Last updated on November 30th, 2024 at 02:31 am
Title 41—Public Contracts and Property Management–Volume 3
Subtitle C—Federal Property Management Regulations System (Continued)
CHAPTER 102—FEDERAL MANAGEMENT REGULATION
SUBCHAPTERS H-Z [RESERVED]
SUBCHAPTER A—GENERAL
PART 102—GENERAL [RESERVED]
PART 102-2—FEDERAL MANAGEMENT REGULATION SYSTEM
Subpart A—Regulation System
General
§ 102-2.5 What is the Federal Management Regulation (FMR)?
The Federal Management Regulation (FMR) is the successor regulation to the Federal Property Management Regulations (FPMR). It contains updated regulatory policies originally found in the FPMR. However, it does not contain FPMR material that described how to do business with the General Services Administration (GSA). “How to” materials on this and other subjects are available in customer service guides, handbooks, brochures and Internet websites provided by GSA. (See § 102-2.125.)
§ 102-2.10 What is the FMR’s purpose?
The FMR prescribes policies concerning property management and related administrative activities. GSA issues the FMR to carry out the Administrator of General Services’ functional responsibilities, as established by statutes, Executive orders, Presidential memoranda, Circulars and bulletins issued by the Office of Management and Budget (OMB), and other policy directives.
The Administrator of General Services prescribes and issues the FMR under the authority of the Federal Property and Administrative Services Act of 1949, as amended, 40 U.S.C. 486(c), as well as other applicable Federal laws and authorities.
§ 102-2.20 Which agencies are subject to the FMR?
The FMR applies to executive agencies unless otherwise extended to Federal agencies in various parts of this chapter. The difference between the two terms is that Federal agencies include executive agencies plus establishments in the legislative or judicial branch of the Government. See paragraphs (a) and (b) of this section for the definitions of each term.
(a) What is an executive agency? An executive agency is any executive department or independent establishment in the executive branch of the Government, including any wholly-owned Government corporation. (See 40 U.S.C. 472(a).)
(b) What is a Federal agency? A Federal agency is any executive agency or any establishment in the legislative or judicial branch of the Government (except the Senate, the House of Representatives, and the Architect of the Capitol and any activities under that person’s direction). (See 40 U.S.C. 472(b).)
§ 102-2.25 When are other agencies involved in developing the FMR?
Normally, GSA will ask agencies to collaborate in developing parts of the FMR.
§ 102-2.30 Where and in what formats is the FMR published?
Proposed rules are published in the
(a)
(b) Loose-leaf. (See § 102-2.35.)
(c) Code of Federal Regulations (CFR), which is an annual codification of the general and permanent rules published in the
(d) Electronically on the Internet.
§ 102-2.35 How is the FMR distributed?
(a) A liaison appointed by each agency provides GSA with their agency’s distribution requirements of the looseleaf version of the FMR. Agencies must submit GSA Form 2053, Agency Consolidated Requirements for GSA Regulations and Other External Issuances, to—General Services Administration, Office of Communications (X), 1800 F Street, NW., Washington, DC 20405.
(b) Order
§ 102-2.40 May an agency issue implementing and supplementing regulations for the FMR?
Yes, an agency may issue implementing regulations (see § 102-2.50) to expand upon related FMR material and supplementing regulations (see § 102-2.55) to address subject material not covered in the FMR. The Office of the Federal Register assigns chapters in Title 41 of the Code of Federal Regulations for agency publication of implementing and supplementing regulations.
Numbering
§ 102-2.45 How is the FMR numbered?
(a) All FMR sections are designated by three numbers. The following example illustrates the chapter (it’s always 102), part, and section designations:
(b) In the looseleaf version, the month, year, and number of FMR amendments appear at the bottom of each page.
§ 102-2.50 How do I number my agency’s implementing regulations?
The first three-digit number represents the chapter number assigned to your agency in Title 41 of the CFR. The part and section numbers correspond to FMR material. For example, if your agency is assigned Chapter 130 in Title 41 of the CFR and you are implementing § 102-2.60 of the FMR, your implementing section would be numbered § 130-2.60.
§ 102-2.55 How do I number my agency’s supplementing regulations?
Since there is no corresponding FMR material, number the supplementing material “601” or higher. For example, your agency’s supplementing regulations governing special services to states might start with § 130-601.5.
Deviations
§ 102-2.60 What is a deviation from the FMR?
A deviation from the FMR is an agency action or policy that is inconsistent with the regulation. (The deviation policy for the FPMR is in 41 CFR part 101-1.)
§ 102-2.65 When may agencies deviate from the FMR?
Because, it consists primarily of set policies and mandatory requirements, deviation from the FMR should occur infrequently. However, to address unique circumstances or to test the effectiveness of potential policy changes, agencies may be able to deviate from the FMR after following the steps described in § 102-2.80.
§ 102-2.70 What are individual and class deviations?
An individual deviation is intended to affect only one action. A class deviation is intended to affect more than one action (e.g., multiple actions, the actions of more than one agency, or individual agency actions that are expected to recur).
§ 102-2.75 What timeframes apply to deviations?
Timeframes vary based on the nature of the deviation. However, deviations cannot be open-ended. When consulting with GSA about using an individual or class deviation, you must set a timeframe for the deviation’s duration.
§ 102-2.80 What steps must an agency take to deviate from the FMR?
(a) Consult informally with appropriate GSA program personnel to learn more about how your agency can work within the FMR’s requirements instead of deviating from them. The consultation process may also highlight reasons why an agency would not be permitted to deviate from the FMR; e.g., statutory constraints.
(b) Formally request a deviation, if consultations indicate that your agency needs one. The head of your agency or a designated official should write to GSA’s Regulatory Secretariat to the attention of a GSA official in the program office that is likely to consider the deviation. (See the FMR bulletin that lists contacts in GSA’s program offices and § 102-2.90.) The written request must fully explain the reasons for the deviation, including the benefits that the agency expects to achieve.
§ 102-2.85 What are the reasons for writing to GSA about FMR deviations?
