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Rule2024-08215

Federal Management Regulation; Federal Advisory Committee Management

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Published

April 18, 2024

Effective

May 20, 2024

Issuing agencies

General Services Administration

Abstract

GSA is issuing a final rule amending the Federal Management Regulation (FMR) to update the regulations concerning Federal Advisory Committee Management. This action is necessary to clarify FACA requirements and incorporate legislative and policy changes that have occurred since the regulation was last updated in July of 2001.

Full Text

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<title>Federal Register, Volume 89 Issue 76 (Thursday, April 18, 2024)</title>
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[Federal Register Volume 89, Number 76 (Thursday, April 18, 2024)]
[Rules and Regulations]
[Pages 27673-27689]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08215]

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GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-3

[FMR CASE 2022-01; DOCKET NO. GSA-FMR-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: Final rule.

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SUMMARY: GSA is issuing a final rule amending the Federal Management
Regulation (FMR) to update the regulations concerning Federal Advisory
Committee Management. This action is necessary to clarify FACA
requirements and incorporate legislative and policy changes that have
occurred since the regulation was last updated in July of 2001.

DATES: Effective: May 20, 2024.

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#2945465b4c454c400742465e48455a4240694e5a48074e465f"><span class="__cf_email__" data-cfemail="365a5944535a535f185d5941575a455d5f7651455718515940">[email&#160;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#efa8bcaebd8a88bc8a8caf889c8ec1888099"><span class="__cf_email__" data-cfemail="581f0b190a3d3f0b3d3b183f2b39763f372e">[email&#160;protected]</span></a>. Please cite FMR Case 2022-01.

SUPPLEMENTARY INFORMATION:

I. Background

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. FACA
defines what constitutes a Federal advisory committee and provides
general procedures for the executive branch to follow for the operation
of these committees. 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 number, purpose, membership, activities, and cost of
advisory committees, sec. 2(b)(5) (codified at 5 U.S.C. 1002(b)(5)).
The Act not only formalized a process for establishing, operating,
overseeing, and terminating these advisory bodies, it also created the
Committee Management Secretariat (``Secretariat''), a GSA Office whose
task it is to provide oversight on the FACA program, work with
executive branch agencies and departments regarding compliance with the
Act, and report on executive branch activities under the Act. The GSA's
authority for administering FACA is contained in sec. 7(c) (codified at
5 U.S.C. 1006(c) of the Act and Executive Order (E.O.) 12024 (42 FR
61445; 3 CFR, 1977 Comp., p. 158). E.O. 12024 delegated to the
Administrator of General Services almost all of ``the functions vested
in the President by the Federal Advisory Committee Act''. GSA's
authority includes ``prescrib[ing] administrative guidelines and
management controls applicable to advisory committees, and, to the
maximum extent feasible, provid[ing] advice, assistance, and guidance
to advisory committees to improve their performance.'' The
Administrator of General Services delegated all of their FACA-related
responsibilities to the Secretariat. See 41 CFR 102-3.100. Executive
orders and congressional revisions have clarified the application of
the Act in 1993, 1997, 1998, 2010, and 2019. There have also been a
number of Presidential actions that further clarified the operation of
Federal advisory committees, particularly with respect to advisory
committee membership.
This final rule amends the FMR to update current policy and
legislative requirements; 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 as proposed with changes published on November 2,
2023, at 88 FR 75248. It is also based on suggestions for improvement
from other Federal agencies and interested parties, including public
comments, which are detailed in section II.B. of this document. This
final rule is intended to improve the clarity of regulations concerning
management and operation of Federal advisory committees in the
executive branch, which will in turn enhance the performance of
advisory committees.

II. Discussion of the Final Rule

A. Summary of Significant Changes

Incorporating Legislative Updates
Section 102-3.40 is revised 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.
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 is removing certain language and
information from part 102-3. See also E.O. 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). Appendices throughout part 102-3 are removed because that
information--guidance in the form of answers to frequently asked
questions--is better suited for GSA's Federal Advisory Committee
Management website (<a href="http://www.gsa.gov/faca">www.gsa.gov/faca</a>), where GSA can more easily
``provide advice, assistance, and guidance to advisory committees to
improve their performance.'' Section 7(c) (codified at 5 U.S.C.
1006(c)). GSA is 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 is revising both of those sections in order to remove
duplicative language and help ensure that the Act's use of those terms
is consistently applied throughout GSA's regulations.
Similarly, GSA is removing 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

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compensating Federal employees and hiring experts and consultants, and
GSA need not repeat those policies in 41 CFR 102-3.130.
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 is
adding two key roles at 41 CFR 102-3.25. 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 so GSA added a definition for
a ``chairperson.'' GSA is also adding a definition for a ``Group
Federal Officer'' to capture a key role that some agencies use to
support their FACA programs, as GSA believes it is helpful to formally
recognize what continues to be a key role for some agencies. GSA is
also clarifying the definitions and responsibilities of the following
existing key roles:
<bullet> The Secretariat in 41 CFR 102-3.100 to reflect a more
comprehensive description of actual Secretariat activities, update
terminology, and recognize a government-wide interagency group that was
created after GSA published a final rule in 2001, see Federal Advisory
Committee Management, 66 FR 37727 (July 19, 2001) (hereinafter ``2001
Final Rule'').
<bullet> The agency head in 41 CFR 102-3.105 regarding their role
with advisory committee charters and members.
<bullet> The Committee Management Officer (CMO) in 41 CFR 102-3.115
to help clarify the full scope and importance of the CMO, including
acknowledgment of common actions implemented by CMOs across the
executive branch in managing their agency's Federal advisory committee
program.
<bullet> The Designated Federal Officer (DFO) in 41 CFR 102-3.120
to 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 revisions will improve the clarity of FACA-related
responsibilities, which will in turn enhance the performance of
advisory committees.
Supporting Fairly Balanced Committee Membership
The Act states that advisory committees must be ``fairly balanced
in terms of the points of view represented and the functions to be
performed.'' Section 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
E.O. 12024); 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''); and 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. See
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>.
GSA is now updating the regulatory language pertaining to the MBP
(specifically at 41 CFR 102-3.60) to reflect GSA's longstanding
guidance as described above. Furthermore, in response to feedback from
agencies and consistent with recent Presidential Actions supporting
diversity, equity, inclusion, and accessibility,\1\ GSA is clarifying
the procedures for submitting an MBP that helps ensure fairly balanced
committee membership. This includes requiring an agency to provide

