Proposed Rule2023-24181
Federal Management Regulation; Federal Advisory Committee Management
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 2, 2023
Issuing agencies
General Services Administration
Abstract
GSA proposes to amend the Federal Management Regulation (FMR) to update the regulations concerning Federal Advisory Committee Management. This rule proposes revisions that will implement legislative updates; help ensure that regulations concerning Federal Advisory Committee Management are user-friendly; clarify and update key roles; increase transparency, diversity, equity, access, accessibility, and inclusion throughout advisory committee processes and procedures; update the language regarding merger; and implement process improvements with respect to advisory committee charters and agency administrative guidelines.
Full Text
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<title>Federal Register, Volume 88 Issue 211 (Thursday, November 2, 2023)</title>
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[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Proposed Rules]
[Pages 75248-75262]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24181]
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GENERAL SERVICES ADMINISTRATION
41 CFR Part 102-3
[FMR Case 2022-01; Docket No. 2022-0015, Sequence No. 1]
RIN 3090-AK59
Federal Management Regulation; Federal Advisory Committee
Management
AGENCY: Office of Governmentwide Policy (OGP), General Services
Administration (GSA).
ACTION: Proposed rule.
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SUMMARY: GSA proposes to amend the Federal Management Regulation (FMR)
to update the regulations concerning Federal Advisory Committee
Management. This rule proposes revisions that will implement
legislative updates; help ensure that regulations concerning Federal
Advisory Committee Management are user-friendly; clarify and update key
roles; increase transparency, diversity, equity, access, accessibility,
and inclusion throughout advisory committee processes and procedures;
update the language regarding merger; and implement process
improvements with respect to advisory committee charters and agency
administrative guidelines.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addresses shown below on or before
January 2, 2024 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FMR Case 2022-01 to
<a href="http://Regulations.gov">Regulations.gov</a> at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Submit comments via the
Federal eRulemaking portal by searching for ``FMR Case 2022-01''.
Select the link ``Comment Now'' that corresponds with FMR Case 2022-01.
Follow the instructions provided at the ``Comment Now'' screen. Please
include your name, company name (if any), and ``FMR Case 2022-01'' on
your attached document. If your comment cannot be submitted using
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, call or email the points of contact in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite FMR Case 2022-
01, in all correspondence related to this case. Comments received
generally will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please
[[Page 75249]]
check <a href="http://www.regulations.gov">www.regulations.gov</a>, approximately two to three days after
submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms. Lorelei Kowalski, Director,
Committee Management Secretariat, Office of Asset and Transportation
Management, Office of Government-wide Policy, at 202-208-6035 or email
at <a href="/cdn-cgi/l/email-protection#75191a071019101c5b1e1a021419061e1c351206145b121a03"><span class="__cf_email__" data-cfemail="e28e8d90878e878bcc898d95838e91898ba2859183cc858d94">[email protected]</span></a>. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#581f0b190a3d3f0b3d3b183f2b39763f372e"><span class="__cf_email__" data-cfemail="40071301122527132523002733216e272f36">[email protected]</span></a>. Please cite FMR Case 2022-01.
SUPPLEMENTARY INFORMATION:
I. Discussion of Proposed Changes
The Federal Advisory Committee Act (FACA or ``the Act'') as
amended, 5 U.S.C. Chapter 10, (codified at 5 U.S.C. 1001 et seq.),
governs the establishment, operation, and termination of advisory
committees within the Executive Branch of the Federal Government.
Advisory committees are a useful tool for ``furnishing expert advice,
ideas, and diverse opinions to the Federal Government,'' Sec. 2(a)
(codified at 5 U.S.C. 1002(a)), and the Act helps to ensure that
Congress and the public are kept informed regarding the purpose,
membership, activities, and cost of advisory committees, Sec. 2(b)(5)
(codified at 5 U.S.C. 1002(b)(5)).
GSA is responsible for administering the Act, including
``prescribing administrative guidelines and management controls
applicable to advisory committees, and, to the maximum extent feasible,
providing advice, assistance, and guidance to advisory committees to
improve their performance.'' Sec. 7(c) (codified at 5 U.S.C. 1006(c));
see also Executive Order 12024 (delegating to the Administrator of
General Services almost all of ``the functions vested in the President
by the Federal Advisory Committee Act'').
The Administrator of General Services has delegated all of GSA's
FACA-related responsibilities to GSA's Committee Management Secretariat
(``the Secretariat''). See 41 CFR 102-3.100. Over the past forty years,
the Secretariat has been implementing the Act through regulations
concerning Federal Advisory Committee Management currently published at
41 CFR part 102-3. See Public Citizen v. DOJ, 491 U.S. 440, 465 n.12
(1989).
As explained throughout this section, GSA is now proposing to amend
Part 102-3 of the Federal Management Regulation to implement
legislative updates; help ensure that regulations concerning Federal
Advisory Committee Management are user-friendly; clarify and update key
FACA roles; increase transparency, diversity, equity, access,
accessibility, and inclusion throughout advisory committee processes
and procedures; update the language regarding merger; and implement
process improvements with respect to advisory committee charters and
agency administrative guidelines.
A. Implementing Legislative Updates
GSA proposes to update 41 CFR 102-3.40 to reflect a legislative
change that was made by the Intelligence Authorization Act for Fiscal
Year 2010 (Pub. L. 111-259), which states that the Director of National
Intelligence may determine that, for reasons related to national
security, FACA is not applicable to advisory committees of the Office
of the Director of National Intelligence (ODNI).
B. Removing Unnecessary Language and Information
To make regulations concerning Federal Advisory Committee
Management more user-friendly--and ultimately enhance the performance
of advisory committees--GSA proposes to remove certain language and
information from Part 102-3. See also Executive Order 14058 on
Transforming Federal Customer Experience and Service Delivery to
Rebuild Trust in Government (directing agency heads to identify
opportunities, as appropriate and consistent with applicable law, to
modify their regulations to enhance customer experience and service
delivery outcomes).
First, GSA proposes to remove Appendices throughout Part 102-3
because that information--guidance in the form of answers to frequently
asked questions--is better suited for GSA's Federal Advisory Committee
Management website, where GSA can more easily ``provide advice,
assistance, and guidance to advisory committees to improve their
performance.'' Sec. 7(c) (codified at 5 U.S.C. 1006(c)).
Second, GSA proposes removing unnecessary language throughout Part
102-3 because it either does not add meaningful clarification to the
implementation of the Act, is not easily understandable, or is
duplicative of language included elsewhere.
For example, 41 CFR 102-3.30(b) on termination currently provides
requirements for terminating an advisory committee, which are
essentially repeated in 41 CFR 102-3.55 on the duration of committees.
GSA is also aware that the difference between ``termination'' and
``duration'' has been a source of confusion during the advisory
committee chartering process. Accordingly, GSA proposes revising both
of those sections in order to remove duplicative language and to help
ensure that the Act's use of those terms is consistently applied
throughout GSA's regulations.
Similarly, GSA proposes to remove certain language from 41 CFR 102-
3.130 that is already captured in other regulations or policies
governing the appointment, compensation, or reimbursement of advisory
committee members, staff, experts, and consultants. For example, the
Office of Personnel Management (OPM) establishes policy for
compensating Federal employees and hiring experts and consultants, and
GSA need not repeat those policies in 41 CFR 102-3.130.
Overall, these proposed amendments will improve the clarity of
regulations concerning Federal Advisory Committee Management, which
will in turn enhance the performance of advisory committees.
