Federal Advisory Commi
Handbook
Office of Cooperative Environmental Management
U.S. Environmental Protection Agency
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
THE ADMINISTRATOR
MEMORANDUM
SUBJECT: EPA's New Federal Advisory Committee Management Handbook
TO: Designated Federal Officers
It is my pleasure to present EPA's new Federal Advisory Committee Management
Handbook - an excellent guide for Designated Federal Officers, their supervisors, and staff.
The Federal Advisory Committee Act requires each agency head to establish uniform
administrative guidelines, and this handbook fulfills that requirement. It compares favorably to
other agencies' manuals and is written in a reader-friendly style that eliminates bureaucratic
language and provides clear guidance on all aspects of managing a committee Some topics
covered include deciding whether a proposed committee is subject to FACA; how to establish a
committee, DFO roles and responsibilities; recruiting and appointing members; meetings; charter
renewals; record keeping; and terminating a committee when it has completed its work.,
[ would like to thank everyone who helped draft and review this excellent reference,
especially the DFOs and Office of General Counsel employees who provided the Office of
Cooperative Environmental Management with comments on the Handbook's contents.
Please take some time and read the Handbook carefully. I am confident that you will find
its suggestions and lips helpful
Stephen L. Johnson
Acting Deputy Administrator
Attachment
-------
Federal Advisory Committee Handbook
OD
Q.
LLJ
Federal Advisory Committee Handbook
Office of Cooperative Environmental Management
U.S. Environmental Protection Agency
October 2003
October 15,2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
Federal Advisory Committee Handbook
Table of Contents
List of Acronyms
Introduction i
1. Deciding Whether Your Committee is Subject to FACA 1-1
1.0 Overview 1-1
1.1 Advisory Committee Defined 1-1
1.2 Types of Advisory Committees 1-4
1.3 Groups Subject to FACA 1-6
1.4 Groups Not Subject to FACA 1-8
2. Understanding Roles and Responsibilities Under FACA 2-1
2.0 Overview 2-1
2.1 Roles and Responsibilities 2-1
3. Establishing a Discretionary FAC and Preparing the Charter 3-1
3.0 Overview 3-1
3.1 Initiating a Discretionary Advisory Committee '. 3-1
3.2 How to Establish a Discretionary Advisory Committee 3-3
3.3 The Establishment Request Package "... 3-5
3.4 The Advisory Committee Charter 3-15
3.5 FAC Management Tips 3-18
4. Establishing a Non-discretionary FAC and Preparing the Charter 4-1
4.0 Overview 4-1
4.1 Initiating a Non-Discretionary Advisory Committee 4-1
4.2 Establishing a Non-Discretionary Advisory Committee 4-2
4.3 The Establishment Request Package 4-4
4.4 Preparing the Establishment Charter 4-14
4.5 Non-discretionary Committee Management Tips 4-17
October 15,2003
-------
Federal Advisory Committee Handbook
5. Selecting and Appointing Committee Members 5-1
5.0 Overview 5-1
5.1 DFO Responsibilities 5-1
5.2 Membership Selection Process 5-3
5.3 Appointing Committee Members 5-10
5.4 Membership Pitfalls to Avoid 5-19
6. Creating and Amending Federal Advisory Committee Bylaws 6-1
6.0 Overview 6-1
6.1 Bylaws vs. Ground Rules and Operating Principles 6-2
6.2 Drafting Responsibilities 6-2
6.3 When Bylaws Are Drafted 6-2
6.4 Amending Bylaws 6-2
6.5 Common Bylaw Sections 6-3
6.6 Other Miscellaneous Sections 6-12
6.7 Tips 6-12
7. Holding Federal Advisory Committee Meetings and Preparing Work
Products
7.0 Overview 7-1
7.1 DFO Responsibilities 7-1
7.2 Initial Meeting Considerations 7-3
7.3 Announcing Meetings to the Public 7-6
7.4 Planning the First Meeting 7-9
7.5 Running Committee Meetings 7-15
7.6 Preparing Meeting Products 7-20
7.7 Holding Closed Meetings 7-23
7.8 Ethics ..'. 7-26
8. Renewing or Re-establishing a Discretionary Advisory Committee and
Amending the Charter 8-1
8.0 Overview 8-1
8.1 Renewal of a Discretionary Advisory Committee 8-2
8.2 Process for Renewing a Discretionary Advisory Committee 8-2
8.3 How to Re-establish a Committee 8-9
8.4 When to Amend the Charter 8-10
8.5 How to Make Major Amendments to a Charter 8-11
October 15, 2003
-------
Federal Advisory Committee Handbook
8.6 How to Make Minor Amendments to a Charter 8-14
8.7 Charter Amendment Tips 8-14
9. Documentation and Record Keeping 9-1
9.0 Overview 9-1
9.1 DFO Responsibilities 9-1
9.2 Records and Public Access Requirements 9-1
9.3 Documenting Meetings and Activities 9-6
9.4 Periodic and Annual Reports 9-11
10. Terminating a Federal Advisory Committee 10-1
10.0 Overview 10-1
10.1 Committee Termination 10-1
10.2 How to Terminate a Committee 10-3
10.3 Final Disposition of Committee Records 10-3
Appendix A - Federal Advisory Committee Act A-l
Appendix B - General Services Administration Final Rule B-l
Appendix C - Executive Order No. 12024 C-l
Appendix D - Executive Order No. 12838 D-l
Appendix E - EPA Ethics Advisory 97-15 E-1
Appendix F - "Conflict of Interest and the Special Government Employee" .... F-l
October 15, 2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
Federal Advisory Committee Handbook
ACRONYMS
AA Assistant Administrator
CMO Committee Management Officer
CPO Core Program Office
DA Deputy Administrator
DAA Deputy Assistant Administrator
DFO Designated Federal Officer
E.O. Executive Order
FAC Federal Advisory Committee
FACA Federal Advisory Committee Act
FAR Federal Acquisition Regulations
FOIA Freedom of Information Act
FR Federal Register
FTE Full Time Employee
GISA Government in Sunshine Act
GSA General Services Administration
LOG Library of Congress
OCEM Office of Cooperative Environmental Management
OCIR Office of Congressional and Intergovernmental Relations
OEX Office of the Executive Secretariat
OGC Office of General Counsel
PRA Public Records Act
RA Regional Administrator
SGE Special Government Employee
October 15, 2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15, 2003
-------
Federal Advisory Committee Handbook
Introduction
Purpose
The purpose of this handbook is twofold. First, this document assists
Agency staff in determining whether a committee or other working
group that is being formed is subject to the Federal Advisory
Committee Act, its implementing regulations, and the Agency's
advisory committee policies. Second, this document provides
guidance for complying with the statutory and regulatory
requirements and Agency policies and procedures that apply
throughout the life cycle of a federal advisory committee (FAC),
from its formation to its termination. This handbook provides
Agency staff with an overview and understanding of the entire
federal advisory committee process, and serves as a reference guide
to ensure compliance with all of the requirements and policies that
apply to federal advisory committees. In addition, this document
provides examples and suggestions to assist Agency staff in creating
and running a Federal advisory committee, as well as reference
materials, sample documents, forms, templates, and checklists.
Audience
Disclaimer: The statutory provisions described in this handbook
are legally binding. EPA's policies do not carry such legal weight
and are not legally enforceable as indicated by the use of non-
mandatory language, such as "may," "should," and "can." This
handbook also outlines EPA's recommended procedures for
establishing and managing EPA's federal advisory committees.
This handbook is directed to Agency officials specifically
Designated Federal Officers (DFOs) who have responsibilities for
ensuring compliance with the Federal Advisory Committee Act and
its implementing regulations. Specifically, this document is directed
to those Agency officials charged with making determinations of
whether a committee is subject to the federal government's
requirements for federal advisory committees. Agency officials
involved in the formation and management of a federal advisory
committee can also use this handbook to better understand their roles
and responsibilities in the federal advisory committee process, better
understand Agency policies that relate to advisory committees, and
October 15,2003
Pagei
-------
Federal Advisory Committee Handbook
as a guidance for complying with statutory and regulatory
requirements. Please note that the word "you" as used in this
document refers to the Designated Federal Officer, unless otherwise
noted. The DFO is responsible for the day-to-day operations and
management of an advisory committee.
Background
Historically, advisory committees have played an important role in
shaping the programs and policies of the federal government. Since
President George Washington sought the advice of such a committee
during the Whiskey Rebellion of 1794, the contributions made by
these groups have been impressive and diverse. Through enactment
of the Federal Advisory Committee Act (FACA) in 1972 (last
amended in 1997), Congress formally recognized the value of
seeking the advice and assistance of the public. Congress also
sought to assure that:
Advisory committees provide advice that is relevant,
objective, and developed in a forum that is open to the public;
Agencies disband advisory committees that have completed
their work; and
Agencies keep records of the work done and funds spent by
advisory committees.
FACA establishes a system that governs the creation and operation
of advisory committees in the Executive Branch of the federal
government. The purpose of FACA is to ensure that: 1) valid needs
exist for establishing and continuing advisory committees; 2)
commitee proceedings generally are as open to the public as is
feasible; and 3) Congress is regularly provided with certain
information about advisory committees and their activities. The U.S.
General Services Administration (GSA) has overall responsibility for
overseeing the implementation of FACA across all federal
departments and agencies. Each federal agency that establishes or
utilizes advisory committees must adhere to both FACA
requirements and GSA regulations. GSA has also developed
guidelines to help agencies comply with FACA.
October 15, 2003
Page ii
-------
Federal Advisory Committee Handbook
Exhibit 1 identifies the principal legal and programmatic documents
that may apply to the management of federal advisory committees.
Not all advisory committees are subject to FACA. Congress has the
authority to exempt specific advisory groups from the requirements
of FACA through legislation. Meetings that are not meant to provide
group advice, such as public meetings, are also not subject to FACA.
You can find a list of types of meetings that are not subject to FACA
in GSA's regulations.
Advisory committee member expertise provides the federal
government access to information and advice on a broad range of
issues affecting its policies and programs that it may not have had
easy access to otherwise. The FACA process provides the public an
opportunity to provide input into the advisory committee's decision
and, in turn, into the federal government's decision making process.
Exhibit 1
KEY LAWS, REGULATIONS, AND OTHER DOCUMENTS
THAT GOVERN FEDERAL ADVISORY COMMITTEES
The following legal documents establish the principal FACA requirements:
The Federal Advisory Committee Act of 1972, as Amended (5 USCApp.2)
U.S. GSA, Final Rule on Federal Advisory Committee Management (41 CFR. Part 102-3)
Other legal documents that may apply to the management of federal advisory committees include:
Negotiated Rulemaking Act of 1990 (5 USC § 581 -590)
Government in the Sunshine Act (5 USC § 552(c) 552b(c))
Freedom of Information Act (5 USC §552)
Executive Order 12838, Termination and Limitation of Federal Advisory Committees
Policy documents that may apply to the management of EPA advisory committees include:
EPA Ethics Advisory 97-15, "Annual Ethics Training for Special Government Employees"
EPA Public Involvement Policy (68 FR 33946, June 17, 2003)
OMB Circular A-13S, Management of Federal Advisory Committees
October 15, 2003 Page iii
-------
Federal Advisory Committee Handbook
Document
Organization
Exhibit 2 provides an overview of the federal advisory committee
process and the key elements of this process. This handbook is
organized according to these key elements, as follows:
Chapter 1 addresses the key question that must be asked at the
outset of the process: "Is this committee subject to FACA?" This
chapter will help you determine whether FACA requirements apply
to the committee under consideration, and whether or not to proceed
to the remaining chapters of this handbook.
Chapter 2 provides an overview of the roles of various Agency
officials who have responsibilities once it has been determined that a
committee is subject to FACA.
Chapter 3 provides guidance on establishing a discretionary federal
advisory committee, including how to prepare an establishment
package and a committee charter.
Chapter 4 outlines the steps to convene a non-discretionary
federal advisory committee and prepare the required documentation.
Chapters 5 addresses the process for selecting and appointing
members to the federal advisory committee, including selection
criteria and membership guidelines.
Chapters 6 provides an overview on the process of establishing by-
laws for the federal advisory committee.
Chapter 7 discusses how to run a federal advisory committee.
Chapter 8 provides guidance on renewing or re-establishing a pre-
existing federal advisory committee, and also discusses how and
when to amend the committee charter.
Chapter 9 outlines maintaining appropriate and adequate records, as
well as how to best document committee activities and decisions.
Chapter 10 provides an overview of the procedures for terminating
a federal advisory committee.
October 15, 2003
Page iv
-------
Exhibit 2:
OVERVIEW OF THE FEDERAL ADVISORY COMMITTEE (FAC) PROCESS
Chapter 1
Chapter 2
Chapters
Chapters 4
Chapters
Chapters
Chapter 7
Chapters
Chapter 9
Chapter 10
Determining Whether Your Committee is Subject to FACA
- Definition of advisory committee
- Different types of advisory committees
- Groups subject to FACA
- Groups not subject to FACA
Understanding Your Roles and Responsibilities under FACA
-Congress
- General Services Administration
-EPA Officials
- Consultants
Establishing a Discretionary FAC and Preparing the Charter
- Establishment process for discretionary FACs
- Establishment package, generally
-Transmlttal memorandums
-Justification
- Cost estimates
- Federal registry notices
- Charter components and requirements
Establishing a Non-Discretionary FAC and Preparing the Charter
- Establishment process for non-discretionary FACs
- Establishment request package
-Filing the charter
Selecting and Appointing Members
- Membership considerations
- Identifying prospective committee members
- Evaluating committee members
- Appointing committee members
- Committee membership administration
-Tips on committee membership
Establishing the Bylaws
- Bylaws v. ground rules and operating principles
- Drafting responsibilities
-When bylaws are drafted
- Common bylaw sections
- Other miscellaneous sections
Running the FAC
- Committees and subcommittees
- Establishing the goals, objectives, and budget
- Tasks prior to first meeting
- Public involvement/meeting announcements
- Closed meetings
- Staff roles and responsibilities
Renewing or Re-establishing a FAC and Amending the Charter
-Purpose of renewal
- Renewal process for discretionary FACs
- Re-establishment process for discretionary FACs
- Renewal charter elements
- Major and minor charter amendment process
Keeping Records and Documenting Committee
Activities and Decisions
- General requirements
- Documentation
- Required reports
-Access to records
- Publication notification requirements
Terminating a FAC
- Basis for terminating a FAC
- Process for terminating a FAC
Is the Committee
Subject to FACA?
Roles and
Responsibilities
Establishing a
Discretionary FAC
1
r
Establishing a
Non-Discretionary FAC
Selecting and
Appointing
Establishing the
Bylaws
Running the FAC
Renewing or Re-
Establishingthe
FAC
Record keeping and
Documentation
Terminating the FAC
-------
Federal Advisory Committee Handbook
The Appendices to this document provide reference materials, including
copies of the Act and GSA's regulation on federal advisory committees.
Additional resources may be provided at the end of the chapter in which
they are referred.
October 15, 2003 Page vi
-------
-------
Federal Advisory Committee Handbook
Chapter 1;
1.0 Overview
Deciding Whether Your Committee is
Subject to FACA
This chapter will help you determine whether your committee is
subject to the requirements of the Federal Advisory Committee Act
(FACA). First, this chapter provides a definition of an advisory
committee according to the FACA. Whether your committee meets
this definition is the threshold question in deciding whether it is
subject to the Act. If your committee meets this definition, there
are several other considerations you will need to evaluate to
determine whether your committee will be subject to FACA. To
that end, this chapter defines the types of committees that are
subject to FACA and outlines the characteristics of groups that are
subject to the Act. Finally, this chapter discusses those groups that
are exempt from FACA, and provides contact information if you
still have questions regarding your committee and FACA. Exhibit
1-1 provides an overview of the process for making these
determinations and identifies the sections within this chapter that
elaborate on each step.
1.1 Advisory
Committee
Defined
An advisory committee is defined by FACA as any committee,
board, commission, council, conference, panel, task force, or other
similar group, or any subcommittee or other subgroup, that is
established or utilized by the federal government to obtain advice or
recommendations and is not composed solely of full-time or
permanent part-time federal officers or employees.
FACA advisory committees may only provide advice or
recommendations and may not establish law or policy, unless
specifically provided otherwise by statute or Presidential directive.
October 15, 2003
Page 1-1
-------
Exhibit 1-1:
DECIDING WHETHER YOUR COMMITTEE IS SUBJECT TO FACA
You form or are
about to form an EPA
committee
Is your committee
established or
utilized by a
Federal Official
to provide
advice or
recommendations?
DISCRETIONARY
ADVISORY
COMMITTEE
Has your committee
been formed by
Presidential
directive or
directing statute?
NON-DISCRETIONARY
ADVISORY
COMMITTEE
have characteristics
of those subject to
FACA?
Is your committee
specifically
.-I.,afjuA tm
exciuaeo From
FACA7
Your committee is
Your committee b
not subject to
FACA requirements
FACA requirements
-------
Federal Advisory Committee Handbook
Essentially, if EPA establishes a group that includes individuals
who are not federal employees, and the purpose of the group is to
provide advice or recommendations, then that group is an advisory
committee and might be subject to FACA. Once it is determined
that your group is an advisory committee, you should next
determine whether it is a discretionary or non-discretionary
advisory committee. These are discussed further in Section 1.2 but
you may contact the Committee Management Officer (CMO) for
assistance in this area-
Congress can exempt a specific advisory committee from .the FACA
requirements through legislation. In addition, the General Services
Administration (GSA) regulations set out several types of groups
that are not subject to FACA (see GSA Final Rule, 41 CFR §102-
3.40). These exceptions are discussed later in this chapter.
Benefits of establishing a FAC:
You receive independent advice from members of the public and
individuals that are experts in their fields.
You are able to obtain diverse points of view about your topic.
You and EPA are able make better informed decisions due to the
vetting of various options by your committee.
You can facilitate improved buy-in for the decisions being made
through the experience the FAC provides and the added value it
brings.
7.7.2
Considerations
Before
Establishing a
FAC
Before determining whether you can establish a new discretionary
advisory committee, you should answer several key questions.
Specifically, you should be able to answer "yes" to all of the
following questions before you move forward with the committee
establishment process:
Can any more discretionary committees be established within
October 15, 2003
Page 1-3
-------
Federal Advisory Committee Handbook
the Agency based on the total number of FACs allowed by
GSA?
Will your committee be the only EPA advisory committee
providing advice on the issues or topics you have identified?
(That is, the advice you are providing is not readily available
from another source in the federal government). If a group is
only going to provide information to EPA, that group is not
subject to the requirements of FACA.
Will the committee provide an important and unique perspective
or viewpoint on EPA programs or operations?
Will committee deliberations result in recommendations about
the creation, change, or elimination of regulations, guidelines, or
rules that govern EPA business? Will the deliberations result in
recommendations for significant improvements in the services
provided by EPA or generate any cost reductions?
1.2 Types of
Advisory
Committees
Note: The program office should consider the possibility
of establishing a subcommittee under an existing federal
advisory committee, rather than chartering a new
committee.
There are two types of advisory committees: non-discretionary
and discretionary. A non-discretionary advisory committee is one
that is specifically required by statute or mandated by the President.
A discretionary advisory committee is established at the discretion
of the head of a federal agency. An advisory committee that is
authorized, but not specifically required by law, is also considered a
discretionary committee.
Note: At EPA the primary committee is often referred to
as a 'Tier 1" committee, and a subcommittee as a 'Tier 2"
committees
October 15, 2003
Page 1-4
-------
Federal Advisory Committee Handbook
There are two subtypes of committees - Presidential Advisory
Committees and Negotiated Rulemaking Advisory Committees.
Some Presidential advisory committees are subject to FACA in
addition to other related laws and regulations. Negotiated
rulemaking advisory committees are subject to FACA, in addition
to other laws and regulations. Details on these two subtypes follow.
Negotiated Rulemaking Advisory Committees are subject to
FACA requirements in addition to other laws and regulations.
Presidential Advisory Committees are sometimes subject to
FACA requirements, in addition to other laws and regulations.
7.2.7 Presidential
Advisory
Committee
7.2.2 Negotiated
Rulemaking
Advisory
Committee
A Presidential advisory committee advises the President. It can be
either a discretionary or non-discretionary committee. Such
committees are established by the President through an Executive
Order or other Presidential directive, and can also be established by
Congress. An outside group that is utilized by the President to
obtain advice or recommendations may also be subject to FACA.
Presidential advisory committees are subject to both FACA and the
GSA regulations in the same manner as other advisory committees
The designation "independent Presidential advisory committee"
refers to a Presidential advisory committee that has not been
assigned to a particular Agency for administrative and other
support. GSA provides support for these committees on a
reimbursable basis.
A negotiated rulemaking advisory committee is a type of
discretionary federal advisory committee established under the
authority of the Negotiated Rulemaking Act and FACA. In a
negotiated rulemaking proceeding, a balanced group of
stakeholders representing the regulated public, communities, public
interest groups, and state and local governments, and
representatives of the federal agency negotiate the text, outline, or
concept of a rule before it is promulgated. If the committee reaches
consensus on the rule, it transmits a committee report containing the
recommended text of the rule to the federal agency for
October 15, 2003
Page 1-5
-------
Federal Advisory Committee Handbook
consideration for its proposed rule. The proposed rule is still
subject to general rulemaking requirements, including public notice
and comment. If consensus is not reached the committee report
should outline the areas where consensus was reached, as well as
any other information, recommendations or materials the committee
considers appropriate.
Negotiated rulemaking advisory committees are subject to the
requirements of the Negotiated Rulemaking Act as well as FACA.
For information on using negotiated rulemaking, see the
"Negotiated Rulemaking Sourcebook" published by the
Administrative Conference of the United States, 1995. For a fact
sheet on the source book, visit the web:
http://www.eDa.gov/ogcadr01/factsheetregneg.Ddf
1.2.3 Committee
Characteristics
1.3 Groups
Subject to
FACA
Once you assess whether your group is a non-discretionary or
discretionary advisory committee, you will need to thoroughly
understand the characteristics of groups that require formation
under FACA. Then, you need to determine whether your group has
all of these characteristics. If so, you may be required to follow the
particular formation requirements of either a non-discretionary or
discretionary advisory committee, depending on your group's
status, unless FACA does not cover your group or specifically
exempts it as discussed later in this chapter.
The Federal Advisory Committee Act generally applies to groups
that meet the following criteria:
Are established or "utilized" by a federal official;
Include at least one member who is not a federal government
employee; and
Provide group advice and recommendations to the Agency.
In addition, groups subject to FACA usually have:
A fixed membership (i.e., the number and composition of
members is set or non-discretionary);
October 15, 2003
Page 1-6
-------
Federal Advisory Committee Handbook
An organizational structure (e.g., officers and staff); and
A clearly defined purpose.
It is important to note that at least one court has held that a meeting
of individuals that did not meet the criteria listed above was still
subject to FACA as that group provided advice to an agency. The
purpose of your committee (providing advice, information
exchange) is more important than the characteristics when
determining whether or not it is subject to FACA.
Note: There is no "one meeting" exception to FACA.
A group that meets only once can still be subject to FACA.
If EPA or another federal agency forms a group, it is considered to
have been "established" by the federal government. A group that is
established by a non-federal entity is considered to be "utilized" by
the federal government if the President or a federal agency exerts
"actual management or control" over the group. Criteria considered
in determining whether the federal government exercises actual
management or control include whether a federal agency selects (or
controls the selection of) members, sets the agenda, and/or funds
the group's work.
You should address questions regarding the application of FACA to
a group established by an entity outside of EPA to the Office of
General Counsel's (OGC) FACA attorney.
Note: Committees established or utilized by the executive
branch in the interest of obtaining advice or recommendations
may be subject to FACA.
October 15,2003
Page 1-7
-------
Federal Advisory Committee Handbook
Each agency is responsible for ensuring that its advisory
committees comply with FACA, though GSA remains responsible
for the overall management and implementation of FACA
throughout the executive branch. GSA guidance and rules have
been published to help agencies comply with the requirements of
FACA and successfully manage their advisory committees.
FACA and the GSA rule provide the requirements for establishing,
managing, and terminating a federal advisory committee. In
addition there are other laws, executive orders, rules, and policies
that should be taken into account. These are provided in the
appendices to this document. Understand that EPA policies and
orders serve as guidance to EPA staff on the roles and
responsibilities under FACA and the GSA rules. A more detailed
discussion of the roles and responsibilities for the key players in the
federal advisory committee process, including the Designated
Federal Officer (DFO) and the Committee Management Officer, are
discussed in Chapter Two.
Please note: It is EPA policy that subgroups and/or subcommittees
(except "working groups") of a chartered advisory committee are
subject to all FACA requirements, including recordkeeping,
balanced membership, and openness requirements.
1.4 Groups Not Exhibit 1-2 describes the types of groups that are not subject to
Subject to FACA. If your committee does not fall within these exceptions,
FACA please proceed to Chapter Two to gain an understanding of the roles
and responsibilities under FACA. If you have questions regarding
whether a particular group is subject to FACA or regarding the
scope of FACA, contact the OGC FACA attorney.
October 15, 2003 Page 1-8
-------
Federal Advisory Committee Handbook
Exhibit 1-2
GROUPS NOT SUBJECT TO FACA
1. Intragovemmental committees composed wholly of full-time or permanent part-time
officers or employees of the federal government.
2. Groups assembled to obtain the advice of individual attendees rather than advice or
recommendations from the group as a whole, including public meetings. Such a meeting
could become subject to FACA if the group were to provide collective advice, rather than
individual advice.
3. Groups assembled to exchange information or facts, including identifying issues that the
Agency may wish to address without providing advice or recommendations concerning the
priority and approach the Agency should take to resolve those issues. Such a meeting
could become subject to FACA if the focus of the group were to move from information
exchange to providing collective advice.
4. Local civic groups whose primary function is rendering a public service with respect to a
federal program.
5. Groups established to advise state or local officials, such as state or local committees,
commissions, boards, councils or similar groups established to make recommendations to
state or local officials or agencies;
6. Groups that request a meeting (or a series of meetings) with federal officials in order to
present the group's views on a particular subject.
7. People or organizations that have a contractual relationship with the Agency, (e.g., a
consulting firm hired by EPA to provide advice).
8. Committees that are established to perform primarily operational functions. Operational
functions are those specifically authorized by statute or Presidential directive, such as
making or implementing government decisions or policy. These committees generally
have:
1) Specific functions and/or authorities provided by Congress in law or by
Presidential directive;
2) The ability to make and implement traditionally governmental decisions; and
3) The authority to perform specific tasks to implement a federal program. An
operational committee that alters its function to become primarily advisory in
nature may be subject to FACA. For additional information on operational
committees contact the OGC FACA attorney.
October 15,2003 Page 1-9
-------
Federal Advisory Committee Handbook
Exhibit 1-2
GROUPS NOT SUBJECT TO FACA, CONTINUED
9. Meetings held exclusively between federal officials and elected officials of state, Tribal, or
local governments (or their authorized designated employees) to exchange views,
information or advice relating to the management or implementation of federal programs
established pursuant to public law that explicitly or inherently share intergovernmental
responsibilities or administration.
10. Any advisory committee established by the National Academy of Sciences (NAS) or the .
National Academy of Public Administration (NAPA), provided EPA does not have actual
management or control of the committees, and the NAS or NAPA certifies that it has
substantially complied with the applicable requirements in 5 U.S.C. App. 2 § 15(b).
11. Advisory committees established or utilized by the Central Intelligence Agency and the
Federal Reserve System.
12. Committees specifically exempted from FACA by statute.
13. Committees or groups created by non-federal entities such as contractors or private
organizations, provided that these committees are not actually managed or controlled by
the federal government.
October 15, 2003
Page 1-10
-------
-------
Federal Advisory Committee Handbook
Chapter 2: Understanding Roles and Responsibilities
Under FACA
2.0 Overview
2.1 Roles and
Responsibilities
2.1.1 Congress
2.1.2 GSA
Once you determine that your advisory committee is subject to
FACA, you should find out who is involved in the EPA Federal
advisory committee (FAC) process and what their responsibilities
are. Several entities are involved in the FAC process, including
Congress, the GSA, and various offices within the Agency. The
roles and responsibilities of these entities are the same for all federal
advisory committees established or used by EPA. A FAC must
comply with all FACA requirements unless the committee is
specifically exempted by statute. In addition, EPA has established
policy concerning public access to subcommittee meetings and
activities, that is more stringent than is required by the GSA
regulations.
To assist you in managing and supporting EPA FACs, this chapter
provides an overview of the roles and responsibilities for the key
parties involved in the advisory committee process. This chapter also
addresses the role of consultants within a FAC.
Congress has the authority to direct EPA and other federal agencies
to establish federal advisory committees. In addition, congressional
standing committees in both the Senate and the House monitor each
Agency's federal advisory committees through the charter filing
process and GSA's annual report to Congress.
The General Services Administration is responsible for advisory
committee management across the federal government. Under
Executive Order 12024, the President delegated to the Administrator
of GSA all of the functions vested in the President by the Act, with
the exception of an annual report to Congress. GSA promulgated
41 CFR Part 102-3, which contains specific rules and guidance for
Executive Branch agencies regarding the establishment, operation,
and termination of FACs. EPA has adopted the GSA rules for all
FACs.
October 15,2003
Page 2-1
-------
Federal Advisory Committee Handbook
GSA has established the Committee Management Secretariat to
oversee the federal government's implementation of FACA. The
primary responsibilities of the Committee Management Secretariat
include: conducting annual government-wide reviews of advisory
committee performance; developing and delivering training on
FACA and related statutes, policies, and procedures; maintaining
internet systems to facilitate the collection and use of the
information required by FACA; identifying measures that can be
used to evaluate the performance of advisory committees;
recommending improvements on meeting the objectives of FACA to
Congress and the President; promulgating regulations implementing
FACA; and developing policy applicable to the entire federal
advisory committee system.
2.7.3 EPA. The EPA Administrator is responsible for the establishment,
management, information sharing, and termination of EPA's federal
advisory committees. FACA, the Negotiated Rulemaking Act, and
GSA regulations set out the responsibilities of the EPA
Administrator. The Administrator has delegated most of these
responsibilities to other EPA personnel, though the Administrator
remains fully accountable for ensuring compliance with the statutory
and regulatory requirements throughout the life of the advisory
committee.
Other key players in the process of establishing and managing a
FAC include the Assistant Administrator, the Committee
Management Officer (CMO), and the Designated Federal Officer
(DFO). The following summarizes the responsibilities of these key
players.
The Assistant Administrator's responsibilities include requesting and
justifying the establishment of proposed advisory committees,
ensuring that an appropriate DFO is appointed to each advisory
committee, and ensuring that the advisory advice and
recommendations are the result of the committee's independent
judgment.
The Agency CMO is appointed by the Director of the Office of
Cooperative Environmental Management (OCEM) and provides
oversight for the establishment and operation of EPA's FACs. The
October 15, 2003 Page 2-2
-------
Federal Advisory Committee Handbook
2.1.4 Consultants
CMO also serves as a resource for DFOs and ensures proper
recordkeeping for advisory committees.
The DFO is responsible for the day-to-day operations and
management of the advisory committee. Those responsibilities can
consist of drafting and distributing agendas and other materials to
the committee, preparing notices relating to the committee for
placement in the Federal Register, attending committee meetings,
keeping records of committee deliberations, and working closely
with other EPA program officials to track responses to advisory
committee recommendations. The DFO's responsibilities are further
discussed in Exhibit 2-1.
The program office establishing the advisory committee has
significant responsibility for initiating and managing the FAC
process and works closely with the CMO to ensure full compliance
with FAC requirements. The program office and the CMO work
together to establish, renew, amend, and terminate an advisory
committee. Annual reports to GSA, annual plans, and determining
whether a meeting can or should be closed to the public is also the
responsibility of both the CMO and the program office that created
the advisory committee. Exhibit 2-1 provides the specific roles and
responsibilities of these and other EPA officials.
Consultants provide expert advice to an advisory committee or
subcommittee on an as-needed basis. They are not members of the
advisory committee or subcommittee and, therefore, do not
participate in committee deliberations or decision-making.
Consultants may serve without compensation, with prior agreement
in writing, or may be appointed as a Special Government Employee
(SGE) and paid at a rate not to exceed the maximum rate of pay
authorized by law. Consult with the CMO to determine the current
maximum pay rate for consultants.
October 15, 2003
Page 2-3
-------
Federal Advisory Committee Handbook
Exhibit 2-1':
Roles and Responsibilities of EPA Officials under FACA
Responsibility
Official
Administrator
[Authority: GSA
Final Rule, 41
C.F.R.
§102-3.105]
Approves written determinations for meetings that are closed to the public
Appoints Tier 1 and Tier 2 committee members
Approves members by signing invitation letters and ensures that the committee is fairly
balanced
Signs letters of appreciation for those members whose terms have ended - comes more into
line with DFO preference and actual practice - more impressive if letter comes from
Administrator
Deputy
Administrator
[Authority: GSA
Final Rule, 41
C.F.R. §102-3.105]
Approves the establishment of new advisory committees and major amendments of FAC
charters
Approves the pay rate of advisory committee members
Approves more than 25 members on a Negotiated Rulemaking advisory committee
Approves membership appointments and term extensions for Federal advisory committee
and subcommittee members
Grants reappointments of FAC members beyond the six-year term limit based on the
program's justification of why an appropriate replacement cannot be found
Ensures that the public has an opportunity for reasonable participation
Ensures that Special Government Employee (SGE) rates of pay are justified and that levels
of EPA support are adequate
Approves renewal of existing committees and revised renewal charters
Approves re-establishment of terminated advisory committees
Director, Office of
Cooperative
Environmental
Management
(OCEM) or his or
her designee
Initiates policy directives and provides guidance for the management of committees
consistent with the FACA and its related laws and policies
Designates a Committee Management Officer (CMO) to oversee the committee
Ensures that advisory committees comply with FACA and the public disclosure
requirements of FOIA
Reviews annually the need for each committee
Supervises the establishment, staffing, procedures, renewal, and termination of EPA
advisory committees
OCEM has overall responsibility for committee management and is assisted by EPA's CMO
Director, Office of
Acquisition
Management
(0AM)
Advises the CMO on advisory committee management actions involving any contractual
relationships associated with EPA advisory committees
October 15, 2003
Page 2-4
-------
Federal Advisory Committee Handbook
EPA
Official
Responsibility
Associate
Administrator,
Office of
Congressional and
Intergovernmental
Relations (OCIR)
Ensures that any proposed legislation relating to an existing EPA advisory committee
assigns only advisory duties to the advisory committee
Provides any proposed legislation relating to an EPA advisory committee to the CMO and
OGC for review
Ensures that any proposed legislation creating an EPA advisory committee includes:
Committee's intended purpose;
Advisory functions only;
Required membership composition that is fairly balanced;
Provisions to ensure that the resulting advice is the advisory committee's independent
judgment;
Committee's duration; and
Adequate funds and staff
Transmits advisory committee charters to the appropriate standing committees of Congress
and files charters with the Library of Congress when requested by EPA's CMO
October 15, 2003
Page 2-5
-------
Federal Advisory Committee Handbook
EPA
Official
Responsibility
Assistant
Administrator,
Regional
Administrator,
Associate
Administrator (or
equivalent)
Committees
Initiates, requests and provides a written justification to the Deputy Administrator, through
the CMO, to establish proposed advisory committees, renew an existing advisory committee,
or to re-establish a terminated advisory committee
Ensures that offices requesting advisory committee advice prepare a response to advisory
committee recommendations
Members
Ensures that EPA reviews the interests and affiliations of advisory committee and
subcommittee members as required by the Office of Government Ethics
When proposing appointments of potential members submits a transmittal memorandum to
the Deputy Administrator explaining the composition required for a fairly balanced
membership as described in the advisory committee charter
Informs both prospective and selected advisory committee members of the Foreign Agents
Registration Act and conflict of interest regulations that may be applicable
Initiates requests for and obtains the Administrator's approval of Agency determinations
under the Government in the Sunshine Act (5 U.S.C. §552b) before closing an advisory
committee meeting to the public
General
Ensures that appropriate officials are responsible for making final decision resulting from
advice on recommendations made by an advisory committee
Prepares prompt response to advisory committee recommendations relating to EPA's
proposals for action, or reasons for inaction, or important developments and significant
actions, etc.
Recommends termination of a committee to the CMO or DA
Ensures that appropriate DFO are appointed to each advisory committee and subcommittee
Ensures that funds and staffing (full time employee (FTE)) are adequate
Ensures that the advisory committee's advice and recommendations are the result of the
advisory committee's independent judgment
Reviews advisory committee activities and accomplishments annually
Recommends termination or merger of advisory committees that have not been staffed for a
period of one year or that have not met within a 2-year period
Ascertains whether potential members are available to serve if invited by the Deputy
Administrator
Obtains legal interpretations from the Office of General Council (OGC)
Office of General
Counsel
Provides legal advice on the Administrator's delegation of authority under FACA
Provides legal assistance and advice concerning applicability of and compliance with FACA
and related statutes, regulations, and Executive Orders 12838 and 12024
Provides legal advice concerning the organization and operation of advisory committees
Provides legal advice regarding possible conflicts of interest and the restrictions of the
Foreign Agent Registration Act as they relate to advisory committee members
Reviews all requests for closed meeting determinations prior to submission of the request to
the Administrator for approval
Provides legal advice on advisory committee management matters arising under FOIA and
the Government Information Security Act (GISA)
Provides legal assistance relating to FACA and the GSA Rule to Presidential Advisory
Committees that involve EPA
October 15, 2003
Page 2-6
-------
Federal Advisory Committee Handbook
EPA
Official
Responsibility
Committee
Management Officer
(CMO)
[Authority: GSA
Final Rule, 41
C.F.R.§102-3.115]
Provides oversight relating to the establishment, operating procedures, and accomplishments
of EPA's advisory committees
Issues administrative guidelines and management controls that apply to all advisory
committees EPA establishes or uses
Provides technical advice to EPA managers, DFOs, and others regarding EPA policies and
guidance for its Federal advisory committees and subcommittees
Approves minor charter amendments
Ensures that records are kept, including set of filed charters for each FAC and
subcommittee, copies of annual comprehensive reviews, maintains/updates Agency
guidelines on committee management/operations/procedures, and keeps copies of closed
meetings determinations
Certifies the Agency's completion of the annual report to the GSA Committee Management
Secretariat for Congressional review
October 15,2003
Page 2-7
-------
Federal Advisory Committee Handbook
EPA
Official
Responsibility
Designated Federal
Officer (DFO)
[Authority: GSA
Final Rule, 41
C.F.R. §102-3.120]
Basic
Drafts advisory committee bylaws and ensures that draft bylaws are sent to the CMO and
OGC for review and approval prior to adoption
Monitors financial resources that support the committee and judiciously expends money
Makes advisory committee documents and minutes available for public inspection and
copying until the advisory committee ceases to exist
Provides information in a timely manner when requested by the CMO
Maintains an ongoing interface with the committee members, appropriate EPA staff, and
committee Chairperson, and any Tier 2 subcommittee DFOs.
Ensures that Tier 1 advisory committee members and Tier 2 subcommittee members receive
appropriate briefings and other information
Coordinates with involved EPA officials in acquiring documents or arranging for EPA
presentations for the committee
Continuously maintains up-to-date electronic files on all of his/her active advisory
committees as required by GSA for the Annual Comprehensive Review, and all other
records that may be made available to the public
Membership
Ascertains whether potential members are available to serve if invited by the Deputy
Administrator
Prepares nomination packages for membership on Tier 1 Federal advisory committees and
Tier 2 subcommittees
Provides SGEs with detailed information regarding the applicability of Federal standards of
conduct for their service prior to their appointment
Contacts the Deputy Agency Ethics Officer (DAEO) to resolve any questions regarding
Special Government Employee conflict-of-interest
Ensures that all Special Government Employee pre-appointment disclosure documentation
and personnel appointment papers are completed before they assume their duties
Recommends or secures recommendations for candidates for advisory committee or
subcommittee membership before vacancies occur
Arranges for services for advisory committee members with disabilities (such as providing
a personal assistant) as required by the Disability Act
Periodically reviews and evaluates each advisory committee member's participation.
Replaces members who are not actively participating in the activities and functions of the
advisory committee to maintain balance
Coordinates termination of inactive advisory committee members with the appropriate EPA
officials
October 15, 2003
Page 2-8
-------
Federal Advisory Committee Handbook
EPA
Official
Responsibility
Designated Federal
Officer (DFO),
Cont'd.
Meetings
Schedules or approves all meetings
Obtains OGC and the Administrator's approval through the CMO to hold closed meetings at
least 30 calendar days in advance of the meeting date
Ensures that a notice is published in the Federal Register at least 15 calendar days prior to
an open or closed Tier 1 or Tier 2 advisory committee meeting
Maintains a mailing list of persons and organizations interested in receiving advance
meeting notices
Publishes press releases and notices of advisory committee activities in professional journals
when appropriate
Works with involved EPA officials to coordinate activities, generate agenda ideas, acquire
needed EPA documents, or arrange for EPA briefings or presentations for the Tier 1
committee or Tier 2 subcommittee
Reviews and approves all meeting agendas
Ensures that Tier 1 and Tier 2 subcommittee members will have time to prepare for
meetings by sending agendas and other necessary information to the committee'members
in a timely manner
Holds meetings that are reasonably accessible to the public and ensure that the space is large
enough to accommodate the public
Ensures meeting space is readily accessible to and usable by persons with disabilities
Attends all meetings and, when directed to do so by the appropriate Assistant Administrator,
Regional Administrator, or Associate Administrator, chairs the Tier 1 advisory committee
meeting
Provides an opportunity for appropriate public participation (written or oral) at advisory
committee meetings
Adjourns a meeting when it is determined to be in the public interest to do so (such as when
someone disrupts the meeting or in the event of an unwarranted departure from the meeting
agenda)
Ensures detailed minutes are prepared and made available to the public quickly after each
open, closed or partially closed meeting
Presidential
Submits two copies of each Presidential advisory committee public report through the CMO,
to GSA's Committee Management Secretariat, at the same time the report is submitted to the
President
Prepares a Presidential advisory committee follow-up report to Congress within one year of
the public report
Ensures that when terminating a Presidential advisory committee, the White House Counsel
is consulted regarding records preservation for Presidential advisory committees that are
governed by the Presidential Records Act
October 15, 2003
Page 2-9
-------
Federal Advisory Committee Handbook
EPA
Official
Responsibility
Designated Federal
Officer (DFO),
Cont'd.
Records and Reports
Obtains Chairperson certification of the minutes within 90 calendar days of the meeting
Maintains a complete list of all past and current Tier 2 subcommittees and Tier 3 work
groups (if any) and their members as well as copies of Tier 2 subcommittee documents
Ensures that advisory committee records are managed and retained according to the EPA
Records Control Schedule for Federal Advisory Committee/Board Records, the Federal
Records Act, and the National Archives and Records Administration
Assists with committee preparation of their reports as needed
Files 8 copies of final reports (advice and recommendations) produced by the advisory
committee with the Library of Congress as well as provides copies to appropriate Agency
staff and interested public, as requested
Files reports issued on closed or partially closed meeting reports with the Library of
Congress at least annually
Works closely with the appropriate EPA program official(s) to obtain timely responses to
advisory committee recommendations
Ensures that Tier 2 subcommittee reports are deliberated in an open meeting by the
chartered (Tier 1) committee before being submitted to a Federal officer or the EPA
Administrator
Reports advisory committee and subcommittee information electronically using GSA's
Government-wide shared internet-based system for each fiscal year by the due date
determined by EPA's CMO
General
Submits timely notice to Federal Register when committees are established
Prepares letter of appreciation for members whose term has ended for DA signature
Discusses with the Committee Management Officer any needed charter revisions for
advisory committee charter renewal
Prepares renewal documents including the AA's/RA's transmittal memo to the Deputy
Administrator, revised charter, and justification
Publishes timely notice in the Federal Register announcing the establishment, renewal, or
reestablishment of discretionary advisory committees
Recommends termination of advisory committees to CMO
Chairperson
Presides at Tier 1 advisory committee meetings and Tier 2 Subcommittee meetings and
certifies to the accuracy of the minutes for each meeting
Advises the public at the beginning of each meeting about the committee's rules on public
participation
Conducts each meeting in accordance with the previously approved agenda
Maintains a neutral position on an issue unless the membership vote is tied or when the
Chair's expertise is needed regarding an issue
Facilitates the discussion to maintain focus on areas relevant to accomplishing the agenda
Determines when comments are not germane, when it's time to end the discussion, when a
topic should be assigned to a subgroup for further consideration, or when discussions should
be tabled until the next meeting
Committee Members
Participates in the activities of the advisory committee, including voting on committee
recommendations
October 15, 2003
Page 2-10
-------
-------
Federal Advisory Committee Handbook
Chapter 3:
Establishing a Discretionary FAC and
Preparing the Charter
3.0 Overview
Once the CMO and OGC have helped you determine, or you have
learned that your committee is discretionary, you will need to
prepare and submit materials to formally establish the federal
Advisory Committee (FAC). A FAC is formally established with
an establishment package. This chapter walks you through the
preparation and submittal of the establishment package, including
how to prepare the Charter for your FAC.
Definition: A Discretionary Advisory Committee is a committee that
is not required by law that fulfills a vital need within the Agency. The
EPA Administrator, and the Deputy Administrator through delegated
authority, has the discretion to establish these committees if it is
determined that:
EPA business would be enhanced by such a committee, or
Resolution of issues of national interest would be facilitated by
creating a committee, or
Agency staff, public hearings, or a dependent subgroup could not
perform the functions of the proposed discretionary advisory
committee.
3.1 Initiating a
Discretionary
Advisory
Committee
Assistant Administrators, Regional Administrators, and heads of
staff offices reporting to the Administrator within their functional
areas of responsibility may initiate the establishment process.
Requests to establish a committee should be sent through EPA's
CMO to the Deputy Administrator.
Note: Negotiated rulemakings are discretionary committees, but
are considered non-discretionary by EPA, and require a
justification to be submitted when up for renewal.
October 15,2003
Page 3-1
-------
Federal Advisory Committee Handbook
3.1.1 Role of a
CMO in
Establishing
the FAC
The CMO provides guidance and consultation on the establishment
process and reviews the documents contained in the establishment
package. Once the establishment documents are completed, the
Committee Management Officer is responsible for overseeing the
approval process through the GSA Committee Management
Secretariat and ensuring that documents are filed with GSA, the
Library of Congress, and Congress, as appropriate.
Note: Consultation with the CMO should begin early
as the CMO provides guidance throughout the entire
establishment process. Consultations should
specifically include:
Planning the budget
Selecting committee members
Staffing the committee
Selecting a DFO
Drafting a Charter
3.7.2
Considerations
Before
Establishing
the FAC
Before determining whether you can establish a new discretionary
advisory committee, you should answer several key questions.
Specifically, you should be able to answer "yes" to all of the
following questions before you move forward with the committee
establishment process:
Can any more discretionary committees be established within
the Agency based on the total number of FACs allowed by
GSA?
Will your committee be the only EPA advisory committee
providing advice on the issues or topics you have identified?
(That is, the advice you are providing is not readily available
from another source in the federal government) If a group is
only going to provide information to EPA, that group is not
subject to the requirements of FACA.
Will the committee provide an important and unique perspective
or viewpoint of EPA programs or operations?
October 15,2003
Page 3-2
-------
Federal Advisory Committee Handbook
Will committee deliberations result in recommendations about
the creation, change, or elimination of regulations, guidelines, or
rules that govern EPA business? Will the deliberations result in
recommendations for significant improvements in the services
provided by EPA or generate any cost reductions?
Note: The program office should consider the possibility
of establishing a subcommittee under an existing federal
advisory committee, rather than Chartering a new
committee.
3.2 How to
Establish a
Discretionary
Advisory
Committee
There are several activities that are part of the establishment
process, including: (1) making a formal request to establish the
committee; and (2) preparing the "Establishment Request Package'
materials. The following provides a step-by-step outline of the
establishment process. A checklist to track the progress of
establishing a FAC is included at the end of this chapter. The
following are the steps involved in the FAC process that program
offices should follow:
Step 1. Consult with the Office of General Counsel FAC A attorney and the
CMO Office regarding legal requirements/implications associated
with committee establishment. Consult with the CMO concerning
instructions and procedures.
Step 2. Discuss availability of committee spaces under the GS A quota
ceiling with the CMO. The CMO will consult with GS A about the
intention of forming a FAC in order to find out if there is sufficient
reason to convene such a committee.
Step 3. Obtain guidance from the CMO on how best to prepare the
Establishment Request Package.
October 15, 2003
Page 3-3
-------
Federal Advisory Committee Handbook
Note: If GSA disagrees with EPA's proposal to establish a
committee, the EPA Administrator retains final authority to
establish an advisory committee. If the Agency still intends to
establish the proposed advisory committee, EPA must notify
GSA in writing of this decision.
Step 4. Select a prospective DFO or interim point of contact. The DFO is
responsible for submitting the establishment package to the
Assistant Administrator (AA).
Step 5. Prepare a draft Establishment Request Package with the assistance
and review of the CMO. The specific materials that should be in
the package are discussed in detail in Section 3.4 below. The DFO
fills out the informational questionnaire that will be reviewed by the
CMO.
Step 6. Incorporate the CMO's comments and submit the final
Establishment Request Package to the CMO for approvals and GSA
Secretariat review.
Step 7. The AA signs and approves the establishment package, including
the Federal Register notice. The DFO makes sure that the
establishment notice is published at least 15 calendar days prior to
filing the Charter. Preparing the Federal Register notice is
discussed more fully in Section 3.3.4 below. (An example of a
notice of establishment for the Federal Register is provided at the
end of this chapter at page 3-13.)
Note: After the CMO notifies the DFO that the GSA process
is complete, and the committee is approved, the
DFO/requesting office will publish the Federal Register
notice announcing intent to establish the FAC.
October 15,2003 Page 3-4
-------
Federal Advisory Committee Handbook
The CMO sends your Charter to the Office of Congressional and
Intergovernmental Relations (OCIR) for filing with the appropriate
congressional committees and the Library of Congress. Note that
OCIR files the Charter at least 15 days after publication of the
Federal Register notice.
Note: Committee establishment is effective on the
date the Charter is filed with Congress.
3.3 The
Establishment
Request
Package
The Establishment Request Package first goes to the CMO, who
will review and sign it prior to sending it to the Deputy
Administrator. It should include a concurrence and non-
concurrence signature and date line for the Deputy Administrator.
The Establishment Request Package consists of five documents:
Q 1. A Transmittal Memo from the AA, Regional Administrator,
or head of a staff office reporting to the Administrator,
requesting establishment of a new advisory committee (see
Section 3.3.1);
Q 2. A Justification Statement for the establishment of the
committee (see Section 3.3.3);
Q 3. Cost Estimates to run the committee for the current and
subsequent fiscal years (see Section 3.3.3);
Q 4. The Federal Register Notice signed by an AA, RA, or head
of staff offices reporting to the Administrator announcing intent
to establish the federal advisory committee (see Section 3.3.4);
and
G 5. A Charter that specifies the mission and general operating
characteristics the committee (see Section 3.4).
A discussion of the five documents in the Establishment Request
Package and guidance on preparing them is provided below. The
timely preparation and delivery of these documents to the
October 15,2003
Page 3-5
-------
Federal Advisory Committee Handbook
appropriate recipients should reduce potential delays in establishing
your FAC. Exhibit 3-1, provides an overview of the establishment
process for discretionary committees and a timeline and checklist to
assist you in this process.
3.3.1 Transmitted The Transmittal Memo from the AA, RA, or head of staff office
Memo reporting to the Administrator recommends that the Deputy
Components Administrator approve the establishment of the advisory committee.
3.3.2 Establishment The establishment justification, which undergoes EPA and GSA
Justification review, must contain the following elements:
Attachment
1. An explanation of why the advisory committee is necessary,
its purpose, and how it relates to the Administration's
initiatives, priorities, and strategic goals;
2. A narrative discussion explaining that the advisory committee
will address issues of significant national interest or is needed
to ensure proper conduct of Agency business;
3. An explanation of why the functions of the advisory
committee cannot be successfully performed by EPA staff,
another existing EPA advisory committee, or other means
such as a public hearing;
4. A description of the Agency's plan to attain fairly balanced
membership. The plan should show that EPA plans to
consider a cross-section of directly impacted/interested
stakeholders and other interested individuals when selecting
advisory committee members; and
5. The name, title, and contact information for the appropriate
EPA official who has been designated to serve as the contact
person in the event that GSA has any substantive questions
concerning EPA's need for the proposed advisory committee.
