hours]).
2. Revising Guidelines
    GSA estimates it will take 57 government employees, CMOs with a GS-
15 step five average hourly rate of $101.30/hour, four hours each in 
year 1 to update guidelines with updated information from this final 
rule. Therefore, GSA estimates the total estimated cost for this part 
of the final rule to be $23,096 (= [57 employees] x [$101.30/hour] x [4 
hours]).
    GSA estimates it will take 987 government employees, DFOs with a 
GS-12 step five average hourly rate of $61.29/hour, 0.5 hours each in 
year 1 to update guidelines with updated information from this final 
rule. Therefore, GSA estimates the total

[[Page 27679]]

estimated cost for this part of the final rule to be $30,247 (= [987 
employees] x [$61.29/hour] x [0.5 hours]).
3. Training
    GSA estimates it will take 57 government employees, CMOs with a GS-
15 step five average hourly rate of $101.30/hour, 0.5 hours each in 
year 1 to deliver training related to changes with this final rule. 
Therefore, GSA estimates the total estimated cost for this part of the 
final rule to be $2,887 (= [57 employees] x [$101.30/hour] x [0.5 
hours]).
    GSA estimates it will take 1,552 government Full-Time Equivalents 
(FTEs) with a GS-12 step five average hourly rate of $61.29/hour 0.5 
hours each in year 1 to receive training related to changes with this 
final rule. Therefore, GSA estimates the total estimated cost for this 
part of the final rule to be $47,561 (= [1,552 FTEs] x [$61.29/hour] x 
[0.5 hours]).
4. Outreach To Support Fairly Balanced Committee Membership
    GSA estimates it will take government employees with a GS-13 step 
five average hourly rate of $72.88/hour four hours per membership slot, 
in years 1 to 10 to conduct additional outreach in identifying 1,050 
new members that may be able to participate in new Federal advisory 
committees--ultimately to help ensure that committee membership is 
fairly balanced. Therefore, GSA estimates the total estimated cost for 
this part of the final rule per year to be $306,096 (= [1,050 
membership slots] x [$72.88/hour per government employee] x [4 hours]).
    GSA estimates it will take government employees with a GS-13 step 
five average hourly rate of $72.88/hour) 0.5 hours per membership slot 
in year 1, to conduct additional outreach in identifying 31,931 new 
members that may be able to participate in U.S. Department of Health 
and Human Services grant review Federal advisory committees--ultimately 
to help ensure that committee membership is fairly balanced. Therefore, 
GSA estimates the total estimated cost for this part of the final rule 
to be $1,163,566 (= [31,931 membership slots] x [$72.88/hour per 
government employee] x [0.5 hours]).
    GSA estimates it will take government employees with a GS-13 step 
five average hourly rate of $72.88/hour) one hour per membership slot 
in years 1 and 2 to conduct additional outreach in identifying 17,937 
new members that may be able to participate in non-grant review Federal 
advisory committees--ultimately to help ensure that committee 
membership is fairly balanced. Therefore, GSA estimates the total 
estimated cost for this part of the final rule per year to be 
$1,307,249 (= [17,937 membership slots] x [$72.88/hour] x [1 hour]).
5. Total Government Costs
    GSA estimates the total government costs to be $7,007,404 for years 
1 to 10. A breakdown of the total estimated government costs by year is 
provided in the table below.

------------------------------------------------------------------------
                          Year                                 Costs
------------------------------------------------------------------------
1.......................................................      $2,887,160
2.......................................................       1,619,804
3.......................................................         312,555
4.......................................................         312,555
5.......................................................         312,555
6.......................................................         312,555
7.......................................................         312,555
8.......................................................         312,555
9.......................................................         312,555
10......................................................         312,555
                                                         ---------------
  Total.................................................       7,007,404
------------------------------------------------------------------------

B. Overall Total Additional Costs

    The overall total additional undiscounted cost of this final rule 
is estimated to be $7,007,404 over a ten-year period. A summary of the 
estimated costs calculated for a ten-year period at a 3- and 7-percent 
discount rate is provided in the table below. GSA did not identify any 
cost savings based on the impact of the final rule.

------------------------------------------------------------------------
                          Summary                            Total costs
------------------------------------------------------------------------
Present Value (3 percent)..................................   $6,397,981
Annualized Costs (3 percent)...............................      750,039
Present Value (7 percent)..................................    5,743,230
Annualized Costs (7 percent)...............................      817,707
------------------------------------------------------------------------

C. Analysis of Alternatives

    The preferred approach is to take the process laid out in the 
analysis above. However, GSA has analyzed one alternative to the 
preferred process. As an alternative, GSA could decide not to update 
regulations concerning Federal Advisory Committee Management; however, 
that alternative would leave outdated and unclear content in the 
regulations, which would continue to cause confusion, impede 
accessibility and transparency by not encouraging the expansion of 
outreach and meeting access to the public, and waste government time 
and resources by forcing agencies to seek clarification on sections 
that contain unclear and unnecessary language. In light of those 
concerns, GSA rejects the alternative.

