[Code of Federal Regulations] [Title 41, Volume 3] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 41CFR102-3.40] [Page 15-19] TITLE 41--PUBLIC CONTRACTS AND PROPERTY MANAGEMENT CHAPTER 102--FEDERAL MANAGEMENT REGULATION PART 102-3--FEDERAL ADVISORY COMMITTEE MANAGEMENT--Table of Contents Subpart A--What Policies Apply to Advisory Committees Established Within the Executive Branch? Sec. 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 [[Page 16]] 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 the requirements of the Act and this part. Appendix A to Subpart A of Part 102-3--Key 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: [[Page 17]] Appendix A to Subpart A -------------------------------------------------------------------------------------------------------------------------------------------------------- Key points and principles Section(s) Question(s) Guidance -------------------------------------------------------------------------------------------------------------------------------------------------------- I. FACA applies to advisory 102-3.25, 102-3.40(d), 102-3.40(f) 1. A local citizens group wants to A. The answer to questions 1, 2, committees that are either meet with a Federal official(s) to and 3 is yes, if the agency does ``established'' or ``utilized'' help improve the condition of a not either ``establish'' or by an agency. forest's trails and quality of ``utilize'' (exercise ``actual concessions. May the Government meet management or control'' over) with the group without chartering the group. (i) Although there is the group under the Act? no precise legal definition of 2. May an agency official attend ``actual management or meetings of external groups where control,'' the following factors advice may be offered to the may be used by an agency to Government during the course of determine whether or not a group discussions? is ``utilized'' within the 3. May an agency official participate meaning of the Act: (a) Does the in meetings of groups or agency manage or control the organizations as a member without group's membership or otherwise chartering the group under the Act? determine its composition? (b) 4. Is the Act applicable to meetings Does the agency manage or between agency officials and their control the group's agenda? (c) contractors, licensees, or other Does the agency fund the group's ``private sector program partners?'' 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 indistinguishable from an advisory committee established by the agency. B. The answer to question 4 is no. Agencies often meet with contractors and licensees, individually and as a group, to discuss specific matters involving a contract's solicitation, issuance, and implementation, or an agency's efforts to ensure compliance with its regulations. Such interactions are not subject to the Act because these groups are not ``established'' or ``utilized'' for the purpose of obtaining advice or recommendations. -------------------------------------------------------------------------------------------------------------------------------------------------------- II. The development of consensus 102-3.25, 102-3.40(d), 102-3.40(f) 1. If, during a public meeting of the A. No, the public meeting need among all or some of the ``town hall'' type called by an not be stopped. (i) A group must attendees at a public meeting agency, it appears that the audience either be ``established'' or or similar forum does not is achieving consensus, or a common ``utilized'' by the executive automatically invoke FACA. point of view, is this an indication branch in order for the Act to that the meeting is subject to the apply. (ii) Public meetings Act and must be stopped? 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 elements of either ``management'' or ``control'' present or intended. [[Page 18]] III. Meetings between a Federal 102-3.40(e) 1. May an agency official meet with a A. The answer to questions 1 and official(s) and a collection of number of persons collectively to 2 is yes. The Act applies only individuals where advice is obtain their individual views where a group is established or sought from the attendees on an without violating the Act? utilized to provide advice or individual basis are not 2. Does the concept of an recommendations ``as a group.'' subject to the Act. ``individual'' apply only to (i) A mere assemblage or ``natural persons?'' collection of individuals 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 persons.'' Where the group consists of representatives of various existing organizations, each representative individually may provide advice on behalf of that person's organization without violating the Act, if those organizations themselves are not ``managed or controlled'' by the agency. -------------------------------------------------------------------------------------------------------------------------------------------------------- IV. Meetings between Federal, 102-3.40(g) 1. Is the exclusion from the Act A. Yes. The scope of activities State, local, and tribal covering elected officials of State, covered by the exclusion from elected officials are not local, and tribal governments acting the Act for intergovernmental subject to the Act. in their official capacities also activities should be construed applicable to associations of State broadly to facilitateFederal/ officials? State/local/tribal discussions on shared intergovernmental program responsibilities or administration. Pursuant to a Presidential delegation, 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 Memorandum M- 95-20, dated September 21, 1995, published at 60 FR 50651 (September 29, 1995), and which is available from the Committee Management Secretariat (MC), General Services Administration, 1800 F Street, NW, Washington, DC 20405-0002). -------------------------------------------------------------------------------------------------------------------------------------------------------- V. Advisory committees 102-3.30(e), 102-3.40(k) 1. Are ``operational committees'' A. No, so long as the operational established under the Act may subject to the Act, even if they may functions performed by the perform advisory functions engage in some advisory activities? committee constitute the only, unless authorized to ``primary'' mission of the perform ``operational'' duties committee. Only committees by the Congress or by established or utilized by the Presidential directive. executive branch in the interest of obtaining advice or recommendations are subject to the Act. However, without specific authorization by the Congress or direction by the President, Federal functions (decisionmaking or operations) cannot be delegated to, or assumed by, non-Federal individuals or entities. -------------------------------------------------------------------------------------------------------------------------------------------------------- [[Page 19]] VI. Committees authorized by the 102-3.40(k) 1. What characteristics are common to A. In answer to question 1, non- Congress in law or by ``operational committees?'' advisory, or ``operational'' Presidential directive to 2. A committee created by the committees generally have the perform primarily Congress by statute is responsible, following characteristics: (i) ``operational'' functions are for example, for developing plans Specific functions and/or not subject to the Act. and events to commemorate the authorities provided by the contributions of wildlife to the Congress in law or by enjoyment of the Nation's parks. Presidential directive; (ii) The Part of the committee's role ability to make and implement includes providing advice to certain traditionally Governmental Federal agencies as may be necessary decisions; and (iii) The to coordinate these events. Is this authority to perform specific committee subject to FACA? tasks to implement a Federal program. B. Agencies are responsible for determining whether or not a committee primarily provides advice or recommendations and is, therefore, subject to the Act, or is primarily ``operational'' and not covered by FACA. C. The answer to question 2 is no. The committee is not subject to the Act because: (i) Its functions are to plan and implement specific tasks; (ii) The committee has been granted the express authority by the Congress to perform its statutorily required functions; and (iii) Its incidental role of providing advice to other Federal agencies is secondary to its primarily operational role of planning and implementing specific tasks and performing statutory functions. -------------------------------------------------------------------------------------------------------------------------------------------------------- [[Page 20]]