Establishing and Managing Federal Advisory Committees Index Laws, regulations, and directives Federal Advisory Committee Act of 1972, as amended General Services Administration Regulation: 41 CFR Part 101-6 Department Directives: DR 1041-1 Forest Service Manual: FSM 1350 Other authorities Federal Advisory Committee Act basics Definitions Policy Major requirements of the Act—an overview How is a Federal advisory committee established? Statutory or nondiscretionary--documents and clearance Discretionary--documents and clearance What information should be in the charter? What information should be in the charter decision memo? What information should be in the civil rights impact analysis? What information should be in an appointment decision memo? Who manages the Federal advisory committee? What, when, and where should announcements about committee establishment and meetings be made to the general public? Who can attend Federal advisory committee meetings? What records must be kept? Can Federal advisory committee members be reimbursed for their work on the committee? Is a Federal advisory committee expected to publish a report? What Government Offices other than the General Services Administration have responsibilities in managing advisory committees? What Forest Service Federal advisory committees are currently chartered? What Forest Service Federal advisory committees are in the process of being established?

Contact: Doris Celarier Office of Communication 202-205-1020

Laws, regulations, and directives: four levels of law, regulation, and directive Federal Advisory Committee Act of 1972, as amended [link] http://policyworks.gov/org/main/mc/index-la.htm • Recognizes the merits of seeking advice from the public • Governs the establishment, operation, and termination of committees within the executive branch of the Federal government • Defines what constitutes a Federal advisory committee • Ensures that Congress is kept informed about the number, purpose, membership, activities, and cost of advisory committees General Services Administration Regulations 41 CFR Parts 101-6 Federal Advisory Committee Management [link] http://policyworks.gov/org/main/mc/index-la.htm [Revised rule, 41 CFR Parts 101-6 and 102-3 is in final draft waiting for Administration clearance. The proposed rule may be accessed at the GSA policyworks site.] • Provides guidance on the threshold issue of what constitutes an advisory committee and clarifies the limits of the Act • Defines the policies, establishes minimum requirements, and provides guidance to Federal officers and agencies for the establishment, operation, administration, and duration of advisory committees Departmental Regulation 1041-1 (USDA Directive: Advisory Committee Management) [link] http:/www.usda.gov/ocio/directives/DR • Sets policy for Department advisory committees • Provides procedures for establishment, operation, duration, and accessibility to the public of advisory committees under the jurisdiction of the Department Forest Service Manual 1350 (Forest Service Directive: Committee Management) [link] http://fsweb.wo.fs.fed.us/directives/fsm/1300 • Sets policy for Forest Service committee establishment, use, and administration • Provides procedures for establishing and operating Forest Service advisory committees

Other authorities [link] Freedom of Information Act Privacy Act of 1974 Sunshine in the Government Act Executive Order No 12838: Termination and Limitation of Federal Advisory Committees Circular No. A-135: Management of Federal Advisory Committees http://policyworks.gov/org/main/mc/index-la.htm

Federal Advisory Committee Act basics The Federal Advisory Committee Act of 1972, as amended, endorsed the usefulness of advisory committees, but voiced at the same time apprehension about the committee system as it existed at the time. Through the Act, the Congress authorized the establishment of a system governing the creation and operation of advisory committees in the Executive branch of the Federal Government. Policy governing the use of advisory committees* The policy to be followed by Federal departments, agencies, and commissions, consistent with the Federal Advisory Committee Act, as amended, is as follows: •

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• •

When to establish a committee. An advisory committee shall be established only when it is essential to the conduct of agency business. Decision criteria include whether committee deliberations will result in the creation or elimination of, or change in regulations, guidelines, or rules affecting agency business; whether the information to be obtained is already available through another advisory committee or source within the Federal Government; whether the committee will make recommendations resulting in significant improvements in service or reductions in cost; or whether the committee’s recommendations will provide an important additional perspective or viewpoint impacting agency operations Termination. An advisory committee shall be terminated whenever the stated objectives of the committee have been accomplished; the subject matter or work of the committee has become obsolete by the passing of time or the assumption of the committee’s main functions by another entity within the Federal Government; or the agency determines that the cost of operation is excessive in relation to the benefits accruing to the Federal Government Balanced membership. An advisory committee shall be balanced in its membership in terms of the points of view represented and the functions to be performed Open meetings. An advisory committee shall be open to the public in its meetings except in those circumstances where a closed meeting shall be determined proper and consistent with the provisions in the Government in the Sunshine Act

* 41 CFR section 101-6.1002 Policy.