VII. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirements that require the approval of the OMB under the Paperwork 
Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 41 CFR Part 102-3

    Advisory committees, Governmental property management.

Robin Carnahan,
Administrator of General Services.

    Therefore, GSA revises 41 CFR part 102-3 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 part cover and how does it apply?
102-3.10 What is the purpose of the Federal Advisory Committee Act?
102-3.15-102-3.20 [Reserved]
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?
Subpart B--How Are Advisory Committees Established, Renewed, 
Reestablished, Merged, 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, 
reestablish, or merge 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 charter amendments accomplished?
102-3.85 [Reserved]
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?

[[Page 27680]]

102-3.115 What are the responsibilities and functions of an agency 
CMO?
102-3.120 What are the responsibilities and functions of a DFO?
102-3.125 What is required to be included in an agency's 
administrative guidelines to implement an advisory committee?
102-3.130 What policies apply to the appointment, and compensation 
or reimbursement of advisory committee members?
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?
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?
Subpart F--Severability
102-3.190 What portions of this part are severable?

    Authority:  40 U.S.C. 486(c); 5 U.S.C. chapter 10; and E.O. 
12024, 42 FR 61445, 3 CFR, 1977 Comp., p. 158.

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 part cover and how does it apply?

    This part provides the policy framework and establishes minimum 
requirements that must be used by agency heads and Federal officers in 
applying the Federal Advisory Committee Act, as amended (FACA or ``the 
Act''), 5 U.S.C. chapter 10, to advisory committees they establish and 
operate. In addition to listing key definitions underlying the 
interpretation of the Act, this part establishes the scope and 
applicability of the Act and outlines specific exclusions from its 
coverage. This part is not intended to, and does not, create any right 
or benefit, substantive or procedural, enforceable at law or in equity 
by any party against the United States, its departments, agencies, or 
entities, its officers, employees, or agents, or any other person, 
including any advisory committee or officer, member, employee, agent, 
or contractor of any advisory committee.


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

    FACA governs the establishment, operation, administration, 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, 
recommendations, outcomes, and cost of advisory committees through 
reporting requirements. These requirements form the basis for 
implementing the Act at both the agency and Government-wide levels.


Sec. Sec.  102-3.15-102-3.20  [Reserved]


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

    The following definitions apply to this part:
    Act means the Federal Advisory Committee Act (FACA), as amended, 5 
U.S.C. chapter 10.
    Administrator means the Administrator of General Services.
    Advisory committee 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 the group's advice 
or recommendations for the President or on issues or policies within 
the scope of agency responsibilities (codified at 5 U.S.C. 1001). 
Advisory committees are subject to the Act unless specifically exempted 
by the Act, or by other statutes, or not covered by this part.
    Agency has the same meaning as in 5 U.S.C. 551(1).
    Agency head means the head of an executive branch agency, 
department, or commission, or their designated delegate.
    Chairperson means the advisory committee or subcommittee member who 
serves in this role on an advisory committee or subcommittee by 
statutory requirement, or by appointment or invitation by Presidential 
authority or an agency's authority.
    Committee Management Officer (CMO) means the individual designated 
by the agency head to implement the provisions of sec. 8(b) of the Act 
(codified at 5 U.S.C. 1007(b)) and any delegated responsibilities of 
the agency head under the Act.
    Committee Management Secretariat (Secretariat) means the 
organization established pursuant to sec. 7(a) of the Act (codified at 
5 U.S.C. 1006(a)), which is responsible for all matters relating to 
advisory committees and carries out the responsibilities of the 
Administrator under the Act and E.O. 12024 (3 CFR, 1977 Comp., p. 158).
    Committee meeting means any gathering of advisory committee members 
(whether in person or electronically, such as using telecommunications 
or through a virtual platform), held with the approval of an agency, 
and with a Designated Federal Officer in attendance, for the purpose of 
deliberating on the matters upon which the advisory committee provides 
advice or recommendations.
    Committee member means an individual who serves by appointment or 
invitation by the appointing authority 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. Committee staff serve in coordination with the 
Designated Federal Officer.
    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 secs. 10(e) and (f) of 
the Act (codified at 5 U.S.C. 1009(e) and (f)) 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.
    Group Federal Officer (GFO) means an individual who assists the CMO 
in overseeing and managing a portion of the agency's Federal advisory 
committee management program.

[[Page 27681]]

    Independent Presidential advisory committee means any Presidential 
advisory committee not assigned by the Congress, or by the 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 function(s), 
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 that reports to an advisory committee, 
and not directly to a Federal officer or agency, whether or not its 
members are drawn in whole or in part from the parent advisory 
committee. However, if a subcommittee makes advice or recommendations 
directly to a Federal officer or agency, it is no longer functioning as 
a subcommittee, and must: file a charter following the requirements of 
Sec.  102-3.70, that includes the information required in Sec.  102-
3.75; comply with all of the requirements of this part; and will be 
counted as a chartered advisory committee at an agency.
    Utilized by means a committee that is one over which the President 
or a Federal officer or agency exercises actual management or control 
of its operation, whether or not it was established by the Federal 
Government.