[[Page 27675]]

the Secretariat with an 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 interested parties and stakeholder groups
likely to possess those points of view. GSA is also adding clarifying
language regarding points of view agencies should consider to achieve
fairly balanced membership.
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\1\ E.O. 13985 (86 FR 7009; <a href="https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government">https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government</a>) and E.O.
14091 (88 FR 10825; <a href="https://www.federalregister.gov/documents/2023/02/22/2023-03779/further-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal">https://www.federalregister.gov/documents/2023/02/22/2023-03779/further-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal</a>).
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By seeking 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. 20, 2021), <a href="https://aspe.hhs.gov/sites/default/files/documents/62e7a64c60e10c47484b763aa9868f99/lived-experience-brief.pdf">https://aspe.hhs.gov/sites/default/files/documents/62e7a64c60e10c47484b763aa9868f99/lived-experience-brief.pdf</a>. For example, 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.
These changes will help to continue improving the quality of committee
conclusions and recommendations--ultimately enhancing the performance
of advisory committees.
Further, GSA is updating the rules and principles that apply to the
management of advisory committees (specifically at 41 CFR 102-3.95 and
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, accessible, 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. These changes will help improve public access
to advisory committees and membership engagement, which will in turn
enhance the performance of advisory committees.
Finally, GSA is 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.'' Section 10(a)(2)
(codified at 5 U.S.C. 1009(a)(2)). These revisions accordingly seek to
expand public notification beyond publication in the Federal Register
by encouraging use of agency websites and other online forums, and will
improve public access and the subsequent performance of those advisory
committees.
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.'' Section
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 is 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.
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 sec. 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 advisory committee's authority, formation of
subcommittees, and recordkeeping. GSA is now 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 is 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 is consolidating the charter amendment
sections into a singular process in 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 is requiring
that agencies post notice of the amendment to the relevant advisory
committee website (if one exists).
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.'' Section 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 is 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.
Severability
GSA is adding a new subpart on severability at 41 CFR 102-3.190,
which states that all provisions included in

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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 in 41 CFR 102-3.25 to understand
what ``committee staff'' means.
Further, any cross-references that appear throughout part 102-3 are
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.

B. Analysis of Public Comments

The proposed rule was published in the Federal Register on November
2, 2023 (88 FR 75248). Comments were received from eight respondents,
several of which also included positive feedback in addition to
multiple comments. Three respondents expressed support for the proposed
revisions to increase diversity, equity, inclusion, accessibility, and
transparency in committee procedures. In particular, the respondents
included positive feedback on the proposed changes to encourage broad
stakeholder outreach, ensure stakeholder access to participate and
contribute to Federal advisory committees, and update the regulatory
language on the MBP. Specifically, one respondent agreed with the
proposed revisions in 41 CFR 102-3.60 and 102-3.65 that increase public
transparency and provide additional MBP guidance. Of the comments
received, there were fourteen topics within the scope of the final
rule. An analysis of these public comments follows:
Comment 1: One commenter was concerned about removing the
Appendices throughout the Part and moving the content to a website
without comprehensively cross walking the information and
interpretations conveyed in the Appendices in the updated rule. They
felt it could weaken agency defenses in a challenge to their
application of FACA procedures if the agency cited a website instead of
a regulation.
Response: GSA disagrees. GSA included common ``best practices''
guidance in the 2001 Final Rule in the form of Appendices to each
subpart, and intentionally separated this guidance from the regulatory
text. GSA will make the content of the Appendices readily available on
the GSA Federal Advisory Committee Management website. GSA understands
and appreciates their utility for the management of advisory
committees, but the Appendices are not an enforceable part of the
regulation.
Comment 2: One commenter objected to the question-and-answer format
of the regulation, believing it led to questions about the scope of the
sections and makes searching for a subject more difficult.
Response: GSA disagrees. The question-and-answer format is
preferred by GSA and is consistent with the format in the rest of the
FMR. Further, it is considered an acceptable format for regulations by
the Office of the Federal Register.
Comment 3: Several commenters commended GSA on proposed language
surrounding outreach to diverse communities and encouraged addressing
the needs of stakeholders with limited resources to further strengthen
equity and public accountability. Suggestions included that GSA work
with agencies to develop and launch a robust education effort to tackle
awareness barriers on the Federal advisory committee process; and
encourage agencies to consider offering satellite locations that may
enable committee members or members of the public to participate if
they cannot travel to a meeting or lack access to high-speed internet
in their own homes.
Response: The rule outlines at a high level (with examples) what
should be considered regarding committee support, language access,
meeting access, etc. Further specificity and ``how to'' is more
appropriately addressed in the downstream agency implementation
policies once the rule is in effect.
Comment 4: One commenter strongly supported the new language on
MBPs and requested that the regulation also require that these plans be
made available to the public to support the principles of transparency.
Response: GSA agrees and already requires the agencies to upload
MBPs (if they are created) in the Charter section of the FACA database
(<a href="https://www.facadatabase.gov/FACA/s/">https://www.facadatabase.gov/FACA/s/</a>). GSA is formalizing this
requirement by adding it to 41 CFR 102-3.60(b)(3).
Comment 5: One commenter recommended that advisory committees never
include ``stakeholders'' or business interests due to a concern about
stakeholder influence in agency decision-making.
Response: GSA disagrees. Section 5 of the Act (codified at 5 U.S.C.
1004) requires the membership of the advisory committee to be fairly
balanced in terms of the points of view represented and the functions
to be performed by the advisory committee. GSA interprets this
statutory requirement as the basis for agencies to conduct outreach to
stakeholders, which could include business interests, during the
committee formation process as these groups and entities are
potentially affected by the work of a Federal advisory committee or may
have qualifications and experience relevant to the functions and tasks
to be performed. Per sec. 2(b)(6) of the Act (codified at 5 U.S.C.
1002(b)(6)) ''the function of advisory committees should be advisory
only, and that all matters under their consideration should be
determined, in accordance with law, by the official, agency, or officer
involved.'' Therefore, per the Act, the executive branch retains the
authority for decision-making.
Comment 6: One commenter stated that some Federal advisory
committees do not post their meeting minutes, meeting handouts, and
other non-exempt documentation online as they should, and Freedom of
Information Act (FOIA) requests should not be necessary for accessing
such information. The commenter stated the rule does not explicitly
address this issue and proposed specific language for GSA to add in 41
CFR 102-3.140(b) (which addresses posting of Federal Register notices,
agendas, and supporting materials) and 102-3.175(d) (which addresses
the filing of advisory committee reports, and, where appropriate,
background papers prepared by experts or consultants, with the Library
of Congress). Another