The reasons for writing are to:
(a) Explain your agency’s rationale for the deviation. Before it can adequately comment on a potential deviation from the FMR, GSA must know why it is needed. GSA will compare your need against the applicable policies and regulations.
(b) Obtain clarification from GSA as to whether statutes, Executive orders, or other controlling policies, which may not be evident in the regulation, preclude deviating from the FMR for the reasons stated.
(c) Establish a timeframe for using a deviation.
(d) Identify potential changes to the FMR.
(e) Identify the benefits and other results that the agency expects to achieve.
§ 102-2.90 Where should my agency send its correspondence on an FMR deviation?
Send correspondence to: General Services Administration, Regulatory Secretariat (MVRS), Office of Governmentwide Policy, 1800 F Street, NW, Washington, DC 20405.
§ 102-2.95 What information must agencies include in their deviation letters to GSA?
Agencies must include:
(a) The title and citation of the FMR provision from which the agency wishes to deviate;
(b) The name and telephone number of an agency contact who can discuss the reason for the deviation;
(c) The reason for the deviation;
(d) A statement about the expected benefits of using the deviation (to the extent possible, expected benefits should be stated in measurable terms);
(e) A statement about possible use of the deviation in other agencies or Governmentwide; and
(f) The duration of the deviation.
§ 102-2.100 Must agencies provide GSA with a follow-up analysis of their experience in deviating from the FMR?
Yes, agencies that deviate from the FMR must also write to the relevant GSA program office at the Regulatory Secretariat’s address (see § 102-2.90) to describe their experiences in using a deviation.
§ 102-2.105 What information must agencies include in their follow-up analysis?
In your follow-up analysis, provide information that may include, but should not be limited to, specific actions taken or not taken as a result of the deviation, outcomes, impacts, anticipated versus actual results, and the advantages and disadvantages of taking an alternative course of action.
§ 102-2.110 When must agencies provide their follow-up letters?
(a) For an individual deviation, once the action is complete.
(b) For a class deviation, at the end of each twelve-month period from the time you first took the deviation and at the end of the deviation period.
Non-Regulatory Material
§ 102-2.115 What kinds of non-regulatory material does GSA publish outside of the FMR?
As GSA converts the FPMR to the FMR, non-regulatory materials in the FPMR, such as guidance, procedures, standards, and information, that describe how to do business with GSA, will become available in separate documents. These documents may include customer service guides, handbooks, brochures, Internet websites, and FMR bulletins. GSA will eliminate non-regulatory material that is no longer needed.
§ 102-2.120 How do I know whom to contact to discuss the regulatory requirements of programs addressed in the FMR?
Periodically, GSA will issue for your reference an FMR bulletin that lists program contacts with whom agencies can discuss regulatory requirements. At a minimum, the list will contain organization names and telephone numbers for each program addressed in the FMR.
§ 102-2.125 What source of information can my agency use to identify materials that describe how to do business with GSA?
The FMR establishes policy; it does not specify procedures for the acquisition of GSA services. However, as a service to users during the transition from the FPMR to the FMR and as needed thereafter, GSA will issue FMR bulletins to identify where to find information on how to do business with GSA. References include customer service guides, handbooks, brochures, Internet websites, etc.
Subpart B—Forms
§ 102-2.130 Where are FMR forms prescribed?
In any of its parts, the FMR may prescribe forms and the requirements for using them.
§ 102-2.135 How do agencies obtain forms prescribed by the FMR?
For copies of the forms prescribed by in the FMR, do any of the following:
(a) Write to us at: General Services Administration, National Forms and Publications Center (7CPN), Warehouse 4, Dock No. 1, 501 West Felix Street, Fort Worth, TX 76115.
(b) Send e-mail messages to: NFPC@gsa-7FDepot.
(c) Visit our web site at: www.gsa.gov/forms/forms.htm.
Subpart C—Plain Language Regulatory Style
§ 102-2.140 What elements of plain language appear in the FMR?
The FMR is written in a “plain language” regulatory style. This style is easy to read and uses a question and answer format directed at the reader, active voice, shorter sentences, and, where appropriate, personal pronouns.
§ 102-2.145 To what do pronouns refer when used in the FMR?
Throughout its text, the FMR may contain pronouns such as, but not limited to, we, you, and I. When pronouns are used, each subchapter of the FMR will indicate whether they refer to the reader, an agency, GSA, or some other entity. In general, pronouns refer to who or what must perform a required action.
PART 102-3—FEDERAL ADVISORY COMMITTEE MANAGEMENT
Subpart A—What Policies Apply to Advisory Committees Established Within the Executive Branch?
§ 102-3.5 What does this part cover and how does it apply?
This part provides the policy framework and establishes minimum requirements that must be used by agency heads and Federal officers in applying the Federal Advisory Committee Act, as amended (FACA or “the Act”), 5 U.S.C. chapter 10, to advisory committees they establish and operate. In addition to listing key definitions underlying the interpretation of the Act, this part establishes the scope and applicability of the Act and outlines specific exclusions from its coverage. This part is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person, including any advisory committee or officer, member, employee, agent, or contractor of any advisory committee.
§ 102-3.10 What is the purpose of the Federal Advisory Committee Act?
FACA governs the establishment, operation, administration, and termination of advisory committees within the executive branch of the Federal Government. The Act defines what constitutes a Federal advisory committee and provides general procedures for the executive branch to follow for the operation of these advisory committees. In addition, the Act is designed to assure that the Congress and the public are kept informed with respect to the number, purpose, membership, activities, recommendations, outcomes, and cost of advisory committees through reporting requirements. These requirements form the basis for implementing the Act at both the agency and Government-wide levels.
§§ 102-3.15-102-3.20 [Reserved]
§ 102-3.25 What definitions apply to this part?
The following definitions apply to this part:
Act means the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. chapter 10.
Administrator means the Administrator of General Services.
Advisory committee 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 an agency official, for the purpose of obtaining the group’s advice or recommendations for the President or on issues or policies within the scope of agency responsibilities (codified at 5 U.S.C. 1001). Advisory committees are subject to the Act unless specifically exempted by the Act, or by other statutes, or not covered by this part.