C. Updating Key Roles
Consistent with the agency's responsibility to ``prescribe
administrative guidelines and management controls applicable to
advisory committees,'' Sec. 7(c) (codified at 5 U.S.C. 1006(c)), GSA
proposes clarifying the definitions and responsibilities of certain key
roles.
First, GSA proposes adding two key roles to the definitions section
at 41 CFR 102-3.25--the ``Chairperson'' and the ``Group Federal
Officer.''
<bullet> The Act refers to a chair of each advisory committee, see
Sec. 10 (codified at 5 U.S.C. 1009), but does not define the contours
of that role. Accordingly, GSA proposes to define ``chairperson'' as
``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.''
<bullet> GSA proposes defining ``Group Federal Officer'' as ``an
individual who assists the [Committee Management Officer] in overseeing
and managing a portion of the agency's Federal advisory committee
management program.'' GSA coined this term years ago to capture a key
role that some agencies use to support their FACA programs, and GSA
believes it is helpful to formally recognize what continues to be a key
role for some agencies.
Second, GSA proposes clarifying the responsibilities of certain
roles:
<bullet> GSA (41 CFR 102-3.100): Proposed revisions provide a more
comprehensive description of actual Secretariat activities, update
terminology, and
[[Page 75250]]
recognize a government-wide interagency group that has been in
existence since GSA published the Final Rule in 2001, see Federal
Advisory Committee Management, 66 FR 37727 (July 19, 2001) (hereinafter
``2001 Final Rule'').
<bullet> Agency Heads (41 CFR 102-3.105): Proposed revisions more
clearly identify the role of the agency head with respect to advisory
committee charters and members.
<bullet> Committee Management Officer (41 CFR 102-3.115): Proposed
revisions help to clarify the full scope and importance of the
Committee Management Officer, including acknowledgment of common
actions implemented by Committee Management Officers across the
executive branch in managing their agency's Federal advisory committee
program.
<bullet> Designated Federal Officer (DFO) (41 CFR 102-3.120):
Proposed revisions better reflect the central function of the DFO under
the Act--including ensuring compliance with the Act, serving as a point
of contact for members of the public, and maintaining appropriate
record keeping and reporting of committee activities.
Overall, these proposed amendments will improve the clarity of
FACA-related responsibilities, which will in turn enhance the
performance of advisory committees.
D. Increasing Transparency, Diversity, Equity, Access, Accessibility,
and Inclusion
The Act states that advisory committees must be ``fairly balanced
in terms of the points of view represented and the functions to be
performed.'' Sec. 5(b)(2), (c) (codified at 5 U.S.C. 1004(b)(2), (c)).
Further, the Act's ``legislative history makes clear that the fairly
balanced requirement was designed to ensure that persons or groups
directly affected by the work of a particular advisory committee would
have some representation on the committee.'' Nat'l Anti-Hunger Coal. v.
Exec. Comm. of President's Priv. Sector Surv. on Cost Control, 711 F.2d
1071, 1074 n. 2 (D.C. Cir. 1983).
While the Act itself does not provide instructions on how agencies
are to attain fairly balanced committee membership, the legislative
history indicates that the Act, ``[i]n the interest of economy and
organization,'' places ``substantial power in [the implementing agency]
to establish guidelines for advisory committees and to direct the
agencies' use of them.'' 118 Cong. Rec. 16302 (1972) (statement of Rep.
Moss) (referring to responsibilities that initially belonged to the
Office of Management and Budget, which were later transferred to GSA in
Executive Order 12024); see also 118 Cong. Rec. 16305 (1972) (statement
of Rep. Fascell) (referring to responsibilities that were eventually
transferred to GSA and stating that the Act ``is explicit and without
any ambiguity as to the kind of authority [that the implementing
agency] would have in making the guidelines''); 118 Cong. Rec. 30280
(1972) (statement of Sen. Roth) (recognizing that the Act would
``offer[ ] improved tools for the management of committees by [the
implementing agency]'').
Over the past forty years, GSA has issued regulatory requirements
and subregulatory guidance on how to ensure fairly balanced committee
membership. Since 1983, GSA's regulations have required agencies to
consider a ``cross-section'' of ``interested'' persons and groups with
demonstrated professional or personal qualifications or experience to
contribute to the ``functions'' and tasks to be performed. See Federal
Advisory Committee Management, 48 FR 19324 (Apr. 28, 1983). In response
to comments, that language evolved over time, before settling in 1989
on the formulation that exists in the current regulatory text: that
agencies must consider ``a cross-section of those directly affected,
interested, and qualified, as appropriate to the nature and functions
of the committee,'' which should ``include persons with demonstrated
professional or personal qualifications and experience relevant to the
functions and tasks to be performed'' by the advisory committee.
Federal Advisory Committee Management, 54 FR 41215 (Oct. 5, 1989).
Further, in 2001, GSA responded to a commenter seeking further guidance
on how to achieve fairly balanced committee membership by including an
Appendix that encouraged agencies to consider several factors,
including (1) the advisory committee's mission; (2) the geographic,
ethnic, social, economic, or scientific impact of the advisory
committee's recommendations; (3) the types of specific perspectives
required, such as those of consumers, technical experts, the public at-
large, academia, business, or other sectors; (4) the need to obtain
divergent points of view on the issues before the advisory committee;
and (5) the relevance of State, local, or tribal governments to the
development of the advisory committee's recommendations. See 2001 Final
Rule, 66 FR 37727, 37740.
Consistent with the agency's responsibility to ``prescribe
administrative guidelines and management controls applicable to
advisory committees, and . . . [to] provide advice, assistance, and
guidance to advisory committees to improve their performance,'' Sec.
7(c) (codified at 5 U.S.C. 1006(c))--and in an effort to help
committees to actually attain fairly balanced membership--GSA has long
required agencies to submit ``a description of the agency's plan to
attain balanced membership,'' 48 FR 19324 (Apr. 28, 1983). More
recently, in an effort to collect more substantive information
regarding an agency's plan to attain a fairly balanced membership, GSA
released guidance to the FACA community in 2011 on ``Preparing
Membership Balance Plans'' (MBPs). See <a href="https://www.gsa.gov/cdnstatic/MembershipBalancePlanGuidance-November_2011.pdf">https://www.gsa.gov/cdnstatic/MembershipBalancePlanGuidance-November_2011.pdf</a>.
Now, GSA proposes updating the regulatory language pertaining to
the MBP (specifically at 41 CFR 102-3.60) to reflect GSA's longstanding
guidance. Furthermore, in response to feedback from agencies and
consistent with recent Presidential Actions supporting diversity,
equity, inclusion, and accessibility, GSA proposes clarifying the
procedures for submitting a MBP that helps ensure fairly balanced
committee membership. Under that proposal, an agency shall provide the
Secretariat with a MBP that addresses how the agency will ensure
representation of all points of view required for fairly balanced
committee membership--including groups and entities potentially
affected, those with relevant lived experience, and persons with
demonstrated professional or personal qualifications--as well as how
the agency intends to conduct broad outreach to ensure that the call
for nominees reaches the targets and stakeholder groups likely to
possess those points of view.