October 15, 2003 Page 3-6
-------
Exhibit 3 -1
ESTABLISHING A DISCRETIONARY FEDERAL ADVISORY COMMITTEE
TIMELINE AND CHECKLIST
LU
111
Varies
Answer questionnaire and select
prospective DFO
If someone other than the
DFO is drafting the package
Vanes
Prepare and submit draft
establishment request package
1-2 weeks
CMO reviews
establishment
request package
o
Varies
Program Office finalizes
draft establishment
request package
Completed Establishment Package Elements
Q Transmittal Memorandum
Q Justification for Establishment
O Detailed Cost Estimate
Q Establishment Federal Register Notice
Q Charter
Completed Establishment Package Elements
Q Transmittal Memorandum
Q Justification for Establishment
Q Detailed Cost Estimate
O Establishment Federal Register Notice
Q Charter
Completed Establishment Package Elements
Q Transmittal Memorandum
Q Justification for Establishment
Q Detailed Cost Estimate
D Establishment Federal Register Notice
D Charter
2-3 weeks
CMO, OGC, Deputy Administrator
review and Deputy Administrator
approves/signs final establishment
request package
1 week
CMO consults with GSA
and sends Charter, costs.
and justification to GSA
2 weeks
GSA reviews Charter and
Justification then
responds to CMO
I
15 days
i
Publish Federal Register
Notice of intent to
establish within 15 days
before filing Charter ^p
2 weeks
CMO, OCIR files Charter
with Congress
-------
Federal Advisory Committee Handbook
3.3.3 Preparing
Cost Estimates
Three different types of costs may factor into your preparation of
the "Cost and EPA Personnel Work Year Estimates." These are
compensation costs, travel and per diem costs, and other costs (e.g.,
rental costs, and contractor support costs). These costs and
guidelines on how to calculate them are discussed below.
Exhibit 3-2 provides worksheets and formulas to use in your
calculations. The following sections provide guidance for
completing this worksheet and developing the cost estimate for
compensation, travel, per diem, and other costs.
Compensation/Personnel Payments
1. Non-Federal Members (Special Government Employees):
Special Government Employees (SGE) are compensated; therefore,
enter their compensation amount. (If they are not SGE's, they are
not compensated.)
2. Non-Federal Members (Representative Members'):
Representative members are not compensated; therefore, enter zero.
3. Federal Members (Prorated - EPA members only):
Estimate the percentage of time each EPA employee committee
member is expected to spend on committee matters and multiply it
by each individuals annual salary. Representatives of other federal
agencies generally are compensated by their employing agency, not
EPA. Only include costs for federal members that come out of
EPA funds.
4. Federal Staff (Prorated - includes DFO. assisting support staff, etc.):
Estimate the percentage of time the Designated Federal Officer
(DFO) and other assistants are expected to spend on committee
matters and multiply it by their estimated salary. That prorated
salary is then multiplied by a benefits percentage of 17% to get the
total benefits cost. The prorated salary is added to the benefits costs
to get the total federal saff cost. Administrative time and costs
should be included in this estimate. Staffing is required to cover
these services. Make sure dollar amounts are equal to FTE staffing
levels/salaries.
October 15, 2003
Page 3-8
-------
Federal Advisory Committee Handbook
Exhibit 3-2
Cost and EPA Personnel Work Year Estimates
cl 1, Personnel \Vork (,'osls
Personnel Work Costs:
(A) Total Non-Federal Members (Special Government Employees) Costs:
(# of SGE) * (# meeting days per FY) * (Daily Compensation $)
(B) Non-Federal Members (Representative Members):
Representative members are not compensated, therefore, enter zero.
(C) Total Federal Members (Prorated - EPA members only) Costs:
(Percent annual time on committee) * (Annual Salary)
(D) Total Federal Staff (Prorated - includes DFO. support staff, etc.) Costs:
1. (Percent annual time on committee) * (Annual Salary) +
(17% Benefit Pay) = Prorated Salary
(E) Total Special Expertise Costs:
Estimated Consultant Costs Billed to the Committee
Total Personnel Work Costs :
$.
$.
$.
$.
$.
October 15,2003
Page 3-9
-------
Federal Advisory Committee Handbook
Exhibit 3-2
Cost and EPA Personnel Work Year Estimates
Worksheet 2, Travel, Per Diem Costs, and Other Committee Costs
Travel and Per Diem Costs:
The travel cost calculation is the same for each attendee authorized to
receive travel and per diem compensation:
(# of meetings * # days per meeting) * (Per Diem for the location of the meeting)
+ (Travel cost * estimated # of trips)
(F) Total Travel and per diem costs for Non-Federal Members:
(Representative Members SGEs)
(G) Total estimated travel and per diem costs for Federal Members*
(H) Total estimated travel and per diem costs for Federal Staff:
(DFO and EPA Support Staff)
(I) Total estimated travel and per diem costs for Non-member Consultants:
Total estimated travel and per diem costs:
Other Costs:
(J) Total estimated Contractor Support Costs (e.g.. logistics, facilitators):
(Note: Contractors may pay for rentals, but the DFO should track those costs as rental
costs for management tracking purposes after the committee is established)
(K) Total estimated Rental Costs (e.g.. room rental costs):
(L) Other estimated Federal Advisory Committee Costs (e.g.. printing):
Total Travel, Per Diem, and Other Committee Costs:
Total Personnel Work Costs (Worksheet 1):
Total Estimated Work Year Costs:
(Total Worksheet 1 Costs + Total Worksheet 2 Costst
$
$
\o
$
$
$
$
$
$
$
$
October 15,2003
Page 3-10
-------
Federal Advisory Committee Handbook
EXAMPLE: A DFO, who is a GS-14,step 5 with a salary level
(plus locality pay) of $88,699 per year, will spend 50 percent of
his/her duty time on direct support of the committee
administrative duties, or $44,349.50, which is rounded-off to
$44,350. Then, multiply the prorated salary by the benefit
percentage of 17 percent ($7,540). Add the DFO's prorated
salary ($44,350) with the 17 percent benefits ($7,540) for a total
cost of $51,890.
5. Non-member Consultants:
A consultant is someone hired and paid directly by EPA on a
consulting or expert appointment. Enter the costs incurred by the
consultants.
October 15,2003
Page 3-11
-------
Federal Advisory Committee Handbook
Travel & Per Diem
Most advisory committee members are reimbursed for travel and
per diem expenses. You should account for the estimated per diem
and travel costs that committee members incur when attending
committee meetings. These expenses should be estimated for the
four types of attendees eligible for travel and per diem
compensation under 5 U.S.C. 5703 (Invitational Travel). Note that
Invitational travel can only be paid for individuals who are
attending the meeting to perform a direct service to EPA.
Invitational travel cannot be used for individuals who attend only to
observe the meeting.
The four types of attendees are:
1. Non-Federal Members (Representative Members and Special
Government Employees)
2. Federal Members (EPA staff are not members)
3. Federal Staff (DFO and other EPA support staff)
4. Non-member Consultants
The travel cost calculation is the same for each type of attendee
authorized to receive travel and per diem compensation.
Note: Staff support should be expressed in Full-Time
Equivalent (FTE) years, rounding to one decimal place. Include
the time of all personnel involved who support the committee,
no matter how minimal that time.
October 15,2003
Page 3-12
-------
Federal Advisory Committee Handbook
Other Committee Costs
Other costs can include contractor support costs, rental costs, and
other costs associated with establishing, managing, and terminating
a FAC. These costs are described in more detail below.
G Contractor Support Costs:
Contractor support costs may include, but are not limited to:
contractor personnel costs for technical, administrative or
facilitation support; contractor personnel travel; personnel and
travel costs for experts
Note: A contractor is an
individual or firm procured
under a contract or purchase
order, such as court reporting
services.
retained by the
contractor to assist the
committee;
communications costs
such as contractor
phone, mail, courier,
photocopying; court
reporters retained by the contractor to record meetings; audio
equipment rented by the contractor during meetings; and
supplies such as flip charts, notebooks, etc. (Note: Contractors
may pay for meeting room costs; however, for management
tracking purposes after the committee is established, the DFO
should report meeting room rental costs on the cost tracking
spreadsheet under Rental Costs.)
Rental Costs:
These costs relate primarily to the meeting space; however,
other rental costs, such as audio-visual equipment, also may be
included here. Meeting rooms may be rented by support
contractors as a portion of their support services.
Other Committee Costs:
These costs include all other costs not estimated elsewhere, such
as equipment, supplies, maintenance, postage, courier, phone,
printing, graphics, Federal Register notices and meeting
announcements, shipping and distribution, and miscellaneous
expenses.
October 15,2003 Page 3-13
-------
Federal Advisory Committee Handbook
3.3.4 The
Establishment
Federal
Register
Notice
Note: Due to restrictions on augmenting of agency funds,
advisory committee members and their employers may not
pay the rental costs for items such as meeting space or
audio-visual equipment rental.
The DFO should prepare the establishment notice while waiting for
GSA to finish its review of the package. The GSA Secretariat
notifies the CMO once the GSA review is complete, and the CMO
then notifies the Agency DFO. As soon as possible after receiving
notification from the CMO, the DFO should submit the
establishment notice for publication in the Federal Register. This
notice lets the public know about EPA's intent to establish a federal
advisory committee. Keep in mind that once EPA's CMO has
consulted with the GSA Committee Management Secretariat, the
establishment process should continue with the prompt publishing
of the Federal Register establishment notice.
The Federal Register notice should include a description of:
Q The nature and purpose of the advisory committee;
Q The Agency's plan to attain fairly balanced membership; and
G A statement that the advisory committee is necessary and in
the public interest.
The DFO should send a copy of the establishment notice to the
CMO after it has been published in the Federal Register.
If there is an urgent need and good reason for the committee to
meet sooner than permitted by normal establishment procedures
(e.g., the committee needs to meet immediately in order to comply
with a Congressional deadline), the CMO may ask the GSA
Secretariat to waive the 15-day waiting period between Federal
Register publication and Charter filing. A committee cannot meet,
under any circumstances, before the Charter is filed.
October 15,2003
Page 3-14
-------
Federal Advisory Committee Handbook
Note: The Federal Register notice must be published at least IS
calendar days before the Charter is filed with Congress. The
committee may not meet until after the Charter is filed with
Congress.
3.4 The Advisory The purpose of the advisory committee Charter is to specify the
Committee
Charter
3.4.1 The Charter
Filing Process
mission and general operational characteristics of a particular
committee. The requesting office/DFO should provide the required
information to the CMO. The CMO will create a draft Charter
including all statutory requirements. There are both mandatory
components and other components that improve the overall Charter
package, but are not explicitly required. Specifically, EPA advisory
committee Charters consist of statutorily-required components set
out in FACA, and additional EPA-specific components that are
designed to provide additional information to interested parties.
These requirements are provided in Exhibit 3-3 "Required Charter
Components Checklist." Additional information the Charter should
contain, although not required, can be found in the Exhibit 3-4
"Other Charter Components Checklist."
Process
After consultation with GSA, the DFO publishes the Federal
Register notice announcing the establishment of the FAC, the CMO
asks EPA's Office of Congressional and Intergovernmental
Relations to file the Charter with the appropriate Congressional
committees and the Library of Congress. The date the Charter is
filed with Congress is considered the establishment date for
discretionary advisory committees. The CMO will then file the
dated Charter with the GSA Secretary to complete the establishment
process.
October 15,2003
Page 3-15
-------
Federal Advisory Committee Handbook
Exhibit 3-3
FACA-Rcquircd Charter Components Checklist
The required components of an EPA Federal Advisory Committee Charter are:
G 1. The advisory committee's official title.
G 2. The advisory committee's objectives and the scope of its activity.
G 3. The estimated period of time necessary for the advisory committee to carry out its
purposes.
G 4. The federal official to whom the advisory committee reports.
G 5. EPA's responsibility for providing the necessary support for the advisory
committee. (EPA Charters identify the responsible EPA office)
G 6. A description of the duties for which the advisory committee is responsible,
and, if such duties are not solely advisory, the source(s) of authority for non-
advisory functions.
G 7. The estimated annual operating costs in dollars (including compensation, travel and
per diem, staff salaries, consultant fees, printing, commercially rented space, etc.) work-
years for staff support for the advisory committee.
G 8. The estimated number and frequency of advisory committee meetings.
G 9. The advisory committee's termination date, if less than two years from the date of
advisory committee establishment.
G 10. The filing date of the Charter. (The CMO inserts this date after the process is
complete)
October 15,2003
Page 3-16
-------
Federal Advisory Committee Handbook
Exhibit 3-4
Other Charter Components Checklist
In addition to Charter elements required by FACA, the establishment Charter should also
contain the following information:
G 1. A statement indicating that the Charter is establishing the advisory committee.
Q 2. A statement regarding whether the authority to establish the FAC is provided by
statute, the President, or the EPA Administrator.
G 3. The estimated number of advisory committee members and a description of the
points of view needed to achieve a fairly balanced membership.
Q 4. A statement regarding whether members will be appointed as Special Government
Employees subject to the conflict-of-interest restrictions (paid members), or as
representatives of non-federal interests (members are not paid, though they usually
receive travel and per diem reimbursement).
G 5. A statement regarding the requirement for a full-time or permanent part-time
employee of the Agency to serve as the Designated Federal Officer.
G 6. A statement as to whether the advisory committee is authorized to establish
subgroups or whether subgroups can only be established by EPA. The Charter also
should note that subgroups report back to the parent advisory committee, and do not
provide advice directly to EPA.
October 15, 2003
Page 3-17
-------
Federal Advisory Committee Handbook
3.5 FAC
Management
Tips
Timing
Once EPA and GSA have completed their consultation and EPA
has published the establishment notice the CMO may determine
whether the timing is appropriate for EPA to delay filing the
Charter for a short time (e.g., one or two months) until EPA has
selected committee members, invited them to serve, and scheduled
the first meeting. This prevents the two-year time period for the life
of the committee from starting before the advisory committee is
organized and ready to function. This will allow the committee to
have two full years of activity on which to base a strong
justification for renewal, if necessary.
G 1. The membership selection process can be started before the
committee is established. See Chapter 5 regarding the member
selection and appointment process.
G 2. Sometimes it helps to have a contractor assist the DFO with
the administrative work associated with managing and
operating the committee. For example, a contractor could
prepare the meeting notice, take notes during the meeting and
prepare draft minutes, and arrange for a meeting location. See
Chapter 7 for information on using contractors to assist with
committee operations.
G 3. Committee costs may be audited by GAOtrack expenses
quarterly and keep accurate records. A quarterly cost tracking
spreadsheet is recommended to ensure accurate and timely
submission of cost reporting at the end of the year.
G 5. It is an EPA best practice to prepare draft bylaws and
present them for consideration and discussion at the
committee's first meeting. Contact the CMO for more
information on drafting by-laws. Members can review,
comment on, and shortly afterwards, adopt the bylaws.
(Note: have both the CMO and the OGC FACA Attorney
review the by-laws before they are adopted by the committee).
See Chapter 6 for guidance on preparing the bylaws.
October 15,2003
Page 3-18
-------
Federal Advisory Committee Handbook
STEPS TO ESTABLISH A DISCRETIONARY FACA COMMITTEE
f . '
1
X
2
"' [ ' ".'. STEP-.: ,'- : . . .-.
Complete the establishment
questionnaire and select a prospective
DFO or point of contact.
(Questionnaire includes objectives, budget and
FTE forecast, number and kinds of members,
indication of type and number of meetings, and
duration of the committee, etc.)
The CMO drafts the committee's
Charter based on your answers to the
questionnaire
Prepare and submit Draft
Establishment Request Package to
the CMO, which includes:
2(a) Transmittal memo from AA to DA
2(b) Charter
2(c) Justification for Establishment
2(d) Detailed Cost Estimate
EST. TIME .
Varies,
Depending
^the
Program
Office
Two weeks
Varies,
Depending
on the
Program
Office
WHO r
Program
Office
CMO
Program
Office
Program
Office
CMO,
Program
Office
Program
Office
Program
Office
.COMPLETE?
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
October 15, 2003
Page 3-19
-------
Federal Advisory Committee Handbook
2
3
4
5
6
7
8
;. . .":.l\ _'.: .i'&TEP^^ ' y;/":;.
2(e) Federal Register notice of
Establishment
Review Draft Establishment Request
Package
G Transmittal memo from AA to DA
G Charter
G Justification for Establishment
G Detailed Cost Estimate
G Federal Register notice of
Establishment
Finalize Draft Establishment Request
Package Based on CMO, OGC Review
G Transmittal memo from AA to DA
G Charter
G Justification for Establishment
G Detailed Cost Estimate
G Federal Register notice of
Establishment
Review and Deputy Administrator
approval/signature on finalized
Establishment Request Package
CMO consults with GSA and sends
Charter, costs, and justification to GSA
GSA reviews and then responds to the
CMO
The DFO publishes a Federal Register
Notice of EPA' s intent to establish the
committee.
(FRN must be published IS days before filing
Charter w/Congress)
EST.TIME'
Varies,
Depending
on the
Program
Office
1-2 weeks
Varies,
Depending
on the
Program
Office
2-3 weeks
1 week
2 weeks
15 days
» WHO
Program
Office
CMO,
OGC'
(OGC
reviews
Charter)
Program
Office
CMO,
OGC,
Deputy
Administra
-tor
CMO
GSA
Program
Office
COMPLETE?;;
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
G YES
DATE:
October 15,2003
Page 3-20
-------
Federal Advisory Committee Handbook
9
10
STEP
File Charter with Congress
The Committee's establishment is
effective on the date the Charter
is filed with Congress
EST.TIME
2 weeks
WHO
CMO,
OCIR
COMPLETE?
Q YES
DATE:
October 15, 2003
Page 3-21
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003 Page 3-22
-------
Federal Advisory Committee Handbook
Chapter 3 Sample Documents
October 15, 2003 Page 3-23
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15, 2003 Page 3-24
-------
Federal Advisory Committee Handbook
Example Federal Register Notice of Federal Advisory Committee Establishment
[Federal Register: September 5,2002 (Volume 67, Number 172)]
[Notices]
[Page 56828]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se02-39]
ENVIRONMENTAL PROTECTION AGENCY
[OPPT-2002-0001; FRL-6830-2]
Establishment of the National Pollution Prevention and Toxics Advisory Committee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; establishment of advisory committee.
SUMMARY: As required by section 9(a)(2) of the Federal Advisory Committee Act, we are giving
notice that EPA is establishing the National Pollution Prevention and Toxics Advisory Committee
(NPPTAC). The purpose of this Committee is to provide a forum for a diverse group of individuals to
provide advice, information, and recommendations to EPA's Office of Pollution Prevention and
Toxics (OPPT) regarding the overall policy and operations of programs undertaken by the office.
EPA has determined that this advisory committee is in the public interest and will assist the Agency
in performing its duties as prescribed in the Toxic Substances Control Act, the Pollution Prevention
Act, and other applicable statutes. Copies of the Committee Charter will be filed with the appropriate
congressional committees and the Library of Congress.
FOR FURTHER INFORMATION CONTACT: For general information contact:
Barbara Cunningham, Acting Director, Environmental Assistance Division (7408M), Office of
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 554-1404; e-mail address: TSCA-
Hotline@epa.gov. For technical information contact: Mary Hanley (7401M), Office of
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 564-0316; e-mail address: hanley.mary@epa.gov.
October 15, 2003 Page 3-25
-------
Federal Advisory Committee Handbook
List of Subjects:
Environmental protection.
Dated: August 27,2002.
Stephen L. Johnson,
Assistant Administrator for Prevention, Pesticides and Toxic Substances.
[FR Doc. 02-22613 Filed 9-4-02; 8:45 am]
BILLING CODE 6560-50-S
October 15,2003 Page 3-26
-------
-------
Federal Advisory Committee Handbook
Chapter 4: Establishing a Non-Discretionary FAC
and Preparing the Charter
4.0 Overview
4.1 Initiating a
Non-
Discretionary
Advisory
Committee
Once you determine that your committee is non-discretionary, you
should prepare and submit materials to formally establish the
Federal advisory committee (FAC). This chapter walks you
through the preparation and submittal of the establishment package,
including how to prepare the Charter for your non-discretionary
FAC.
Definition: "Non-discretionary advisory committee"
means any advisory committee required either by statute or
by Presidential directive, such as an Executive Order. A
non-discretionary advisory committee required by statute is
typically specified in a statute by name, purpose, or
functions, and its establishment and termination are beyond
the legal discretion of an agency.
Assistant Administrators (AAs), Regional Administrators (RAs),
and heads of staff offices reporting to the Administrator within their
functional areas of responsibility may initiate the establishment
process. Requests to establish a committee must come through
EPA's CMO to the Deputy Administrator. Charter filing
requirements for non-discretionary advisory committees are the
same as those for discretionary advisory committees except that the
establishment date for a Presidential advisory committee is the date
the Charter is filed with the GSA Committee Management
Secretariat.
Note: EPA considers negotiated rulemaking committees non-
discretionary FACs, but will also require a justification to be
submitted when up for renewal. It is recommended that you
follow the non-discretionary committee establishment and
chartering requirements for non-discretionary advisory
committees..
October 15, 2003
Page 4-1
-------
Federal Advisory Committee Handbook
4.1.1 Role of a The CMO provides guidance and consultation, and reviews the
CMO in documents contained in the establishment package. Once the
Establishing a FAC establishment documents are completed, the CMO is responsible
for consulting with the GSA Committee Management Secretariat
and overseeing the approval process. The CMO also ensures that
committee documents are filed with GSA, in the appropriate
committee file, and Congress.
Note: Consult with the CMO early in the establishment
process, specifically in the areas of:
Planning the budget
Staffing the committee
Selecting a DFO
Drafting the Charter
4.2 Establishing There are several activities that are part of the establishment
a Non- process, including: (1) making a formal request to establish the
Discretionary committee; and (2) preparing the "Establishment Request Package"
Advisory materials. A step-by-step outline of the establishment process is
Committee discussed in the following sections. A checklist to track the
progress of establishing a FAC is included at the end of this
chapter.
4.2.1 Steps in the The following steps are involved in the FAC establishment process:
Establishment
Process
Step 1. Consult with the Office of the General Counsel FAC A attorney and
the CMO Office regarding legal requirements/implications
associated with committee establishment. Consult with the CMO
for instructions and procedures.
Step 2. The CMO provides guidance in preparing the Establishment
Request Package.
Step 3. Select a prospective DFO or interim point of contact. The DFO is
responsible for submitting the Establishment Request Package to
the Assistant Administrator).
October 15,2003 Page 4-2
-------
Federal Advisory Committee Handbook
Step 4. Prepare a draft Establishment Request Package with the assistance
and review of the CMO. The specific materials needed in that
package are discussed in detail in Section 4.3. The DFO will
complete the informational questionnaire that will be reviewed by
the CMO.
Step 5. Incorporate the CMO's comments and submit the final
Establishment Request Package to the CMO for approvals and
Deputy Administrator signature.
Step 6. The AA signs all
required forms and
approves the
Establishment
Request Package,
returning it to the
DFO so that
everything can be
signed at once.
Note for negotiated rulemaking
committees: After the CMO notifies the DFO
that the GSA process is complete and the
committee is approved, the DFO/requesting
office will publish the Federal Register notice
announcing intent to establish the negotiated
rulemaking FAC.
No notice is required to announce the establishment of a non-
discretionary advisory committee. Negotiated rulemaking
committees must publish a notice of establishment containing the
information required by the Negotiated Rulemaking Act, 5 U.S.C
§564. (An example of a Federal Register notice of establishment is
included at the end of this chapter.) The CMO notifies GSA 10
working days prior to filing the Charter with Congress.
The CMO asks the Office of Congressional and Intergovernmental
Relations (OCIR) to
file your Charter with
the appropriate
congressional
committees and the
Library of Congress.
For a negotiated
rulemaking
committee, the Charter
must be filed 15 days
after publication of the
establishment notice in the Federal Register.
Note: Committee establishment is
typically effective on the date the Charter
is filed with Congress. However, the
date of committee establishment for a
Presidential advisory committee is the
date the Charter is filed with the GSA
Committee Management Secretariat.
October 15, 2003
Page 4-3
-------
Federal Advisory Committee Handbook
4.3 The The Establishment Request Package is made up of six documents.
Establishment The timely preparation and delivery of these documents to the
Request appropriate recipients will reduce potential delays in establishing
Package vour FAC. The six documents are:
Q 1. A Transmitted Memo from an AA, Regional Administrator, or
head of a staff office reporting to the Administrator requesting
establishment of a new advisory committee (see Section 4.3.1);
Q 2. A Justification Statement for the establishment of the
committee (see Section 4.3.2);
G 3. Cost Estimates to run the committee for the current and
subsequent fiscal years (See Section 4.3.3);
Q 4. For a negotiated rulemaking committee: The Federal
Register Notice signed by an AA, RA, or head of staff offices
reporting to the Administrator announcing intent to establish the
federal advisory committee (See Section 4.3.4); and
G 5. A Charter that specifies the mission and general operating
characteristics the committee (See Section 4.4).
G 6. A copy of the statute or Presidential Directive/Executive
Order mandating the establishment of the non-discretionary
committee, except for negotiated rulemaking committees.
A discussion of these six documents and how best to prepare them
is provided in the following section. Exhibit 4-1, provides an
overview of the establishment process for discretionary committees
and a timeline and checklist to assist you in this process.
October 15,2003 Page 4-4
-------
Exhibit 4 -1
ESTABLISHING A NON-DISCRETIONARY FEDERAL ADVISORY COMMITTEE
TIMELINE AND CHECKLIST
j Varies
LU
LJJ
Varies
1-2 weeks
Varies
2-3 weeks
15 days
-.i
';. J 2 weeks
Answer questionnaire and select
prospective DFO
Prepare and submit draft
establishment request package
CMO reviews
establishment request
package
Program Office finalizes
draft establishment
request package
CMO. OGC, Deputy Administrator
review and Deputy Administrator
approves/signs final establishment
request package
After consultation with
GSA publish Federal
Register Notice of intent to
establish within 15 days
CMO. OCIR files Charter
with Congress
If someone other than the
DFO is drafting the package
Completed Establishment Package Elements
Q Transmittal Memorandum
fj Justification for Establishment
Q Detailed Cost Estimate
O Establishment Federal Register Notice
(if applicable)
\JD Charter
f Completed Establishment Package Elements
Q Transmittal Memorandum
Q Justification for Establishment
Q Detailed Cost Estimate
Q Establishment Federal Register Notice
(for Negotiated Rulemaking Committees only)
\lD Charter
Completed Establishment Package Elements
Q Transmittal Memorandum
Q Justification for Establishment
Q Detailed Cost Estimate
D Establishment Federal Register Notice
(for Negotiated Rulemaking Committees only)
Charter
-------
Federal Advisory Committee Handbook
4.3.1 Transmittal
Memo
Components
4.3.2 Justification
Statement
The Transmittal Memo from an AA, RA, or head of staff office
reporting to the Administrator indicates that he/she recommends
that the Deputy Administrator approve the establishment of the
advisory committee. It should include a concurrence and non-
concurrence signature and date line for the Deputy Administrator.
If members will be appointed as SGEs, the transmittal memo should
include a specific rate of pay for those members. Members can be
appointed as SGEs if the authorizing statute requires members to be
paid or the Deputy Administrator determines that EPA needs
members who have a high level of specific scientific or technical
knowledge, and it would be appropriate to compensate those
members.
The justification statement, which undergoes EPA and GSA review,
should contain the following elements:
1. An explanation that the advisory committee is necessary, its
purpose, and how it relates to the Administration's initiatives,
priorities, and strategic goals;
2. A narrative that demonstrates the advisory committee will
address issues of significant national interest or is needed to
ensure proper conduct of Agency business;
3. An authorization statement outlining and citing Executive
Order or authorizing legislation that requires the committee be
created;
4. A description of the Agency's plan to attain fairly balanced
membership. This plan demonstrates that EPA will consider a
cross-section of stakeholders directly affected/interested and
qualified when selecting advisory committee members; and
5. The name, title, and contact information for the appropriate
EPA official who has been designated to serve as the contact
person. For negotiated rulemaking committees, this person
will serve as the contact in the event that GSA has any
substantive questions concerning the proposed advisory
committee.
October 15,2003
Page 4-6
-------
Federal Advisory Committee Handbook
Note: 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.
4.3.3 Preparing
Cost
Estimates
Three different types of costs factor into your preparation of the
"Cost and EPA Personnel Work Year Estimates." These costs
include compensation costs, travel and per diem costs, and other
costs (e.g., rental costs, and contractor support costs). The
following pages discuss each type of cost, how you calculate those
costs and provide the worksheets and the specific formulas to use in
your calculations.
Worksheets 1 and
2, Personnel Work
Costs and Travel,
Per Diem, and
other Committee
Note: The Program Office makes the final
determination whether or not to compensate
committee members, unless the authorizing
statute states that the committee members
will receive compensation.
costs can be found
at Exhibit 4-2
(Cost and EPA
Personnel Work
Estimates).
Compensation/Personnel Payments
A. Non-Federal Members (Special Government Employees'):
Determine the estimated compensation costs for committee
members who are appointed as Special Government Employees
(SGE) members of the committee.
B. Non-Federal Members (Representative Members'):
Representative members are not compensated, therefore, enter zero.
C. Federal Members (Prorated - EPA members only):
Estimate the percentage of time each EPA employee committee
members is expected to spend on committee matters and multiply it
by each individual's annual salary. Representatives of other federal
October 15, 2003
Page 4-7
-------
Federal Advisory Committee Handbook
Exhibit 4-2
Cost and EPA Personnel Work Year Estimates
Worksheet 1. Personnel Work Costs
Personnel Work Costs:
(A) Total Non-Federal Members (Special Government Employees) Costs:
(# of SGE) * (# meeting days per FY) * (Daily Compensation $)
(B) Non-Federal Members (Representative Members):
Representative members are not compensated, therefore, enter zero.
(C) Total Federal Members (Prorated - EPA members only) Costs:
(Percent annual time on committee) * (Annual Salary and locality Pay)
CD) Total Federal Staff (Prorated - includes DFO. support staff, etc.) Costs:
(Percent annual time on committee) * (Annual Salary) = (Y)
(Y) + (17% Benefit Pay percentage * (C)) = (D)
(E) Total Non-member Consultant Costs:
Actual Consultant Costs Billed to the Committee
Total Personnel Work Costs:
$.
$.
October 15, 2003
Page 4-8
-------
Federal Advisory Committee Handbook
Exhibit 4-2
Cost and EPA Personnel Work Year Estimates
Worksheet 2, Travel, Per Diem, and Other Committee Costs
Travel and Per Diem Costs:
The travel cost calculation is the same for each person authorized to receive
travel and per diem compensation:
(# of meetings * # days per meeting) * (Per Diem for the location of the meeting)
+ (Travel cost * estimated # of trips)
(F) Total Travel and per diem costs for Non-Federal Members:
(Representative Members or SGEs)
(G) Total estimated travel and oer diem costs for Federal Members:
(H) Total estimated travel and oer diem costs for Federal Staff:
(DFO and EPA Support Staff)
[I) Total estimated travel and per diem costs for Non-member Consultants:
Total estimated travel and per diem costs:
Other Costs:
(.1) Total estimated Contractor Support Costs:
(Note: Contractors may pay for rentals, but the DFO should track those costs as rental costs
for management tracking purposes after the committee is established)
(K) Total estimated Rental Costs:
(L) Other estimated Federal Advisory Committee Costs:
Total Travel, Per Diem, and Other Committee Costs:
Total Personnel Work Costs (Worksheet 1):
Total Estimated Work Year Costs:
(Total Worksheet 1 Costs + Total Worksheet 2 Costs)
$
$
$
$
$
$
$
$
$
October 15,2003
Page 4-9
-------
Federal Advisory Committee Handbook
agencies generally are compensated by their employing agency, not
EPA. Only include the costs of Federal members paid for by EPA.
D. Federal Staff (Prorated - includes DFO. support staff, etc.):
Estimate the percentage of time the Designated Federal Officer
(DFO) and other assistants are expected to spend on committee
matters and multiply it by their estimated salary. That prorated
salary is then multiplied by a benefit percentage of 17% to get the
total benefits cost. The prorated salary is added to the benefits costs
to get the total Federal Staff cost. Administrative time and costs
should be included in this estimate. Staffing is required to cover
these services. Make sure dollar amounts are equal to FTE staffing
levels and salaries.
E. Nonmember Consultants:
A consultant is someone hired and paid directly by EPA on a
consulting or expert appointment and is not a SGE or member of
the FAC. These costs are the costs incurred by the consultants.
Note: Express staff support fiscal years in Full-Time Equivalent
(FTE) years, rounding to one decimal place. Include the time of
all personnel involved in supporting the committee, no matter
how minimal that time.
(EXAMPLE: A DFO, who is a GS-14-step 5 with a salary level
(plus locality pay) of $88,699 per year, will spend 50 percent of
his/her duty time on tasks concerning the committee, or
$44,349.50, which is rounded-off to $44,350. Then, multiply
the prorated salary by the benefit percentage of 17 percent. Add
the DFO's prorated salary ($44,350) with the 17 percent benefits
($7,540) for a total cost of $51,890).
October 15,2003
Page 4-10
-------
Federal Advisory Committee Handbook
Travel & Per Diem
Most advisory committee members are reimbursed for travel and
per diem expenses. You should account for the estimated per diem
and travel costs that committee members incur when attending
committee meetings. These expenses should be estimated for the
four types of attendees eligible for travel and per diem
compensation under 5 U.S.C. 5703 (Invitation travel). Note that
Invitational travel can only be paid for individuals who are
attending the meeting to perform a direct service to EPA.
Invitational Travel cannot be used for individuals who attend only
to observe the meeting.
The four types of attendees that are eligible for travel and per diem
compensation are:
1. Non-Federal Members (Representative Members and Special
Government Employees)
2. Federal Members (EPA staff are not members)
3. Federal Staff (DFO and other EPA support staff)
4. Non-member Consultants
The travel cost calculation is the same for each type of attendee
authorized to receive travel and per diem compensation.
Other Committee Costs
Other costs include contractor support costs, rental costs, and other
costs associated with establishing, managing, and terminating a
FAC. These costs are described in more detail below.
G Contractor Support Costs:
Contractor support costs may include, but are not limited to:
contractor personnel costs for technical, administrative or
facilitation support; contractor personnel travel; personnel and
travel costs for experts retained by the contractor to assist the
committee; communications costs such as contractor phone,
October IS, 2003 Page 4-11
-------
Federal Advisory Committee Handbook
mail, courier, photocopying; court reporters retained by the
contractor to record meetings; audio equipment rented by the
contractor for use during meetings; and supplies such as flip
charts, notebooks, etc. (Note: Contractors may pay for
meeting room costs; however, for management tracking
purposes after the committee is established, the DFO should
report meeting room rental costs on the cost tracking
spreadsheet under Rental Costs).
Rental Costs:
These costs relate primarily to the meeting space; however,
other rental costs, such as audio-visual equipment, may also
be included. Meeting rooms may be rented by support
contractors as a portion of their support services.
Note: Due to restrictions on augmenting of Agency
funds, advisory committee members and their employers
may not pay the rental costs for items such as meeting
space or audio-visual equipment rental.
Other Committee Costs:
These costs include all other costs not estimated elsewhere,
such as equipment, supplies, maintenance, postage, courier,
phone, printing, graphics, Federal Register notices and
meeting announcements, shipping and distribution, and other
miscellaneous expenses.
October 15,2003
Page 4-12
-------
Federal Advisory Committee Handbook
4.3.4 The
Establishment
Federal Register
Notice for
Negotiated
Rulemaking
Committees
The DFO of a negotiated rulemaking committee should prepare the
establishment notice while awaiting completion of the GSA review.
Once its review of the negotiated rulemaking committee
Establishment Request Package is complete, the GSA Secretariat
notifies the CMO. The CMO then notifies the DFO. As soon as
possible after receiving notification from the CMO, the DFO should
submit the establishment notice for publication in the Federal
Register. This notice lets the public know about EPA's intent to
establish a negotiated rulemaking federal advisory committee.
Keep in mind that once EPA's CMO has consulted with the GSA
Committee Management Secretariat, the establishment process
should continue with the prompt publishing of this Federal Register
notice.
The negotiated rulemaking act requires the following information to
be included in the Federal Register:
1. An announcement that the Agency intends to establish a
negotiated rulemaking committee to negotiate and develop a
proposed rule;
2. A description of the subject and scope of the rule to be
developed, and the issues to be considered;
3. A list of the interests which are likely to be significantly
affected by the rule;
4. A list of the persons proposed to represent such interests and the
person or persons proposed to represent the Agency;
5. A proposed agenda and schedule for completing the work of the
committee, including a target date for publication by the Agency
of a proposed rule for notice and comment;
6. A description of administrative support of the committee to be
provided by the Agency, including technical assistance;
7. A solicitation for comments on the proposal to establish the
committee, and the proposed membership of the negotiated
rulemaking committee; and
October 15, 2003
Page 4-13
-------
Federal Advisory Committee Handbook
8. An explanation of how a person may apply or nominate another
person for membership on the committee. See 5 U.S.C.
§564(b).
The DFO should send a copy of the notice to the CMO once it has
been published in the Federal Register.
For a negotiated rulemaking committee, EPA must allow at least 30
days after the publication of the notice for the public to submit
comments on the proposed committee or applications for
membership. The Federal Register notice must be published at
least IS calender days before the Charter is filed with Congress.
The committee may not meet until after the Charter is filed with
Congress.
4.4 Preparing
the
Establishment
Charter
The purpose of an advisory committee Charter is to specify the
mission and general operational characteristics of a particular
committee. The requesting office/DFO should provide the required
information to the CMO. The CMO will create a draft Charter
including all statutory requirements. There are Charter components
that are mandatory and other Charter components that improve the
overall package, but are not explicitly required. Specifically, EPA
advisory committee Charters consist of the statutorily-required
components set out in FACA and additional EPA-specific
components that are designed to provide additional information to
interested parties. These requirements are provided in Exhibit 4-3
"Required Charter Components Checklist." Additional information
the Charter should contain, but is not required, can be found in
Exhibit 4-4 "Other Charter Components Checklist."
October 15,2003
Page 4-14
-------
Federal Advisory Committee Handbook
Exhibit 4-3
Required Charter Components Checklist
The required components of an EPA Federal Advisory Committee Charter are:
G 1. The advisory committee's official title.
G 2. The advisory committee's objectives and the scope of its activity.
G 3. The estimated period of time necessary for the advisory committee to carry out its
purposes.
G 4. The Federal official to whom the advisory committee reports.
G 5. EPA's responsibility for providing the necessary support for the advisory
committee. (EPA Charters identify the responsible EPA office)
G 6. A description of the duties for which the advisory committee is responsible, and, if
such duties are not solely advisory, the source(s) of authority for non-advisory
functions.
G 7. The estimated annual operating costs in dollars (including compensation, travel and
. per diem, staff salaries, consultant fees, printing, commercially rented space, etc.)
and work-years for staff support for the advisory committee.
G 8. The estimated number and frequency of advisory committee meetings.
G 9. The advisory committee's termination date, if less than two years from the date of
advisory committee establishment.
G lO.The filing date of the Charter. (The CMO inserts this date after the process is
complete.)
October 15, 2003
Page 4-15
-------
Federal Advisory Committee Handbook
Exhibit 4-4
Other Charter Components Checklist
In addition to Charter elements required by FACA, the establishment Charter should also
contain the following information:
G 1. A statement indicating that the Charter is establishing the advisory committee.
G 2. A statement regarding whether the authority to establish the FAC is provided by
statute, the President, or by Executive Order.
G 3. The estimated number of advisory committee members and a description of the
types of expertise needed to achieve a fairly balanced membership in terms of the
points of views represented and the functions to be performed.
G 4. A statement regarding whether members will be appointed as Special Government
Employees subject to the conflict-of-interest restrictions (paid members), or as
representatives of non-federal interests (members are not paid, though they receive
travel and per diem reimbursement).
G 5. A statement regarding the requirement for a full-time or permanent part-time
employee of the Agency to serve as the Designated Federal Officer.
G 6. A statement as to whether the advisory committee is authorized to establish
subgroups that report back to the parent advisory committee.
October 15,2003
Page 4-16
-------
Federal Advisory Committee Handbook
4.4.1 Filing the
Charter
4.5 Non-
Discretionary
Committee
Management
Tips
Charter filing process for a negotiated rulemaking committee
After EPA consults with GS A and EPA has published the Federal
Register notice announcing the establishment of the committee, the
CMO asks EPA's Office of Congressional and Intergovernmental
Relations to file the Charter with the appropriate Congressional
committees and the Library of Congress. The date the Charter is
filed with Congress is considered the establishment date. The CMO
will then file a dated Charter with the GSA Secretariat to complete
the establishment process.
Process for non-discretionary committees
Once the Charter for a non-discretionary committee is prepared, the
CMO asks EPA's Office of Congressional and Intergovernmental
Relations to file the Charter with the appropriate Congressional
committees and the Library of Congress. The CMO then files a
dated Charter with the GSA Secretariat to complete the
establishment process. The date the Charter is filed with Congress
is considered the establishment date, unless the committee is a
Presidential advisory committee (that is, a committee that advises
the President). The establishment date for a Presidential advisory
committee is the date the Charter is filed with the GSA Committee
Management Secretariat.
Q 1. The membership selection process can be started before the
committee is established. See Chapter 5 regarding the member
selection and appointment process.
G 2. Sometimes it helps to have a contractor assist the DFO with
the administrative work associated with managing and
operating the committee. For example, a contractor could
prepare the meeting notice, take notes during the meeting and
prepare draft minutes, and arrange for a meeting location. See
Chapter 7 for information on how to use a contractor to assist
with a committee.
G 3. See Chapter 7 for information on how to prepare a Federal
Register notice for advisory committee meetings.
October 15,2003
Page 4-17
-------
Federal Advisory Committee Handbook
4. Committee costs may be auditedtrack expenses quarterly
and keep accurate records. A quarterly cost tracking
spreadsheet may be requested from the EPA CMO.
5. It is an EPA best practice to prepare draft bylaws and present
them for consideration and discussion at the committee's first
meeting. Contact the CMO for more information on drafting
bylaws. Members can review, comment on, and shortly
afterwards, adopt the bylaws. (Note: Have both the Committee
Management Officer and the OGC FACA Attorney review the
bylaws before they are adopted by the committee). See Chapter
6 for guidance on preparing the bylaws.
October 15,2003 Page 4-18
-------
Federal Advisory Committee Handbook
STEPS TO ESTABLISH A NON -DISCRETIONARY
FACA COMMITTEE
1
2
: STEP
Complete the establishment
questionnaire and select a prospective
DFO or point of contact.
(Questionnaire includes objectives, budget and
FTE forecast, number and kinds of members,
indication of type and number of meetings, and
duration of the committee, etc.)
The CMO drafts the committee's
Charter based on your answers to the
questionnaire
Prepare and submit Draft
Establishment Request Package to
the CMO, which includes:
2(a) Transmittal memo from AA to DA
2(b) Charter
2(c) Justification for Establishment
2(d) Detailed Cost Estimate
EST.TIME
* ,
Varies,
Depending
on the
Program
Office
Two weeks
Varies,
Depending
on the
Program
Office
WHO
Program
Office
CMO
Program
Office
Program
Office
CMO,
Program
Office
Program
Office
Program
Office
COMPLETE?
i * i
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
Q YES
DATE:
October 15, 2003
Page 4-19
-------
Federal Advisory Committee Handbook
3
4
5
6
, STEP :
2(e) For negotiated rulemaking
committees only: Federal Register
notice of Establishment
Review Draft Establishment Request
Package
G Transmittal memo from AA to DA
Q Charter
G Justification for Establishment
G Detailed Cost Estimate
G Federal Register notice of
Establishment (if applicable)
Finalize Draft Establishment Request
Package Based on CMO, OGC Review
G Transmittal memo from AA to DA
G Charter
G Justification for Establishment
G Detailed Cost Estimate
G For negotiated rulemaking committees
only: Federal Register notice of
Establishment
Review and Deputy Administrator
approval/signature on finalized
Establishment Request Package
For negotiated rulemaikng committees
only: after consultation with GS A,
publish a Federal Register notice of
EPA's intent to establish a Committee.
(FRN must be published IS days before filing
Charter w/Congress)
Allow 30 day comment and application
submittal period
EST.1TME
Varies,
Depending
on the
Program
Office
1- 2 weeks
Varies,
Depending
on the
Program
Office
2-3 weeks
IS days
30 days
WHO
Program
Office
CMO
(OGC
reviews
Charter)
Program
Office
CMO,
OGC,
Deputy
Administr-
ator
Program
Office
COMPLETE?
Q YES
DATE:
Q YES
DATE:
G YES
DATE:
Q YES
DATE:
Q YES
DATE:
October 15,2003
Page 4-20
-------
Federal Advisory Committee Handbook
- .
1
8
- '' " .. _' StJEP .-' ' "'
File Charter with Congress
File Charter with GSA Committee
Management Secretariat
EST.TIME.
2 weeks
WHO
CMO,
OCIR
COMPLETE?
Q YES
DATE:
Q YES
DATE:
October 15, 2003
Page 4-21
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15, 2003 Page 4-22
-------
Federal Advisory Committee Handbook
Chapter 4 Sample Documents
October 15, 2003 Page 4-23
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003 Page 4-24
-------
Federal Advisory Committee Handbook
Example Federal Register Notice of Establishment and Meeting of the Negotiated Rulemaking
Committee
[Federal Register: April 7,2003 (Volume 68, Number 66)]
[Proposed Rules]
[Page 16747-16748]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap03-23]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Chapter I [FRL-7474-6]
Establishment and Meeting of the Negotiated Rulemaking Committee on All Appropriate Inquiry
AGENCY: Environmental Protection Agency (EPA).
ACTION: Establishment of FACA Committee and meeting announcement.
SUMMARY: As required by section 9(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.
2. section 9(a)(2)), we are giving notice that the Environmental Protection Agency is establishing
the Negotiated Rulemaking Committee On All Appropriate Inquiry. We also are announcing the
date and location of the first meeting of the Committee. EPA has determined that the regulatory
negotiation process will ensure that we obtain a diverse array of input from both private sector
stakeholders and state program officials who are familiar with and have experience in implementing
processes to conduct all appropriate inquiry. EPA also has determined that this Committee is in the
public interest and will assist the Agency in performing its duties as prescribed in the Small
Business Liability Relief and Brownfields Revitalization Act (the Brownfields law). Negotiations
October 15,2003 Page 4-25
-------
Federal Advisory Committee Handbook
will begin in April 2003 and conclude by December 2003. Copies of the Committee Charter will be
filed with the appropriate committees of Congress and the Library of Congress.
DATES: The first meeting of the Negotiated Rulemaking Committee on All Appropriate Inquiry
will be held on April 29 and 30,2003. The meeting is scheduled for 9 a.m. to 4:30 p.m. on both
dates.
ADDRESSES: The first meeting of the Committee will be held in Conference Room 1117A of EPA
East, 1201 Constitution Ave. NW., Washington, DC. The meeting is scheduled for 9 a.m. to 4:30
p.m. on April 29 and 30,2003. FOR FURTHER INFORMATION CONTACT: Persons needing
further information should contact Patricia Overmeyer of EPA's Office of Brownfields Cleanup and
Redevelopment, 1200 Pennsylvania Ave., NW., Mailcode 5105T, Washington, DC 20460, (202)
566-2774, or overmeyer.patricia@epa.gov.
SUPPLEMENTARY INFORMATION: On March 6,2003 EPA published a notice in the Federal
Register (68 FR 10675) announcing its intent to form a negotiated rulemaking committee under the
Negotiated Rulemaking Act of 1996 and the Federal Advisory Committee Act. The purpose of the
Committee will be to conduct discussions and reach consensus, if possible, on proposed regulatory
language setting standards and practices for conducting all appropriate inquiry, as required by the
Small Business Liability Relief and Brownfields Revitalization Act (the Brownfields law). That
Notice discussed the issues to be negotiated and the interest groups proposed as members of the
committee. The notice also discussed the procedures involved in a Negotiated Rulemaking process.
The public comment period for that notice closed on April 5,2003. Issues for Negotiation We
anticipate that the issues to be addressed by the Negotiated Rulemaking Committee on All
Appropriate Inquiry may include:
Balancing the goals and priorities of state regulatory programs, privately-developed consensus
standards, and the Congressional mandate for a federal standard for conducting all appropriate
inquiry.
Developing clear and concise standards that address each of the statutory criteria (section
101(35)(B)(iii) of CERCLA).
Balancing the need to put abandoned properties back into productive reuse with concerns for public
health and environmental protection.
Balancing a need for clear and comprehensive standards that will ensure a high level of certainty in
identifying potential environmental concerns without imposing time consuming and unnecessarily
expensive regulatory requirements.
Defining the shelf life of an assessment and the extent to which an assessment, or the results of all
appropriate inquiry, may be transferred to subsequent property owners.
Minimizing disruptions to the current real estate market due to the development of a federal
standard that is different from current industry protocols while ensuring that the federal standard is
protective and in compliance with statutory criteria.
October 15,2003 Page 4-26
-------
Federal Advisory Committee Handbook
Identifying the extent to which sampling and analysis of potentially contaminated property may be
required to document the presence, or the lack of, environmental contamination.
Identifying what information is necessary on the potential contamination of adjacent and adjoining
properties, as well as underlying groundwater resources.
Establishing a list of contaminants to include in the investigation when conducting all appropriate
inquiry. Participants The Committee will be composed of approximately 25 members representing
parties of interest to the rulemaking ensuring a balanced representation from affected and interested
stakeholder groups. EPA anticipates that the committee will contain the following types of
representatives:
Environmental Interest Groups
Environmental Justice Community
Federal Government
Tribal Government
State Government
Local Government
Real Estate Developers
Bankers and Lenders
Environmental Professionals
EPA has determined that this Committee is in the public interest and will assist the Agency in
performing its duties as prescribed in the Small Business Liability Relief and Brownfields
Revitalization Act (the Brownfields law). The first meeting of the Committee will be held on April
29,2003 in Washington, DC. The Committee will address organizational issues such as ground
rules, schedules, and prioritization of issues discussions over the next few meetings. There is no
requirement for advance registration for members of the public who wish to attend and observe the
meeting. Opportunity for the general public to address the Committee will be provided at the end of
the Committee meeting agenda. Thomas P. Dunne, Associate Assistant Administrator, Office of
Solid Waste and Emergency Response.
[FR Doc. 03-7504 Filed 4-4-03; 8:45 am]
BILLING CODE 6560-50-P
October 15, 2003 Page 4-27
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003 Page 4-28
-------
-------
Federal Advisory Committee Handbook
Chapter 5: Selecting and Appointing Committee
Members
5.0 Overview
5.1
DFO
Responsibilities
An important element in the establishment of a federal advisory
committee is the selection and appointment of committee members.
This is an activity that can be started while EPA is going through
the Charter approval process. Though your committee cannot meet
or operate until the Charter is filed with Congress and/or GSA,
selecting and appointing members early ensures that your
committee can meet soon after the Charter is filed. This chapter
discusses how to select and appoint members to your committee. A
detailed description of the contents to be included in your
membership package and the Agency's process for concurrence and
approval of committee members are discussed. This chapter also
summarizes additional membership considerations, such as term
limits, compensation, and the ethical requirements that apply to
members who are appointed as SGEs.
The DFO plays a central role in the selection and appointment of
committee members, and has responsibility for:
1. Identifying and soliciting candidates for membership on the
committee;
2. Establishing a balanced representation of points of view based
on the function of the committee;
3. Coordinating member selection and appointment with the
program office, OCEM, OGC, and the Agency's White House
Liaison; and
4. Assembling the membership package and obtaining the
appropriate Agency approval and concurrence.
Exhibit 5-1 provides an overview of the membership selection and
appointment process and, specifically, the column on the left
identifies the DFO's responsibilities during this process.