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

    These are the policies to be followed by Federal departments and 
agencies in establishing and operating advisory committees consistent 
with the Act:
    (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.
    (b) Termination. Advisory committees terminate pursuant to Sec.  
102-3.55.
    (c) Fairly 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 (as explained further in 
Sec.  102-3.60).
    (d) Open meetings. Advisory committee meetings must be open to the 
public except when a meeting is closed or partially closed in 
accordance with the exemptions set forth in the Government in the 
Sunshine Act, 5 U.S.C. 552b(c).
    (1) Compliance with the Rehabilitation Act of 1973, as amended. 
With the support of the sponsoring Federal department or agency, the 
advisory committee must provide reasonable modifications for 
individuals with disabilities when the modifications are necessary to 
avoid discrimination on the basis of disability, unless the public 
entity can demonstrate that making the modifications would 
fundamentally alter the nature of the program or activity. The advisory 
committee must also take appropriate steps to ensure that 
communications with individuals with disabilities are as effective as 
communications with others, including by furnishing appropriate 
auxiliary aids and services where necessary to afford qualified 
individuals with disabilities an equal opportunity to participate in, 
and enjoy the benefits of, the advisory committee. Examples of 
auxiliary aids and services include qualified interpreters and 
information in alternate formats, such as braille or large print. In 
order to be effective, auxiliary aids and services must be provided in 
accessible formats, in a timely manner, and in such a way as to protect 
the privacy and independence of the individual with a disability. An 
advisory committee may not charge for the provision of auxiliary aids 
and services. An advisory committee is not required to provide an aid 
or service if it can demonstrate that providing that aid or service 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. Advisory 
committees should consider how to ensure that advisory committee 
members and members of the public are made aware that qualified 
individuals with disabilities are entitled to effective communication, 
including appropriate auxiliary aids and services. Advisory committees 
should also consider how to ensure that advisory committee members and 
members of the public are made aware of the option to request 
reasonable modifications in advance of meetings and should identify a 
point of contact to receive and respond to requests for reasonable 
modifications.
    (2) Ensuring language access and provision of language assistance 
services. With the support of the sponsoring Federal department or 
agency, the advisory committee must ensure equal participation by 
individuals with limited English proficiency. This may include 
conducting outreach and providing notifications in the language(s) used 
by the affected communities and potential or actual advisory committee 
members, as well as providing language assistance services, including 
electronic and printed written translated documents and oral 
interpretation services free of charge and in a timely manner, when 
such services are necessary to provide meaningful access to a limited 
English proficient individual, consistent with title VI of the Civil 
Rights Act of 1964, 42 U.S.C. 2000d et seq., and E.O. 13166, Improving 
Access to Services for Persons With Limited English Proficiency, 3 CFR, 
2000 Comp., p. 289.
    (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 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.
    (b) If a subcommittee reports directly to a Federal officer or 
agency, it is no longer functioning as a subcommittee. In that case, 
the subcommittee must be chartered as a new advisory committee, must 
comply with all of the requirements of this part, and will be counted 
as a chartered advisory committee at an agency.
    (c) Unless required by statute or Presidential directive, the 
creation and operation of subcommittees must be approved by the agency 
establishing the parent advisory committee in coordination with the 
DFO.


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

    In addition to the committees created by the National Academy of 
Sciences, Engineering, and Medicine and the National Academy of Public 
Administration (except as covered by subpart E of this part), the 
Central Intelligence Agency, and the Federal Reserve, the following are 
examples of committees or groups that are not covered by the Act or 
this part:
    (a) Any advisory committee established or utilized by the Office of 
the Director of National Intelligence, if the Director of National 
Intelligence determines that for reasons of national security such 
advisory committee

[[Page 27682]]

cannot comply with the requirements of the Act;
    (b) Committees specifically exempted by statute;
    (c) Committees created by non-Federal entities and not actually 
managed or controlled by the executive branch;
    (d) Groups assembled where attendees provide individual advice to a 
Federal official(s);
    (e) Groups assembled to exchange facts or information with a 
Federal official(s);
    (f) 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. 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 sec. 204(b) of the Unfunded Mandates Reform Act of 
1995, 2 U.S.C. 1534(b), and OMB Memorandum M-95-20, dated September 21, 
1995, available on the Committee Management Secretariat website);
    (g) Any committee composed wholly of full-time or permanent part-
time officers or employees of the Federal Government;
    (h) Local civic groups whose primary function is that of rendering 
a public service with respect to a Federal program;
    (i) Groups established to advise State or local officials;
    (j) 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; and
    (k) Any committee established, created, managed, and staffed by the 
government of a foreign country; or any committee created, managed, and 
staffed by an executive branch agency to advise or make recommendations 
to a government official, government group, or government agency of a 
foreign country.