Definitions* •

Advisory committee subject to the Act means any committee, board, commission, council, conference, panel, task force, or other similar group, …which is established by statute, or established or utilized by the President or by any agency official, for the purpose of obtaining advice or recommendations on issues or policies which are within the scope of his or her responsibilities (41 CFR section 101-6.1003 Definitions)

•

Designated Federal Officer (“DFO”) is the Federal officer or employee designated by the agency head for each advisory committee for which the agency head is responsible (41 CFR section 101-6.1009 and 1019)

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Discretionary advisory committee (nonstatutory committee) means any advisory committee that is established under the authority of an agency head or authorized by statute. An advisory committee referenced in general (nonspecific) authorizing language or Congressional committee report language is discretionary, and its establishment or termination is within the legal discretion of an agency head (FSM 1350.5)

•

Non-discretionary advisory committee (statutory or Presidential committee) means any advisory committee either required by statute or by Presidential directive. A non-discretionary advisory committee required by statute generally is identified specifically in a statute by name, purpose, or functions, and its establishment or termination is beyond the legal discretion of an agency head (FSM 1350.5)

*41 CFR section 101-6 and FSM 1350.5.

Major requirements of the system described in the Act—an overview* • • • • • • • • • • •

Agencies must establish uniform administrative guidelines and management controls that are consistent with the Act and the GSA regulations Agencies must maintain systematic information on the nature, functions, and operations of their advisory committees Agencies must designate committee management officers who are responsible for exercising controls and supervision over the committee management program Committees must be chartered before they can meet or conduct any business. These charters must be renewed every two years or they will be terminated under the sunset provision of Section 14 of the Act, unless otherwise provided by law Advisory committee memberships are to be fairly balanced in terms of the point of view represented and the functions to be performed Advisory committee meetings are required to be open to the public, with limited exceptions. Meeting notices and agendas must be published in the Federal Register to accommodate public participation A Designated Federal Official must approve all meetings and agendas and attend meetings Detailed minutes must be kept containing date and location of the meetings, a record of the persons present, a complete and accurate description of matters discussed and conclusions reached All documents must be available for public inspection and copying until the committee ceases to exist Records must be maintained that fully disclose costs for the purpose of General Accounting Office audits and the annual report Committees will be terminated as soon as the stated objectives have been completed or the committee’s work has become obsolete, or the cost of the operation is excessive in relation to the benefits

*Taken from General Services Administration training materials.

How is a Federal advisory committee established? Statutory or Presidential (nondiscretionary) Committee Charter 1. Prepare charter documents • Decision memo [link to sample] • Charter [Link to sample] • Civil rights impact analysis [Link to sample] 2. Clear through the Forest Service and Department Forest Service Department 3. Obtain Secretary’s approval and signature 4. File with Library of Congress and notify the Chairs of the House and Senate Standing Committees with oversight responsibilities for the committee’s formation (Department responsibility) Member appointment 1. Prepare member appointment documents • Appointment decision memo • Nominee-provided background information on agency form (AD-755) [Link] • Information memo to accompany letters and certificates of appointment for selected members • Letter of appointment for each selected member • Certificate of appointment for each selected member 2. Clear appointment documents • Forest Service • Department 3. Obtain the Secretary’s approval and signature on decision and information memos and letters and certificates of appointment 4. Mail or present letter and certificate of appointment to each member