October 15, 2003
Page 5-1
-------
4- 6 Month Process
Designated Federal
Officer Process
(Solicit candktatest
Qrtlwr remmsSi ond
prepare member**
Prepare folder for
White Home Llalton
(10 days for review)
Prepare folder for
OGC
(10 day. for review)
Prepare and submit
membership package
for program approval
Obtain Internal
approval
Submit membership
package to OCEM's
CPO Staff
Exhibit 5-1
Membership Package Timeline
30 Day Process
Committee Management
Program Process
OCEM receives package
(The 30 business-day process
begins NOW)
CPO staff enter package into
Internal tracking system, review
for standard content & format
J
Package reviewed and verified
complete
CPO staff logs the package out
and sends to OEX
CPO staff sends courtesy email
to DFO, package is forwarded
to OEX
Office of Executive Secretariat
(OEX)
OEX will tog packages into
tracking system and review
OEX submits packages to 3rd
Floor Control Correspondence
Manager
Office of the Administrator's &
Deputy Administrator's Process
Associate D.A. distributes
package to Special Assistants
for environmental issue
review, and to the White
House Liaison for review
Packages will be i
Associate DJ\.
red by
Packages for the
Administrator's Signature will
also be reviewed by
Administrator's Chief of Staff
Designated Special Assistant
logs out package in Tracking
System and returns to OEX
for Signature (Autopen)
OEX will distribute letters or
return packages to DFO for
mailing
Correspondence Manager
gives package to Associate
D.A.
J
-------
Federal Advisory Committee Handbook
5.2 Membership DFOs are responsible for identifying, soliciting, and recommending
Selection
Process
individuals to serve as committee members. There are several
considerations that should be factored into the membership
selection process. DFOs should consider the committee's
objectives, size, and FACA requirements for balanced membership.
In addition, there are specific processes and activities that DFOs
should follow when soliciting and evaluating candidate committee
members. At key points in the selection process, DFOs should
coordinate their activities and recommendations with OCEM, OGC,
and the Agency's White House Liaison. These aspects of the
committee member selection process are discussed in this section.
5.2.7 Membership Before making any recommendations regarding membership
Considerations composition, thought should be given to the functions, tasks, and
needs of your committee. You should have a clear sense of the
objectives of your committee, including the issues, concerns,
disputes, and relationships that may impact subjects the committee
will be addressing. Based on this information, create a list of the
expertise, perspectives, and interests that should be represented on
your committee. This information will affect two key membership
considerations: 1) committee size and 2) composition.
Committee Size
For discretionary committees, there are no requirements regarding
the size of the advisory committee. Statutes mandating the
establishment of Non-Discretionary committees, however,
frequently include membership requirements. For example, the
Scientific Advisory Panel is limited to seven members (7 U.S.C.
§136w(d), and the Science Advisory Board must have at least nine
members (42 U.S.C. §4365(b)). The Negotiated Rulemaking Act
limits the number of members of a "Reg-Neg" committee to 25
unless the Administrator determines that additional members are
needed to achieve a balanced and/or functional committee (5 U.S.C.
§565(b)). However, when you are thinking about the size of your
committee, it is important to remember that a large committee can
be hard to manage, less effective, and can be more costly.
Therefore, you should limit the number of members on your
committee to the fewest needed in order to most efficiently and
effectively accomplish the objectives set out for your advisory
committee in its Charter, while ensuring a balanced membership.
October 15, 2003
Page 5-3
-------
Federal Advisory Committee Handbook
Composition
If you find that the committee may benefit from the assistance of
specialized experts, you can bring them into the committee as paid
or unpaid consultants who will participate as needed.
A key consideration when selecting committee members is the
FACA requirement for balance. FACA requires that the
membership of an advisory committee be fairly balanced in the
points of view represented and the functions to be performed by the
committee. Your committee's Charter should include an
explanation of how balanced membership will be achieved and
maintained. Starting the selection process early (four to six months
before you fill any vacancies) can help you find a broader range of
candidates for committee membership.
FACA does not mandate how a committee can achieve a balanced
membership. This allows agencies the discretion to establish their
own selection criteria based on the needs of a particular committee.
General guidelines to consider when addressing balanced
membership include:
1. The subject matter expertise needed to achieve the advisory
committee's objective;
2. The potential geographic, ethnic, social, economic, or
scientific impact of the advisory committee's
recommendations;
3. The specific perspectives or points of view that should be
included such as those of consumers, technical experts,
academia, the public at-large, business (large or small),
federal, Tribal, state, and local government, or non-
governmental organizations;
4. Groups that have been involved or have a particular interest in
the subject matter of the committee; and
5. The relevance of local, state, or Tribal governments to the
development of the advisory committee's recommendations.
October 15, 2003
Page 5-4
-------
Federal Advisory Committee Handbook
5.2.2 Other
Membership
Considerations
This section addresses several aspects of committee membership
that you should consider during the appointment process, including
term limits, use of alternates, compensation and rates of pay, and
ethical requirements specific to members appointed as SGEs.
Membership Term FACA requires balanced membership and fair representation with
Limits respect to points of view. EPA's policy is that members be
appointed for terms no longer than six years in order to provide
fresh perspectives on the committee. Membership terms should be
specified clearly in both invitation and reappointment letters.
Note: DFOs may consider assigning new members to a one-
year term to determine whether they will participate fully in
the committee's demanding work load schedule and its
collaborative process.
Under the EPA policy, the Deputy Administrator may grant re-
appointments beyond the six-year limit if the program/DFO
provides adequate justification as to why an appropriate
replacement cannot be found. However, it is EPA policy to appoint
committee members to no more than two terms. DFOs are
encouraged to rotate individuals onto the committee to ensure the
committee reflects differing points of view. Coordinate with the
CMO if you are considering extending the term of a member
beyond the six-year limit.
Note: You may want to stagger the terms of
members so that at any given time, no more
than one-third of the committee members
are at the end of their terms. This may help
you avoid disruptions to committee
activities, ensure a smooth succession, and
maintain differing points of view.
Backup
Nominees
FACA does not address the use of alternates when appointed
committee members are unable to attend committee meetings.
Under EPA policy, alternates may attend committee meetings on
behalf of members, but alternates are not appointed as members to
the committee or compensated for travel to any meetings. It is the
October 15, 2003
Page 5-5
-------
Federal Advisory Committee Handbook
Agency's policy that alternates generally should not vote in
committee meetings, because the alternates are not official
committee members (they have not been invited by the
Administrator, and they have not been evaluated in terms of a
committee's balance or potential conflict of interest concerns). You
should coordinate with the CMO and OGC when considering the
roles of alternates in committee activities. You also should include
procedures relating to the use of alternates in the committee's
bylaws.
Committee
Member
Compensation
FACA does not require advisory committee members be
compensated, unless otherwise provided bylaw. Representative
members (those who represent the interests of non-federal groups or
organizations ) are not eligible for compensation. Alternatively,
members appointed as Special Government Employees (SGEs) are
eligible for compensation. Generally, members appointed as SGEs
provide independent views or advice to the committee. SGEs
provide expertise or perspectives that might not be available within
the Agency. Unless otherwise set out in the enabling statute, the
Administrator makes the final determination on whether
compensation is appropriate for FAC members.
FACA requires that agencies establish a uniform and fair rate of
pay for services of members, staff, and consultants of advisory
committees. The GSA Rule on Federal Advisory Committee
Management provides guidance in implementing FACA uniform
pay guidelines for members (41 C.F.R. § 102-3.130). The rate of
pay should take into consideration the significance, scope, and
technical complexity of the matters the committee will address, as
well as the qualifications of the committee members. The
recommended rate of pay for advisory committee members should
be transmitted to the Administrator for final approval.
Note: The GSA Regulation allows an Agency to accept
"gratuitous services of an advisory committee member, staff,
or consultant who agrees in advance in writing to serve
without compensation."
October 15, 2003
Page 5-6
-------
Federal Advisory Committee Handbook
Special Government SGEs are temporary EPA employees who are appointed for less
Employee
Considerations
than 130 days out of 365 consecutive days, regardless of whether
they are compensated. SGEs are subject to all ethics in government
and conflict-of-interest laws, unless they are specifically exempted
by statute. Note that the Appropriations Act limits our ability to
compensate foreign nationals. Contact OGC's FACA attorney if
you want to appoint a foreign national as an SGE. In addition, the
Emoluments Clause of the US Constitution limits our ability to
appoint individuals who are compensated by a foreign government
as an SGE. Contact OGC's Ethics Official for advice on appointing
such individuals. SGEs also must comply with the Agency's
standard of conduct regulations, and complete the Agency's
financial disclosure forms. Your program office's personnel team
leader can advise you on the forms required from an SGE. The
financial disclosure forms must be completed before the individual
can be appointed as committee member and an SGE.
When drafting the invitation or reappointment letter for a person
who you expect to be appointed as an SGE, you should include the
following information:
1. The member's eligibility for compensation and the expected
rate of compensation;
2. The member's eligibility for travel and per diem allowances;
and
3. The applicability of federal ethics and conflict of interest laws,
the Agency's standard of conduct regulations, and financial
disclosure requirements.
Contact OCEM for additional advice or guidance on the process for
appointing SGEs to your committee.
5.2.3 Solicitation
and Evaluation
Process
The solicitation and evaluation process should be started six months
before you convene your committee. Having the best people who
represent key interests and balanced viewpoints enables your
committee to provide EPA with recommendations that the Agency
can rely on as collective advice representing diverse stakeholder
perspectives.
October 15, 2003
Page 5-7
-------
Federal Advisory Committee Handbook
Soliciting
Members
You typically begin the solicitation process by compiling a list of
people or organizations who have knowledge and/or involvement in
the issues that your committee is addressing. The list of potential
candidates can be compiled from many sources, including other
Agency officials, other federal officials, Tribal governments,
Congress, professional associations, current and former advisory
committee members, stakeholders, or the general public. It is a best
practice to broaden your pool of qualified candidates by soliciting
nominations of qualified individuals through a Federal Register
notice, newspapers, and other forms of public solicitation. You also
may contact the CMO or other OCEM staff to discuss approaches
that have been successfully employed by other committees to
identify member candidates.
Note: Under EPA policy, organizations generally are not
appointed as committee members. Individuals, however, may be
appointed as members to represent organizations, including
associations and other organized interests.
Interviewing
Candidates
The candidates should be interviewed in person or by telephone
using a pre-developed set of questions. The questions should be
designed to determine a candidate's:
G Background and qualifications;
Q Interest in, current or former involvement in, and current or
former positions involving the issues or subject area to be
addressed by the committee;
Q Skills and experience in communication and collaboration
processes;
Q Views on EPA's goals for this committee process;
G Availability and willingness to commit the time needed to
participate as a member of the committee (provide information
October 15, 2003
Page 5-8
-------
Federal Advisory Committee Handbook
on the anticipated workload and the number and the location of
committee meetings);
G What the person feels he/she could contribute to the
committee; and
G Special concerns that they may have about participating on the
committee.
Be sure to review your Charter often throughout this interview
process to help ensure that your questions are focused on the goals
of the committee as they are established in the committee Charter.
Note: Caution should be taken to advise candidates that this is
an initial inquiry of interest and availability and that the Deputy
Administrator makes the official selection of committee
members based on staff recommendations.
Evaluating
Candidates
There are several criteria that could be used to evaluate potential
committee members. Use your committee Charter as a basis for
establishing criteria you need to fulfill your membership needs.
Some examples of criteria that you may use to screen candidates
include:
The level of knowledge and experience that would help
members address the issues facing the committee;
The communication skills/style and other attributes or
experiences which make individuals good candidates for a
collaborative group process;
The types of interests that would help members address the
issues facing the committee;
The number of individuals that should represent each interest,
and the overall maximum number of committee members;
October 15, 2003
Page 5-9
-------
Federal Advisory Committee Handbook
G The variety of perspectives or points of view needed to achieve
balance; and
G Diversity, environmental justice, and geographic
considerations.
These and any other criteria that you identify should enable you to
best match candidate members with the needs of your advisory
committee. It is also a good idea to have a list of several "backup
members" to use as alternates, in case any of your potential
candidates do not make the final list of members. Based on the
interviews and each candidate's ability to meet the criteria that you
establish, select your proposed members and prepare a final list of
candidates for committee membership. Using this list, you should
organize the proposed members into a grid according to their
affiliation (e.g., other federal agencies, states, Tribes, local
governments, private sector, academia, non-government
organizations), and other attributes or interests that they represent,
such as their area of expertise or their geographic perspective. This
membership grid will help you to identify potential gaps as you
seek to ensure a balanced advisory committee, and can be used as
the basis of discussions with other Agency officials as final
decisions about the composition of your committee and the
selection of committee members are made. The membership grid is
discussed further in the next section.
5.2.4 Obtaining You should coordinate closely with OGC and the Agency's White
OGC/White House House Liaison as you solicit prospective committee members and
Liaison Approval select nominees. OGC can work with you to ensure that the
committee is fairly balanced in terms of the points of view
represented and the functions to be performed by the advisory
committee. The White House Liaison is concerned with the
composition of the committee, the interests represented, and the
knowledge and experience of candidate members. OCEM staff
members also are available to provide assistance and guidance
throughout the member selection and evaluation process.
5.3 Appointing Although new advisory committees cannot meet or operate until the
Committee Charter is filed with Congress and/or GSA, you can begin the
Members appointment process at any time during the committee
October 15, 2003
Page 5-10
-------
Federal Advisory Committee Handbook
establishment process. Members can be selected and invited to join
the committee prior to completion of the establishment process so
that the first meeting can be held shortly after the Charter is filed
with Congress. You should begin the appointment process as early
as possible to allow sufficient time for the concurrence and
approval process so that the entire process is completed on time.
Note: It will take between 4 and 6 months to
appoint new committee members, so start
the process early.
To formally appoint committee members, you should prepare a
membership package for initial review and approval by several
Agency offices. First you should get initial approval from the OGC
and the White House Liaison. After you prepare the official
membership package, your program office should approve it.
OCEM should then review and approve the package. Finally,
OCEM forwards the approved package to the Office of the
Executive Secretariat (OEX), and the Office of the Administrator.
If the membership package is complete, this approval process will
typically be completed within 30 business days of submitting the
package to OCEM. Following approval and concurrence, either
you or OEX will send the appropriate invitational, reappointment,
and/or thank you letters signed by the Administrator or Deputy
Administrator to your committee members. The following provides
more detailed information on the contents of the membership
package and the Agency's internal membership concurrence and
approval process.
5.3.7 Membership Exhibit 5-1 at the beginning of this chapter provides a diagram of
Package Approval the membership package assembly, review, and approval process.
Process The diagram also provides the time frame for the membership
package preparation and approval process. Keep in mind that when
replacing committee members, it is important to have the
nomination/appointment procedures completed by the time an
actual vacancy occurs. This typically means that you should begin
the appointment process for replacements approximately six months
prior to the vacancy.
October 15, 2003 Page 5-11
-------
Federal Advisory Committee Handbook
5.3.2 Assembling
the Membership
Package
The membership package is submitted in an official green folder
that contains important documents relating to the selection of
members for your committee. Exhibit 5-2 provides a
representation of the contents of a membership package and how it
is organized. You are responsible for preparing and organizing the
contents of this package, and coordinating the concurrence and
approval process within the Agency.
Left Side of
Package
Right Side of
Package
On the left side of the membership package, you should attach: (1)
a list of names and addresses of identical letters (i.e., invitational,
reappointment, thank you letters) that are included in the package
(this lets the Office of the Executive Secretariat check spellings,
names, etc., and know how many letters need signatures); and (2) a
diskette with electronic files of the Action Memorandum and the
letters included in the package.
The standard contents of the membership package are provided in
the right side of the double pocket folder, and include the following
elements:
1. Action Memorandum. This memorandum is prepared by the
program office and identifies and formally requests the
approval of the candidate members of the committee. The
Action Memo is attached to the right of the double pocket
membership folder so that it is the first document facing the
reader. Action memos should be consistent and contain, at a
minimum, the following elements:
A brief sentence listing former members and a
simple explanation detailing why these
members are coming off the committee (e.g.,
term has expired, member had conflicts and
other engagements).
- A brief paragraph describing your solicitation
process/selection criteria, a listing of proposed
new members, and an explanation of why you
are nominating these individuals (i.e., expertise
in field, recommended by non-governmental
organization).
October 15, 2003
Page 5-12
-------
Federal Advisory Committee Handbook
Exhibit 5-2
Contents and Organization of Membership Package Materials
Checklist
The membership package should contain the following materials:
1. Action Memorandum containing:
An explanation of why members are coming off the committee;
The solicitation process/selection criteria, a listing of new members, and an
explanation of why you are nominating these individuals;
A Membership Grid (Grid may be the same one you prepared to discuss balance;
A summary or brief biographies of nominees; and
A sentence acknowledging balance and diversity have been considered.
(for SGE Committees ONLY) If your committee obtains SGE required information
regarding Personnel Documents (i.e., Ethics, Conflict of Interest, etc.) before mailing
out the Invitation/Appointment Letter, then a brief sentence re: the screening of the
Government Ethics summary and Confidential Financial Disclosure information should
be included.
2. Invitation Letters that must include (at a minimum):
A brief sentence listing purpose of letter, name of committee, and what committee
does;
Membership term START and END dates;
Reference to enclosed "Federal Advisory Committee Act; and
Reference to enclosed membership confirmation form.
(for SGE committees ONLY) Reference to enclosed Ethics and Confidential
Disclosure Forms, and any applicable Personnel Forms, if such documents have not
been provided already.
3. Reappointment Letters that must include (at a minimum):
A brief sentence stating purpose of letter;
Membership term START and END dates;
Reference to enclosed "Federal Advisory Committee Act;" and
Reference to enclosed membership confirmation form.
4. Thank You Letters that must include (at a minimum):
A brief sentence stating purpose of letter; and
Statement thanking members for their service.
October 15, 2003
Page 5-13
-------
Federal Advisory Committee Handbook
Membership Grid, showing current members, former
members, and new nominees, affiliations, and terms. This
grid may be the same one you prepared for discussions
with OGC to discuss balance.
- A summary or brief biographies of the nominees.
- A sentence acknowledging requirements for balance and
diversity have been met.
2. Invitation Letters for new members being appointed to the
committee. Invitational letters are prepared for each appointed
member and are signed by either the Administrator or the
Deputy Administrator. Invitational letters should immediately
follow your Action Memo. The letters follow a standard
template, which should include, at a minimum:
- A brief sentence stating the purpose of letter, name of the
committee, and the scope of the committee.
- Membership term START and END dates.
- Reference to enclosed "Federal Advisory Committee Act."
- Reference to enclosed membership acceptance form.
Hints for Invitation Letters/Reappointment Letters:
Use Administrator letterhead for any letters to be signed by the
Agency Administrator.
Use Office of the Administrator letterhead for any letters to be
signed by the Deputy Administrator.
Have your Program Correspondence Control Manager review
all of-your letters for grammar and spelling.
3. Reappointment Letters for current members who will serve
another term. Reappointment letters are prepared for those
committee members who are invited to continue to serve on
the committee for another term. Reappointment letters should
immediately follow your invitational letters. The letters are
signed by either the Administrator or the Deputy Administrator
October 15, 2003
Page 5-14
-------
Federal Advisory Committee Handbook
and follow a standard template, which should include, at a
minimum:
- A brief sentence stating the purpose of the letter.
- Membership term START and END dates.
- Reference to enclosed "Federal Advisory Committee Act."
- Reference to enclosed membership confirmation form.
4. Thank You Letters for current committee members who have
completed their terms and will no longer serve on the
committee. These letters are signed by the Administrator or the
Deputy Administrator and should, at a minimum, include a
statement of the purpose of the letter and an expression of
appreciation for their service on the committee. Thank you
letters should immediately follow your reappointment letters.
Because these examples may not be accurate templates for all
committees (e.g., Reg Neg committees), be sure to contact OCEM
to obtain additional examples.
Several attachments also should be included with your external
correspondence in this section. Attach a copy of the FACA law and
a membership acceptance form. If the committee membership
includes SGEs, in addition to the FACA law and membership
acceptance form, you will also need to attach the Office of
Government Ethics (OGE) Confidentiality Form (EPA Form 3110-
48), and a personnel package of forms. Finally, you should include
the routing slip and the yellow concurrence sheet with the
appropriate signatures from your program office, the OGC, OCEM,
and the Office of the Administrator. If any of these attachments are
not included in the package, you should provide an explanation.
This alerts the reviewer and allows the reviewer to contact you
directly without returning the package.
October 15, 2003 Page 5-15
-------
Federal Advisory Committee Handbook
Additional
Materials
In the expandable folder labeled Additional Documents, you may
provide additional supporting documents, such as fact sheets, the
previous year report or annual report, the committee Charter, and
the committee bylaws. As the DFO, you have flexibility in
deciding what important information to include in this section.
Before you submit the completed membership package, you may
want to include the following documents and materials to ease the
review and approval process:
A "one-pager" indicating any duplicate letters that need
signatures (also serves to tell the reviewer how many letters
need to be signed);
A floppy disk containing backup copies of the Action
Memorandum and the letters included in the package (this
allows OEX to make small changes without returning the
package to the DFO);
Tabs indicating a need for signature on the letters that need
signatures;
An acceptance form for the prospective members;
Envelopes if OEX is distributing the package materials
(If the DFO will be responsible for mailing, do not include
envelopes and only include a single copy of all attachments for
review. This will let OEX know the package needs to be
returned to the DFO for mailing.);
A routing slip on the outside of the package that indicates a
contact person in case of any questions or early pick-up;
A copy of FACA; and
OGE confidential forms and personnel forms, as required
(only for SGE committees).
DFO Process
As previously discussed, the membership package process begins
with your efforts to identify and solicit candidates. During this
process, you will discuss committee composition with the Agency's
White House Liaison, and contact the OGC to discuss the balance
of your committee. An important document during this part of the
process is the membership grid, which you should provide to the
OGC. You will forward your routing slip and required information
to the White House Liaison and OGC. They will sign it after
October 15, 2003
Page 5-16
-------
Federal Advisory Committee Handbook
reviewing your initial packet, before you begin preparing your
membership package folder. The original routing slip will
accompany your membership folder to provide verification to the
Administrator's Office that you have considered balance and
diversity requirements.
Note: If any changes are made to the nominations list after OGC's initial
review and approval, you should schedule a follow-up meeting with OGC
to again review committee balance and membership.
Committee
Management
Program Process
OEX Process
As the composition of your committee takes shape, you should
prepare the membership package and obtain approval from your
program office. To verify that your management has signed off on
the letters included in the package, you will attach the original
concurrence slips in the membership package folder. Once you
have your program's approval and then it is submitted to OCEM's
Committee Program Office (CPO). At this point, the package is
tracked through internal tracking systems and the 30 business day
approval process begins.
Within five days of receiving the membership package, CPO staff
will process membership packages by:
- entering the package into an internal tracking system;
- reviewing the contents and format of the package;
- verifying (by signed memorandum) that the package is
complete;
- logging the package out of the tracking system and
sending it to OEX; and
- Sending a courtesy e-mail to the DFO indicating that the
package has been forwarded to OEX.
Within four days of receiving the membership package, OEX will
log the package in the Agency's official tracking system and will
review the package for format and language. OEX will then submit
the package to the Office of the Administrator and Deputy
Administrator and update the tracking system. Within 14 days, the
Office of the Administrator reviews and, as appropriate, concurs
October 15, 2003
Page 5-17
-------
Federal Advisory Committee Handbook
Office of
Administrator's &
Deputy
Administrator's
Process
and obtains the signatures of the Administrator or Deputy
Administrator (DA).
The Administrator's Office process begins when the
Correspondence Manager receives the package and provides it to
the Associate Deputy Administrator. The Associate DA distributes
the package to Special Assistants for a review of environmental
issues and liaison activities. Packages that are authorized for the
Administrator's signature are reviewed and concurred with by the
Administrator's Chief of Staff. Packages authorized for the DA's
signature will be concurred with by the Deputy Administrator or the
Associate DA. The Designated Special Assistant will log the
package out of the Tracking System and return it to OEX for
signature (autopen). OEX will either distribute the packages to
committee members or will return it to the DFO for mailing.
5.5 Membership Some pitfalls to avoid in the selection and appointment process include:
Pitfalls to Avoid
Informally "inviting" individuals to join the committee before
a thorough evaluation of the goals, issues, and key
stakeholders has been completed;
»
Inviting too many representatives of one faction or interest,
and/or too few or none of other key interests - this may result
in the committee not being balanced in the viewpoints
represented which may skew its recommendations and reduce
its effectiveness;
Failing to develop and apply membership selection criteria to
all candidates; and
Creating a committee that is too large.
October 15, 2003
Page 5-18
-------
-------
Federal Advisory Committee Handbook
Chapter 6:
6.0 Overview
Creating and Amending Federal
Advisory Committee Bylaws
This chapter addresses bylaws, specifically, their purpose and
functionality, and when and how to create them. This chapter also
covers the amendment process. Bylaws are the internal, written
rules that govern your federal advisory committee. Bylaws perform
at least three functions. They determine: 1) how a committee is
structured, 2) the rights of the participants within the structure, and
3) the procedures by which the rights can be exercised. Typically,
bylaws are adopted or ratified by the committee at the first meeting.
Bylaws are especially useful to new DFOs as they provide the
framework and structure in which the committee operates. Bylaws
establish parameters by defining the scope and duration of and the
procedures governing the advisory committee's work. They clearly
define the mission and objectives of the committee as they answer
questions related to the committee's membership and organizational
structure. In addition, they address procedural issues such as
guidelines related to meetings and what constitutes a quorum for
voting purposes.
It is important to note that developing bylaws is considered a "Best
Practice" and is highly encouraged, though not mandatory under
FACA or the GSA rules.
October 15, 2003
Page 6-1
-------
Federal Advisory Committee Handbook
6.1 Bylaws vs.
Ground Rules
and Operating
Principles
Note that some federal advisory committees may opt to develop
either operating ground rules or operating principles or, in some
cases, both. Some ground rules merely serve as principles of
agreement related to the behavior or conduct of committee members.
For example, members may agree to conduct themselves in a
respectful manner and be open to collaboration. Bylaws, unlike
ground rules, do not contain subjective statements about the conduct
or behavior of the group. On the other hand, operating principles
reflect a group's procedural decisions. These can be very similar to
the portion of the bylaws that articulates how workgroups are
formed, and sometimes, the decision-making process to be used.
6.2 Drafting
Responsibilities
Typically, you, as the DFO, are responsible for drafting and/or
amending the bylaws. If a new advisory committee is formed, it is
recommended that you consult the CMO who has experience
creating bylaws, and the OGC FACA attorney, to assist with drafting
them.
6.3 When Bylaws Before an advisory committee meets for the first time, you should
Are Drafted
begin working with the CMO and the OGC FACA attorney to
develop a framework for the bylaws. This work may happen several
months before the first meeting or only weeks before, depending on
how quickly the committee meets after the Charter is approved. It is
recommended that this work begin as soon as possible.
In some cases, a Bylaws Subcommittee may be formed or an
Executive Subcommittee may be tasked with creating draft bylaws
after the committee's first meeting. In these situations, these
subcommittees meet specifically to develop the bylaws and then
bring them to the entire committee for adoption. In either case, the
bylaws should be sent to the CMO and OGC for final review and
approval. This approval process may simply consist of the CMO
sending you an e-mail approving your committee's bylaws.
6.4 Amending
Bylaws
The amending process is fairly straightforward as the bylaws may be
added to, amended or repealed in its entirety or in part. Any
committee member(s) or moving party may propose an amendment
at any time and be adopted by a vote of at least two-thirds of the
majority either at a regular meeting or in writing through a "send-in"
October 15,2003
Page 6-2
-------
Federal Advisory Committee Handbook
ballot process. (Note that administrative meetings are not considered
to be FACA meetings and do not need to be open to the public.)
However, the person proposing the amendment should provide each
committee member with a notice of intention to amend the bylaws
along with the proposed changes at least 30 days before the vote is to
occur. Again, the DFO is responsible for forwarding any and all
changes to the CMO and OGC for final review and approval.
6.5 Common
Bylaw Sections
These sections use "boilerplate" language that is common to most
bylaws. These sections may be easily created following the sample
document found at the end of this chapter. Most committee bylaws
address the following aspects of the committee and how it will
operate:
1. Official name of the committee or board;
2. Authority by which the committee is established;
3. Mission and Scope;
4. Membership-Selection, Appointment and Termination;
5. Organization;
6. Meetings- Compliance w/ FACA, Minutes and Records,
Schedule and Quorum;
7. Reports and Recommendations; and
8. Amendments.
The Charter should contain some of the information required in the
bylaws. In fact, the language should be consistent in both
documents. Understand that some information may be reflected in
the bylaws only.
Note: An advisory committee does not have the authority
to change the Charter. In the event of a conflict, the
Charter takes precedence over bylaws.
October 15, 2003
Page 6-3
-------
Federal Advisory Committee Handbook
6.5.1 Name
This section of the bylaws should contain the organization's or
advisory committee's formal name as stated in the Charter.
Note: The name of the organization is the official title of the
committee or board.
6.5.2 Authority
This section of the bylaws often has two parts. The first refers to the
authority by which the advisory committee was established, with
specific references made to the Agency, through the Administrator's
Office, Office of Cooperative Environmental Management under a
Charter approved by the General Services Administration. For the
second part, you should state that your advisory committee provides
advice consistent with the committee's current approved Charter and
all FACA requirements. A Presidential advisory committee's bylaws
should state "...advises the President." If it is discretionary, then the
language reads, "...advises the Agency Administrator...."
6.5.3 Mission and
Scope
This section of the bylaws identifies the committee's mission and the
scope of work to be conducted by the advisory committee. This
section may be brief, perhaps only identifying the mission statement
and broader objectives and/or activities. Generally, however, it
includes background information regarding the committee's history.
In addition, this section discusses the mission and objectives in
support of the mission, in some detail. This section should mirror
the information provided in the Charter document.
6.5.4 Membership The Membership section of the bylaws is divided into three distinct
subsections: 1) Representation; 2) Participant Categories,
Appointment Process, and Terms; and 3) Termination of
Membership. You will need to address all three parts to some
degree. Some bylaws contain single paragraphs for each part, while
others are considerably more detailed and include numerous clauses
within each subsection.
Representation
This section of the bylaws defines, with specificity, the committee's
composition. It serves to satisfy the FACA requirement that the
October 15, 2003
Page 6-4
-------
Federal Advisory Committee Handbook
committee be fairly balanced in its membership in terms of the
viewpoints represented and the functions to be performed. It is up to
the DFO and the program office to consider diversity within the
committee. A meeting with OGC should also be a part of the
process of achieving a balanced membership. For example,
information in this section may include geographic representation in
addition to representation from academia, consumers, technical
experts, the public-at-large, business, community groups, regulators,
environmental advocacy, and professional organizations. It is also
important to identify any representation of local, state or Tribal
governments. For more detailed information, refer to Chapter Five.
Participant Categories, Appointment Process, and Terms
This section of the bylaws is often divided into categories of
participation. The process for defining these categories may also be
found at Chapter Five. Organizationally, you will first define the
committee members category (i.e., representative participants and
SGEs). The first clause for representative members often states that
the members are uncompensated volunteers with equal voting and
decision making power. The next clause may state that members are
appointed by the Agency's Deputy Administrator in consultation
with the committee DFO and the committee Chair. The clauses
which follow identify the term of service, which is usually one or
two years. Subsequent clauses in this category may include:
1. The right to serve as a member on subcommittees or subgroups
formed under the committee's auspices.
2. The limitations of alternates or representatives participating in a
member's absence.
You should then provide the same information for each of the
subsequent categories of participation. Be certain to address:
1. Compensation
2. Travel expenses and reimbursement (unless covered under a
separate section)
3. Appointment process
4. Terms of service
5. Reappointment process
October 15, 2003 Page 6-5
-------
Federal Advisory Committee Handbook
While the following list is not exhaustive, these additional categories
may typically include:
1. Committee Advisors
2. Subcommittee members
3. Expert Witnesses and Consultants
Termination of Membership
This section of the bylaws addresses circumstances of committee
removal and generally contains boilerplate language; First, this
section discusses the Chairperson's ability to recommend termination
if two consecutive meetings
are missed. Next, it states
*u * *u T> *. Note: Only the Administrator or the
that the Deputy ^ t .' . . t t _...
c J Deputy Administrator (DA) can
terminate committee members.
Administrator (DA) may
remove any members who
change their professional
affiliation in order to
maintain balance among the membership sectors. Last, the section
identifies when members may be removed for cause as determined
by the Agency's Deputy Administrator. These reasons include:
1. He/she is determined to have violated the Ethics in Government
Act (SGEs only);
2. Personal/professional circumstances would prove detrimental or
disruptive to his/her continued participation in the committee's
work; or
3. Other reasons the DA deems appropriate.
October 15, 2003 Page 6-6
-------
Federal Advisory Committee Handbook
6.5.5 Committee
Organization
This section of the bylaws describes the committee's organizational
structure. It may be divided into three subsections: 1) Officers; 2)
Executive Committee; and 3) Committee Structure. This section
may only require a couple of paragraphs, depending on the
complexity of the committee.
Officers
This section may be further divided into the following smaller
subsections:
1. Chair;
2. Vice-Chair;
3. Committee chair and Vice chair/Co-chair;
4. Subcommittee chair; and
5. Designated Federal Officers, as appropriate.
Whether you decide to create many subsections or use the paragraph
format, this section provides much of the same type of information
found earlier in the Membership sections. In addition, this section
may outline the officer's role and responsibilities as well. For more
information, refer to Chapter Two.
Executive Committee
This section of the bylaws typically follows the same format as the
Officers' section. It begins by stating the composition of the
Executive Committee. The roles and responsibilities of the
Executive Committee working with the DFO are next defined. Last,
it states that this Committee will work with the DFO, CMO, and
OGC to ensure that all committees share information and adhere to
the bylaws.
Committee Structure
Overall, this section of the bylaws discusses the operating structure
of the committee. Again, boilerplate language is used to cover two
main provisions:
1. The number, designation, mission, scope, and membership of
committees at any time is subject to the approval by the DA,
October 15, 2003
Page 6-7
-------
Federal Advisory Committee Handbook
and subject to agreement between DFOs of the subcommittee and
parent committee.
2. Subcommittees and work groups formed under the committee
are subject to the rules of the parent committee, and do not
function or report recommendations independently.
6.5.6 Meetings
The Meeting section addresses FACA meeting requirements and
procedures that a committee adopts as part of its operating
procedures. Many committees choose to divide this section into five
subsections: 1) Compliance with FACA; 2) Minutes and records; 3)
Meeting scheduling; 4) Meeting quorums; and 5) Teleconferences
and e-mail.
It is important to note that there is a distinction between
teleconferences and the administrative calls made in the successful
running of your committee. Administrative calls are limited to
discussing non-substantive matters with committee members, such as
committee membership, travel, and for committee orientation. Since
these meetings are for administrative purposes, they are not subject
to the requirements of FACA, including giving notice of
administrative teleconferences in the Federal Register.
Compliance with FACA
Boilerplate language may also be used to cover more general
statements. For example, many committees begin this,section of the
bylaws by stating that, 'The Committee will operate in accordance
with all of the applicable requirements of FACA. Such requirements
include, but are not limited to: publishing notice of meetings in the
Federal Register, holding open meetings, and taking and distributing
meeting minutes."
You may also address specific practices related to holding open
meetings in this section of the bylaws. These practices may be as
general or as detailed as is necessary for the optimal functioning of
your committee. For example, while the following sample language
clearly articulates a Committee's operating practices, it is by no
means required language:
1. Unless otherwise determined in advance and authorized by the
EPA Administrator, all meetings will be open to the public.
October 15, 2003
Page 6-8
-------
Federal Advisory Committee Handbook
2. All materials brought before, or presented at, the meeting will
be made available to the public for review at the time of the
scheduled meeting.
3. Members of the public may attend any meeting or portion of a
meeting that is not closed to the public and may, at the
determination of the Chair and DFO, offer oral comments
during the public comment portion of the agenda.
4. Notice of meetings will be published in the Federal Register at
least 15 days before a meeting.
This section of the bylaws may also address closed meeting
procedures. Typically, it includes the following provisions:
1. Meetings will be closed only in limited circumstances, in
accordance with FACA policy.
2. Requests for closed meetings need to be approved by the CMO
and the OGC at least 30 days in advance of the session.
3. Where the DFO has determined that discussions during a
committee meeting will involve matters that fall into one of the
Government in the Sunshine Act (GISA) exemptions, the DFO
will obtain both OGC approval for the closed meeting and the
Administrator's written determination that the meeting will be
closed. The DFO will publish an advance notice of a closed
meeting citing the applicable GISA exemptions in the Federal
Register at least 15 days before the meeting.
4. The Federal Register notice may announce the closing of all or
part of the meeting. If, during the course of an open meeting,
matters inappropriate for public disclosure arise during
discussions, the DFO or Chair should terminate such
discussions. The DFO should then follow the procedure set out
in item 3. above to schedule a closed meeting.
Minutes and Records
Some committees also use the Meeting section of the bylaws to
clarify practices related to meeting minutes and records. Specific
practices regarding meeting agendas may vary, and therefore, if you
decide to discuss this topic, you should include language tailored to
your committee. For example, who prepares the agenda and the
October 15, 2003 Page 6-9
-------
Federal Advisory Committee Handbook
timing of circulation prior to the meeting may vary from committee
to committee. It is clear, however, that under FACA the DFO must
approve each agenda prior to convening any meeting. Making the
agenda available to the public is considered a "Best Practice" and is
encouraged. The following provisions concerning meeting minutes
and recordkeeping practices as they relate to public disclosure and
availability are fairly consistent among committees:
1. The DFO is responsible for ensuring meeting minutes are
prepared, certified by the chairperson, and copies are
distributed to each committee member.
2. Minutes of open meetings are available to the public upon
request (as required by FACA).
3. Minutes of closed meetings are not available to the public and
are kept in a separate file.
4. FACA requires the minutes to include a record of the persons
present (including the names of members of the public from
whom written or oral presentations were made); a complete and
accurate description of the matters discussed; conclusions
reached; and copies of all reports received, issued or approved
by the Committee.
5. The Chair is required to certify that the prepared meeting
minutes are accurate prior to distribution.
Schedule
This section in the bylaws broadly covers the meeting schedule and
is important to include. It does not clarify any details regarding the
frequency of meetings. Rather, it states that the full Committee
should meet in a plenary session at least once annually; the
Executive Committee, if one exists, meets as needed, generally at the
request of the Chair and the DFO; and the subcommittees meet at the
call of the Committee chair and the DFO.
Quorum
This section clarifies what constitutes a quorum, or the number of
members needed to conduct any business transactions and should be
included in your committee's bylaws. For most committees, the
presence of 51 percent of Committee members constitutes a quorum.
Quorum also can be defined as having half of the committee
members plus one present.
October 15, 2003 Page 6-10
-------
Federal Advisory Committee Handbook
6.5.7 Reports and
Recommendations
6.5.8 Amendments
6.6 Other
Miscellaneous
Sections
This section of the bylaws addresses the processes for drafting and
forwarding reports and making and approving recommendations.
Most committees include this section in the bylaws as it is important
for establishing the levels of review and acceptance of committee,
subcommittee, and other interim and final reports. You should be
certain to discuss the processes and protocols adopted by your
committee, with some degree of specificity. For example, some
committees elect to define the decision-making process or how the
group plans to achieve consensus for the development of
recommendations. Often, this section also includes alternatives to
these processes for special circumstances. This section should
discuss whether minority reports will be permitted and, if so, how
those reports will be identified and transmitted to EPA.
Unlike most sections, in this section you walk through not only each
step in the process but each level of review, the necessary approvals
within each level, the associated time frames for each step in the
process, and any other details which will reduce confusion and
ambiguity. Generally, this section requires a considerable amount of
time to complete because the language should clearly reflect your
committee's process agreements. Examples that may assist in
developing this section may be found at the end of this chapter.
In this final section of the bylaws, boilerplate language is often used.
This section often simply states that, "The Bylaws may be added to,
amended or repealed in whole or in part by vote of at least two-thirds
of the Committee at any regular meeting or by vote in writing,
provided that the notice of intention to do so is given to each
member at least 30 days preceding the vote."
Depending on the size, number of subcommittees and/or
workgroups, and complexity of your advisory committee, you may
determine that you should include additional sections to fully address
your committee's functionality and processes. For example, if your
committee routinely uses facilitators, you may wish to include a
section which outlines the agreed upon processes and procedures for
interacting with them. Additionally, you may create a section which
details your decision-making processes. For example, should your
committee determine that it wishes to operate by consensus, then this
section might define consensus and discuss the process to be used in
instances when consensus cannot be reached.
October 15,2003
Page 6-11
-------
Federal Advisory Committee Handbook
6.7 Tips Bear in mind, when drafting and amending your committee's bylaws,
that the purpose of them is to serve as a governance document.
While the document may be prescriptive, it should not be overly
constrictive; therefore, too much detail may serve as a barrier to your
committee's operational efficiency. However, the bylaws should not
be so vague that ambiguity and confusion result. The goal is to reach
a balance which clearly articulates your committee's processes and
practices. If you are uncertain at any point in the drafting or
amending process, please consult either the CMO or OGC's FACA
attorney.
October 15, 2003 Page 6-12
-------
Federal Advisory Committee Handbook
Chapter 6 Sample Documents
October 15,2003 Page 6-13
-------
Federal Advisory Committee Handbook
Example of Bylaws Language Taken From NACEPT
BY LAWS OF THE
U.S. ENVIRONMENTAL PROTECTION AGENCY
NATIONAL ADVISORY COUNCIL
FOR ENVIRONMENTAL POLICY AND TECHNOLOGY
ARTICLE I - NAME
The name of the organization shall be the National Advisory Council for Environmental Policy and
Technology.
ARTICLE II - AUTHORITY
The National Advisory Council for Environmental Policy and Technology (hereinafter NACEPT
or Council) is established within the U.S. Environmental Protection Agency (EPA), Administrator's Office,
Office of Cooperative Environmental Management (OCEM), under a charter approved by the Deputy
Administrator and by the U. S. General Services Administration.
NACEPT advises the Administrator of EPA consistent with its current approved charter and the
requirements of the Federal Advisory Committee Act.
ARTICLE III - MISSION AND SCOPE
Founded in 1988, NACEPT is EPA's national advisory committee for the formulation of recommendations
and advice on environmental policy and technology. NACEPT provides a forum for public discussion and
development of independent advice and counsel to the EPA Administrator by taking advantage of the
respective strengths and responsibilities of business and industry, government, academia, labor,
environmental advocacy organizations, community groups and others involved in environmental
management. The Council considers domestic and international environmental matters.
NACEPT's mission is to help EPA improve implementation of environmental programs by fostering more
effective use of the resources of all public and private institutions involved in environmental management.
NACEPT's activities are designed to: (1) Promote continuing consultation and debate to ensure mutual
understanding among the institutions involved in environmental management of the differing perspectives,
concern, and needs of each; (2) Maximize the extent to which each institutional participant understands,
accepts, and fulfills its environmental management responsibilities, (3) Facilitate broad public sharing of
information on environmental problems as well as alternative approaches and implementation strategies
for addressing them; and (4) Promote consideration of alternative strategies for leveraging resources to
address environmental needs.
ARTICLE IV - MEMBERSHIP
Section 1. Representation of Sectors
The Council shall be comprised of senior-level representatives from a broad range of interests, including
government, business and industry, academia, professional associations, and labor, environmental
advocacy and community groups.
Section 2: Participant Categories. Appointment Process, and Terms
alNACEPT Council Members
October 15,2003 Page 6-14
-------
Federal Advisory Committee Handbook
NACEPT Council Members, (hereinafter, Council Members) shall be volunteer officials who have full
voting rights in all Council and committee actions.
1) Council Members are appointed by the EPA Deputy Administrator, in consultation with the NACEPT
Designated Federal Official/Executive Director and Council Chair, for a term of one or two years. A
Council Member may be reappointed by the EPA Deputy Administrator for a second term not to exceed
two years.
2) Each Council Member may serve as a member of a single NACEPT Standing Committee, and may
serve as a full voting member of any NACEPT subcommittee, working group, etc. (hereinafter), group
formed under NACEPT auspices.
b) NACEPT Committee Members
NACEPT Committee Members shall be volunteer officials named to serve on a specific Standing
Committee or other group formed under NACEPT auspices. Committee Members shall be full participants
in the group's deliberations and have voting rights at this level. Committee Members shall not vote on
matters under consideration for approval by the full Council.
1) Committee Members are appointed by the EPA Deputy Administrator, in consultation with the Council
Executive Director and related Designated Federal Official. The term of a Committee Member shall be set
in accordance with the needs of the Council and conveyed to the Committee Member at the time of
appointment and are based on the need of the Administrator or Agency. Individuals generally shall be
appointed to a one year term and may be reappointed to consecutive one year terms as deemed
appropriate by the Deputy Administrator.
c) Expert Witnesses and Consultants
Expert witnesses and consultants provide specialized information or assistance to NACEPT. Experts and
consultants have no voting rights. Expert witnesses and consultants may be invited by the Chair of either
NACEPT or of a Standing Committee, in consultation with the Designated Federal Official.
Section 3. Termination of Membership
a) The Chair will seriously consider removal of a Council member if the member misses two consecutive
meetings of the Council.
b) A Council Member who changes his or her professional affiliation may be removed in order to maintain
balance among sectors of membership.
c) A Council Member may be removed for cause, as determined by the EPA Deputy Administrator, when
he or she is determined to have violated the Ethics in Government Act or when his or her continued
participation would reflect unfavorably on the overall actions of the Council.
d) A Committee Member may be removed by the Deputy Administrator in consultation with the Committee
Chair and the Designated Federal Official, for the reasons stated in b) and c) above or in accordance with
operating guidelines established for the Committee involved.
e) A member may be removed for other reasons the Agency deems appropriate.
ARTICLE V - COUNCIL ORGANIZATION
Section 1. Officers
a) Council Chair
October 15, 2003 Page 6-15
-------
Federal Advisory Committee Handbook
The Council shall have a Chair appointed by the Deputy Administrator, in consultation with the NACEPT
Designated Federal Official/Executive Director. The Chair shall serve a two-year term of office. The Chair
may be reappointed to a second term if the Agency deems it appropriate.
bl Council Vice Chair
The Council shall have a Vice Chair appointed by the EPA Deputy Administrator, in consultation with the
Council Chair and NACEPT Designated Federal Official/Executive Director. The Vice Chair shall serve in
the absence of the Chair and shall undertake ongoing responsibilities as determined by the Council Chair
and NACEPT Designated Federal Official/Executive Director.
c) Standing Committee Chairs and Vice Chairs or Co-Chairs
Each Standing Committee shall have a Chair and Co-Chair, appointed by the Deputy Administrator and in
consultation with the Council Chair and the Designated Federal Official/Executive Director. Each Standing
Committee Chair and Co-Chair shall serve a two year term of office. Committee chairs may be
reappointed to a second term not to exceed four years in duration.
d) Chairs of Other Groups Formed Under NACEPT Auspices
The Chair's of other groups formed under NACEPT auspices shall be appointed by the NACEPT
Designated Federal Official/Executive Director in consultation with the NACEPT Chair. The Chair (s) of the
group formed under NACEPT's auspices shall be a NACEPT Council Member.
e) Designated Federal Officials
The Director of the EPA Office of Cooperative Environmental Management shall be the Designated
Federal Official (DFO) for NACEPT and Executive Director for NACEPT. Standing committees formed
under NACEPT auspices shall have a federal employee serve as a Designated Federal Official.
Section 2. Committee Structure
a) The number, designation, mission, scope, and membership of Standing Committees at any time will be
subject to agreement between the Executive Committee and the NACEPT Designated Federal
Official/Executive Director.
b) Other groups formed under NACEPT auspices (e.g., focus group, working group, subcommittee, etc.)
may be formed upon agreement of the NACEPT Designated Federal Official/Executive Director and
appropriate individuals.
c) The Council shall act principally through the use of its committee structure.
Section 3. Executive Committee
a) There shall be an Executive Committee of the Council consisting of the Chair and Vice Chair of the
Council as well as the Chair and Co-Chair of each Standing Committee.
b) The Council Chair, in consultation with the Executive Committee and the NACEPT Designated Federal
Official/Executive Director shall be responsible for overall planning for the Council and for coordinating
activity among committees.
c) The Executive Committee shall be empowered to act for the Council between meetings of NACEPT.
ARTICLE VI - MEETINGS
Section 1. Compliance with FACA
October 15,2003 Page 6-16
-------
Federal Advisory Committee Handbook
NACEPT, its Standing Committees, and other groups formed under NACEPT auspices will operate in
accordance with all requirements of the Federal Advisory Committee Act (FACA). Such requirements
include but are not limited to: publishing notice of meetings in the Federal Register, holding open
meetings, and taking and distributing minutes of meetings.
Section 2. Meeting Scheduling
a) The full Council shall meet in plenary session at least annually.
b) The Executive Committee shall meet as needed. These meetings shall be held at the request of the
Council Chair and the NACEPT Designated Federal Official/Executive Director.
c) Standing Committees or other groups formed under NACEPT auspices shall meet as needed at the call
of the Committee Chair and the Designated Federal Official.
Section 3. Quorum
a) The presence of fifty-one percent of council members attending a Council meeting shall constitute a
quorum for transaction of business.
ARTICLE VII - REPORTS AND RECOMMENDATIONS
Section 1. NACEPT Committee Reports and Recommendations
a) A Standing Committee or other group formed under NACEPT auspices may bring a proposed
recommendation forward to the full Council for review and approval at any time.
b) A majority vote of the members of a Standing Committee or other group formed under NACEPT
auspices shall be sufficient for forwarding a recommendation to the full Council
for review and approval. Voting may take place in a Committee meeting by voice vote or by mail in writing.
If a vote is taken at a meeting, a majority of members present shall be considered a quorum.
c) Standing Committees or other groups formed under NACEPT auspices may issue their own draft
reports, including draft recommendations, if approved by a majority of the group's members as described
in b) above. These reports shall be considered draft NACEPT Committee Reports by the Agency until they
have undergone complete Council review.
Section 2. Council Reports and Recommendations
a) A report and/or recommendation shall be accepted for formal review and approved by the full NACEPT
Council if it was approved by a majority vote of a Standing Committee or group
formed under NACEPT auspices in accordance with Article VII - Section 1.
b) Each accepted report or recommendation shall be distributed to all NACEPT Council Members for
review for a minimum of 30 calendar days. A Council Member shall be assumed to approve the
recommendations if no comment is received by the close of the 30-day period.
c) Final Council action on a proposed recommendation shall be completed within a maximum of 90
calendar days from the date the proposed report or recommendation was sent to the full Council for
review.
d) The Council Chair shall transmit an approved Council Report or Recommendation directly to the EPA
Administrator and Deputy Administrator if a majority of all Council Members approves within 30 working
days. Significant minority views may be transmitted with an approved recommendation at the option of the
NACEPT Chair.
October 15, 2003 Page 6-17
-------
Federal Advisory Committee Handbook
Section 3. NACEPT Information Reports
All materials prepared by NACEPT , its Standing Committees, and other groups formed
under the NACEPT auspices are available to the public in accordance with the Federal Advisory
Committee Act, section 10 (b) and subject to the Freedom of Information Act. Groups formed under
NACEPT auspices may issue background documents, issue papers, and other materials as specially
prepared NACEPT Information reports. The release of a NACEPT Information Report does not imply that
its contents have been approved or agreed to by either the Council or a group formed under NACEPT
auspices.
ARTICLE VIII AMENDMENTS TO BYLAWS
The Bylaws of the Council may be added to, amended, or repealed in whole or in part by vote of at least
two-thirds of the Council Members at any regular meeting or by a vote in writing taken by mail, provided
that notice of intention to do so shall have been given to each Member at least 30 days preceding the
vote.
October 15, 2003 Page 6-18
-------
-------
Federal Advisory Committee Handbook
Chapter 7: Holding Federal Advisory Committee
Meetings and Preparing Work Products
7.0 Overview
7.1 DFO
Responsibilities
After you have established a federal advisory committee, you will
be responsible for organizing, planning, and running the
committee's meetings. This chapter provides an introduction to
committee meetings and the types of decisions that occur prior to
convening the meetings, including whether meetings should be
open or closed and whether specific meetings are subject to FACA.
This chapter also gives guidance for complying with FACA
requirements for managing a committee, such as providing advance
notice to the public, ensuring that the public has access to open
meetings, and documenting meetings and committee
determinations. Pre-, during-, and post-meeting checklists are
provided to assist you in running effective meetings.
