[Code of Federal Regulations] [Title 41, Volume 3] [Revised as of January 1, 2007] From the U.S. Government Printing Office via GPO Access [CITE: 41CFR102-3.185] [Page 35-36] TITLE 41--PUBLIC CONTRACTS AND PROPERTY MANAGEMENT CHAPTER 102--FEDERAL MANAGEMENT REGULATION PART 102 3_FEDERAL ADVISORY COMMITTEE MANAGEMENT--Table of Contents Subpart E_How Does This Subpart Apply to Advice or Recommendations Provided to Agencies by the National Academy of Sciences or the National Academy of Public Administration? Sec. 102-3.185 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 academy to an agency must be subject to both actual management and control by that academy and not by the agency. (c) Funding agreements. Agencies may enter into contracts, grants, and cooperative agreements with NAS or NAPA that are consistent with the requirements of this subpart to obtain advice or recommendations from such academy. These funding agreements require, and agencies may rely upon, a written certification by an authorized representative of the academy provided to the agency upon delivery to the agency of each report containing advice or recommendations required under the agreement that: (1) The academy has adopted policies and procedures that comply with the applicable requirements of section 15 of the Act; and (2) To the best of the authorized representative's knowledge and belief, these policies and procedures substantially have been complied with in performing the work required under the agreement. Appendix A to Subpart E of Part 102-3--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: ---------------------------------------------------------------------------------------------------------------- Key points and principles Section(s) Question(s) Guidance ---------------------------------------------------------------------------------------------------------------- I. Section 15 of the Act 102-3.185(a) 1. May agencies rely upon an academy A. Yes. NAS and NAPA are allows the National certification regarding compliance completely separate Academy of Sciences (NAS) with section 15 of the Act if organizations. Each is and the National Academy different policies and procedures independently chartered of Public Administration are adopted by NAS and NAPA? by the Congress for (NAPA) to adopt separate different purposes, and procedures for complying Congress has recognized with FACA that the two organizations are structured and operate differently. Agencies should defer to the discretion of each academy to adopt policies and procedures that will enable it to comply substantially with the provisions of section 15 of the Act that apply to that academy. ---------------------------------------------------------------------------------------------------------------- [[Page 36]] II. Section 15 of the Act 102-3.185(c) 1. Can an agency enter into a A. Yes, if the members of allows agencies to enter funding agreement with an academy the committee are into funding agreements which provides for the preparation selected by the academy with NAS and NAPA without of one or more academy reports and if the committee's the academies' committees containing advice or meetings, deliberations, being ``managed'' or recommendations to the agency, to and the preparation of ``controlled'' be developed by the academy by use reports are all of a committee created by the controlled by the academy, without subjecting an academy. Under these academy to ``actual management or circumstances, neither control'' by the agency? the existence of the funding agreement nor the fact that it contemplates use by the academy of an academy committee would constitute actual management or control of the committee by the agency. ---------------------------------------------------------------------------------------------------------------- PART 102 4_NONDISCRIMINATION IN FEDERAL FINANCIAL ASSISTANCE PROGRAMS [RESERVED]