Agency has the same meaning as in 5 U.S.C. 551(1).
Agency head means the head of an executive branch agency, department, or commission, or their designated delegate.
Chairperson means the advisory committee or subcommittee member who serves in this role on an advisory committee or subcommittee by statutory requirement, or by appointment or invitation by Presidential authority or an agency’s authority.
Committee Management Officer (CMO) means the individual designated by the agency head to implement the provisions of sec. 8(b) of the Act (codified at 5 U.S.C. 1007(b)) and any delegated responsibilities of the agency head under the Act.
Committee Management Secretariat (Secretariat) means the organization established pursuant to sec. 7(a) of the Act (codified at 5 U.S.C. 1006(a)), which is responsible for all matters relating to advisory committees and carries out the responsibilities of the Administrator under the Act and E.O. 12024 (3 CFR, 1977 Comp., p. 158).
Committee meeting means any gathering of advisory committee members (whether in person or electronically, such as using telecommunications or through a virtual platform), held with the approval of an agency, and with a Designated Federal Officer in attendance, for the purpose of deliberating on the matters upon which the advisory committee provides advice or recommendations.
Committee member means an individual who serves by appointment or invitation by the appointing authority on an advisory committee or subcommittee.
Committee staff means any Federal employee, private individual, or other party (whether under contract or not) who is not a committee member, and who serves in a support capacity to an advisory committee or subcommittee. Committee staff serve in coordination with the Designated Federal Officer.
Designated Federal Officer (DFO) means an individual designated by the agency head, for each advisory committee for which the agency head is responsible, to implement the provisions of secs. 10(e) and (f) of the Act (codified at 5 U.S.C. 1009(e) and (f)) and any advisory committee procedures of the agency under the control and supervision of the CMO.
Discretionary advisory 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 (non-specific) authorizing language or Congressional committee report language is discretionary, and its establishment or termination is within the legal discretion of an agency head.
Group Federal Officer (GFO) means an individual who assists the CMO in overseeing and managing a portion of the agency’s Federal advisory committee management program.
Independent Presidential advisory committee means any Presidential advisory committee not assigned by the Congress, or by the President or the President’s delegate, to an agency for administrative and other support.
Non-discretionary advisory 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 function(s), and its establishment or termination is beyond the legal discretion of an agency head.
Presidential advisory committee means any advisory committee authorized by the Congress or directed by the President to advise the President.
Subcommittee means a group that reports to an advisory committee, and not directly to a Federal officer or agency, whether or not its members are drawn in whole or in part from the parent advisory committee. However, if a subcommittee makes advice or recommendations directly to a Federal officer or agency, it is no longer functioning as a subcommittee, and must: file a charter following the requirements of § 102-3.70, that includes the information required in § 102-3.75; comply with all of the requirements of this part; and will be counted as a chartered advisory committee at an agency.
Utilized by means a committee that is one over which the President or a Federal officer or agency exercises actual management or control of its operation, whether or not it was established by the Federal Government.
§ 102-3.30 What policies govern the use of advisory committees?
These are the policies to be followed by Federal departments and agencies in establishing and operating advisory committees consistent with the Act:
(a) Determination of need in the public interest. A discretionary advisory committee may be established only when it is essential to the conduct of agency business and when the information to be obtained is not already available through another advisory committee or source within the Federal Government.
(b) Termination. Advisory committees terminate pursuant to § 102-3.55.
(c) Fairly balanced membership. An advisory committee must be fairly balanced in its membership in terms of the points of view represented and the functions to be performed (as explained further in § 102-3.60).
(d) Open meetings. Advisory committee meetings must be open to the public except when a meeting is closed or partially closed in accordance with the exemptions set forth in the Government in the Sunshine Act, 5 U.S.C. 552b(c).
(1) Compliance with the Rehabilitation Act of 1973, as amended. With the support of the sponsoring Federal department or agency, the advisory committee must provide reasonable modifications for individuals with disabilities when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the program or activity. The advisory committee must also take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others, including by furnishing appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, the advisory committee. Examples of auxiliary aids and services include qualified interpreters and information in alternate formats, such as braille or large print. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. An advisory committee may not charge for the provision of auxiliary aids and services. An advisory committee is not required to provide an aid or service if it can demonstrate that providing that aid or service would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. Advisory committees should consider how to ensure that advisory committee members and members of the public are made aware that qualified individuals with disabilities are entitled to effective communication, including appropriate auxiliary aids and services. Advisory committees should also consider how to ensure that advisory committee members and members of the public are made aware of the option to request reasonable modifications in advance of meetings and should identify a point of contact to receive and respond to requests for reasonable modifications.
(2) Ensuring language access and provision of language assistance services. With the support of the sponsoring Federal department or agency, the advisory committee must ensure equal participation by individuals with limited English proficiency. This may include conducting outreach and providing notifications in the language(s) used by the affected communities and potential or actual advisory committee members, as well as providing language assistance services, including electronic and printed written translated documents and oral interpretation services free of charge and in a timely manner, when such services are necessary to provide meaningful access to a limited English proficient individual, consistent with title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and E.O. 13166, Improving Access to Services for Persons With Limited English Proficiency, 3 CFR, 2000 Comp., p. 289.
(e) Advisory functions only. The function of advisory committees is advisory only, unless specifically provided by statute or Presidential directive.
§ 102-3.35 What policies govern the use of subcommittees?
(a) In general, the requirements of the Act and the policies of this part do not apply to subcommittees of advisory committees that report to a parent advisory committee and not directly to a Federal officer or agency. However, this section does not preclude an agency from applying any provision of the Act and this part to any subcommittee of an advisory committee.
(b) If a subcommittee reports directly to a Federal officer or agency, it is no longer functioning as a subcommittee. In that case, the subcommittee must be chartered as a new advisory committee, must comply with all of the requirements of this part, and will be counted as a chartered advisory committee at an agency.