The DFO plays an integral role in planning and running committee
meetings. Specifically, the DFO is responsible for:
1. Approving all committee meetings in advance;
2. Providing public notice in advance of committee meetings,
including publication in the Federal Register,
3. Approving meeting agendas (unless it is a Presidential
advisory committee);
4. Ensuring that meetings are open and accessible to the public,
unless properly closed;
5. Ensuring that detailed minutes are kept of all committee
meetings and that the chairperson certifies the minutes as
accurate and complete;
6. Ensuring that copies of reports are submitted to the Library of
Congress;
7. Ensuring that copies of minutes and documents prepared by or
October 15,2003
Page 7-1
-------
Federal Advisory Committee Handbook
for the committee or presented to the committee are
appropriately filed in a committee file accessible to the public;
8. Recommending to the Administrator that a particular meeting
or portion of a meeting should be closed to the public, and
preparing a letter to the Administrator requesting approval for
holding a closed meeting; and
9. Preparing and delivering to the CMO an annual summary of
closed meetings.
Categories of EPA. Federal Advisory Committees:
Tier 1 Committee refers to a principal chartered federal advisory
committee, that provides advice directly to EPA. Tier 1 committees
are subject to all the requirements of FACA and the GSA rule on
federal advisory committee management. Tier 1 committees are also
referred to as a "parent" or "chartered" committee.
Tier 2 Committee refers to a subcommittee that is directly
subordinate to a Tier 1 (parent) committee. Subcommittees are
established formally and members are appointed by the
Administrator. Subcommittees are not chartered. Tier 2 committees
cannot function independently of their parent committee or give
advice directly to EPA. It is EPA policy that Tier 2 committees
comply with the requirements established by FACA and the GSA
rule, except the chartering requirements. (Note: the number of Tier 1
and 2 committees will change from year to year.)
Tier 3 Committee refers to a work group that is made up of a few
committee or subcommittee members which gathers information or
drafts documents for a Tier 1 or Tier 2 committee. Work groups are
not subject to either the FACA or GSA requirements.
Make sure you contact OCEM to place your committee meeting
dates on the OCEM calendar, which contains the meeting dates of
all EPA advisory committees.
October 15,2003
Page 7-2
-------
Federal Advisory Committee Handbook
7.2 Initial
Meeting
Considerations
There are several important decisions concerning how your federal
advisory committee meetings will be conducted, such as whether
the meeting(s) will be administrative or substantive in nature,
whether the meetings will be open or closed to the public, whether
there will be subcommittees and, if so, how subcommittees should
operate, and choosing the location(s) where meetings will be held.
Note: It is important to begin preparing any Federal
Register notices you might need at least 30 days before
the meeting that the notice will be announcing. This will
help ensure on-time delivery of the notice and avoid
delays or complications at the Federal Register Office.
This also applies to other committee activities that will
need Federal Register notices.
7.2.7 Activities
Subject to FACA
All meetings and activities of advisory committees or
subcommittees that involve discussion of the substantive work of
the committee are subject to FACA's openness requirements,
regardless of the form of the meeting (in person, or via
teleconference, e-mail or internet). It is important to remember that
e-mail exchanges among half or more of the committee members
relating to the substantive work of the committee are considered to
be "meetings" for FACA purposes and, therefore, must be
conducted in a manner that provides the public with access.
7.2.2 Activities
That Are Not
Subject to FACA
Certain advisory committee activities are not subject to the FACA
public notice and open meeting requirements. Specifically, the
following activities of an advisory committee are excluded from
the procedural requirements set out in the GSA rule:
1. Work group meetings. Meetings of two or more advisory
committee or subcommittee members convened solely to conduct
preparatory work, such as gathering information, conducting
research, or analyzing relevant issues and facts in preparation for a
meeting of the advisory committee or subcommittee, or to draft
position papers for deliberation by the advisory committee or
subcommittee.
October 15, 2003
Page 7-3
-------
Federal Advisory Committee Handbook
2. 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 committee organization and discussion of bylaws and
other procedural issues) or to receive administrative information
from a federal officer or agency, such as travel and per diem
requirements and orientation). Such meetings do not include
discussion of the substantive issues being addressed by the
committee or subcommittee.
You should consult with OGC when making determinations of
whether a meeting will not be subject to FACA's openness
requirements.
7.2.3 Open vs.
Closed Meetings
FACA requires all committee meetings to be open to the public,
unless the Administrator determines, in writing, that the
information to be discussed at the meeting falls under one of the
exemptions listed in the Government in the Sunshine Act (GISA).
EPA policy also calls for OGC to approve closed meeting
determinations. The GISA exemptions cover several situations,
such as classified matters of national security, matters relating to
internal personnel rules, and other sensitive topics. The criteria
and special requirements for closed meetings are discussed in detail
in Section 7.7; the exemptions are set out in Exhibit 7-5.
Note: EPA rarely closes advisory committee meetings to the
public. Usually only 1-2 EPA committee meetings a year are
closed to the public.
7.2.4 It is EPA policy that FACA subcommittee (Tier 2 committee)
Subcommittee meetings follow all requirements for openness that Tier 1
Meetings committees follow. Although the GSA rule allows FACA
subcommittees that report to their parent committees to operate
outside the FACA openness requirements, the EPA policy
promotes openness and transparency for all substantive
subcommittee meetings. EPA believes that this approach fosters
October 15,2003
Page 7-4
-------
Federal Advisory Committee Handbook
public trust and confidence and contributes to achieving EPA's
mission of improving the environment. Under the EPA policy,
FACA subcommittees follow all the FACA openness
requirements, including:
1. Publish a Federal Register meeting notice at least 15 days
before a subcommittee meeting;
2. Allow the public to attend subcommittee meetings, unless they
are closed in accordance with the FACA requirements;
3. Request OGC's approval of, and the Administrator's signature
on, determinations that a particular subcommittee meeting or
part of a meeting can be closed to the public;
4. Allow the public to submit written comments and to present
oral statements when appropriate;
5. Give materials provided to, or prepared by or for, the
subcommittee to the public on request (unless the material can
be withheld under the Freedom of Information Act); and
6. Have a DFO who both approves subcommittee agendas and
attends each subcommittee meeting.
Subcommittees that transmit their advice, recommendations, and
reports to the parent committee for discussion, deliberation and
final decision are not required to be separately chartered, but
pursuant to EPA policy should follow all other FACA
requirements. Subcommittees function as subdivisions of the
parent committee. Generally, the chairperson of a subcommittee is
a member of the parent committee, while the other members may
or may not be parent committee members.
Under the GSA rule, subcommittees that function independent of
the parent committee by providing recommendations directly to the
Agency must not only observe the openness requirements, but also
must be chartered.
October 15, 2003 Page 7-5
-------
Federal Advisory Committee Handbook
7.2.5 Meeting Typically, committee and subcommittee meetings are held in the
Location Washington, D.C. area, or in one of the cities where EPA Regional
offices are located. Meetings may be held in another location if it
is more efficient or cost-effective. For example, if the majority of
committee members live in a particular area of the country, it may
be more cost-effective to hold the meeting in that area. If the
subject of the meeting pertains to a specific location, community,
or site, it might be advantageous to meet in a nearby city so that the
interested public could attend the meeting. It also may be
appropriate to hold a meeting in a location other than Washington,
D.C., if the meeting is held in conjunction with a planned field
inspection, site visit, or program meeting.
You should prepare a cost comparison to help you decide where to
host the committee meetings. The cost comparison will serve to
document the decision-making process. Cities that could be
considered "resort locations" should be avoided, pursuant to the
April 14,1992, policy directive issued by the EPA Assistant
Administrator of the Office of Administration and Resource
Management.
7.3Announcing Both FACA and the GSA rule require that EPA publish timely
Meetings to notice of all advisory committee meetings (both open and closed)
the Public mat are subject to FACA in the Federal Register. GSA has
defined "timely" as at least 15 days prior to the meeting. The
Administrator of GSA has the authority to determine whether, for
reasons of national security, a notice of an upcoming FAC meeting
should not be published. The DFO is responsible for publishing
the meeting notice in the Federal Register. Whenever possible, the
DFO should consider other types of public notice to ensure that all
interested persons are notified prior to the meeting.
Note: Conference calls and e-mail or internet meetings require the
same level of notification in the Federal Register and access as a
face-to-face meeting. For conference calls the call-in number
should not be included in the notice. The public can be provided
access to a teleconference by providing a location where members
of the public can listen to the conference call.
October IS, 2003
Page 7-6
-------
Federal Advisory Committee Handbook
7.3.1 Information According to the GSA rule, Federal Register notices for your
to Include in the committee meetings must contain the following information:
Federal Register
Notice l. The name of your advisory committee or subcommittee;
2. The date, time, and place of the meeting;
3. The purpose of the meeting;
4. A summary of the agenda;
5. The name and telephone number that the public can contact for
additional information;
6. A statement that the meeting is open, closed, or partially closed;
7. For closed meetings, the reason for closure, with specific
citations to the applicable GSA exemptions at 5 U.S.C.
§552b(c); and
8. The name and telephone number of the DFO or other
responsible agency official who may be contacted for additional
information regarding the meeting.
You also should include in the notice for open meetings
information regarding handicap accessibility.
A sample Federal Register notice announcing a meeting of a
federal advisory committee is provided at the end of this chapter.
7.3.2 Federal The GSA Rule requires EPA to publish the Federal Register notice
Register Deadlines announcing an advisory committee meeting (both open and closed)
at least 15 calendar days prior to the meeting date. To meet the 15-
day deadline, the Federal Register notice should be submitted to
the Office of the Federal Register at least 21 days prior to the
meeting date. It is recommended that you begin drafting your
Federal Register notice at least 30 days before the meeting date.
The meeting notice is typically held for four working days at the
Office of Federal Register for public display and inspection before
it is published. The timeliness for the Federal Register notices are
October 15,2003
Page 7-7
-------
Federal Advisory Committee Handbook
monitored by the CMO to ensure Agency-wide compliance. You
should be aware that when the Office of the Federal Register has a
heavy work load, such as right before the change of
administrations, it may take longer for your notice to be processed
and published.
7.3.4 Other
Federal Register
Notice
Requirements
In accordance with the guidance set out in the Office of the Federal
Register's Document .Drafting Handbook, Federal Register notices
should be double-spaced for easier copy preparation and
typesetting. Your notice should be submitted with a Federal
Register Typesetting Request (EPA Form 2340-15) approved by
the appropriate budget office. If the Federal Register notice is
prepared using WordPerfect or ASCII, a 20-percent discount is
applied if you provide the document on a disk and include the
following statement at the bottom of the form:
"This document was submitted with a disk and is eligible
for the 20 percent typesetting discount."
Note: The NARA Federal Register Document Drafting Handbook
can be accessed at the following web address:
http://www.archives.gov/federal_register/document_drafting_hand
book/read.html
October 15,2003
Page 7-8
-------
Federal Advisory Committee Handbook
7.4 Planning
the First
Meeting
7.4.1 Meeting
Logistics
Many of the decisions concerning committee meetings will be
addressed as you plan for the first meeting. These decisions affect
meeting logistics, distributing background materials, establishing
the committee's operating principles and meeting ground rules, and
preparing the meeting agenda. Exhibit 7-1 provides a checklist of
pre-meeting logistics and activities that should be considered when
planning and managing your first and subsequent FAC meetings.
Logistics information, including information on the location and
accommodations for the meeting, should be prepared and sent to
committee members, alternates, and support staff as early as
possible before the meeting. This logistics information also should
include specific instructions for attendees who qualify for
reimbursement or pre-payment of expenses so that they can make
their travel plans accordingly.
The logistics for your first meeting, and subsequent meetings, also
should include planning and making arrangements for any audio-
visual or presentation equipment that may be needed.
October 15, 2003
Page 7-9
-------
Federal Advisory Committee Handbook
Exhibit 7-1: Prc-Mecting Checklist
1. Location. You first need to find and reserve a meeting location. If you cannot
locate a meeting facility within EPA, search for or obtain contractor support to
identify a meeting location. You can use a Government Credit Card (with pre-
authorization), a Government Procurement Request (PR), or contractor support to
reserve a location.
2. Accommodations. If the meeting is going to be in a hotel, try to arrange for a
reserved block of rooms for your committee members. This helps ensure that all
committee members stay on-site, and prevents members from being turned away from
a booked hotel if they make their travel arrangements at the last minute. Be sure to
check with the hotel to find out whether reservations for the block of rooms have to
be made before a certain date.
3. Facility Set-up. You will need to provide the meeting facilities with "Set-up
Materials" before your meeting. This includes meeting materials and such items as a
table for registration.
4. Audio-visual Equipment. Be sure that any equipment you might need for the
meeting (audio-visual, sound system, conference call compatible phones, etc.) is
included in your room rental cost. If not, you should obtain a separate government
procurement request to rent this kind of equipment for your meeting.
5. Public Notice. Submit your Federal Register announcement for the meeting far
enough in advance that it is published at least 15 days before the meeting is to be
held. (The required contents and time line are discussed in detail in Section 7.3).
6. Meeting Support. Make the appropriate arrangements if you intend to use or hire a
facilitator and/or a note taker for your meeting. It is a good practice to have a
conference call or meeting with the facilitator and/or note taker to discuss the
expectations, goals, and subject matter of the committee meeting, prior to the
committee meeting.
7. Agenda. Prepare your meeting agenda (usually in consultation with the committee
chairperson). It is a good idea to list the location, date, and time of the committee
meeting on the agenda so that committee members can find it easily.
8. Hand-outs. Put together packets of meeting materials that committee members
need to review prior to the meeting. These materials usually include a cover letter,
agenda items and background documents. It is a best practice for the cover letter to
include hotel information, deadlines for room reservations, meeting date(s), location,
and time, a list of attached materials, and any other information you think is
important.
October 15,2003 Page 7-10
-------
Federal Advisory Committee Handbook
Exhibit 7-1: Pre-Meeting Checklist (continued)
9. Mail the meeting packet out early enough that the committee members get them in
time to prepare for the meeting. Note: Under FACA, all materials prepared for or
provided to the committee members are part of the FACA record and must be
maintained/filed and provided to the public in accordance with the statutory
requirements. (More detail on record-keeping can be found in Chapter 8).
10. Meeting Supplies. Gather your meeting supplies together (pens, tablets, name
tags, meeting signs, etc.) and, if necessary, have them sent to the meeting location.
11. Extra Copies. Make sure you have extra copies of your information packets and
the agenda for the registration table, as well as sign-up sheets and a membership list
(with telephone numbers).
October 15, 2003
Page 7-11
-------
Federal Advisory Committee Handbook
7.4.2 Informing
Committee
Members
Prior to the committee meeting, you should prepare and distribute
meeting materials packets. These packets should be sent out to the
members of your committee early enough to allow adequate review
and consideration before the meeting takes place.
Brief reports summarizing the major issues and background
information that the Agency wishes the committee to consider
should be prepared and included in the packets. Additional
educational materials, workshops, or presentations may be
appropriate depending on the level of knowledge members have
about the issues that will be addressed at the meeting.
A special orientation meeting before the first official committee
meeting may be advisable to educate the committee on how EPA
manages FACs and the topics and issues that they will be
addressing, and to provide information on travel and per diem
procedures. These pre-meetings also can be used to provide
training to committee members on how to effectively participate in
a collaborative dialogue and on improving communications skills.
These kinds of training activities can greatly improve the efficiency
of your advisory committee discussions and can increase the ability
of committee members to work together effectively and reach
agreement more quickly. The portions of orientation meetings that
are administrative in nature are not considered to be FAC meetings
and, therefore, are not subject to FACA's openness requirements.
Portions of the meeting addressing topics and issues that the
committee will be addressing are substantive in nature and are
subject to all FACA openness requirements.
October 15, 2003
Page 7-12
-------
Federal Advisory Committee Handbook
7.4.3
Establishing
Operating
Principles and
Ground Rules
(Bylaws)
Operating principles or "procedural protocols," generally referred
to as bylaws, establish how the committee meetings will be carried
out in terms of organization and procedures. Such principles
should be discussed and agreed to by the committee members,
although it may be helpful for you to prepare and distribute
"strawman" procedures prior to the first meeting. Chapter 6
provides detailed information on the process for developing and
approving committee bylaws. Examples of what could be included
in the operating principles include:
Q 1 . Member responsibilities, and use of member alternates;
Q 2. Meeting attendance expectations;
Q 3. Travel and reimbursement process (when applicable);
Q 4. Requirements for SGE's (if applicable);
Q 5. Roles and responsibilities of Agency representatives and
staff;
Q 6. Role of the facilitator(s) and other contract support staff, if
any;
G 7. Committee decision making process (may be by majority
vote or consensus; use of Roberts Rules of Order);
G 8. Committee recommendations (i.e., how to finalize, transmit
to Agency; and Agency responsibilities related to responding to
committee recommendations);
Q 9. How the committee will deal with minority views and
reports; and
Q 10. Committee termination process.
October 15,2003
Page 7-13
-------
Federal Advisory Committee Handbook
You also may consider establishing ground rules for the committee
meetings. Ground rules describe the rules of conduct for meeting
participants and, like the operating principles, can help to ensure
that meetings operate smoothly and efficiently, and that committee
participation is fair and equal. Examples of some common types of
committee ground rules include:
How meetings are to be run;
Protocol for speaking or asking questions (committee members,
general public, and observers);
Presentation formats, time frames, and other requirements;
Document and information sharing;
Interaction with the media and other outside communications;
and
Confidentiality and attribution of remarks.
If the committee is using a facilitator for the committee meetings,
you should consult with that person when preparing draft ground
rules and/or operating procedures for committee meetings. These
materials are usually prepared jointly by the facilitator and the DFO
before the first meeting. It is important to ensure that the facilitator
understands the FACA requirements.
7.4.4 Preparing FACA requires the preparation of an agenda for each meeting that
Meeting Agendas identifies the topics that will be discussed at the committee
meeting. FACA also requires the DFO approve the agenda prior to
convening a meeting. You may want to draft an agenda and
distribute it to committee members or the committee chairperson
for comment prior to the meeting (often this task falls to the
committee DFO). This gives committee members the opportunity
to suggest discussion topics. A revised agenda should incorporate
member comments, as appropriate, and be sent to the committee
one to two weeks prior to the meeting.
October 15,2003 Page 7-14
-------
Federal Advisory Committee Handbook
The public comment period should be established as a set time in
the meeting agenda. The agenda is also the appropriate document
to identify any portions of the meeting that will be closed to the
public.
The requirements for a closed meeting, or closing portions of the
meeting, are discussed in detail in Section 7.7.
7.5 Running
Committee
Meetings
After preparations for committee meetings are in place, it is time to
convene and run the meetings. Detailed explanations of the
activities that you should consider for running an advisory
committee are discussed in the following sections. In addition,
Exhibits 7-2 and 7-3 provide checklists for activities that can be
carried out during and after committee meetings. These checklists
contain best practices that can help you in successfully managing
and maintaining your advisory committee. These practices are
equally useful for the first and subsequent committee meetings.
7.5.7
Establishing
Milestones
It is a good idea to discuss the draft work plan at the first meeting
of your FAC. The DFO usually drafts an initial work plan for the
committee before the first meeting. The draft work plan is helpful
in predicting the number and frequency of advisory committee
meetings. It also outlines the goals for each meeting. Your
advisory committee may not completely agree with the contents of
the draft work plan and the meeting schedule. The DFO should
work with committee members to develop a committee work plan
that reflects the issues, work approach and schedule that works best
and is acceptable to all of the parties.
The committee should review and discuss the draft bylaws
(approved by the CMO and OGC), during the first committee
meeting. It is recommended that the committee further discuss the
bylaws and make revisions during the second meeting. You can
find more information on creating the bylaws for your committee
and the approval process for draft bylaws in Chapter 6.
October 15,2003
Page 7-15
-------
Federal Advisory Committee Handbook
Exhibit 7-2: Checklist of Activities During Meetings
Use the following best practices as guidelines for basic "housekeeping" activities related to
conducting committee meetings:
G 1. Arrive early to set out your materials, make sure your room is set-up correctly,
and make sure all necessary equipment is provided.
G 2. Set up the registration table.
G 3. Keep a list of your committee members handy to track attendance. Attendance is
part of the official meeting record and, therefore, should be accurate.
G 4. Have members of the public who attend the meeting sign in. Have those who
want to make oral comments sign up so that you have a record of their names.
This also is part of the official meeting record. The public comment period
should be a set time on the meeting agenda.
G 5. Do your best to keep the committee meeting moving forward and following the
agenda. Frequently this is the job of the committee chairperson, not the DFO.
G 6. Write down any questions brought up by your committee that remain unanswered
by the end of the meeting, noting when an answer will be supplied to the
committee members.
G 7. Work with the committee chairperson before the meeting to establish what
information should be included in the minutes. Due to the potential applicability
of the Information Quality Guidelines, this is especially important if the person
taking notes and drafting the minutes is an EPA employee or EPA contractor.
Assign the task of taking meeting minutes to a person who is able to take accurate
minutes.
G 8. Note any recommendations or possible recommendations for further discussion.
G 9. Track any suggestions that come to mind or are supplied by committee members
for future meeting discussion topics, agenda items, future meeting dates, and
future meeting formats.
G 10. Be sure to make a note of any meeting highlights that should be included in any
meeting minutes or meeting products.
October 15,2003 Page 7-16
-------
Federal Advisory Committee Handbook
Exhibit 7-3: Checklist of Post-Meetins Activities
Use the following best practices as guidelines for follow-up activities to help manage
and track the deliberations of your FAC:
G 1. Prepare a one-to-two-page summary of the meeting (separate from the minutes)
that includes the reason for the meeting, any decisions made, any future actions
agreed upon, those members not in attendance, and the date of the next meeting.
This document will help keep the meeting fresh in your mind and serve as a quick
reference tool in future meetings and in other FAC management activities.
G 2. Discuss meeting notes format with the note taker and get a timeline for
completion of a draft of the minutes that will be available for committee
chairperson and/or members to review. The GSA rules require the committee
chairperson to certify the accuracy of the minutes within 90 days after the meeting
takes place.
G 3. Follow-up with your committee members regarding any materials that should
send them, any action items they may have been assigned, and the date and time
of the next meeting.
G 4. Update and maintain your files of materials that have been provided to or
prepared by or for your committee members. FACA requires this file to be
available for public inspection and copying.
G 5. Record all costs associated with the meeting for future planning and reporting
purposes.
October 15,2003
Page 7-17
-------
Federal Advisory Committee Handbook
Usually the chairperson of the committee leads the discussion of
the goals, milestones, schedule and work plan components. For
some committees, however, the services of a neutral facilitator may
be useful in helping the committee reach agreement on these items.
It is a good idea to check the committee's progress against the
work plan, milestones and schedule at committee meetings.
Update the work plan, milestones and schedule as necessary.
These milestones and guidelines will also serve as your benchmark
for the periodic evaluation of your FAC.
7.5.2 Ensuring
Accessibility
The meeting room should be large enough to accommodate the
committee members, EPA staff and a reasonable number of
interested members of the public, based on similar meetings in the
past. The DFO is responsible for ensuring compliance with the
GSA rule requirement that meetings be held at reasonable times
and in a manner or place that is reasonably accessible. The
meeting location must be accessible to those in wheelchairs and
others with special needs. In addition, individuals with hearing
impairments may need special accommodations. The Federal
Register notice for your meeting should address accessibility and
accommodations for persons with disabilities.
Note: You should add language to the Federal Register meeting
notice stating, in effect, that: "Individuals requiring special
accommodations at this meeting, including wheelchair access to the
conference room, should contact the appropriate contact at least five
business days prior to the meeting so that appropriate arrangements
can be made to facilitate their participation."
7.5.3 Other Ways FACA requires you to publish a Federal Register notice of each
to Involve the
Public
meeting, but you may want to consider other ways of notifying the
public of your committee's activities. Newspapers, associations,
and periodicals can all be useful tools for informing the public of
the work of your committee. Making any written materials
prepared by or for the committee available to the public also
facilitates public involvement. To achieve maximum public
involvement in your FAC, you may want to consider other ways of
announcing public meetings and making committee documents
October 15,2003
Page 7-18
-------
Federal Advisory Committee Handbook
available to the public. For example, you could create a website
for your committee where you post meeting notices, committee
documents and background materials. You also could develop a
brochure explaining how the public can obtain documents and
submit oral and written comments to the committee.
7.5.4 Conference Conference calls are treated in the same manner as in-person
Calls and meetings with respect to public notice and participation. When
Meetings arranging a conference call among committee members, you must
notify the public by publishing a notice in the Federal Register that
identifies the date, time, and purpose of the call. You also must
provide the public with the ability to listen in on the conference
call. This can be accomplished by setting up a conference room for
the public with a telephone link to the conference call. In addition,
consider the following issues related to managing conference calls:
G 1. As soon as you have set a date for your call, reserve enough
lines for committee members;
G 2. The Federal Register notice should specify that a
teleconference, rather than an in-person meeting is taking
place;
Q 3. The conference call number should not be published in the
Federal Register notice;
Q 4. It may be helpful to number the lines of the documents and
materials you send out to the committee prior to the call.
This will reduce confusion and misunderstanding in the
discussion of, and referring to, any documents or materials;
G 5. Provide some simple ground rules for your committee
members to follow when on the call (e.g., always identifying
themselves when speaking, and allowing each person time
to speak). Include specific rules for teleconferences in your
committee's bylaws;
Q 6. Take a roll call at the beginning of the call, to document
attendance at the conference call meeting; and
October 15, 2003 Page 7-19
-------
Federal Advisory Committee Handbook
G 7. Because a conference call is an official meeting of the
committee, meeting minutes are kept as they would in a
face-to-face meeting.
7.6 Preparing The recommendations and documents that your advisory
Meeting committee creates are the most important aspect of your advisory
Products committee process. Those recommendations and documents, in
addition to the meeting minutes, serve as a record of your
discussions, the decisions that were made, and the ideas that were
expressed. Due to the importance of these documents, they should
be reviewed carefully. Guidance on developing these meeting
products is discussed in detail in the sections that follow.
7.6.1 Keeping It is the responsibility of the DFO to ensure that detailed minutes
Meeting Minutes are kept of each advisory committee or subcommittee meeting.
These minutes are not required to be verbatim transcripts. The
program office, however, may determine that a verbatim transcript
is preferable to minutes. In such cases, the verbatim transcript can
be used as the minutes, providing it contains the required
information as is certified by the committee chairperson. The GSA
rule requires the official minutes to include the following
information:
Q 1. The time, date, and place of the meeting;
Q 2. A list of advisory committee members, staff, and Agency
employees present;
Q 3. Members of the public who presented oral or written
statements;
Q 4. An accurate description of matters discussed and the
resolution, if any, made by the committee; and
Q 5. Copies of each report or other documents received,
issued, or approved by the advisory committee.
October 15, 2003 Page 7-20
-------
Federal Advisory Committee Handbook
In addition, it is recommended that you include:
G An estimate of the number of members of the public present;
and
Q A description of any recusal by advisory committee members.
Remember, the chairperson must certify to accuracy of the advisory
committee minutes within 90 days after the meeting.
7.6.2 Other Over the years EPA has developed several categories into which
Types of Meeting FAC meeting products may be organized. All of these meeting
Products products can and do involve advice and recommendations of the
committee. You should remember that, regardless of the meeting
product category, subcommittees may not provide advice and
recommendations to EPA without going through the parent
committee. Major meeting product categories include:
G Consultations, which are an early, low-cost endeavor with
your committee to obtain member views on issues for which
EPA has not yet developed a plan of action. There is no
intent or expectation that a consultation will result in a report
or a specific recommendation. Consultation is more of an
information exchange between EPA and the committee.
Remember that if consultation with a subcommittee results in
advice or a recommendation, it must be discussed and
deliberated on by the parent committee before being
transmitted to EPA. Consultation should not be confused
with a Peer Review Report.
G Commentaries, which are a generation of thoughts from your
committee members that the committee believes are
important enough to be conveyed to the Administrator and
the public, and are often in the form of a letter. Remember, a
subcommittee should not be communicating directly with
EPA, any letters to the Administrator must come from the
parent committee.
G Peer Review Reports, which are independent reviews of near-
October 15, 2003 Page 7-21
-------
Federal Advisory Committee Handbook
final EPA work products that are the result of several
committee meetings where first, EPA presents information,
then the public comments, and last, the committee discusses
the presented issues.
G Advisories, which can be similar to Peer Review Reports, but
are conducted while EPA still has some flexibility as to how
it plans to close-out the discussed project, or it can be a "mid-
course" review that provides suggestions on how to proceed
with a pre-existing project. A "mid-course" review can result
in formal advice from your advisory committee.
G Committee Recommendation Letters are exactly that, usually
in the form of a letter to the Administrator, and relate to
whatever segment of a multi-segment project your committee
is working on. Committee recommendation letters are
appropriate when the subdivided work does not rise to the
level of requiring a full formal report.
G Committee Reports are the formal summary of the findings of
your advisory committee. They include the advice your
committee gives the Agency, and the findings or decisions
made during your committee meetings.
7.6.3 Because committee reports and other work products are not
Identification of products of EPA, it is important to ensure that every meeting
Committee product or report generated by your advisory committee (and any
Products website you set up for your committee):
G Includes a disclaimer that the document is a product of the
advisory committee, does not reflect the views and policies of
EPA, and does not represent information disseminated by
EPA (this will help the public understand that the
Information Quality Guidelines [IQGs] apply only to
information disseminated by EPA and do not apply to the
work product); and
G Does not use the EPA logo.
October 15, 2003 Page 7-22
-------
Federal Advisory Committee Handbook
A sample disclaimer for a FAC meeting product/report is provided
below. Remember, similar disclaimers should be posted on the
committee's website.
If your advisory committee has any subcommittees (Tier 2), the
Tier 1 advisory committee should discuss and deliberate on any
work products and advice generated by the subcommittee.
"Meaningful discussion of advice" should take place at the parent
committee (Tier 1) level, and any products generated by
subcommittee or work groups should be used by your advisory
committee to spark discussion and to generate their own products.
Sample Disclaimer for an Advisory Committee Work Product
This report was written as a part of the activities of the National Advisory Council
for Environmental Policy and Technology (NACEPT), a public advisory committee
providing extramural policy information and advice to the Administrator and other
officials of the U.S. Environmental Protection Agency (EPA). The Council is
structured to provide the balanced, expert assessment of policy matters related to
the effectiveness of the environmental programs of the United States. This report
has not been reviewed for approval by EPA and hence, the report's contents and
recommendations do not represent the views and policies of the EPA, or other
agencies in the Executive Branch of the federal government. Further, the content of
this report does not represent information approved or disseminated by EPA.
Mention of trade names of commercial products does not constitute a
recommendation for use.
7.6.4 Filing FAC The DFO must file eight copies of every report produced by the
Documents/ committee with the Library of Congress (LOG). The Librarian of
Products with the the LOG will prepare a depository for your reports and any other
Library of documents you may wish to file at the LOG where they will be
Congress available to the public.
7.7 Holding
Closed
Meetings
In order for your committee to conduct a meeting that is closed to
the public, you must have a closed-meeting determination approved
by the Office of General Counsel, and signed by the Administrator.
In addition, your meeting topics must fall within the exemptions
outlined in the Government in the Sunshine Act (GISA) (5 U.S.C.
October 15, 2003
Page 7-23
-------
Federal Advisory Committee Handbook
552b(c)) that justify closure. The materials and documents
provided to or prepared by or for, a closed meeting also may be
exempt from public disclosure under the Freedom of Information
Act.
Exhibit 7-5 provides the actual statutory language provided in
GISA and identifies the specific exemptions that are permitted.
For example, meetings concerning classified national defense or
foreign policy matters, personal privacy matters, and trade secrets
can be closed. Consult OGC when determining whether one of the
GISA exemptions covers the subject matter of your meeting.
EPA seldom closes advisory committee meetings. EPA, however,
has closed advisory committee meetings where the purpose of the
meeting was to recommend awards for EPA employees.
7.7.1 Under FACA, the provisions requiring open meetings and public
Requirements for participation do not apply to a meeting or portion of a meeting that
Closed and
Partially Closed
Meetings
the Administrator determines may be closed in accordance with the
exemptions set out in GISA (5 U.S.C. §552b ).
When all or part of your meeting is to be closed to the public,
FACA still requires you to publish a meeting notice in the Federal
Register. The fact that the meeting or portion of the meeting is
closed should be reflected in the notice for that meeting, as well as
in the agenda. When only part of a meeting is to be closed, you
should arrange the agenda, if possible, to facilitate public
attendance during the open portion(s) of the meeting. For example,
hold the closed portion of the meeting first or last. When a
meeting (or portion of a meeting) is closed, members of the
advisory committee should not disclose the matters discussed at
that closed meeting, except to other members of the advisory
committee, the staff of the advisory committee, or EPA employees.
When your meeting (or a portion of a meeting) is closed, only
members of your advisory committee, its staff, and specified
federal employees are permitted to attend.
October 15, 2003
Page 7-24
-------
Federal Advisory Committee Handbook
Exhibit 7-5: Exemptions for Closed or Partially Closed Meetings
The Government in the Sunshine Act identifies matters that can form the basis for a closed meeting.
When the following matters are to be discussed at an advisory committee meeting, the Administrator
may close or partially close the meetings. Specifically a meeting may be closed or partially closed
when information addressed in the meeting is likely to:
(1) disclose matters that are
(A) specifically authorized under criteria established by an Executive Order to be kept secret in
the interests of national defense or foreign policy; and
(B) in fact properly classified pursuant to such Executive Order;
(2) relate solely to the internal personnel rules and practices of an agency;
(3) disclose matters specifically exempted from disclosure by statute (other than section 552 of this
title), provided that such statute
(A) requires that the matters be withheld from the public in such a manner as to leave no
discretion on the issue, or
(B) establishes particular criteria for withholding or refers to particular types of matters to be
withheld;
(4) disclose trade secrets and commercial or financial information obtained from a person and
privileged or confidential;
(5) involve accusing any person of a crime, or formally censuring any person;
(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted
invasion of personal privacy,
(7) disclose investigatory records compiled for law enforcement purposes, or information which if
written would be contained in such records, but only to the extent that the production of such
records or information would
(A) interfere with enforcement proceedings;
(B) deprive a person of a right to a fair trial or an impartial adjudication;
(C) constitute an unwarranted invasion of personal privacy;
(D) disclose the identity of a confidential source and, in the case of a record compiled by a
criminal law enforcement authority in the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence investigation, confidential information
furnished only by die confidential source;
(E) disclose investigative techniques and procedures, or
(F) endanger the life or physical safety of law enforcement personnel.
October 15,2003 Page 7-25
-------
Federal Advisory Committee Handbook
Exhibit 7-5: Exemptions for Closed or Partially Closed Meetings
(Continued)
(8) disclose information contained in or related to examination, operating, or condition reports
prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision
of financial institutions;
(9) disclose information the premature disclosure of which would:
(A) in the case of an agency which regulates currencies, securities, commodities, or financial
institutions, be likely to:
(i) lead to significant financial speculation in currencies, securities, or commodities, or
(ii) significantly endanger the stability of any financial institution; or
(B) in the case of any agency, be likely to significantly frustrate implementation of a proposed
agency action, except that subparagraph (B) shall not apply in any instance where the agency
has already disclosed to the public the content or nature of its proposed action, or where the
agency is required by law to make such disclosure on its own. initiative prior to taking final
agency action on such proposal; or
(10) specifically concern the agency's issuance of a subpoena, or the agency's participation in a
civil action or proceeding, an action in a foreign court or international tribunal, or an
arbitration, or the initiation, conduct, or disposition by the agency of a particular case of
formal agency adjudication pursuant to the procedures in section 554 of the law or otherwise
involving a determination on the record after opportunity for a hearing.
October 15, 2003
Page 7-26
-------
Federal Advisory Committee Handbook
Steps to Holding a Closed Meeting:
1. Make sure your determination to close your committee meeting,
or portion of the meeting, to the public complies with the
Government in the Sunshine exemptions.
2. Have your CMO and the OGC approve your closed meeting
request at least 45 days prior to the meeting date.
3. Have the Administrator approve the closed meeting request (after
OGC review) at least 30 days prior to the meeting date.
4. Draft the Federal Register notice for the closed meeting so that
the reasons for closing the meeting are clear, and that if only a
portion of the meeting is closed, it is clear which portion will be
closed to the public. The notice should be drafted before going to
OGC for approval.
5. You will need to prepare and submit a report to the CMO once a
year outlining the activities of any closed meetings you have held.
7.7.2 Procedures
for Closing a
Meeting
At least 45 days prior to the meeting date, the CMO and OGC
should review the request to close all or part of the meeting, the
draft determination memorandum, and the draft Federal Register
notice before they are forwarded to the Administrator for his/her
approval.
FACA requires the determination memorandum to contain the
reasons for the closure. The determination also should cite the
applicable GISA exemption.
The DFO should forward the written request for a closed meeting
determination to the Administrator at least 30 days before the
scheduled meeting. The Administrator signs the determination if
he/she agrees that closing the meeting is consistent with GISA and
FACA. This determination is made available to the public upon
request, as required by the GSA rule. The closed meeting
October 15,2003
Page 7-27
-------
Federal Advisory Committee Handbook
7.7.3 Federal
Register Notices
for Closed
Meetings
determination is judicially reviewable. If a court finds that closure
is not justified, it can order the meeting to be opened to the public.
The Federal Register notice for a closed or partially closed meeting
should outline the reasons for closing the meeting and, as required
by the GSA rule, include the specific GISA exemptions relied on
for closing the meeting..
7.7.4 Reports
Requirements for
Closed Meetings
The DFO, should prepare and submit a report to the CMO at least
once a year that summarizes the closed activities of the committee,
consistent with the exemptions to the Freedom of Information Act
(5 U.S.C. § 552(b). The closed meeting report must be filed with
the Library of Congress for public inspection.
You must keep detailed meeting minutes of closed meetings (or
portions of meetings that are closed) in the same manner as open
meetings. However, the minutes of a closed meeting can be
withheld under FOIA.
7.8 Ethics
Ethics requirements are an integral part of federal advisory
committees and committee members. All Designated Federal
Officers with Special Government Employees (SGEs) should be
familiar with EPA Ethics Advisory 97-15, which is in Appendix
A of this handbook.
Federal Advisory Committee members who are Special
Government Employees are subject to criminal conflict of interest
statutes and related restrictions. Designated Federal Officers with
Special Government Employees should also be familiar with the
summary of ethical requirements applicable to SGEs, which is
contained in Appendix B.
As stated in EPA Ethics Advisory 97-15, Special Government
Employees are required to have annual training in ethics. The
Science Advisory Board's CD ROM disk on ethics training or
similar appropriate training can be used for this annual
requirement. Consult the Agency's Ethics Official on the
appropriateness of similar training.
October 15, 2003
Page 7-28
-------
Federal Advisory Committee Handbook
Chapter 7 Sample Documents
October 15, 2003 Page 7-29
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003 Page 7-30
-------
Federal Advisory Committee Handbook
Sample EPA Federal Advisory Committee Meeting Notice
Federal Register: February 25,2003 (Volume 68, Number 37)]
[Notices]
[Page 8756-8757]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25fe03-46]
FJ^VIRONMENTAL PROTECTION AGENCY
[FRL-7454-6]
Gulf of Mexico Program Management Committee Meeting
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of meeting.
SUMMARY: Under the Federal Advisory Committee Act (Pub. L. 92-463), EPA gives notice
of a meeting of the Gulf of Mexico Program (GMP) Management Committee (MC).
DATES: The meeting will be held on Wednesday, March 12, 2003, from 10:00 a.m. to 5:30
p.m., and on Thursday, March 13,2003, from 8:30 a.m. to 1:00 p.m.
ADDRESSES: The meeting will be held at the Double Tree Hotel, 300 Canal Street, New
Orleans, Louisiana. (1-888-874-9074)
FOR FURTHER INFORMATION CONTACT: Gloria D. Car, Designated Federal Officer,
Gulf of Mexico Program Office, Mail Code EPA/GMPO, Stennis Space Center, MS 39529-
6000 at (228) 688-2421.
SUPPLEMENTARY INFORMATION: Proposed agenda items include: Update on Progress of
Executive Order, FY 2005 State Project Meetings, Report on Mercury Project Team Meeting,
Report on Nutrient Pilot Study in Northern Gulf, Report on Pilot Nitrogen Farming Project, Gulf of
Mexico Governor' sAccord Workgroup Coordination, Harte Institute Proposal for Joint
Symposium, The Nature Conservancy Migratory Birds Proposal. The meeting is open to the
public.
October 15,2003 Page 7-31
-------
Federal Advisory Committee Handbook
Dated: February 14, 2003.
Gloria D. Car,
Designated Federal Officer.
[FR Doc. 03-4379 Filed 2-24-03; 8:45 am]
BILLING CODE 6560-50
October IS, 2003
Page 7-32
-------
Federal Advisory Committee Handbook
Sample Non-EPA Federal Advisory'Committee Meeting Notice Containing Handicap-
Access Language
[Federal Register: September 2,2003 (Volume 68, Number 169)]
[Notices]
[Page 52216]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se03-89]
DEPARTMENT OF HOMELAND SECURITY
Coast Guard [CGD08-03-034]
Houston/Galveston Navigation Safety Advisory Committee Meetings
AGENCY: Coast Guard, DHS.
ACTION: Notice of meetings.
SUMMARY: The Houston/Galveston Navigation Safety Advisory Committee (HOGANSAC)
and its working groups will meet to discuss waterway improvements, aids to navigation, area
projects impacting safety on the Houston Ship Channel, and various other navigation safety
matters in the Galveston Bay area. All meetings will be open to the public. DATES: The next
meeting of HOGANSAC will be held on Thursday, October 9,2003, from 9 a.m. to 12 a.m.
(noon). The meeting of the Committee's working groups will be held on Thursday, September 25,
2003, at 9 a.m. to 11 a.m. The meetings may adjourn early if all business is finished. Members of
the public may present written or oral statements at either meeting. Requests to make oral
presentations or distribute written materials should reach the Coast Guard 5 working days before
the meeting at which the presentation will be made. Requests to have written materials distributed
to each member of the committee in advance of the meeting should reach the Coast Guard at least
10 working days before the meeting at which the presentation will be made.
October 15, 2003 Page 7-33
-------
Federal Advisory Committee Handbook
ADDRESSES: The full Committee meeting will be held at the Houston Yacht Club, 3620
Miramar Drive, La Porte, Texas (281) 471-1255. The working groups meeting will be held at
the Port of Texas City, 2425 Highway 146 North, Texas City, Texas (409) 945-4461. Written
materials and requests to make presentations should be sent to Commanding Officer, VTS
Houston-Galveston, Attn: LT Tobey, 9640 Clinton Drive, Floor 2, Houston, TX 77029. This
notice is available on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Captain Richard Kaser, Executive Director of
HOGANSAC, telephone (713) 671-5199, Commander Tom Marian, Executive Secretary of
HOGANSAC, telephone (713) 671-5164, or Lieutenant (LT) Kelly Tobey, assistant to the Executive
Secretary of HOGANSAC, telephone (713) 671-5155, e-mail katobey@vtshouston.uscg.mil.
SUPPLEMENTARY INFORMATION: Notice of these meetings is given pursuant to the Federal
Advisory Committee Act, 5 U.S.C. App. 2. Agendas of the Meetings Houston/Galveston Navigation
Safety Advisory Committee (HOGANSAC). The tentative agenda includes the following: (1)
Opening remarks by the Committee Sponsor (RADM Duncan) (or the Committee Sponsor's
representative), Executive Director (CAPT Kaser) and Chairman (Tim Leitzell). (2) Approval of the
June 5,2003 minutes. (3) Old Business: (a) Dredging projects, (b) Electronic navigation, (c) AtoN
(Aids to Navigation) Knockdown Working Group, (d) Mooring subcommittee report, (e) Texas City
Container Terminal Update. (0 Education initiative, (g) Port Security Subcommittee report, (h)
Bridge Allision Prevention Working Group. (4) New Business. Working Groups Meeting. The
tentative agenda for the working groups meeting includes the following: (1) Presentation by each
working group of its accomplishments and plans for the future. (2) Review and discuss the work
completed by each working group. Procedural Working groups have been formed to examine the
following issues: dredging and related issues, electronic navigation systems, AtoN knockdowns,
impact of passing vessels on moored ships, boater education issues, and port security. Not all
working groups will provide a report at this session. Further, working group reports may not
necessarily include discussions on all issues within the particular working group's area of
responsibility. All meetings are open to the public. Please note that the meetings may adjourn early if
all business is finished. Members of the public may make presentations, oral or written, at either
meeting. Requests to make oral or written presentations should reach the Coast Guard 5 working
days before the meeting at which the presentation will be made. If you would like to have written
materials distributed to each member of the committee in advance of the meeting, you should send
your request along with 15 copies of the materials to the Coast Guard at least 10 working days
before the meeting at which the presentation will be made.
Information on Services for the Handicapped
For information on facilities or services for the handicapped or to request special assistance at the
meetings, contact the Executive Director, Executive Secretary, or assistant to the Executive
Secretary as soon as possible.
Dated: August 20,2003. J.W. Stark, Captain, U.S. Coast Guard, Commander, 8th Coast Guard
Dist., Acting.
[FR Doc. 03-22205 Filed 8-29-03; 8:45 am] BILLING CODE 4910-15-P
October 15,2003 ~~ Page 7-34
-------
-------
Federal Advisory Committee Handbook
Chapter 8: Renewing or Re-establishing a
Discretionary Advisory Committee and
Amending the Charter
8.0 Overview
Under FACA, a chartered discretionary federal advisory committee
terminates automatically after two years unless it is renewed prior to
the expiration date. If you determine that your advisory committee
needs to continue beyond those two years you will need to submit a
renewal package. To ensure that your chartered committee is
renewed prior to the expiration date, you should begin the renewal
process approximately four to five months before the committee is
scheduled to end.
If the termination date for your committee passes, you cannot use the
renewal process; you will have to go through the entire
establishment process. This chapter outlines the process, and assists
you in preparing the materials needed to renew or re-establish your
advisory committee.
Generally, you should amend the Charter of your federal advisory
committee when you renew the committee but a Charter may be
amended at other times. The Charter can be amended when the
DFO, the CMO or the EPA Deputy Administrator determines that
the current provisions of the Charter have become obsolete or the
sponsoring program office determines that changes need to be made
in the provisions to allow the committee to address additional issues.
Charter amendments fall into two categories: major and minor.
More detailed descriptions of both types of Charter amendments,
and what you need to do in order to file them, also are provided in
this chapter. It is important to note that Charter amendments should
not substantially change the objectives and scope of the advisory
committee.
October 15, 2003
Page 8-1
-------
Federal Advisory Committee Handbook
8.1 Renewal of
a Discretionary
Advisory
Committee
8.1.1 Initiating a
Renewal or Re-
tablishment
Under FACA, a Chartered discretionary advisory committee is
terminated automatically two years after the date it is established
unless it is renewed by EPA. Renewal extends the life of an EPA
discretionary advisory committee for another two-year period. To be
effective, renewal must occur before the date the committee Charter
expires. Therefore, it is recommended that you begin the renewal
process approximately four to five months before the committee
expires.
If an advisory committee is terminated, it must be re-established and
a new Charter filed before the committee may meet or take any
action. Re-establishment is extremely rare at EPAthere has only
been one re-establishment in approximately 25 years.
You should submit all actions to renew or re-establish a
discretionary FAC to the Agency's CMO for review.
Assistant Administrators, Associate Administrators, Regional
Administrators, and heads of staff offices reporting to the
Administrator within their functional areas of responsibility may
initiate requests to renew or re-establish federal advisory
committees. Send requests through EPA's CMO to the Deputy
Administrator.
8.2 Process for
Renewing a
Discretionary
Advisory
Committee
The CMO will notify the advisory committee DFO when it is time to
begin the renewal process by sending a draft Charter renewal
package to the DFO. Because the CMO must consult with GSA on
committee renewals, it is important to comply with GSA's time line
to prevent automatic Charter termination under the FACA sunset
provision. The draft renewal package consists of a:
1. Transmittal memorandum;
2. Charter to be renewed;
3. Justification for renewal; and
4. Federal Register notice announcing the renewal.
After receiving the draft renewal package, the DFO reviews the draft
documents to determine whether any further changes should be
made. Exhibit 8-1 provides the steps of the renewal process for a
discretionary advisory committee.
October 15, 2003
Page 8-2
-------
Federal Advisory Committee Handbook
Exhibit 8-1: Steps for Renewing a Discretionary Committee
Q Stepl.
G Step 2.
Q Step 3.
Q Step 4.
Q StepS.
G Step 6.
Four to five months prior to the committee expiration date the CMO
sends the Charter renewal package to the DFO.
The DFO makes any necessary changes to the documents and returns
them to the CMO. The CMO reviews the revised package before sending
the Charter to be renewed to the OGC for legal review. After OGC's
review, the CMO will discuss with the DFO any changes suggested by
OGC.
After OGC's review and another CMO review, the DFO updates the
remaining package materials and forwards those materials to his/her
Assistant, Associate, or Regional Administrator for review and approval.
After obtaining A A or RA approval, the DFO formally submits the
signed renewal package to the CMO. It is customary for the DFO to
keep a copy of these materials.
The CMO obtains OGC approval/concurrence on the final version of the
Charter, signs off on the package, and forwards the Charter renewal
request to the Deputy Administrator's office for review and approval/
signature.
The CMO consults with GSA's Committee Management Secretariat.
Generally, the CMO receives GSA's comments on the renewal within 15
calendar days. Upon receiving GSA's comments, the CMO inserts the
consultation date into the Charter and notifies the DFO that GSA
consultation is completed. The DFO submits the Federal Register notice
announcing renewal of the advisory committee to the Federal Register
Office for publication. The DFO forwards a copy of the published
Federal Register notice to the CMO.
The CMO transmits the Charter to EPA's Office of Congressional and
Intergovernmental Relations for filing with the appropriate congressional
committees and the Library of Congress. A discretionary committee
renewal is effective on the date the Charter is filed with Congress.
October 15, 2003
Page 8-3
-------
Federal Advisory Committee Handbook
8.2.1 Renewal The renewal Transmittal Memorandum is sent from the appropriate
Transmittal AA, RA, Associate Administrator, or Office Director within the
Memorandum Office of the Administrator to the Deputy Administrator through the
CMO. The Transmittal Memorandum indicates support for the
renewal of the discretionary committee and recommends that the
Deputy Administrator approve the committee renewal. The
Transmittal Memorandum also includes a concurrence and non-
concurrence signature and date line for the Deputy Administrator.
The information contained in the renewal Transmittal Memorandum
is almost identical to the establishment Transmittal Memorandum.
The primary difference is that the renewal memorandum contains
language justifying the renewal of the committee, rather than a
justification for establishment.
8.2.2 Elements of The purpose of an advisory committee Charter, regardless of
the Renewal whether it is for a newly established committee or a renewal, is to
Charter specify the mission and general operational characteristics of a
particular committee. The CMO prepares a draft Charter using the
language and format of the current EPA Charter template. (OGC
and the CMO design and periodically revise Charter templates to
make sure that the Charter complies with legal requirements and is
consistent with EPA policy.)
All Charters have the same components whether they are for a
committee that is being established initially or a committee that is
being renewed. These components include statutorily-mandated
components and other components that improve the overall package
and provide additional information to interested parties, but are not
explicitly required. A description of the Charter components that
FACA requires can be found in Chapter 3, Section 3.5, and in
Exhibit 8-2, "Required Renewal Charter Components Checklist."
Be sure to change and update information to reflect the current
renewal request.
In addition to the general FACA requirements above for FAC
Charters, the Charter to be renewed also should contain additional
descriptive information. The additional information that should be
included is the same information that was requested when you filed
the Charter for your current advisory committee, and is outlined in
Chapter 3, Section 3.5, and in Exhibit 8-3," Other Charter Renewal
Components Checklist."
October 15, 2003
Page 8-4
-------
Federal Advisory Committee Handbook
Exhibit 8-2:
FACA-Required Discretionary Renewal Charter Components Checklist
The required components of an EPA FAC Charter are:
G 1. The advisory committee's official title;
G 2. The advisory committee's objectives and the scope of its activity;
G 3. The estimated period of time necessary for the advisory committee to carry out its
purposes;
G 4. The federal official to whom the advisory committee reports;
G 5. The Office responsible for providing the necessary support for the advisory
committee;
G 6. A description of the duties for which the advisory committee is responsible, and, if
such duties are not solely advisory, the source(s) of authority for such functions;
G 7. The estimated annual operating costs in dollars (including compensation, travel and
per diem, staff salaries, consultant fees, printing, commercially rented space, etc.)
and work-years for staff support for the advisory committee;
G 8. The estimated number and frequency of advisory committee meetings;
G 9. The advisory committee's termination date, if less than two years from the date of
advisory committee establishment; and
Q 10. The filing date of the Charter.