Discretionary Committee (Department or Agency authority or Committee Authorized by Congress) Charter 1. Prepare charter documents • Decision memo [link to sample] • Charter [Link to sample] • Civil rights impact analysis [Link to sample] • Federal Register notice [link to sample] 2. Clear through the Forest Service (AD-868) and Department (AD-116) • Forest Service • Department (in order of listing): 3. Obtain online GSA concurrence (Department responsibility) 4. Obtain Secretary’s approval and signature 5. File with Library of Congress and notify the Chairs of the House and Senate Standing Committee with oversight responsibilities for the committee’s formation, and the General Services Administration Committee Management Secretariat (Department responsibility) Member appointment 1. Prepare member appointment documents • Appointment decision memo • Nominee-provided background information on agency form (AD-755) [link] • Information memo to accompany letters and certificates of appointment for selected members • Letter of appointment for each selected member • Certificate of appointment for each selected member 2. Clear appointment documents 3. Obtain the Secretary’s approval and signature on decision and information memos and letters and certificates of appointment 4. Mail or present letter and certificate of appointment to each member

What information should be in the charter? • • • • • • • • • • • • •

Committee’s name Committee’s purpose or objective The period of time necessary for the committee to complete its purpose Description of the membership interests to be represented on the committee The agency or official to whom the committee reports The agency responsible for providing the necessary support for the committee Description of duties and the authority for these duties. Estimate of annual operating cost and work years Estimate of the number and frequency of committee meetings Designated Federal Officer Committee’s termination date Date the charter is filed A statement concerning equal opportunity

Look at the sample [link]. This charter is a Departmental Regulation and is written in that format as DR 1041-1 requires. The information must be presented in this format. Changing the indentation, spacing, punctuation after section number and letter format will require redoing the document.

What information should be in the decision memo? [link to decision memo] • • • • • • • • •

The issue the decision memo addresses Authority for establishing the committee (cite authority) Background of situation that made establishing committee necessary Reasons for establishing the committee and why the committee’s function cannot be performed by the agency, another existing advisory committee, or some other means Contribution the committee is expected to make Options for Secretary’s consideration Recommendation to the Secretary Enclosure line (charter will be attached) Decision form attached to end of memo

What information should be in the Civil Rights Impact Analysis?* [link to samples of CRIAs] •

Explain the committee’s function, authority, geographic area, number of members, timetable of how often members are appointed, who proposes the nominees and who appoints the members

•

Include a chart providing the race, gender, national origin, and disability status of current or proposed committee members

•

Describe the outreach strategies and activities that have been and will be used to ensure committee participation by minorities, women, and persons with disabilities

•

Indicate whether the work of the committee will have an adverse impact on members of protected classes listed above

*USDA Office of Civil Rights

What information should be in the appointment decision memo? The following information should be included in the appointment decision memo {link to sample]: • • • • • • • • • •

Statement of issue necessitating a decision The purpose of the committee The composition and term of membership Expected number of meetings Manner in which the nominees were selected Representation of women, minorities, and people with disabilities Options Recommendation Enclosure listing nominees indicating preference (at least two choices for each interest or position) Decision form

What information should be in the letter of appointment and the certificate of appointment? A letter of appointment, prepared by the agency, includes the following: • • • • • •

Purpose, objectives, and expected accomplishments of the committee Name of the chairperson Frequency of meetings, if known Location of meetings, if known Travel and per diem allowances, if applicable Expiration date of appointment

A certificate of appointment (AD-580) includes the name of the member and the name of the committee. The Secretary signs and dates. The Washington Office puts the letters of appointment in final form, prepares the AD-580s, and sends both to the appropriate field office for distribution.

What, when, and where should announcements about the committee establishment and meetings to the general public be made? • • • •

For committee meetings—both discretionary and nondiscretionary--publish a meeting notice including the time, day, place of meeting in the Federal Register 15 days before the day of the meeting For a discretionary committee, publish a notice of intent to establish or establishment in the Federal Register 15 days before filing the charter with the Library of Congress Issue a press release announcing the establishment of the committee Do whatever is feasible to announce the meetings in the local media or distribute to local groups

Who manages the Federal advisory committee? The Designated Federal Official (DFO), a Federal official, manages the committee. The DFO-• • • • •

Calls or approves the call of a meeting Attends meetings Approves the agenda May serve as chair Has the authority to adjourn the meetings when adjournment is deemed to be in the public interest.

