41 C.F.R. Subpart B—How Are Advisory Committees Established, Renewed, Reestablished, and Terminated?
Title 41 - Public Contracts and Property Management
Requirements for establishing and terminating advisory committees vary depending on the establishing entity and the source of authority for the advisory committee. This subpart covers the procedures associated with the establishment, renewal, reestablishment, and termination of advisory committees. These procedures include consulting with the Secretariat, preparing and filing an advisory committee charter, publishing notice in the FACA identifies four sources of authority for establishing an advisory committee: (a) Required by statute. By law where the Congress establishes an advisory committee, or specifically directs the President or an agency to establish it (non-discretionary); (b) Presidential authority. By Executive order of the President or other Presidential directive (non-discretionary); (c) Authorized by statute. By law where the Congress authorizes, but does not direct the President or an agency to establish it (discretionary); or (d) Agency authority. By an agency under general authority in title 5 of the United States Code or under other general agency-authorizing statutes (discretionary). (a) An advisory committee automatically terminates two years after its date of establishment unless: (1) The statutory authority used to establish the advisory committee provides a different duration; (2) The President or agency head determines that the advisory committee has fulfilled the purpose for which it was established and terminates the advisory committee earlier; (3) The President or agency head determines that the advisory committee is no longer carrying out the purpose for which it was established and terminates the advisory committee earlier; or (4) The President or agency head renews the committee not later than two years after its date of establishment in accordance with §102–3.60. If an advisory committee needed by the President or an agency terminates because it was not renewed in a timely manner, or if the advisory committee has been terminated under the provisions of §102–3.30(b), it can be reestablished in accordance with §102–3.60. (b) When an advisory committee terminates, the agency shall notify the Secretariat of the effective date of the termination. (a) Consult with the Secretariat. Before establishing, renewing, or reestablishing a discretionary advisory committee and filing the charter as addressed later in §102–3.70, the agency head must consult with the Secretariat. As part of this consultation, agency heads are encouraged to engage in constructive dialogue with the Secretariat. With a full understanding of the background and purpose behind the proposed advisory committee, the Secretariat may share its knowledge and experience with the agency on how best to make use of the proposed advisory committee, suggest alternate methods of attaining its purpose that the agency may wish to consider, or inform the agency of a pre-existing advisory committee performing similar functions. (b) Include required information in the consultation. Consultations covering the establishment, renewal, and reestablishment of advisory committees must, as a minimum, contain the following information: (1) Explanation of need. An explanation stating why the advisory committee is essential to the conduct of agency business and in the public interest; (2) Lack of duplication of resources. An explanation stating why the advisory committee's functions cannot be performed by the agency, another existing committee, or other means such as a public hearing; and (3) Fairly balanced membership. A description of the agency's plan to attain fairly balanced membership. The plan will ensure that, in the selection of members for the advisory committee, the agency will consider a cross-section of those directly affected, interested, and qualified, as appropriate to the nature and functions of the advisory committee. Advisory committees requiring technical expertise should include persons with demonstrated professional or personal qualifications and experience relevant to the functions and tasks to be performed. A notice to the public in the (a) Procedure. Upon receiving notice from the Secretariat that its review is complete in accordance with §102–3.60(a), the agency must publish a notice in the (b) Time required for notices. Notices of establishment and reestablishment of advisory committees must appear at least 15 calendar days before the charter is filed, except that the Secretariat may approve less than 15 calendar days when requested by the agency for good cause. This requirement for advance notice does not apply to advisory committee renewals, notices of which may be published concurrently with the filing of the charter. No advisory committee may meet or take any action until a charter has been filed by the Committee Management Officer (CMO) designated in accordance with section 8(b) of the Act, or by another agency official designated by the agency head. (a) Requirement for discretionary advisory committees. To establish, renew, or reestablish a discretionary advisory committee, a charter must be filed with: (1) The agency head; (2) The standing committees of the Senate and the House of Representatives having legislative jurisdiction of the agency, the date of filing with which constitutes the official date of establishment for the advisory committee; (3) The Library of Congress, Anglo-American Acquisitions Division, Government Documents Section, Federal Advisory Committee Desk, 101 Independence Avenue, SE., Washington, DC 20540–4172; and (4) The Secretariat, indicating the date the charter was filed in accordance with paragraph (a)(2) of this section. (b) Requirement for non-discretionary advisory committees. Charter filing requirements for non-discretionary advisory committees are the same as those in paragraph (a) of this section, except the date of establishment for a Presidential advisory committee is the date the charter is filed with the Secretariat. (c) Requirement for subcommittees that report directly to the Government. Subcommittees that report directly to a Federal officer or agency must comply with this subpart and include in a charter the information required by §102–3.75. (a) Purpose and contents of an advisory committee charter. An advisory committee charter is intended to provide a description of an advisory committee's mission, goals, and objectives. It also provides a basis for evaluating an advisory committee's progress and effectiveness. The charter must contain the following information: (1) The advisory committee's official designation; (2) The objectives and the scope of the advisory committee's activity; (3) The period of time necessary to carry out the advisory committee's purpose(s); (4) The agency or Federal officer to whom the advisory committee reports; (5) The agency responsible for providing the necessary support to the advisory committee; (6) A description of the duties for which the advisory committee is responsible and specification of the authority for any non-advisory functions; (7) The