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 the requirements of the Act and this part.
Sec. 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: ----------------------------------------------------------------------------------------------------------------
Key points and principles Section(s) Question(s) Guidance----------------------------------------------------------------------------------------------------------------I. FACA applies to advisory 102-3.25, 102- 1. A local citizens group wants to A. The answer to
committees that are either 3.40(d), 102- meet with a Federal official(s) questions 1, 2, and 3
``established'' or ``utilized'' 3.40(f) to help improve the condition of is yes, if the agency
by an agency. a forest's trails and quality of does not either
concessions. May the Government ``establish'' or
meet with the group without ``utilize'' (exercise
chartering the group under the ``actual management or
Act? control'' over) the
(i) Although
meetings of external groups where there is no precise
advice may be offered to the legal definition of
Government during the course of ``actual management or
discussions? control,'' the
3. May an agency official following factors may
participate in meetings of groups be used by an agency
or organizations as a member to determine whether
without chartering the group or not a group is
under the Act? ``utilized'' within
4. Is the Act applicable to the meaning of the
meetings between agency officials Act: (a) Does the
and their contractors, licensees, agency manage or
or other ``private sector program control the group's
partners?'' membership or
otherwise 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 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- 1. If, during a public meeting of A. No, the public
among all or some of the 3.40(d), 102- the ``town hall'' type called by meeting need not be
(i) A group
or similar forum does not audience is achieving consensus, must either be
automatically invoke FACA. or a common point of view, is ``established'' or
this an indication that the ``utilized'' by the
meeting is subject to the Act and executive branch in
must be stopped? 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
elements of either
``management'' or
``control'' present or
intended.
III. Meetings between a Federal 102-3.40(e) 1. May an agency official meet A. The answer to
official(s) and a collection of with a number of persons questions 1 and 2 is
individuals where advice is collectively to obtain their yes. The Act applies
sought from the attendees on an individual views without only where a group is
individual basis are not violating the Act? established or
subject to the Act. 2. Does the concept of an utilized to provide
``individual'' apply only to advice or
``natural persons?'' recommendations ``as a
group.'' (i) A mere
assemblage or
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
State, local, and tribal covering elected officials of activities covered by
elected officials are not State, local, and tribal the exclusion from the
subject to the Act. governments acting in their Act for
official capacities also intergovernmental
applicable to associations of activities should be
State officials? construed broadly to
facilitate Federal/
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, 2
U.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- 1. Are ``operational committees'' A. No, so long as the
established under the Act may 3.40(k) subject to the Act, even if they operational functions
perform advisory functions may engage in some advisory performed by the
only, unless authorized to activities? committee constitute
perform ``operational'' duties the ``primary''
by the Congress or by mission of the
Presidential directive. committee. Only
committees established
or utilized by the
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.----------------------------------------------------------------------------------------------------------------
VI. Committees authorized by the 102-3.40(k) 1. What characteristics are common A. In answer to
Congress in law or by to ``operational committees?'' question 1, non-
Presidential directive to 2. A committee created by the advisory, or
perform primarily Congress by statute is ``operational''
``operational'' functions are responsible, for example, for committees generally
not subject to the Act. developing plans and events to have the following
commemorate the contributions of characteristics: (i)
wildlife to the enjoyment of the Specific functions and/
Nation's parks. Part of the or authorities
committee's role includes provided by the
providing advice to certain Congress in law or by
Federal agencies as may be Presidential
necessary to coordinate these directive; (ii) The
events. Is this committee subject ability to make and
to FACA? implement
traditionally
Governmental
decisions; and (iii)
The authority to
perform specific 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.----------------------------------------------------------------------------------------------------------------