[[Page 27677]]

commenter had a similar comment and believed GSA should require the
posting of Federal advisory committee records to the FACA database in
an accessible, complete, and timely manner to allow for public access
and advisory committee transparency.
Response: GSA believes the language in the rule is very similar to
and covers the commenter's suggested language for 41 CFR 102-3.140(b),
except that 41 CFR 102-3.140(b) does not refer to records being exempt
from disclosure under the FOIA, or include an option for posting
Federal advisory committee records to the FACA database. GSA disagrees
that 41 CFR 102-3.140(b) should include a reference to records being
exempt from disclosure under the FOIA, since this is a given under the
Act. GSA also disagrees with including a requirement to post all
records a committee generates to the FACA database, since the database
was not designed or intended as a repository for all Federal advisory
committee records. GSA requires select documents, such as charters and
MBPs, to be uploaded into the FACA database and allows agencies the
option to upload meeting minutes (or provide a URL) and Federal
advisory committee reports. Even if the records are not posted on a
committee website, they are available to the public upon request under
sec. 10(b) of the Act (codified at 5 U.S.C. 1009(b)) as soon as they
are available or at the time they are provided to the advisory
committee members. The first commenter above also requested that
advisory committee reports be posted to the FACA database or on the
agency website at 41 CFR 102-3.175(d), which addresses reporting and
recordkeeping requirements, not best practices. GSA disagrees and
believes 41 CFR 102-3.175(d) includes what is required: language that
reports must be made publicly available through the Library of
Congress. Posting on a website is a best practice and not a FACA
requirement. In addition, websites are already addressed in 41 CFR 102-
3.120(b), which recommends that the DFO maintain a website for their
Federal advisory committee and post advisory committee reports, among
other information. Posting Federal advisory committee reports to the
FACA database is already an option and many agencies do.
Comment 7: One commenter requested GSA designate a point of contact
as oversight for Federal advisory committees and suggested that if it
is the CMO that this should be clearly stated in 41 CFR 102-3.115,
which covers the responsibilities and functions of an agency CMO.
Response: GSA believes additional clarification is not needed in
the rule. Section 8(b) of the Act (codified at 5 U.S.C. 1007(b))
specifies that the CMO shall ``exercise control and supervision over
the establishment, procedures, and accomplishments of advisory
committees established by that agency.'' This is an oversight role for
the Federal advisory committees under the CMO's purview. Accordingly,
41 CFR 102-3.25 and 102-3.115 reiterate the requirement for the CMO to
implement the provisions of sec. 8(b) of the Act (codified at 5 U.S.C.
1007(b)).
Comment 8: One commenter requested that the rule address how an
advisory committee may obtain access to Agency records that might
otherwise be withheld from the public under the FOIA, as amended, 5
U.S.C. 552.
Response: GSA disagrees that the rule should address this issue,
because the FACA regulation cannot usurp the FOIA statute.
Comment 9: One commenter requested the rule require that DFOs
successfully complete GSA's FACA Management Training with regular
recertification in 41 CFR102-3.120, which addresses the
responsibilities and functions of a DFO.
Response: GSA agrees with the importance of FACA training but
believes agency CMOs are in the best position to identify specific
training needs for agency staff. 41 CFR 102-3.115 already specifies
that part of the CMO management of their agency FACA program includes
``providing training for agency staff supporting the FACA program.''
GSA will revise this section to clarify that this could include GSA's
government-wide training.
Comment 10: One commenter commended GSA for taking important steps
to address accessibility barriers that prevent individuals from
participating in the advisory committee process but encourages agencies
to consider how best to reach impacted people who do not have access to
consistent internet connections about advisory committee meetings. The
commenter noted that although the addition of websites and social media
to the rule expanded the avenues for announcing advisory committee
meetings beyond the Federal Register, they suggested GSA encourage
agencies to utilize traditional media, especially local radio and
newspapers, that are often more accessible to underserved and
underrepresented communities, especially in rural areas. They also
cited the difficulties when the burden is on the public to self-
identify the need for any accommodations to participate in the advisory
committee process, and asked GSA to look for ways to minimize any
unnecessary burdens in the rule.
Response: GSA agrees that agencies should consider how to best
reach stakeholders potentially impacted by the work of a Federal
advisory committee. The rule, in 41 CFR 102-3.150(c), allows agencies
to use their expertise and discretion to reach their relevant
stakeholders. The regulation does not restrict their options and
websites and social media are just examples. Regarding accommodations,
agencies are already required to comply with relevant sections of the
Rehabilitation Act of 1973, amended, 29 U.S.C. 794. This regulation is
not intended to broaden the requirements of another law.
Comment 11: One commenter suggested that GSA consider compensation
for missed work or other reimbursements to help address the
accessibility barriers that often prevent people from traditionally
underserved communities from participating in the policymaking process.
Response: FACA is a transparency law, and it anticipated that not
all interested persons would be able to attend meetings. The Act has a
provision in sec. 10(b) (codified at 5 U.S.C. 1009(b)) to ensure access
to Federal advisory committee materials, even if an individual is
unable to attend a meeting. FACA also permits anyone to submit written
comments to any advisory committee. Except as otherwise provided by
law, Federal appropriations may not be used for travel and attendance
of meetings by members of the public.
Comment 12: One commenter recommended not adopting the revisions to
41 CFR 102-3.160, which describes the activities of an advisory
committee that are not subject to the notice and open meeting
requirements of the Act. The commenter cited a number of concerns
regarding the revisions, including that they: would bar closed meetings
for preparatory work by subcommittees that includes ``deliberation;''
remove the phrase ``to draft position papers for deliberation by the
advisory committee'' from the definition of ``preparatory work''
meetings; may decrease transparency while increasing agency
administration burdens; and require certain subcommittee meetings to be
open, which would lead to issues scheduling/rescheduling meetings, and
constrain subcommittee activities and member participation.
Response: Preparatory meetings are not closed; they are not
required to be open to the public. GSA's revisions were intended to
clarify but not change

