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.----------------------------------------------------------------------------------------------------------------