The DFO must be present at all advisory committee meetings.

Who attends Federal advisory committee meetings?* • • •

The members of the committee The Designated Federal Officer Any interested person, unless the President or head of the agency to which the advisory committee reports determines that a meeting be closed to the public for such reasons as set forth in Title 5, section 552b(c) (Sunshine in the Government Act)— o Security issues o Internal personnel rules and practices o Disclosure of information exempted from disclosure by statute o Disclosure of trade secrets and commercial or financial information, o Involving an accusation of any person of a crime or formal censure o Other

What records must be kept?* • • • •

Detailed minutes of each advisory committee meeting A record of the persons present at each meeting Records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents made available or prepared for or by each advisory committee are open for public inspection and copying Records disclosing the disposition of funds

*Records are subject to the Freedom of Information Act and the Privacy Act

Can Federal advisory committee members be reimbursed for their work on the committee? •

Compensation: A member may be paid according to a predetermined salary level for services or as stated in the Act, 41 CFR Part 101-6, Dr 1041-1, and FSM 1350

•

Travel and per diem: A member may be reimbursed by an agency for travel and per diem expenses as authorized for government employees. The agency is not required to pay travel and per diem

Is a Federal advisory committee expected to publish a report? An advisory committee shall prepare – •

Any report required by the authority establishing the committee

•

An annual report to the USDA Committee Management Officer and General Services Administration through the Forest Service FACA coordinator, submitting the following information: The purpose of the committee, Date of establishment and estimated date of termination The authority establishing the committee Members Meetings (open and closed) Reports published Costs (personnel payments to non-Federal members, Federal members, Federal staff, and non-member consultants; travel and per diem to non-Federal members, Federal members, Federal staff, and non-member consultants; and miscellaneous) o Federal staff support years o o o o o o o

The annual reports for the Forest Service and other Federal advisory committees may be accessed at http://www.policyworks.gov Click on Committee Management. Click on Reports. Click on FACA Database and follow directions.

What Government Offices other than General Services Administration have responsibilities managing advisory committees? • • •

Each standing committee of the Senate and the House of Representatives reviews the activities of each advisory committee under its jurisdiction The Library of Congress files the charters The President submits an annual report on advisory committees to the Congress by December of each year.

What Forest Service Federal advisory committees are currently chartered? National (Washington Office) National Urban and Community Forestry Advisory Council (statutory) Oregon Opal Creek Scenic Recreation Area Advisory Council (statutory) Blue Mountains Natural Resources Institute Advisory Board (statutory) California Giant Sequoia National Monument Science Advisory Board (Presidential authority) Lake Tahoe Basin Federal Advisory Committee (Presidential authority) Northern California, Oregon, and Washington Intergovernmental Advisory Committee (discretionary) Provincial Advisory Committees (discretionary) Eastern Washington Cascades Provincial Advisory Committee California Coast Provincial Advisory Committee Olympic Peninsula Provincial Advisory Committee Deschutes Provincial Advisory Committee Yakima Provincial Advisory Committee Western Washington Cascades Provincial Advisory Committee Southwestern Oregon Provincial Advisory Committee Southwestern Washington Provincial Advisory Committee Willamette Provincial Advisory Committee Northwest Sacramento Provincial Advisory Committee Oregon Coast Provincial Advisory Committee Klamath Provincial Advisory Committee Tennessee and Kentucky Land Between The Lakes (statutory)

What Forest Service Federal advisory committees are in the process of being established? National Federal County Payments Committee (statutory) (to be established in conjunction with BLM and OMB) National, Regional, State, County Level National, Regional, and all States Participating in Annual Payments to States Program (statutory) (a network of committees) California Santa Rosa and San Jacinto Mountains National Monument Advisory Committee (statutory) (joint committee with BLM) New Mexico Collaborative Forest Restoration Program Technical Advisory Panel (statutory)