41 C.F.R. Subpart C—How Are Advisory Committees Managed?
Title 41 - Public Contracts and Property Management
This subpart outlines specific responsibilities and functions to be carried out by the General Services Administration (GSA), the agency head, the Committee Management Officer (CMO), and the Designated Federal Officer (DFO) under the Act. Agencies are encouraged to apply the following principles to the management of their advisory committees: (a) Provide adequate support. Before establishing an advisory committee, agencies should identify requirements and assure that adequate resources are available to support anticipated activities. Considerations related to support include office space, necessary supplies and equipment, Federal staff support, and access to key decisionmakers. (b) Focus on mission. Advisory committee members and staff should be fully aware of the advisory committee's mission, limitations, if any, on its duties, and the agency's goals and objectives. In general, the more specific an advisory committee's tasks and the more focused its activities are, the higher the likelihood will be that the advisory committee will fulfill its mission. (c) Follow plans and procedures. Advisory committee members and their agency sponsors should work together to assure that a plan and necessary procedures covering implementation are in place to support an advisory committee's mission. In particular, agencies should be clear regarding what functions an advisory committee can perform legally and those that it cannot perform. (d) Practice openness. In addition to achieving the minimum standards of public access established by the Act and this part, agencies should seek to be as inclusive as possible. For example, agencies may wish to explore the use of the Internet to post advisory committee information and seek broader input from the public. (e) Seek feedback. Agencies continually should seek feedback from advisory committee members and the public regarding the effectiveness of the advisory committee's activities. At regular intervals, agencies should communicate to the members how their advice has affected agency programs and decisionmaking. (a) Under section 7 of the Act, the General Services Administration (GSA) prepares regulations on Federal advisory committees to be prescribed by the Administrator of General Services, issues other administrative guidelines and management controls for advisory committees, and assists other agencies in implementing and interpreting the Act. Responsibility for these activities has been delegated by the Administrator to the GSA Committee Management Secretariat. (b) The Secretariat carries out its responsibilities by: (1) Conducting an annual comprehensive review of Governmentwide advisory committee accomplishments, costs, benefits, and other indicators to measure performance; (2) Developing and distributing Governmentwide training regarding the Act and related statutes and principles; (3) Supporting the Interagency Committee on Federal Advisory Committee Management in its efforts to improve compliance with the Act; (4) Designing and maintaining a Governmentwide shared Internet-based system to facilitate collection and use of information required by the Act; (5) Identifying performance measures that may be used to evaluate advisory committee accomplishments; and (6) Providing recommendations for transmittal by the Administrator to the Congress and the President regarding proposals to improve accomplishment of the objectives of the Act. The head of each agency that establishes or utilizes one or more advisory committees must: (a) Comply with the Act and this Federal Advisory Committee Management part; (b) Issue administrative guidelines and management controls that apply to all of the agency's advisory committees subject to the Act; (c) Designate a Committee Management Officer (CMO); (d) 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 exemption(s) of the Government in the Sunshine Act, 5 U.S.C. 552b(c), as the basis for closure; (e) 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; (f) 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; (g) 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; (h) Assure that the interests and affiliations of advisory committee members are reviewed for conformance with applicable conflict of interest statutes, regulations issued by the U.S. Office of Government Ethics (OGE) including any supplemental agency requirements, and other Federal ethics rules; (i) Designate a Designated Federal Officer (DFO) for each advisory committee and its subcommittees; and (j) Provide the opportunity for reasonable participation by the public in advisory committee activities, subject to §102–3.140 and the agency's guidelines. The chairperson of an independent Presidential advisory committee must: (a) Comply with the Act and this Federal Advisory Committee Management part; (b) Consult with the Secretariat concerning the designation of a Committee Management Officer (CMO) and Designated Federal Officer (DFO); and (c) Consult with the Secretariat in advance regarding any proposal to close any meeting in whole or in part. In addition to implementing the provisions of section 8(b) of the Act, the CMO will carry out all responsibilities delegated by the agency head. The CMO also should ensure that sections 10(b), 12(a), and 13 of the Act 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 §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 §102–3.105. 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: (a) Approve or call the meeting of the advisory committee or subcommittee; (b) Approve the agenda, except that this requirement does not apply to a Presidential advisory committee; (c) Attend the meetings; (d) Adjourn any meeting when he or she determines it to be in the public interest; and (e) Chair the meeting when so directed by the agency head. FACA does not assign any specific responsibilities to members of advisory committees and staff, although both perform critical roles in achieving the goals and objectives assigned to advisory committees. Agency heads, Committee Management Officers (CMOs), and Designated Federal Officers (DFOs) should consider the distinctions between these roles and how they relate to each other in the development of agency guidelines implementing the Act and this Federal Advisory Committee Management part. In general, these guidelines should reflect: (a) Clear operating procedures. Clear operating procedures should provide for the conduct of advisory committee meetings and other activities, and specify the relationship among the advisory committee members, the DFO, and advisory committee or agency staff; (b) Agency operating policies. In addition to compliance with the Act, advisory committee members and staff may be required to adhere to