estimated annual costs to operate the advisory committee in dollars and person years; (8) The estimated number and frequency of the advisory committee's meetings; (9) The planned termination date, if less than two years from the date of establishment of the advisory committee; (10) The name of the President's delegate, agency, or organization responsible for fulfilling the reporting requirements of section 6(b) of the Act, if appropriate; and (11) The date the charter is filed in accordance with §102–3.70. (b) The provisions of paragraphs (a)(1) through (11) of this section apply to all subcommittees that report directly to a Federal officer or agency. (a) Responsibility and limitation. The agency head is responsible for amending the charter of an advisory committee. Amendments may be either minor or major. The procedures for making changes and filing amended charters will depend upon the authority basis for the advisory committee. Amending any existing advisory committee charter does not constitute renewal of the advisory committee under §102–3.60. (b) Procedures for minor amendments. To make a minor amendment to an advisory committee charter, such as changing the name of the advisory committee or modifying the estimated number or frequency of meetings, the following procedures must be followed: (1) Non-discretionary advisory committees. The agency head must ensure that any minor technical changes made to current charters are consistent with the relevant authority. When the Congress by law, or the President by Executive order, changes the authorizing language that has been the basis for establishing an advisory committee, the agency head or the chairperson of an independent Presidential advisory committee must amend those sections of the current charter affected by the new statute or Executive order, and file the amended charter as specified in §102–3.70. (2) Discretionary advisory committees. The charter of a discretionary advisory committee may be amended when an agency head determines that technical provisions of a filed charter are inaccurate, or specific provisions have changed or become obsolete with the passing of time, and that these amendments will not alter the advisory committee's objectives and scope substantially. The agency must amend the charter language as necessary and file the amended charter as specified in §102–3.70. Procedures for making major amendments to advisory committee charters, such as substantial changes in objectives and scope, duties, and estimated costs, are the same as in §102–3.80, except that for discretionary advisory committees an agency must: (a) Consult with the Secretariat on the amended language, and explain the purpose of the changes and why they are necessary; and (b) File the amended charter as specified in §102–3.70. 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 B—How Are Advisory Committees Established, Renewed, Reestablished, and Terminated?
§ 102-3.45 What does this subpart cover and how does it apply?
§ 102-3.50 What are the authorities for establishing advisory committees?
§ 102-3.55 What rules apply to the duration of an advisory committee?
§ 102-3.60 What procedures are required to establish, renew, or reestablish a discretionary advisory committee?
§ 102-3.65 What are the public notification requirements for discretionary advisory committees?
§ 102-3.70 What are the charter filing requirements?
§ 102-3.75 What information must be included in the charter of an advisory committee?
§ 102-3.80 How are minor charter amendments accomplished?
§ 102-3.85 How are major charter amendments accomplished?
Appendix A to Subpart B of Part 102–3—Key Points and Principles
---------------------------------------------------------------------------------------------------------------- Key points and principles Section(s) Question(s) Guidance----------------------------------------------------------------------------------------------------------------I. Agency heads must 102-3.60, 102-3.115 1. Can an agency head delegate to A. Yes. Many consult with the the Committee Management Officer administrative functions Secretariat prior to (CMO) responsibility for consulting performed to implement establishing a with the Secretariat regarding the the Act may be discretionary advisory establishment, renewal, or delegated. However, committee. reestablishment of discretionary those functions related advisory committees? to approving the final establishment, renewal, or reestablishment of discretionary advisory committees are reserved for the agency head. Each agency CMO should assure that their internal processes for managing advisory committees include appropriate certifications by the agency head.----------------------------------------------------------------------------------------------------------------II. Agency heads are 102-3.60(a), 102- 1. Who retains final authority for A. Although agency heads responsible for complying 3.105 establishing or renewing a retain final authority with the Act, including discretionary advisory committee? for establishing or determining which renewing discretionary discretionary advisory advisory committees, committees should be these decisions should established and renewed. be consistent with § 102-3.105(e) and reflect consultation with the Secretariat under § 102- 3.60(a).----------------------------------------------------------------------------------------------------------------III. An advisory committee 102-3.30(c), 102- 1. What factors should be considered A. The composition of an must be fairly balanced 3.60(b)(3) in achieving a ``balanced'' advisory committee's in its membership in advisory committee membership? membership will depend terms of the points of upon several factors, view represented and the including: (i) The functions to be advisory committee's performed. mission; (ii) The geographic, ethnic, social, economic, or scientific impact of the advisory committee's recommendations; (iii) The types of specific perspectives required, for example, such as those of consumers, technical experts, the public at-large, academia, business, or other sectors; (iv) The need to obtain divergent points of view on the issues before the advisory committee; and (v) The relevance of State, local, or tribal governments to the development of the advisory committee's recommendations.----------------------------------------------------------------------------------------------------------------IV. Charters for advisory 102-3.70(b) 1. If an advisory committee's A. Yes. Section 14(b)(2) committees required by duration exceeds two years, must a of the Act provides statute must be filed charter be filed with the Congress that: Any advisory every two years and GSA every two years? committee established by regardless of the an Act of Congress shall duration provided in the file a charter upon the statute. expiration of each successive two-year period following the date of enactment of the Act establishing such advisory committee.----------------------------------------------------------------------------------------------------------------
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