October 15, 2003
Page 8-5
-------
Federal Advisory Committee Handbook
Exhibit 8-3:
Other Charter Renewal Components Checklist
In addition to the FACA requirements, the Charter undergoing renewal also should contain
the following information:
G 1. A statement indicating that the Charter is renewing the advisory committee;
G 2. A statement regarding whether the authority to establish is provided by statute, the
President, or the EPA Administrator;
G 3. The estimated number of advisory committee members and a description of the
types of expertise needed to achieve a fairly balanced membership in terms of the
points of views represented and the functions to be performed;
G 4. A statement regarding whether members will be appointed as SGEs subject to the
conflict-of-interest restrictions (paid members), or as representatives of non-federal
interests (members are not paid, though they receive travel and per diem
reimbursement);
G 5. A statement regarding the requirement for a full-time or permanent part-time
employee of the Agency to serve as the DFO; and
G 6. A statement as to whether the advisory committee is authorized to establish
subgroups that report back to the parent advisory committee.
October 15,2003
Page 8-6
-------
Federal Advisory Committee Handbook
8.2.3 Questions
the DFO Should
Ask When
Preparing the
Charter/or
Renewal
Throughout the preparation of the Charter for renewal, the DFO
should keep in mind several key questions. How those questions are
answered determines what information should be updated and
changed. These key questions are:
1. Should the committee name be changed?
2. Should I make any changes to the committee's scope and
objectives?
3. Have laws/regulations that authorize or support the establishment
of the committee changed? If they have, identify them in the
Charter and attach a copy of the law/regulation to the Charter.
4. Have there been any organizational changes? For example,
should I change the name of the organization that the committee
reports through or that is responsible for financial and
administrative support? (Note: Tier 1 discretionary committees
ultimately report to the Administrator, usually through an
AA/RAship).
5. What are the revised annual operating costs and person-years of
support for the committee?
6. Is the estimated number and frequency of the meetings still
accurate or should the estimate be changed?
7. Is the number of committee members still adequate?
8. Is the committee still balanced in the points of view represented?
If members have resigned, been replaced, or if the
functions/charge of the committee has changed, the balance of
the points of view may have changed.
9. How long will the committee need to exist to complete its
function? Estimate when the committee will complete its work.
For example, will it be less than one year, less than two years,
four years, or ongoing '(more than four years)?
October 15, 2003
Page 8-7
-------
Federal Advisory Committee Handbook
8.2.4 The
Justification
for Renewal
Document
The Justification for Renewal is very similar to the Justification
document included in the original advisory committee establishment
package. Apart from the requirement to supply the "appropriate
EPA official's name, title, and contact information" for the GSA
contact, all the requirements found in Chapter 3, Section 3.4.2,
should be contained in the Justification for Renewal. This
information consists of:
1. The DFO's name, title, organization, mail code, telephone
number, and supervisor's name and telephone number;
2. The number of Chartered discretionary committee meetings held
during the last reported fiscal year;
3. The number of committee meetings planned for the next fiscal
year. (If meetings are not planned, you should explain why EPA
should not terminate the committee.);
Note: It is EPA policy that the AA, RA, Associate Administrator,
or CMO recommend termination or merger of advisory committees
that have not met during the fiscal year. Program officials should
justify why committees should continue if they have not been
staffed for more than a year. GSA's Committee Management
Secretariat is responsible for performing Annual Comprehensive
Reviews of the activities and responsibilities of the advisory
committee to determine, among other things, whether an advisory
committee should be abolished.
4. Explanation of why the advisory committee is necessary, its
purpose, and how it relates to the Administration's initiatives,
priorities, and strategic goals;
5. Narrative that shows renewing the advisory committee serves
considerations of significant national interest or is needed to
ensure proper conduct of Agency business. This narrative should
be included if the committee is not required by statute;
October 15, 2003
Page 8-8
-------
Federal Advisory Committee Handbook
6. Explanation of why the functions of the advisory committee
cannot be successfully performed by EPA, another existing
advisory committee of the EPA, or other means such as a public
hearing; and
7. Description of the Agency's plan to attain fairly balanced
membership. That plan should show that EPA considers a cross-
section of interested and qualified stakeholders when selecting
advisory committee members.
8.2.5 The Federal
Register Notice
Announcing
Renewal
The DFO is responsible for publishing a Federal Register notice
announcing the renewal prior to the advisory committee's
termination date. The DFO may choose to have the Federal
Register notice published at the same time the Charter is filed with
Congress.
The DFO should forward a copy of the published Federal Register
notice to EPA's CMO.
Note: The GSA Rule requires the Federal Register notice to be
published after GSA has completed its review.
8.3 How to
Re-establish a
Committee
Under FACA, an advisory committee must be re-established if it is
not renewed and a new Charter is not filed before the expiration
date. Advisory committees may not resume meetings or conduct any
business until the re-establishment Charter is filed with Congress.
To re-establish an advisory committee, follow the procedures used
for establishments as outlined in Chapter 3. If an advisory
committee's Charter is renewed in a timely manner, re-establishment
is not necessary. If re-establishment is required for an advisory
committee, please seek guidance from EPA's CMO.
October 15, 2003
Page 8-9
-------
Federal Advisory Committee Handbook
8.4 When to
Amend the
Charter
8.4.1 Differences
Between Major
and Minor
Charter
Amendments
Charters should be amended, if necessary, with every two-year
renewal. However, there are times when it is necessary to amend the
Charter before the next scheduled committee renewal date. The
Charter of a discretionary advisory committee should be amended
when either the CMO or the Program office determines that the
provisions of the current Charter have changed or become obsolete.
Amendments should not significantly alter the advisory committee's
objectives and scope.
The steps you follow for drafting and filing an amended Charter
depend on the nature of the changes you are makingwhether they
fall into the category of major or minor changes. Different levels of
approval are required for major and minor changes.
Amending a discretionary advisory committee Charter does not
constitute renewal of the committee and does not affect the two-year
sunset date for the next scheduled renewal.
Major amendments encompass substantial changes in objectives,
scope, duties, estimated costs, or sector composition of the advisory
committee. Under the GSA rule, major amendments require EPA's
CMO to consult with GSA's Committee Management Secretariat on
the new language and to explain the purpose and necessity of the
changes. Under EPA policy, major amendments are subjected to a
higher level of review within the Agency. Requests for major
amendments should be sent from an Assistant Administrator,
Regional Administrator, or Associate Administrator, through the
CMO, for formal approval by EPA's Deputy Administrator. The
specific process and requirements for making a major amendment to
your committee's Charter are discussed in Section 8.5.
Minor amendments involve such matters as changing the name of
the advisory committee or modifying the estimated number or
frequency of committee meetings. The GSA rule does not require a
consultation with GSA's Committee Management Secretariat.
Minor amendments may be requested by the DFO of the
discretionary advisory committee. Under EPA policy the CMO is
authorized to approve minor Charter amendments. The process and
requirements for making minor amendments to your committee's
Charter are discussed in Section 8.6.
October 15,2003
Page 8-10
-------
Federal Advisory Committee Handbook
8.5 How to
Make Major
Amendments to
a Charter
Major amendments, such as those dealing with changes in objectives
and scope, duties, estimated costs, or the composition of a
discretionary advisory committee, may be requested by an Assistant
Administrator, Regional Administrator, or Associate Administrator
and approved by EPA's Deputy Administrator. After the Deputy
Administrator approves the amendment, the CMO will consult with
GSA's Committee Management Secretariat as required by the GSA
rule.
During the GSA consultation, the CMO will provide a justification
for amending the Charter explaining the purpose and reasons for the
changes. GSA usually responds to the CMO within 15 calendar
days of the consultation. Although GSA usually approves Charter
amendments, the EPA Administrator (or designee) retains final
authority and can authorize continuing with the Charter amendment
process.
Once amended, the GSA rule requires the Charter to be filed with
the appropriate Congressional committees, the Library of Congress,
and GSA.
An outline of the basic steps for a major Charter amendment for a
discretionary advisory committee are discussed in detail in Exhibit
8-4.
October 15, 2003
Page 8-11
-------
Federal Advisory Committee Handbook
Exhibit 8-4: BasicjSteps to Make Major Amendments to a
Discretionary FAC Charter
Q Stepl.
Q Step 2.
G Step 3.
G Step 4.
G StepS.
Contact the CMO to discuss your need for a major Charter amendment.
Draft the major amendment request package and forward it to the CMO
for review. The CMO transmits the amendment to the OGC FACA
Attorney for review and comment.
Incorporate comments and forward the finalized major Charter
amendment request package to your Assistant Administrator, Regional
Administrator, or Associate Administrator for signature.
Submit the signed package to the Committee Management Officer. The
CMO will obtain the OGC FACA Attorney's concurrence, sign their
approval, and forward the Charter amendment request package to the
Deputy Administrator's office for Special Assistant review and the Deput
Administrator's signature.
The CMO consults with GSA's Committee Management Secretariat.
After receiving a GSA's response, the CMO requests that the Office of
Congressional and Intergovernmental Relations file copies of the
amended Charter with the appropriate congressional committees and
the Library of Congress. The amendment is effective on the date the
Charter is filed with Congress. To complete the process, the CMO files
dated copy of the amended Charter with GSA's Committee Management
Secretariat and also sends a dated copy to the DFO.
October 15, 2003
Page 8-12
-------
Federal Advisory Committee Handbook
8.5.1 Elements of
a Discretionary
Committee Major
Charter
Amendment
Request Package
There are three specific documents you should prepare and submit as
part of the major amendment request package. These three
documents are:
1. Transmittal Memo (requesting that the Charter be amended) from
your program office's Assistant Administrator, Regional
Administrator, or Associate Administrator;
2. The draft amended Charter; and
3. Justification for Major Amendments attachment.
5.5.2 Elements of The Transmittal Memo from your AA, RA, or Associate
the Transmittal Administrator should indicate that he/she supports the major Charter
Memo for a Major amendment for the discretionary committee and recommends that
Amendment the Deputy Administrator approve the amendment. The Transmittal
Memo should be sent to the CMO, who will review and sign the
amendment package prior to sending it to the Deputy Administrator.
The Transmittal Memorandum also should include a concurrence
and non-concurrence signature and date line for the Deputy
Administrator.
8.5.3 Elements of The elements of the Charter remain the same whether it is amended
the Amended
Charter
or renewed, except that the language in the Purpose and Authority
section of the Charter indicates that the Charter is being amended.
In addition to the changes you wish to make, the CMO or the OGC
FACA attorney may take the opportunity to update the Charter to
include the most recent language changes made to EPA's Charter
template.
8.5.4 Elements of The Justification for Major Amendments should:
the Justification
for Major 1. Explain the purpose of the changes and why they are necessary;
Amendments and
2. Include the appropriate EPA DFO's name, title, organization,
mail code, telephone number, and e-mail address.
October 15, 2003
Page 8-13
-------
Federal Advisory Committee Handbook
8.6 How to Minor changes, such as revising the name of the committee or
Make Minor modifying the estimated number or frequency of meetings, are
Amendments usually requested by the DFO and are approved by the CMO. After
to a Charter *e minor changes are made to the Charter, the CMO obtains
concurrence from the OGC FACA Attorney. The minor changes are
documented by the CMO and copies of the dated amended Charter
are filed with the appropriate Congressional Committees, the Library
of Congress, and GSA.
An outline of the steps for a minor Charter amendment for a
discretionary advisory committee are discussed in detail in Exhibit
8-5.
8.6.1 Elements of The two elements needed in the minor amendment request package
a Discretionary are:
Committee
Minor Amendment 1. Transmittal Memo from the DFO addressed to the CMO. The
Request Package memo should request that the Charter be amended and include an
explanation as to why the change is needed; and
2. The amended Charter.
8.7 Charter
Amendment
Tips
1. A Charter amendment does not change the date of the
Charter's next two-year scheduled renewal.
2. Negotiated Rulemaking advisory committees (Reg-Neg
committees)are discretionary advisory committees and are treated
as such for the purpose of Charter amendments. EPA, however,
treats Reg-Neg committees as non-discretionary advisory
committees for the purpose of the ceiling imposed on advisory
committees by Executive Order 12838, which required agencies
to reduce the number of advisory committees by one-third and
gave OMB the authority to determine whether an agency could
add more advisory committees.
3. Federal Register notices are not necessary to announce
amendments to the Charter.
October 15, 2003
Page 8-14
-------
Federal Advisory Committee Handbook
Exhibit 8-5: Basic Steps to Make Minor Amendments to a
Discretionary FAC Charter
Q Stepl.
Q Step 2.
Q Step 3.
Q Step 4.
The basic steps for making a minor amendment to the Charter of your
discretionary FAC are:
Contact the CMO to discuss your need for a minor Charier amendment.
Prepare a Transmittal Memo from yourself (DFO) to the CMO explaining
your need for making a minor amendment to the Charter and attach a
draft of the amended Charter.
The CMO obtains concurrence from OGC's FACA Attorney.
The CMO asks EPA's Office of Congressional and Intergovernmental
Relations to file a copy of the amended Charter with the appropriate
congressional committees and the Library of Congress. The Charter
amendment is effective on the date the Charter is filed with Congress.
Finally, to complete the minor amendment process, the Committee
Management Officer files a dated copy of the minor amended Charter
with GSA's Committee Management Secretariat.
October 15, 2003
Page 8-15
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15, 2003 Page 8-16
-------
-------
Federal Advisory Committee Handbook
Chapter 9: Documentation and Record Keeping
9.0 Overview
Throughout the federal advisory committee process, it is important
to ensure that committee deliberations and determinations are
documented, and that all reports and records are properly filed and
maintained. This chapter identifies the minimum requirements for
documentation and record keeping, and provides an overview of
the types of documents and records that are prepared by federal
advisory committees. This chapter also provides a checklist of all
documents that should be maintained in the official file of an
advisory committee.
9.1 DFO
Responsibilities
The DFO has overall responsibility for:
Documenting the committee's meetings and activities,
deliberations, and determinations;
Maintaining committee records and ensuring compliance with
public access requirements;
Disclosing budget information and the disposition of funds
distributed to the advisory committee;
Filing advisory committee reports with the Library of Congress;
and
Ensuring the proper disposition of committee records.
9.2 Records and
Public Access
Requirements
One of the primary reasons that Congress passed FACA was to
ensure public access to the records and documents of advisory
committees. This fosters greater transparency and accountability of
agencies' use of advisory committees. The following legal
definition of a record applies to FACA records, and explains the
different types of records and materials that your advisory
committee may produce. This section also explains the legal
requirements and EPA guidelines for documenting committee
activities, maintaining records, and ensuring public access.
October 15, 2003
Page 9-1
-------
Federal Advisory Committee Handbook
9.2.1 Definition of
"Record"
According to §3301 of the Federal Records Act (44 U.S.C. 33), a
federal record is, "books, papers, maps, photographs, machine
readable materials, or other documentary materials, regardless of
physical form or characteristics, made or received by an agency of
the United States Government under federal law or in connection
with the transaction of public business and preserved or
appropriate for preservation by that agency or its legitimate
successor as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the
Government or because of the informational value of data in
them." This definition serves as a basis for what could be
considered a record with regards to your advisory committee. A
list of EPA record retention schedules that affect federal advisory
committees is listed below.
9.2.2 Types of
Federal Records
There are two types of records:
Permanent Records, which are appraised by the National
Archives and Records Administration (NARA) as having
sufficient historical or other value to warrant preservation
beyond the usual expiration date for legal, fiscal, or
administrative purposes; and
Temporary Records, which are approved by NARA for
disposal, either immediately or after a specific retention
period.
You should keep permanent records, may include copies of the
committee's meeting minutes and reports, in the office of the
committee for four years after the committee is terminated. After
four years, the permanent records should be moved to a records
center. After 20 years at the record center, the records are usually
moved once again for permanent storage at NARA. If your
committee has any technical reference materials that should be
preserved, you must reclassify them (e.g., as a handout or
background document) if you want them to be preserved after they
are no longer useful or have become obsolete. Again, refer to the
EPA record retention schedules listed below for more specific
information.
October 15, 2003
Page 9-2
-------
Federal Advisory Committee Handbook
Note: Typically, about 50% of your
committee records fall under the category of
temporary records.
Your temporary records, which include background materials and
membership correspondence, should be kept in the office for only
one year after your committee is terminated. After one year, the
temporary records are usually sent to NARA to be held for four
more years, after which they are destroyed.
FACA requires you to keep records that fully disclose the
disposition of funds allocated to your advisory committee and the
nature and extent of the committee's activities regarding those
funds.
Exhibit 9-1 identifies the category under which advisory
committee documents and usually records fall and the appropriate
retention period.
EPA Records Retention Schedules
That Affect Federal Advisory Committees
Series Number
181-
186-
187-
188-
309-
356-
518-
Title
Federal Advisory Committee Files
Inter-Agency Committee Records
Intra-Agency and Internal Committee
Records
EPA Steering Committee Files
Public Inquiries Rules
Federal Register Notice Files
Rulemaking Committee Files
October 15, 2003
Page 9-3
-------
Federal Advisory Committee Handbook
Exhibit 9-1
Committee Record Types and Dispositions
(Per EPA Re
d Retentic
edulcs 181. 186. 187. 188. 309.
Permanent Records
Maintained for 4 years in office after the end
of the committee, then transferred to Records
Center. After 20 years transferred to a
permanent NARA storage facility. Examples
of permanent records include:
Establishment Materials, including
charters and renewals
Membership Lists
Pre-meeting Materials
Meeting Agendas
Meeting Minutes/Transcripts
Public Comments and Submitted Materials
Background Materials/Handouts (materials
prepared for the committee)
Correspondence
Advice/Response
FACA Administrative Reports
Committee Vote Records
Committee Final Reports
Temporary Records
Maintained for 1 year in Office after the
end of the committee, then forwarded to
NARA for four years of storage, then
continue to store, or destroy, as needed.
Examples of temporary records include:
Draft Reports
Pre-membership Lists
Travel Cost documents
Other Cost documents
Technical Documents
Records of secondary importance
Reference Documents (destroy when
no-longer needed) (e.g., library and
reference materials, stocks of
publications and processed documents
maintained for distribution)
October 15, 2003
Page 9-4
-------
Federal Advisory Committee Handbook
9.2.3 Public Access
Requirements
9.2.4 FOIA
and Committee
Records
FACA requires that advisory committees make their records,
reports, and other documents and materials available for public
inspection and copying. Your committee's records must be made
available for public inspection and copying at a single location -
either in the offices of the advisory committee, or in an EPA
office to which the advisory committee reports. Under FACA,
your advisory committee records must be made available to the
public at that one location until the advisory committee ceases to
exist. FACA committee documents are the records, reports,
transcripts, minutes, appendices, working papers, drafts, studies,
agenda, or other documents that were made available to, or
prepared for or by, the advisory committee.
Under FACA, committee documents are not required to be
provided to the public if the documents can be withheld under the
Freedom of Information Act (FOIA). Generally, you should make
the minutes of open meetings and other non-exempt committee
records available to interested parties on request. (The FOIA 10-
day period for responding does not apply.) The DFO should
provide public access to the records from the open portions of any
partially closed meeting upon request. If a person requests
documents that you are withholding under a FOIA exemption, you
should tell them why you are not releasing the documents, and that
they can file a FOIA request for the documents. The request will
then be handled by EPA under the agency's FOIA rule. Exhibit
9-2 identifies the nine exemptions under FOIA that allow records
to be withheld from the public.
October 15, 2003
Page 9-5
-------
Federal Advisory Committee Handbook
Exhibit 9-2:
Exemptions from FOIA Public Access Requirements
The Freedom of Information Act provides the following exemptions that allow an
agency to withhold records:
Exemption 1: Classified documents
Exemption 2: Internal personnel rules and practices
Exemption 3: Information exempt under other laws
Exemption 4: Confidential business information
Exemption 5: Internal government communications
Exemption 6: Personal privacy
Exemption 7: Law enforcement records
Exemption 8: Financial institution document
Exemption 9: Geologic and geophysical information about wells (rarely used)
9.3 Documenting
Meetings and
Activities
An important DFO responsibility is to document meetings,
deliberations, and decisions of the advisory committee properly.
The DFO should assign a staff person to take accurate and
comprehensive notes, track committee and subcommittee
activities, and file committee materials in the appropriate location.
The remainder of this section addresses how you should approach
your meeting minutes, and what documents you should maintain
in your advisory committee's official file.
Note: Make sure you properly date and provide
supporting documentation for any activities
your committee completes to ensure proper
handling and disposition of committee files.
9.3.7 Meeting Minutes It is the responsibility of the DFO to ensure that detailed minutes
are kept of each advisory committee or subcommittee meeting.
These minutes are not required to be verbatim transcripts. The
program office, however, may determine that a verbatim transcript
is preferable to minutes. In such cases, the verbatim transcript can
October 15, 2003
Page 9-6
-------
Federal Advisory Committee Handbook
be used as the minutes, providing it contains the required
information as is certified by the committee chairperson. The
GSA rule requires the official minutes to include the following
information:
G 1. The time, date, and place of the meeting;
G 2. A list of advisory committee members, staff, and Agency
employees present;
G 3. Members of the public who presented oral or written
statements;
G 4. A complete and accurate description of matters discussed,
the conclusion reached, and the recommendations, if any,
made by the committee; and
G 5. Copies of each report or other documents received,
issued, or approved by the advisory committee.
In addition, it is recommended that you include:
G An estimate of the number of members of the public present;
and
G A description of any recusal by advisory committee members.
Remember, the chairperson must certify to accuracy of the
advisory committee minutes within 90 days after the meeting.
9.3.2 Transcripts FACA does not require you to maintain transcripts of your
advisory committee's meetings, just detailed meeting minutes.
Even though you are not required to maintain transcripts of your
meetings, if you do maintain them, FACA requires you to make
copies available for inspection and copying.
October 15, 2003 Page 9-7
-------
Federal Advisory Committee Handbook
9.3.3 Documenting
Activity Completion
You need to be sure that you have adequately documented the
activities completed by your advisory committee. All reports and
other documents prepared by, or for your committee should be
placed in the committee file. If you are missing any supporting
documentation on a completed committee activity, try to get
another copy of the document if possible for your FAC file. If
another copy of the document cannot be found, enter a note into
the file for your FAC identifying the activity completion date, for
future reference and for future reports. To help with the proper
9.3.4 Official
Committee File
Examples of Activity Completion Documentation
Example 1- Your FAC's Work is Completed: The supporting
documentation you need to supply includes the Charter or an
extension through your end date, any "disestablishment"
documents, a final report and responses, and any final
recommendations and responses.
Example 2 - A Contract Agreement is Completed: The
documentation to support this completion includes the contract
agreement or amendment that indicated the work completed
(including dates), a final deliverable, and a final invoice with
approval.
handling and maintenance of your committee's files, you should
keep track of any important dates for all committee activity
documents, and include any needed supporting documentation.
All documents provided to or produced for or by your advisory
committee should be placed in the official committee file
established in your office at EPA. You should keep two official
files, one containing documents that are available to the public,
and the other containing any committee documents you plan to
withhold under FOIA. You should not wait until someone asks
for documents to determine whether they should be withheld.
FACA also requires that eight copies of each advisory committee
report be filed with the Library of Congress for public inspection
and use. The committee DFO should forward to the Library of
Congress all committee reports and, where appropriate,
background papers prepared by consultants.
October 15,2003
Page 9-8
-------
Federal Advisory Committee Handbook
All advisory committee documents, including reports and minutes,
should contain the following disclaimer:
"The [insert committee name] is a federal advisory committee
chartered by Congress, operating under the Federal Advisory
Committee Act (FACA; 5 U.S.C., App.2). The committee
provides advice to the Administrator of the U.S.
Environmental Protection Agency on [insert subject matter].
The findings and recommendations of the Committee do not
represent the views of the Agency, and this document does
not represent information approved or disseminated by EPA."
This disclaimer would change slightly for a Presidential Advisory
Committee.
Exhibit 9-3 provides a list of the committee documents and
materials that should be maintained in the official committee file.
Documents that are exempted from public review under FACA
still should be filed, but in a non-publicly accessible file
specifically created for such materials. Under FACA, advisory
committee records must be available to the public in one location
until the advisory committee ceases to exist.
October 15,2003 Page 9-9
-------
Federal Advisory Committee Handbook
Exhibit 9-3:
Required Documents in the Official Committee File
In general, your committee or subcommittee FACA file should include the following
documents:
G 1. The Committee's Charter, including:
G la. Renewals
Q Ib. Re-chartering
G Ic. Amendments
G 1A. For a subcommittee:
Q The mission statement
G The charge to the subcommittee
2. The Federal Register notices for the committee, including:
Q 2a. Establishment notices
G 2b. Reestablishment notices
G 2c. Committee meeting notices
G 2d. Renewal notices
G 2e. Notices soliciting nominations for committee membership
G 3. The official certified meeting minutes of each meeting. The verbatum transcript, if one
was made, and any electronic recording of the meeting;
G 4. Reports or draft reports of the committee;
G 5. Working papers of the committee;
G 6. Studies prepared for the committee;
G 7. Agendas of committee meetings;
G 8. Record of any votes that must be recorded, and how each member voted;
G 9. Background papers prepared by consultants;
G 10. Public comments and materials sent to the committee;
G 11. All EPA documents provided to the committee (privileged or confidential documents
should be filed in a separate file to which the public does not have access); and
G 12. Other documents or material provided to, or prepared for or by the committee.
October 15, 2003 Page 9-10
-------
Federal Advisory Committee Handbook
9.4 Periodic and
Annual Reports
9.4.1 GSA Annual
Review
9.4.2 Preparing an
Annual Report
9.4.3 Periodic
Reports
9.4.4 Filing Reports
with the Library of
Congress
The committee's DFO is responsible for ensuring that all reports
produced by or for the advisory committee are drafted, delivered,
and filed properly. The DFO is also responsible for preparing and
filing annual and periodic committee reports, which are discussed
in the following subsections.
Under FACA, the GSA Administrator, (through the Committee
Management Secretariat) is required to conduct an annual
comprehensive review of all advisory committees with filed
charters or that has been or was in existence during the fiscal year,
which results in an annual report to Congress. The information
for this review will be transmitted to GSA in an electronic format
specified by GSA for inclusion in the annual report.
The annual report is based on your committee's activities and
costs of running the committee for the previous fiscal year.
Instructions and forms will be provided to you by GSA. The
reports are coordinated by the CMO. GSA conducts a
comprehensive review based on the information provided in the
annual report on fiscal year activities and will advise your CMO if
they have any concerns. Reports of closed meetings (or portions
of meetings) also need to be issued annually.
The GSA Committee Management Secretariat or the Agency
Committee Management Officer may, from time to time, ask an
advisory committee to submit a report about its operations and
activities.
You are required to file eight copies of any reports prepared by or
for the advisory committee with the Library of Congress.
If you need more assistance, please contact your CMO or the EPA
Records Officer.
October 15, 2003
Page 9-11
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15, 2003 Page 9-12
-------
-------
Federal Advisory Committee Handbook
Chapter 10: Terminating a Federal Advisory
Committee
10.0 Overview
The last stage of your advisory committee is its termination. This
chapter will walk you through the steps you should take to ensure the
proper close-out of your committee and the proper disposition of
your committee documents.
10.1 Committee
Termination
According to the GSA rule, an advisory committee, unless renewed,
automatically terminates two years after the date its Charter was filed
with Congress or, for a Presidential committee, the date the Charter
was filed with the GSA Secretariat. If this happens to your
committee, the steps you should take to renew your committee are
discussed in-depth in Chapter 8.
In some cases, you may want to close out your advisory committee
sooner than two years from the date the Charter was filed with
Congress or GSA. An advisory committee should be terminated
early if:
The purpose of the committee has been fulfilled;
The committee is no longer undertaking the purpose for which it
was originally formed;
The committee has become obsolete in the time that has passed
since it was established;
The purpose of the committee has been assumed by another
government entity; or
The cost to operate the committee is greater than the benefit
gained from the committee.
October 15, 2003
Page 10-1
-------
Federal Advisory Committee Handbook
If your committee was required by statute, the termination date of the
committee is either explicitly identified in the statute, or implied in
the wording of the statute, and cannot be terminated early.
Committees required by statute are often mandated to exist for more
than two years, but are still required to file new Charters at two-year
intervals from the establishment date. For more information on
filing a Charter for renewal, please see Chapter 8.
70.7.7 Sunset
Terminations
10.1.2
Non-Discretionary
Advisory Committee
Expiration Dates
If a discretionary advisory committee Charter is not renewed prior to
the Charter expiration date, it is automatically terminated under the
sunset provisions of FACA. You should consult with the CMO if
you or your management believe a terminated committee should be
re-established. This re-establishment process is discussed in detail in
Chapter 8.
If a non-discretionary advisory committee is established by statute, it
automatically de-activates two years after the establishment date,
unless the statue clearly provides or implies a different duration.
This means that the committee cannot meet until the paperwork for
re-establishment is filed with Congress.
If a non-discretionary advisory committee is established by an
Executive Order, it automatically terminates two years after it was
established unless it is renewed by the Agency prior to the expiration
date. It is possible for the Agency to choose to keep this type of
committee by renewing it as a new discretionary advisory committee.
If the expiration date passes without a renewal, and the Agency still
wishes to renew the committee, the normal process of re-
establishment must be followed, as outlined in Chapter 8.
Note: If your advisory committee is required by statute and will
exist for more than two years, you must file a new Charter at the
end of each two-year period after establishment, until the
committee is terminated.
October 15, 2003
Page 10-2
-------
Federal Advisory Committee Handbook
10.2 How to
Terminate a
Committee
10.3 Final
Disposition of
Committee
Records
A discretionary advisory committee should be terminated as soon as
it has completed its work. To terminate the committee, the DFO
notifies the CMO in writing either via e-mail or some other method
such as a memorandum, that the committee's work is complete and
provides the date termination will be effective.
When terminating a non-discretionary advisory committee, the DFO
notifies the CMO in writing, either via e-mail or some other method
that can be documented. A termination package is then prepared by
the DFO and sent through the CMO for OGC and Deputy
Administrator concurrence. All actions you take in order to
terminate your non-discretionary advisory committee need to be
submitted to and cleared by the CMO.
Because all committees are subject to the Federal Records Act (44
U.S.C. Chapter 21, 29-33), you, a designated staff person, or other
committee representative should coordinate with EPA's Records
Management Officer in submitting records disposition schedules to
National Archives and Records Administration (NARA). To make
sure that the records are disposed of properly, you should submit the
schedules to NARA at least six months before your committee is
scheduled to terminate. Once you terminate your committee, keep
your records for one year before disposing of them or storing them.
Chapter 9 provides details on recordkeeping and disposition
requirements.
Prior to the date of your committee's termination, make sure that all
your records are up to date and are ready to be submitted to records
management. Upon termination, all of your committee records
should be submitted according to the Federal Records Act (44 U.S.C.
Chapter 21,29-33), National Archives and Records Administration
(NARA) regulations, and/or the Public Records Act (PRA).
October 15, 2003
Page 10-3
-------
Federal Advisory Committee Handbook
You also should be aware that the CMO includes information on
your committee in the annual "Active Advisory Commitees" report if
your committee was at all active during the fiscal year. It is
advisable to resolve any "loose-ends" concerning your records prior
to termination, and to update your records in the GSA FACA
database. A checklist of steps involved in the termination of your
committee is provided in Exhibit 10-1.
Note: For Presidential advisory committees subject to the
Public Records Act (PRA), consult with the White House
Counsel on what records need to be preserved under that Act.
You may also want to confer with National Archives and
Records Administration officials.
Exhibit 10-1:
Federal Advisory Committee Termination Checklist
The following steps should be completed when terminating a Federal Advisory Committee:
01 1. Notify the CMO of the intent to terminate the committee.
G 2. Prepare your records for proper disposal or storage (See Chapter 9).
G 3. Make sure the GSA FACA database is up to date concerning your committee.
Be prepared for follow-up questions regarding the committee's performance and overall
accomplishments.
October 15, 2003
Page 10-4
-------
Federal Advisory Committee Handbook
Appendix A:
Federal Advisory Committee Act
October 15,2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
Federal Advisory Committee Act
1. § 1. Short title
this Act may be cited as the "Federal Advisory Committee Act."
§ 2. Findings and purpose
(a) The Congress finds that there are numerous committees, boards, commissions, councils,
and similar groups which have been established to advise officers and agencies in the
executive branch of the Federal Government and that they are frequently a useful and
beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal
Government.
(b) The Congress further finds and declares that
(1) the need for many existing advisory committees has not been adequately reviewed; (2)
new advisory committees should be established only when they are determined to be
essential and their number should be kept to the minimum necessary; (3) advisory
committees should be terminated when they are no longer carrying out the purposes for
which they were established; (4) standards and uniform procedures should govern the
establishment, operation, administration, and duration of advisory committees; (5) the
Congress and the public should be kept informed with respect to the number, purpose,
membership, activities, and cost of advisory committees; and (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.
§ 3. Definitions
For the purpose of this Act-
(1) The term "Administrator" means the Administrator of General Services. (2) The term
"advisory committee" means any committee, board, commission, council, conference,
panel, task force, or other similar group, or any subcommittee or other subgroup thereof
(hereafter in this paragraph referred to as "committee"), which is
(A) established by statute or reorganization plan, or
(B) established or utilized by the President, or
(C) established or utilized by one or more agencies, in the interest of obtaining advice or
recommendations for the President or one or more agencies or officers of the Federal
Government, except that such term excludes (i) the Advisory Commission on
Intergovernmental Relations, (ii) the Commission on Government Procurement, and (iii)
any committee which is composed wholly of full-time officers or employees of the Federal
Government. (3) The term "agency" has the same meaning as in section 551(1) of Title 5.
(4) The term "Presidential advisory committee" means an advisory committee which
-------
advises the President.
§ 4. Applicability; restrictions
(a) The provisions of this Act or of any rule, order, or regulation promulgated under this
Act shall apply to each advisory committee except to the extent that any Act of Congress
establishing any such advisory committee specifically provides otherwise.
(b) Nothing in this Act shall be construed to apply to any advisory committee established or
utilized by~
(1) the Central Intelligence Agency; or
(2) the Federal Reserve System, (c) Nothing in this Act shall be construed to apply to any
local civic group whose primary function is that of rendering a public service with respect
to a Federal program, or any State or local committee, council, board, commission, or
similar group established to advise or make recommendations to State or local officials or
agencies.
§ 5. Responsibilities of Congressional committees; review; guidelines
(a) In the exercise of its legislative review function, each standing committee of the Senate
and the House of Representatives shall make a continuing review of the activities of each
advisory committee under its jurisdiction to determine whether such advisory committee
should be abolished or merged with any other advisory committee, whether the
responsibilities of such advisory committee should be revised, and whether such advisory
committee performs a necessary function not already being performed. Each such standing
committee shall take appropriate action to obtain the enactment of legislation necessary to
carry out the purpose of this subsection, (b) In considering legislation establishing, or
authorizing the establishment of any advisory committee, each standing committee of the
Senate and of the House of Representatives shall determine, and report such determination
to the Senate or to the House of Representatives, as the case may be, whether the functions
of the proposed advisory committee are being or could be performed by one or more
agencies or by an advisory committee already in existence, or by enlarging the mandate of
an existing advisory committee. Any such legislation shall-
(1) contain a clearly defined purpose for the advisory committee;
(2) require 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;
(3) contain appropriate provisions to assure that the advice and recommendations of the
advisory committee 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;
(4) contain provisions dealing with authorization of appropriations, the date for submission
of reports (if any), the duration of the advisory committee, and the publication of reports
-------
and other materials, to the extent that the standing committee determines the provisions of
section 10 of this Act to be inadequate; and
(5) contain provisions which will assure that the advisory committee will have adequate
staff (either supplied by an agency or employed by it), will be provided adequate quarters,
and will have funds available to meet its other necessary expenses.
(c) To the extent they are applicable, the guidelines set out in subsection
(b) of this section shall be followed by the President, agency heads, or other Federal
officials in creating an advisory committee.
§ 6. Responsibilities of the President; report to Congress; annual report to Congress;
exclusion
(a) The President may delegate responsibility for evaluating and taking action, where
appropriate, with respect to all public recommendations made to him by Presidential
advisory committees.
(b) Within one year after a Presidential advisory committee has submitted a public report
to the President, the President or his delegate shall make a report to the Congress stating
either his proposals for action or his reasons for inaction, with respect to the
recommendations contained in the public report.
(c) The President shall, not later than December 31 of each year, make an annual report to
the Congress on the activities, status, and changes in the composition of advisory
committees in existence during the preceding fiscal year. The report shall contain the name
of every advisory committee, the date of and authority for its creation, its termination date
or the date it is to make a report, its functions, a reference to the reports it has submitted, a
statement of whether it is an ad hoc or continuing body, the dates of its meetings, the names
and occupations of its current members, and the total estimated annual cost to the United
States to fund, service, supply, and maintain such committee. Such report shall include a
list of those advisory committees abolished by the President, and in the case of advisory
committees established by statute, a list of those advisory committees which the President
recommends be abolished together with his reasons therefor. The President shall exclude
from this report any information which, in his judgment, should be withheld for reasons of
national security, and he shall include in such report a statement that such information is
excluded.
§ 7. Responsibilities of the Administrator of General Services; Committee Management
Secretariat, establishment; review; recommendations to President and Congress; agency
cooperation; performance guidelines; uniform pay guidelines; travel expenses; expense
recommendations
(a) The Administrator shall establish and maintain within the General Services
Administration a Committee Management Secretariat, which shall be responsible for all
matters relating to advisory committees.
-------
(b) The Administrator shall, immediately after October 6,1972, institute a comprehensive
review of the activities and responsibilities of each advisory committee to determine
(1) whether such committee is carrying out its purpose;
(2) whether, consistent with the provisions of applicable statutes, the responsibilities
assigned to it should be revised;
(3) whether it should be merged with other advisory committees; or
(4) whether is should be abolished.
The Administrator may from time to time request such information as he deems necessary
to carry out his functions under this subsection. Upon the completion of the
Administrator's review he shall make recommendations to the President and to either the
agency head or the Congress with respect to action he believes should be taken. Thereafter,
the Administrator shall carry out a similar review annually. Agency heads shall cooperate
with the Administrator in making the reviews required by this subsection.
(c) The Administrator shall prescribe administrative guidelines and management controls
applicable to advisory committees, and, to the maximum extent feasible, provide advice,
assistance, and guidance to advisory committees to improve their performance. In carrying
out his functions under this subsection, the Administrator shall consider the
recommendations of each agency head with respect to means of improving the performance
of advisory committees whose duties are related to such agency.
(d)(l) The Administrator after study and consultation with the Director of the Office of
Personnel Management, shall establish guidelines with respect to uniform fair rates of pay
for comparable services of members, staffs, and consultants of advisory committees in a
manner which gives appropriate recognition to the responsibilities and qualifications
required and other relevant factors. Such regulations shall provide that-
(A) no member of any advisory committee or of the staff of any advisory committee shall
receive compensation at a rate in excess of the rate specified for GS-18 of the General
Schedule under section 5332 of title 5, United States Code;
(B) such members, while engaged in the performance of their duties away from their homes
or regular places of business, may be allowed travel expenses, including per diem in lieu of
subsistence, as authorized by section 5703 of title 5, United States Code, for persons
employed intermittently in the Government service; and
(C) such members
(i) who are blind or deaf or who otherwise qualify as handicapped individuals (within the
meaning of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 794)), and
(ii) who do not otherwise qualify for assistance under section 3102 of Title 5, by reason of
being an employee of an agency (within the meaning of section 3102(a)(l) of such Title 5),
-------
may be provided services pursuant to section 3102 of such Title 5 while in performance of
their advisory committee duties.
(2) Nothing in this subsection shall prevent--
(A) an individual who (without regard to his service with an advisory committee) is a full-
time employee of the United States, or
(B) an individual who immediately before his service with an advisory committee was such
an employee, from receiving compensation at the rate at which he otherwise would be
compensated (or was compensated) as a full-time employee of the United States, (e) The
Administrator shall include in budget recommendations a summary of the amounts he
deems necessary for the expenses of advisory committees, including the expenses for
publication of reports where appropriate.
§ 8. Responsibilities of agency heads; Advisory Committee Management Officer,
designation
(a) Each agency head shall establish uniform administrative guidelines and management
controls for advisory committees established by that agency, which shall be consistent with
directives of the Administrator under section 7 and section 10. Each agency shall maintain
systematic information on the nature, functions, and operations of each advisory committee
within its jurisdiction.
(b) The head of each agency which has an advisory committee shall designate an Advisory
Committee Management Officer who shall
(1) exercise control and supervision over the establishment, procedures, and
accomplishments of advisory committees established by that agency;
(2) assemble and maintain the reports, records, and other papers of any such committee
during its existence; and
(3) carry out, on behalf of that agency, the provisions of section 552 of title 5, United States
Code, with respect to such reports, records, and other papers.
§ 9. Establishment and purpose of advisory committees; publication in Federal Register;
charter: filing, contents, copy
(a) No advisory committee shall be established unless such establishment is
(1) specifically authorized by statute or by the President; or
(2) determined as a matter of formal record, by the head of the agency involved after
consultation with the Administrator with timely notice published in the Federal Register, to
be in the public interest in connection with the performance of duties imposed on that
agency by law.
(b) Unless otherwise specifically provided by statute or Presidential directive, advisory
-------
committees shall be utilized solely for advisory functions. Determinations of action to be
taken and policy to be expressed with respect to matters upon which an advisory committee
reports or makes recommendations shall be made solely by the President or an officer of
the Federal Government.
(c) No advisory committee shall meet or take any action until an advisory committee
charter has been filed with (1) the Administrator, in the case of Presidential advisory
committees, or (2) with the head of the agency to whom any advisory committee reports
and with the standing committees of the Senate and of the House of Representatives having
legislative jurisdiction of such agency. Such charter shall contain the following
information:
(A) the committee's official designation;
(B) the committee's objectives and the scope of its activity;
(C) the period of time necessary for the committee to carry out its purposes;
(D) the agency or official to whom the committee reports;
(E) the agency responsible for providing the necessary support for the committee;
(F) a description of the duties for which the committee is responsible, and, if such duties are
not solely advisory, a specification of the authority for such functions;
(G) the estimated annual operating costs in dollars and man-years for such committee;
(H) the estimated number and frequency of committee meetings;
(I) the committee's termination date, if less than two years from the date of the committee's
establishment; and
(J) the date the charter is filed.
A copy of any such charter shall also be furnished to the Library of Congress.
§ 10. Advisory committee procedures; meetings; notice, publication in Federal Register;
regulations; minutes; certification; annual report; Federal officer or employee, attendance
(a) (1) Each advisory committee meeting shall be open to the public.
(2) Except when the President determines otherwise for reasons of national security, timely
notice of each such meeting shall be published in the Federal Register, and the
Administrator shall prescribe regulations to provide for other types of public notice to
insure that all interested persons are notified of such meeting prior thereto.
(3) Interested persons shall be permitted to attend, appear before, or file statements with
any advisory committee, subject to such reasonable rules or regulations as the
Administrator may prescribe.
-------
(b) Subject to section 552 of title 5, United States Code, the records, reports, transcripts,
minutes, appendixes, working papers, drafts, studies, agenda, or other documents which
were made available to or prepared for or by each advisory committee shall be available
for public inspection and copying at a single location in the offices of the advisory
committee or the agency to which the advisory committee reports until the advisory
committee ceases to exist.
(c) Detailed minutes of each meeting of each advisory committee shall be kept and shall
contain a record of the persons present, a complete and accurate description of matters
discussed and conclusions reached, and copies of all reports received, issued, or approved
by the advisory committee. The accuracy of all minutes shall be certified to by the
chairman of the advisory committee.
(d) Subsections (a)(l) and (a)(3) of this section shall not apply to any portion of an advisory
committee meeting where the President, or the head of the agency to which the advisory
committee reports, determines that such portion of such meeting may be closed to the
public in accordance with subsection (c) of section 552b of title 5, United States Code. Any
such determination shall be in writing and shall contain the reasons for such
determination. If such a determination is made, the advisory committee shall issue a report
at least annually setting forth a summary of its activities and such related matters as would
be informative to the public consistent with the policy of section 552(b) of title 5, United
States Code.
(e) There shall be designated an officer or employee of the Federal Government to chair or
attend each meeting of each advisory committee. The officer or employee so designated is
authorized, whenever he determines it to be in the public interest, to adjourn any such
meeting. No advisory committee shall conduct any meeting in the absence of that officer or
employee.
(f) Advisory committees shall not hold any meetings except at the call of, or with the
advance approval of, a designated officer or employee of the Federal
§ 11. Availability of transcripts; "agency proceeding"
(a) Except where prohibited by contractual agreements entered into prior to the effective
date of this Act, agencies and advisory committees shall make available to any person, at
actual cost of duplication, copies of transcripts of agency proceedings or advisory
committee meetings.
(b) As used in this section "agency proceeding" means any proceeding as defined in section
551(12) of title 5, United States Code.
§ 12. Fiscal and administrative provisions; recordkeeping; audit; agency support services
(a) Each agency shall keep records as will fully disclose the disposition of any funds which
may be at the disposal of its advisory committees and the nature and extent of their
activities. The General Services Administration, or such other agency as the President may
-------
designate, shall maintain financial records with respect to Presidential advisory
committees. The Comptroller General of the United States, or any of his authorized
representatives, shall have access, for the purpose of audit and examination, to any such
records.
(b) Each agency shall be responsible for providing support services for each advisory
committee established by or reporting to it unless the establishing authority provides
otherwise. Where any such advisory committee reports to more than one agency, only one
agency shall be responsible for support services at any one time. In the case of Presidential
advisory committees, such services may be provided by the General Services
Administration.
§ 13. Responsibilities of Library of Congress; reports and background papers; depository
Subject to section 552 of title 5, United States Code, the Administrator shall provide for the
filing with the Library of Congress of at least eight copies of each report made by every
advisory committee and, where appropriate, background papers prepared by consultants.
The Librarian of Congress shall establish a depository for such reports and papers where
they shall be available to public inspection and use.
§ 14. Termination of advisory committees; renewal; continuation
(a)(l) Each advisory committee which is in existence on the effective date of this Act shall
terminate not later than the expiration of the two-year period following such effective date
unless-
(A) in the case of an advisory committee established by the President or an officer of the
Federal Government, such advisory committee is renewed by the President or that officer
by appropriate action prior to the expiration of such two-year period; or
(B) in the case of an advisory committee established by an Act of Congress, its duration is
otherwise provided for by law.
(2) Each advisory committee established after such effective date shall terminate not later
than the expiration of the two-year period beginning on the date of its establishment
unless
(A) in the case of an advisory committee established by the President or an officer of the
Federal Government such advisory committee is renewed by the President or such officer
by appropriate action prior to the end of such period; or
(B) in the case of an advisory committee established by an Act of Congress, its duration is
otherwise provided for by law.
(b) (1) Upon the renewal of any advisory committee, such advisory committee shall file a
charter in accordance with section 9(c).
(2) Any advisory committee established by an Act of Congress shall file a charter in
accordance with such section upon the expiration of each successive two-year period
-------
following the date of enactment of the Act establishing such advisory committee.
(3) No advisory committee required under this subsection to file a charter shall take any
action (other than preparation and filing of such charter) prior to the date on which such
charter is filed.
(c) Any advisory committee which is renewed by the President or any officer of the Federal
Government may be continued only for successive two-year periods by appropriate action
taken by the President or such officer prior to the date on which such advisory committee
would otherwise terminate.
§ 15. Effective date
Except as provided in section 7(b), this Act shall become effective upon the expiration of
ninety days following October 6,1972.
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
Federal Advisory Committee Handbook
Appendix B:
General Services Administration Final Rule
October 15,2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
T:
Thursday,
July 19, 2001
Part D
General Services
Administration
41 CFR Parts 101-6 and 102-3
Federal Advisory Committee Management;
Final Rule
-------
37728 Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
GENERAL SERVICES
ADMINISTRATION
41 CFR Parts 101-6 and 102-3
[FPMR Amendment A-57]
RIN 3090-AG49
Federal Advisory Committee
Management
AGENCY: Office of Governmentwide
Policy, GSA.
ACTION: Final rule.
SUMMARY: The General Services
Administration (GSA) is revising
Federal Property Management
Regulations (FPMR) coverage on Federal
advisory committee management and
moving it into the Federal Management
Regulation (FMR). A cross-reference is
added to the FPMR to direct readers to
the coverage in the FMR. The FMR
coverage is written in plain language to
provide agencies with updated
regulatory material that is easy to read
and understand. This action is
necessary due to legislative and policy
changes that have occurred, and judicial
decisions that have been issued since
the regulation was last updated. It is
based also on suggestions for
improvement from other Federal
agencies and interested parties, and
clarifies how the regulation applies or
does not apply to certain situations.
EFFECTIVE DATE: August 20, 2001.
FOR FURTHER INFORMATION CONTACT:
Charles F. Howton, Deputy Director,
Committee Management Secretariat
(202) 273-3561, or electronically at the
following Internet address:
charles.howton@gsa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
GSA's authority for administering the
Federal Advisory Committee Act
(FACA), as amended, 5 U.S.C., App.
(also referred to as "the Act"), is
contained in section 7 of the Act and
Executive Order 12024 (42 FR 61445; 3
CFR 1977 Comp.. p. 158). Under
Executive Order 12024, the President
delegated to the Administrator of
General Services all of the functions
vested in the President by the Act.
GSA's responsibilities for administering
the Act have been delegated to the
Associate Administrator for
Governmentwide Policy and to the
Director of the Committee Management
Secretariat.
In a previous issue of the Federal
Register (62 FR 31550, June 10, 1997),
GSA published an Advance Notice of
Proposed Rulemaking (ANPRM) and
requested comments. Additional
comments were requested from the
Interagency Committee on Federal
Advisory Committee Management. GSA
requested comments on: (1) Suggested
issues to address; (2) specific
recommendations about changes needed
in the current Federal Advisory
Committee Management subpart; (3)
examples of situations where FACA was
either a useful tool or a hindrance to
public involvement; and (4) GSA's
intent to include illustrative examples
and principles. On January 14, 2000,
GSA published a proposed rule in the
Federal Register (65 FR 2504) and
requested comments over a 60-day
period ending on March 14, 2000. All
comments received were considered in
drafting this final rule.
This final rule provides
administrative and interpretive
guidelines and management controls for
Federal agencies to implement the
provisions of the Act, and is intended to
improve the management and operation
of Federal advisory committees in the
executive branch.
B. Discussion of Comments
Twenty-six commenters responded to
the invitation for comments, including
twenty commenters from the executive
branch and six commenters from non-
Federal sources. Of the twenty
comments received from executive
branch sources, three comments were
submitted by subcomponents of a
Federal department or agency. A total of
fifty-nine specific issues or
recommendations were identified, of
which seven were either fully
supportive of the proposed rule or
concerned typographical errors. GSA
addressed the disposition of the
remaining fifty-two issues or
recommendations as follows:
The Final Rule Should Include More
Guidance Relating to the Management
of Advisory Committees. Including the
Impact of Other Statutes and Issues on
Day-to-Day Operations
Several commenters provided
suggestions regarding the addition of
guidance on issues that, although not
addressed by the Act, likely would
improve the management of advisory
committees. For example, one
commenter suggested that the final rule
include a provision to encourage
agencies to streamline their internal
processes and procedures in order to
expedite the establishment of advisory
committees. Other commenters
requested that GSA: (1) Provide more
detailed provisions on the
compensation of advisory committee
members and staff, and experts and
consultants; (2) expand the range of
information required to be listed in an
advisory committee's charter to include
the nature and disposition of records;
and (3) incorporate new regulatory
requirements for increasing access to
advisory committee information, such
as providing meeting notices, minutes,
and reports via the Internet.
In response to these
recommendations, GSA expanded the
number of examples included within
the Final rule to illustrate how other
statutes or issues potentially could
affect the effective management of
advisory committees.
In addition, GSA reorganized the
examples and other guidance into
appendices to avoid any ambiguity
between actions required by the Act and
the final rule, and actions that are
suggested only within an implementing
framework of "best practices." In the
final rule, a "Key Points and Principles"
appendix appears at the end of each
subpart to which it relates.
In applying the "best practices"
offered in the appendices, users of the
final rule should continue to examine
the extent to which other factors,
including agency-specific statutory
provisions and internal agency
procedures, may affect a specific
advisory committee or program.