[[Page 27678]]

the policy behind the 2001 rulemaking concerning preparatory work. GSA
removed ``to draft position papers for deliberation by the advisory
committee'' because it was an example, is not required as part of the
definition, and does not mean the concept does not apply. The revisions
to 41 CFR 102-3.160 were not intended to require certain subcommittee
meetings to be open; they were to clarify how preparatory work applies
to subcommittee meetings that are open to the public. GSA revised 41
CFR 102-3.160 to clarify the misunderstanding.
Comment 13: One commenter requested clarification on whether a
recording of a virtual meeting, without specifically posting advisory
committee records, is consistent with Federal Advisory Committee
Management or the Office of Management and Budget's (OMB's) Circular A-
130.
Response: FACA does not preclude an agency from recording a virtual
meeting, and the Act and regulation clarify what materials must be made
available to the public upon request.
Comment 14: One commenter requested that GSA address the ability of
an advisory committee to review Confidential Business Information.
Response: Access to Confidential Business Information is not
prohibited by the Act and would be subject to provisions under the
Government in the Sunshine Act.

III. Expected Costs and Benefits

This final 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
advisory committee work, and routine interactions regarding agency
committee management programs.
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 final rule.
GSA estimates the overall total additional undiscounted cost of this
final rule to be $7,007,404 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. It is intended that
overall, this final rule will improve the clarity of regulations
concerning management and operation of Federal advisory committees in
the executive branch, which will in turn enhance the performance of
advisory committees.

IV. Executive Orders 12866, 13563, and 14094

E.O.s 12866, 13563, and 14094 direct 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. OMB's Office of Information and Regulatory Affairs (OIRA) has
designated this rule as a significant regulatory action and, therefore,
it was subject to review under sec. 6(b) of E.O. 12866.

V. Congressional Review Act

OIRA has determined that this rule is not a ``major rule'' under 5
U.S.C. 804(2). Title II, subtitle E of the Small Business Regulatory
Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also
known as the Congressional Review Act or CRA, generally provides that
before a rule may take effect, unless excepted, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. This rule is excepted from CRA reporting requirements
prescribed under 5 U.S.C. 801 as it relates to agency management or
personnel under 5 U.S.C. 804(3)(B).

VI. Regulatory Flexibility Act

GSA certifies that this final 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
final 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 final 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 OPM's 2023 General Schedule (GS) Rest of United
States Locality Pay Table and the full fringe benefit cost
factor.<SUP>2 3 4</SUP>
---------------------------------------------------------------------------

\2\ OPM General Schedule (<a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2023/general-schedule">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2023/general-schedule</a>).
\3\ OMB Memo M-08-13, dated March 11, 2008 (<a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2008/m08-13.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2008/m08-13.pdf</a>).
\4\ Fact Sheet: Computing Hourly Rates of Pay Using the 2087-
Hour Divisor (<a href="https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/computing-hourly-rates-of-pay-using-the-2087-hour-divisor/">https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/computing-hourly-rates-of-pay-using-the-2087-hour-divisor/</a>).
---------------------------------------------------------------------------

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 final 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, CMOs 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 final
rule. Therefore, GSA estimates the total estimated cost for this part
of the final rule to be $23,096 (= [57 employees] x [$101.30/hour] x [4
hours]).
GSA estimates it will take 987 government employees, DFOs 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 final
rule. Therefore, GSA estimates the total