Subpart B--How Are Advisory Committees Established, Renewed, 
Reestablished, Merged, 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, merger, 
and termination of advisory committees. These procedures include, but 
are not limited to, 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 Congress establishes an 
advisory committee, or specifically directs the President or an agency 
to establish it (non-discretionary);
    (b) Presidential authority. By E.O. of the President or other 
Presidential directive (non-discretionary);
    (c) Authorized by statute. By law where 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 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 or termination, either stated 
in or implied by operation of the statute;
    (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 advisory committee not 
later than two years after its date of establishment, renewal, or 
reestablishment in accordance with Sec.  102-3.60. If the President or 
an agency needs an advisory committee that was terminated, 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, 
reestablish, or merge a discretionary advisory committee?

    (a) Consultation with the Secretariat. To establish, renew, 
reestablish, or merge a discretionary advisory committee, the agency 
head must first consult with the Secretariat. As part of this 
consultation, agency heads should provide the Secretariat with a full 
understanding of the background and purpose behind the advisory 
committee, and the Secretariat should share its knowledge and 
experience with the agency.
    (b) Include required information in the consultation with the 
Secretariat. Consultations covering the establishment, renewal, 
reestablishment, or merger of advisory committees must, as a minimum, 
contain the following information:
    (1) Explanation of need. An explanation stating why the advisory 
committee is essential to the conduct of agency business and in the 
public interest or why it is necessary to merge one or more advisory 
committees;
    (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 or 
other methods of public engagement; and
    (3) Fairly balanced membership. A description of the agency's plan 
to attain fairly balanced membership, as appropriate based on the 
nature and functions of the advisory committee, as documented through 
the agency's Membership Balance Plan (MBP). The MBP must be uploaded to 
the FACA database when the agency files the Federal advisory committee 
charter with the Secretariat.
    (i) Points of view required. During the formation of the advisory 
committee membership and as membership vacancies occur, agencies should 
ensure that they fully consider and understand the potential 
implications or anticipated impacts of the advisory committee's 
potential recommendations. This includes consideration of the groups 
and entities potentially affected or interested in such 
recommendations, as

[[Page 27683]]

appropriate based on the nature and functions of the advisory 
committee, so that the agency can make informed decisions on the areas 
of expertise or perspectives (including relevant lived experience) that 
would advance the work 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 by the committee. The MBP shall 
describe the agency's conclusions regarding the points of view that 
would promote fairly balanced committee membership.
    (ii) Outreach. Having identified the points of view that would 
promote a fairly balanced advisory committee membership, agencies 
should conduct broad outreach, using a variety of means and methods, to 
ensure that the call for nominees reaches the interested parties and 
stakeholder groups likely to possess those points of view. Agencies 
should further ensure outreach to underserved communities, as 
appropriate to the nature and functions of the advisory committee. The 
MBP shall describe the agency's intended outreach efforts to accomplish 
these goals.
    (iii) Selection. In the selection of members for the advisory 
committee and as membership vacancies occur, agencies shall ensure 
representation of persons with the points of view identified pursuant 
to this section that would promote a fairly balanced advisory committee 
membership. The MBP shall describe the agency's intended selection 
criteria and approach.


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, 
reestablished, or a new discretionary committee is established as the 
result of a merger of existing committees. The notices should be 
written in plain language and should not assume that the public has 
background knowledge or familiarity with an agency or the advisory 
committee. The agency is also strongly encouraged to make the notice 
available electronically in the languages represented by the affected 
communities on the agency's advisory committee website, if one exists, 
as well as use additional notification methods (such as an agency's 
social media accounts) to reach advisory committee stakeholders (such 
as professional trade or membership groups, civic groups, community-
based organizations, ethnic media, representatives of affected 
stakeholder groups, and colleges and universities). Electronic notices 
must meet the requirements of title VI and E.O. 13166, as well as 
obligations under relevant sections of the Rehabilitation Act, as 
amended, 29 U.S.C. 794.
    (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 (including due to a merger), 
renewed, or reestablished. When establishing 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 advisory committee 
establishment (including due to a merger) and reestablishment 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 in exceptional circumstances (such as a 
national emergency or natural disaster). 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 CMO or by another agency official designated by 
the agency head.
    (a) Requirement for discretionary advisory committees. To amend a 
charter, or establish (including due to a merger), 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; 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 that the date of 
establishment, renewal, or reestablishment 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 be chartered as a new advisory 
committee as they are no longer functioning as a subcommittee.


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

    An advisory committee charter is intended to provide a description 
of an advisory committee's mission, goals, and objectives. The charter 
must contain the following information:
    (a) The advisory committee's official designation (official name);
    (b) The legal authority that permits the advisory committee to be 
established;
    (c) The objectives and the scope of the advisory committee's 
activities;
    (d) A description of the duties for which the advisory committee is 
responsible and specification of the authority for any non-advisory 
functions;
    (e) The agency or Federal officer to whom the advisory committee 
submits its recommendations;
    (f) The agency responsible for providing the necessary support to 
the advisory committee, including the name of the President's delegate, 
agency, or organization responsible for fulfilling the reporting 
requirements of sec. 6(b) of the Act (codified at 5 U.S.C. 1005(b)), if 
appropriate;
    (g) The estimated annual costs to operate the advisory committee in 
dollars and person years (full time equivalents or FTE);
    (h) The role of the DFO;
    (i) The estimated number and frequency of the advisory committee's 
meetings;
    (j) The period of time necessary to carry out the advisory 
committee's purpose(s);
    (k) The planned termination date, if less than two years from the 
date of establishment of the advisory committee;
    (l) The estimated number of advisory committee members, the 
expertise or experience required, and the anticipated advisory 
committee member designations;
    (m) Whether subcommittees may be created, by whom, and how they 
operate under the chartered advisory committee;
    (n) The relevant recordkeeping disposition schedule(s); and
    (o) The date the charter is filed in accordance with Sec.  102-
3.70.

