41 C.F.R. Subpart A—What Policies Apply to Advisory Committees Established Within the Executive Branch?
Title 41 - Public Contracts and Property Management
This subpart provides the policy framework that must be used by agency heads in applying the Federal Advisory Committee Act (FACA), as amended (or “the Act”), 5 U.S.C., App., to advisory committees they establish and operate. In addition to listing key definitions underlying the interpretation of the Act, this subpart establishes the scope and applicability of the Act, and outlines specific exclusions from its coverage. FACA governs the establishment, operation, and termination of advisory committees within the executive branch of the Federal Government. The Act defines what constitutes a Federal advisory committee and provides general procedures for the executive branch to follow for the operation of these advisory committees. In addition, the Act is designed to assure that the Congress and the public are kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees. (a) The primary users of this Federal Advisory Committee Management part are: (1) Executive branch officials and others outside Government currently involved with an established advisory committee; (2) Executive branch officials who seek to establish or utilize an advisory committee; (3) Executive branch officials and others outside Government who have decided to pursue, or who are already engaged in, a form of public involvement or consultation and want to avoid inadvertently violating the Act; and (4) Field personnel of Federal agencies who are increasingly involved with the public as part of their efforts to increase collaboration and improve customer service. (b) Other types of end-users of this part include individuals and organizations outside of the executive branch who seek to understand and interpret the Act, or are seeking additional guidance. This Federal Advisory Committee Management part meets the general and specific needs of its audience by addressing the following issues and related topics: (a) Scope and applicability. This part provides guidance on the threshold issue of what constitutes an advisory committee and clarifies the limits of coverage by the Act for the benefit of the intended users of this part. (b) Policies and guidelines. This part defines the policies, establishes minimum requirements, and provides guidance to Federal officers and agencies for the establishment, operation, administration, and duration of advisory committees subject to the Act. This includes reporting requirements that keep Congress and the public informed of the number, purpose, membership, activities, benefits, and costs of these advisory committees. These requirements form the basis for implementing the Act at both the agency and Governmentwide levels. (c) Examples and principles. This part provides summary-level key points and principles at the end of each subpart that provide more clarification on the role of Federal advisory committees in the larger context of public involvement in Federal decisions and activities. This includes a discussion of the applicability of the Act to different decisionmaking scenarios. The following definitions apply to this Federal Advisory Committee Management part: Act means the Federal Advisory Committee Act, as amended, 5 U.S.C., App. Administrator means the Administrator of General Services. Advisory committee subject to the Act, except as specifically exempted by the Act or by other statutes, or as not covered by this part, means any committee, board, commission, council, conference, panel, task force, or other similar group, which is established by statute, or established or utilized by the President or by an agency official, for the purpose of obtaining advice or recommendations for the President or on issues or policies within the scope of an agency official's responsibilities. Agency has the same meaning as in 5 U.S.C. 551(1). Committee Management Officer (“CMO”), means the individual designated by the agency head to implement the provisions of section 8(b) of the Act and any delegated responsibilities of the agency head under the Act. Committee Management Secretariat (“Secretariat”), means the organization established pursuant to section 7(a) of the Act, which is responsible for all matters relating to advisory committees, and carries out the responsibilities of the Administrator under the Act and Executive Order 12024 (3 CFR, 1977 Comp., p. 158). Committee meeting means any gathering of advisory committee members (whether in person or through electronic means) held with the approval of an agency for the purpose of deliberating on the substantive matters upon which the advisory committee provides advice or recommendations. Committee member means an individual who serves by appointment or invitation on an advisory committee or subcommittee. Committee staff means any Federal employee, private individual, or other party (whether under contract or not) who is not a committee member, and who serves in a support capacity to an advisory committee or subcommittee. Designated Federal Officer (“DFO”), means an individual designated by the agency head, for each advisory committee for which the agency head is responsible, to implement the provisions of sections 10(e) and (f) of the Act and any advisory committee procedures of the agency under the control and supervision of the CMO. Discretionary advisory committee means any advisory committee that is established under the authority of an agency head or authorized by statute. An advisory committee referenced in general (non-specific) authorizing language or Congressional committee report language is discretionary, and its establishment or termination is within the legal discretion of an agency head. Independent Presidential advisory committee means any Presidential advisory committee not assigned by the Congress in law, or by President or the President's delegate, to an agency for administrative and other support. Non-discretionary advisory committee means any advisory committee either required by statute or by Presidential directive. A non-discretionary advisory committee required by statute generally is identified specifically in a statute by name, purpose, or functions, and its establishment or termination is beyond the legal discretion of an agency head. Presidential advisory committee means any advisory committee authorized by the Congress or directed by the President to advise the President. Subcommittee means a group, generally not subject to the Act, that reports to an advisory committee and not directly to a Federal officer or agency, whether or not its members are drawn in whole or in part from the parent advisory committee. Utilized for the purposes of the Act, does not have its ordinary meaning. A committee that is not established by the Federal Government is utilized within the meaning of the Act when the President or a Federal office or agency exercises actual management or control over its operation. The policies to be followed by Federal departments and agencies in establishing and operating advisory committees