[[Page 27679]]

estimated cost for this part of the final rule to be $30,247 (= [987
employees] x [$61.29/hour] x [0.5 hours]).
3. Training
GSA estimates it will take 57 government employees, CMOs 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 final rule.
Therefore, GSA estimates the total estimated cost for this part of the
final 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
final rule. Therefore, GSA estimates the total estimated cost for this
part of the final rule to be $47,561 (= [1,552 FTEs] x [$61.29/hour] x
[0.5 hours]).
4. Outreach To Support Fairly Balanced Committee Membership
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 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 final rule per year to be $306,096 (= [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 conduct additional outreach in identifying 31,931 new
members that may be able to participate in U.S. Department of Health
and Human Services 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 final rule
to be $1,163,566 (= [31,931 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 final rule per year to be
$1,307,249 (= [17,937 membership slots] x [$72.88/hour] x [1 hour]).
5. Total Government Costs
GSA estimates the total government costs to be $7,007,404 for years
1 to 10. A breakdown of the total estimated government costs by year is
provided in the table below.

------------------------------------------------------------------------
Year Costs
------------------------------------------------------------------------
1....................................................... $2,887,160
2....................................................... 1,619,804
3....................................................... 312,555
4....................................................... 312,555
5....................................................... 312,555
6....................................................... 312,555
7....................................................... 312,555
8....................................................... 312,555
9....................................................... 312,555
10...................................................... 312,555
---------------
Total................................................. 7,007,404
------------------------------------------------------------------------

B. Overall Total Additional Costs

The overall total additional undiscounted cost of this final rule
is estimated to be $7,007,404 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 final rule.

------------------------------------------------------------------------
Summary Total costs
------------------------------------------------------------------------
Present Value (3 percent).................................. $6,397,981
Annualized Costs (3 percent)............................... 750,039
Present Value (7 percent).................................. 5,743,230
Annualized Costs (7 percent)............................... 817,707
------------------------------------------------------------------------

C. Analysis of Alternatives

The preferred approach is to take 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 and unclear content in the
regulations, which would continue to cause confusion, impede
accessibility and transparency by not encouraging the expansion of
outreach and meeting access to the public, 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.

VII. Paperwork Reduction Act

The final rule does not contain any information collection
requirements that require the approval of the OMB 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.

Robin Carnahan,
Administrator of General Services.

Therefore, GSA revises 41 CFR part 102-3 to read as follows:

PART 102-3--FEDERAL ADVISORY COMMITTEE MANAGEMENT

Subpart A--What Policies Apply to Advisory Committees Established
Within the Executive Branch?
Sec.
102-3.5 What does this part cover and how does it apply?
102-3.10 What is the purpose of the Federal Advisory Committee Act?
102-3.15-102-3.20 [Reserved]
102-3.25 What definitions apply to this part?
102-3.30 What policies govern the use of advisory committees?
102-3.35 What policies govern the use of subcommittees?
102-3.40 What types of committees or groups are not covered by the
Act and this part?
Subpart B--How Are Advisory Committees Established, Renewed,
Reestablished, Merged, and Terminated?
102-3.45 What does this subpart cover and how does it apply?
102-3.50 What are the authorities for establishing advisory
committees?
102-3.55 What rules apply to the duration of an advisory committee?
102-3.60 What procedures are required to establish, renew,
reestablish, or merge a discretionary advisory committee?
102-3.65 What are the public notification requirements for
discretionary advisory committees?
102-3.70 What are the charter filing requirements?
102-3.75 What information must be included in the charter of an
advisory committee?
102-3.80 How are charter amendments accomplished?
102-3.85 [Reserved]
Subpart C--How Are Advisory Committees Managed?
102-3.90 What does this subpart cover and how does it apply?
102-3.95 What principles apply to the management of advisory
committees?
102-3.100 What are the responsibilities and functions of GSA?
102-3.105 What are the responsibilities of an agency head?
102-3.110 What are the responsibilities of a chairperson of an
independent Presidential advisory committee?

[[Page 27680]]

102-3.115 What are the responsibilities and functions of an agency
CMO?
102-3.120 What are the responsibilities and functions of a DFO?
102-3.125 What is required to be included in an agency's
administrative guidelines to implement an advisory committee?
102-3.130 What policies apply to the appointment, and compensation
or reimbursement of advisory committee members?
Subpart D--Advisory Committee Meeting and Recordkeeping Procedures
102-3.135 What does this subpart cover and how does it apply?
102-3.140 What policies apply to advisory committee meetings?
102-3.145 What policies apply to subcommittee meetings?
102-3.150 How are advisory committee meetings announced to the
public?
102-3.155 How are advisory committee meetings closed to the public?
102-3.160 What activities of an advisory committee are not subject
to the notice and open meeting requirements of the Act?
102-3.165 How are advisory committee meetings documented?
102-3.170 How does an interested party obtain access to advisory
committee records?
102-3.175 What are the reporting and recordkeeping requirements for
an advisory committee?
Subpart E--How Does This Subpart Apply to Advice or Recommendations
Provided to Agencies by the National Academy of Sciences or the
National Academy of Public Administration?
102-3.180 What does this subpart cover and how does it apply?
102-3.185 What does this subpart require agencies to do?
Subpart F--Severability
102-3.190 What portions of this part are severable?

Authority: 40 U.S.C. 486(c); 5 U.S.C. chapter 10; and E.O.
12024, 42 FR 61445, 3 CFR, 1977 Comp., p. 158.

