FEDERAL ADVISORY COMMITTEE MANAGEMENT

• Citation: 41 CFR Part 102-3
• Sections: 34

§ 102-3.5 Coverage and application of this part.

This part provides the policy framework and establishes minimum requirements that must be used by agency heads and Federal officers in applying the Federal Advisory Committee Act, as amended (FACA or “the Act”), 5 U.S.C. chapter 10, to advisory committees they establish and operate. This part is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person, including any advisory committee or officer, member, employee, agent, or contractor of any advisory committee.

§ 102-3.10 Purpose and scope of the Federal Advisory Committee Act.

FACA governs the establishment, operation, administration, and termination of advisory committees within the executive branch of the Federal Government. The Act defines what constitutes a Federal advisory committee, provides general procedures for the executive branch to follow for operating an advisory committee, and is designed to assure that the Congress and the public are kept informed with respect to the number, purpose, membership, activities, recommendations, outcomes, and cost of advisory committees through reporting requirements.

§ 102-3.25 Definitions.

The following definitions apply to this part:

Act means the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. chapter 10.

Administrator means the Administrator of General Services.

Advisory committee 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 the group's advice or recommendations for the President or on issues or policies within the scope of agency responsibilities (codified at 5 U.S.C. 1001). Advisory committees are subject to the Act unless specifically exempted by the Act, or by other statutes, or not covered by this part.

Agency has the same meaning as in 5 U.S.C. 551(1).

Agency head means the head of an executive branch agency, department, or commission, or their designated delegate.

Chairperson means the advisory committee or subcommittee member who serves in this role on an advisory committee or subcommittee by statutory requirement, or by appointment or invitation by Presidential authority or an agency's authority.

Committee Management Officer (CMO) means the individual designated by the agency head to implement the provisions of sec. 8(b) of the Act (codified at 5 U.S.C. 1007(b)) and any delegated responsibilities of the agency head under the Act.

Committee Management Secretariat (Secretariat) means the organization established pursuant to sec. 7(a) of the Act (codified at 5 U.S.C. 1006(a)), which is responsible for all matters relating to advisory committees and carries out the responsibilities of the Administrator under the Act and E.O. 12024 (3 CFR, 1977 Comp., p. 158).

Committee meeting means any gathering of advisory committee members (whether in person or electronically, such as using telecommunications or through a virtual platform), held with the approval of an agency, and with a Designated Federal Officer in attendance, for the purpose of deliberating on the matters upon which the advisory committee provides advice or recommendations.

Committee member means an individual who serves by appointment or invitation by the appointing authority 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 secs. 10(e) and (f) of the Act (codified at 5 U.S.C. 1009(e) and (f)) 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, 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, or by the 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, 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 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 by means a committee over which the President or a Federal officer or agency exercises actual management or control of its operation, whether or not it was established by the Federal Government.

§ 102-3.35 Policies governing the use of subcommittees.

In general, the requirements of the Act and the policies of this part do not apply to subcommittees of advisory committees as long as the subcommittee reports only to that parent advisory committee and not directly to a Federal officer or agency. However, before establishing a subcommittee under a discretionary committee that is not made up entirely of members of a parent advisory committee, the head of the agency shall follow the same consultation process and document in writing the same determination of need for the subcommittee as is required under § 102-3.60(a) for the creation of a discretionary advisory committee.

§ 102-3.40 Activities, committees, or groups not covered by the Act and this part.

In addition to the committees created by the National Academy of Sciences, Engineering, and Medicine and the National Academy of Public Administration (except as covered by subpart E of this part), the Central Intelligence Agency, and the Federal Reserve, the following are examples of committees or groups that are not covered by the Act or this part:

(a) Any advisory committee established or utilized by the Office of the Director of National Intelligence, if the Director of National Intelligence determines that for reasons of national security such advisory committee cannot comply with the requirements of the Act;

(b) Committees specifically exempted by statute;

(c) Committees created by non-Federal entities and not actually managed or controlled by the executive branch;

(d) Groups assembled where attendees provide individual advice to a Federal official(s);