Although GSA believes that the
examples contained in the appendices
to the final rule represent the
circumstances most commonly
encountered during the day-to-day
management of advisory committees,
the listing is not exhaustive and must be
supplemented based upon the unique
requirements of the user.
Provide Additional Guidance Regarding
What Advisory Committees and Their
Subcommittees Must Do To Comply
With the Act
Many commenters expressed concern
over language contained in the preamble
to the proposed rule relating to coverage
of subcommittees under the Act. The
preamble to the proposed rule noted
that:
The applicability of the procedural
requirements contained in FACA and this
proposed rule to subcommittees of advisory
committees has been clarified. GSA's current
. FACA regulation does not make clear that
subcommittees reporting to a parent
committee are not subject to FACA. Indeed,
the regulation states just the opposite,
providing that "(subcommittees that do not
function independently of the full or parent
advisory committee" are subject to all
requirements of FACA except the
requirement for a charter. (See 41 CFR 101-
6.1007(b)(3).) This provision is problematic
for two reasons. First, it applies FACA more
broadly than the statute itself requires.
Second, it essentially creates a special type
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001 /Rules and Regulations 37729
of advisory committee that is subject to some,
but not all of FACA's requirements, which
has no foundation in the statute. Under
FACA, a group is either an advisory
committee subject to all of the statutory
requirements, or it is not an advisory
committee, and therefore not subject to any
of its requirements. Because a subcommittee
which reports to a parent committee is not
an "advisory committee" under FACA, there
is no legal basis for applying any of FACA's
requirements to such a subcommittee.
In evaluating the comments received,
CSA notes that there were no objections
to the exclusions contained in § 102-
3.185 of the proposed rule (now § 102-
3.160 of the final rule), relating to
"What activities of an advisory
committee are not subject to the notice
and open meeting requirements of the
Act?" The exclusions in § 102-3.160 of
the final rule continue to cover the types
of activities routinely performed by
subcommittees. By this reasoning GSA
sought to bring into harmony these
activities with those provisions in the
proposed rule differentiating
subcommittees reporting to a parent
advisory committee from those
reporting directly to a Federal officer or
agency.
However, the preamble to the
proposed rule did not explain and
describe adequately the legal framework
for CSA's decision to differentiate
subcommittees that report only to a
parent advisory committee more clearly
from advisory committees that report
directly to a Federal officer or agency.
The Act defines the term "advisory
committee" as "any committee, * * *
or any subcommittee or other subgroup
thereof which is established or utilized
by the President or an agency in the
interest of obtaining advice or
recommendations for the President or
one or more agencies or officers of the
Federal Government". Under this
definition, a subcommittee is an
"advisory committee" subject to the Act
if it provides advice to the President or
a Federal officer or agency. Most
subcommittees, however, report only to
a parent advisory committee and it is
the parent committee that is normally
responsible for providing advice or
recommendations to the Government. In
this conventional scenario, the
subcommittee is not subject to the Act
because it is not providing advice to the
Government.
Case law supports this conclusion. In
National Anti-Hunger Coalition v.
Executive Committee, 557 F.Supp. 524
(D.D.C.), aff'd, 711 F.2d 1071 (D.C. Cir.
1983), the question presented was
whether the Act applied to task forces
reporting to the Executive Committee of
the President's Private Sector Survey on
Cost Control in the Federal Government.
The task forces had no authority to
make recommendations to agencies or to
the President. Instead, their function
was to do the "preliminary work of the
survey, including fact-gathering,
statistical evaluations, and the
formulation of preliminary reports."
(557 F.Supp. at 526). Although it was
undisputed that the Executive
Committee was subject to the Act, the
court held that the Act did not apply to
the task forces under the following
reasoning:
There is no question that the task forces are
intimately involved in the gathering of
information about federal programs and the
formulation of possible recommendations for
consideration of the Committee. That is not
enough to render them subject to the FACA.
The Act itself applies only to committees
"established or utilized by" the President or
an agency "in the interest of obtaining advice
or recommendations for the President or one
or more agencies." The Act does not cover
groups performing staff functions such as
those performed by the so-called task forces.
(557 F.Supp. at 529). (See also Association of
American Physicians and Surgeons v.
Clinton, 997 F.2d 898, 911-913 (D.C. Cir.
1993).)
GSA believes that as a result of this
decision, subcommittees that report to a
parent advisory committee generally are
not subject to the Act. GSA also believes
that subcommittees whose advice or
recommendations are provided directly
to a Federal officer or agency are subject
to the Act. However, GSA further
believes that this decision does not
shield those subcommittees from
coverage under the Act whose advice or
recommendations are not subject to
deliberation by their parent advisory
committees.
From this reasoning, it is not
permissible for parent advisory
committees simply to "rubber-stamp"
the advice or recommendations of their
subcommittees, thereby depriving the
public of its opportunity to know about,
and participate contemporaneously in,
an advisory committee's deliberations.
Agencies are cautioned to avoid
excluding the public from attending any
meeting where a subcommittee develops
advice or recommendations that are not
expected to be reviewed and considered
by the parent advisory committee before
being submitted to a Federal officer or
agency. These exclusions may run
counter to the provisions of the Act that
require contemporaneous access to the
advisory committee deliberative
process.
To address these issues more clearly,
GSA strengthened language in the final
rule by: (1) Adding a new § 102-3.35
that outlines policies relating to
subcommittees; (2) clarifying language
in § 102-3.145 relating to subcommittee
meetings; and (3) clarifying the
examples contained in Appendix A to
Subpart C.
Correct and Clarify the Definition of
"Utilized"
Nine commenters recommended that
GSA revise its definition of the term,
"utilized" to conform to governing case
law.
As noted by some of the commenters,
the definition of the term "utilized" in
§ 102-3.30 of the proposed rule
inadvertently misstated the applicable
legal test. The proposed rule stated that
a committee is "utilized within the
meaning of the Act when the President
or a Federal agency exercises actual
management and control over its
operation." This construction would
require an agency both to have
management of the committee and to
exercise control over the committee
before the committee can be deemed
"utilized." The proper statement of the
"utilized" test is whether an agency
either has management of the committee
or, in some fashion other than
management, exercises control over the
committee.
The controlling legal authority is
Washington Legal Foundation v. U. .
Sentencing Commission, 17 F.3d 1446
(D.C. Cir. 1994). In that case, the appeals
court gave structure to the U.S. Supreme
Court's prior decision interpreting the
term "utilized." (See Public Citizen v.
Department of Justice, 491 U.S. 440
(1989).) The appeals court ruled that the
word "utilized" indicates "something
along the lines of actual management or
control of the advisory committee." (17
F.3d at 1450). The operative criterion for
determining whether a committee has
sufficiently close ties to an agency in
order to render it "utilized" is whether
the agency has either management of
the committee or exerts some other type
of control, but not necessarily both.
Similarly, § 102-3.50(b) of the
proposed rule (now § 102-3.185(b) of
the final rule) used the phrase "actual
management and control" with regard to
section 15 of the Act. In explaining the
relationship between Federal agencies
and the National Academy of Sciences
(NAS) and the National Academy of
Public Administration (NAPA) covered
by section 15 of the Act, § 102-3.50(b)
of the proposed rule states that
"(ajgencies must not manage or control
the specific procedures adopted by each
academy." However, committees
covered by section 15 of the Act must
be under both the actual management
and the control of the academies, not
that of a Federal agency. In this
instance, the use of the conjunctive
-------
37730
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001 /Rules and Regulations
word "and" is appropriate and indicates
that the academies cannot relinquish
either management or control of their
committees to Federal agencies.
Accordingly, CSA revised the
language contained in the final rule by
changing management and control to
management or control in the definition
of the term "utilized," now in § 102-
3.25 of the final rule, and in those
instances in which it appears in the
"Key Points and Principles" guidance in
the appendices to the final rule.
Clarify the Application of the Act to
Agency Interactions With the Public
Several commenters noted that
Federal agencies are increasingly reliant
on local communities, individual
citizens, and interested parties to obtain
information, advice, or
recommendations on which to base
decisions. They expressed concerns
that: (1) Uncertainty about the scope of
the Act creates a disincentive for
Federal officers and agencies wishing to
engage in public outreach; (2) the
requirements of the Act are being
interpreted differently within and
among agencies; and (3) GSA's current
regulations do not adequately
differentiate between those groups and
activities covered by the Act and others
that are not. (See 41 CFR 101-6.10.)
GSA recognizes that the broad
definition in the Act of an "advisory
committee" might be interpreted to
extend coverage by the Act to any
gathering or two or more persons from
whom the President or other Federal
officers or agencies seek advice or
recommendations. However, in the
cases discussed above, the courts have
rejected such a broad reading of
"advisory committee." GSA believes
that the sections in the final rule on
definitions and on groups not covered
by the Act, §§ 102-3.25 and 102-3.40.
respectively, clarify the limits of the
coverage by, or scope of, the Act when
applied together.
Within this group of comments, GSA
noted a consistent theme related to the
need for more information regarding
public participation tools and
techniques that would allow for more
collaboration that is not subject to the
Act. Although advisory committees
support Federal decisions in a variety of
situations, GSA believes that the ability
of agencies to interact with the public in
numerous other ways is particularly
important because advisory committees
are only one method for agencies to
obtain the views of the public for their
programs. Federal agencies may engage
in continuous collaboration using
diverse, but complimentary, tools,
techniques, and methods. Whether or
not a selected approach includes the use
of advisory committees, the potential or
perceived applicability of the Act must
not prevent constructive collaboration
from taking place. Agencies are
encouraged to contact GSA concerning
not only the use of Federal advisory
committees, but also for information
about alternative forms of public
involvement.
In GSA's view, agencies have broad
latitude to consult with the public using
many different approaches that are not
subject to the Act. Public consultation
formats that generally fall outside of the
scope of the Act include public
meetings, information exchange forums,
meetings initiated with or by non-
governmental organizations, Federal
participation on groups that are not
established or utilized by the
Government, and certain work products
generated by contractors as a result of
consultation with the public.
While FACA is not a public
participation statute, it directly affects
how the executive branch is held
accountable for the use and
management of Federal advisory
committees as a major means of
obtaining public involvement. Within
this context, agencies wishing to consult
with private individuals, non-
governmental organizations, or with the
public at large through other
assemblages often must consider
whether or not the Act applies to a
given situation.
The number and range of scenarios
presented by the commenters
underscore the importance of presenting
a clearer understanding of how advisory
committees are established by Federal
agencies or how the Government's
relationship with groups not established
within the meaning of the Act may
nevertheless become subject to the Act
if they are utilized. Based upon the
comments received, the circumstances
under which advisory committees are
established within the executive branch
appear to be well understood.
Accordingly, GSA retained the language
contained in §102-3.30 of the proposed
rule in § 102-3.25 of the final rule and
throughout subpart B.
However, as noted in the above
discussion of the proposed rule's
treatment of the term "utilized,"
agencies must determine whether or not
their relationship with a group created
by non-Federal entities constitutes
actual management or control within
the meaning of the Act. To help
agencies make this determination, GSA
has included within the final rule
several new examples illustrating the
application of the actual management
or control test to different situations.
These additions are contained in the
"Key Points and Principles" guidance in
Appendix A to Subpart A.
Explain the Relationship Between
Committees Established by the National
Academy of Sciences (NAS) or the
National Academy of Public
Administration (NAPA) and the Act
The Federal Advisory Committee Act
Amendments of 1997, Public Law 105
153, December 17,1997, established
separate procedures for committees that
are managed and controlled by NAS or
NAPA. Subpart E of the final rule
contains implementing instructions for
the new section 15 of FACA.
Clarify the Distinction Between Advisory
Committees Subject to the Act and
Operational Committees Not Covered by
the Act
Five commenters suggested that
further guidance in the final rule is
necessary to assist agencies in
differentiating an operational committee
not covered by the Act from one that
performs primarily advisory functions
and is, therefore, subject to the Act. GSA
added guidance within Appendix A to
Subpart A listing those characteristics
generally associated with committees
having primarily operational, as
opposed to advisory, functions.
Clarify the Applicability of the Act to
Advisory Committee Meetings
Conducted Through Electronic Means
Four commenters supported GSA's
language contained in the proposed rule
extending the definition of "committee
meeting" to meetings conducted in
whole or part through electronic means.
However, two commenters suggested
additional clarifications, which GSA has
adopted.
First, GSA slightly modified the
definition of "committee meeting"
contained in § 102-3.25 of the final rule
to include a "gathering" of advisory
committee members whether in person
or through electronic means. This
change was made to highlight coverage
by the Act of both physical and
"virtual" meetings conducted by such
means as a teleconference,
videoconference, the Internet, or other
electronic medium.
Second, GSA amended the language
contained in § 102-3.140 of the final
rule to provide for adequate public
access to advisory committee meetings
that are conducted in whole or part
through electronic means. This change
complements existing policy covering
advisory committee meetings that are
held within a physical setting, such as
a conference room, by ensuring that
agencies adequately plan for public
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
37731
participation by adding additional
capability (such as a designated number
of public call-in lines for a
teleconference) to ensure access to
committee deliberations.
Provide Additional Guidance on
Balanced Representation and Selection
of Members
One commenter expressed concern
that the proposed rule did not contain
sufficient guidance on balanced
representation and the selection of
members. CSA recognizes that the
guidance contained in the proposed rule
is limited to the language of the Act, but
believes that the provisions of section
5(c) of the Act are broad enough to
allow for agency discretion in
determining advisory committee
representation and membership relative
to applicable statutes. Executive orders,
and the needs of the agency responsible
for the advisory committee.
However, CSA added a list of possible
considerations within Appendix A to
Subpart B that, while not
comprehensive or universally
applicable, may help in developing a
plan for balancing an advisory
committee's membership.
Emphasize the Importance of
Maximizing an Advisory Committee's
Independent Judgment
Five commenters offered various
suggestions to address the requirement
contained in section 5(b)(3) of the Act,
which is intended to ensure that the
work products of an advisory committee
reflect the group's independent
judgment.
Included among these suggestions
were recommendations from the U.S.
Office of Government Ethics (OGE) that
GSA modify the language contained in
§ 102-3.155 of the proposed rule (now
contained in Appendix A to Subpart C
of the final rule) to clarify the
applicability of conflict of interest
statutes and other Federal ethics rules to
advisory committee members. GSA
adopted all of OGE's suggestions.
The remaining suggestions received
concerned the appointment of advisory
committee members, including a
recommended change to § 102-3.155 of
the proposed rule (now Appendix A to
Subpart C) to clarify that: (1) An agency
may appoint a member to an advisory
committee based upon the
recommendation of an organization to
be represented; and (2)
recommendations from an advisory
committee may be a part of an agency's
process to nominate new members. GSA
adopted these changes and suggestions.
Provide Additional Guidance on the
Management of Federal Records
GSA received suggestions from the
National Archives and Records
Administration (NARA) regarding three
areas where additional guidance on
records management issues could be
useful. Specifically, NARA
recommended that § 102-3.190 of the
proposed rule: (1) Be expanded to
include all recordkeeping requirements
specified by the Act, not just those
relating to advisory committee minutes;
(2) include a statement that records
should be scheduled for disposition
before actual termination of the advisory
committee; and (3) with regard to
information that must be included
within an advisory committee's charter,
include a determination as to whether
its records fall within the Presidential
Records Act, 44 U.S.C. Chap 22.
GSA addressed these
recommendations by expanding § 102-
3.200 of the proposed rule (now
Appendix A to Subpart D) to include
additional guidance relating to records
management and to highlight the
applicability and importance of Federal
recordkeeping statutes and policies to
advisory committee operations. GSA
decided to include this guidance within
this appendix because the Act generally
is silent on records management issues,
with the exception of the
responsibilities of the
CommitteeManagement Officer (CMO)
in section 8(b)(2) of the Act.
Pursuant to the National Archives and
Records Administration Act, 44
U.S.C.Chap. 21, the Archivist of the
United States is responsible for records
management in the Federal
Government, including the issuance of
regulations and guidance for records
retention and disposition. The
Archivist, working in conjunction with
the agencies" Records Management
Officers, also is responsible for
identifying records that are appropriate
for transfer to the permanent Archives
of the United States and those that must
be processed in accordance with the
Presidential Records Act.
Strengthen Provisions Relating to the
Public's Access to Advisory Committee
Records
Two commenters suggested that the
final rule contain more explicit
guidance regarding the public's access
to committee records under section
10(b) of the Act. In particular, the
commenters recommended adding
language describing the circumstances
under which records may be withheld
pursuant to the Freedom of Information
Act (FOIA), as amended, 5 U.S.C. 552.
GSA believes that timely access to
advisory committee records is an
important element of the public access
provisions of the Act and, therefore,
agrees with these suggestions. GSA
further believes that there are two
separate, but equally important issues
related to the availability of advisory
committee records under section 10(b)
of FACA: (1) The extent to which
records may be protected from
disclosure under FOIA; and (2) the
extent to which agencies may require
that requests for non-exempt records be
processed under the request and review
process established by section 552(a)(3)
of FOIA.
Section 10(b) of the Act provides that:
Subject to section 552 of title 5, United
States Code, the records, reports, transcripts,
minutes, appendixes, working papers, drafts,
studies, agenda, or other documents which
were made available to or prepared for or by
each advisory committee shall be available
for public inspection and copying at a single
location in the offices of the advisory
committee or the agency to which the
advisory committee reports until the advisory
committee ceases to exist.
The purpose of section 10(b) of the
Act is to provide for the
contemporaneous availability of
advisory committee records that, when
taken in conjunction with the ability to
attend advisory committee meetings,
ensures that interested parties have-a
meaningful opportunity to comprehend
fully the work undertaken by the
advisory committee. Records covered by
the exemptions set forth in section
552(b) of FOIA generally may be
withheld. However, it should be noted
that FOIA Exemption 5 generally cannot
be used to withhold documents
reflecting an advisory committee's
internal deliberations.
An opinion of the Office of Legal
Counsel, U.S. Department of Justice, 12
Op. O.L.C. 73, April 29,1988, entitled
"Disclosure of Advisory Committee
Deliberative Materials," concludes that
FOIA Exemption 5 "is not generally
applicable to materials prepared by or
for an advisory committee, but that it
does extend to protect privileged
documents delivered from the agency to
an advisory committee." The opinion
further states that:
This construction gives meaning to
exemption 5 without vitiating Congress'
enumeration of deliberative documents such
as working papers and drafts as subject to
disclosure. It is also supported by a close
reading of exemption 5 itself Because by its
terms exemption 5 protects only inter-agency
and intra-agency documents and because an
advisory committee is not an agency,
documents do not receive the protection of
exemption 5 by virtue of the fact that they
are prepared by an advisory committee. On
-------
37732
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
the other hand, documents prepared by an
agency do not lose the protection of
exemption 5 by virtue of the fact that they
are delivered to an advisory committee.
In determining whether or not such
records fall within these narrow
exclusions, the OLC opinion provides
that consideration should be given to
determining whether or not section
10(b) of FACA is applicable in the first
instance. As noted in the OLC opinion:
Section 10(b) itself applies only to
materials made available to or prepared for
or by an advisory committee established by
statute or reorganization plan or established
or utilized by the President or an agency. 5
U.S.C. app. I, 3(2), 10(b). Accordingly, in
determining whether a document is to be
disclosed the first issue is not whether it is
subject to an exemption under 5 U.S.C. 552
but whether it meets this threshold
definition.
In explaining this threshold
determination of whether particular
records are subject to the section 10(b)
disclosure requirement, the OLC
opinion states that:
The courts and this Office have construed
the concept of advisory committees
established or utilized by the President or an
agency to preclude section 10(b)'s
application to the work prepared by a staff
member of an advisory committee or a
staffing entity within an advisory committee,
such as an independent task force limited to
gathering information, or a subcommittee of
the advisory committee that is not itself
established or utilized by the President or
agency, so long as the material was not used
by the committee as a whole.
Although advisory committee records
may be withheld under the provisions
of FOIA if there is a reasonable
expectation that the records sought fall
within the exemptions contained in
section 552(b) of FOIA, agencies may
not require members of the public or
other interested parties to file requests
for non-exempt advisory committee
records under the request and review
process established by section 552(a)(3)
of FOIA.
In Food Chemical News v.
Department of Health and Human
Services, 980 F.2d 1468, 299 U.S. App.
DC 25, the appeals court held that:
Under section 10(b) of FACA an agency is
generally obligated to make available for
public inspection and copying all materials
that were made available to or prepared for
or by an advisory committee. Except with
respect to those materials that the agency
reasonably claims to be exempt from
disclosure pursuant to FOIA, a member of the
public need not request disclosure in order
for FACA 10(b) materials to be made
available. Thus, whenever practicable, all
10(b) materials must be available for public
inspection and copying before or on the date
of the advisory committee meeting to which
they apply.
Accordingly, GSA included language
within § 102-3.170 of the final rule
describing the policy to be followed in
implementing section 10(b) of the Act,
and included additional guidance in
Appendix A to Subpart D concerning
the applicability of FOIA to records
covered by section 10(b) of FACA.
Improve the Organization of the Final
Rule
During the course of evaluating
comments received from all sources.
CSA conducted a review of the
proposed rule's general organization
and structure for the purpose of
achieving greater clarity and
consistency in presentation. This effort
led to a number of changes, such as
redesignating the "Key Points and
Principles" sections following each
subpart as appendices. Other changes
were made throughout the final rule to
improve alignment between section
headings and the material that follows.
Similar changes were made within the
appendices in order to improve the
linkage between the examples or
questions and the corresponding
guidance.
In addition, GSA reorganized the final
rule to redesignate subpart B as subpart
E to improve the flow of information
distinguishing Federal advisory
committees subject to the Act from
those committees created by the
National Academy of Sciences (NAS) or
the National Academy of Public
Administration (NAPA) which, if not
utilized by the executive branch, are not
subject to the Act's provisions. Section
numbers previously assigned in the
proposed rule affected by the
redesignation of subpart B as subpart E,
subpart C as subpart B, subpart D as
subpart C, and subpart E as subpart D
have been changed accordingly.
C. Technical and Procedural Comments
The final rule incorporates several
technical and procedural
recommendations made by a range of
commenters, particularly in the
following sections or appendices:
Section/Appendix
102-3.60
Appendix A to Subpart B
Appendix A to Subpart B ..
Appendix A to Subpart C
102-3.130
102-3.130
Appendix A to Subpart 0
102-3.165
Modification
Specific procedures for consulting with the Secretariat have been eliminated GSA will issue separate guid-
ance to agencies covering the administration of the consultation requirement.
Addition of guidance relating to the achievement of "balanced" advisory committee membership
Addition of guidance covering the legal duration of the charter of an advisory committee required by statute
where Congress authorizes the advisory committee for a period exceeding two years.
Addition of guidance addressing the designation of an alternate Designated Federal Officer (OFO).
All references to compensation limits imposed by the Act have been updated and references to alternative
similar agency compensation systems other than the General Schedule have been included.
All references to the word, "handicapped," have been replaced with the phrase, "with disabilities."
Addition of guidance regarding activities that are not subject to the notice and open meeting requirements
of the Act.
The requirement for the completion of advisory committee meeting minutes now requires the DFO to en-
sure certification within the time limit specified.
D. Consultation With Other Federal
Agencies
Pursuant to section 7(d) of the Act,
the guidelines contained in this final
rule with respect to uniform fair rates of
compensation for comparable services
of members and staff of, and experts and
consultants to advisory committees have
been established after consultation with
the U.S. Office of Personnel
Management (OPM).
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
37733
Although not required by the Act, the
guidelines contained in this final rule
that refer to the applicability of conflict
of interest statutes and other Federal
ethics rules to advisory committee
members have been established after
consultation with the U.S. Office of
Government Ethics (OGE).
Although not required by the Act, the
guidelines contained in this final rule
that relate to the management of
advisory committee records have been
established after consultation with the
National Archives and Records
Administration (NARA).
E. Executive Order 12866
GSA has determined that this final
rule is a significant rule for the purposes
of Executive Order 12866 of September
30,1993.
F. Regulatory Flexibility Act
GSA has determined that this final
rule will not have a significant
economic impact on a substantial
number of small entities (including
small businesses, small organizational
units, and small governmental
jurisdictions) within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. The rule does not impact small
entities and applies only to Federal
officers and agencies.
G. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because this final rule does
not contain any information collection
requirements that require the approval
of the Office of Management and Budget
(OMB) under 44 U.S.C. 3501, etseq.
H. Small Business Regulatory
Enforcement Fairness Act
This final rule is being submitted for
Congressional review as prescribed
under 5 U.S.C. 801.
List of Subjects in 41 CFR Parts 101-6
and 102-3
Advisory committees, Government
property management.
Dated: July 5, 2001.
Stephen A. Perry,
Administrator of General Services
For the reasons set forth in the
preamble, GSA amends 41 CFR chapters
101 and 102 as follows:
CHAPTER 101(AMENDED]
PART 101-6MISCELLANEOUS
REGULATIONS
1. Subpart 101-6.10 is revised to read
as follows:
Subpart 101-6.10Federal Advisory
Committee Management
Authority: Sec. 205(c), 63 Stal. 390 (40
U.S.C. 486(c)); sec. 7, 5 U.S.C., App.; and
E.O. 12024. 3 CFR, 1977 Comp., p. 158.
§ 101 -6.1001 Cross-reference to the
Federal Management Regulation (FMR) (41
CFR chapter 102, parts 102-1 through 102-
220).
For Federal advisory committee
management information previously
contained in this subpart, see FMR part
102-3 (41 CFR part 102-3).
CHAPTER 102{AMENDED]
2. Part 102-3 is added to subchapter
A of chapter 102 to read as follows:
PART 102-3FEDERAL ADVISORY
COMMITTEE MANAGEMENT
Subpart AWhat Policies Apply To
Advisory Committees Established Within
the Executive Branch?
Sec.
102-3.5 What does this subpart cover and
how does it apply?
102-3.10 What is the purpose of the Federal
Advisory Committee Act7
102-3.15 Who are the intended users of this
part?
102-3.20 How does this part meet the needs
of its audience?
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 part7
Appendix A to Subpart A of Part 102-3Key
Points and Principles
Subpart BHow Are Advisory Committees
Established, Renewed, Reestablished, 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, or reestablish 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 minor charter
amendments accomplished?
102-3.85 How are major charter
amendments accomplished?
Appendix A to Subpart B of Part 102-3Key
Points and Principles
Subpart CHow Are Advisory Committees
Managed?
102-3.90 What does this subpart cover and
how does it apply?
102-3.95 What principles apply to the
management of advisory committees?
102-3.100 What are the responsibilities and
functions of GSA?
102-3 105 What are the responsibilities of
an agency head?
102-3.110 What are the responsibilities of a
chairperson of an independent
Presidential advisory committee?
102-3.115 What are the responsibilities and
functions of an agency Committee
Management Officer (CMO)?
102-3.120 What are the responsibilities and
functions of a Designated Federal Officer
(DFO)?
102-3.125 How should agencies consider
the roles of advisory committee members
and staff?
102-3.130 What policies apply to the
appointment, and compensation or
reimbursement of advisory committee
members, staff, and experts and
consultants?
Appendix A to Subpart C of Part 102-3Key
Points and Principles
Subpart DAdvisory Committee Meeting
and Recordkeeplng 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?
Appendix A to Subpart D of Part 102-3Key
Points and Principles
Subpart EHow 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?
Appendix A to Subpart E of Part 102-3Key
Points and Principles
Authority: Sec. 205(c), 63 Stat. 390 (40
U.S.C. 486(c)); sec. 7, 5 U.S.C., App.; and
E.O. 12024, 3 CFR, 1977 Comp., p. 158
-------
37734 Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
Subpart AWhat Policies Apply to
Advisory Committees Established
Within the Executive Branch?
§ 102-3.5 What does this subpart cover
and how does it apply?
This subpart provides the policy
framework that must be used by agency
heads in applying the Federal Advisory
Committee Act (FACA), as amended (or
"the Act"), 5 U.S.C., App., to advisory
committees they establish and operate.
In addition to listing key definitions
underlying the interpretation of the Act,
this subpart establishes the scope and
applicability of the Act, and outlines
specific exclusions from its coverage.
§ 102-3.10 What is the purpose of the
Federal Advisory Committee Act?
FACA governs the establishment,
operation, 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, and
cost of advisory committees.
§ 102-3.15 Who are the intended users of
this part?
(a) The primary users of this Federal
Advisory Committee Management part
are:
(1) Executive branch officials and
others outside Government currently
involved with an established advisory
committee;
(2) Executive branch officials who
seek to establish or utilize an advisory
committee;
(3) Executive branch officials and
others outside Government who have
decided to pursue, or who are already
engaged in, a form of public
involvement or consultation and want
to avoid inadvertently violating the Act;
and
(4) Field personnel of Federal
agencies who are increasingly involved
with the public as part of their efforts to
increase collaboration and improve
customer service.
(b) Other types of end-users of this
part include individuals and
organizations outside of the executive
branch who seek to understand and
interpret the Act, or are seeking
additional guidance.
§ 102-3.20 How does this part meet the
needs of its audience?
This Federal Advisory Committee
Management part meets the general and
specific needs of its audience by
addressing the following issues and
related topics:
(a) Scope and applicability. This part
provides guidance on the threshold
issue of what constitutes an advisory
committee and clarifies the limits of
coverage by the Act for the benefit of the
intended users of this part.
(b) Policies and guidelines. This part
defines the policies, establishes
minimum requirements, and provides
guidance to Federal officers and
agencies for the establishment,
operation, administration, and duration
of advisory committees subject to the
Act. This includes reporting
requirements that keep Congress and the
public informed of the number,
purpose, membership, activities,
benefits, and costs of these advisory
committees. These requirements form
the basis for implementing the Act at
both the agency and Governmentwide
levels.
(c) Examples and principles. This part
provides summary-level key points and
principles at the end of each subpart
that provide more clarification on the
role of Federal advisory committees in
the larger context of public involvement
in Federal decisions and activities. This
includes a discussion of the
applicability of the Act to different
decisionmaking scenarios.
§ 102-3.25 What definitions apply to this
part?
The following definitions apply to
this Federal Advisory Committee
Management part:
Act means the Federal Advisory
Committee Act, as amended, 5 U.S.C.,
App.
Administrator means the
Administrator of General Services.
Advisory committee subject to the
Act, except as specifically exempted by
the Act or by other statutes, or as not
covered by this part, 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 advice or
recommendations for the President or
on issues or policies within the scope of
an agency official's responsibilities.
Agency has the same meaning as in 5
U.S.C. 551(1).
Committee Management Officer
("CMO"), means the individual
designated by the agency head to
implement the provisions of section 8(b)
of the Act and any delegated
responsibilities of the agency head
under the Act.
Committee Management Secretariat
("Secretariat"), means the organization
established pursuant to section 7(a) of
the Act, which is responsible for all
matters relating to advisory committees,
and carries out the responsibilities of
the Administrator under the Act and
Executive Order 12024 (3 CFR, 1977
Comp., p. 158).
Committee meeting means any
gathering of advisory committee
members (whether in person or through
electronic means) held with the
approval of an agency for the purpose of
deliberating on the substantive matters
upon which the advisory committee
provides advice or recommendations.
Committee member means an
individual who serves by appointment
or invitation on an advisory committee
or subcommittee.
Committee staff means any Federal
employee, private individual, or other
party (whether under contract or not)
who is not a committee member, and
who serves in a support capacity to an
advisory committee or subcommittee.
Designated Federal Officer ("DFO"),
means an individual designated by the
agency head, for each advisory
committee for which the agency head is
responsible, to implement the
provisions of sections 10(e) and (f) of
the Act 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.
Independent Presidential advisory
committee means any Presidential
advisory committee not assigned by the
Congress in law, or by 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 functions, 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,
generally not subject to the Act, that
reports to an advisory committee and
not directly to a Federal officer or
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
37735
agency, whether or not its members are
drawn in whole or in part from the
parent advisory committee.
Utilized for the purposes of the Act,
does not have its ordinary meaning. A
committee that is not established by the
Federal Government is utilized within
the meaning of the Act when the
President or a Federal office or agency
exercises actual management or control
over its operation.
§ 102-3.30 What policies govern the use of
advisory committees?
The policies to be followed by Federal
departments and agencies in
establishing and operating advisory
committees consistent with the Act are
as follows:
(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. Reasons for
deciding that an advisory committee is
needed may include whether:
(1) Advisory committee deliberations
will result in the creation or elimination
of (or change in) regulations, policies, or
guidelines affecting agency business;
(2) The advisory committee will make
recommendations resulting in
significant improvements in service or
reductions in cost; or
(3) The advisory committee's
recommendations will provide an
important additional perspective or
viewpoint affecting agency operations.
(b) Termination. An advisory
committee must be terminated when:
(1) The stated objectives of the
committee have been accomplished;
(2) The subject matter or work of the
committee has become obsolete by the
passing of time or the assumption of the
committee's functions by another entity;
(3) The agency determines that the
cost of operation is excessive in relation
to the benefits accruing to the Federal
Government;
(4) In the case of a discretionary
advisory committee, upon the
expiration of a period not to exceed two
years, unless renewed;
(5) In the case of a non-discretionary
advisory committee required by
Presidential directive, upon the
expiration of a period not to exceed two
years, unless renewed by authority of
the President; or
(6) In the case of a non-discretionary
advisory committee required by statute,
upon the expiration of the time
explicitly specified in the statute, or
implied by operation of the statute.
(c) 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.
(d) Open meetings. Advisory
committee meetings must be open to the
public except where a closed or
partially-closed meeting has been
determined proper and consistent with
the exemption(s) of the Government in
the Sunshine Act, 5 U.S.C. 552b(c), as
the basis for closure.
(e) Advisory functions only. The
function of advisory committees is
advisory only, unless specifically
provided by statute or Presidential
directive.
§ 102-3.35 What policies govern the use of
subcommittees?
(a) In general, the requirements of the
Act and the policies of this Federal
Advisory Committee Management part
do not apply to subcommittees of
advisory committees that report to a
parent advisory committee and not
directly to a Federal officer or agency.
However, this section does not preclude
an agency from applying any provision
of the Act and this part to any
subcommittee of an advisory committee
in any particular instance.
(b) Tne creation and operation of
subcommittees must be approved by the
agency establishing the parent advisory
committee.
§ 102-3.40 What types of committees or
groups are not covered by the Act and this
part?
The following are examples of
committees or groups that are not
covered by the Act or this Federal
Advisory Committee Management part:
(a) Committees created by the
National Academy of Sciences (NAS) or
the National Academy of Public
Administration (NAPA). Any committee
created by NAS or NAPA in accordance
with section 15 of the Act, except as
otherwise covered by subpart E of this
part;
(b) Advisory committees of the Central
Intelligence Agency and the Federal
Reserve System. Any advisory
committee established or utilized by the
Central Intelligence Agency or the
Federal Reserve System;
(c) Committees exempted by statute.
Any committee specifically exempted
from the Act by law;
(d) Committees not actually managed
or controlled by the executive branch.
Any committee or group created by non-
Federal entities (such as a contractor or
private organization), provided that
these committees or groups are not
actually managed or controlled by the
executive branch;
(e) Groups assembled to provide
individual advice. Any group that meets
with a Federal official(s), including a
public meeting, where advice is sought
from the attendees on an individual
basis and not from the group as a whole;
(f) Groups assembled to exchange
facts or information. Any group that
meets with a Federal official(s) for the
purpose of exchanging facts or
information;
(g) Intergovernmental committees.
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. However, the purpose of
such a committee must be solely to
exchange views, information, or advice
relating to the management or
implementation of Federal programs
established pursuant to statute, that
explicitly or inherently share
intergovernmental responsibilities or
administration (see guidelines issued by
the Office of Management and Budget
(OMB) on section 204(b) of the
Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1534(b), OMB
Memorandum M-95-20, dated
September 21,1995, available from the
Committee Management Secretariat
(MC), General Services Administration,
1800 F Street, NW., Washington, DC
20405-0002);
(h) Intragovernmental committees.
Any committee composed wholly of
full-time or permanent part-time officers
or employees of the Federal
Government;
(i) Local civic groups. Any local civic
group whose primary function is that of
rendering a public service with respect
to a Federal program;
(j) Groups established to advise State
or local officials. Any State or local
committee, council, board, commission,
or similar group established to advise or
make recommendations to State or local
officials or agencies; and
(k) Operational committees. 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. It is the responsibility of the
administering agency to determine
whether a committee is primarily
operational. If so, it does not fall under
-------
37736
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
the requirements of the Act and this
part.
Appendix A to Subpart A of Part 102-
3Key Points and Principles
This appendix provides additional
guidance in the form of answers to frequently
APPENDIX A TO SUBPART A
asked questions and identifies key points and
principles that may be applied to situations
not covered elsewhere in this subpart. The
guidance follows:
Key points and principles
Section(s)
Question(s)
Guidance
I. FACA applies to advisory
committees that are either
"established" or "utilized"
by an agency.
102-3.25. 102-3.40(d).
3.40(f)
102-
1. A local citizens group
wants to meet with a Fed-
eral official(s) to help im-
prove the condition of a
forest's trails and quality of
concessions. May the Gov-
ernment meet with the
group without chartering
the group under the Act?
2. May an agency official at-
tend meetings of external
groups where advice may
be offered to the Govern-
ment dunng the course of
discussions?
3. May an agency official
participate in meetings of
groups or organizations as
a member without char-
tering the group under the
Act?
4. Is the Act applicable to
meetings between agency
officials and their contrac-
tors, licensees, or other
"private sector program
partners?"
A. The answer to questions 1, 2, and 3 is
yes, if the agency does not either "estab-
lish" or "utilize" (exercise "actual man-
agement or control" over) the group, (i)
Although there is no precise legal defini-
tion of "actual management or control,"
the following factors may be used by an
agency to determine whether or not a
group is "utilized" within the meaning of
the Act: (a) Does the agency manage or
control the group's membership or other-
wise determine its composition? (b) Does
the agency manage or control the group's
agenda? (c) Does the agency fund the
group's activities? (ii) Answering "yes" to
any or all of questions 1, 2, or 3 does not
automatically mean the group is "utilized"
within the meaning of the Act. However,
an agency may need to reconsider the
status of the group under the Act if the
relationship in question essentially is in-
distinguishable from an advisory com-
mittee established by the agency.
B. The answer to question 4 is no. Agen-
cies often meet with contractors and li-
censees, individually and as a group, to
discuss specific matters involving a con-
tract's solicitation, issuance, and imple-
mentation, or an agency's efforts to en-
sure compliance with its regulations. Such
interactions are not subject to the Act be-
cause these groups are not "established"
or "utilized" for the purpose of obtaining
advice or recommendations.
II. The development of con-
sensus among all or some
of the attendees at a public
meeting or similar forum
does not automatically in-
voke FACA.
102-3.25, 102-3.40(d),
3.40(f)
102-
1. If, during a public meeting
of the "town hall" type
called by an agency, it ap-
pears that the audience is
achieving consensus, or a
common point of view, is
this an indication that the
meetng is subject to the
Act and must be stopped?
A. No, the public meeting need not be
stopped, (i) A group must either be "es-
tablished" or "utilized" by the executive
branch in order for the Act to apply, (ii)
Public meetings represent a chance for
individuals to voice their opinions and/or
share information. In that sense, agencies
do not either "establish" the assemblage
of individuals as an advisory committee or
"utilize" the attendees as an advisory
committee because there are no ele-
ments of either "management" or "con-
trol" present or intended.
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19^ 2001/Rules and Regulations 37737
APPENDIX A TO SUBPART AContinued
Key points and principles
Section(s)
Question(s)
Guidance
III. Meetings between a Fed-
eral official(s) and a codec-.
lion of individuals where ad-
vice is sought from the
attendees on an individual
basis are not subject to the
Act.
102-3.40(e)
1. May an agency official
meet with a number of per-
sons collectively to obtain
their individual views with-
out violating the Act?
2. Does the concept of an
"individual" apply only to
"natural persons?"
A. The answer to questions 1 and 2 is yes.
The Act applies only where a group is es-
tablished or utilized to provide advice or
recommendations "as a group" (i) A
mere assemblage or collection of individ-
uals where the attendees are providing
individual advice is not acting "as a
group" under the Act. (ii) In this respect.
"individual" is not limited to "natural per-
sons." Where the group consists of rep-
resentatives of various existing organiza-
tions, each representative individually
may provide advice on behalf of that per-
son's organization without violating the
Act. if those organizations themselves are
not "managed or controlled" by the agen-
cy.
IV. Meetings between Federal,
State, local, and tribal elect-
ed officials are not subject
to the Act.
102-3.40(g)
. Is the exclusion from the
Act covering elected offi-
cials of State, local, and
tribal governments acting
in their official capacities
also applicable to associa-
tions of State officials?
A. Yes. The scope of activities covered by
the exclusion from the Act for intergovern-
mental activities should be construed
broadly to facilitateFederal/State/local/tnb-
al discussions on shared intergovern-
mental program responsibilities or admin-
istration. Pursuant to a Presidential dele-
gation, the Office of Management and
Budget (OMB) issued guidelines for this
exemption, authorized by section 204(b)
of the Unfunded Mandates Reform Act of
1995, 2U.S.C. 1534(b). (See OMB Memo-
randum M-95-20, dated September 21,
1995, published at 60 FR 50651 (Sep-
tember 29, 1995), and which is available
from the Committee Management Secre-
tariat (MC), General Services Administra-
tion, 1800 F Street. NW, Washington, DC
20405-0002).
V. Advisory committees estab-
lished under the Act may
perform advisory functions
only, unless authorized to
perform "operational" duties
by the Congress or by Pres-
idential directive.
102-3.30(6), 102-3.40(k)
1. Are "operational commit-
tees" subject to the Act,
even if they may engage in
some advisory activities''
A. No, so long as the operational functions
performed by the committee constitute
the "primary" mission of the committee.
Only committees established or utilized by
the executive branch in the interest of ob-
taining advice or recommendations are
subject to the Act. However, without spe-
cific authorization by the Congress or di-
rection by the President, Federal func-
tions (decisionmaking or operations) can-
not be delegated to, or assumed by, non-
Federal individuals or entities.
-------
37738
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
APPENDIX A TO SUBPART AContinued
Key points and principles
Section(s)
Question(s)
Guidance
VI. Committees authorized by
the Congress in law or by
Presidential directive to per-
form primarily "operational"
functions are not subject to
the Act.
102-3.40(k)
1. What characteristics are
common to "operational
committees?"
2. A committee created by
the Congress by statute is
responsible, for example,
for developing plans and
events to commemorate
the contributions of wildlife
to the enjoyment of the
Nation's parks. Part of the
committee's role includes
providing advice to certain
Federal agencies as may
be necessary to coordinate
these events. Is this com-
mittee subject to FACA?
A. In answer to question 1. non-advisory, or
"operational" committees generally have
the following characteristics: (i) Specific
functions and/or authorities provided by
the Congress in law or by Presidential di-
rective; (li) The ability to make and imple-
ment traditionally Governmental deci-
sions; and (iii) The authority to perform
specific tasks to implement a Federal pro-
gram.
B. Agencies are responsible for determining
whether or not a committee primarily pro-
vides advice or recommendations and is,
therefore, subject to the Act, or is pri-
marily "operational" and not covered by
FACA.
C. The answer to question 2 is no. The
committee is not subject to the Act be-
cause: (i) Its functions are to plan and im-
plement specific tasks; (ii) The committee
has been granted the express authority
by the Congress to perform its statutorily
required functions; and (ni) Its incidental
role of providing advice to other Federal
agencies is secondary to its primarily
operational role of planning and imple-
menting specific tasks and performing
statutory functions.
Subpart BHow Are Advisory
Committees Established, Renewed,
Reestablished, and Terminated?
§ 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, and termination of
advisory committees. These procedures
include consulting with the Secretariat,
preparing and filing an advisory
committee charter, publishing notice in
the Federal Register, and amending an
advisory committee charter.
§ 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
the Congress establishes an advisory
committee, or specifically directs the
President or an agency to establish it
(non-discretionary);
(b) Presidential authority. By
Executive order of the President or other
Presidential directive (non-
discretionary);
(c) Authorized by statute By law
where the 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
general agency-authorizing statutes
(discretionary).
§ 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;
(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 committee not later than two
years after its date of establishment in
accordance with §102-3.60. If an
advisory committee needed by the
President or an agency terminates
because it was not renewed in a timely
manner, or if the advisory committee
has been terminated under the
provisions of § 102-3.30(b), it can be
reestablished in accordance with § 102-
3.60.
(b) When an advisory committee
terminates, the agency shall notify the
Secretariat of the effective date of the
termination.
§ 102-3.60 What procedures are required
to establish, renew, or reestablish a
discretionary advisory committee?
(a) Consult with the Secretariat.
Before establishing, renewing, or
reestablishing a discretionary advisory
committee and filing the charter as
addressed later in § 102-3.70, the
agency head must consult with the
Secretariat. As part of this consultation,
agency heads are encouraged to engage
in constructive dialogue with the
Secretariat. With a full understanding of
the background and purpose behind the
proposed advisory committee, the
Secretariat may share its knowledge and
experience with the agency on how best
to make use of the proposed advisory
committee, suggest alternate methods of
attaining its purpose that the agency
may wish to consider, or inform the
agency of a pre-existing advisory
committee performing similar functions.
(b) Include required information in
the consultation. Consultations covering
the establishment, renewal, and
reestablishment of advisory committees
must, as a minimum, contain the
following information:
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
37739
(1) Explanation of need. An
explanation stating why the advisory
committee is essential to the conduct of
agency business and in the public
interest;
(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; and
(3) Fairly balanced membership. A
description of the agency's plan to attain
fairly balanced membership. The plan
will ensure that, in the selection of
members for the advisory committee,
the agency will consider a cross-section
of those directly affected, interested,
and qualified, as appropriate to the
nature and functions 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.
§ 102-3.65 What are the public notification
requirements for discretionary advisory
committees?
A notice to the public in the Federal
Register is required when a
discretionary advisory committee is
established, renewed, or reestablished.
(a) Procedure. Upon receiving notice
from the Secretariat that its review is
complete in accordance with § 102-
3.60(a), the agency must publish a
notice in the Federal Register
announcing that the advisory committee
is being established, renewed, or
reestablished. For the establishment of 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 establishment and reestablishment of
advisory committees must appear at
least 15 calendar days before the charter
is Bled, except that the Secretariat may
approve less than 15 calendar days
when requested by the agency for good
cause. 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.
§ 102-3.70 What are the charter filing
requirements?
No advisory committee may meet or
take any action until a charter has been
Tiled by the Committee Management
Officer (CMO) designated in accordance
with section 8(b) of the Act, or by
another agency official designated by
the agency head.
(a) Requirement for discretionary
advisory committees. To establish,
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, Anglo-
American Acquisitions Division,
Government Documents Section,
Federal Advisory Committee Desk, 101
Independence Avenue, SE.,
Washington, DC 20540-4172; 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 the date of establishment 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 include in a
charter the information required by
§102-3.75.
§ 102-3.75 What Information must be
included in the charter of an advisory
committee?
(a) Purpose and contents of an
advisory committee charter. An
advisory committee charter is intended
to provide a description of an advisory
committee's mission, goals, and
objectives. It also provides a basis for
evaluating an advisory committee's
progress and effectiveness. The charter
must contain the following information:
(1) The advisory committee's official
designation;
(2) The objectives and the scope of the
advisory committee's activity;
(3) The period of time necessary to
carry out the advisory committee's
purpose(s);
(4) The agency or Federal officer to
whom the advisory committee reports;
(5) The agency responsible for
providing the necessary support to the
advisory committee;
(6) A description of the duties for
which the advisory committee is
responsible and specification of the
authority for any non-advisory
functions;
(7) The estimated annual costs to
operate the advisory committee in
dollars and person years;
(8) The estimated number and
frequency of the advisory committee's
meetings;
(9) The planned termination date, if
less than two years from the date of
establishment of the advisory
committee;
(10) The name of the President's
delegate, agency, or organization
responsible for fulfilling the reporting
requirements of section 6(b) of the Act,
if appropriate; and
(11) The date the charter is filed in
accordance with § 102-3.70.
(b) The provisions of paragraphs (a)(l)
through (11) of this section apply to all
subcommittees that report directly to a
Federal officer or agency.
§ 102-3.80 How are minor charter
amendments accomplished?
(a) Responsibility and limitation. The
agency head is responsible for amending
the charter of an advisory committee.
Amendments may be either minor or
major. The procedures for making
changes and filing amended charters
will depend upon the authority basis for
the advisory committee. Amending any
existing advisory committee charter
does not constitute renewal of the
advisory committee under § 102-3.60.
(b) Procedures for minor
amendments. To make a minor
amendment to an advisory committee
charter, such as changing the name of
the advisory committee or modifying
the estimated number or frequency of
meetings, the following procedures
must be followed:
(1) Non-discretionary advisory
committees. The agency head must
ensure that any minor technical changes
made to current charters are consistent
with the relevant authority. When the
Congress by law, or the President by
Executive order, 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
Executive order, and file the amended
charter as specified in § 102-3.70.
(2) Discretionary advisory committees.
The charter of a discretionary advisory
committee may be amended when an
agency head determines that technical
provisions of a filed charter are
inaccurate, or specific provisions have
changed or become obsolete with the
passing of time, and that these
amendments will not alter the advisory
committee's objectives and scope
-------
37740
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
substantially. The agency must amend
the charter language as necessary and
file the amended charter as specified in
§102-3.70.
§ 102-3.85 How are major charter
amendments accomplished?
Procedures for making major
amendments to advisory committee
charters, such as substantial changes in
objectives and scope, duties, and
estimated costs, are the same as in
§ 102-3.80, except that for discretionary
advisory committees an agency must:
(a) Consult with the Secretariat on the
amended language, and explain the
purpose of the changes and why they
are necessary; and
(b) File the amended charter as
specified in § 102-3.70.
APPENDIX A TO SUBPART B
Appendix A to Subpart B of Part 102-
3Key Points and Principles
This appendix provides additional
guidance in the form of answers to frequently
asked questions and identifies key points and
principles that may be applied to situations
not covered elsewhere in this subpart. The
guidance follows:
Key points and principles
1. Agency heads must consult
with the Secretariat prior to
establishing a discretionary
advisory committee.
II. Agency heads are respon-
sible for complying with the
Act, including determining
which discretionary advisory
committees should be estab-
lished and renewed.
III. An advisory committee must
be fairly balanced in its mem-
bership in terms of the points
of view represented and the
functions to be performed.
IV. Charters for advisory com-
mittees required by statute
must be filed every two years
regardless of the duration pro-
vided in the statute.
Section(s)
102-3.60, 102-3.115
102-3.60(a), 102-3.105 . ..
102-3.30(c), 102-3.60(b)(3) ..
102-3.70(b)
Question(s)
1 . Can an agency head dele-
gate to the Committee
Management Officer (CMO)
responsibility for consulting
with the Secretarial regard-
ing the establishment, re-
newal, or reestablishment
of discretionary advisory
committees?
1 . Who retains final authority
for establishing or renewing
a discretionary advisory
committee?
1 . What factors should be
considered in achieving a
"balanced" advisory com-
mittee membership?
1 . If an advisory committee's
duration exceeds two
years, must a charter be
filed with the Congress and
GSA every two years?
Guidance
A. Yes. Many administrative functions per-
formed to implement the Act may be dele-
gated. However, those functions related to
approving the final establishment, renewal,
or reestablishment of discretionary advi-
sory committees are reserved for the
agency head. Each agency CMO should
assure that their internal processes for
managing advisory committees include ap-
propriate certifications by the agency
head.
A. Although agency heads retain final au-
thority for establishing or renewing discre-
tionary advisory committees, these deci-
sions should be consistent with §102-
3.105(e) and reflect consultation with the
Secretariat under § 102-3.60(a).
A. The composition of an advisory commit-
tee's membership will depend upon sev-
eral factors, including: (i) The advisory
committee's mission; (ii) The geographic,
ethnic, social, economic, or scientific im-
pact of the advisory committee's rec-
ommendations; (iii) The types of specific
perspectives required, for example, such
as those of consumers, technical experts,
the public at-large, academia, business, or
other sectors; (iv) The need to obtain di-
vergent points of view on the issues be-
fore the advisory committee; and (v) The
relevance of State, local, or tribal govern-
ments to the development of the advisory
committee's recommendations.
A. Yes. Section 14(b)(2) of the Act provides
that: Any advisory committee established
by an Act of Congress shall file a charter
upon the expiration of each successive
two-year period following the date of en-
actment of the Act establishing such advi-
sory committee.
Subpart CHow Are Advisory
Committees Managed?
