Code of Federal Regulations (alpha)

CFR /  Title 41  /  Part 102-3  /  Sec. 102-3.130 What policies apply to the appointment, and compensationand 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 (DFO) 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 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.

(l) 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 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.

Sec. Appendix A to Subpart C 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 Question(s) Guidance----------------------------------------------------------------------------------------------------------------I. FACA does not specify 102-3.105, 102- 1. Does the appointment of an A. No. Each agency head

the manner in which 3.130(a) advisory committee member may specify those

advisory committee necessarily result in a lengthy policies and procedures,

members and staff must be process? consistent with the Act

appointed and this part, or other

specific authorizing

statute, governing the

appointment of advisory

committee members and

staff.

B. Some factors that

affect how long the

appointment process

takes include: (i)

Solicitation of

nominations; (ii)

Conflict of interest

clearances; (iii)

Security or background

evaluations; (iv)

Availability of

candidates; and (v)

Other statutory or

administrative

requirements.

C. In addition, the

extent to which agency

heads have delegated

responsibility for

selecting members varies

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 102-3.130(a) 1. Can an agency head select for A. The answer to question

the final authority for membership on an advisory committee 1 is yes. Organizations

selecting advisory from among nominations submitted by may propose for

committee members, unless an organization? membership individuals

otherwise provided for by to represent them on an

a specific statute or advisory committee.

Presidential directive However, the agency head

establishing the

advisory committee, or

other appointing

authority, retains the

final authority for

selecting all members.

2. If so, can different persons B. The answer to question

represent the organization at 2 also is yes.

different meetings? Alternates may represent

an appointed member with

the approval of the

establishing agency,

where the agency head is

the appointing

authority.----------------------------------------------------------------------------------------------------------------III. An agency may 102-3.130(d), 102- 1. May members and staff be A. The answer to question

(i) However,

committee members and 3.130(g) duties on an advisory committee? FACA limits compensation

staff, and also employ 2. Are the guidelines the same for for advisory committee

experts and consultants compensating both members and members and staff to the

staff? rate for level IV of the

3. May experts and consultants be Executive Schedule,

employed to perform other advisory unless higher rates

committee work? expressly are allowed by

other statutes. (ii)

Although FACA provides

for compensation

guidelines, the Act does

not require an agency to

compensate its advisory

committee members.

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

calendar year does not

exceed the rate for

level IV of the

Executive Schedule, with

appropriate proration

for a partial calendar

year.

C. The answer to question

3 is yes. Other work not

part of the duties of

advisory committee

members or staff may be

performed 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 Management

(OPM). (See 5 CFR part

304.)----------------------------------------------------------------------------------------------------------------IV. Agency heads are 102-3.105(h) 1. Are all advisory committee A. The answer to question

responsible for ensuring members subject to conflict of 1 is no. Whether an

that the interests and interest statutes and other Federal advisory committee

affiliations of advisory ethics rules? member is subject to

committee members are 2. Who should be consulted for Federal ethics rules is

reviewed for conformance guidance on the proper application dependent on the

with applicable conflict of Federal ethics rules to advisory member's status. The

of interest statutes and committee members? determination of a

other Federal ethics member's status on an

rules. advisory committee 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 statutes, 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

committee in order to

apply Federal ethics

rules properly.----------------------------------------------------------------------------------------------------------------V. An agency head may 102-3.105(c), 102- 1. Must an agency's CMO and each A. The answer to question

delegate responsibility 3.105(i) advisory committee DFO be appointed 1 is no. The agency head

for appointing a by the agency head? may delegate

Committee Management responsibility for

Officer (CMO) or appointing the CMO and

Designated Federal DFOs. However, these

Officer (DFO); however, appointments, including

there may be only one CMO alternate selections,

for each agency. should be documented

consistent with the

agency's policies and

procedures.

2. May an agency have more than one B. The answer to question

CMO? 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 additional

positions, including

those in its

subcomponents, which are

subordinate to the CMO's

agencywide

responsibilities and

functions.----------------------------------------------------------------------------------------------------------------VI. FACA is the principal 102-3.125(c) 1. Do other statutes or regulations A. Yes. While the Act

statute pertaining to affect the way an agency carries provides a general

advisory committees. out its advisory committee framework for managing

However, other statutes management program? advisory committees

may impact their use and Governmentwide, other

operations. factors may affect how

advisory committees are

managed. These include:

(i) The statutory or

Presidential authority

used to establish an

advisory committee; (ii)

A statutory limitation

placed on an agency

regarding its annual

expenditures for

advisory committees;

(iii) Presidential or

agency management

directives; (iv) The

applicability of

conflict of interest

statutes and other

Federal 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

management of Federal

records.----------------------------------------------------------------------------------------------------------------