(e) Groups assembled to exchange facts or information with a Federal official(s);

(f) 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, and exclusively discussing matters relating to the management or implementation of Federal programs established pursuant to public law that explicitly or inherently share intergovernmental responsibilities or administration (sec. 204(b) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1534(b), and Office of Management and Budget (OMB) Memorandum M-95-20, dated September 21, 1995);

(g) Any committee composed wholly of full-time or permanent part-time officers or employees of the Federal Government;

(h) Local civic groups whose primary function is that of rendering a public service with respect to a Federal program;

(i) Groups established to advise State or local officials;

(j) Any committee established to perform primarily operational as opposed to primarily 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;

(k) Meetings where individual rather than consensus advice is sought, such as roundtable discussions, workshops, townhall meetings, listening sessions, fact-finding meetings, meetings with an individual, or meetings with small groups of experts that do not involve regular meetings and collective recommendations;

(l) Public engagement that is required by statutes, including but not limited to: notice and comment rulemaking under the Administrative Procedure Act (5 U.S.C. 551-559), public meetings required under the National Environmental Policy Act (42 U.S.C. 4321), or public participation under the Resource Conservation and Recovery Act (42 U.S.C. 6974(b)), the Clean Water Act (33 U.S.C. 1251(e)), or the Safe Drinking Water Act (42 U.S.C. 300j-9) and the National Historic Preservation Act section 106 (54 U.S.C. 306108);

(m) Meetings with pre-existing non-governmental groups such as trade associations, advocacy groups, veterans organizations, environmental groups, or religious organizations where each group already has formulated views that it seeks to share with the Government; and

(n) Meetings where an agency is either providing its views to the private sector, or is assisting the private sector in developing guidance for itself.

§ 102-3.45 Requirements for establishing and terminating advisory committees.

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, merger, and termination of advisory committees.

§ 102-3.50 Authorities for establishing advisory committees.

FACA identifies four sources of authority for establishing an advisory committee:

(a) Required by statute. By law where Congress establishes an advisory committee, or specifically directs the President or an agency to establish it (non-discretionary);

(b) Presidential authority. By Presidential directive (non-discretionary);

(c) Authorized by statute. By law where 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 agency-authorizing statutes (discretionary).

§ 102-3.55 Duration of advisory committees.

(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 or termination, either stated in or implied by operation of the statute;

(2) The President or agency head as applicable 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 as applicable 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 as applicable renews the advisory committee not later than two years after its date of establishment, renewal, or reestablishment in accordance with § 102-3.60. If the President or an agency needs an advisory committee that was terminated, 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.

§ 102-3.60 Procedures for establishing, renewing, reestablishing, or merging discretionary advisory committees.

(a) Consultation with the Secretariat. To establish, renew, reestablish, or merge a discretionary advisory committee, the agency head must first consult with the Secretariat and, as part of the consultation, provide a written public interest determination approved by the head of the agency to the Secretariat documenting that the establishment, renewal, reestablishment, or merger of the committee is essential to the conduct of agency business and that the information to be obtained is not already available through another advisory committee or source within the Federal Government. At a minimum, the following factors should be addressed in the written public interest determination provided to the Secretariat (with a copy to OMB) to demonstrate that establishing the committee is in the public interest:

(1) Annual budget and expected costs broken into:

(i) Federal personnel (based on full-time equivalent (FTE) usage basis) and other Federal internal costs;

(ii) Proposed payments to members and number of members; and

(iii) Reimbursable costs;

(2) If applicable, the total dollar value of grants expected to be recommended during the fiscal year;

(3) Criteria for selecting members to ensure the committee has the necessary expertise and fairly balanced membership;

(4) List of all other Federal advisory committees of the agency;

(5) Justification that the information or advice provided by the Federal advisory committee is not available from another Federal advisory committee, another Federal Government source or any other more cost-effective and less burdensome source; and

(6) If the justification relates to a renewal, a summary of the previous accomplishments of the committee and the reasons it needs to continue.