§ 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 General Services
Administration (GSA), the agency head,
the Committee Management Officer
(CMO), and the Designated Federal
Officer (DFO) under the Act.
§ 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. Before
establishing an advisory committee,
agencies should identify requirements
and assure that adequate resources are
available to support anticipated
activities. Considerations related to
support include office space, necessary
supplies and equipment, Federal staff
support, and access to key
. decisionmakers.
(b) Focus on mission. Advisory
committee members and staff should be
fully aware of the advisory committee's
mission, limitations, if any, on its
duties, and the agency's goals and
objectives. In general, the more specific
an advisory committee's tasks and the
more focused its activities are, the
higher the likelihood will be that the
advisory committee will fulfill its
mission.
-------
Federal Register/Vol. 66, No. 139/Thursday. July 19, 2001/Rules and Regulations 37741
(c) Follow plans and procedures.
Advisory committee members and their
agency sponsors should work together
to assure that a plan and necessary
procedures covering implementation are
in place to support an advisory
committee's mission. In particular,
agencies should be clear regarding what
functions an advisory committee can
perform legally and those that it cannot
perform.
(d) Practice openness. In addition to
achieving the minimum standards of
public access established by the Act and
this part, agencies should seek to be as
inclusive as possible. For example,
agencies may wish to explore the use of
the Internet to post advisory committee
information and seek broader input
from the public.
(e) Seek feedback. Agencies
continually should seek feedback from
advisory committee members and the
public regarding the effectiveness of the
advisory committee's activities. At
regular intervals, agencies should
communicate to the members how their
advice has affected agency programs
and decisionmaking.
§ 102-3.100 What are the responsibilities
and functions of GSA?
(a) Under section 7 of the Act, the
General Services Administration (GSA)
prepares regulations on Federal
advisory committees to be prescribed by
the Administrator of General Services,
issues other administrative guidelines
and management controls for advisory
committees, and assists other agencies
in implementing and interpreting the
Act. Responsibility for these activities
has been delegated by the Administrator
to the GSA Committee Management
Secretariat.
(b) The Secretariat carries out its
responsibilities by:
(1) Conducting an annual
comprehensive review of
Governmentwide advisory committee
accomplishments, costs, benefits, and
other indicators to measure
performance;
(2) Developing and distributing
Governmentwide training regarding the.
Act and related statutes and principles;
(3) Supporting the Interagency
Committee on Federal Advisory
Committee Management in its efforts to
improve compliance with the Act;
(4) Designing and maintaining a
Governmentwide shared Internet-based
system to facilitate collection and use of
information required by the Act;
(5) Identifying performance measures
that may be used to evaluate advisory
committee accomplishments; and
(6) Providing recommendations for
transmittal by the Administrator to the
Congress and the President regarding
proposals to improve accomplishment
of the objectives of the Act.
§ 102-3.105 What are the responsibilities
of an agency head?
The head of each agency that
establishes or utilizes one or more
advisory committees must:
(a) Comply with the Act and this
Federal Advisory Committee
Management part;
(b) Issue administrative guidelines
and management controls that apply to
all of the agency's advisory committees
subject to the Act;
(c) Designate a Committee
Management Officer (CMO);
(d) Provide a written determination
stating the reasons for closing any
advisory committee meeting to the
public, in whole or in part, in
accordance with the exemption(s) of the
Government in the Sunshine Act, 5
U.S.C. 552b(c), as the basis for closure;
(e) Review, at least annually, the need
to continue each existing advisory
committee, consistent with the public
interest and the purpose or functions of
each advisory committee;
(f) Determine that rates of
compensation for members (if they are
paid for their services) and staff of, and
experts and consultants to advisory
committees are justified and that levels
of agency support are adequate;
(g) Develop procedures to assure that
the advice or recommendations of
advisory committees will not be
inappropriately influenced by the
appointing authority or by any special
interest, but will instead be the result of
the advisory committee's independent
judgment;
(h) Assure that the interests and
affiliations of advisory committee
members are reviewed for conformance
with applicable conflict of interest
statutes, regulations issued by the U.S.
Office of Government Ethics (OGE)
including any supplemental agency
requirements, and other Federal ethics
rules;
(i) Designate a Designated Federal
Officer (DFO) for each advisory
committee and its subcommittees; and
(j) Provide the opportunity for
reasonable participation by the public in
advisory committee activities, subject to
§ 102-3.140 and the agency's guidelines.
§ 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 and this
Federal Advisory Committee
Management part;
(b) Consult with the Secretariat
concerning the designation of a
Committee Management Officer (CMO)
and Designated Federal Officer (DFO);
and
(c) Consult with the Secretariat in
advance regarding any proposal to close
any meeting in whole or in part.
§ 102-3.115 What are the responsibilities
and functions of an agency Committee
Management Officer (CMO)?
In addition to implementing the
provisions of section 8(b) of the Act, the
CMO will carry out all responsibilities
delegated by the agency head. The CMO
also should ensure that sections 10(b),
12(a), and 13 of the Act are
implemented by the agency to provide
for appropriate recordkeeping. Records
to be kept by the CMO include, but are
not limited to:
(a) Charter and membership
documentation. A set of filed charters
for each advisory committee and
membership lists for each advisory
committee and subcommittee;
(b) Annual comprehensive review.
Copies of the information provided as
the agency's portion of the annual
comprehensive review of Federal
advisory committees, prepared
according to § 102-3.175(b);
(c) Agency guidelines. Agency
guidelines maintained and updated on
committee management operations and
procedures; and
(d) Closed meeting determinations.
Agency determinations to close or
partially close advisory committee
meetings required by § 102-3.105.
§ 102-3.120 What are the responsibilities
and functions of a Designated Federal
Officer (DFO)?
The agency head or, in the case of an
independent Presidential advisory
committee, the Secretariat, must
designate a Federal officer or employee
who must be either full-time or
permanent part-time, to be the DFO for
each advisory committee and its
subcommittees, who must:
(a) Approve or call the meeting of the
advisory committee or subcommittee;
(b) Approve the agenda, except that
this requirement does not apply to a
Presidential advisory committee;
(c) Attend the meetings;
(d) Adjourn any meeting when he or
she determines it to be in the public
interest; and
(e) Chair the meeting when so
directed by the agency head.
§ 102-3.125 How should agencies
consider the roles of advisory committee
members and staff?
FACA does not assign any specific
responsibilities to members of advisory
-------
37742
Federal Register/Vol. 66, No. 139 /Thursday, July 19, 2001/Rules and Regulations
committees and staff, although both
perform critical roles in achieving the
goals and objectives assigned to
advisory committees. Agency heads,
Committee Management Officers
(CMOs), and Designated Federal
Officers (DFOs) should consider the
distinctions between these roles and
how they relate to each other in the
development of agency guidelines
implementing the Act and this Federal
Advisory Committee Management part.
In general, these guidelines should
reflect:
(a) Clear operating procedures. Clear
operating procedures should provide for
the conduct of advisory committee
meetings and other activities, and
specify the relationship among the
advisory committee members, the DFO,
and advisory committee or agency staff;
(b) Agency operating policies. In
addition to compliance with the Act,
advisory committee members and staff
may be required to adhere to additional
agency operating policies; and
(c) Other applicable statutes. Other
agency-specific statutes and regulations
may affect the agency's advisory
committees directly or indirectly.
Agencies should ensure that advisory
committee members and staff
understand these requirements.
§102-3.130 What policies apply to the
appointment, and compensation or
reimbursement of advisory committee
members, staff, and experts and
consultants?
In developing guidelines to
implement the Act and this Federal
Advisory Committee Management part
at the agency level, agency heads must
address the following issues concerning
advisory committee member and staff
appointments, and considerations with
respect to uniform fair rates of
compensation for comparable services,
or expense reimbursement of members,
staff, and experts and consultants:
(a) Appointment and terms of
advisory committee members. Unless
otherwise provided by statute,
Presidential directive, or other
establishment authority, advisory
committee members serve at the
pleasure of the appointing or inviting
authority. Membership terms are at the
sole discretion of the appointing or
inviting authority.
(b) Compensation guidelines. Each
agency head must establish uniform
compensation guidelines for members
and staff of, and experts and consultants
to an advisory committee.
(c) Compensation of advisory
committee members not required
Nothing in this subpart requires an
agency head to provide compensation to
any member of an advisory committee,
unless otherwise required by a specific
statute.
(d) Compensation of advisory
committee members. When an agency
has authority to set pay administratively
for advisory committee members, it may
establish appropriate rates of pay
(including any applicable locality pay
authorized by the President's Pay Agent
under 5 U.S.C. 5304(h)), not to exceed
the rate for level IV of the Executive
Schedule under 5 U.S.C. 5315, unless a
higher rate expressly is allowed by
another statute. However, the agency
head personally must authorize a rate of
basic pay in excess of the maximum rate
of basic pay established for the General
Schedule under 5 U.S.C. 5332, or
alternative similar agency compensation
system. This maximum rate includes
any applicable locality payment under 5
U.S.C. 5304. The agency may pay
advisory committee members on either
an hourly or a daily rate basis. The
agency may not provide additional
compensation in any form, such as
bonuses or premium pay.
(e) Compensation of staff. When an
agency has authority to set pay
administratively for advisory committee
staff, it may establish appropriate rates
of pay (including any applicable locality
pay authorized by the President's Pay
Agent under 5 U.S.C. 5304(h)), not to
exceed the rate for level IV of the
Executive Schedule under 5 U.S.C.
5315, unless a higher rate expressly is
allowed by another statute. However,
the agency head personally must
authorize a rate of basic pay in excess
of the maximum rate of basic pay
established for the General Schedule
under 5 U.S.C. 5332, or alternative
similar agency compensation system.
This maximum rate includes any
applicable locality payment under 5
U.S.C. 5304. The agency must pay
advisory committee staff on an hourly
rate basis. The agency may provide
additional compensation, such as
bonuses or premium pay, so long as
aggregate compensation paid in a
calendar year does not exceed the rate
for level IV of the Executive Schedule,
with appropriate proration for a partial
calendar year.
(f) Other compensation
considerations. In establishing rates of
pay for advisory committee members
and staff, the agency must comply with
any applicable statutes, Executive
orders, regulations, or administrative
guidelines. In determining an
appropriate rate of basic pay for
advisory committee members and staff,
an agency must give consideration to
the significance, scope, and technical
complexity of the matters with which
the advisory committee is concerned,
and the qualifications required for the
work involved. The agency also should
take into account the rates of pay
applicable to Federal employees who
have duties that are similar in terms of
difficulty and responsibility. An agency
may establish rates of pay for advisory
committee staff based on the pay these
persons would receive if they were
covered by the General Schedule in 5
U.S.C. Chapter 51 and Chapter 53,
subchapter III, or by an alternative
similar agency compensation system.
(g) Compensation of experts and
consultants. Whether or not an agency
has other authority to appoint and
compensate advisory committee
members or staff, it also may employ
experts and consultants under 5 U.S.C.
3109 to perform work for an advisory
committee. Compensation of experts
and consultants may not exceed the
maximum rate of basic pay established
for the General Schedule under 5 U.S.C.
5332 (that is, the GS-15, step 10 rate,
excluding locality pay or any other
supplement), unless a higher rate
expressly is allowed by another statute.
The appointment and compensation of
experts and consultants by an agency
must be in conformance with applicable
regulations issued by the U. S. Office of
Personnel Management (OPM) (See 5
CFR part 304.).
(h) Federal employees assigned to an
advisory committee. Any advisory
committee member or staff person who
is a Federal employee when assigned
duties to an advisory committee remains
covered during the assignment by the
compensation system that currently
applies to that employee, unless that
person's current Federal appointment is
terminated. Any staff person who is a
Federal employee must serve with the
knowledge of the Designated Federal
Officer PFO) for the advisory
committee to which that person is
assigned duties, and the approval of the
employee's direct supervisor.
(i) Other appointment considerations.
An individual who is appointed as an
advisory committee member or staff
person immediately following
termination of another Federal
appointment with a full-time work
schedule may receive compensation at
the rate applicable to the former
appointment, if otherwise allowed by
applicable law (without regard to the
limitations on pay established in
paragraphs (d) and (e) of this section).
Any advisory committee staff person
who is not a current Federal employee
serving under an assignment must be
appointed in accordance with
applicable agency procedures, and in
consultation with the DFO and the
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
37743
members of the advisory committee
involved.
(j) Gratuitous services. In the absence
of any special limitations applicable to
a specific agency, nothing in this
subpart prevents an agency from
accepting the gratuitous services of an
advisory committee member or staff
person who is not a Federal employee,
or expert or consultant, who agrees in
advance and in writing to serve without
compensation.
(k) Travel expenses. Advisory
committee members and staff, while
engaged in the performance of their
duties away from their homes or regular
places of business, may be allowed
reimbursement for travel expenses,
including per diem in lieu of
subsistence, as authorized by 5 U.S.C.
5703, for persons employed
intermittently in the Government
service.
(1) Services for advisory committee
members with disabilities. While
performing advisory committee duties,
an advisory committee member with
disabilities may be provided services by
a personal assistant for employees with
disabilities, if the member qualifies as
APPENDIX A TO SUBPART C
an individual with disabilities as
provided in section 501 of the
Rehabilitation Act of 1973, as amended,
29 U.S.C. 791, and does not otherwise
qualify for assistance under 5 U.S.C.
3102 by reason of being a Federal
employee.
Appendix A to Subpart C of Part 102-
3Key Paints and Principles
This appendix provides additional
guidance in the form of answers to frequently
asked questions and identifies key points and
principles that may be applied to situations
not covered elsewhere in this subpart. The
guidance follows:
Key points and pnnciples
Section
Question(s)
Guidance
I. FACA does not specify the
manner in which advisory
committee members and
staff must be appointed.
102-3.105,102-3.130(a)
1. Does the appointment ol
an advisory committee
member necessarily result
in a lengthy process?
A. No. Each agency head may specify
those policies and procedures, consistent
with the Act and this part, or other spe-
cific authorizing statute, governing the ap-
pointment of advisory committee mem-
bers and staff.
B. Some factors that affect how long the ap-
pointment process takes include: (i) Solic-
itation of nominations; (ii) Conflict of inter-
est clearances; (ill) Security or back-
ground evaluations; (iv) Availability of
candidates; and (v) Other statutory or ad-
ministrative requirements.
C. In addition, the extent to which agency
heads have delegated responsibility for
selecting members vanes from agency to
agency and may become an important
factor in the time it takes to finalize the
advisory committee's membership.
II. Agency heads retain the
final authority for selecting
advisory committee mem-
bers, unless otherwise pro-
vided for by a specific stat-
ute or Presidential directive.
102-3.130(a)
III. An agency may com-
pensate advisory committee
members and staff, and
also employ experts and
consultants.
102-3.130(d),
102-3.130(g).
102-3.130(e),
1. Can an agency head se-
lect for membership on an
advisory committee from
among nominations sub-
mitted by an organization?
2. If so, can different persons
represent the organization
at different meetings?
1. May members and staff be
compensated for their
service or duties on an ad-
visory committee?
2. Are the guidelines the
same for compensating
both members and staff9
3. May experts and consult-
ants be employed to per-
form other advisory com-
mittee work?
A. The answer to question 1 is yes. Organi-
zations may propose for membership indi-
viduals to represent them on an advisory
committee. However, the agency head
establishing the advisory committee, or
other appointing authority, retains the final
authority for selecting all members.
B. The answer to question 2 also is yes. Al-
ternates may represent an appointed
member with the approval of the estab-
lishing agency, where the agency head is
the appointing authority.
A. The answer to question 1 is yes. (i) How-
ever, FACA limits compensation for advi-
sory committee members and staff to the
rate for level IV of the Executive Sched-
ule, unless higher rates expressly are al-
lowed by other statutes, (ii) Although
FACA provides for compensation guide-
lines, the Act does not require an agency
to compensate its advisory committee
members.
-------
37744
Federal Register/Vol. 66, No. 139 /Thursday, July 19, 2001/Rules and Regulations
APPENDIX A TO SUBPART CContinued
Key points and principles
Section
Question(s)
Guidance
B. The answer to question 2 is no. The
guidelines for compensating members
and staff are similar, but not identical For
example, the differences are that: (i) An
agency "may" pay members on either an
hourly or a daily rate basis, and "may
not" provide additional compensation in
any form, such as bonuses or premium
pay; while (ii) An agency "must" pay staff
on an hourly rate basis only, and "may"
provide additional compensation, so long
as aggregate compensation paid in a cal-
endar year does not exceed the rate for
level IV of the Executive Schedule, with
appropriate proration for a partial cal-
endar year.
C. The answer to question 3 is yes. Other
work not part of the duties of advisory
committee members or staff may be per-
formed by experts and consultants. For
additional guidance on the employment of
experts and consultants, agencies should
consult the applicable regulations issued
by the U. S. Office of Personnel Manage-
ment (OPM). (See 5 CFR part 304.)
IV Agency heads are respon-
sible for ensuring that the
interests and affiliations of
advisory committee mem-
bers are reviewed for con-
formance with applicable
conflict of interest statutes
and other Federal ethics
rules..
102-3.105(h)
1. Are all advisory committee
members subject to conflict
of interest statutes and
other Federal ethics rules?
2. Who should be consulted
for guidance on the proper
application of Federal eth-
ics rules to advisory com-
mittee members?
A. The answer to question 1 is no. Whether
an advisory committee member is subject
to Federal ethics rules is dependent on
the member's status. The determination
of a member's status on an advisory com-
mittee is largely a personnel classification
matter for the appointing agency. Most
advisory committee members will serve
either as a "representative" or a "special
Government employee" (SGE), based on
the role the member will play. In general,
SGEs are covered by regulations issued
by the U. S. Office of Government Ethics
(OGE) and certain conflict of interest stat-
utes.while representatives are not subject
to these ethics requirements.
B. The answer to question 2 is the agency's
Designated Agency Ethics Official
(DAEO), who should be consulted prior to
appointing members to an advisory com-
mittee in order to apply Federal ethics
rules properly.
V. An agency head may dele-
gate responsibility for ap-
pointing a Committee Man-
agement Officer (CMO) or
Designated Federal Officer
(DFO); however, there may
be only one CMO for each
agency..
102-3.105(0), 102-3.105(1)
1. Must an agency's CMO
and each advisory com-
mittee DFO be appointed
by the agency head?
A. The answer to question 1 is no. The
agency head may delegate responsibility
for appointing the CMO and DFOs. How-
ever, these appointments, including alter-
nate selections, should be documented
consistent with the agency's policies and
procedures.
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
37745
APPENDIX A TO SUBPART CContinued
Key points and principles
Section
Question(s)
Guidance
VI. FACA is the principal stat-
ute pertaining to advisory
committees. However, other
statutes may impact their
use and operations..
102-3.125(c)
2. May an agency have more
than one CMO?
1. Do other statutes or regu-
lations affect the way an
agency carries out its advi-
sory committee manage-
ment program?
B. The answer to question 2 also is no. The
functions of the CMO are specified in the
Act and include oversight responsibility
for all advisory committees within the
agency. Accordingly, only one CMO may
be appointed to perform these functions.
The agency may, however, create addi-
tional positions, including those in its sub-
components, which are subordinate to the
CMO's agencywide responsibilities and
functions.
A. Yes. While the Act provides a general
framework for managing advisory commit-
tees Govemmentwide, other factors may
affect how advisory committees are man-
aged. These include: (i) The statutory or
Presidential authority used to establish an
advisory committee; (ii) A statutory limita-
tion placed on an agency regarding its
annual expenditures for advisory commit-
tees; (iii) Presidential or agency manage-
ment directives; (iv) The applicability of
conflict of interest statutes and other Fed-
eral ethics rules; (v) Agency regulations
affecting advisory committees; and (vi)
Other requirements imposed by statute or
regulation on an agency or its programs,
such as those governing the employment
of experts and consultants or the man-
agement of Federal records.
Subpart DAdvisory Committee
Meeting and Recordkeeping
Procedures
§ 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.
§ 102-3.140 What policies apply to
advisory committee meetings?
The agency head, or the chairperson
of an independent Presidential advisory
committee, must ensure that:
(a) Each advisory committee meeting
is held at a reasonable time and in a
manner or place reasonably accessible
to the public, to include facilities that
are readily accessible to and usable by
persons with disabilities, consistent
with the goals of section 504 of the
Rehabilitation Act of 1973, as amended,
29 U.S.C. 794;
(b) The meeting room or other forum
selected is sufficient to accommodate
advisory committee members, advisory
committee or agency staff, and a
reasonable number of interested
members of the public;
(c) Any member of the public is
permitted to file a written statement
with the advisory committee;
(d) Any member of the public may
speak to or otherwise address the
advisory committee if the agency's
guidelines so permit; and
(e) Any advisory committee meeting
conducted in whole or part by a .
teleconference, videoconference, the
Internet, or other electronic medium
meets the requirements of this subpart.
§102-3.145 What policies apply to
subcommittee meetings?
If a subcommittee makes
recommendations directly to a Federal
officer or agency, or if its
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 all
openness requirements of this subpart.
§ 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, place, and purpose
of the meeting;
(3) A summary of the agenda, and/or
topics to be discussed;
(4) A statement whether all or part of
the meeting is open to the public or
closed; if the meeting is closed state the
reasons why, citing the specific
exemption(s) of the Government in the
Sunshine Act, 5 U.S.C. 552b(c), as the
basis for closure; and
(5) The name and telephone number
of the Designated Federal Officer (DFO)
or other responsible agency official who
may be contacted for additional
information concerning the meeting.
(b) In exceptional circumstances, 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.
§ 102-3.155 How are advisory committee
meetings closed to the public?
To close all or part of an advisory
committee meeting, the Designated
Federal Officer (DFO) must:
(a) Obtain prior approval. Submit a
request to the agency head, or in the
case of an independent Presidential
-------
37746
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
advisory committee, the Secretariat,
citing the specific exemption(s) of the
Government in the Sunshine Act, 5
U.S.C. 552b(c), that justify 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 § 102-3.150.
(b) Seek General Counsel review. The
General Counsel of the agency or, in the
case of an independent Presidential
advisory committee, the General
Counsel of GSA 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, the Secretariat, finds that the
request is consistent with the provisions
in the Government in the Sunshine Act
and FACA, the appropriate agency
official must issue a determination that
all or part of the meeting be closed.
(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.
§ 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 a meeting of the
advisory committee, or to draft position
papers for deliberation by the advisory
committee; 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 to receive
administrative information from a
Federal officer or agency.
§ 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:
(l)The time, date, and place 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
document received, issued, or approved
by the advisory committee at the
meeting.
(c) The Designated Federal Officer
(DFO) must ensure that minutes are
certified within 90 calendar days of the
meeting to which they relate.
§ 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 provides for the
contemporaneous availability of
advisory committee records that, when
taken in conjunction with the ability to
attend committee meetings, provide a
meaningful opportunity to comprehend
fully the work undertaken by the
advisory committee. Although advisory
committee records may be withheld
under the provisions of the Freedom of
Information Act (FOIA), as amended, if
there is a reasonable expectation that
the records sought fall within the
exemptions contained in section 552(b)
of FOIA, agencies may not require
members of the public or other
interested parties to file requests for
non-exempt advisory committee records
under the request and review process
established by section 552(a)(3) of FOIA.
§ 102-3.175 What are the reporting and
recordkeeping requirements for an advisory
committee?
(a) Presidential advisory committee
follow-up report. Within one year after
a Presidential advisory committee has
submitted a public report to the
President, a follow-up report required
by section 6(b) of the Act must be
prepared and transmitted to the
Congress detailing the disposition of the
advisory committee's recommendations.
The Secretariat shall assure that 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 § 102-3.75(a)(10). In
performing this function, GSA may
solicit the assistance of the President's
delegate, the Office of Management and
Budget (OMB), or the responsible
agency Committee Management Officer
(CMO), as appropriate. Reports shall be
consistent with specific guidance
provided periodically by the Secretariat.
(b) Annual comprehensive review of
Federal advisory committees. To
conduct an annual comprehensive
review of each advisory committee as
specified in section 7(b) of the Act, GSA
requires Federal agencies to report
information on each advisory committee
for which a charter has been filed in
accordance with § 102-3.70, and which
is in existence during any part of a
Federal fiscal year. Committee
Management Officers (CMOs),
Designated Federal Officers (DFOs), and
other responsible agency officials will
provide this information by data filed
electronically with GSA on a fiscal year
basis, using a Governmentwide shared
Internet-based system that GSA
maintains. This information shall be
consistent with specific guidance
provided periodically by the Secretariat.
The preparation of these electronic
submissions by agencies has been
assigned interagency report control
number (IRCN) 0304-GSA-AN.
(c) Annual report of closed or
partially-closed meetings. In accordance
with section 10(d) of the Act, 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, 8 copies of each
report made by an advisory committee,
including any report of closed or
partially-closed meetings as specified in
paragraph (c) of this section and, where
appropriate, background papers
prepared by experts or consultants,
must be filed with the Library of
Congress as required by section 13 of
the Act for public inspection and use at
the location specified § 102-3.70(a)(3).
(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 (FRA), 44 U.S.C.
Chapters 21, 29-33, and regulations
issued by the National Archives and
Records Administration (NARA) (see 36
CFR parts 1220,1222,1228, and 1234),
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
37747
or in accordance with the Presidential
Records Act (PRA), 44 U.S.C, Chapter
22.
Appendix A to Subpart D of Part 102-
3Key Points and Principles
This appendix provides additional
guidance in the form of answers to frequently
APPENDIX A TO SUBPART D
asked questions and identifies key points and
principles that may be applied to situations
not covered elsewhere in this subpart. The
guidance follows:
Key points and principles
Section(s)
Question(s)
Guidance
I. With some exceptions, advi-
sory committee meetings
are open to the public.
102-3.140. 102-3.145(8), 102-
3.155.
1. Must all advisory com-
mittee and subcommittee
meetings be open to the
public?
A. No. Advisory committee meetings may
be closed when appropriate, in accord-
ance with the exempton(s) for closure
contained in the Government in the Sun-
shine Act, 5 U.S.C. 552b(c). (i) Sub-
committees that report to a parent advi-
sory committee, and not directly to a Fed-
eral officer or agency, are not required to
open their meetings to the public or com-
ply with the procedures in the Act for an-
nouncing meetings, (ii) However, agen-
cies are cautioned to avoid excluding the
public from attending any meeting where
a subcommittee develops advice or rec-
ommendations that are not expected to
be reviewed and considered by the par-
ent advisory committee before being sub-
mitted to a Federal officer or agency.
These exclusions may run counter to the
provisions of the Act requiring contem-
poraneous access to the advisory com-
mittee deliberative process.
II. Notices must be published
in the Federal Register an-
nouncing advisory com-
mittee meetings.
102-3.150
. Can agencies publish a
single Federal Register
notice announcing multiple
advisory committee meet-
ings?
A. Yes, agencies may publish a single no-
tice announcing multiple meetings so long
as these notices contain all of the infor-
mation required by §102-3.150. (i) "Blan-
ket notices" should not announce meet-
ings so far in advance as to prevent the
public from adequately being informed of
an advisory committee's schedule, (ii) An
agency's Office of General Counsel
should be consulted where these notices
include meetings that are either closed or
partially closed to the public.
-------
37748
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
APPENDIX A TO SUBPART DContinued
Key points and principles
Section(s)
Question(s)
Guidance
II. Although certain advisory
committee records may be
withheld under the Freedom
of Information Act (FOIA).
as amended, 5 U.S.C. 552,
agencies may not require
the use of FOIA procedures
for records available under
section 10(b) of FACA.
102-3.170
1. May an agency require the
use of its internal FOIA
procedures for access to
advisory committee
records that are not ex-
empt from release under
FOIA?
A. No. Section 10(b) of FACA provides that:
Subject to section 552 of title 5, United
States Code, the records, reports, tran-
scripts, minutes, appendixes, working pa-
pers, drafts, studies, agenda, or other
documents which were made available to
or prepared for or by each advisory com-
mittee shall be available for public inspec-
tion and copying at a single location in
the offices of the advisory committee or
the agency to which the advisory com-
mittee reports until the advisory com-
mittee ceases to exist, (i) The purpose of
section 10(b) of the Act is to provide for
the contemporaneous availability of advi-
sory committee records that, when taken
in conjunction with the ability to attend
advisory committee meetings, provide a
meaningful opportunity to comprehend
fully the work undertaken by the advisory
committee, (ii) Although advisory com-
mittee records may be withheld under the
provisions of FOIA if there is a reason-
able expectation that the records sought
fall within the exemptions contained in
section 552(b) of FOIA, agencies may not
require members of the public or other in-
terested parties to file requests for non-
exempt advisory committee records under
the request and review process estab-
lished by section 552(a)(3) of FOIA. (iii)
Records covered by the exemptions set
forth in section 552(b) of FOIA may be
withheld. An opinion of the Office of Legal
Counsel (OLC), U.S. Department of Jus-
tice concludes that: FACA requires disclo-
sure of written advisory committee docu-
ments, including predecisional materials
such as drafts, working papers, and stud-
ies. The disclosure exemption available to
agencies under exemption 5 of FOIA for
predecisional documents and other privi-
leged materials is narrowly limited in the
context of FACA to privileged "inter-agen-
cy or infra-agency" documents prepared
by an agency and transmitted to an advi-
sory committee. The language of the
FACA statute and its legislative history
support this restrictive application of ex-
emption 5 to requests for public access to
advisory committee documents. More-
over, since an advisory committee is not
itself an agency, this construction is sup-
ported by the express language of ex-
emption 5 which applies only to inter-
agency or intra-agency materials, (iv)
Agencies first should determine, however,
whether or not records being sought by
the public fall within the scope of FACA in
general, and section 10(b) of the Act in
particular, prior to applying the available
exemptions under FOIA. (See OLC Opin-
ion 12 Op. O.L.C. 73. dated April 29,
1988, which is available from the Com-
mittee Management Secretariat (MC),
General Services Administration, 1800 F
Street, NW., Washington, DC 20405-
0002.)
-------
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
37749
APPENDIX A TO SUBPART DContinued
Key points and principles
Section(s)
Question(s)
Guidance
IV. Advisory committee
records must be managed
in accordance with the Fed-
eral Records Act (FRA). 44
U.S.C. Chapters 21, 29-33,
and regulations issued by
the National Archives and
Records Administration
(NARA) (see 36 CFR parts
1220,1222, 1228, and
1234), or the Presidential
Records Act (PRA), 44
U.S.C. Chapter 22.
102-175(e)
1. How must advisory com-
mittee records be treated
and preserved?
A. In order to ensure proper records man-
agement, the Committee Management
Officer (CMO), Designated Federal Offi-
cer (DFO), or other representative of the
advisory committee, in coordination with
the agency's Records Management Offi-
cer, should clarify upon the establishment
of the advisory committee whether its
records will be managed in accordance
with the FRA or the PRA.
B. Official records generated by or for an
advisory committee must be retained for
the duration of the advisory committee.
Responsible agency officials are encour-
aged to contact their agency's Records
Management Officer or NARA as soon as
possible after the establishment of the ad-
visory committee to receive guidance on
how to establish effective records man-
agement practices. Upon termination of
the advisory committee, the records must
be processed in accordance with the FRA
and regulations issued by NARA, or in ac-
cordance with the PRA.
C. The CMO, DFO, or other representative
of an advisory committee governed by the
FRA, in coordination with the agency's
Records Management Officer, must con-
tact NARA in sufficient time to review the
process for submitting any necessary dis-
position schedules of the advisory com-
mittee's records upon termination. In
order to ensure the proper disposition of
the advisory committee's records, disposi-
tion schedules need to be submitted to
NARA no later than 6 months before the
termination of the advisory committee.
D. For Presidential advisory committees
governed by the PRA, the CMO, DFO. or
other representative of the advisory com-
mittee should consult with the White
House Counsel on the preservation of
any records subject to the PRA, and may
also confer with NARA officials.
Subpart EHow 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?
This subpart provides guidance to
agencies on compliance with section 15
of the Act. 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 Institute of
Medicine, and the National Research
Council. Except with respect to NAS
committees that were the subject of
judicial actions filed before December
17,1997, no part of the Act other than
section 15 applies to any committee
created by NAS or NAPA.
§ 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 the National Academy of Sciences
(NAS) or the National Academy of
Public Administration (NAPA) under an
agreement between the agency and an
academy, if such advice or
recommendation was developed by use
of a committee created by either
academy, unless:
(1) The committee was not subject to
any actual management or control by an
agency or officer of the Federal
Government; and
(2) In the case of NAS, the academy
certifies that it has complied
substantially with the requirements of
section 15(b) of the Act; or
(3) In the case of NAPA, the academy
certifies that it has complied
substantially with the requirements of
sections 15(b) (1), (2), and (5) of the Act.
(b) No agency management or control.
Agencies must not manage or control
the specific procedures adopted by each
academy to comply with the
requirements of section 15 of the Act
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
-------
37750
Federal Register/Vol. 66, No. 139/Thursday, July 19, 2001/Rules and Regulations
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
NAP A that are consistent with the
requirements of this subpart to obtain
advice or recommendations from such
academy. These funding agreements
require, and agencies may rely upon, a
written certification by an authorized
representative of the academy provided
to the agency upon delivery to the
agency of each report containing advice
or recommendations required under the
agreement that:
(1) The academy has adopted policies
and procedures that comply with the
applicable requirements of section 15 of
the Act; and
(2) To the best of the authorized
representative's knowledge and belief,
these policies and procedures
APPENDIX A TO SUBPART E
substantially have been complied with
in performing the work required under
the agreement.
Appendix A to Subpart E of Part 102-
3Key Points and Principles
This appendix provides additional
guidance in the form of answers to frequently
asked questions and identifies key points and
principles that may be applied to situations
not covered elsewhere in this subpart. The
guidance follows'
Key points and principles
Section(s)
Question(s)
Guidance
. Section 15 of the Act allows
the National Academy of
Sciences (NAS) and the Na-
tional Academy of Public
Administration (NAPA) to
adopt separate procedures
for complying with FACA.
102-3.185(3)
1. May agencies rely upon
an academy certification
regarding compliance with
section 15 of the Act if dif-
ferent policies and proce-
dures are adopted by NAS
and NAPA?
A. Yes. NAS and NAPA are completely sep-
arate organizations. Each is independ-
ently chartered by the Congress for dif-
ferent purposes, and Congress has rec-
ognized that the two organizations are
structured and operate differently. Agen-
cies should defer to the discretion of each
academy to adopt policies and proce-
dures that will enable it to comply sub-
stantially with the provisions of section 15
of the Act that apply to that academy.
II. Section 15 of the Act allows
agencies to enter into fund-
ing agreements with NAS
and NAPA without the acad-
emies' committees being
"managed" or "controlled".
102-3.185(c)
1. Can an agency enter into
a funding agreement with
an academy which pro-
vides for the preparation of
one or more academy re-
ports containing advice or
recommendations to the
agency, to be developed
by the academy by use of
a committee created by the
academy, without sub-
jecting an academy to "ac-
tual management or con-
trol" by the agency?
A. Yes, if the members of the committee are
selected by the academy and if the com-
mittee's meetings, deliberations, and the
preparation of reports are all controlled by
the academy. Under these circumstances,
neither the existence of the funding
agreement nor the fact that it con-
templates use by the academy of an
academy committee would constitute ac-
tual management or control of the com-
mittee by the agency.
[FR Doc. 01-17350 Filed 7-18-O1; 8:45 am]
BILLING CODE 6820-34-U
-------
Federal Advisory Committee Handbook
Appendix C:
Executive Order No. 12024
October 15,2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
Executive Order 12024 applied to the Federal Advisory Committee Act
EXECUTIVE ORDER NO. 12024
TRANSFER OF CERTAIN ADVISORY COMMITTEE FUNCTIONS
By virtue of the authority vested in me by the Constitution and statutes of the United States of
America, including the Federal Advisory Committee Act, as amended (5 U.S.C. App. I) [this
Appendix], Section 301 of Title 3 of the United States Code [section 301 of Title 3, The
President], Section 202 of the Budget and Accounting Procedures Act of 1950 (31 U.S.C. 58Ic)
[section 581c of Title 31, Money and Finance], and Section 7 of Reorganization Plan No. 1 of
1977 (42 FR 56101 (October 21,1977)) [set out in Appendix H of this title], and as President of
the United States of America, in accord with the transfer of advisory committee functions from
the Office of Management and Budget to the General Services Administration provided by
Reorganization Plan No. 1 of 1977 [set out in Appendix n of this title], it is hereby ordered as
follows:
Section 1. The transfer, provided by Section 5F of Reorganization Plan No. 1 of 1977 (42 FR
56101) [set out in Appendix n of this title], of certain functions under the Federal Advisory
Committee Act, as amended (5 U.S.C.App. I) [this appendix], from the Office of Management
and Budget and its Director to the Administrator of General Services is hereby effective.
Sec. 2. There is hereby delegated to the Administrator of General Services all the functions
vested in the President by the Federal Advisory Committee Act, as amended, except that, the
annual report to the Congress required by Section 6(c) of that Act [section 6(c) of this Appendix]
shall be prepared by the Administrator for the President's consideration and transmittal to the
Congress.
Sec. 3. The Director of the Office of Management and Budget shall take all actions necessary or
appropriate to effectuate the transfer of functions provided in this Order, including the transfer of
funds, personnel and positions, assets, liabilities, contracts, property, records, and other items
related to the functions transferred.
Sec. 4. Executive Order No. 11769 of February 21,1974 is hereby revoked.
Sec. 5. Any rules, regulations, orders, directives, circulars, or other actions taken pursuant to the
functions transferred or reassigned as provided in this Order from the Office of Management and
Budget to the Administrator of General Services, shall remain in effect as if issued by the
Administrator until amended, modified, or revoked.
Sec. 6. This Order shall be effective November 20,1977.
JIMMY CARTER
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
Federal Advisory Committee Handbook
Appendix D:
Executive Order No. 12838
October 15,2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
Executive Order 12838 applied to the Federal Advisory Committee Act
EXECUTIVE ORDER NO. 12838
TERMINATION AND LIMITATION OF FEDERAL ADVISORY COMMITTEES
By the authority vested in me as President by the Constitution and the laws of the United States
of America, including the Federal Advisory Committee Act ("FACA"), as amended (5
U.S.C.App.). it is hereby ordered as follows:
Section 1. Each executive department and agency shall terminate not less than one-third of the
advisory committees subject to FACA (and not required by statute) that are sponsored by the
department or agency by no later than the end of fiscal year 1993.
Sec. 2. Within 90 days, the head of each executive department and agency shall submit to the
Director of the Office of Management and Budget, for each advisory committee subject to FACA
sponsored by that department or agency: (a) a detailed justification for the continued existence, or
a brief description in support of the termination, of any advisory committee not required by
statute; and (b) a detailed recommendation for submission to the Congress to continue or to
terminate any advisory committee required by statute. The Administrator of General Services
shall prepare such justifications and recommendations for each advisory committee subject to
FACA and not sponsored by a department or agency.
Sec. 3. Effective immediately, executive departments and agencies shall not create or sponsor a
new advisory committee subject to FACA unless the committee is required by statute or the
agency head (a) finds that compelling considerations necessitate creation of such a committee,
and (b) receives the approval of the Director of the Office of Management and Budget. Such
approval shall be granted only sparingly and only if compelled by considerations of national
security, health or safety, or similar national interests. These requirements shall apply in addition
to the notice and other approval requirements of FACA.
Sec. 4. The Director of the Office of Management and Budget shall issue detailed instructions
regarding the implementation of this order, including exemptions necessary for the delivery of
essential services and compliance with applicable law.
Sec. 5. All independent regulatory commissions and agencies are requested to comply with the
provisions of this order.
WILLIAM J. CLINTON
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15, 2003
-------
Federal Advisory Committee Handbook
Appendix E:
EPA Ethics Advisory 97-15
October 15,2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
EPA ETHICS ADVISORY 97-15
Octobers, 1997
SUBJECT: Annual Ethics Training for Special Government Employees
FROM: Scott C. Fulton
Principal Deputy General Counsel
Designated Agency Ethics Official
TO. Deputy Ethics Officials
The purpose of this Ethics Advisory is to establish the procedure for providing training to
special Government employees (SGEs). This ethics advisory replaces EPA Ethics Advisory 94-18
dated September 30, 1994. As you know, part of the Office of Government Ethics (OGE)
Standards of Ethical Conduct for Employees of the Executive Branch require annual ethics
training for employees who file public (SF 278) or confidential (SF 450) financial disclosure
reports. See Subpart G, 5 C.F.R. Part 2638. All SGEs (SGEs are employees who are appointed
to perform services, temporarily or intermittently, for not more than 130 days in any 365 day
period. See 18 U.S.C. §202.) are required to file a financial disclosure report and receive annual
ethics training.
OGE regulations provide that an agency may fulfill the training requirement for SGEs
without the presence of a qualified individual by presenting the information verbally, by
distribution of written materials, or by other means at the agency's discretion. 5 C.F.R.
§2638.704(dX2)(ii).
As the Designated Agency Ethics Official for EPA, it is my determination that the Agency
may meet its annual training requirement for SGEs by the distribution of written materials by the
responsible Deputy Ethics Official (DEO) or his\her designee. This determination is based on the
following factors: (1) the large number of SGEs in EPA (approximately 500), (2) the logistical
and cost considerations of conducting annual "face-to-face" training for SGEs in view of the
limited duration and intermittent nature of most SGEs' services, and (3) the need to devote the
limited ethics training resources to regular employees.
Therefore, annual training for SGEs will be accomplished by the distribution of the
following written materials:
(1) a copy of the Office of Government Ethics' (OGE's) August 1992 booklet entitled
"Standards of Ethical Conduct for Employees of the Executive Branch";
(2) a copy of EPA Ethics Advisory 96-11 of August 29, 1996, "Transmitted of
Government Ethics Newsgram" regarding procurement integrity;
-------
(3) a copy of EPA Ethics Advisory 96-18 of January 10, 1997, "Post-Employment
Restrictions"; and.
(4) a copy of this Ethics Advisory, including the attachment which compares ethics
requirements for SGEs with those of regular employees.
* * *
Please direct any questions you may have to Don Nantkes at (202) 260-4556 or Hale
Hawbecker at (202) 260-4555.
Attachment
-------
EFFECT OF SPECIAL GOVERNMENT EMPLOYEE STATUS
ON APPLICABILITY OF CRIMINAL CONFLICT OF INTEREST
STATUTES AND OTHER ETHICS RELATED PROVISIONS
Definition
i
As defined by 18 U.S.C. §202(a), a "special Government employee" (SGE) in the
Executive Branch is an officer or employee who is retained, designated, appointed, or employed
to perform temporary duties, with or without compensation, for a period not to exceed 130 days
during any period of 365 days, either on a full-time or intermittent basis.
Financial Disclosure
An SGE is subject to the financial disclosure provisions of the Ethics in Government Act
and 5 C.F.R. Part 2634. If an SGE is expected to serve more than 60 days in any calendar year,
and if the SGE is paid at a rate equal to or greater than 120% of the minimum rate of basic pay
for GS-1S of the General Schedule, the Public Financial Disclosure Report (SF 278) must be filed/
5 C.F.R. §§2634.202(c) and 2634.204. If the salary rate is less than 120% of the minimum rate of
basic pay for GS-1S of the General Schedule; or if the SGE, regardless of pay rate, is expected to
work 60 days or less in any calendar year, submission of the Confidential Financial Disclosure
Report (SF 450) is required. 5 C.F.R. §2634.904(b).
SUBSTANTIVE RESTRICTIONS
With significant exceptions outlined below, the criminal conflict of interest statutes,
Executive Order 12674 (as amended by E.O. 12731), and the executive branch standards of
ethical conduct (5 C.F.R. Part 2635) are applicable to SGEs. Other ethics-related provisions
concerning outside earned income and employment and political activities are wholly or partially
inapplicable. The principal distinctions between the rules applicable to regular government
employees and those governing SGEs are as follows:
I. Criminal Conflict of Interest Statutes
a. 18 U.S.C. §203 - Prohibition of Compensated Representational Activities By
Federal Employees Directed Towards the United States
Regular Employee: Section 203 prohibits an employee from seeking, accepting, or agreeing to
receive or accept compensation for any representational services, rendered personally or by
another, in relation to any particular matter in which the United States is a party or has a direct
and substantial interest, before any department, agency, or other specified entity.
SGE: The bar applies only in relation to a particular matter involving a specific party or
parties
-------
(1) in which the SGE has at any time, participated personally and substantially as a
Government employee; or
(2) if the SGE has served in excess of 60 days during the immediately preceding 365 days,
such matter is pending in the department or agency in which such employee is serving.
b. 18 U.S.C. §205 Prohibition or Uncompensated or Gratuitous Representational
Activities By Federal Employees Directed Towards the United States
Regular Employee: Section 205 prohibits an employee, whether or not for compensation, from
acting as agent or attorney for anyone in a claim against the United States or from acting as agent
or attorney for anyone, before any department, agency, or other specified entity, in any
particular matter in which the United States is a party or has a direct and substantial interest. It
also prohibits receipt of any gratuity, or any share of or interest in a claim against the United
States, in consideration for assisting in the prosecution of such claim.
*
SGE: The broad prohibition is narrowed in the same manner as noted above for section 203.
c. 18 U.S.C. §207 - Post-Employment Restrictions
Regular Employee: Section 207 imposes bans of varying durations to prevent communications by
former employees made with the intent to influence the Government. The lifetime ban covers
particular matters involving specific parties in which the former employee was personally and
substantially involved. A similar two-year ban deals with such matters that were merely pending
under the employee's official responsibility during the final year of government service. A
one-year ban applies to employees involved in trade or treaty negotiations. Other rules apply to
senior personnel (confirmed Presidential appointees, SES employees at grades ES-S and ES-6,
uniformed service officers at grade 0-7 and above, and anyone paid at or above the basic daily
rate for Level V of the Executive Schedule); such senior employees are subject to a one-year
"cooling-ofF period precluding any contacts with their former agency on any matter for which
official action is sought.
(Note: Senior Clinton Administration appointees must sign an agreement increasing the duration
of the "cooling-ofT period to five years. The 5-year "cooling-ofF period prescribed by E.O.
12834 of January 22, 1993, is applicable only to full-time, non-career senior appointees.)
SGE: The one-year "cooling-ofF period for senior employees is not applicable to an SGE who
served less than 60 days in the one-year period prior to termination. The 5-year ban also is not
applicable. All other prohibitions are applicable to SGEs.
d. 18 U.S.C. §208 - Conflict of Interest Provisions
Regular Employee: Section 208 proscribes personal and substantial participation in any
"particular matter" which will have a direct and predictable effect on an employee's own financial
interests or on the financial interests of the employee's spouse; dependent child; general partner;
-------
organization in which the employee is serving as officer, director, trustee, general partner, or
employee; or any person or organization with whom the employee is negotiating or has any
arrangement regarding prospective employment. The term "particular matter" can include
rulemaking or policy matters as well as "specific party" matters such as contracts and permits. A
waiver under section 208(b)(l) permitting official action in such matters may be obtained from the
Designated Agency Ethics Official (DAEO) if the financial interest is "not so substantial as to be
deemed likely to affect the integrity of the services which the Government may expect." Certain
other interests, such as interests in diversified mutual funds, are exempted by general regulation as
"too remote or too inconsequential to affect the integrity of the services."
SGE: The same rules apply to SGEs. However, for SGEs who are members of advisory
committees, the standard for waiver focuses on whether the need for the SGE' services outweighs
the potential for conflict of interest rather than the value of the financial interest. In addition, the
Environmental Education Act at 20 U.S.C. §5501 provides that members of the National
Environmental Education Advisory Council are permitted to take part in matters which affect
their employers' financial interests, even without a waiver. However, 18 U.S.C. §208(a)
continues to apply to members' own financial interests.
e. 18 U.S.C. §209 - Ban on Supplementation of Salary
Regular Employee: Section 209 generally prohibits an employee from receiving any salary or any
contribution to or supplementation of salary from any source other than the United States as
compensation for services as a government employee.
SGE: This provision does not apply.
f. 18 U.S.C. §219 and the "Emoluments Clause" of the Constitution- Foreign Agents end
Receiving Anything of Value From a Foreign Government \
Regular Employee: Section 219 bars any "public official" from being or acting as an agent of a
foreign government who is required to register under the Foreign Agents Registration Act of
1938 at 22 U.S.C. §611 etseq.. Furthermore, the "Emoluments Clause" of the Constitution
provides that no person who holds an office of "profit or trust" under the United States may
receive any money, award or other thing of value from a foreign government or hold a position in
a foreign government, except where permitted by statute.
SGE: An April 29, 1991 opinion of the Department of Justice Office of Legal Counsel (OLC)
concluded that Section 219 applies to members of federal advisory committees both SGEs and
"representative" members. However this provision can be waived for SGEs if EPA certifies that
their employment is "necessary in the national interest" and sends a copy of the certification to the
Attorney General for filing with the registration statement. The April 29, 1991 OLC opinion also
concluded that the "Emoluments Clause" of the Constitution applies to members of advisory
committees both SGEs and "representative members."
II. Other Ethics Related Statutes
-------
a. S U.S.C. App. 7, §501 (a) Outside Earned Income Limitation
Regular Employee: Section SOI (a), and implementing regulations at 5 C.F.R. §§2636.301
through 2636.304, provide that a non-career employee paid at a rate in excess of a GS-1S may
not, in any calendar year, receive outside earned income attributable to that calendar year which
exceeds IS percent of the annual rate of basic pay for level II of the Executive Schedule under S
U.S.C. S313, as in effect on January I of such calendar year.
SGE: This provision is not applicable.
.
b. S U.S.C. App. 7, §502(a) - Limitations on Outside Professional Employment and
Teaching
Regular Employee: Section S02(a), and implementing regulations at S C.F.R. §§2636.305
through 2636.307, prohibit a non-career employee paid at a rate in excess of a GS-1S from
receiving any compensation for: (1) practicing a profession which involves a fiduciary
relationship; (2) affiliating with or being employed by a firm or other entity which provides
professional services involving a fiduciary relationship; (3) serving as an officer or member of the
board of any association, corporation or other entity; or (4) teaching without prior approval.
SGE: This provision is not applicable.
c. S U.S.C. §§7321 - 7328 - Hatch Act Political Activity Restrictions
Regular Employee: The "Hatch Act Reform Amendments of 1993" permit most EPA
employees (i.e, non-career Senior Executive Service employees, Schedule C appointees, and
GS/GM-15 level employees and below) to take an active part in political management and
campaigns. This is a significant change from earlier provisions, which generally prohibited such
activity. However the following activities remain prohibited: (1) running for partisan office, (2)
soliciting political contributions from the general public, (3) engaging in political activity
(including wearing buttons) while on duty, or in a government office, or while using a government
vehicle, and (4) collecting political contributions unless both the donor and the collector are
members of the same federal labor organization or employee organization and the person solicited
is not a subordinate employee. Career employees in the Senior Executive Service and
Administrative Law Judges remain subject to the earlier (and more restrictive) Hatch Act
provisions. See EPA Ethics Advisory 96-09 'of August 5, 1996 for further Hatch Act information.
SGE: SGEs are covered by the Act only during the 24-hour period of any day in which they are
actually performing government business.
' HI. Executive Branch Standards of Ethical Conduct
The government-wide Standards of Ethical Conduct at S C.F.R. Part 263S, are fully
-------
applicable to both regular and special government employees. An SGE is covered by the
standards even though the individual does not perform official duties on a given day.
SGEs are subject to the following provision in EXACTLY THE SAME WAY as regular
employees:
a. 5 C.F.R. Part 2635, Subpart B, Gifts from. Outside Sources
With certain exceptions listed at §2635.204, employees may not accept gifts from
"prohibited sources" (generally persons or organizations affected by EPA actions) or given
because of the employee's government position.
b. 5 C.F.R Part 2635, Subpart C, Gifts Between Employees
With certain exceptions listed at §2635.304, employees may not give or contribute toward
a gift for an official superior or receive a gift from an employee who receives less pay.
c. 5 C.F.R. Part 2635, Subpart E, Impartiality in Performing Official Duties
Employees may not participate in "specific party" matters where a "reasonable person with
knowledge of the relevant facts" would question their impartiality. Consultation with an
employee's Deputy Ethics Official (generally Office Director, Staff Office Director, Laboratory
Director, or Regional Administrator) is strongly advised where the employee suspects a problem
or where the matter will involve any of the following "covered relationships":
(1.) persons or organizations with which the employee has business relationships,
(2) members of the employee's household or relatives with whom the employee has a close
personal relationship,
(3) employers or prospective employers of spouses, parents, or dependent children,
(4) recent (within one year) former employers or clients, and
(5) organizations in which the employee is an "active participant."