(c) Unless required by statute or Presidential directive, the creation and operation of subcommittees must be approved by the agency establishing the parent advisory committee in coordination with the DFO.
§ 102-3.40 What types of committees or groups are not covered by the Act and this part?
In addition to the committees created by the National Academy of Sciences, Engineering, and Medicine and the National Academy of Public Administration (except as covered by subpart E of this part), the Central Intelligence Agency, and the Federal Reserve, the following are examples of committees or groups that are not covered by the Act or this part:
(a) Any advisory committee established or utilized by the Office of the Director of National Intelligence, if the Director of National Intelligence determines that for reasons of national security such advisory committee cannot comply with the requirements of the Act;
(b) Committees specifically exempted by statute;
(c) Committees created by non-Federal entities and not actually managed or controlled by the executive branch;
(d) Groups assembled where attendees provide individual advice to a Federal official(s);
(e) Groups assembled to exchange facts or information with a Federal official(s);
(f) 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. 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 sec. 204(b) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1534(b), and OMB Memorandum M-95-20, dated September 21, 1995, available on the Committee Management Secretariat website);
(g) Any committee composed wholly of full-time or permanent part-time officers or employees of the Federal Government;
(h) Local civic groups whose primary function is that of rendering a public service with respect to a Federal program;
(i) Groups established to advise State or local officials;
(j) 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; and
(k) Any committee established, created, managed, and staffed by the government of a foreign country; or any committee created, managed, and staffed by an executive branch agency to advise or make recommendations to a government official, government group, or government agency of a foreign country.
Subpart B—How Are Advisory Committees Established, Renewed, Reestablished, Merged, and Terminated?
§ 102-3.45 What does this subpart cover and how does it apply?
Requirements for establishing and terminating advisory committees vary depending on the establishing entity and the source of authority for the advisory committee. This subpart covers the procedures associated with the establishment, renewal, reestablishment, merger, and termination of advisory committees. These procedures include, but are not limited to, consulting with the Secretariat, preparing and filing an advisory committee charter, publishing notice in the
FACA identifies four sources of authority for establishing an advisory committee:
(a) Required by statute. By law where Congress establishes an advisory committee, or specifically directs the President or an agency to establish it (non-discretionary);
(b) Presidential authority. By E.O. of the President or other Presidential directive (non-discretionary);
(c) Authorized by statute. By law where Congress authorizes, but does not direct the President or an agency to establish it (discretionary); or
(d) Agency authority. By an agency under general authority in title 5 of the United States Code or under other agency-authorizing statutes (discretionary).
§ 102-3.55 What rules apply to the duration of an advisory committee?
(a) An advisory committee automatically terminates two years after its date of establishment unless:
(1) The statutory authority used to establish the advisory committee provides a different duration or termination, either stated in or implied by operation of the statute;
(2) The President or agency head determines that the advisory committee has fulfilled the purpose for which it was established and terminates the advisory committee earlier;
(3) The President or agency head determines that the advisory committee is no longer carrying out the purpose for which it was established and terminates the advisory committee earlier; or
(4) The President or agency head renews the advisory committee not later than two years after its date of establishment, renewal, or reestablishment in accordance with § 102-3.60. If the President or an agency needs an advisory committee that was terminated, it can be reestablished in accordance with § 102-3.60.
(b) When an advisory committee terminates, the agency shall notify the Secretariat of the effective date of the termination.
§ 102-3.60 What procedures are required to establish, renew, reestablish, or merge a discretionary advisory committee?
(a) Consultation with the Secretariat. To establish, renew, reestablish, or merge a discretionary advisory committee, the agency head must first consult with the Secretariat. As part of this consultation, agency heads should provide the Secretariat with a full understanding of the background and purpose behind the advisory committee, and the Secretariat should share its knowledge and experience with the agency.
(b) Include required information in the consultation with the Secretariat. Consultations covering the establishment, renewal, reestablishment, or merger of advisory committees must, as a minimum, contain the following information:
(1) Explanation of need. An explanation stating why the advisory committee is essential to the conduct of agency business and in the public interest or why it is necessary to merge one or more advisory committees;
(2) Lack of duplication of resources. An explanation stating why the advisory committee’s functions cannot be performed by the agency, another existing committee, or other means such as a public hearing or other methods of public engagement; and
(3) Fairly balanced membership. A description of the agency’s plan to attain fairly balanced membership, as appropriate based on the nature and functions of the advisory committee, as documented through the agency’s Membership Balance Plan (MBP). The MBP must be uploaded to the FACA database when the agency files the Federal advisory committee charter with the Secretariat.
(i) Points of view required. During the formation of the advisory committee membership and as membership vacancies occur, agencies should ensure that they fully consider and understand the potential implications or anticipated impacts of the advisory committee’s potential recommendations. This includes consideration of the groups and entities potentially affected or interested in such recommendations, as appropriate based on the nature and functions of the advisory committee, so that the agency can make informed decisions on the areas of expertise or perspectives (including relevant lived experience) that would advance the work of the advisory committee. Advisory committees requiring technical expertise should include persons with demonstrated professional or personal qualifications and experience relevant to the functions and tasks to be performed by the committee. The MBP shall describe the agency’s conclusions regarding the points of view that would promote fairly balanced committee membership.
(ii) Outreach. Having identified the points of view that would promote a fairly balanced advisory committee membership, agencies should conduct broad outreach, using a variety of means and methods, to ensure that the call for nominees reaches the interested parties and stakeholder groups likely to possess those points of view. Agencies should further ensure outreach to underserved communities, as appropriate to the nature and functions of the advisory committee. The MBP shall describe the agency’s intended outreach efforts to accomplish these goals.
(iii) Selection. In the selection of members for the advisory committee and as membership vacancies occur, agencies shall ensure representation of persons with the points of view identified pursuant to this section that would promote a fairly balanced advisory committee membership. The MBP shall describe the agency’s intended selection criteria and approach.
§ 102-3.65 What are the public notification requirements for discretionary advisory committees?