(b) Agency considerations for fairly balanced membership. To comply with the Act's requirement for fairly balanced membership, during the Federal advisory committee member recruitment process agencies should consider the following:

(1) The points of view required. During the formation of the advisory committee membership and as membership vacancies occur, agencies should ensure that they fully consider and understand the potential implications or anticipated impacts of the advisory committee's potential recommendations. This includes consideration of the groups and entities potentially affected or interested in such recommendations, as appropriate based on the nature and functions of the advisory committee, so that the agency can make informed decisions on the areas of expertise or perspectives that would advance the work 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 by the committee.

(2) Outreach. Having identified the points of view that would promote a fairly balanced advisory committee membership, agencies should conduct broad outreach.

§ 102-3.65 Public notification requirements for discretionary advisory committees.

A notice to the public in the Federal Register is required when a discretionary advisory committee is established, renewed, reestablished, or merged.

(a) Procedure. Upon receipt of the written public interest determination approved by the head of the agency and information required in accordance with § 102-3.60(a), the Secretariat may provide an assessment to the agency (with a copy to OMB) as to its views on whether establishment of the advisory committee is in the public interest. Following receipt of this assessment or notification from the Secretariat that no such assessment will be produced, the agency must publish a notice in the Federal Register announcing that the advisory committee is being established, renewed, reestablished, or merged. The notice must include the written public interest determination approved by the head of the agency described in § 102-3.60(a) and any assessment provided by the Secretariat.

(b) Time required for notices. The required notices for establishment, renewal, reestablishment, or merger must appear at least 7 calendar days before the charter is filed, except that the Secretariat may approve less than 7 calendar days when requested by the agency in exceptional circumstances.

§ 102-3.70 Filing requirements for advisory committee charters.

No advisory committee may meet or take any action until a charter has been filed by the CMO or by another agency official designated by the agency head.

(a) Requirement for discretionary advisory committees. To amend a charter, or establish (including due to a merger), 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;

(4) The Secretariat, indicating the date the charter was filed in accordance with paragraph (a)(2) of this section; and

(5) OMB.

(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 that the date of establishment, renewal, merger, or reestablishment for a Presidential advisory committee is the date the charter is filed with the Secretariat.

§ 102-3.75 Content of advisory committee charters.

An advisory committee charter is intended to provide a description of an advisory committee's mission, goals, and objectives. The charter must contain the following information:

(a) The advisory committee's official designation (official name);

(b) The legal authority that permits the advisory committee to be established;

(c) The objectives and the scope of the advisory committee's activities;

(d) A description of the duties for which the advisory committee is responsible and specification of the authority for any non-advisory functions;

(e) The agency or Federal officer to whom the advisory committee submits its recommendations;

(f) The agency responsible for providing the necessary support to the advisory committee, including the name of the President's delegate, agency, or organization responsible for fulfilling the reporting requirements of sec. 6(b) of the Act (codified at 5 U.S.C. 1005(b)), if appropriate;

(g) The estimated annual costs to operate the advisory committee in dollars and person years (FTE). The estimated costs should break down all costs into the three categories described in § 102-3.60(a);

(h) The estimated number and frequency of the advisory committee's meetings;

(i) The period of time necessary to carry out the advisory committee's purpose(s);

(j) The planned termination date, if less than two years from the date of establishment of the advisory committee;

(k) The estimated number of advisory committee members, the expertise or experience required, and the anticipated advisory committee member designations;

(l) Whether subcommittees may be created and by whom; and

(m) The date the charter is filed in accordance with § 102-3.70.

§ 102-3.80 Amendments to advisory committee charters.

The agency head is responsible for amending the charter of an advisory committee. Amending any existing advisory committee charter does not constitute renewal of the advisory committee under § 102-3.60. The procedures for making changes and filing amended charters will depend upon the authority basis for the advisory committee:

(a) Non-discretionary advisory committees. When Congress by law, or the President by Presidential directive ( e.g., E.O.), 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 Presidential directive ( e.g., E.O.), and file the amended charter as specified in § 102-3.70.