[[Page 27684]]

Sec.  102-3.80  How are charter amendments accomplished?

    The agency head is responsible for amending the charter of an 
advisory committee. Amending any existing advisory committee charter 
does not constitute renewal of the advisory committee under Sec.  102-
3.60. The procedures for making changes and filing amended charters 
will depend upon the authority basis for the advisory committee, as 
stated in paragraphs (a) through (c) of this section:
    (a) Non-discretionary advisory committees. The agency head must 
ensure that any changes made to current charters are consistent with 
the relevant authority. When Congress by law, or the President by 
Presidential directive (e.g., E.O.), 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 Presidential directive (e.g., E.O.); file the 
amended charter as specified in Sec.  102-3.70; and notify the public 
as specified in paragraph (c) of this section.
    (b) Discretionary advisory committees. The charter of a 
discretionary advisory committee must be amended when an agency head 
determines that provisions of a filed charter are inaccurate, specific 
provisions have changed or become obsolete with the passing of time, or 
advisory committees need to be merged. Amendments could also include 
changing the name of the advisory committee, advisory committee 
authority, number of members, estimated number or frequency of 
meetings, objectives and scope, duties, and estimated costs. The agency 
must amend the charter language as necessary and the agency must:
    (1) First consult with the Secretariat and explain the purpose of 
the changes and why they are necessary. The Secretariat will notify the 
agency when the consultation process is complete.
    (2) Upon receiving notice from the Secretariat that the 
consultation is complete, file the amended charter as specified in 
Sec.  102-3.70, and notify the public as specified in paragraph (c) of 
this section.
    (c) Public notification of charter amendments. Agencies must post 
an announcement and a copy of the charter amendment on the advisory 
committee website. If an advisory committee website is not available, 
the agency must publish a notice of amendment in the Federal Register. 
Federal Register notice publishing and website posting of charter 
amendments may be performed concurrently with the filing of the 
charter. The publishing requirement in the Federal Register does not 
apply to a non-discretionary advisory committee if the amendment was 
the result of a legislative change or Presidential directive.


Sec.  102-3.85  [Reserved]

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 U.S. General Services Administration (GSA), the 
agency head, the CMO, and the 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 and access. Before establishing an 
advisory committee, agencies should identify requirements and ensure 
that adequate resources are available to support anticipated 
activities. Considerations related to support could include work and 
meeting space, necessary technology, supplies and equipment (e.g., 
adequate virtual meeting capabilities), Federal staff support, access 
to key decisionmakers, and member access to meetings (e.g., travel 
reimbursement). These considerations should also include support for 
access to communication modes that are inclusive of individuals with 
limited English proficiency or individuals with disabilities (e.g., 
adequate virtual meeting capabilities). These considerations should 
also include whether there are physical barriers to attending in-person 
meetings.
    (b) Practice openness. Agencies should seek to be as transparent, 
equitable, inclusive, accessible, and timely as possible when providing 
public access to advisory committee activities and materials. Agencies 
should minimize, to the extent possible, closing or partially closing 
meetings, and are encouraged where appropriate to open subcommittee 
meetings to the public. Agencies should also create public facing 
websites at both the agency and advisory committee level to help the 
public understand an agency's advisory committee program, and use 
additional notification methods, as appropriate, to reach advisory 
committee stakeholders, pursuant to sec. 10 of the Act (codified at 5 
U.S.C. 1009). Such websites must be in compliance with E.O. 13166, 
relevant sections of the Rehabilitation Act, as amended, 29 U.S.C. 794, 
and the 21st Century Integrated Digital Experience Act (IDEA). Section 
3(e) of 21st Century IDEA requires any public Federal agency website 
created after December 2018 to be in compliance with the website 
standards of the Technology Transformation Services of the General 
Services Administration. IDEA, Public Law 115-336, 132 Stat. 5025.
    (c) Promote diversity, equity, and inclusivity. Once the Federal 
advisory committee is formed, committee chairs and DFOs should foster a 
culture of diversity, equity, and inclusion by encouraging engagement, 
participation, and expression from all committee members and any 
members with dissenting opinions, as applicable.
    (d) Seek feedback. Agencies should continually seek feedback from 
advisory committee members and the public regarding the advisory 
committee's activities. At regular intervals, agencies should 
communicate to the members how their advice has affected agency 
programs and decision making and make this information available to the 
public.