PART 102-3--FEDERAL ADVISORY COMMITTEE MANAGEMENT

Subpart A--What Policies Apply to Advisory Committees Established
Within the Executive Branch?

Sec. 102-3.5 What does this part cover and how does it apply?

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

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. 102-3.15-102-3.20 [Reserved]

Sec. 102-3.25 What definitions apply to this part?

The following definitions apply to this part:
Act means the Federal Advisory Committee Act (FACA), as amended, 5
U.S.C. chapter 10.
Administrator means the Administrator of General Services.
Advisory committee means any committee, board, commission, council,
conference, panel, task force, or other similar group, which is
established by statute, or established or utilized by the President or
by an agency official, for the purpose of obtaining the group's advice
or recommendations for the President or on issues or policies within
the scope of agency responsibilities (codified at 5 U.S.C. 1001).
Advisory committees are subject to the Act unless specifically exempted
by the Act, or by other statutes, or not covered by this part.
Agency has the same meaning as in 5 U.S.C. 551(1).
Agency head means the head of an executive branch agency,
department, or commission, or their designated delegate.
Chairperson means the advisory committee or subcommittee member who
serves in this role on an advisory committee or subcommittee by
statutory requirement, or by appointment or invitation by Presidential
authority or an agency's authority.
Committee Management Officer (CMO) means the individual designated
by the agency head to implement the provisions of sec. 8(b) of the Act
(codified at 5 U.S.C. 1007(b)) and any delegated responsibilities of
the agency head under the Act.
Committee Management Secretariat (Secretariat) means the
organization established pursuant to sec. 7(a) of the Act (codified at
5 U.S.C. 1006(a)), which is responsible for all matters relating to
advisory committees and carries out the responsibilities of the
Administrator under the Act and E.O. 12024 (3 CFR, 1977 Comp., p. 158).
Committee meeting means any gathering of advisory committee members
(whether in person or electronically, such as using telecommunications
or through a virtual platform), held with the approval of an agency,
and with a Designated Federal Officer in attendance, for the purpose of
deliberating on the matters upon which the advisory committee provides
advice or recommendations.
Committee member means an individual who serves by appointment or
invitation by the appointing authority on an advisory committee or
subcommittee.
Committee staff means any Federal employee, private individual, or
other party (whether under contract or not) who is not a committee
member, and who serves in a support capacity to an advisory committee
or subcommittee. 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 secs. 10(e) and (f) of
the Act (codified at 5 U.S.C. 1009(e) and (f)) and any advisory
committee procedures of the agency under the control and supervision of
the CMO.
Discretionary advisory committee means any advisory committee that
is established under the authority of an agency head or authorized by
statute. An advisory committee referenced in general (non-specific)
authorizing language or Congressional committee report language is
discretionary, and its establishment or termination is within the legal
discretion of an agency head.
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.

[[Page 27681]]

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.
Presidential advisory committee means any advisory committee
authorized by the Congress or directed by the President to advise the
President.
Subcommittee means a group that reports to an advisory committee,
and not directly to a Federal officer or agency, whether or not its
members are drawn in whole or in part from the parent advisory
committee. 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
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.

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 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. Advisory
committees should consider how to ensure that advisory committee
members and members of the public are made aware that qualified
individuals with disabilities are entitled to effective communication,
including appropriate auxiliary aids and services. Advisory committees
should also consider how to ensure that advisory committee members and
members of the public are made aware of 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 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, 3 CFR,
2000 Comp., p. 289.
(e) Advisory functions only. The function of advisory committees is
advisory only, unless specifically provided by statute or Presidential
directive.

Sec. 102-3.35 What policies govern the use of subcommittees?

(a) In general, the requirements of the Act and the policies of
this 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.

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 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

[[Page 27682]]

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 sec. 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.

Subpart B--How Are Advisory Committees Established, Renewed,
Reestablished, Merged, and Terminated?

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.

Sec. 102-3.50 What are the authorities for establishing advisory
committees?

FACA identifies four sources of authority for establishing an
advisory committee:
(a) Required by statute. By law where Congress establishes an
advisory committee, or specifically directs the President or an agency
to establish it (non-discretionary);
(b) Presidential authority. By 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).

Sec. 102-3.55 What rules apply to the duration of an advisory
committee?

(a) An advisory committee automatically terminates two years after
its date of establishment unless:
(1) The statutory authority used to establish the advisory
committee provides a different duration or termination, either stated
in or implied by operation of the statute;
(2) The President or agency head determines that the advisory
committee has fulfilled the purpose for which it was established and
terminates the advisory committee earlier;
(3) The President or agency head determines that the advisory
committee is no longer carrying out the purpose for which it was
established and terminates the advisory committee earlier; or
(4) The President or agency head renews the advisory committee not
later than two years after its date of establishment, renewal, or
reestablishment in accordance with Sec. 102-3.60. If the President or
an agency needs an advisory committee that was terminated, it can be
reestablished in accordance with Sec. 102-3.60.
(b) When an advisory committee terminates, the agency shall notify
the Secretariat of the effective date of the termination.

Sec. 102-3.60 What procedures are required to establish, renew,
reestablish, or merge a discretionary advisory committee?

(a) Consultation with the Secretariat. To establish, renew,
reestablish, or merge a discretionary advisory committee, 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). The MBP must be uploaded to
the FACA database when the agency files the Federal advisory committee
charter with the Secretariat.
(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 affected or interested in such
recommendations, as

[[Page 27683]]

appropriate based on the nature and functions of the advisory
committee, so that the agency can make informed decisions on the areas
of expertise or perspectives (including relevant lived experience) that
would advance the work of the advisory committee. Advisory committees
requiring technical expertise should include persons with demonstrated
professional or personal qualifications and experience relevant to the
functions and tasks to be performed by the committee. 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, using a variety of means and methods, to
ensure that the call for nominees reaches the interested parties and
stakeholder groups likely to possess those points of view. Agencies
should further ensure outreach to underserved communities, 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.