(b) Discretionary advisory committees. The agency head must amend the charter of a discretionary advisory committee when an agency head determines that provisions of a filed charter are inaccurate or obsolete, specific provisions have changed, such as the name of the advisory committee, number of members, estimated number or frequency of meetings, objectives, or estimated costs, or when advisory committees need to be merged. The agency must then file the amended charter as specified in § 102-3.70.

(c) Public notification of charter amendments. Agencies must post an announcement and a copy of the charter amendment on the advisory committee website. If an advisory committee website is not available, the agency must publish a notice of amendment in the Federal Register. Federal Register notice publishing and website posting of charter amendments may be performed concurrently with the filing of the charter. The publishing requirement in the Federal Register does not apply to a non-discretionary advisory committee if the amendment was the result of a legislative change or Presidential directive.

§ 102-3.90 Responsibilities and functions under this subpart.

This subpart outlines specific responsibilities and functions to be carried out by the U.S. General Services Administration (GSA), the agency head, the CMO, and the DFO under the Act.

§ 102-3.95 Principles for managing advisory committees.

Agencies are to apply the following principles to the management of their advisory committees:

(a) Provide adequate support and access. Before establishing an advisory committee, agencies should identify requirements and ensure that adequate resources are available to support anticipated activities, such as work and meeting space, necessary technology, supplies and equipment ( e.g., adequate virtual meeting capabilities), Federal staff support, access to key decisionmakers, and member access to meetings.

(b) Practice openness. Agencies should seek to be as transparent and timely as possible when providing public access to advisory committee activities and materials. Agencies should create public-facing websites at both the agency and advisory committee level to help the public understand an agency's advisory committee program, and use additional notification methods, as appropriate, to reach advisory committee stakeholders, pursuant to sec. 10 of the Act (codified at 5 U.S.C. 1009).

(c) Fiscal restraint. Agencies should actively seek to minimize costs associated with advisory committees and should be transparent about all expenditures. Each agency shall keep records fully disclosing the amount budgeted to each committee, a detailed account of all committee expenditures and agency expenditures on behalf of the committee, and the nature and extent of their activities. This information should be provided as part of the annual comprehensive review and be reported by the Secretariat. If the committee has a website, the agency should provide accurate and up to date information regarding all committee expenditures and the justification for each expenditure on an annual basis.

§ 102-3.100 Responsibilities and functions of GSA.

(a) The responsibilities of the Administrator under sec. 7 of the Act (codified at 5 U.S.C. 1006) have been delegated by the Administrator to the Secretariat.

(b) The Secretariat is responsible for:

(1) Engaging in consultations with agencies on the establishment, reestablishment, renewal, merger, and termination of discretionary advisory committees;

(2) Prescribing guidance and regulations applicable to advisory committees;

(3) Assisting other agencies in implementing and interpreting the Act;

(4) Conducting a Government-wide annual comprehensive review of advisory committees to determine whether each committee is carrying out its purpose, whether the responsibilities assigned to the committee should be revised, and whether any committees should be merged or terminated;

(5) Collecting and analyzing data relating to the costs of individual advisory committees and agency FACA programs as well as the costs of the Government-wide program and the Secretariat;

(6) Designing and maintaining a FACA database to facilitate data collection, reporting, and use of information required by the Act; and

(7) Providing recommendations for transmittal by the Administrator to the President, Congress, or agency heads regarding actions that should be taken with regard to the FACA and its implementation.

§ 102-3.105 Responsibilities of an agency head.

When a committee is utilized by or established by an agency, the agency head must:

(a) Issue administrative guidelines and management controls consistent with guidance issued by the Administrator;

(b) Maintain information on the nature, functions, and operation of each advisory committee within its jurisdiction;

(c) Designate a CMO for the agency and a DFO for each advisory committee and its subcommittees;

(d) Approve the advisory committee charters for establishments, renewals, re-establishments, or mergers;

(e) 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 exemptions set forth in the Government in the Sunshine Act, 5 U.S.C. 552b(c);

(f) 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. This review must address all of the criteria listed in § 102-3.60;

(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 committee members are reviewed for conformance with applicable conflict of interest statutes, regulations issued by the U.S. Office of Government Ethics (5 CFR chapter XVI, subchapter B) including any supplemental agency requirements, and other Federal ethics rules; and

(i) Appoint or invite individuals to serve on committees, unless otherwise provided for by a specific statute or Presidential directive.

