41 C.F.R. Appendix A to Subpart A of Part 102–3—Key Points and Principles
Title 41 - Public Contracts and Property Management
This appendix provides additional guidance in the form of answers to frequently asked questions and identifies key points and principles that may be applied to situations not covered elsewhere in this subpart. The guidance follows:
Title 41: Public Contracts and Property Management
PART 102–3—FEDERAL ADVISORY COMMITTEE MANAGEMENT
Subpart A—What Policies Apply to Advisory Committees Established Within the Executive Branch?
Appendix A to Subpart A of Part 102–3—Key Points and Principles
---------------------------------------------------------------------------------------------------------------- Key points and principles Section(s) Question(s) Guidance----------------------------------------------------------------------------------------------------------------I. FACA applies to advisory 102-3.25, 102- 1. A local citizens group wants to A. The answer to committees that are either 3.40(d), 102- meet with a Federal official(s) questions 1, 2, and 3 ``established'' or ``utilized'' 3.40(f) to help improve the condition of is yes, if the agency by an agency. a forest's trails and quality of does not either concessions. May the Government ``establish'' or meet with the group without ``utilize'' (exercise chartering the group under the ``actual management or Act? control'' over) the 2. May an agency official attend group. (i) Although meetings of external groups where there is no precise advice may be offered to the legal definition of Government during the course of ``actual management or discussions? control,'' the 3. May an agency official following factors may participate in meetings of groups be used by an agency or organizations as a member to determine whether without chartering the group or not a group is under the Act? ``utilized'' within 4. Is the Act applicable to the meaning of the meetings between agency officials Act: (a) Does the and their contractors, licensees, agency manage or or other ``private sector program control the group's partners?'' membership or otherwise determine its composition? (b) Does the agency manage or control the group's agenda? (c) Does the agency fund the group's activities? (ii) Answering ``yes'' to any or all of questions 1, 2, or 3 does not automatically mean the group is ``utilized'' within the meaning of the Act. However, an agency may need to reconsider the status of the group under the Act if the relationship in question essentially is indistinguishable from an advisory committee established by the agency. B. The answer to question 4 is no. Agencies often meet with contractors and licensees, individually and as a group, to discuss specific matters involving a contract's solicitation, issuance, and implementation, or an agency's efforts to ensure compliance with its regulations. Such interactions are not subject to the Act because these groups are not ``established'' or ``utilized'' for the purpose of obtaining advice or recommendations.----------------------------------------------------------------------------------------------------------------II. The development of consensus 102-3.25, 102- 1. If, during a public meeting of A. No, the public among all or some of the 3.40(d), 102- the ``town hall'' type called by meeting need not be attendees at a public meeting 3.40(f) an agency, it appears that the stopped. (i) A group or similar forum does not audience is achieving consensus, must either be automatically invoke FACA. or a common point of view, is ``established'' or this an indication that the ``utilized'' by the meeting is subject to the Act and executive branch in must be stopped? order for the Act to apply. (ii) Public meetings represent a chance for individuals to voice their opinions and/or share information. In that sense, agencies do not either ``establish'' the assemblage of individuals as an advisory committee or ``utilize'' the attendees as an advisory committee because there are no elements of either ``management'' or ``control'' present or intended.III. Meetings between a Federal 102-3.40(e) 1. May an agency official meet A. The answer to official(s) and a collection of with a number of persons questions 1 and 2 is individuals where advice is collectively to obtain their yes. The Act applies sought from the attendees on an individual views without only where a group is individual basis are not violating the Act? established or subject to the Act. 2. Does the concept of an utilized to provide ``individual'' apply only to advice or ``natural persons?'' recommendations ``as a group.'' (i) A mere assemblage or collection of individuals where the attendees are providing individual advice is not acting ``as a group'' under the Act. (ii) In this respect, ``individual'' is not limited to ``natural persons.'' Where the group consists of representatives of various existing organizations, each representative individually may provide advice on behalf of that person's organization without violating the Act, if those organizations themselves are not ``managed or controlled'' by the agency.----------------------------------------------------------------------------------------------------------------IV. Meetings between Federal, 102-3.40(g) 1. Is the exclusion from the Act A. Yes. The scope of State, local, and tribal covering elected officials of activities covered by elected officials are not State, local, and tribal the exclusion from the subject to the Act. governments acting in their Act for official capacities also intergovernmental applicable to associations of activities should be State officials? construed broadly to facilitate Federal/ State/local/tribal discussions on shared intergovernmental program responsibilities or administration. Pursuant to a Presidential delegation, the Office of Management and Budget (OMB) issued guidelines for this exemption, authorized by section 204(b) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1534(b). (See OMB Memorandum M-95- 20, dated September 21, 1995, published at 60 FR 50651 (September 29, 1995), and which is available from the Committee Management Secretariat (MC), General Services Administration, 1800 F Street, NW, Washington, DC 20405- 0002).----------------------------------------------------------------------------------------------------------------V. Advisory committees 102-3.30(e), 102- 1. Are ``operational committees'' A. No, so long as the established under the Act may 3.40(k) subject to the Act, even if they operational functions perform advisory functions may engage in some advisory performed by the only, unless authorized to activities? committee constitute perform ``operational'' duties the ``primary'' by the Congress or by mission of the Presidential directive. committee. Only committees established or utilized by the executive branch in the interest of obtaining advice or recommendations are subject to the Act. However, without specific authorization by the Congress or direction by the President, Federal functions (decisionmaking or operations) cannot be delegated to, or assumed by, non- Federal individuals or entities.----------------------------------------------------------------------------------------------------------------VI. Committees authorized by the 102-3.40(k) 1. What characteristics are common A. In answer to Congress in law or by to ``operational committees?'' question 1, non- Presidential directive to 2. A committee created by the advisory, or perform primarily Congress by statute is ``operational'' ``operational'' functions are responsible, for example, for committees generally not subject to the Act. developing plans and events to have the following commemorate the contributions of characteristics: (i) wildlife to the enjoyment of the Specific functions and/ Nation's parks. Part of the or authorities committee's role includes provided by the providing advice to certain Congress in law or by Federal agencies as may be Presidential necessary to coordinate these directive; (ii) The events. Is this committee subject ability to make and to FACA? implement traditionally Governmental decisions; and (iii) The authority to perform specific tasks to implement a Federal program. B. Agencies are responsible for determining whether or not a committee primarily provides advice or recommendations and is, therefore, subject to the Act, or is primarily ``operational'' and not covered by FACA. C. The answer to question 2 is no. The committee is not subject to the Act because: (i) Its functions are to plan and implement specific tasks; (ii) The committee has been granted the express authority by the Congress to perform its statutorily required functions; and (iii) Its incidental role of providing advice to other Federal agencies is secondary to its primarily operational role of planning and implementing specific tasks and performing statutory functions.----------------------------------------------------------------------------------------------------------------