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,
reestablished, or a new discretionary 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 relevant sections of the Rehabilitation Act, as
amended, 29 U.S.C. 794.
(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.

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:
(1) The agency head;
(2) The standing committees of the Senate and the House of
Representatives having legislative jurisdiction of the agency, the date
of filing with which constitutes the official date of establishment for
the advisory committee;
(3) The Library of Congress; and
(4) The Secretariat, indicating the date the charter was filed in
accordance with paragraph (a)(2) of this section.
(b) Requirement for non-discretionary advisory committees. Charter
filing requirements for non-discretionary advisory committees are the
same as those in paragraph (a) of this section, except 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.

Sec. 102-3.75 What information must be included in the charter of an
advisory committee?

An advisory committee charter is intended to provide a description
of an advisory committee's mission, goals, and objectives. The charter
must contain the following information:
(a) The advisory committee's official designation (official name);
(b) The legal authority that permits the advisory committee to be
established;
(c) The objectives and the scope of the advisory committee's
activities;
(d) A description of the duties for which the advisory committee is
responsible and specification of the authority for any non-advisory
functions;
(e) The agency or Federal officer to whom the advisory committee
submits its recommendations;
(f) The agency responsible for providing the necessary support to
the advisory committee, including the name of the President's delegate,
agency, or organization responsible for fulfilling the reporting
requirements of sec. 6(b) of the Act (codified at 5 U.S.C. 1005(b)), if
appropriate;
(g) The estimated annual costs to operate the advisory committee in
dollars and person years (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.

[[Page 27684]]

Sec. 102-3.80 How are charter amendments accomplished?

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 in paragraphs (a) through (c) of this section:
(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.); 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 [Reserved]

Subpart C--How Are Advisory Committees Managed?

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.

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, accessible, 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 sec. 10 of the Act (codified at 5
U.S.C. 1009). Such websites must be in compliance with E.O. 13166,
relevant sections of the Rehabilitation Act, as amended, 29 U.S.C. 794,
and the 21st Century Integrated Digital Experience Act (IDEA). Section
3(e) of 21st Century 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. IDEA, Public Law 115-336, 132 Stat. 5025.
(c) Promote diversity, equity, and inclusivity. Once the Federal
advisory committee is formed, committee chairs and DFOs should foster a
culture of diversity, equity, 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.

Sec. 102-3.100 What are the responsibilities and functions of GSA?

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

[[Page 27685]]

(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.

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);
(g) Review, at least annually, the need to continue each existing
advisory committee, consistent with the public interest and the purpose
or functions of each advisory committee;
(h) Determine that rates of compensation for members (if they are
paid for their services) and staff of, and experts and consultants to
advisory committees are justified and that levels of agency support are
adequate;
(i) Develop procedures to assure that the advice or recommendations
of advisory committees will not be inappropriately influenced by the
appointing authority or by any special interest, but will instead be
the result of the advisory committee's independent judgment;
(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.

Sec. 102-3.110 What are the responsibilities of a chairperson of an
independent Presidential advisory committee?

The chairperson of an independent Presidential advisory committee
must:
(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
(c) Consult with the Secretariat in advance regarding any proposal
to close any meeting in whole or in part.

Sec. 102-3.115 What are the responsibilities and functions of an
agency CMO?

In addition to implementing the provisions of sec. 8(b) of the Act
(codified at 5 U.S.C. 1007(b)), the CMO will carry out all
responsibilities delegated by the agency head and manage the agency
FACA program. 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; attending GSA Government-
wide FACA training and recommending this training to agency staff, as
appropriate; and attending Interagency Committee on Federal Advisory
Committee Management meetings. The CMO should create and maintain an
agency website to further the public's understanding of the agency's
FACA program. The CMO also should ensure that secs. 10(b), 12(a), and
13 of the Act (codified at 5 U.S.C. 1009(b), 1011(a), and 1012,
respectively) are implemented by the agency to provide for appropriate
recordkeeping. Records to be kept by the CMO include, but are not
limited to--
(a) Charter and membership documentation. A set of filed charters
for each advisory committee and membership lists for each advisory
committee and subcommittee;
(b) Annual comprehensive review. Copies of the information provided
as the agency's portion of the annual comprehensive review of Federal
advisory committees, prepared according to Sec. 102-3.175(b);
(c) Agency guidelines. Agency guidelines maintained and updated on
committee management operations and procedures; and
(d) Closed meeting determinations. Agency determinations to close
or partially close advisory committee meetings required by Sec. 102-
3.105(f).

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 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 sec. 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 relevant sections of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794) 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 sec. 10(b) of the Act
(codified at 5 U.S.C. 1009(b)).

[[Page 27686]]

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.

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 relevant sections of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. 794.

Subpart D--Advisory Committee Meeting and Recordkeeping Procedures

Sec. 102-3.135 What does this subpart cover and how does it apply?

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

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 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 relevant sections 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 relevant sections of the Rehabilitation Act, as amended, 29 U.S.C.
794, 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.

[[Page 27687]]

(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.

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.

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 relevant sections of the Rehabilitation Act, as amended,
29 U.S.C. 794; 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,
considering the most appropriate methods to reach committee
stakeholders, and with as much advance notice as possible.