consistent with the Act are as follows: (a) Determination of need in the public interest. A discretionary advisory committee may be established only when it is essential to the conduct of agency business and when the information to be obtained is not already available through another advisory committee or source within the Federal Government. Reasons for deciding that an advisory committee is needed may include whether: (1) Advisory committee deliberations will result in the creation or elimination of (or change in) regulations, policies, or guidelines affecting agency business; (2) The advisory committee will make recommendations resulting in significant improvements in service or reductions in cost; or (3) The advisory committee's recommendations will provide an important additional perspective or viewpoint affecting agency operations. (b) Termination. An advisory committee must be terminated when: (1) The stated objectives of the committee have been accomplished; (2) The subject matter or work of the committee has become obsolete by the passing of time or the assumption of the committee's functions by another entity; (3) The agency determines that the cost of operation is excessive in relation to the benefits accruing to the Federal Government; (4) In the case of a discretionary advisory committee, upon the expiration of a period not to exceed two years, unless renewed; (5) In the case of a non-discretionary advisory committee required by Presidential directive, upon the expiration of a period not to exceed two years, unless renewed by authority of the President; or (6) In the case of a non-discretionary advisory committee required by statute, upon the expiration of the time explicitly specified in the statute, or implied by operation of the statute. (c) Balanced membership. An advisory committee must be fairly balanced in its membership in terms of the points of view represented and the functions to be performed. (d) Open meetings. Advisory committee meetings must be open to the public except where a closed or partially-closed meeting has been determined proper and consistent with the exemption(s) of the Government in the Sunshine Act, 5 U.S.C. 552b(c), as the basis for closure. (e) Advisory functions only. The function of advisory committees is advisory only, unless specifically provided by statute or Presidential directive. (a) In general, the requirements of the Act and the policies of this Federal Advisory Committee Management part do not apply to subcommittees of advisory committees that report to a parent advisory committee and not directly to a Federal officer or agency. However, this section does not preclude an agency from applying any provision of the Act and this part to any subcommittee of an advisory committee in any particular instance. (b) The creation and operation of subcommittees must be approved by the agency establishing the parent advisory committee. The following are examples of committees or groups that are not covered by the Act or this Federal Advisory Committee Management part: (a) Committees created by the National Academy of Sciences (NAS) or the National Academy of Public Administration (NAPA). Any committee created by NAS or NAPA in accordance with section 15 of the Act, except as otherwise covered by subpart E of this part; (b) Advisory committees of the Central Intelligence Agency and the Federal Reserve System. Any advisory committee established or utilized by the Central Intelligence Agency or the Federal Reserve System; (c) Committees exempted by statute. Any committee specifically exempted from the Act by law; (d) Committees not actually managed or controlled by the executive branch. Any committee or group created by non-Federal entities (such as a contractor or private organization), provided that these committees or groups are not actually managed or controlled by the executive branch; (e) Groups assembled to provide individual advice. Any group that meets with a Federal official(s), including a public meeting, where advice is sought from the attendees on an individual basis and not from the group as a whole; (f) Groups assembled to exchange facts or information. Any group that meets with a Federal official(s) for the purpose of exchanging facts or information; (g) Intergovernmental committees. Any committee composed wholly of full-time or permanent part-time officers or employees of the Federal Government and elected officers of State, local and tribal governments (or their designated employees with authority to act on their behalf), acting in their official capacities. However, the purpose of such a committee must be solely to exchange views, information, or advice relating to the management or implementation of Federal programs established pursuant to statute, that explicitly or inherently share intergovernmental responsibilities or administration (see guidelines issued by the Office of Management and Budget (OMB) on section 204(b) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1534(b), OMB Memorandum M–95–20, dated September 21, 1995, available from the Committee Management Secretariat (MC), General Services Administration, 1800 F Street, NW., Washington, DC 20405–0002); (h) Intragovernmental committees. Any committee composed wholly of full-time or permanent part-time officers or employees of the Federal Government; (i) Local civic groups. Any local civic group whose primary function is that of rendering a public service with respect to a Federal program; (j) Groups established to advise State or local officials. Any State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies; and (k) Operational committees. Any committee established to perform primarily operational as opposed to advisory functions. Operational functions are those specifically authorized by statute or Presidential directive, such as making or implementing Government decisions or policy. A committee designated operational may be covered by the Act if it becomes primarily advisory in nature. It is the responsibility of the administering agency to determine whether a committee is primarily operational. If so, it does not fall under the requirements of the Act and this part. 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?
§ 102-3.5 What does this subpart cover and how does it apply?
§ 102-3.10 What is the purpose of the Federal Advisory Committee Act?
§ 102-3.15 Who are the intended users of this part?
§ 102-3.20 How does this part meet the needs of its audience?
§ 102-3.25 What definitions apply to this part?
§ 102-3.30 What policies govern the use of advisory committees?
§ 102-3.35 What policies govern the use of subcommittees?
§ 102-3.40 What types of committees or groups are not covered by the Act and this part?
Appendix A to Subpart A of Part 102–3—Key Points and Principles
---------------------------------------------------------------------------------------------------------------- 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.----------------------------------------------------------------------------------------------------------------
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