§ 102-3.110 Responsibilities of a chairperson of an independent Presidential advisory committee.

The chairperson of an independent Presidential advisory committee must:

(a) Consult with the Secretariat concerning the designation of a CMO and DFO; and

(b) Consult with the Secretariat in advance regarding any proposal to close any meeting in whole or in part.

§ 102-3.115 Responsibilities and functions of a CMO.

In addition to implementing the provisions of sec. 8(b) of the Act (codified at 5 U.S.C. 1007(b)), the CMO will carry out all responsibilities delegated by the agency head and manage the agency FACA program. The CMO also should ensure that secs. 10(b), 12(a), and 13 of the Act (codified at 5 U.S.C. 1009(b), 1011(a), and 1012, respectively) 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 administrative guidelines. Agency administrative guidelines maintained and updated on committee management operations and procedures; and

(d) Closed meeting determinations. Agency, or in the case of an independent Presidential advisory committee, Secretariat, determinations to close or partially close advisory committee meetings required by § 102-3.105(e).

§ 102-3.120 Responsibilities and functions of a DFO.

(a) The agency head or, in the case of an independent Presidential advisory committee, the Secretariat, must designate a Federal officer or employee to be the DFO for each advisory committee and its subcommittees, who must:

(1) Ensure that their committee activities comply with the Act, this part, their agency administrative procedures, and any other applicable laws and regulations;

(2) Approve or call all meetings of the advisory committee or subcommittee;

(3) Approve the agenda, except that this requirement does not apply to a Presidential advisory committee;

(4) Attend all advisory committee and subcommittee meetings for their duration;

(5) Adjourn any meeting when he or she determines it to be in the public interest;

(6) Chair any meeting when so directed by the agency head;

(7) Maintain information on advisory committee activities and provide such information to the public, as applicable; and

(8) Ensure advisory committee members and subcommittee members, as applicable, receive the appropriate training ( e.g., FACA overview, ethics training) for compliance with the Act and this part.

(b) The DFO should ensure a public-facing website is created and maintained for each advisory committee, and include information such as: the advisory committee charter; relevant laws, regulations, and guidance; advisory committee member rosters; Federal Register notices; meeting information (such as agendas, meeting materials, and minutes); reports and recommendations; and any other information that would increase the transparency and public understanding of advisory committee functions and activities and assist in fulfilling the requirements under sec. 10(b) of the Act (codified at 5 U.S.C. 1009(b)).

§ 102-3.125 Agency administrative guidelines to implement an advisory committee.

An agency's administrative guidelines provide the details that advisory committee staff need to implement FACA requirements during the creation, operation, and termination of their advisory committees.

(a) Advisory committee operating procedures (also known as bylaws). Agency administrative guidelines should specify the content of advisory committee operating procedures to ensure they provide clear instructions on how to comply with the Act and the authority for the committee, including how to conduct advisory committee meetings and other committee activities.

(b) Advisory committee costs. Agency administrative guidelines must:

(1) Provide instructions on how to identify, calculate, and fully document advisory committee costs; and

(2) Ensure agency committee cost records match the data reported through the FACA database.

§ 102-3.130 Policies for appointment, and compensation or reimbursement of advisory committee members.

In developing guidelines to implement the Act, this part, and other applicable laws and regulations at the agency level, agency heads should address the following issues:

(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. Agency heads are encouraged to set member term limits, where possible, so that agencies continually ensure the committee is fairly balanced throughout the life of the advisory committee.

(b) Compensation of advisory committee members. Agencies are not required to pay their advisory committee members, unless required to do so by statute or Presidential authority. In determining the rate of compensation 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 head may establish appropriate rates of pay not to exceed the rate for level III of the Executive Schedule under 5 U.S.C. 5314, unless a higher rate expressly is allowed by another statute. The agency may not provide additional compensation in any form. Federal employees may not receive any additional compensation or bonus pay for their service on an advisory committee, except recompense of travel expenses in accordance with the Federal Travel Regulation in 41 CFR subtitle F.