By requiring agencies to seek out individuals for potential
membership that have relevant professional and/or lived experience with
topics likely to come before the advisory committee, agencies can help
to ensure that those insights and experiences inform and enhance the
committee's work. See Syreeta Skelton-Wilson et al., ``Methods and
Emerging Strategies to Engage People with Lived Experience,'' Office of
the Assistant Secretary for Planning and Evaluation, U.S. Department of
Health and Human Services (Dec. 21, 2021), <a href="https://aspe.hhs.gov/sites/default/files/documents/47f62cae96710d1fa13b0f590f2d1b03/lived-experience-brief.pdf">https://aspe.hhs.gov/sites/default/files/documents/47f62cae96710d1fa13b0f590f2d1b03/lived-experience-brief.pdf</a>. For example,
[[Page 75251]]
by engaging individuals with relevant lived experience, ``[s]ome
initiatives, especially those involving legislatively mandated advisory
groups or research commissions, [have] reported benefits such as an
improved ability to deliver responsive services, programming, training,
and technical assistance.'' Id. at 6. Overall, the proposed amendments
will help to continue improving the quality of committee conclusions
and recommendations--ultimately enhancing the performance of advisory
committees.
Further, GSA proposes updating the rules and principles that apply
to the management of advisory committees (specifically at 41 CFR 102-
3.95 and 41 CFR 102-3.140), including (a) clarifying that adequate
committee support includes access to adequate virtual meeting
capabilities and access to communication modes that are more inclusive;
(b) encouraging agencies to be as transparent, equitable, inclusive,
and timely as possible when providing public access to committee
activities and materials; and (c) fostering active engagement,
participation, and expression from all committee members and any member
dissenting opinions, as applicable. Overall, the proposed amendments
will help improve public access to advisory committees and membership
engagement, which will in turn enhance the performance of advisory
committees.
Finally, GSA proposes improving public access to advisory committee
meetings through amendments to 41 CFR 102-3.65, 102-3.150, and 102-
3.165. The Act specifies that meeting notices shall be published in the
Federal Register and states that GSA ``shall prescribe regulations to
provide for other types of public notice to insure that all interested
persons are notified of each meeting in advance.'' Sec. 10(a)(2)
(codified at 5 U.S.C. 1009(a)(2)). These amendments accordingly seek to
expand public notification beyond publication in the Federal Register
by encouraging use of agency websites and other online forums. These
amendments will also improve public access to advisory committees and
thus will enhance the performance of those advisory committees.
E. Updating the Language Regarding Merger
The Act instructs the Administrator of General Services to conduct
an annual ``review of the activities and responsibilities of each
advisory committee,'' in part ``to determine . . . whether the
committee should be merged with other advisory committees.'' Sec. 7(b)
(codified at 5 U.S.C. 1006(b)). Historically, merger of advisory
committees has been infrequent. More recently, however, merger has
become a more routine occurrence during the consultation process.
Accordingly, to appropriately account for that trend, GSA proposes
adding the term ``merge'' throughout Part 102-3--namely, to sections
that apply to actions taken by an agency in the establishment,
reestablishment, renewal, operation, and termination of Federal
advisory committees.
F. Implementing Process Improvements--Charters
The Act identifies certain information that must be included in the
charter for each committee. See Sec. 9 (codified at 5 U.S.C. 1008).
Over a decade ago--consistent with the Administrator's responsibility
to ``provide advice, assistance, and guidance to advisory committees to
improve their performance,'' Sec. 7(c) (codified at 5 U.S.C. 1006(c))--
GSA issued guidance on Preparing Federal Advisory Committee Charters,
available at: <a href="https://www.gsa.gov/cdnstatic/Preparing_FAC_Charters_%28F%29-110211.pdf">https://www.gsa.gov/cdnstatic/Preparing_FAC_Charters_%28F%29-110211.pdf</a>. In addition to setting forth
the requirements included in Section 9 of the Act (codified at 5 U.S.C.
1008), the guidance also includes other information that enhances the
transparency of advisory committee operation to the public, such as
information on the authority, formation of subcommittees, and
recordkeeping. GSA now proposes updating the charter section at 41 CFR
102-3.75 to reflect this current guidance--ultimately with the goal of
increasing transparency with respect to the operation of each advisory
committee and enhancing the performance of advisory committees.
Further, GSA proposes revising the charter amendment process. The
current regulatory process for amending charters (per the 2001 Final
Rule) stipulates two separate processes for amendments--one that
applies to minor changes, and the other that applies to major changes.
Those processes, however, are identical except for a requirement to
consult with the Secretariat as to any major changes. Although GSA's
intent was to forgo the need for consultation with the Secretariat if
the changes were truly minor, there has been confusion in the FACA
community regarding what specifically constitutes a minor amendment.
Further, this confusion has resulted in a number of agencies choosing
to consult with the Secretariat on all charter amendments. Accordingly,
to eliminate confusion, GSA proposes consolidating the charter
amendment sections into a singular process, to appear at 41 CFR 102-
3.80. In addition, consistent with GSA's priority of increasing
transparency with respect to advisory committee activities (as
explained above), GSA proposes requiring that agencies post notice of
the amendment to the relevant advisory committee website (if one
exists).
G. Implementing Process Improvements--Agency Administrative Guidelines
The Act requires each agency head to ``establish uniform
administrative guidelines and management controls for advisory
committees established by that agency.'' Sec. 8(a) (codified at 5
U.S.C. 1007(a)). In recent years, the FACA community has inquired about
appropriate content for those guidelines. In response, GSA now proposes
revising 41 CFR 102-3.125 to clarify some of the operational components
that agency administrative guidelines should reflect--such as
specifying the content of committee bylaws and providing instructions
on how to identify, calculate, and document advisory committee costs.
H. Severability
GSA proposes adding a new subpart on severability at 41 CFR 102-
3.190, which states that all provisions included in Part 102-3 are
separate and severable from one another.
Regulations concerning Federal Advisory Committee Management do a
number of things--from outlining public notification requirements to
explaining the role of an agency head. Overall, each constituent
element in Part 102-3 operates independently to help ensure that
standards and uniform procedures govern the establishment, operation,
administration, and duration of advisory committees. See Sec. 2(b)(4)
(codified at 5 U.S.C. 1002(b)(4)).
Accordingly, if any particular provision in Part 102-3 were to be
stayed or invalidated by a reviewing court, the remaining provisions
would continue to function effectively for advisory committees. For
example, if 41 CFR 102-3.75 on charter requirements were invalidated,
that would not make 41 CFR 102-3.155, which lists the requirements for
facilitating an advisory committee meeting that is closed to the
public, unworkable. Likewise, if 41 CFR 102-3.60(b)(3) on attaining
fairly balanced membership were invalidated, that would not prevent an
agency from relying on the definitions section at 41 CFR 102-3.25 to
understand what ``committee staff'' means.
Further, any cross-references that appear throughout Part 102-3 are
[[Page 75252]]
duplicative and are intended only to make the regulations more user-
friendly. Invalidation of a particular provision that is cross-
referenced elsewhere will not materially alter the provision that
contains the cross-reference.
In summary, removal of any particular provision from Part 102-3
would not render the entire regulatory scheme unworkable. Thus, GSA
considers each of the provisions in Part 102-3 to be separate and
severable from one another. In the event of a stay or invalidation of
any particular provision, it is GSA's intention that the remaining
provisions shall continue in effect.
II. Expected Impact of This Proposed Rule
This rule will have a cost impact on the Federal Government;
however, it will not impact the private sector or state, local, or
Tribal Governments, as it relates solely to agency administration and
management. GSA has already incorporated a number of the changes into
the consultation process that occurs between the agencies and GSA, the
government-wide training for agencies and personnel involved with
committee work, and routine interactions regarding agency committee
management programs.
III. Expected Costs and Benefits
GSA conducted an economic analysis of the proposed changes and
determined that during the first and subsequent years after publication
of the rule, there are compliance costs associated with the new rule.