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

    (a) The responsibilities of the Administrator under sec. 7 of the 
Act (codified at 5 U.S.C. 1006) have been delegated by the 
Administrator to the Committee Management Secretariat within GSA's 
Office of Government-wide Policy.
    (b) The Secretariat carries out its responsibilities by:
    (1) Engaging in consultations with agencies on the establishment, 
re-establishment, renewal, merger, and termination of discretionary 
advisory committees;
    (2) Prescribing guidance applicable to advisory committees;
    (3) Assisting other agencies in implementing and interpreting the 
Act;
    (4) Conducting an annual comprehensive review of Government-wide 
advisory committee accomplishments, costs, benefits, and other 
indicators to measure performance;
    (5) Developing and providing Government-wide training regarding the 
Act and related statutes and principles;
    (6) Supporting the Interagency Committee on Federal Advisory 
Committee Management and FACA Attorney Council to improve compliance 
with the Act;
    (7) Designing and maintaining a FACA database to facilitate data 
collection, reporting, and use of information required by the Act;
    (8) Preparing regulations on Federal advisory committees;

[[Page 27685]]

    (9) Identifying performance measures that may be used to evaluate 
advisory committee accomplishments; and
    (10) Providing recommendations for transmittal by the Administrator 
to 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?

    When a committee is utilized by or established by an agency, the 
agency head must:
    (a) Comply with the Act, this part, and other applicable laws and 
regulations;
    (b) Issue administrative guidelines and management controls 
providing the details that advisory committee staff need to implement 
during the creation, operation, and termination of their Federal 
advisory committees;
    (c) Designate a CMO;
    (d) Designate a DFO for each advisory committee and its 
subcommittees;
    (e) Approve the advisory committee charters for establishments, 
renewals, re-establishments, or mergers;
    (f) 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 exemptions set forth in the Government in the 
Sunshine Act, 5 U.S.C. 552b(c);
    (g) 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;
    (h) 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;
    (i) 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;
    (j) Assure that the interests and affiliations of committee members 
are reviewed for conformance with applicable conflict of interest 
statutes, regulations issued by the U.S. Office of Government Ethics 
including any supplemental agency requirements, and other Federal 
ethics rules;
    (k) Appoint or invite individuals to serve on committees, unless 
otherwise provided for by a specific statute or Presidential directive; 
and
    (l) Provide the opportunity for reasonable participation, including 
accessibility considerations, 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, this part, and other applicable laws and 
regulations;
    (b) Consult with the Secretariat concerning the designation of a 
CMO and 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 CMO?

    In addition to implementing the provisions of sec. 8(b) of the Act 
(codified at 5 U.S.C. 1007(b)), the CMO will carry out all 
responsibilities delegated by the agency head and manage the agency 
FACA program. Management includes consulting with the Secretariat on 
Federal advisory committees, as delegated by the agency head; tracking 
charter establishments, renewals, re-establishments, mergers, 
amendments, and terminations; coordinating the agency Annual 
Comprehensive Review within their agency and with the Secretariat; 
providing training for agency staff supporting the FACA program; 
working with GFOs, as appropriate, and DFOs; attending GSA Government-
wide FACA training and recommending this training to agency staff, as 
appropriate; and attending Interagency Committee on Federal Advisory 
Committee Management meetings. The CMO should create and maintain an 
agency website to further the public's understanding of the agency's 
FACA program. The CMO also should ensure that secs. 10(b), 12(a), and 
13 of the Act (codified at 5 U.S.C. 1009(b), 1011(a), and 1012, 
respectively) 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(f).


Sec.  102-3.120  What are the responsibilities and functions of a DFO?

    (a) 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:
    (1) Ensure that their committee activities comply with the Act, 
this part, their agency administrative procedures, and any other 
applicable laws and regulations;
    (2) Approve or call all meetings of the advisory committee or 
subcommittee;
    (3) Approve the agenda, except that this requirement does not apply 
to a Presidential advisory committee;
    (4) Attend all advisory committee and subcommittee meetings for 
their duration;
    (5) Fulfill the requirements under sec. 10(b) of the Act (codified 
at 5 U.S.C. 1009(b));
    (6) Adjourn any meeting when he or she determines it to be in the 
public interest;
    (7) Chair any meeting when so directed by the agency head;
    (8) Maintain information on advisory committee activities and 
provide such information to the public, as applicable; and
    (9) Ensure advisory committee members and subcommittee members, as 
applicable, receive the appropriate training (e.g., FACA overview, 
ethics training) for efficient operation and compliance with the Act 
and this part.
    (b) The DFO should ensure a public facing website is created and 
maintained (that complies with the requirements of relevant sections of 
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794) for each 
advisory committee, and include information such as: the advisory 
committee charter; relevant laws, regulations, and guidance; advisory 
committee member rosters and subcommittee member rosters, as 
applicable; Federal Register notices; meeting information (such as 
agendas, meeting materials, and minutes); reports and recommendations; 
and any other information that would increase the transparency and 
public understanding of advisory committee functions and activities and 
assist in fulfilling the requirements under sec. 10(b) of the Act 
(codified at 5 U.S.C. 1009(b)).

[[Page 27686]]

Sec.  102-3.125  What is required to be included in an agency's 
administrative guidelines to implement an advisory committee?