A notice to the public in the
(a) Procedure. Upon receiving notice from the Secretariat that its review is complete in accordance with § 102-3.60(a), the agency must publish a notice in the
(b) Time required for notices. Notices of advisory committee establishment (including due to a merger) and reestablishment must appear at least 15 calendar days before the charter is filed, except that the Secretariat may approve less than 15 calendar days when requested by the agency in exceptional circumstances (such as a national emergency or natural disaster). This requirement for advance notice does not apply to advisory committee renewals, notices of which may be published concurrently with the filing of the charter.
§ 102-3.70 What are the charter filing requirements?
No advisory committee may meet or take any action until a charter has been filed by the CMO or by another agency official designated by the agency head.
(a) Requirement for discretionary advisory committees. To amend a charter, or establish (including due to a merger), renew, or reestablish a discretionary advisory committee, a charter must be filed with:
(1) The agency head;
(2) The standing committees of the Senate and the House of Representatives having legislative jurisdiction of the agency, the date of filing with which constitutes the official date of establishment for the advisory committee;
(3) The Library of Congress; and
(4) The Secretariat, indicating the date the charter was filed in accordance with paragraph (a)(2) of this section.
(b) Requirement for non-discretionary advisory committees. Charter filing requirements for non-discretionary advisory committees are the same as those in paragraph (a) of this section, except that the date of establishment, renewal, or reestablishment for a Presidential advisory committee is the date the charter is filed with the Secretariat.
(c) Requirement for subcommittees that report directly to the Government. Subcommittees that report directly to a Federal officer or agency must comply with this subpart and be chartered as a new advisory committee as they are no longer functioning as a subcommittee.
§ 102-3.75 What information must be included in the charter of an advisory committee?
An advisory committee charter is intended to provide a description of an advisory committee’s mission, goals, and objectives. The charter must contain the following information:
(a) The advisory committee’s official designation (official name);
(b) The legal authority that permits the advisory committee to be established;
(c) The objectives and the scope of the advisory committee’s activities;
(d) A description of the duties for which the advisory committee is responsible and specification of the authority for any non-advisory functions;
(e) The agency or Federal officer to whom the advisory committee submits its recommendations;
(f) The agency responsible for providing the necessary support to the advisory committee, including the name of the President’s delegate, agency, or organization responsible for fulfilling the reporting requirements of sec. 6(b) of the Act (codified at 5 U.S.C. 1005(b)), if appropriate;
(g) The estimated annual costs to operate the advisory committee in dollars and person years (full time equivalents or FTE);
(h) The role of the DFO;
(i) The estimated number and frequency of the advisory committee’s meetings;
(j) The period of time necessary to carry out the advisory committee’s purpose(s);
(k) The planned termination date, if less than two years from the date of establishment of the advisory committee;
(l) The estimated number of advisory committee members, the expertise or experience required, and the anticipated advisory committee member designations;
(m) Whether subcommittees may be created, by whom, and how they operate under the chartered advisory committee;
(n) The relevant recordkeeping disposition schedule(s); and
(o) The date the charter is filed in accordance with § 102-3.70.
§ 102-3.80 How are charter amendments accomplished?
The agency head is responsible for amending the charter of an advisory committee. Amending any existing advisory committee charter does not constitute renewal of the advisory committee under § 102-3.60. The procedures for making changes and filing amended charters will depend upon the authority basis for the advisory committee, as stated in paragraphs (a) through (c) of this section:
(a) Non-discretionary advisory committees. The agency head must ensure that any changes made to current charters are consistent with the relevant authority. When Congress by law, or the President by Presidential directive (e.g., E.O.), changes the authorizing language that has been the basis for establishing an advisory committee, the agency head or the chairperson of an independent Presidential advisory committee must amend those sections of the current charter affected by the new statute or Presidential directive (e.g., E.O.); file the amended charter as specified in § 102-3.70; and notify the public as specified in paragraph (c) of this section.
(b) Discretionary advisory committees. The charter of a discretionary advisory committee must be amended when an agency head determines that provisions of a filed charter are inaccurate, specific provisions have changed or become obsolete with the passing of time, or advisory committees need to be merged. Amendments could also include changing the name of the advisory committee, advisory committee authority, number of members, estimated number or frequency of meetings, objectives and scope, duties, and estimated costs. The agency must amend the charter language as necessary and the agency must:
(1) First consult with the Secretariat and explain the purpose of the changes and why they are necessary. The Secretariat will notify the agency when the consultation process is complete.
(2) Upon receiving notice from the Secretariat that the consultation is complete, file the amended charter as specified in § 102-3.70, and notify the public as specified in paragraph (c) of this section.
(c) Public notification of charter amendments. Agencies must post an announcement and a copy of the charter amendment on the advisory committee website. If an advisory committee website is not available, the agency must publish a notice of amendment in the
§ 102-3.85 [Reserved]
Subpart C—How Are Advisory Committees Managed?
§ 102-3.90 What does this subpart cover and how does it apply?
This subpart outlines specific responsibilities and functions to be carried out by the U.S. General Services Administration (GSA), the agency head, the CMO, and the DFO under the Act.
§ 102-3.95 What principles apply to the management of advisory committees?
Agencies are encouraged to apply the following principles to the management of their advisory committees:
(a) Provide adequate support and access. Before establishing an advisory committee, agencies should identify requirements and ensure that adequate resources are available to support anticipated activities. Considerations related to support could include work and meeting space, necessary technology, supplies and equipment (e.g., adequate virtual meeting capabilities), Federal staff support, access to key decisionmakers, and member access to meetings (e.g., travel reimbursement). These considerations should also include support for access to communication modes that are inclusive of individuals with limited English proficiency or individuals with disabilities (e.g., adequate virtual meeting capabilities). These considerations should also include whether there are physical barriers to attending in-person meetings.