GSA estimates the overall total additional undiscounted cost of this
proposed rule to be $7,007,064 over a ten-year period. See Section VI.A
(providing a full breakdown of compliance costs). There are numerous
benefits described throughout Section I--including implementing
legislative updates; helping to ensure that regulations concerning
Federal Advisory Committee Management are user-friendly; clarifying and
updating key FACA roles; increasing transparency, diversity, equity,
access, accessibility, and inclusion throughout advisory committee
processes and procedures; updating language regarding merger; and
implementing process improvements with respect to advisory committee
charters and agency administrative guidelines.
IV. Executive Orders 12866, 13563, and 14094
Executive Order (E.O.) 12866, 13463, and 14094 directs agencies to
assess all costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
E.O. 14094 supplements and reaffirms the principles, structures, and
definitions governing contemporary regulatory review established in
E.O. 12866 and E.O. 13563. The Office of Management and Budget's Office
of Information and Regulatory Affairs (OIRA) has designated this rule
as a significant regulatory action and, therefore, was subject to
review under Section 6(b) of E.O. 12866.
V. Regulatory Flexibility Act
GSA certifies that this rule will not have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This proposed
rule applies only to Federal agencies and employees.
A. Government Costs
GSA has determined, based on an economic model, that there are
compliance costs associated with the Proposed Rule. The following
section is a list of activities related to regulatory familiarization
and compliance that GSA anticipates will occur. Compliance activities
would take place in the FACA community and would consist of amending
charters, revising guidelines, training, and outreach for diversity,
equity, inclusion, access, and accessibility. These assumptions were
generated based on internal GSA expertise. GSA estimates this cost by
multiplying the time required to conduct the compliance activity by the
estimated compensation. GSA calculates the estimated hourly
compensation using the U.S. Office of Personnel Management's 2023
General Schedule (GS) Rest of United States Locality Pay Table and the
full fringe benefit cost factor. <SUP>1 2 3</SUP>
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\1\ U.S. Office of Personnel Management General Schedule.
\2\ OMB Memo M-08-13, dated March 11, 2008.
\3\ Fact Sheet: Computing Hourly Rates of Pay Using the 2087-
Hour Divisor.
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1. Amending Charters
GSA estimates it will take 25 government employees on average with
a GS-14 step five average hourly rate of $86.12/hour, three hours each
in years 1 to 10 to amend charters with updated information from this
rule. Therefore, GSA estimates the total estimated cost for this part
of the rule per year to be $6,459 ( = [25 employees] x [$86.12/hour] x
[3 hours]).
2. Revising Guidelines
GSA estimates it will take 57 government employees, Committee
Management Officers with a GS-15 step five average hourly rate of
$101.30/hour, four hours each in year 1 to update guidelines with
updated information from this rule. Therefore, GSA estimates the total
estimated cost for this part of the rule to be $23,096 ( = [57
employees] x [$101.30/hour] x [4 hours]).
GSA estimates it will take 987 government employees, Designated
Federal Officers with a GS-12 step five average hourly rate of $61.29/
hour, 0.5 hours each in year 1 to update guidelines with updated
information from this rule. Therefore, GSA estimates the total
estimated cost for this part of the rule to be $30,245 ( = [987
employees] x [$61.29/hour] x [0.5 hours]).
3. Training
GSA estimates it will take 57 government employees, Committee
Management Officers with a GS-15 step five average hourly rate of
$101.30/hour, 0.5 hours each in year 1 to deliver training related to
changes with this rule. Therefore, GSA estimates the total estimated
cost for this part of the rule to be $2,887 ( = [57 employees] x
[$101.30/hour] x [0.5 hours]).
GSA estimates it will take 1,552 government Full-Time Equivalents
(FTEs) with a GS-12 step five average hourly rate of $61.29/hour 0.5
hours each in year 1 to receive training related to changes with this
rule. Therefore, GSA estimates the total estimated cost for this part
of the rule to be $47,558 ( = [1,552 FTEs] x [$61.29/hour] x [0.5
hours]).
4. Outreach for Diversity, Equity, Inclusion, Access, and Accessibility
GSA estimates it will take government employees with a GS-13 step
five average hourly rate of $72.88/hour four hours per membership slot,
in years 1 to 10 to conduct additional outreach in identifying 1,050
new members that may be able to participate in new advisory
committees--ultimately to help ensure that committee membership is
fairly balanced. Therefore, GSA estimates the total estimated cost for
this part of the rule per year to be $306,081 ( = [1,050 membership
slots] x [$72.88/hour per government employee] x [4 hours]).
GSA estimates it will take government employees with a GS-13 step
five average hourly rate of $72.88/hour) 0.5 hours per membership slot
in year 1, to
[[Page 75253]]
conduct additional outreach in identifying 31,831 new members that may
be able to participate in U.S. Department of Health and Human Services
grant reviews--ultimately to help ensure that committee membership is
fairly balanced. Therefore, GSA estimates the total estimated cost for
this part of the rule to be $1,163,509 ( = [31,831 membership slots] x
[$72.88/hour per government employee] x [0.5 hours]).
GSA estimates it will take government employees with a GS-13 step
five average hourly rate of $72.88/hour) one hour per membership slot
in years 1 and 2 to conduct additional outreach in identifying 17,937
new members that may be able to participate in non-grant review Federal
advisory committees--ultimately to help ensure that committee
membership is fairly balanced. Therefore, GSA estimates the total
estimated cost for this part of the rule per year to be $1,307,185 ( =
[17,937 membership slots] x [$72.88/hour] x [1 hour]).
5. Total Government Costs
GSA estimates the total government costs to be $7,007,064 for years
1 to 10. A breakdown of the total estimated government costs by year is
provided in the table below.
------------------------------------------------------------------------
Year Costs
------------------------------------------------------------------------
1.................................................... $2,887,020
2.................................................... 1,619,725
3.................................................... 312,540
4.................................................... 312,540
5.................................................... 312,540
6.................................................... 312,540
7.................................................... 312,540
8.................................................... 312,540
9.................................................... 312,540
10................................................... 312,540
------------------
Total............................................ 7,007,064
------------------------------------------------------------------------
B. Overall Total Additional Costs
The overall total additional undiscounted cost of this final rule
is estimated to be $7,007,064 over a ten-year period. A summary of the
estimated costs calculated for a ten-year period at a 3- and 7-percent
discount rate is provided in the table below. GSA did not identify any
cost savings based on the impact of the rule.
------------------------------------------------------------------------
Summay Total costs
------------------------------------------------------------------------
Present Value (3 percent)............................... $6,397,671
Annualized Costs (3 percent)............................ 750,002
Present Value (7 percent)............................... 5,742,952
Annualized Costs (7 percent)............................ 817,667
------------------------------------------------------------------------
C. Analysis of Alternatives
The preferred alternative is the process laid out in the analysis
above. However, GSA has analyzed one alternative to the preferred
process.
As an alternative, GSA could decide not to update regulations
concerning Federal Advisory Committee Management; however, that
alternative would leave outdated content in the regulations, which
would continue to cause confusion, impede accessibility and
transparency by excluding the expansion of virtual formats, and waste
government time and resources by forcing agencies to seek clarification
on sections that contain unclear and unnecessary language. In light of
those concerns, GSA rejects the alternative.
VI. Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 41 CFR Part 102-3
Advisory committees; Governmental property management.
Krystal J. Brumfield,
Associate Administrator, Office of Government-wide Policy.
Therefore, GSA proposes to amend 41 CFR part 102-3 as set forth
below:
PART 102-3--FEDERAL ADVISORY COMMITTEE MANAGEMENT
0
1. The authority citation for part 102-3 continues to read as follows:
Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)); sec.