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
Sec. 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
(d) Assure public access to determination. The agency head or the
chairperson of an independent Presidential advisory committee must make
a copy of the determination available to the public upon request.

Sec. 102-3.160 What activities of an advisory committee are not
subject to the notice and open meeting requirements of the Act?

The following activities of an advisory committee are excluded from
the procedural requirements contained in this subpart:
(a) Preparatory work. Meetings of two or more advisory committee or
subcommittee members convened solely to gather information, conduct
research, or analyze relevant issues and facts in preparation for
deliberation by advisory committee members in a public meeting of the
advisory committee, or deliberation by subcommittee members in a public
meeting of the subcommittee (where applicable). These meetings to
conduct preparatory work do not include deliberation among advisory
committee or subcommittee members; and
(b) Administrative work. Meetings of two or more advisory committee
or subcommittee members convened solely to discuss administrative
matters of the advisory committee or subcommittee (such as meeting
logistics) or to receive administrative information from a Federal
officer or agency (such as a briefing on ethics or FACA procedural
requirements).

Sec. 102-3.165 How are advisory committee meetings documented?

(a) The agency head or, in the case of an independent Presidential
advisory committee, the chairperson must ensure that detailed minutes
of each advisory committee meeting, including one that is closed or
partially closed to the public, are kept. The chairperson of each
advisory committee must certify the accuracy of all minutes of advisory
committee meetings.
(b) The minutes must include:
(1) The time, date, and place (or electronic format) of the
advisory committee meeting;
(2) A list of the persons who were present at the meeting,
including advisory committee members and staff, agency employees, and
members of the public who presented oral or written statements;
(3) An accurate description of each matter discussed and the
resolution, if any, made by the advisory committee regarding such
matter; and
(4) Copies of each report or other materials received, issued, or
approved by the advisory committee at the meeting.
(c) The DFO must ensure that minutes are certified for accuracy by
the chairperson within 90 calendar days of the meeting to which they
relate. Agencies should post the meeting minutes on the agency advisory
committee website (if one exists) not later than 14 calendar days after
the meeting minutes have been certified.

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

[[Page 27688]]

fully the work undertaken by the advisory committee. Although certain
advisory committee records may be withheld under an exemption to the
Freedom of Information Act (FOIA), agencies may not require members of
the public or other interested parties to use FOIA procedures in order
to obtain records available under sec. 10(b) of the Act (codified at 5
U.S.C. 1009(b)).

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 sec. 6(b) of
the Act (codified at 5 U.S.C. 1005(b)) must be prepared and transmitted
to the Congress detailing the disposition of the advisory committee's
recommendations. These reports are prepared and transmitted to the
Congress 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
sec. 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 sec. 10(d) of the Act (codified at 5 U.S.C. 1009(d)),
advisory committees holding closed or partially closed meetings must
issue reports at least annually, setting forth a summary of activities
and such related matters as would be informative to the public
consistent with the policy of 5 U.S.C. 552(b).
(d) Advisory committee reports. Subject to 5 U.S.C. 552, copies of
each report made by an advisory committee, including any report of
closed or partially closed meetings as specified in paragraph (c) of
this section and, where appropriate, background papers prepared by
experts or consultants, must be filed with the Library of Congress as
required by sec. 13 of the Act (codified at 5 U.S.C. 1012) for public
inspection and use.
(e) Advisory committee records. Official records generated by or
for an advisory committee must be retained for the duration of the
advisory committee. Upon termination of the advisory committee, the
records must be processed in accordance with the Federal Records Act,
44 U.S.C. chapters 21 and 29 through 33, and regulations issued by the
National Archives and Records Administration (see 36 CFR parts 1220,
1222, 1228, and 1234), or in accordance with the Presidential Records
Act, 44 U.S.C. chapter 22.

Subpart E--How Does This Subpart Apply to Advice or Recommendations
Provided to Agencies by the National Academy of Sciences or the
National Academy of Public Administration?

Sec. 102-3.180 What does this subpart cover and how does it apply?

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

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 sec. 15(b) of the Act (codified
at 5 U.S.C. 1014(b)); or
(3) In the case of NAPA, the academy certifies that it has complied
substantially with the requirements of sec. 15(b) (1), (2), and (5) of
the Act (codified at 5 U.S.C. 1014(b)(1), (2), and (5), respectively).
(b) No agency management or control. Agencies must not manage or
control the specific procedures adopted by each academy to comply with
the requirements of sec. 15 of the Act (codified at 5 U.S.C. 1014) that
are applicable to that academy. In addition, however, any committee
created and used by an academy in the development of any advice or
recommendation to be provided by the academy to an agency must be
subject to both actual management and control by that academy and not
by the agency.
(c) Funding agreements. Agencies may enter into contracts, grants,
and cooperative agreements with NAS or NAPA that are consistent with
the requirements of this subpart to obtain advice or recommendations
from such academy. These funding agreements require, and agencies may
rely upon, a written certification by an authorized representative of
the academy provided to the agency upon delivery to the agency of each
report containing advice or recommendations required under the
agreement that:
(1) The academy has adopted policies and procedures that comply
with the applicable requirements of sec. 15 of the Act (codified at 5
U.S.C. 1014); and
(2) To the best of the authorized representative's knowledge and
belief, these policies and procedures substantially have been complied
with in performing the work required under the agreement.

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

[[Page 27689]]

provision is stayed or determined to be invalid, it is GSA's intention
that the remaining provisions shall continue in effect.

[FR Doc. 2024-08215 Filed 4-17-24; 8:45 am]
BILLING CODE 6820-14-P

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