(c) Federal employees assigned to an advisory committee. Federal employees serving as either an advisory committee member or as a staff person remain covered during the assignment by the compensation system of their employing agency.

(d) Other appointment considerations. Any advisory committee staff person who is not a current Federal employee must be appointed in accordance with applicable agency procedures.

(e) Travel expenses. Advisory committee members, 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, per the rates established for employees by the Administrator at 5 U.S.C. 5702. In order to minimize travel expenses, agencies should hold virtual meetings or allow virtual attendance for committee members who would otherwise need to travel. Reimbursement of travel expenses should only be done when the Presidential directive, authorizing statute, or committee charter allows for it, funds are available, and expenditure of funds will not exceed budgeted amounts.

(f) Services for advisory committee members with disabilities. While performing advisory committee duties, an advisory committee member with disabilities may be provided the same services by a personal assistant as those that may be provided to employees per 5 U.S.C. 3102.

§ 102-3.135 Coverage and application of this subpart.

This subpart establishes policies and procedures relating to meetings and other activities undertaken by advisory committees and their subcommittees. This subpart also outlines what records must be kept by Federal agencies and what other documentation, including advisory committee minutes and reports, must be prepared and made available to the public.

§ 102-3.140 Policies for advisory committee meetings.

(a) Each advisory committee meeting must be held at a reasonable time and in a manner or place accessible to the public.

(b) The physical or electronic meeting room must be sufficient to accommodate advisory committee members, advisory committee or agency staff, and a reasonable number of interested members of the public.

(c) Any member of the public is permitted to file a written statement with the advisory committee, whether or not the statement is related to a specific meeting.

(d) Any member of the public may speak to or otherwise address the advisory committee if the agency's guidelines so permit.

(e) Any advisory committee meeting conducted in whole or in part through any electronic medium (such as a teleconference or through a virtual platform) must meet the requirements of this subpart. Agencies should explore having virtual meetings instead of in-person meetings as a cost savings measure.

(f) The Federal Register notices, agendas, and supporting materials related to each meeting should be posted on the agency advisory committee website (if one exists) as soon as they are available or at the time they are provided to the advisory committee members.

§ 102-3.145 Policies for subcommittee meetings.

If a subcommittee provides advice or recommendations directly to a Federal officer or agency, or if its advice or recommendations will be adopted by the parent advisory committee without further deliberations by the parent advisory committee, then the subcommittee's meetings must be conducted in accordance with the requirements of this subpart.

§ 102-3.150 Announcement of advisory committee meetings to the public.

(a) A notice in the Federal Register must be published at least 7 calendar days prior to an advisory committee meeting, which includes:

(1) The name of the advisory committee (or subcommittee, if applicable);

(2) The time, date, physical place (and/or instructions to connect electronically), and purpose of the meeting;

(3) Whether meeting registration is required;

(4) A summary of the agenda, and/or topics to be discussed and instructions on how to access meeting materials;

(5) A statement whether all or part of the meeting is open to the public or closed; if the meeting is closed in whole or in part, state the reasons why, citing the specific exemption(s) of the Government in the Sunshine Act, 5 U.S.C. 552b(c);

(6) Instructions for submitting written comments, and oral comments if permitted;

(7) Instructions on how to submit a request for physical meeting or electronic meeting accommodations consistent with the relevant sections of the Rehabilitation Act, as amended, 29 U.S.C. 794; and

(8) The contact information for the DFO or other responsible agency official, or agency electronic mailbox for the committee, to contact for additional information concerning the meeting.

(b) The agency or an independent Presidential advisory committee may give less than 7 calendar days notice if the President determines this is necessary for reasons of national security, or if the head of an agency determines this is necessary due to exceptional circumstances, and the reasons for doing so are included in the advisory committee meeting notice published in the Federal Register .