7, 5 U.S.C. Chapter 10; and E.O. 12024, 3 CFR, 1977 Comp., p. 158.
0
2. Amend Sec. 102-3.5 by revising the first sentence to read as
follows:
Sec. 102-3.5 What does this subpart cover and how does it apply?
This subpart 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. * * *
0
3. Revise Sec. 102-3.10 to read as follows:
Sec. 102-3.10 What is the purpose 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 and provides general procedures for the executive branch to
follow for the operation of these advisory committees. In addition, the
Act is designed to assure that the Congress and the public are kept
informed with respect to the number, purpose, membership, activities,
recommendations, outcomes, and cost of advisory committees through
reporting requirements. These requirements form the basis for
implementing the Act at both the agency and government-wide levels.
Sec. Sec. 102-3.15 and 102-3.20 [Removed and Reserved]
0
4. Remove and reserve Sec. Sec. 102-3.15 and 102-3.20.
0
5. Amend Sec. 102-3.25 by--
0
a. Revising the definitions for ``Act'', ``Advisory committee'' and
``Agency'';
0
b. Adding, in alphabetical order, the definitions for ``Agency Head''
and ``Chairperson'';
0
c. Revising the definitions for ``Committee Management Officer'',
``Committee Management Secretariat'', ``Committee Meeting'',
``Committee member'' and ``Committee staff'', and ``Designated Federal
Officer'';
0
d. Adding, in alphabetical order, the definition for ``Group Federal
Officer (GFO)''; and
0
e. Revising the definitions for ``Independent Presidential advisory
committee'', ``Non-discretionary advisory committee'',
``Subcommittee'', and ``Utilized''.
The additions and revisions read as follows:
Sec. 102-3.25 What definitions apply to this part?
* * * * *
Act means the Federal Advisory Committee Act (FACA), as amended, 5
U.S.C. Chapter 10.
* * * * *
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
[[Page 75254]]
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 section 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 section 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. Committee staff serve in coordination with the
Designated Federal Officer.
Designated Federal Officer (DFO) means an individual designated by
the agency head, for each advisory committee for which the agency head
is responsible, to implement the provisions of sections 10(e) and (f)
of the Act (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.
* * * * *
Group Federal Officer (GFO) means an individual who assists the CMO
in overseeing and managing a portion of the agency's Federal advisory
committee management program.
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. A non-
discretionary advisory committee required by statute generally is
identified specifically in a statute by name, purpose, or function(s),
and its establishment or termination is beyond the legal discretion of
an agency head.
* * * * *
Subcommittee means the 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. However, if a subcommittee makes advice or recommendations
directly to a Federal officer or agency, it is no longer functioning as
a subcommittee, and must: file a charter following the requirements of
subpart Sec. 102-3.70, that includes the information required in Sec.
102-3.75; comply with all of the requirements of this part; and will be
counted as a chartered advisory committee at an agency.
Utilized by means a committee that is one 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.
0
6. Amend Sec. 102-3.30 by revising the introductory text and
paragraphs (a) through (d) to read as follows:
Sec. 102-3.30 What policies govern the use of advisory committees?
These are the policies to be followed by Federal departments and
agencies in establishing and operating advisory committees consistent
with the Act:
(a) Determination of need in the public interest. A discretionary
advisory committee may be established only when it is essential to the
conduct of agency business and when the information to be obtained is
not already available through another advisory committee or source
within the Federal Government.
(b) Termination. Advisory committees terminate pursuant to Sec.
102-3.55.
(c) Fairly balanced membership. An advisory committee must be
fairly balanced in its membership in terms of the points of view
represented and the functions to be performed (as explained further in
Sec. 102-3.60).
(d) Open meetings. Advisory committee meetings must be open to the
public except when a meeting is closed or partially closed in
accordance with the exemptions set forth in the Government in the
Sunshine Act, 5 U.S.C. 552b(c).
(1) Compliance with section 504 of the Rehabilitation Act of 1973,
as amended. With the support of the sponsoring Federal department or
agency, the advisory committee must provide reasonable modifications
for individuals with disabilities when the modifications are necessary
to avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the program or activity. The advisory
committee must also take appropriate steps to ensure that
communications with individuals with disabilities are as effective as
communications with others, including by furnishing appropriate
auxiliary aids and services where necessary to afford qualified
individuals with disabilities an equal opportunity to participate in,
and enjoy the benefits of, the advisory committee. Examples of
auxiliary aids and services include qualified interpreters and
information in alternate formats, such as braille or large print. In
order to be effective, auxiliary aids and services must be provided in
accessible formats, in a timely manner, and in such a way as to protect
the privacy and independence of the individual with a disability. An
advisory committee may not charge for the provision of auxiliary aids
and services. An advisory committee is not required to provide an aid
or service if it can demonstrate that providing that aid or service
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. See 29
U.S.C. 794. Advisory committees should consider how to ensure that
advisory committee members and members of the public are made aware of
available auxiliary aides and services, as well as the option to
request reasonable modifications in advance of meetings, and should
identify a point of contact to receive and respond to requests for
reasonable modifications.
(2) Ensuring language access and provision of language assistance
services. With the support of the sponsoring Federal department or
agency, the advisory committee must ensure equal participation by
individuals with limited English proficiency. This may include
conducting outreach and providing notifications in the language(s) used
by the affected communities and potential or actual advisory committee
members, as well as providing language assistance services, including
electronic and printed written translated documents and oral
interpretation services free of
[[Page 75255]]
charge and in a timely manner, when such services are necessary to
provide meaningful access to a limited English proficient individual,
consistent with Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d et seq., and E.O. 13166: Improving Access to Services for Persons
With Limited English Proficiency (August 11, 2000), 3 CFR, 2000 Comp.,
p. 289.
* * * * *
0
7. Revise Sec. 102-3.35 to read as follows:
Sec. 102-3.35 What policies govern the use of subcommittees?
(a) In general, the requirements of the Act and the policies of
this Federal Advisory Committee Management part do not apply to
subcommittees of advisory committees that report to a parent advisory
committee and not directly to a Federal officer or agency. However,
this section does not preclude an agency from applying any provision of
the Act and this part to any subcommittee of an advisory committee.
(b) If a subcommittee reports directly to a Federal officer or
agency, it is no longer functioning as a subcommittee. In that case,
the subcommittee must be chartered as a new advisory committee, must
comply with all of the requirements of this part, and will be counted
as a chartered advisory committee at an agency.
(c) Unless required by statute or Presidential directive, the
creation and operation of subcommittees must be approved by the agency
establishing the parent advisory committee in coordination with the
DFO.
0
8. Revise Sec. 102-3.40 to read as follows:
Sec. 102-3.40 What types of committees or groups are 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 Federal Advisory Committee Management 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. The purpose of such a committee must be solely to
exchange views, information, or advice relating to the management or
implementation of Federal programs established pursuant to statute,
that explicitly or inherently share intergovernmental responsibilities
or administration (see guidelines issued by the Office of Management
and Budget (OMB) on section 204(b) of the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1534(b), and OMB Memorandum M-95-20, dated September
21, 1995, available on the Committee Management Secretariat website);
(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 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; and
(k) Any committee established, created, managed, and staffed by the
government of a foreign country; or any committee created, managed, and
staffed by an executive branch agency to advise or make recommendations
to a government official, government group, or government agency of a
foreign country.