    An agency's administrative guidelines provide the details that 
advisory committee staff need to implement FACA requirements during the 
creation, operation, and termination of their advisory committees.
    (a) Advisory committee bylaws. Advisory committee bylaws should be 
developed by the agency, with advisory committee input and buy-in. 
Agency guidelines should specify the content of bylaws and ensure that 
they provide clear operating procedures for advisory committee 
meetings, other committee activities, and the relationship between 
committee members, the DFO, and agency staff.
    (b) Advisory committee costs. Agency guidelines must:
    (1) Provide instructions on how to identify, calculate, and fully 
document advisory committee costs; and
    (2) Ensure agency committee cost records match the data reported to 
Congress and the public through the FACA database.


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

    In developing guidelines to implement the Act, this part, and other 
applicable laws and regulations at the agency level, agency heads 
should address the following issues:
    (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. Agency 
heads are encouraged to set member term limits, where possible, so that 
agencies continually ensure the committee is fairly balanced throughout 
the life of the advisory committee.
    (b) Compensation of advisory committee members. Agencies are not 
required to pay and are not prohibited from paying their advisory 
committee members, unless required to or prohibited from doing so by 
statute or Presidential authority. In determining the rate of 
compensation (per Sec.  102-3.105(h)) the agency head 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. 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.
    (c) Other compensation considerations. In establishing rates of pay 
for advisory committee members, the agency must comply with any 
applicable statutes, E.O.s, regulations, and administrative guidelines. 
In determining an appropriate rate of basic pay for advisory committee 
members, an agency must give consideration to the significance, scope, 
and technical complexity of the matters with which the advisory 
committee is concerned, and the qualifications required for the work 
involved.
    (d) Federal employees assigned to an advisory committee. Federal 
employees serving as either an advisory committee member or as a staff 
person remain covered during the assignment by the compensation system 
of their employing agency. Federal employees serving as an advisory 
committee member or as a staff person must first obtain both the 
approval of their direct supervisor and the respective committee's DFO 
prior to serving in either capacity.
    (e) Other appointment considerations. Any advisory committee staff 
person who is not a current Federal employee must be appointed in 
accordance with applicable agency procedures, in consultation with the 
DFO, and, as appropriate, the members of the advisory committee 
involved.
    (f) Travel expenses. Advisory committee members, 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, per the rates established for employees by the 
Administrator of General Services at 5 U.S.C. 5702.
    (g) 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 as those that may be provided to employees per 5 U.S.C. 3102. 
Additional accommodations should be discussed in order to maximize 
accessibility, including technology, per relevant sections of the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. 794.

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?

    (a) The agency head for a discretionary or non-discretionary 
advisory committee established or utilized by that agency, or the 
chairperson for an independent Presidential advisory committee, must 
ensure that:
    (1) Each advisory committee meeting is held at a reasonable time 
and in a manner or place accessible to the public and includes 
consideration of affected communities, as appropriate, as well as 
facilities or technology that are readily accessible to and usable by 
persons with disabilities, consistent with the requirements set forth 
in relevant sections of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 794;
    (2) The physical meeting room is sufficient to accommodate advisory 
committee members, advisory committee or agency staff, and a reasonable 
number of interested members of the public. If electronic forums are 
used, agencies should opt for technology features that are compliant 
with relevant sections of the Rehabilitation Act, as amended, 29 U.S.C. 
794, accommodate advisory committee members, advisory committee or 
agency staff, and allow for maximum participation by members of the 
public, as appropriate;
    (3) Any member of the public is permitted to file a written 
statement with the advisory committee, whether or not the statement is 
related to a specific meeting;
    (4) Any member of the public may speak to or otherwise address the 
advisory committee if the agency's guidelines so permit; and
    (5) Any advisory committee meeting conducted in whole or part 
through any electronic medium (such as a teleconference or through a 
virtual platform) meets the requirements of this subpart.

[[Page 27687]]

    (b) The Federal Register notices, agendas, and supporting materials 
should be posted on the agency advisory committee website (if one 
exists) as soon as they are available or at the time they are provided 
to the advisory committee members.


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

    If a subcommittee provides advice or recommendations directly to a 
Federal officer or agency, or if its advice or 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 the 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, physical place (and/or instructions to connect 
electronically), and purpose of the meeting;
    (3) Whether meeting registration is required;
    (4) A summary of the agenda, and/or topics to be discussed and 
instructions on how to access meeting materials;
    (5) A statement whether all or part of the meeting is open to the 
public or closed; if the meeting is closed in whole or in part, state 
the reasons why, citing the specific exemption(s) of the Government in 
the Sunshine Act, 5 U.S.C. 552b(c);
    (6) Instructions for submitting written comments, and oral comments 
if permitted;
    (7) Instructions on how to submit a request for physical meeting or 
electronic meeting accommodations consistent with the requirements of 
E.O. 13166 and relevant sections of the Rehabilitation Act, as amended, 
29 U.S.C. 794; and
    (8) The name and telephone number (or email) of the DFO or other 
responsible agency official, or agency electronic mailbox for the 
committee, to contact for additional information concerning the 
meeting.
    (b) In exceptional circumstances, such as a national emergency or 
natural disaster, 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.
    (c) In addition to the Federal Register, and consistent with 
standard agency practice, agencies should announce meetings through 
additional notification methods, such as websites and social media, 
considering the most appropriate methods to reach committee 
stakeholders, and with as much advance notice as possible.