(b) Practice openness. Agencies should seek to be as transparent, equitable, inclusive, accessible, and timely as possible when providing public access to advisory committee activities and materials. Agencies should minimize, to the extent possible, closing or partially closing meetings, and are encouraged where appropriate to open subcommittee meetings to the public. Agencies should also create public facing websites at both the agency and advisory committee level to help the public understand an agency’s advisory committee program, and use additional notification methods, as appropriate, to reach advisory committee stakeholders, pursuant to sec. 10 of the Act (codified at 5 U.S.C. 1009). Such websites must be in compliance with E.O. 13166, relevant sections of the Rehabilitation Act, as amended, 29 U.S.C. 794, and the 21st Century Integrated Digital Experience Act (IDEA). Section 3(e) of 21st Century IDEA requires any public Federal agency website created after December 2018 to be in compliance with the website standards of the Technology Transformation Services of the General Services Administration. IDEA, Public Law 115-336, 132 Stat. 5025.
(c) Promote diversity, equity, and inclusivity. Once the Federal advisory committee is formed, committee chairs and DFOs should foster a culture of diversity, equity, and inclusion by encouraging engagement, participation, and expression from all committee members and any members with dissenting opinions, as applicable.
(d) Seek feedback. Agencies should continually seek feedback from advisory committee members and the public regarding the advisory committee’s activities. At regular intervals, agencies should communicate to the members how their advice has affected agency programs and decision making and make this information available to the public.
§ 102-3.100 What are the responsibilities and functions of GSA?
(a) The responsibilities of the Administrator under sec. 7 of the Act (codified at 5 U.S.C. 1006) have been delegated by the Administrator to the Committee Management Secretariat within GSA’s Office of Government-wide Policy.
(b) The Secretariat carries out its responsibilities by:
(1) Engaging in consultations with agencies on the establishment, re-establishment, renewal, merger, and termination of discretionary advisory committees;
(2) Prescribing guidance applicable to advisory committees;
(3) Assisting other agencies in implementing and interpreting the Act;
(4) Conducting an annual comprehensive review of Government-wide advisory committee accomplishments, costs, benefits, and other indicators to measure performance;
(5) Developing and providing Government-wide training regarding the Act and related statutes and principles;
(6) Supporting the Interagency Committee on Federal Advisory Committee Management and FACA Attorney Council to improve compliance with the Act;
(7) Designing and maintaining a FACA database to facilitate data collection, reporting, and use of information required by the Act;
(8) Preparing regulations on Federal advisory committees;
(9) Identifying performance measures that may be used to evaluate advisory committee accomplishments; and
(10) Providing recommendations for transmittal by the Administrator to Congress and the President regarding proposals to improve accomplishment of the objectives of the Act.
§ 102-3.105 What are the responsibilities of an agency head?
When a committee is utilized by or established by an agency, the agency head must:
(a) Comply with the Act, this part, and other applicable laws and regulations;
(b) Issue administrative guidelines and management controls providing the details that advisory committee staff need to implement during the creation, operation, and termination of their Federal advisory committees;
(c) Designate a CMO;
(d) Designate a DFO for each advisory committee and its subcommittees;
(e) Approve the advisory committee charters for establishments, renewals, re-establishments, or mergers;
(f) Provide a written determination stating the reasons for closing any advisory committee meeting to the public, in whole or in part, in accordance with the exemptions set forth in the Government in the Sunshine Act, 5 U.S.C. 552b(c);
(g) Review, at least annually, the need to continue each existing advisory committee, consistent with the public interest and the purpose or functions of each advisory committee;
(h) Determine that rates of compensation for members (if they are paid for their services) and staff of, and experts and consultants to advisory committees are justified and that levels of agency support are adequate;
(i) Develop procedures to assure that the advice or recommendations of advisory committees will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment;
(j) Assure that the interests and affiliations of committee members are reviewed for conformance with applicable conflict of interest statutes, regulations issued by the U.S. Office of Government Ethics including any supplemental agency requirements, and other Federal ethics rules;
(k) Appoint or invite individuals to serve on committees, unless otherwise provided for by a specific statute or Presidential directive; and
(l) Provide the opportunity for reasonable participation, including accessibility considerations, by the public in advisory committee activities, subject to § 102-3.140 and the agency’s guidelines.
§ 102-3.110 What are the responsibilities of a chairperson of an independent Presidential advisory committee?
The chairperson of an independent Presidential advisory committee must:
(a) Comply with the Act, this part, and other applicable laws and regulations;
(b) Consult with the Secretariat concerning the designation of a CMO and DFO; and
(c) Consult with the Secretariat in advance regarding any proposal to close any meeting in whole or in part.
§ 102-3.115 What are the responsibilities and functions of an agency CMO?
In addition to implementing the provisions of sec. 8(b) of the Act (codified at 5 U.S.C. 1007(b)), the CMO will carry out all responsibilities delegated by the agency head and manage the agency FACA program. Management includes consulting with the Secretariat on Federal advisory committees, as delegated by the agency head; tracking charter establishments, renewals, re-establishments, mergers, amendments, and terminations; coordinating the agency Annual Comprehensive Review within their agency and with the Secretariat; providing training for agency staff supporting the FACA program; working with GFOs, as appropriate, and DFOs; attending GSA Government-wide FACA training and recommending this training to agency staff, as appropriate; and attending Interagency Committee on Federal Advisory Committee Management meetings. The CMO should create and maintain an agency website to further the public’s understanding of the agency’s FACA program. The CMO also should ensure that secs. 10(b), 12(a), and 13 of the Act (codified at 5 U.S.C. 1009(b), 1011(a), and 1012, respectively) are implemented by the agency to provide for appropriate recordkeeping. Records to be kept by the CMO include, but are not limited to—
(a) Charter and membership documentation. A set of filed charters for each advisory committee and membership lists for each advisory committee and subcommittee;
(b) Annual comprehensive review. Copies of the information provided as the agency’s portion of the annual comprehensive review of Federal advisory committees, prepared according to § 102-3.175(b);
(c) Agency guidelines. Agency guidelines maintained and updated on committee management operations and procedures; and
(d) Closed meeting determinations. Agency determinations to close or partially close advisory committee meetings required by § 102-3.105(f).