Appendix A to Subpart A of Part 102-3 [Removed]
0
9. Remove appendix A to subpart A of part 102-3.
0
10. Revise the heading of subpart B to read as follows:
Subpart B--How Are Advisory Committees Established, Renewed,
Reestablished, Merged, and Terminated?
0
11. Revise Sec. 102-3.45 to read as follows:
Sec. 102-3.45 What does this subpart cover and how does it apply?
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. These procedures include, but
are not limited to, consulting with the Secretariat, preparing and
filing an advisory committee charter, publishing notice in the Federal
Register, and amending an advisory committee charter.
0
12. Amend Sec. 102-3.50 by revising paragraphs (a) through (d) to read
as follows:
Sec. 102-3.50 What are the authorities for establishing advisory
committees?
* * * * *
(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 E.O. of the President or other
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).
0
13. Amend Sec. 102-3.55 by revising paragraphs (a)(1) and (4) to read
as follows:
Sec. 102-3.55 What rules apply to the duration of an advisory
committee?
(a) * * *
(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;
* * * * *
(4) The President or agency head renews the advisory committee not
later than two years after its date of establishment, renewal, or
[[Page 75256]]
reestablishment in accordance with Sec. 102-3.60. If the President or
an agency needs an advisory committee that was terminated or an
advisory committee terminated because it was not renewed in a timely
manner, it can be reestablished in accordance with Sec. 102-3.60.
* * * * *
0
14. Revise Sec. 102-3.60 to read as follows:
Sec. 102-3.60 What procedures are required to establish, renew,
reestablish, or merge a discretionary advisory committee?
(a) Consultation with the Secretariat. The agency head must first
consult with the Secretariat. As part of this consultation, agency
heads should provide the Secretariat with a full understanding of the
background and purpose behind the advisory committee, and the
Secretariat should share its knowledge and experience with the agency.
(b) Include required information in the consultation with the
Secretariat. Consultations covering the establishment, renewal,
reestablishment, or merger 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 or why it is necessary to merge one or more advisory
committees;
(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 or
other methods of public engagement; and
(3) Fairly balanced membership. A description of the agency's plan
to attain fairly balanced membership, as appropriate based on the
nature and functions of the advisory committee, as documented through
the agency's Membership Balance Plan (MBP).
(i) 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 include persons with demonstrated professional
or personal qualifications and experience relevant to the functions and
tasks to be performed by the committee. The MBP shall describe the
agency's conclusions regarding the points of view that would promote
fairly balanced committee membership.
(ii) Outreach. Having identified the points of view that would
promote a fairly balanced advisory committee membership, agencies
should conduct broad outreach to ensure that the call for nominees
reaches the targets and stakeholder groups likely to possess those
points of view. Agencies should further ensure outreach to racially,
ethnically, culturally, economically, and otherwise diverse groups, as
appropriate to the nature and functions of the advisory committee. The
MBP shall describe the agency's intended outreach efforts to accomplish
these goals.
(iii) Selection. In the selection of members for the advisory
committee and as membership vacancies occur, agencies shall ensure
representation of persons with the points of view identified pursuant
to this section that would promote a fairly balanced advisory committee
membership. The MBP shall describe the agency's intended selection
criteria and approach.
0
15. Revise Sec. 102-3.65 to read as follows:
Sec. 102-3.65 What are the 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, or
reestablished, or a new committee is established as the result of a
merger of existing committees. The notices should be written in plain
language and should not assume that the public has background knowledge
or familiarity with an agency or the advisory committee. The agency is
also strongly encouraged to make the notice available electronically in
the languages represented by the affected communities on the agency's
advisory committee website, if one exists, as well as use additional
notification methods (such as an agency's social media accounts) to
reach advisory committee stakeholders (such as professional trade or
membership groups, civic groups, community-based organizations, ethnic
media, representatives of affected stakeholder groups, and colleges and
universities). Electronic notices must meet the requirements of Title
VI and E.O. 13166, as well as obligations under section 508 of the
Rehabilitation Act.
(a) Procedure. Upon receiving notice from the Secretariat that its
review is complete in accordance with Sec. 102-3.60(a), the agency
must publish a notice in the Federal Register announcing that the
advisory committee is being established (including due to a merger),
renewed, or reestablished. When establishing a new advisory committee,
the notice also must describe the nature and purpose of the advisory
committee and affirm that the advisory committee is necessary and in
the public interest.
(b) Time required for notices. Notices of advisory committee
establishment (including due to a merger) and reestablishment 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 in exceptional circumstances (such as a
national emergency or natural disaster). 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.
0
16. Amend Sec. 102-3.70 by revising the introductory text, the
introductory text of paragraph (a), and paragraphs (a)(3), (b), and (c)
to read as follows:
Sec. 102-3.70 What are the charter filing requirements?
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:
* * * * *
(3) The Library of Congress; and
* * * * *
(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, or reestablishment 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 be chartered as a new advisory
committee as they are no longer functioning as a subcommittee.
0
17. Revise Sec. 102-3.75 to read as follows:
Sec. 102-3.75 What information must be included in the charter of an
advisory committee?
Purpose and contents of an advisory committee charter. An advisory
committee charter is intended to
[[Page 75257]]
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 section 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 (full time equivalents or FTE);
(h) The role of the DFO;
(i) The estimated number and frequency of the advisory committee's
meetings;
(j) The period of time necessary to carry out the advisory
committee's purpose(s);
(k) The planned termination date, if less than two years from the
date of establishment of the advisory committee;
(l) The estimated number of advisory committee members, the
expertise or experience required, and the anticipated advisory
committee member designations;
(m) Whether subcommittees may be created, by whom, and how they
operate under the chartered advisory committee;
(n) The relevant recordkeeping disposition schedule(s); and
(o) The date the charter is filed in accordance with Sec. 102-
3.70.
0
18. Revise Sec. 102-3.80 to read as follows:
Sec. 102-3.80 How are charter amendments accomplished?
Responsibility and limitation. 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 Sec. 102-3.60. The procedures for making changes and
filing amended charters will depend upon the authority basis for the
advisory committee, as stated below:
(a) Non-discretionary advisory committees. The agency head must
ensure that any changes made to current charters are consistent with
the relevant authority. 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 Sec. 102-3.70, and notify the public
as specified in paragraph (c) of this section.
(b) Discretionary advisory committees. The charter of a
discretionary advisory committee must be amended when an agency head
determines that provisions of a filed charter are inaccurate, specific
provisions have changed or become obsolete with the passing of time, or
advisory committees need to be merged. Amendments could also include
changing the name of the advisory committee, advisory committee
authority, number of members, estimated number or frequency of
meetings, objectives and scope, duties, and estimated costs. The agency
must amend the charter language as necessary and the agency must:
(1) First consult with the Secretariat and explain the purpose of
the changes and why they are necessary. The Secretariat will notify the
agency when the consultation process is complete.
(2) Upon receiving notice from the Secretariat that the
consultation is complete, file the amended charter as specified in
Sec. 102-3.70, and notify the public as specified in paragraph (c) of
this section.
(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.
Sec. 102-3.85 [Removed and Reserved]
0
19. Remove and reserve Sec. 102-3.85.
Appendix A to Subpart B of Part 102-3 [Removed]
0
20. Remove appendix A to subpart B of part 102-3.
0
21. Revise Sec. 102-3.90 to read as follows:
Sec. 102-3.90 What does this subpart cover and how does it apply?
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.
0
22. Revise Sec. 102-3.95 to read as follows:
Sec. 102-3.95 What principles apply to the management of advisory
committees?