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

    To close all or part of an advisory committee meeting, the DFO 
must:
    (a) Obtain prior approval. Submit a request to the agency head, or 
in the case of an independent Presidential advisory committee, the 
Secretariat, citing the specific exemption(s) of the Government in the 
Sunshine Act, 5 U.S.C. 552b(c), that justifies 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 Office of the General Counsel 
(or equivalent legal office) of the agency or, in the case of an 
independent Presidential advisory committee, GSA's Office of the 
General Counsel, 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, GSA, finds that the 
request is consistent with the provisions of the Government in the 
Sunshine Act and FACA, the appropriate agency official must issue a 
determination that all or part of the meeting will be closed; and
    (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 
deliberation by advisory committee members in a public meeting of the 
advisory committee, or deliberation by subcommittee members in a public 
meeting of the subcommittee (where applicable). These meetings to 
conduct preparatory work do not include deliberation among advisory 
committee or subcommittee members; 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 subcommittee (such as meeting 
logistics) or to receive administrative information from a Federal 
officer or agency (such as a briefing on ethics or FACA procedural 
requirements).


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 (or electronic format) 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 materials received, issued, or 
approved by the advisory committee at the meeting.
    (c) The DFO must ensure that minutes are certified for accuracy by 
the chairperson within 90 calendar days of the meeting to which they 
relate. Agencies should post the meeting minutes on the agency advisory 
committee website (if one exists) not later than 14 calendar days after 
the meeting minutes have been certified.


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 
(codified at 5 U.S.C. 1009(b)) 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

[[Page 27688]]

fully the work undertaken by the advisory committee. Although certain 
advisory committee records may be withheld under an exemption to the 
Freedom of Information Act (FOIA), agencies may not require members of 
the public or other interested parties to use FOIA procedures in order 
to obtain records available under sec. 10(b) of the Act (codified at 5 
U.S.C. 1009(b)).


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 sec. 6(b) of 
the Act (codified at 5 U.S.C. 1005(b)) must be prepared and transmitted 
to the Congress detailing the disposition of the advisory committee's 
recommendations. 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(f).
    (b) Annual comprehensive review of Federal advisory committees. Per 
sec. 7(b) of the Act (codified at 5 U.S.C. 1006(b)), GSA is required to 
conduct an Annual Comprehensive Review (ACR) of the activities and 
responsibilities of each Federal advisory committee that was in 
existence during any part of a Federal fiscal year. The Secretariat 
initiates this review, provides guidance to the agencies and 
departments on how to conduct the review, and closes out the ACR when 
all reviews have been completed. Federal agencies are responsible for 
reporting data on each advisory committee, such as its purpose, 
performance measures, subcommittees (if applicable), meeting, 
membership, and cost, into the GSA FACA database. CMOs, DFOs, and other 
responsible agency officials, such as GFOs, enter this data for the 
advisory committees they are responsible for in their agency. The FACA 
database provides transparency to the public on the activities of 
Federal advisory committees Government-wide. The database is also used 
by Congress to perform oversight of the FACA program, and by the 
general public, the media, and others to stay abreast of important 
developments resulting from Federal advisory committee activities.
    (c) Annual report of closed or partially closed meetings. In 
accordance with sec. 10(d) of the Act (codified at 5 U.S.C. 1009(d)), 
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, 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 sec. 13 of the Act (codified at 5 U.S.C. 1012) for public 
inspection and use.
    (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, 
44 U.S.C. chapters 21 and 29 through 33, and regulations issued by the 
National Archives and Records Administration (see 36 CFR parts 1220, 
1222, 1228, and 1234), or in accordance with the Presidential Records 
Act, 44 U.S.C. chapter 22.

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 sec. 
15 of the Act (codified at 5 U.S.C. 1014). 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 National Academy 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 sec. 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 NAS or NAPA under an agreement 
between the agency and an academy, if such advice or recommendation was 
developed by use of a committee created by 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 sec. 15(b) of the Act (codified 
at 5 U.S.C. 1014(b)); or
    (3) In the case of NAPA, the academy certifies that it has complied 
substantially with the requirements of sec. 15(b) (1), (2), and (5) of 
the Act (codified at 5 U.S.C. 1014(b)(1), (2), and (5), respectively).
    (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 sec. 15 of the Act (codified at 5 U.S.C. 1014) 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 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 sec. 15 of the Act (codified at 5 
U.S.C. 1014); 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.

Subpart F--Severability


Sec.  102-3.190  What portions of this part are severable?

    All provisions of this part are separate and severable from one 
another. If any

[[Page 27689]]

provision is stayed or determined to be invalid, it is GSA's intention 
that the remaining provisions shall continue in effect.

[FR Doc. 2024-08215 Filed 4-17-24; 8:45 am]
BILLING CODE 6820-14-P