41 C.F.R. Appendix A to Subpart C 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 C—How Are Advisory Committees Managed?
Appendix A to Subpart C of Part 102–3—Key Points and Principles
---------------------------------------------------------------------------------------------------------------- Key points and principles Section Question(s) Guidance----------------------------------------------------------------------------------------------------------------I. FACA does not specify 102-3.105, 102- 1. Does the appointment of an A. No. Each agency head the manner in which 3.130(a) advisory committee member may specify those advisory committee necessarily result in a lengthy policies and procedures, members and staff must be process? consistent with the Act appointed and this part, or other specific authorizing statute, governing the appointment of advisory committee members and staff. B. Some factors that affect how long the appointment process takes include: (i) Solicitation of nominations; (ii) Conflict of interest clearances; (iii) Security or background evaluations; (iv) Availability of candidates; and (v) Other statutory or administrative requirements. C. In addition, the extent to which agency heads have delegated responsibility for selecting members varies from agency to agency and may become an important factor in the time it takes to finalize the advisory committee's membership.----------------------------------------------------------------------------------------------------------------II. Agency heads retain 102-3.130(a) 1. Can an agency head select for A. The answer to question the final authority for membership on an advisory committee 1 is yes. Organizations selecting advisory from among nominations submitted by may propose for committee members, unless an organization? membership individuals otherwise provided for by to represent them on an a specific statute or advisory committee. Presidential directive However, the agency head establishing the advisory committee, or other appointing authority, retains the final authority for selecting all members. 2. If so, can different persons B. The answer to question represent the organization at 2 also is yes. different meetings? Alternates may represent an appointed member with the approval of the establishing agency, where the agency head is the appointing authority.III. An agency may 102-3.130(d), 102- 1. May members and staff be A. The answer to question compensate advisory 3.130(e), 102- compensated for their service or 1 is yes. (i) However, committee members and 3.130(g) duties on an advisory committee? FACA limits compensation staff, and also employ 2. Are the guidelines the same for for advisory committee experts and consultants compensating both members and members and staff to the staff? rate for level IV of the 3. May experts and consultants be Executive Schedule, employed to perform other advisory unless higher rates committee work? expressly are allowed by other statutes. (ii) Although FACA provides for compensation guidelines, the Act does not require an agency to compensate its advisory committee members. B. The answer to question 2 is no. The guidelines for compensating members and staff are similar, but not identical. For example, the differences are that: (i) An agency ``may'' pay members on either an hourly or a daily rate basis, and ``may not'' provide additional compensation in any form, such as bonuses or premium pay; while (ii) An agency ``must'' pay staff on an hourly rate basis only, and ``may'' provide additional compensation, so long as aggregate compensation paid in a calendar year does not exceed the rate for level IV of the Executive Schedule, with appropriate proration for a partial calendar year. C. The answer to question 3 is yes. Other work not part of the duties of advisory committee members or staff may be performed by experts and consultants. For additional guidance on the employment of experts and consultants, agencies should consult the applicable regulations issued by the U. S. Office of Personnel Management (OPM). (See 5 CFR part 304.)----------------------------------------------------------------------------------------------------------------IV. Agency heads are 102-3.105(h) 1. Are all advisory committee A. The answer to question responsible for ensuring members subject to conflict of 1 is no. Whether an that the interests and interest statutes and other Federal advisory committee affiliations of advisory ethics rules? member is subject to committee members are 2. Who should be consulted for Federal ethics rules is reviewed for conformance guidance on the proper application dependent on the with applicable conflict of Federal ethics rules to advisory member's status. The of interest statutes and committee members? determination of a other Federal ethics member's status on an rules. advisory committee is largely a personnel classification matter for the appointing agency. Most advisory committee members will serve either as a ``representative'' or a ``special Government employee'' (SGE), based on the role the member will play. In general, SGEs are covered by regulations issued by the U. S. Office of Government Ethics (OGE) and certain conflict of interest statutes, while representatives are not subject to these ethics requirements. B. The answer to question 2 is the agency's Designated Agency Ethics Official (DAEO), who should be consulted prior to appointing members to an advisory committee in order to apply Federal ethics rules properly.----------------------------------------------------------------------------------------------------------------V. An agency head may 102-3.105(c), 102- 1. Must an agency's CMO and each A. The answer to question delegate responsibility 3.105(i) advisory committee DFO be appointed 1 is no. The agency head for appointing a by the agency head? may delegate Committee Management responsibility for Officer (CMO) or appointing the CMO and Designated Federal DFOs. However, these Officer (DFO); however, appointments, including there may be only one CMO alternate selections, for each agency. should be documented consistent with the agency's policies and procedures. 2. May an agency have more than one B. The answer to question CMO? 2 also is no. The functions of the CMO are specified in the Act and include oversight responsibility for all advisory committees within the agency. Accordingly, only one CMO may be appointed to perform these functions. The agency may, however, create additional positions, including those in its subcomponents, which are subordinate to the CMO's agencywide responsibilities and functions.----------------------------------------------------------------------------------------------------------------VI. FACA is the principal 102-3.125(c) 1. Do other statutes or regulations A. Yes. While the Act statute pertaining to affect the way an agency carries provides a general advisory committees. out its advisory committee framework for managing However, other statutes management program? advisory committees may impact their use and Governmentwide, other operations. factors may affect how advisory committees are managed. These include: (i) The statutory or Presidential authority used to establish an advisory committee; (ii) A statutory limitation placed on an agency regarding its annual expenditures for advisory committees; (iii) Presidential or agency management directives; (iv) The applicability of conflict of interest statutes and other Federal ethics rules; (v) Agency regulations affecting advisory committees; and (vi) Other requirements imposed by statute or regulation on an agency or its programs, such as those governing the employment of experts and consultants or the management of Federal records.----------------------------------------------------------------------------------------------------------------
