(a) Presidential advisory committee follow-up report. Within one year after a Presidential advisory committee has submitted a public report to the President, a follow-up report required by section 6(b) of the Act must be prepared and transmitted to the Congress detailing the disposition of the advisory committee's recommendations. The Secretariat shall assure that these reports are prepared and transmitted to the Congress as directed by the President, either by the President's delegate, by the agency responsible for providing support to a Presidential advisory committee, or by the responsible agency or organization designated in the charter of the Presidential advisory committee pursuant to Sec. 102-3.75(a)(10). In performing this function, GSA may solicit the assistance of the President's delegate, the Office of Management and Budget (OMB), or the responsible agency Committee Management Officer (CMO), as appropriate. Reports shall be consistent with specific guidance provided periodically by the Secretariat.
(b) Annual comprehensive review of Federal advisory committees. To conduct an annual comprehensive review of each advisory committee as specified in section 7(b) of the Act, GSA requires Federal agencies to report information on each advisory committee for which a charter has been filed in accordance with Sec. 102-3.70, and which is in existence during any part of a Federal fiscal year. Committee Management Officers (CMOs), Designated Federal Officers (DFOs), and other responsible agency officials will provide this information by data filed electronically with GSA on a fiscal year basis, using a Governmentwide shared Internet-based system that GSA maintains. This information shall be consistent with specific guidance provided periodically by the Secretariat. The preparation of these electronic submissions by agencies has been assigned interagency report control number (IRCN) 0304-GSA-AN.
(c) Annual report of closed or partially-closed meetings. In accordance with section 10(d) of the Act, advisory committees holding closed or partially-closed meetings must issue reports at least annually, setting forth a summary of activities and such related matters as would be informative to the public consistent with the policy of 5 U.S.C. 552(b).
(d) Advisory committee reports. Subject to 5 U.S.C. 552, 8 copies of each report made by an advisory committee, including any report of closed or partially-closed meetings as specified in paragraph (c) of this section and, where appropriate, background papers prepared by experts or consultants, must be filed with the Library of Congress as required by section 13 of the Act for public inspection and use at the location specified Sec. 102-3.70(a)(3).
(e) Advisory committee records. Official records generated by or for an advisory committee must be retained for the duration of the advisory committee. Upon termination of the advisory committee, the records must be processed in accordance with the Federal Records Act (FRA), 44 U.S.C. Chapters 21, 29-33, and regulations issued by the National Archives and Records Administration (NARA) (see 36 CFR parts 1220, 1222, 1228, and 1234), or in accordance with the Presidential Records Act (PRA), 44 U.S.C. Chapter 22.
Sec. Appendix A to Subpart D 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. With some exceptions, 102-3.140, 102- 1. Must all advisory committee and A. No. Advisory committee
advisory committee 3.145(a), 102- subcommittee meetings be open to meetings may be closed
meetings are open to the 3.155 the public? when appropriate, in
public accordance with the
exemption(s) for closure
contained in the
Government in the
Sunshine Act, 5 U.S.C.
552b(c). (i)
Subcommittees that
report to a parent
advisory committee, and
not directly to a
Federal officer or
agency, are not required
to open their meetings
to the public or comply
with the procedures in
the Act for announcing
meetings. (ii) However,
agencies are cautioned
to avoid excluding the
public from attending
any meeting where a
subcommittee develops
advice or
recommendations that are
not expected to be
reviewed and considered
by the parent advisory
committee before being
submitted to a Federal
officer or agency. These
exclusions may run
counter to the
provisions of the Act
requiring
contemporaneous access
to the advisory
committee deliberative
process.----------------------------------------------------------------------------------------------------------------
II. Notices must be 102-3.150 1. Can agencies publish a single A. Yes, agencies may
published in the Federal Federal Register notice announcing publish a single notice
Register announcing multiple advisory committee announcing multiple
advisory committee meetings? meetings so long as
meetings these notices contain
all of the information
required by Sec. 102-
(i) ``Blanket
notices'' should not
announce meetings so far
in advance as to prevent
the public from
adequately being
informed of an advisory
committee's schedule.