§ 102-3.120 What are the responsibilities and functions of a DFO?
(a) The agency head or, in the case of an independent Presidential advisory committee, the Secretariat, must designate a Federal officer or employee who must be either full-time or permanent part-time, to be the DFO for each advisory committee and its subcommittees, who must:
(1) Ensure that their committee activities comply with the Act, this part, their agency administrative procedures, and any other applicable laws and regulations;
(2) Approve or call all meetings of the advisory committee or subcommittee;
(3) Approve the agenda, except that this requirement does not apply to a Presidential advisory committee;
(4) Attend all advisory committee and subcommittee meetings for their duration;
(5) Fulfill the requirements under sec. 10(b) of the Act (codified at 5 U.S.C. 1009(b));
(6) Adjourn any meeting when he or she determines it to be in the public interest;
(7) Chair any meeting when so directed by the agency head;
(8) Maintain information on advisory committee activities and provide such information to the public, as applicable; and
(9) Ensure advisory committee members and subcommittee members, as applicable, receive the appropriate training (e.g., FACA overview, ethics training) for efficient operation and compliance with the Act and this part.
(b) The DFO should ensure a public facing website is created and maintained (that complies with the requirements of relevant sections of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794) for each advisory committee, and include information such as: the advisory committee charter; relevant laws, regulations, and guidance; advisory committee member rosters and subcommittee member rosters, as applicable;
§ 102-3.125 What is required to be included in an agency’s administrative guidelines to implement an advisory committee?
An agency’s administrative guidelines provide the details that advisory committee staff need to implement FACA requirements during the creation, operation, and termination of their advisory committees.
(a) Advisory committee bylaws. Advisory committee bylaws should be developed by the agency, with advisory committee input and buy-in. Agency guidelines should specify the content of bylaws and ensure that they provide clear operating procedures for advisory committee meetings, other committee activities, and the relationship between committee members, the DFO, and agency staff.
(b) Advisory committee costs. Agency guidelines must:
(1) Provide instructions on how to identify, calculate, and fully document advisory committee costs; and
(2) Ensure agency committee cost records match the data reported to Congress and the public through the FACA database.
§ 102-3.130 What policies apply to the appointment, and compensation or reimbursement of advisory committee members?
In developing guidelines to implement the Act, this part, and other applicable laws and regulations at the agency level, agency heads should address the following issues:
(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. Agency heads are encouraged to set member term limits, where possible, so that agencies continually ensure the committee is fairly balanced throughout the life of the advisory committee.
(b) Compensation of advisory committee members. Agencies are not required to pay and are not prohibited from paying their advisory committee members, unless required to or prohibited from doing so by statute or Presidential authority. In determining the rate of compensation (per § 102-3.105(h)) the agency head 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. 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.
(c) Other compensation considerations. In establishing rates of pay for advisory committee members, the agency must comply with any applicable statutes, E.O.s, regulations, and administrative guidelines. In determining an appropriate rate of basic pay for advisory committee members, 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.
(d) Federal employees assigned to an advisory committee. Federal employees serving as either an advisory committee member or as a staff person remain covered during the assignment by the compensation system of their employing agency. Federal employees serving as an advisory committee member or as a staff person must first obtain both the approval of their direct supervisor and the respective committee’s DFO prior to serving in either capacity.
(e) Other appointment considerations. Any advisory committee staff person who is not a current Federal employee must be appointed in accordance with applicable agency procedures, in consultation with the DFO, and, as appropriate, the members of the advisory committee involved.
(f) Travel expenses. Advisory committee members, 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, per the rates established for employees by the Administrator of General Services at 5 U.S.C. 5702.
(g) 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 as those that may be provided to employees per 5 U.S.C. 3102. Additional accommodations should be discussed in order to maximize accessibility, including technology, per relevant sections of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794.
Subpart D—Advisory Committee Meeting and Recordkeeping Procedures
§ 102-3.135 What does this subpart cover and how does it apply?
This subpart establishes policies and procedures relating to meetings and other activities undertaken by advisory committees and their subcommittees. This subpart also outlines what records must be kept by Federal agencies and what other documentation, including advisory committee minutes and reports, must be prepared and made available to the public.
§ 102-3.140 What policies apply to advisory committee meetings?
(a) The agency head for a discretionary or non-discretionary advisory committee established or utilized by that agency, or the chairperson for an independent Presidential advisory committee, must ensure that:
(1) Each advisory committee meeting is held at a reasonable time and in a manner or place accessible to the public and includes consideration of affected communities, as appropriate, as well as facilities or technology that are readily accessible to and usable by persons with disabilities, consistent with the requirements set forth in relevant sections of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794;
(2) The physical meeting room is sufficient to accommodate advisory committee members, advisory committee or agency staff, and a reasonable number of interested members of the public. If electronic forums are used, agencies should opt for technology features that are compliant with relevant sections of the Rehabilitation Act, as amended, 29 U.S.C. 794, accommodate advisory committee members, advisory committee or agency staff, and allow for maximum participation by members of the public, as appropriate;
(3) Any member of the public is permitted to file a written statement with the advisory committee, whether or not the statement is related to a specific meeting;
(4) Any member of the public may speak to or otherwise address the advisory committee if the agency’s guidelines so permit; and
(5) Any advisory committee meeting conducted in whole or part through any electronic medium (such as a teleconference or through a virtual platform) meets the requirements of this subpart.
(b) The
§ 102-3.145 What policies apply to subcommittee meetings?
If a subcommittee provides advice or recommendations directly to a Federal officer or agency, or if its advice or recommendations will be adopted by the parent advisory committee without further deliberations by the parent advisory committee, then the subcommittee’s meetings must be conducted in accordance with the requirements of this subpart.
§ 102-3.150 How are advisory committee meetings announced to the public?