Agencies are encouraged 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. Considerations related to support could include 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 (e.g., travel
reimbursement). These considerations should also include support for
access to communication modes that are inclusive of individuals with
limited English proficiency or individuals with disabilities (e.g.,
adequate virtual meeting capabilities). These considerations should
also include whether there are physical barriers to attending in-person
meetings.
(b) Practice openness. Agencies should seek to be as transparent,
equitable, inclusive, and timely as possible when providing public
access to advisory committee activities and materials. Agencies should
minimize, to the extent possible, closing or partially closing
meetings, and are encouraged where appropriate to open subcommittee
meetings to the public. Agencies should also 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 section 10 of the Act (codified at
5 U.S.C. 1009). Such websites must be in compliance with E.O. 13166,
section 508 of the Rehabilitation Act, and the 21st Century Integrated
Digital Experience Act (IDEA). Section 3(e) of 21st Century
[[Page 75258]]
IDEA requires any public Federal agency website created after December
2018 to be in compliance with the website standards of the Technology
Transformation Services of the General Services Administration [GSA].
IDEA, Public Law 115-336, 132 Stat. 5025;.
(c) Promote diversity and inclusivity. Once the Federal advisory
committee is formed, committee chairs and DFOs should foster a culture
of diversity and inclusion by encouraging engagement, participation,
and expression from all committee members and any members with
dissenting opinions, as applicable.
(d) Seek feedback. Agencies should continually seek feedback from
advisory committee members and the public regarding the advisory
committee's activities. At regular intervals, agencies should
communicate to the members how their advice has affected agency
programs and decision making and make this information available to the
public.
0
23. Revise Sec. 102-3.100 to read as follows:
Sec. 102-3.100 What are the responsibilities and functions of GSA?
(a) The responsibilities of the Administrator under section 7 of
the Act (codified at 5 U.S.C. 1006) have been delegated by the
Administrator to the Committee Management Secretariat within GSA's
Office of Government-wide Policy.
(b) The Secretariat carries out its responsibilities by:
(1) Engaging in consultations with agencies on the establishment,
re-establishment, renewal, merger, and termination of discretionary
advisory committees;
(2) Prescribing guidance applicable to advisory committees;
(3) Assisting other agencies in implementing and interpreting the
Act;
(4) Conducting an annual comprehensive review of Government-wide
advisory committee accomplishments, costs, benefits, and other
indicators to measure performance;
(5) Developing and providing Government-wide training regarding the
Act and related statutes and principles;
(6) Supporting the Interagency Committee on Federal Advisory
Committee Management and FACA Attorney Council to improve compliance
with the Act;
(7) Designing and maintaining a FACA database to facilitate data
collection, reporting, and use of information required by the Act;
(8) Preparing regulations on Federal advisory committees;
(9) Identifying performance measures that may be used to evaluate
advisory committee accomplishments; and
(10) Providing recommendations for transmittal by the Administrator
to Congress and the President regarding proposals to improve
accomplishment of the objectives of the Act.
0
24. Amend Sec. 102-3.105 by--
0
a. Revising the introductory text and paragraphs (a), (b) and (c);
0
b. Redesignating paragraphs (d) through (j) as paragraphs (f) through
(l);
0
c. Adding new paragraphs (d) and (e);
0
d. Revising the newly designated paragraphs (f), (j), (k), and (l).
The revisions and additions read as follows:
Sec. 102-3.105 What are the responsibilities of an agency head?
When a committee is utilized by or established by an agency, the
agency head must:
(a) Comply with the Act, this part, and other applicable laws and
regulations;
(b) Issue administrative guidelines and management controls
providing the details that advisory committee staff need to implement
during the creation, operation, and termination of their Federal
advisory committees;
(c) Designate a CMO;
(d) Designate a DFO for each advisory committee and its
subcommittees;
(e) Approve the advisory committee charters for establishments,
renewals, re-establishments, or mergers;
(f) 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);
* * * * *
(j) 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
including any supplemental agency requirements, and other Federal
ethics rules;
(k) Appoint or invite individuals to serve on committees, unless
otherwise provided for by a specific statute or Presidential directive;
and
(l) Provide the opportunity for reasonable participation, including
accessibility considerations, by the public in advisory committee
activities, subject to Sec. 102-3.140 and the agency's guidelines.
0
25. Amend Sec. 102-3.110 by revising paragraphs (a) and (b) to read as
follows:
Sec. 102-3.110 What are the responsibilities of a chairperson of an
independent Presidential advisory committee?
* * * * *
(a) Comply with the Act, this part, and other applicable laws and
regulations;
(b) Consult with the Secretariat concerning the designation of a
CMO and DFO; and
* * * * *
0
26. Amend Sec. 102-3.115 by--
0
a. Revising section heading and introductory text;
0
b. Removing from paragraph (b) ``Sec. 102-3.175(b)'' and adding
``Sec. 102-3.175(b)'' in its place; and
0
c. Removing from paragraph (d) ``Sec. 102-3.105'' and adding ``Sec.
102-3.105(f)'' in its place.
The revisions read as follows:
Sec. 102-3.115 What are the responsibilities and functions of an
agency CMO?
In addition to implementing the provisions of section 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. Management includes consulting with the Secretariat on
Federal advisory committees, as delegated by the agency head; tracking
charter establishments, renewals, re-establishments, mergers,
amendments, and terminations; coordinating the agency Annual
Comprehensive Review within their agency and with the Secretariat;
providing training for agency staff supporting the FACA program;
working with GFOs, as appropriate, and DFOs; and attending GSA
government-wide FACA training and Interagency Committee on Federal
Advisory Committee Management meetings. The CMO should create and
maintain a public facing CMO website to further the public's
understanding of the agency's FACA program. The CMO also should ensure
that sections 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--
* * * * *
0
27. Revise Sec. 102-3.120 to read as follows:
Sec. 102-3.120 What are the 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 who must be either full-time or permanent part-time, to be
the DFO for
[[Page 75259]]
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) Fulfill the requirements under section 10(b) of the Act
(codified at 5 U.S.C. 1009(b));
(6) Adjourn any meeting when he or she determines it to be in the
public interest;
(7) Chair any meeting when so directed by the agency head;
(8) Maintain information on advisory committee activities and
provide such information to the public, as applicable; and
(9) Ensure advisory committee members and subcommittee members, as
applicable, receive the appropriate training (e.g., FACA overview,
ethics training) for efficient operation and compliance with the Act
and this part.
(b) The DFO should ensure a public facing website is created and
maintained (that complies with the requirements of section 508 of the
Rehabilitation Act of 1973) for each advisory committee, and include
information such as: the advisory committee charter; relevant laws,
regulations, and guidance; advisory committee member rosters and
subcommittee member rosters, as applicable; 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 section 10(b) of the Act (codified at 5 U.S.C.
1009(b)).
0
28. Revise Sec. 102-3.125 to read as follows:
Sec. 102-3.125 What is required to be included in an agency's
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 bylaws. Advisory committee bylaws should be
developed by the agency, with advisory committee input and buy-in.
Agency guidelines should specify the content of bylaws and ensure that
they provide clear operating procedures for advisory committee
meetings, other committee activities, and the relationship between
committee members, the DFO, and agency staff.
(b) Advisory committee costs. Agency 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 to
Congress and the public through the FACA database.
0
29. Revise Sec. 102-3.130 to read as follows:
Sec. 102-3.130 What policies apply to the 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 and are not prohibited from paying their advisory
committee members, unless required to or prohibited from doing so by
statute or Presidential authority. In determining the rate of
compensation (per Sec. 102-3.105(h)) the agency head 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. 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.