additional agency operating policies; and (c) Other applicable statutes. Other agency-specific statutes and regulations may affect the agency's advisory committees directly or indirectly. Agencies should ensure that advisory committee members and staff understand these requirements. In developing guidelines to implement the Act and this Federal Advisory Committee Management part at the agency level, agency heads must address the following issues concerning advisory committee member and staff appointments, and considerations with respect to uniform fair rates of compensation for comparable services, or expense reimbursement of members, staff, and experts and consultants: (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. (b) Compensation guidelines. Each agency head must establish uniform compensation guidelines for members and staff of, and experts and consultants to an advisory committee. (c) Compensation of advisory committee members not required. Nothing in this subpart requires an agency head to provide compensation to any member of an advisory committee, unless otherwise required by a specific statute. (d) Compensation of advisory committee members. When an agency has authority to set pay administratively for advisory committee members, it 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. However, the agency head personally must authorize a rate of basic pay in excess of the maximum rate of basic pay established for the General Schedule under 5 U.S.C. 5332, or alternative similar agency compensation system. This maximum rate includes any applicable locality payment under 5 U.S.C. 5304. 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. (e) Compensation of staff. When an agency has authority to set pay administratively for advisory committee staff, it 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. However, the agency head personally must authorize a rate of basic pay in excess of the maximum rate of basic pay established for the General Schedule under 5 U.S.C. 5332, or alternative similar agency compensation system. This maximum rate includes any applicable locality payment under 5 U.S.C. 5304. The agency must pay advisory committee staff on an hourly rate basis. The agency may provide additional compensation, such as bonuses or premium pay, 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. (f) Other compensation considerations. In establishing rates of pay for advisory committee members and staff, the agency must comply with any applicable statutes, Executive orders, regulations, or administrative guidelines. In determining an appropriate rate of basic pay for advisory committee members and staff, 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. The agency also should take into account the rates of pay applicable to Federal employees who have duties that are similar in terms of difficulty and responsibility. An agency may establish rates of pay for advisory committee staff based on the pay these persons would receive if they were covered by the General Schedule in 5 U.S.C. Chapter 51 and Chapter 53, subchapter III, or by an alternative similar agency compensation system. (g) Compensation of experts and consultants. Whether or not an agency has other authority to appoint and compensate advisory committee members or staff, it also may employ experts and consultants under 5 U.S.C. 3109 to perform work for an advisory committee. Compensation of experts and consultants may not exceed the maximum rate of basic pay established for the General Schedule under 5 U.S.C. 5332 (that is, the GS–15, step 10 rate, excluding locality pay or any other supplement), unless a higher rate expressly is allowed by another statute. The appointment and compensation of experts and consultants by an agency must be in conformance with applicable regulations issued by the U. S. Office of Personnel Management (OPM) (See 5 CFR part 304.). (h) Federal employees assigned to an advisory committee. Any advisory committee member or staff person who is a Federal employee when assigned duties to an advisory committee remains covered during the assignment by the compensation system that currently applies to that employee, unless that person's current Federal appointment is terminated. Any staff person who is a Federal employee must serve with the knowledge of the Designated Federal Officer (DFO) for the advisory committee to which that person is assigned duties, and the approval of the employee's direct supervisor. (i) Other appointment considerations. An individual who is appointed as an advisory committee member or staff person immediately following termination of another Federal appointment with a full-time work schedule may receive compensation at the rate applicable to the former appointment, if otherwise allowed by applicable law (without regard to the limitations on pay established in paragraphs (d) and (e) of this section). Any advisory committee staff person who is not a current Federal employee serving under an assignment must be appointed in accordance with applicable agency procedures, and in consultation with the DFO and the members of the advisory committee involved. (j) Gratuitous services. In the absence of any special limitations applicable to a specific agency, nothing in this subpart prevents an agency from accepting the gratuitous services of an advisory committee member or staff person who is not a Federal employee, or expert or consultant, who agrees in advance and in writing to serve without compensation. (k) Travel expenses. Advisory committee members and staff, 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 in lieu of subsistence, as authorized by 5 U.S.C. 5703, for persons employed intermittently in the Government service. (l) 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 for employees with disabilities, if the member qualifies as an individual with disabilities as provided in section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, and does not otherwise qualify for assistance under 5 U.S.C. 3102 by reason of being a Federal employee. 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?
§ 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?
§ 102-3.115 What are the responsibilities and functions of an agency Committee Management Officer (CMO)?
§ 102-3.120 What are the responsibilities and functions of a Designated Federal Officer (DFO)?
§ 102-3.125 How should agencies consider the roles of advisory committee members and staff?
§ 102-3.130 What policies apply to the appointment, and compensation or reimbursement of advisory committee members, staff, and experts and consultants?
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.----------------------------------------------------------------------------------------------------------------
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