(c) In addition to the Federal Register, and consistent with standard agency practice, agencies should announce meetings through additional notification methods, such as websites and social media, considering the most appropriate methods to reach committee stakeholders, and with as much advance notice as possible.

§ 102-3.155 Procedures for closing advisory committee meetings to the public.

(a) To close all or part of an advisory committee meeting, the DFO must submit a request to the agency head, or in the case of an independent Presidential advisory committee, the Secretariat, citing the specific exemption(s) of the Government in the Sunshine Act, 5 U.S.C. 552b(c), that justifies the closure. The request must provide the agency head or the Secretariat sufficient time to review the matter in order to make a determination before publication of the meeting notice required by § 102-3.150.

(b) If the agency head, or in the case of an independent Presidential advisory committee, the Secretariat, finds that the request is consistent with the provisions of the Government in the Sunshine Act and FACA, the appropriate agency official must issue a determination that all or part of the meeting will be closed. The agency head or the chairperson of an independent Presidential advisory committee must make a copy of any such determination available to the public upon request.

§ 102-3.160 Activities of advisory committees not subject to notice and open meeting requirements.

The following activities of an advisory committee are excluded from the procedural requirements contained in this subpart:

(a) Preparatory work. Meetings of two or more advisory committee or subcommittee members convened solely to gather information, conduct research, or analyze relevant issues and facts in preparation for deliberation by advisory committee members in a public meeting of the advisory committee, or deliberation by subcommittee members in a public meeting of the subcommittee (where applicable). These meetings to conduct preparatory work do not include deliberation among advisory committee or subcommittee members; and

(b) Administrative work. Meetings of two or more advisory committee or subcommittee members convened solely to discuss administrative matters of the advisory committee or subcommittee (such as meeting logistics) or to receive administrative information from a Federal officer or agency (such as a briefing on ethics or FACA procedural requirements).

§ 102-3.165 Documentation of advisory committee meetings.

(a) Detailed minutes of each advisory committee meeting, including one that is closed or partially closed to the public, must be kept. The chairperson of each advisory committee must certify the accuracy of all minutes of advisory committee meetings.

(b) The minutes must include:

(1) The time, date, and place (or electronic format) of the advisory committee meeting;

(2) A list of the persons who were present at the meeting, including advisory committee members and staff, agency employees, and members of the public who presented oral or written statements;

(3) An accurate description of each matter discussed and the resolution, if any, made by the advisory committee regarding such matter; and

(4) Copies of each report or other materials received, issued, or approved by the advisory committee at the meeting.

(c) The DFO must ensure that minutes are certified for accuracy by the chairperson within 90 calendar days of the meeting to which they relate. Agencies should post the meeting minutes on the agency advisory committee website (if one exists).

§ 102-3.170 Access to advisory committee records.

Timely access to advisory committee records is an important element of the public access requirements of the Act. Section 10(b) of the Act (codified at 5 U.S.C. 1009(b)) provides for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend committee meetings, provide a meaningful opportunity to comprehend fully the work undertaken by the advisory committee. Although certain advisory committee records may be withheld under an exemption to the Freedom of Information Act (FOIA), agencies may not require members of the public or other interested parties to use FOIA procedures in order to obtain records available under sec. 10(b) of the Act (codified at 5 U.S.C. 1009(b)).

§ 102-3.175 Reporting and recordkeeping requirements for advisory committees.

(a) Presidential advisory committee follow-up report. Within one year after a Presidential advisory committee has submitted a public report to the President, a follow-up report required by sec. 6(b) of the Act (codified at 5 U.S.C. 1005(b)) must be prepared and transmitted to the Congress detailing the disposition of the advisory committee's recommendations. These reports are prepared and transmitted to the Congress either by the President or the President's delegate pursuant to § 102-3.75(f).