(ii) An agency's Office
of General Counsel
should be consulted
where these notices
include meetings that
are either closed or
partially closed to the
public.----------------------------------------------------------------------------------------------------------------
III. Although certain 102-3.170 1. May an agency require the use of A. No. Section 10(b) of
advisory committee its internal FOIA procedures for FACA provides that:
records may be withheld access to advisory committee Subject to section 552
under the Freedom of records that are not exempt from of title 5, United
Information Act (FOIA), release under FOIA? States Code, the
as amended, 5 U.S.C. 552, records, reports,
agencies may not require transcripts, minutes,
the use of FOIA appendixes, working
procedures for records papers, drafts, studies,
available under section agenda, or other
10(b) of FACA documents which were
made available to or
prepared for or by each
advisory committee shall
be available for public
inspection and copying
at a single location in
the offices of the
advisory committee or
the agency to which the
advisory committee
reports until the
advisory committee
(i) The
purpose of section 10(b)
of the Act is to provide
for the contemporaneous
availability of advisory
committee records that,
when taken in
conjunction with the
ability to attend
advisory committee
meetings, provide a
meaningful opportunity
to comprehend fully the
work undertaken by the
advisory committee. (ii)
Although advisory
committee records may be
withheld under the
provisions of FOIA if
there is a reasonable
expectation that the
records sought fall
within the exemptions
contained in section
552(b) of FOIA, agencies
may not require members
of the public or other
interested parties to
file requests for non-
exempt advisory
committee records under
the request and review
process established by
section 552(a)(3) of
FOIA. (iii) Records
covered by the
exemptions set forth in
section 552(b) of FOIA
may be withheld. An
opinion of the Office of
Legal Counsel (OLC),
U.S. Department of
Justice concludes that:
FACA requires disclosure
of written advisory
committee documents,
including predecisional
materials such as
drafts, working papers,
and studies. The
disclosure exemption
available to agencies
under exemption 5 of
FOIA for predecisional
documents and other
privileged materials is
narrowly limited in the
context of FACA to
privileged ``inter-
agency or intra-agency''
documents prepared by an
agency and transmitted
to an advisory
committee. The language
of the FACA statute and
its legislative history
support this restrictive
application of exemption
5 to requests for public
access to advisory
committee documents.
Moreover, since an
advisory committee is
not itself an agency,
this construction is
supported by the express
language of exemption 5
which applies only to
inter-agency or intra-
agency materials. (iv)
Agencies first should
determine, however,
whether or not records
being sought by the
public fall within the
scope of FACA in
general, and section
10(b) of the Act in
particular, prior to
applying the available
exemptions under FOIA.
(See OLC Opinion 12 Op.
O.L.C. 73, dated April
29, 1988, which is
available from the
Committee Management
Secretariat (MC),
General Services
Administration, 1800 F
Street, NW., Washington,
DC 20405-0002.)----------------------------------------------------------------------------------------------------------------
IV. Advisory committee 102-175(e) 1. How must advisory committee A. In order to ensure
records must be managed records be treated and preserved? proper records
in accordance with the management, the
Federal Records Act Committee Management
(FRA), 44 U.S.C. Chapters Officer (CMO),
21, 29-33, and Designated Federal
regulations issued by the Officer (DFO), or other
National Archives and representative of the
Records Administration advisory committee, in
(NARA) (see 36 CFR parts coordination with the
1220, 1222, 1228, and agency's Records
1234), or the Management Officer,
Presidential Records Act should clarify upon the
(PRA), 44 U.S.C. Chapter establishment of the
22 advisory committee
whether its records will
be managed in accordance
with the FRA or the PRA.
B. Official records
generated by or for an
advisory committee must
be retained for the
duration of the advisory
committee. Responsible
agency officials are
encouraged to contact
their agency's Records
Management Officer or
NARA as soon as possible
after the establishment
of the advisory
committee to receive
guidance on how to
establish effective
records management
practices. Upon
termination of the
advisory committee, the
records must be
processed in accordance
with the FRA and
regulations issued by
NARA, or in accordance
with the PRA.
C. The CMO, DFO, or other
representative of an
advisory committee
governed by the FRA, in
coordination with the
agency's Records
Management Officer, must
contact NARA in
sufficient time to
review the process for
submitting any necessary
disposition schedules of
the advisory committee's
records upon
termination. In order to
ensure the proper
disposition of the
advisory committee's
records, disposition
schedules need to be
submitted to NARA no
later than 6 months
before the termination
of the advisory
committee.
D. For Presidential
advisory committees
governed by the PRA, the
CMO, DFO, or other
representative of the
advisory committee
should consult with the
White House Counsel on
the preservation of any
records subject to the
PRA, and may also confer
with NARA officials.----------------------------------------------------------------------------------------------------------------