(c) Other compensation considerations. In establishing rates of pay
for advisory committee members, the agency must comply with any
applicable statutes, E.O.s, regulations, and administrative guidelines.
In determining an appropriate rate of basic pay for advisory committee
members, 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.
(d) 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. Federal employees serving as an advisory
committee member or as a staff person must first obtain both the
approval of their direct supervisor and the respective committee's DFO
prior to serving in either capacity.
(e) Other appointment considerations. Any advisory committee staff
person who is not a current Federal employee must be appointed in
accordance with applicable agency procedures, in consultation with the
DFO, and, as appropriate, the members of the advisory committee
involved.
(f) 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 of General Services at 5 U.S.C. 5702.
(g) 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 as those that may be provided to employees per 5 U.S.C. 3102.
Additional accommodations should be discussed in order to maximize
accessibility, including technology, per section 508 of the
Rehabilitation Act.
Appendix A to Subpart C of Part 102-3 [Removed]
0
30. Remove appendix A to subpart C of part 102-3.
0
31. Revise Sec. 102-3.140 to read as follows:
Sec. 102-3.140 What policies apply to advisory committee meetings?
(a) The agency head for a discretionary or non-discretionary
advisory committee established or utilized by that agency, or the
chairperson for an independent
[[Page 75260]]
Presidential advisory committee, must ensure that:
(1) Each advisory committee meeting is held at a reasonable time
and in a manner or place accessible to the public and includes
consideration of affected communities, as appropriate, as well as
facilities or technology that are readily accessible to and usable by
persons with disabilities, consistent with the requirements set forth
in section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
794;
(2) The physical meeting room is sufficient to accommodate advisory
committee members, advisory committee or agency staff, and a reasonable
number of interested members of the public. If electronic forums are
used, agencies should opt for technology features that are compliant
with section 508 of the Rehabilitation Act, accommodate advisory
committee members, advisory committee or agency staff, and allow for
maximum participation by members of the public, as appropriate;
(3) 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;
(4) Any member of the public may speak to or otherwise address the
advisory committee if the agency's guidelines so permit; and
(5) Any advisory committee meeting conducted in whole or part
through any electronic medium (such as a teleconference or through a
virtual platform) meets the requirements of this subpart.
(b) The Federal Register notices, agendas, and supporting materials
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.
0
32. Revise Sec. 102-3.145 to read as follows:
Sec. 102-3.145 What policies apply to 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.
0
33. Revise Sec. 102-3.150 to read as follows:
Sec. 102-3.150 How are advisory committee meetings announced to the
public?
(a) A notice in the Federal Register must be published at least 15
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 requirements of
E.O. 13166 and section 508 of the Rehabilitation Act (29 U.S.C. 794d),
as amended; and
(8) The name and telephone number (or email) of the DFO or other
responsible agency official, or agency electronic mailbox for the
committee, to contact for additional information concerning the
meeting.
(b) In exceptional circumstances, such as a national emergency or
natural disaster, the agency or an independent Presidential advisory
committee may give less than 15 calendar days notice, provided that 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, to
reach committee stakeholders.
0
34. Amend Sec. 102-3.155 by revising the introductory text and
paragraphs (a), (b), and (c) to read as follows:
Sec. 102-3.155 How are advisory committee meetings closed to the
public?
To close all or part of an advisory committee meeting, the DFO
must:
(a) Obtain prior approval. 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
(generally, 30 calendar days) to review the matter in order to make a
determination before publication of the meeting notice required by 41
CFR 102-3.150;
(b) Seek General Counsel review. The Office of the General Counsel
(or equivalent legal office) of the agency or, in the case of an
independent Presidential advisory committee, GSA's Office of the
General Counsel, should review all requests to close meetings;
(c) Obtain agency determination. If the agency head, or in the case
of an independent Presidential advisory committee, GSA, 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; and
* * * * *
0
35. Amend Sec. 102-3.160 by revising paragraphs (a) and (b) to read as
follows:
Sec. 102-3.160 What activities of an advisory committee are not
subject to the notice and open meeting requirements of the Act?
* * * * *
(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 or subcommittee members in a public
meeting of the advisory committee or subcommittee. 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).
0
36. Amend Sec. 102-3.165 by revising paragraphs (b)(1) and (4) and (c)
to read as follows:
Sec. 102-3.165 How are advisory committee meetings documented?
* * * * *
(b) * * *
(1) The time, date, and place (or electronic format) of the
advisory committee meeting;
* * * * *
[[Page 75261]]
(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) not later than 14 calendar days after
the meeting minutes have been certified.
0
37. Revise Sec. 102-3.170 to read as follows:
Sec. 102-3.170 How does an interested party obtain 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 advisory committee records may be withheld
under the provisions of the Freedom of Information Act (FOIA) if there
is a reasonable expectation that the records sought fall within the
exemptions contained in 5 U.S.C. 552(b), agencies may not require
members of the public or other interested parties to file requests for
non-exempt advisory committee records under the request and review
process established by 5 U.S.C. 552(a)(3).
0
38. Revise Sec. 102-3.175 to read as follows:
Sec. 102-3.175 What are the reporting and recordkeeping requirements
for an advisory committee?
(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 section 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 as directed by the President, either by the President's
delegate, by the agency responsible for providing support to a
Presidential advisory committee, or by the responsible agency or
organization designated in the charter of the Presidential advisory
committee pursuant to Sec. 102-3.75(f).
(b) Annual comprehensive review of Federal advisory committees. Per
section 7(b) of the Act (codified at 5 U.S.C. 1006(b)), GSA is required
to conduct an Annual Comprehensive Review (ACR) of the activities and
responsibilities of each Federal advisory committee that was in
existence during any part of a Federal fiscal year. The Secretariat
initiates this review, provides guidance to the agencies and
departments on how to conduct the review, and closes out the ACR when
all reviews have been completed. Federal agencies are responsible for
reporting data on each advisory committee, such as its purpose,
performance measures, subcommittees (if applicable), meeting,
membership, and cost, into the GSA FACA database. CMOs, DFOs, and other
responsible agency officials, such as GFOs, enter this data for the
advisory committees they are responsible for in their agency. The FACA
database provides transparency to the public on the activities of
Federal advisory committees government-wide. The database is also used
by Congress to perform oversight of the FACA program, and by the
general public, the media, and others to stay abreast of important
developments resulting from Federal advisory committee activities.
(c) Annual report of closed or partially closed meetings. In
accordance with section 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 section 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, 29-33, 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.
Appendix A to Subpart D of Part 102-3 [Removed]
0
39. Remove appendix A to subpart D of part 102-3.
0
40. Revise Sec. 102-3.180 to read as follows:
Sec. 102-3.180 What does this subpart cover and how does it apply?
This subpart provides guidance to agencies on compliance with
section 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 section 15 applies to
any committee created by NAS or NAPA.
0
41. Revise Sec. 102-3.185 to read as follows:
Sec. 102-3.185 What does this subpart require agencies to do?
(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 section 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 sections 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 section 15 of the Act (codified at 5 U.S.C. 1014)
that are applicable to that academy. In addition, however, any
committee created and
[[Page 75262]]
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 section 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.
Appendix A to Subpart E of Part 102-3 [Removed]
0
42. Remove appendix A to subpart E of part 102-3.
0
43. Add Subpart F, consisting of Sec. 102-3.190, to read as follows:
Subpart F--Severability
Sec. 102-3.190 What portions of this part are severable?
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.
[FR Doc. 2023-24181 Filed 10-31-23; 4:15 pm]
BILLING CODE 6820-14-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.