(b) Annual comprehensive review of Federal advisory committees. Per sec. 7(b) of the Act (codified at 5 U.S.C. 1006(b)), GSA is required to conduct an annual comprehensive review of the activities and responsibilities of each Federal advisory committee that was in existence during any part of a Federal fiscal year. In carrying out the review the Secretariat shall review the written public interest determination required by § 102-3.60(a), any reports or recommendations issued by each committee, including all grants, and data reported on each committee by its sponsoring agency to make a recommendation as to whether the committee should be renewed, merged, or terminated. Federal agencies are responsible for reporting data on each advisory committee into the GSA FACA database as part of the annual comprehensive review.

(c) Annual report of closed or partially closed meetings. In accordance with sec. 10(d) of the Act (codified at 5 U.S.C. 1009(d)), advisory committees holding closed or partially closed meetings must issue reports at least annually, setting forth a summary of activities and such related matters as would be informative to the public consistent with the policy of 5 U.S.C. 552(b).

(d) Advisory committee reports. Subject to 5 U.S.C. 552, copies of each report made by an advisory committee, including any report of closed or partially closed meetings as specified in paragraph (c) of this section and, where appropriate, background papers prepared by experts or consultants, must be filed with the Library of Congress as required by sec. 13 of the Act (codified at 5 U.S.C. 1012) for public inspection and use.

(e) Advisory committee records. Official records generated by or for an advisory committee must be retained for the duration of the advisory committee. Upon termination of the advisory committee, the records must be processed in accordance with the Federal Records Act, 44 U.S.C. chapters 21 and 29 through 33, and regulations issued by the National Archives and Records Administration (see 36 CFR parts 1220, 1222, 1228, and 1234), or in accordance with the Presidential Records Act, 44 U.S.C. chapter 22.

§ 102-3.180 Coverage and application of this subpart.

This subpart provides guidance to agencies on compliance with sec. 15 of the Act (codified at 5 U.S.C. 1014). Section 15 establishes requirements that apply only in connection with a funding or other written agreement involving an agency's use of advice or recommendations provided to the agency by the National Academy of Sciences (NAS) or the National Academy of Public Administration (NAPA), if such advice or recommendations were developed by use of a committee created by either academy. For purposes of this subpart, NAS also includes the National Academy of Engineering, the National Academy of Medicine, and the National Research Council. Except with respect to NAS committees that were the subject of judicial actions filed before December 17, 1997, no part of the Act other than sec. 15 applies to any committee created by NAS or NAPA.

§ 102-3.185 Requirements for agencies using Advice from NAS or NAPA.

(a) Section 15 requirements. An agency may not use any advice or recommendation provided to an agency by NAS or NAPA under an agreement between the agency and an academy, if such advice or recommendation was developed by use of a committee created by either academy, unless:

(1) The committee was not subject to any actual management or control by an agency or officer of the Federal Government; and

(2) In the case of NAS, the academy certifies that it has complied substantially with the requirements of sec. 15(b) of the Act (codified at 5 U.S.C. 1014(b)); or

(3) In the case of NAPA, the academy certifies that it has complied substantially with the requirements of sec. 15(b)(1), (2), and (5) of the Act (codified at 5 U.S.C. 1014(b)(1), (2), and (5), respectively).

(b) No agency management or control. Agencies must not manage or control the specific procedures adopted by each academy to comply with the requirements of sec. 15 of the Act (codified at 5 U.S.C. 1014) that are applicable to that academy. In addition, however, any committee created and used by an academy in the development of any advice or recommendation to be provided by the academy to an agency must be subject to both actual management and control by that academy and not by the agency.

(c) Funding agreements. Agencies may enter into contracts, grants, and cooperative agreements with NAS or NAPA that are consistent with the requirements of this subpart to obtain advice or recommendations from such academy. These funding agreements require, and agencies may rely upon, a written certification by an authorized representative of the academy provided to the agency upon delivery to the agency of each report containing advice or recommendations required under the agreement that:

(1) The academy has adopted policies and procedures that comply with the applicable requirements of sec. 15 of the Act (codified at 5 U.S.C. 1014); and

(2) To the best of the authorized representative's knowledge and belief, these policies and procedures substantially have been complied with in performing the work required under the agreement.

§ 102-3.190 Severability of provisions.

All provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, it is GSA's intention that the remaining provisions shall continue in effect.