The employee's Deputy Ethics Official may authorize participation if "the interest of the
Government in the employee's participation outweighs the concern that a reasonable person may
question the integrity of the agency's programs and operations." 5 C.F.R. §2635.502(d).
d. 5 C.F.R. Part 2,635, Subpart F, Seeking Other Employment
Employees may not participate in any "particular matter" (including a rulemaking or policy
matter) which directly and predictably affects the financial interest of any person or organization
with which the employee has had any contact regarding future employment (or relationships
-------
equivalent to employment, such as contracts and consultancies.) unless the employee's Deputy
Ethics Official authorizes such participation under the same standards as in the Impartiality
provisions of Subpart E discussed above. (Note: If the communications amount to "negotiating"
for future "employment," the statutory restriction at 18 U.S.C. §208(a) applies, and employees
may not participate in such matters unless the DAEO (not the Deputy Ethics Official) has granted
a waiver under 18 U.S.C. §208(b)(l).)
SGEs are subject to the following restrictions to A LESSER DEGREE than regular
employees:
a. 5 C.F.R. §2635.805 - Service as an Expert Witness
Regular Employee: An employee shall not serve, other than on behalf of the United States, as an
expert witness, with or without compensation, in any proceeding before a court or agency of the
United States in which the United States is a party or has a direct and substantial interest,
unless authorized by the DAEO.
SGE: The bar against expert testimony applies only if the individual has participated as a federal
employee in .the particular proceeding or in the particular matter that is the subject of the
proceeding.
If an SGE has been appointed by the President; serves on a commission established by
statute; or has served or is expected to serve for more than 60 days in a period of 365 consecutive
days, an additional restriction applies. These SGEs cannot serve, other than on behalf of the
United States, as an expert witness, with or without compensation, in any proceeding before a
court or agency of the United States in which the individual's employing agency is a party or
has a direct and substantial interest, unless authorized by the DAEO.
b. 5 C.F.R. §2635.807 - Teaching, Speaking, and Writing
»
Regular Employee: Except for certain teaching activities, an employee shall not receive
compensation from any source other than the Government for teaching, speaking, and writing that
relates to the employee's official duties. The "relatedness" test is met if: (A) the activity is
undertaken as an official government duty; (B) the circumstances indicate that the invitation to
engage in the activity was extended to the employee primarily because of the employee's official
position rather than the employee's expertise on the particular subject matter;
(C) the invitation to engage in the activity or the offer of compensation for the activity was
extended to the employee, directly or indirectly, by a person who has interests that may be
. affected substantially by performance or nonperformance of the employee's official duties; (D) the
information conveyed through the activity draws substantially on ideas or official data that are
nonpublic information; or (E) the subject of the activity deals in significant part with:
(1) Any matter to which the employee presently is assigned or to which the employee had been
assigned during the previous one-year period;
-------
(2) Any ongoing or announced policy, program or operation of the agency; or
(3) In the case of certain noncareer employees, the general subject matter area, industry, or
economic sector primarily affected by the programs and operations of the employee's agency.
SGE: The restrictions in paragraphs (2) and (3) above do not apply to an SGE. The restriction in
paragraph (1) applies only during the current appointment of an SGE; except that if the SGE has
not served or is'not expected to serve for more than 60 days during the first year or any
subsequent one year period of that appointment, the restriction applies only to "specific party"
matters (such as contracts, licenses, and lawsuits) in which the SGE has participated or is
participating personally and substantially.
c. 5 C.F.R. §2635.808 - Fundraising Activities
Regular Employee: An employee may engage in fundraising in a personal capacity provided that
the individual does not personally solicit funds or other support from a subordinate, or from any
person known to the employee to be one of the five types of prohibited sources specified in
section 2635.203(d) (generally persons or entities affected by EPA actions.)
An employee may participate in fundraising activities in an official capacity if authorized to
so as part of official duties. Such authorization can come from statutes, Executive Orders, or
regulations. 5 C.F.R. §2635.808(b). One example of authorized official fundraising is the
Combined Federal Campaign (CFC).
SGE: An SGE may engage in fundraising in a personal capacity provided that the individual does
not personally solicit funds or other support from a subordinate, or from any person known to the
employee to be a prohibited source whose interests may be substantially affected by the
performance or nonperformance of the employee's official duties. An SGE may also participate in
authorized official fundraising such as the CFC.
# # #
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
Federal Advisory Committee Handbook
Appendix F:
"Conflict of Interest and the Special Government
Employee"
October 15,2003
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15,2003
-------
CONFLICT OF INTEREST AND THE SPECIAL
GOVERNMENT EMPLOYEE
A Summary of Ethical Requirements Applicable to SGEs
The Office of Government Ethics (OGE) frequently receives questions about the
ethical requirements applicable to special Government employees (SGE). Many
agencies use SGEs, either as advisory committee members or as individual experts
or consultants, and OGE knows that these SGEs pose unique challenges for agency
ethics officials. SGEs typically are recruited for temporary service to the
Government because they provide outside expertise or perspectives that might be
unavailable among an agency's regular employees. Frequently, however, these SGEs
have substantial outside activities and financial interests that may raise difficult
ethics questions. In order to help agencies resolve such questions, OGE is issuing
this summary, which attempts to digest, in one place, the various conflict of interest
laws and ethics regulations applicable to SGEs.
Definition of SGE
The SGE category was created by Congress as a way to apply an important, but
limited, set of conflict of interest requirements to a group of individuals who provide
important, but limited, services to the Government. SGEs were originally conceived
as a "hybrid" class, in recognition of the fact that the "simple categories of
'employee' and 'non-employee' are no longer adequate to describe the multiplicity
of ways in which modern government gets its work done." B. Manning, Federal
Conflict of Interest Law 30 (1964). It is crucial to distinguish SGEs both from
regular employees and from individuals who are not Federal employees at all. These
distinctions are important because SGEs are subject to less restrictive conflict of
interest requirements than regular employees, but are subject to more restrictive
requirements than non-employees, who generally are not covered by the conflict of
interest laws at all.
The first and perhaps most important point to emphasize is that SGEs are
Government employees, for purposes of the conflict of interest laws. Specifically,
an SGE is defined, in 18 U.S.C. § 202(a), as "an officer or employee . . . who is
retained, designated, appointed, or employed" by the Government to perform
temporary duties, with or without compensation, for not more than 130 days during
any period of 365 consecutive days.
-------
The terms "officer" and "employee" are not themselves defined in section 202(a).
Nevertheless, the definitions of those terms in Title 5 of the United States Code have
long been consulted for general guidance in determining whether a given individual
should be considered an SGE or a non-employee. See 4B Op. O.L.C. 441, 442
(1980).' Three criteria for Government employment are identified in 5 U.S.C.
§§ 2104 and 2105: (1) appointment in the civil service; (2) performance of a Federal
function; and (3) supervision by a Federal official. With respect to the appointment
element, however, it has been held that an appointment or other formal employment
paperwork, "while perhaps the norm, is not a condition of special government
employment as statutorily defined," Association of American Physicians and
Surgeons v. Clinton, 187 F.3d 655, 662 (D.C. Cir. 1999); in order for an individual
to be "retained, designated, appointed or employed" as an SGE, under section 202(a),
it is sufficient that the circumstances indicate "a firm mutual understanding that a
relatively formal relationship existed." 1 Op. O.L.C. 20,21 (1977).2 Moreover, with
the respect to the supervision element, it should be remembered that SGEs, who often
work as "specialists for short-term projects," sometimes need not be subject to the
same level of "close supervision" as regular employees. Aluminum Co. of
America v. FTC, 589 F. Supp. 169, 175-76 (S.D.N.Y. 1984).3 Nevertheless,
supervision or operational control remains an important attribute of employee status,
and an agency may consider numerous factors when determining whether an
individual is subject to the requisite degree of supervision to be deemed an SGE.4
' As the Office of Legal Counsel has observed, '"the Title 5 definition is frequently used as
a starting point for any analysis of whether the conflict of interest laws apply to a particular individual
. . . although the Title [5] definition is not necessarily conclusive for conflicts purposes.'" 17 Op.
O.L.C. ISO, 154 n.12 (1993)(quoting Memorandum of Assistant Attorney General, Office of Legal
Counsel, to Deputy General Counsel, Department of Commerce, at 10 (Dec. 15, 1982)).
2 See also OGE Informal Advisory Letter 95 x 8 (possibility of de facto SGEs); Manning at
29-30 (occasional informal advice vs. more formal services).
3 In a similar vein, it is recognized in various contexts that the "threshold level of control
necessary to find employee status is generally lower when applied to professional services than when
applied to nonprofessional services." Weber v. Comm 'r of IRS, 60 F.3d 1104,1111 (4th Cir. 1995).
4 E.g., OGE Informal Advisory Letter 82 x 22, at 334-35 (focusing on degree of agency
scrutiny and guidance); 17 Op. O.L.C. at 155-56 (looking to limits on power of removal and other
aspects of specific legislation creating particular Federal position); see generally GAO, Civilian
Personnel Manual, Title I, Chapter 10, at 14-15 (1990) (discussing six factors indicating supervision
for certain Federal personnel purposes); Juliard v. Comm 'r of IRS, 61 T.C.M. (CCH) 2683 (1991)
(various factors indicating sufficient agency control over professional employee for certain tax
purposes); Hospital Resource Personnel, fnc v. United States, 68 F.3d 421,427-28 (11th Cir. 1995)
(discussing non-exclusive list of twenty common law factors identified by IRS for purpose of
determining supervision); Restatement (Second) of Agency § 220(2) (1958) (ten factors to determine
control).
-------
Two of the more common types of non-employees from which SGEs must be
distinguished are "representatives" and independent contractors. Representatives, as
described more fully in OGE Informal Advisory Letter 82 x 22, typically serve on
advisory bodies, and they represent specific interest groups, such as industry,
consumers, labor, etc. Like SGEs, representatives can be appointed by the
Government for a specified term on a Federal advisory committee, and they may
make policy recommendations to the Government. See OGE Informal Advisory
Letter 93 x 30. However, representatives can provide only advice. Moreover, unlike
SGEs and other Federal employees, representatives are not expected to render
disinterested advice to the Government. Rather, they are expected to "represent a
particular bias." OGE Informal Advisory Letter 93 x 14. Therefore, representatives
are not deemed employees of the Government for purposes of the conflict of interest
laws.
Likewise, independent contractors are not deemed Government employees. True
independent contractors are not employees because they are not subject to the
supervision or operational control, described more fully above, that is necessary to
create an "employer-employee relationship" with the Government. OGE Informal
Advisory Letter 82 x 21. It should be noted, however, that persons who truly
function like Federal employees will not avoid the application of the conflict of
interest laws merely because their agency fails to designate them as employees or
designates them as contractors. See 4B Op. O.L.C. at 441 -42; Association of the Bar
of New York City, Conflict of Interest and Federal Service 239-40 (1960).
Even though SGEs clearly are employees, agencies must be careful to differentiate
them from regular Government employees. For most purposes, SGEs are
distinguished from regular Government employees on the basis of the number of days
of expected service to the Government.5 Specifically, an SGE is expected to perform
temporary duties for no more than 130 days during any period of 365 consecutive
days. 18U.S.C. § 202(a).
The determination of SGE status must be made prospectively, at the time the
individual is appointed or retained. Employees should be designated as SGEs only
where the agency makes an advance estimate of the number of days the employee is
expected to serve during the ensuing 365-day period. This is done so that employees
are on notice with respect to the rules that will apply to them. As the Office of Legal
5 The full definition of SGE also includes employees and officers in certain miscellaneous
positions who are deemed SGEs per se, without regard to the number of days of service. 18 U.S.C.
§ 202(a). See United States v. Baird, 29 F.3d 647, 650 (D.C. Cir. 1994). In addition, individuals
occupying other positions are specifically designated as SGEs in certain organic legislation. See, e.g.,
42 U.S.C. § 12651b(e) (members of Board of Directors, Corporation for National and Community
Service).
-------
Counsel has stated, "as a general matter, employees are presumed to be regular
government employees unless their appointing Department is comfortable with
making an estimate that the employee will be needed to serve 130 days or less."
7Op.O.L.C. 123,126 (1983)(emphasis added). If an agency designates an employee
as an SGE, based on a good faith estimate, but the employee unexpectedly serves
more than 130 days during the ensuing 365-day period, the individual still will be
deemed an SGE for the remainder of that period. However, upon the commencement
of the next 365-day period, the agency should reevaluate whether the employee is
correctly designated as an SGE, i.e., expected to serve no more than 130 days.
Indeed, any time an SGE serves beyond one year, the agency should perform a new
estimate of the expected number of days of service for the next 365-day period; this
is true whether the employee is actually reappointed for a new one-year term, which
is the ordinary procedure, or is merely completing an indefinite or multiyear term.
See, e.g., OGE Informal Advisory Letter 81 x 24.
The executive branch has long observed certain criteria for counting the number of
days of expected service, based on a Presidential interpretation of 18 U.S.C. § 202(a)
published shortly after enactment. Presidential Memorandum, "Preventing Conflicts
of Interest on the Part of Special Government Employees," 28 Federal Register 4539,
4541 (May 2,1963); see also Federal Personnel Manual, Chapter 735, Appendix C
(sunset); 3 Op. O.L.C. 78, 81-82 (1979); OGE Informal Advisory Letter 84 x 4.6
OGE continues to use the same criteria, as follows: A part of a day is counted as an
entire day. Work to be performed on weekends or holidays is counted. Where an
employee is expected to serve in more than one agency, the expected number of days
for both agencies must be aggregated in order for the employee to be considered an
SGE for either agency. Where the second position commences at a later date, the
number of days already served in the first agency must be added to the number of
days expected to be served in both agencies for the remainder of the first 365-day
period, in order to determine whether the employee may be considered an SGE for
either agency during that remaining period.
A word is in order concerning two fairly common questions pertaining to SGE status
and the applicability of the conflict of interest requirements. First, SGEs (and others)
sometimes ask whether the ethics restrictions apply to them if they receive no pay
6 The Presidential Memorandum was drafted by the Office of Legal Counsel, Department of
Justice, and "reflects a contemporaneous interpretation" of the 1962 conflict of interest legislation.
2 Op. O.L.C. 151, 155 n.3 (1978). The history of the Presidential Memorandum, including its
rescission and replacement by other documents, is described in OGE Informal Advisory Letter 82 x
22, at 329-32. Much of the substance of the Presidential Memorandum was reproduced in
Appendix C, Chapter 735 of the Federal Personnel Manual (FPM), itself now sunset. To the extent
that much of the guidance contained in these documents reflects longstanding interpretations of
18 U.S.C. § 202(a) and other provisions of the conflict of interest laws, OGE continues to follow many
of the same principles.
-------
from the Government. It is important to remember that the definition of SGE
expressly includes those who serve "without compensation." 18 U.S.C. § 202(a).
SGEs generally are covered by the ethics laws and regulations without regard to their
pay status.7
Second, SGEs occasionally may ask whether the restrictions on their outside
activities apply on days when they perform no Government services. SGEs must be
advised clearly that any restrictions concerning their private activities
(representational services, expert witness activities, etc.) apply equally on days when
they serve the Government and days when they do not.8 Where the Government has
not used an individual's services for some time, but has not specified a termination
date in the appointment or otherwise, the individual might question whether he or she
even remains an SGE. In such cases, the individual must seek a formal resolution of
the matter before engaging in conduct prohibited for an SGE. As one early
commentator observed, "presumably the consultant will remain an employee until the
expiration of the designated term," but a "special government employee whose
appointment is for a long or indefinite period would be well advised to submit a
written resignation as soon as he thinks there may be a substantial hiatus in his
services." R. Perkins, The New Federal Conflict of Interest Law, 76 Harv. L. Rev.
1113,1126(1963).
Criminal Conflict of Interest Statutes and Related'Restrictions
Agency ethics officials regularly deal with five conflict of interest statutes found in
Chapter 11, Title 18 of the United States Code: 18 U.S.C. §§ 203, 205, 207, 208,
209. Each of these criminal statutes makes at least some special provision for the
treatment of SGEs. The application of these statutes is discussed below, in addition
to certain related requirements found in other provisions of law.
a. Restrictions on Representation
Two statutes, 18 U.S.C. §§ 203 and 205, impose related restrictions on the outside
activities of SGEs, particularly activities involving the representation of others before
the Federal Government. Section 203 prohibits an employee from receiving,
agreeing to receive, or soliciting compensation for representational services, rendered
7 One obvious exception would be certain narrow post-employment restrictions applicable
only to employees paid at relatively high levels, as discussed below.
8 In this respect, the conflict of interest restrictions differ from the restrictions on employee
political activity described in 5 C.F.R. part 734 (Hatch Act regulations). See 5 C.F.R. §734.601 (SGE
subject to restrictions on political activity only "when he or she is on duty").
-------
either personally or by another, before any court or Federal agency or other specified
Federal entity, in connection with any particular matter in which the United States is
a party or has a direct and substantial interest. It should be noted that section 203
applies not only to representational services provided by the employee personally, but
also to services provided by another person with whom the employee is associated,
provided that the employee shares in the compensation for such services, for
example, through partnership income or profit-sharing arrangements. See 4B Op.
O.L.C. 603 (1980).
Section 205 prohibits an employee from personally representing anyone before any
court or Federal agency or other specified Federal entity, in connection with any
particular matter in which the United States is a party or has a direct and substantial
interest. See 18 U.S.C. § 205(a)(2). Unlike section 203, this prohibition in
section 205(a)(2) applies whether or not the employee receives any compensation for
his or her representational activity. Furthermore, section 20S(a)(l) prohibits an
employee from representing anyone in the prosecution of a claim against the
United States, or from receiving any gratuity, or share or interest in a claim, as
consideration for assistance in prosecuting the claim.
Both section 203 and section 205 are limited, however, in their application to SGEs.
18 U.S.C. § 203(c) and 18 U.S.C. § 205(c) contain identical provisions that
substantially narrow the prohibitions with respect to SGEs. One of the most
significant limitations is that SGEs are restricted by sections 203 and 205 only in
connection with "particular matters involving specific parties." Such matters
typically involve a specific proceeding affecting the legal rights of parties, or an
isolatable transaction or related set of transactions between identified parties;
examples would include contracts, grants, applications, requests for rulings,
litigation, or investigations. Unlike regular employees, SGEs may represent others
or receive compensation for representational services in connection with particular
matters of general applicabilitysuch as broadly applicable policies, rulemaking
proceedings, and legislation--which do not involve specific parties. See 14 Op.
O.L.C. 79 (1990); 5 C.F.R. § 2640.102(l)(m); 5 C.F.R. § 2637.201(c)(l).
Furthermore, the restrictions on SGEs are narrowly drawn to focus only on those
matters in which the SGE actually participated for the Government, as well as, in
some cases, those matters actually pending in the SGE's own agency. More
specifically, all SGEs are subject to the prohibitions of sections 203 and 205 with
respect to those matters in which the SGE "at any time participated personally and
substantially as a Government employee or special Government employee."
18 U.S.C. §§ 203(c)(l), 205(c)(l). Guidance on what constitutes personal and
substantial participation may be found in regulations construing the same phrase in
related conflict of interest statutes. See 5 C.F.R. § 2640.103(a)(2); 5 C.F.R.
-------
§ 2637.20l(d). Likewise, guidance on what constitutes participation in the same
particular matter as the matter with respect to which an SGE seeks to provide
representational services may be found in regulations construing the analogous
requirement in 18 U.S.C. § 207(a). See 5 C.F.R. § 2637.201(c)(4).9
SGEs who have served the Government for more than 60 days during the
immediately preceding period of 365 consecutive days are subject to an additional
restriction. Such SGEs are subject to the prohibitions of sections 203 and 205 in
connection with any covered matter that "is pending in the department or agency of
the Government in which [the SGE] is serving." 18 U.S.C. §§ 203(c)(2), 205(c)(2).
It should be noted that the 60-day standard for determining the application of this
additional restriction is a standard of actual past service, as contrasted with the 130-
day standard of estimated future service for determining SGE status discussed
above.10 Thus, for example, an SGE may represent another person before the agency
in which he or she serves until the point at which the SGE has actually served 60
days in any prior period of 365 days; once the 61 st day of service is reached, the SGE
must discontinue the representation.
Beyond these basic limitations on the application of sections 203 and 205, SGEs also
may be eligible for a special waiver that permits certain representational activity in
connection with work under Federal grants and contracts. Identical provisions, in
18 U.S.C. §§ 203(e) and 205(f,) allow an agency head to authorize an SGE to
represent another before the Government "in the performance of work under a grant
by, or a contract with or for the benefit of, the United States." The legislative history
indicates that the purpose of this exception is "to take care of any situations involving
the national interest where an intermittent employee's special knowledge or skills
may be required by his employer or other private person to effect the proper
performance of a Government contract [or grant] but where his services may be
unavailable in the absence of a waiver." S. Rep. No. 2213, 87th Cong., 2d Sess.
(1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3860. Such a waiver may be granted
9 The regulatory guidance found in 5 C.F.R. part 2637 was promulgated prior to amendments
to section 207 enacted by the Ethics Reform Act of 1989 and thereafter; however, "[ejxcept where the
underlying statutory provision has changed, part 2637 remains persuasive concerning the interpretation
of the newer version of 18 U.S.C. § 207." OGE Memorandum to Designated Agency Ethics Officials,
Genera] Counsels, and Inspectors General (Nov. 5, 1992).
10 Nevertheless, certain similar rules apply to counting the number of days: a partial day
worked should be counted as a full day, and work performed on weekends and holidays should be
counted. However, unlike the 130-day standard for determining SGE status, the 60-day standard under
sections 203(c) and 205(c) does not require that service at more than one agency be aggregated; in
other words, only service at the agency before which the SGE intends to represent someone should be
counted in determining whether the 60-day standard has been exceeded with respect to that agency.
-------
only by the agency head and must be based on a written certification, published in the
Federal Register, that it is required by the national interest. Such a waiver covers
representation only during the "performance of work under" a grant or contract and
therefore would not apply to representational activity prior to the awarding and
commencement of work on a grant or contract. See Presidential Memorandum, 28
Federal Register at 4542 (waiver provision covers "situation which may arise after
a Government grant or contract has been negotiated")."
Finally, even where the narrow restrictions of section 203 and section 205 are
inapplicable, agencies should be aware that certain representational activities of
SGEs may implicate 5 C.F.R. § 2635.702, which prohibits the use of public office
for private gain. The need for administrative action to prevent SGEs from abusing
their inside position for the benefit of private persons was addressed in the legislative
history of sections 203 and 205, as well as in subsequent issuances and opinions of
the executive branch.12 In some circumstances, private representational activity by
SGEs can raise at least the appearance that they are using their official position to
gain special access or attention from Government decisionmakers, which would be
unavailable to the general public. Cf. 91 x 17 (appearance that SGE made certain
contacts through Government connections for benefit of outside organization). Such
concerns are more likely to arise when the subject matter of the private representation
is related to the subject matter of the SGE's official duties and the representational
contacts are made to the SGE's own agency, especially to the same agency personnel
with whom the SGE works in an official capacity. These issues must be addressed
on a case-by-case basis, with adequate consideration of the legitimate interests and
demands of an SGE's outside professional life.
b. Post-Employment Restrictions
1' SGEs, like regular employees, also may be eligible for other exceptions to sections 203 and
205. See 18 U.S.C. §§ 203(d),(f), 205(d), (e), (g), (i).
12 Discussing proposed sections 203 and 205, the Senate Report stated that, beyond the
limited criminal prohibitions, "agency watchfulness and regulation" may be necessary to "make certain
that persons serving [an agency] pan time who also appear on behalf of outside organizations do not
abuse their access to the agency for the benefit of those organizations." S. Rep. No. 2213, 1962
U.S.C.C. A.N. 3859. Similar concerns were voiced in a Presidential Memorandum issued shortly after
the legislative enactment: "It is desirable that a consultant or adviser or other individual who is a
special Government employee, even when not compelled to do so by sections 203 and 205, should
make every effort in his pnvate work to avoid any personal contact with respect to negotiations for
contracts or grants with the department or agency which he is serving if the subject matter is related
to the subject matter of his consultancy or other service." 28 Federal Register at 4542. The
Presidential Memorandum recognized that it may not be practicable for SGEs to avoid all such
representational activity, depending on the circumstances, but advised that SGEs at least alert a
"responsible government official" when contemplating such activities. Id.; see also Federal Personnel
Manual (sunset), Chapter 735, Appendix C, at 3; 10 Op. O.L.C. at 82-83; 7 Op. O.L.C. at 125 n.3.
8
-------
The criminal post-employment statute, 18 U.S.C. § 207, imposes a number of
different restrictions on the activities of former Government employees. Several of
these restrictions provide no special treatment for SGEs. The provisions of
section 207 that apply in the same way to both SGEs and regular employees include:
(1) 18 U.S.C. § 207(a)(l), the lifetime prohibition on representing
others in connection with the same particular matter involving
specific parties in which the former employee participated personally
and substantially;
(2) 18 U.S.C. § 207(a)(2), the two-year prohibition on representing
others in connection with the same particular matter involving
specific parties that was pending under the employee's official
responsibility during the last year of Government employment; and
(3) 18 U.S.C. § 207(b), the one-year prohibition on representing,
aiding, or advising others about certain ongoing trade or treaty
negotiations on the basis of certain nonpublic information.13
Other parts of section 207 do contain special provisions for SGEs. The most
significant provision is found in section 207(c), the so-called "one year cooling off
period" for former "senior employees." Section 207(c) prohibits former senior
employees from representing anyone before their former agency or department for
one year after terminating their senior position, in connection with any matter. This
restriction generally applies to: positions for which the rate of pay is fixed according
to the Executive Schedule; positions for which the rate of basic pay is equal to or
greater than the rate of basic pay for level 5 of the Senior Executive Service;14
positions with appointment by the President under 3 U.S.C. § 105(a)(2)(B) or by the
Vice President under 3 U.S.C. § 106(a)(l)(B); and positions held by an active duty
commissioned officer of the uniformed services serving at pay grade 0-7 or above.
18 U.S.C. § 207(c)(2). However, with respect to SGEs, the application of
13 Additionally, 18 U.S.C. § 207(d) imposes a one-year prohibition on "very senior
employees" against representing others before their former agency or before any official appointed
to an Executive Schedule position. On its face, section 207(d) makes no special provision for SGEs;
however, it is unclear whether an SGE would occupy a position that falls within the "very senior"
category, as described in the statute. See 18 U.S.C. § 207(d)(l). Agencies with specific questions
concerning the applicability of section 201 (d) to a particular SGE or class of SGEs are advised to
consult with OGE or the Office of Legal Counsel, Department of Justice.
14 Because SGEs often are paid on an hourly or daily basis, it may be necessary to prorate the
basic pay for level 5 of the SES, either on an hourly or a daily basis, in order to determine whether the
SGE's hourly or daily rate is equivalent.
-------
section 207(c) is limited, based on the number of days the individual served during
the last year in a senior position. Specifically, the one year cooling off period applies
only to former SGEs who served 60 days or more during the one-year period before
terminating their services as a senior employee.15
Section 207(f), which restricts certain post-employment activities with foreign
entities, is similarly limited with respect to SGEs. Section 207(f) generally imposes
a one-year prohibition on representing, aiding, or advising certain covered foreign
entities in connection with any official decision of an officer or employee of the
United States. However, section 207(f) applies only to "senior employees" who are
subject to section 207(c) and "very senior employees" who are subject to section
207(d). Therefore, SGEs who are not subject to section 207(c) or section 207(d)~for
example, "senior employees" who served fewer than 60 days during the last year
before they terminated from their senior positionare likewise exempt from
section 207(f).16
Apart from 18 U.S.C. § 207, Executive Order 12834 (January 20, 1993) imposes a
number of related post-employment restrictions on "senior appointees" and certain
trade negotiators. These restrictions include, among other things, certain five-year
cooling off requirements that are similar in scope to the one-year restrictions of
18 U.S.C. §§ 207(c) and 207(b), as well as a lifetime ban on certain activities as a
foreign agent. The requirements of Executive Order 12834 apply only to "full-time,
non-career appointees." Although it is possible for an SGE to provide temporary
services on a "full-time" basis, pursuant to 18 U.S.C. § 202(a), and certain SGEs
could be considered "non-career" for certain purposes,17 SGEs are not covered by the
requirements of Executive Order 12834. The Executive order was not intended to
cover employees who perform only temporary duties. It was not contemplated that
the significant contractual obligations imposed by the Executive order would apply
to persons who serve in the relatively limited capacity of an SGE.
IS The Director of OGE also has authority to waive the prohibition of section 207(c) with
respect to certain senior positions, under limited circumstances. See 18 U.S.C. § 207(c)(2)(C);
5C.F.R. § 2641.201 (d).
16 Additionally, SGEs, like all employees, may be eligible for a number of exceptions to the
various restrictions of 18 U.S.C. § 207. See 18 U.S.C. § 207(h),(j),(k).
17 See OGE Informal Advisory Letter 90 x 22 (Presidentially appointed member of board of
directors of agency is noncareer officer or employee and may be SGE depending on estimate of
number of days of service); see generally OGE Informal Advisory Letter 89 x 16 (indicia of non-
career status).
10
-------
Finally, former SGEs are subject to the provisions of the Procurement Integrity Act,
41 U.S.C. § 423, to the same extent as all former Federal employees. See 48 C.F.R.
§ 3.104-3 (definition of "official" includes SGEs). The act prohibits a former SGE
from accepting compensation as an employee, officer, director, or consultant of a
contractor within the one-year period after the SGE participated in certain
procurement matters pertaining to that contractor. See 41 U.S.C. § 423(d). This
statute also imposes certain sanctions, including criminal penalties, on former SGEs
who disclose certain information pertaining to Federal procurements. See 41 U.S.C.
§423(a),(e).
c. Financial Conflicts of Interest
18 U.S.C. § 208 prohibits all employees, including SGEs, from participating
personally and substantially in any particular matter that has a direct and predictable
effect on their own financial interests or the financial interests of others with whom
they have certain relationships. In addition to an employee's own personal financial
interests, the financial interests of the following persons or organizations are also
disqualifying: spouse; minor child; general partner; organization which the individual
serves as officer, director, trustee, general partner or employee; person or
organization with which the employee is negotiating or has any arrangement
concerning prospective employment.18 Because SGEs typically have substantial
outside employment and other interests, which are often related to the subject areas
for which the Government desires their services, issues under section 208 frequently
arise.
In certain circumstances, however, SGEs are eligible for special treatment under
section 208. SGEs who serve on advisory committees, within the meaning of the
Federal Advisory Committee Act (FACA), 5 U.S.C. app., are uniquely eligible for
a particular waiver of the prohibitions of section 208(a). Under 18 U.S.C.
§ 208(b)(3), an SGE serving on a FACA committee may be granted a waiver where
the official responsible for his or her appointment certifies in writing that the need
for the SGE's services outweighs the potential for a conflict of interest posed by the
financial interest involved. 18 U.S.C. § 208(b)(3). The standard for granting such
18 Related provisions in the Standards of Ethical Conduct for Executive Branch Employees
also disqualify an employee, including an SGE, from participating in matters affecting the financial
interests of a person or organization with which the employee is "seeking" employment, even if there
have been no actual negotiations or arrangements for prospective employment, within the meaning of
section 208. See 5 C.F.R. part 2635, Subpart F. Furthermore, a provision in the Procurement Integrity
Act, which applies equally to SGEs and regular employees, imposes disqualification and reporting
requirements on employees who participate in certain agency procurement matters and who receive
employment contacts from bidders or offerers in those procurements. See 41 U.S.C. § 423(c).
11
-------
waivers is more liberal than the standard for other employees, under 18 U.S.C.
§ 208(b)(l), which requires a determination that the financial interest is not so
substantial as to be deemed likely to affect the integrity of the employee's services.
Compare 5 C.F.R. § 2640.301 (requirements for waivers under section 208(b)(l));
5 C.F.R. § 2640.302 (requirements for waivers under section 208(b)(3)). Agencies
should remember that Congress reserved this special waiver authority only for those
SGEs who serve on advisory committees; SGEs who do not serve in connection with
a FACA committee may be granted a waiver only in accordance with section
208(b)(l). See Report of The President's Commission on Federal Ethics Law
Reform 30 (1989) (advisory committees warrant different approach under section 208
because FACA provides important safeguards and members only make nonbinding
recommendations).
SGEs serving on FACA committees also are covered by certain exemptions from
section 208 that have been promulgated by OGE, pursuant to 18 U.S.C. § 208(b)(2).
The most significant of these is 5 C.F.R. § 2640.203(g), which pertains to certain
financial interests arising from the SGE's outside employment. Specifically, this
exemption permits SGEs serving on FACA committees to participate in particular
matters of general applicability-such as the development of general regulations,
policies, or standardswhere the disqualifying interest arises from the SGE's non-
Federal employment or prospective employment. Agencies should note, however,
that this exemption is subject to several important limitations: (1) the matter cannot
have a "special or distinct effect" on either the SGE or the SGE's non-Federal
employer, other than as part of a class;19 (2) the exemption does not cover interests
arising from the ownership of stock in the employer; (3) and the non-Federal
employment must involve an actual employee/employer relationship, as opposed to
an independent contractor relationship (such as certain consulting positions). See
61 Federal Register at 66838. Furthermore, it should be emphasized that
section 2640.203(g) does not apply to all SGEs, but only to those serving on advisory
committees within the meaning of FACA.
19 When we promulgated this exemption, we explained the "special or distinct effect"
limitation as follows: "[I]t is not OGE's intent that the exemption apply only where the effect of the
matter on members within a class is identical. Normally, the matter would have a 'special or distinct
effect' when its impact would be unique to the employee or his employer, or where the effect would
be clearly out of proportion in comparison to the effect on other members of the class." 61 Federal
Register 66829,66839 (December 18,1996). Although the examples following section 2640.203(g)
do not specifically address the "special or distinct effect" limitation, guidance as to the meaning of that
phrase may be found in an example following another exemption that uses the same language. See 5
C.F.R. § 2640.203(b) (Example 2) (even though grant announcement open to all universities,
employee's university one of just two or three likely to receive grant because very few universities
known to have necessary facilities and equipment).
12
-------
Two other exemptions also specifically cover SGEs serving on FACA committees,
although these are much more narrow in scope. One covers certain SGEs
participating in matters pertaining to medical products, 5 C.F.R. § 2640.203(i), and
the other covers a very limited class of SGEs serving on certain advisory committees
of the Food and Drug Administration, 5 C.F.R. § 2640.2030). Additionally, OGE
expects to promulgate other exemptions in the near future, some of which may apply
to specific situations involving SGEs serving on certain advisory committees.
Another exemption, 5 C.F.R. § 2640.203(c), is not specifically limited to SGEs but
can be helpful in resolving certain issues particularly common among SGEs.
Section 2640.203(c) permits any employee to participate in a particular matter
affecting one campus of a multi-campus institution of higher education, where the
disqualifying interest arises from the individual's employment with a separate
campus of the same institution, provided that the individual has no multicampus
responsibilities at the institution. SGEs frequently are drawn from universities,
including large universities with multiple campuses. These SGEs may be called upon
to participate in official matterssuch as grants, contracts, applications, and other
particular mattersthat affect the financial interests of another campus in the same
university system where they are employed. Hence, section 2640.203(c) may have
particular utility for many SGEs.20
Finally, because divestiture of a disqualifying interest is one of the remedies for a
potential violation of section 208, it is important to note that SGEs are not eligible
for a Certificate of Divestiture (CD). A CD is a tax benefit that allows the deferral
or nonrecognition of capital gain where an employee divests a financial interest in
order to comply with conflict of interest requirements. However, Congress
specifically excluded SGEs from the definition of "eligible person," and
consequently SGEs may not take advantage of this benefit. 26 U.S.C. §
1043(b)(l)(A).
d. Supplementation of Federal Salary
18 U.S.C. § 209 prohibits Federal employees from receiving "any salary, or any
contribution to or supplementation of salary" from an outside source as compensation
for their Government services. SGEs, however, are completely exempt from this
prohibition. 18 U.S.C. § 209(c). This means, for example, that SGEs may continue
to collect their regular salary from an outside employer for days on which they are
20 Of course, SGEs also may take advantage of the other generally applicable exemptions
promulgated by OGE, including the exemptions for certain interests in publicly traded securities. See
5 C.F.R. part 2640, Subpart B.
13
-------
providing services to the Government (whether their Government service is paid or
unpaid).
SGEs should be advised, nevertheless, that there may be other restrictions on the
receipt of compensation in connection with the performance of their official duties.
For example, 5 C.F.R. § 2635.807 prohibits all Federal employees, including SGEs,
from receiving outside compensation for teaching, speaking, or writing when "the
activity is undertaken as part of the employee's official duties." 5 C.F.R.
§ 2635.807(a)(2)(i)(A). SGEs also are subject to the criminal bribery and illegal
gratuity statute, which prohibits, under certain circumstances, the receipt of anything
of value in connection with official acts. 18 U.S.C. § 201(b), (c).
Other Ethics Statutes
Apart from the five major criminal conflict of interest statutes in Chapter 11 of
Title 18, there are other ethics statutes, some of which apply to SGEs and some of
which do not.
As discussed above, SGEs are subject to the bribery and illegal gratuity statute,
18 U.S.C. § 201. SGEs also are covered by 5 U.S.C. § 7353, which prohibits the
acceptance of gifts from certain sources. Likewise, SGEs are subject to 5 U.S.C.
§ 7351, which prohibits certain gifts to official superiors and gifts from employees
receiving less pay. Both section 7353 and section 7351 are specifically implemented
by the Standards of Ethical Conduct for Employees of the Executive Branch,
discussed more fully below. See 5 C.F.R. part 2635, subparts B and C. Similarly,
SGEs are covered by the financial disclosure provisions of the Ethics in Government
Act of 1978, 5 U.S.C. app. §§ 101-111, as implemented by 5 C.F.R. part 2634,
discussed below. The restrictions of the Procurement Integrity Act, 41 U.S.C. § 423,
also apply to SGEs, as discussed above.21
Agencies also should note that SGEs are subject to 18 U.S.C. § 219, a criminal
statute that prohibits employees from acting as an agent of a foreign principal under
certain circumstances. Unlike regular employees, however, SGEs may be eligible
for a special exemption from the prohibitions of section 219, where the agency head
21 Also in the procurement area, we note that SGEs are covered by a provision in the Federal
Acquisition Regulation that generally prohibits the award of Federal contracts "to a Government
employee or to a business concern or other organization owned or substantially owned or controlled
by one or more government employees." 48 C.F.R. § 3.601 (a). However, unlike regular employees,
SGEs are covered by this prohibition only if: (1) the contract arises directly out of the SGE's official
activities; (2) the SGE is in a position to influence the award of the contract in his or her official
capacity; or (3) some other conflict of interest is determined to exist. 48 C.F.R. § 3.601 (b).
14
-------
certifies that employment of the SGE "is required in the national interest." 18 U.S.C.
§ 219(b). The Department of Justice also has held that SGEs may be subject to the
Emoluments Clause of the United States Constitution, U.S. Const., art. I, § 9, cl. 8,
which prohibits persons who "hold offices of profit or trust" in the Federal
Government from having any position in or receiving any payment from a foreign
government. See 15 Op. O.L.C. 65 (1991); 17 Op. O.L.C. 114 (1993). OGE does
not render opinions concerning section 219 or the Emoluments Clause, and agencies
are advised to consult with Department of Justice if they have any questions about
the application of these provisions to SGEs.
SGEs are not, however, subject to 5 U.S.C. app. § 501, which imposes limits on the
outside earned income of certain noncareer employees. See 5 U.S.C.
app. § 505(2)(B).22 Nor are SGEs covered by 5 U.S.C. app. § 502, which imposes
a number of restrictions on the outside activities of certain noncareer employees.
See id. Moreover, as discussed above, SGEs are not covered by the statutory
provision authorizing certificates of divestiture for the nonrecognition of capital gain
in cases where employees sell property to comply with ethics requirements. See 26
U.S.C. § 1043(b)(A). SGEs also are not subject to 26 U.S.C. § 4941, which imposes
tax sanctions on certain Government employees who engage in specified acts of
"self-dealing" in connection with a private foundation. See 26 U.S.C. § 4946(c).
Standards of Ethical Conduct for Employees
of the Executive Branch
Generally, SGEs are treated the same as regular employees under the Standards of
Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. part 2635. See
5 C.F.R. § 2635.102(h) ("employee" includes SGEs, and employee status not affected
by fact that SGE does not perform official duties on given day). There are, however,
a few notable exceptions. Only those exceptions, as well as a few other items of
particular relevance to SGEs, will be discussed below.23
a. Gifts from Outside Sources
22 Similarly, SGEs are not subject to the related prohibition on outside earned income
applicable to certain Presidential appointees, under Executive Order 12674, § 102 (1989), as modified
by Executive Order 12731 (1990). This provision, which covers certain "full-time non-career"
appointees, is inapplicable to SGEs for reasons similar to those discussed above with respect to the
applicability of Executive Order 12834.
23 See also the discussion above of 5 C.F.R. § 2635.702, in connection with the
representational activities of SGEs.
15
-------
SGEs, like all employees, are subject to 5 C.F.R. § 2635.202(a), which prohibits the
acceptance of gifts from a "prohibited source" and gifts given because of an
employee's official position. The definition of "prohibited source" includes any
person seeking official action from the employee's agency, doing or seeking to do
business with the employee's agency, conducting activities regulated by the
employee's agency, or having interests that may be substantially affected by the
employee's official duties; the definition also includes organizations the majority of
whose members fall within any of the aforementioned categories. 5 C.F.R.
§ 2635.203(d). From this definition, it should be immediately apparent that SGEs
pose unique issues, because many SGEs are employed by, or have substantial
professional and business relationships with, such prohibited sources. For this
reason, OGE originally proposed an exception, 5 C.F.R. § 2635.204(e)(2),
specifically to permit SGEs to accept various benefits resulting from outside business
or employment activities, where it is clear that such benefits are not offered or
enhanced because of the employee's official position. See 56 Federal Register
33777, 33782 (July 23,1991). Although the final version of section 2635.204(e)(2)
was broadened to cover all employees, not just SGEs, this exception continues to be
of particular importance to SGEs.
b. Presidential Appointees and Covered Noncareer Employees
5 C.F.R. § 2635.804 references certain outside earned income restrictions on
specified Presidential appointees and other covered noncareer employees. These
restrictions are inapplicable to SGEs.24
c. Outside Expert Witness Activities
Employees generally may not participate as an expert witness, other than on behalf
of the United States, in any proceeding before a Federal court or agency in which the
United States is a party or has a direct and substantial interest. 5 C.F.R.
§ 2635.805(a). This prohibition applies whether or not the employee receives
compensation for the activity. The Designated Agency Ethics Official may authorize
an employee to serve as an expert witness where such service is determined to be in
the interest of the Government or where the subject matter of the testimony is
determined to be unrelated to the employee's official duties. 5 C.F.R. § 2635.805(c).
For SGEs, the restrictions of section 2635.805 are substantially narrowed. With
respect to most SGEs, section 2635.805'applies only where the SGE actually
participated officially in the same proceeding or in the particular matter that is the
24 See footnote 22 and accompanying text.
16
-------
subject of the proceeding. 5 C.F.R. § 2635.805(a). A somewhat more restrictive
standard applies to a smaller class of SGEs who are deemed to have particularly
significant Federal positions, i.e., those either appointed by the President, serving on
a commission established by statute, or serving (or expected to serve) for more than
60 days in a period of 365 days. 5 C.F.R. § 2635.805(b). For this class of SGEs, the
restriction on expert service also applies to any proceeding in which the SGE's own
agency is a party or has a direct and substantial interest.
d. Outside Teaching. Speaking and Writing
5 C.F.R. § 2635.807(a) generally prohibits an employee from receiving outside
compensation for speaking, teaching or writing activities that relate to the employee' s
official duties. Such activities may relate to an employee's official duties in several
different ways: if the activity is performed as part of the employee's official duties
(discussed above in connection with supplementation of Federal salary); if the
invitation to engage in the activity was extended primarily because of the employee's
official position rather than expertise in the subject matter; if the invitation or offer
of compensation was extended by someone with interests that may be affected
substantially by the employee's duties; or if the information conveyed through the
activity draws substantially on nonpublic information obtained through the
employee's Government service. 5 C.F.R. § 2635.807(a)(2)(i)(A)-(D). SGEs, like
all employees, are prohibited from receiving compensation for activities that are
related to their official duties in any of these ways.
Additionally, pursuant to paragraph (E) of the definition of relatedness, there are
several other ways in which teaching, speaking and writing may relate to an
employee's official duties, and SGEs receive special treatment in this connection.
See 5 C.F.R. § 2635.807(a)(2)(i)(E). Under paragraph (E)(l), an activity is related
if it deals, in significant part, with any matter to which the employee is currently
assigned or has been assigned during the previous year. Under paragraph (E)(2), an
activity is related to an employee's official duties if it deals, in significant part, with
any ongoing or announced policy, program or operation of the employee's agency.
Moreover, under paragraph (E)(3), with respect to certain noncareer employees, an
activity is related to the employee's duties if it deals, in significant part, with "the
general subject matter area, industry, or economic sector primarily affected by the
programs and operations" of the employee's agency.
The scope of paragraph (E) is substantially narrowed, however, with respect to SGEs.
First, SGEs are completely exempt from paragraphs (E)(2) and (E)(3). See 5 C.F.R.
§ 2635.807(a)(2)(i)(E)(4). Thus, for example, nothing in
section 2635.807(a)(2)(i)(E) prohibits an SGE from accepting compensation for
17
-------
speaking, teaching, or writing simply because the activity relates to the programs or
the general subject area of the SGE's agency. Second, even with respect to
paragraph (E)(l), which covers matters in which the employee has been personally
involved during the past year, the restriction is limited. For all SGEs,
paragraph (E)( 1) is limited only to the matters to which the SGE is currently assigned
or had been assigned during his or her current appointment. Moreover, for SGEs
who have not served (or are not expected to serve) more than 60 days during the first
year of appointment or any subsequent one-year period of appointment, the
restriction is even narrower: paragraph (E)(l) applies only to "particular matters
involving specific parties" in which the SGE "has participated or is participating
personally and substantially." Thus, for example, nothing in section
2635.807(a)(2)(i)(E) prohibits an SGE from accepting compensation simply because
the activity pertains to a policy matter that does not involve specific parties, even
though the SGE may be assigned to such matter.25
Another provision in section 2635.807 has special significance for SGEs, even
though it applies equally to regular employees. There is a specific exception to the
ban on compensation for activities that are related to an employee's duties under
either section 2635.807(a)(2)(i)(B)(invitation primarily because of official position)
or section 2635.807(a)(2)(i)(E)(activity deals with personal assignments, etc.). This
exception permits employees to accept compensation, otherwise prohibited by these
two provisions, for teaching a course requiring multiple presentations offered as part
of: (a) the regularly established curriculum of various specified types of educational
institutions; or (b) educational or training programs sponsored and funded by Federal,
State, or local government. 5 C.F.R. § 2635.807(a)(3). Because SGEs so often are
employed by universities and other institutions of higher learning, on a full-time or
adjunct basis, this exception may have particular relevance.
25 As discussed above (under "Supplementation of Federal Salary"), however,
section 2635.807 still prohibits an SGE from receiving compensation for teaching, speaking or writing
activities that are undertaken as part of the employee's official duties.
18
-------
e. Fundraising
All employees, including SGEs, are equally subject to certain restrictions on personal
fundraising for nonprofit organizations. These include restrictions on the use of
official title, position and authority, and the solicitation of subordinates. 5 C.F.R.
§ 2635.808(c). Additionally, employees may not personally solicit funds or other
support from a person known by the employee to be a "prohibited source." (The
definition of prohibited source is discussed in more detail above, under "Gifts from
Outside Sources.") With respect to SGEs, however, this restriction is limited to a
narrower subset of the definition of prohibited source. SGEs are prohibited only
from personally soliciting persons whose interests may be affected substantially by
the performance or nonperformance of the SGE's official duties. 5 C.F.R.
§ 2635.808(c)(l)(ii).
Financial Disclosure
As a general rule, all SGEs must file either a public financial disclosure statement or
a confidential financial disclosure statement.
a. Public Reporting
SGEs are required to file a public financial disclosure report if they meet two criteria.
First, they must perform the duties of their office, or be expected to perform those
duties, for more than 60 days in the calendar year. See 5 C.F.R. § 2634.204. Second,
they must meet the pay conditions for public filing, i.e., they must be paid at least the
equivalent of 120% of the minimum rate of basic pay for GS-15 of the General
Schedule (or, if they are members of the uniformed service, they must be at or above
pay grade 0-7). See 5 C.F.R. § 2634.202(c). SGEs meeting both of these criteria file
the same new entrant, incumbent, and termination reports as regular employees.
Additionally, any prospective SGE who is nominated by the President to a position
requiring Senate confirmation-regardless of pay level or expected number of service
daysmay be required by the confirming committee to file an initial "nominee"
report. See 5 U.S.C. app. § 101(b)(l)-
Unlike regular employees, certain SGEs may be eligible for a special waiver of the
public availability of their financial disclosure reports. In "unusual circumstances,"
the Director of OGE may grant a waiver of the public availability requirement for a
financial disclosure report submitted by an SGE who has neither performed, nor is
expected to perform, official duties for more than 130 days in a calendar year.
5 C.F.R. § 2634.205(a). Such a waiver may be granted only if the Director
determines that the individual is able to provide services specially needed by the
19
-------
Government, it is unlikely that the SGE's outside employment or financial interests
will create a conflict of interest, and public financial disclosure is not otherwise
necessary. Id. Requests for such waivers are subject to a number of very specific
procedural requirements, including deadlines for submissions, so SGEs and their
agencies should consult 5 C.F.R. § 2634.205(b) carefully. Moreover, it should be
understood that such waivers are rarely granted.
b. Confidential Reporting
Generally, any SGE not required to file a public financial disclosure report must file
a confidential financial disclosure report. 5 C.F.R. § 2634.904(b). The SGE must
submit the standardized OGE Form 450 and any OGE-approved supplement, unless
the SGE's agency has received approval to use an alternative reporting system.
5 C.F.R. §§ 2634.907(standard form prescribed by OGE); § 2634.905(c) (OGE-
approved alternative). However, SGEs may not use the standardized OGE Optional
Form 450-A (Confidential Certificate of No New Interests). 5 C.F.R.
§ 2634.905(d)(l).
SGEs must file a new entrant report no later than 30 days after assuming the position
or office. 5 C.F.R. §§ 2634.903(b)(l). However, an SGE serving on an advisory
committee may be required to file even earlier, i.e., before any advice is rendered by
the individual and prior to the first meeting of the committee. 5 C.F.R.
§ 2634.903(b)(3).
SGEs do not file incumbent confidential reports. Instead, they are required to file an
additional new entrant report each year, upon their "reappointment or redesignation"
as an SGE for a new 365-day period. 5 C.F.R. § 2634.903(b)(l). In cases where an
SGE is appointed for a term in excess of one year, the agency still must at least
"redesignate" the individual as an SGE annually by estimating the number of days
the employee is expected to serve in the next 365-day period (as discussed in more
detail under "Definition of SGE" above). Ordinarily, this would mean that each SGE
with a multiyear term would file an additional new entrant report each year within 30
days of the anniversary of that employee's appointment date. However, OGE
recognizes that agencies with many SGEs might have to keep track of multiple filing
dates for these "follow-on" reports, corresponding to the multiple appointment
anniversaries of different SGEs. Therefore, in order to reduce administrative burden,
OGE permits agencies to specify one date each year on which to collect follow-on
new entrant reports from all SGEs (or discrete groups of SGEs, such as all members
of a given advisory committee) who serve for terms in excess of one year. OGE
DAEOgram DO-95-019 (April 11, 1995).
20
-------
Finally, an SGE may be excluded from any confidential reporting requirement, under
appropriate circumstances. An agency may exclude an SGE from such reporting
requirements where it determines, based on the duties of the SGE's position, that:
(1) the possibility of a real or apparent conflict of interest is remote, or (2) the SGE's
level of responsibility is sufficiently low to make reporting unnecessary. 5 C.F.R.
§ 2634.905(a),(b).
21
-------
Federal Advisory Committee Handbook
This Page Intentionally Left Blank
October 15, 2003
------- |