(a) A notice in the
(1) The name of the advisory committee (or subcommittee, if applicable);
(2) The time, date, physical place (and/or instructions to connect electronically), and purpose of the meeting;
(3) Whether meeting registration is required;
(4) A summary of the agenda, and/or topics to be discussed and instructions on how to access meeting materials;
(5) A statement whether all or part of the meeting is open to the public or closed; if the meeting is closed in whole or in part, state the reasons why, citing the specific exemption(s) of the Government in the Sunshine Act, 5 U.S.C. 552b(c);
(6) Instructions for submitting written comments, and oral comments if permitted;
(7) Instructions on how to submit a request for physical meeting or electronic meeting accommodations consistent with the requirements of E.O. 13166 and relevant sections of the Rehabilitation Act, as amended, 29 U.S.C. 794; and
(8) The name and telephone number (or email) of the DFO or other responsible agency official, or agency electronic mailbox for the committee, to contact for additional information concerning the meeting.
(b) In exceptional circumstances, such as a national emergency or natural disaster, the agency or an independent Presidential advisory committee may give less than 15 calendar days notice, provided that the reasons for doing so are included in the advisory committee meeting notice published in the
(c) In addition to the
§ 102-3.155 How are advisory committee meetings closed to the public?
To close all or part of an advisory committee meeting, the DFO must:
(a) Obtain prior approval. Submit a request to the agency head, or in the case of an independent Presidential advisory committee, the Secretariat, citing the specific exemption(s) of the Government in the Sunshine Act, 5 U.S.C. 552b(c), that justifies the closure. The request must provide the agency head or the Secretariat sufficient time (generally 30 calendar days) to review the matter in order to make a determination before publication of the meeting notice required by § 102-3.150;
(b) Seek General Counsel review. The Office of the General Counsel (or equivalent legal office) of the agency or, in the case of an independent Presidential advisory committee, GSA’s Office of the General Counsel, should review all requests to close meetings;
(c) Obtain agency determination. If the agency head, or in the case of an independent Presidential advisory committee, GSA, finds that the request is consistent with the provisions of the Government in the Sunshine Act and FACA, the appropriate agency official must issue a determination that all or part of the meeting will be closed; and
(d) Assure public access to determination. The agency head or the chairperson of an independent Presidential advisory committee must make a copy of the determination available to the public upon request.
§ 102-3.160 What activities of an advisory committee are not subject to the notice and open meeting requirements of the Act?
The following activities of an advisory committee are excluded from the procedural requirements contained in this subpart:
(a) Preparatory work. Meetings of two or more advisory committee or subcommittee members convened solely to gather information, conduct research, or analyze relevant issues and facts in preparation for deliberation by advisory committee members in a public meeting of the advisory committee, or deliberation by subcommittee members in a public meeting of the subcommittee (where applicable). These meetings to conduct preparatory work do not include deliberation among advisory committee or subcommittee members; and
(b) Administrative work. Meetings of two or more advisory committee or subcommittee members convened solely to discuss administrative matters of the advisory committee or subcommittee (such as meeting logistics) or to receive administrative information from a Federal officer or agency (such as a briefing on ethics or FACA procedural requirements).
§ 102-3.165 How are advisory committee meetings documented?
(a) The agency head or, in the case of an independent Presidential advisory committee, the chairperson must ensure that detailed minutes of each advisory committee meeting, including one that is closed or partially closed to the public, are kept. The chairperson of each advisory committee must certify the accuracy of all minutes of advisory committee meetings.
(b) The minutes must include:
(1) The time, date, and place (or electronic format) of the advisory committee meeting;
(2) A list of the persons who were present at the meeting, including advisory committee members and staff, agency employees, and members of the public who presented oral or written statements;
(3) An accurate description of each matter discussed and the resolution, if any, made by the advisory committee regarding such matter; and
(4) Copies of each report or other materials received, issued, or approved by the advisory committee at the meeting.
(c) The DFO must ensure that minutes are certified for accuracy by the chairperson within 90 calendar days of the meeting to which they relate. Agencies should post the meeting minutes on the agency advisory committee website (if one exists) not later than 14 calendar days after the meeting minutes have been certified.
§ 102-3.170 How does an interested party obtain access to advisory committee records?
Timely access to advisory committee records is an important element of the public access requirements of the Act. Section 10(b) of the Act (codified at 5 U.S.C. 1009(b)) provides for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend committee meetings, provide a meaningful opportunity to comprehend fully the work undertaken by the advisory committee. Although certain advisory committee records may be withheld under an exemption to the Freedom of Information Act (FOIA), agencies may not require members of the public or other interested parties to use FOIA procedures in order to obtain records available under sec. 10(b) of the Act (codified at 5 U.S.C. 1009(b)).
§ 102-3.175 What are the reporting and recordkeeping requirements for an advisory committee?
(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 sec. 6(b) of the Act (codified at 5 U.S.C. 1005(b)) must be prepared and transmitted to the Congress detailing the disposition of the advisory committee’s recommendations. 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 § 102-3.75(f).
(b) Annual comprehensive review of Federal advisory committees. Per sec. 7(b) of the Act (codified at 5 U.S.C. 1006(b)), GSA is required to conduct an Annual Comprehensive Review (ACR) of the activities and responsibilities of each Federal advisory committee that was in existence during any part of a Federal fiscal year. The Secretariat initiates this review, provides guidance to the agencies and departments on how to conduct the review, and closes out the ACR when all reviews have been completed. Federal agencies are responsible for reporting data on each advisory committee, such as its purpose, performance measures, subcommittees (if applicable), meeting, membership, and cost, into the GSA FACA database. CMOs, DFOs, and other responsible agency officials, such as GFOs, enter this data for the advisory committees they are responsible for in their agency. The FACA database provides transparency to the public on the activities of Federal advisory committees Government-wide. The database is also used by Congress to perform oversight of the FACA program, and by the general public, the media, and others to stay abreast of important developments resulting from Federal advisory committee activities.
(c) Annual report of closed or partially closed meetings. In accordance with sec. 10(d) of the Act (codified at 5 U.S.C. 1009(d)), 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, 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 sec. 13 of the Act (codified at 5 U.S.C. 1012) for public inspection and use.
(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, 44 U.S.C. chapters 21 and 29 through 33, and regulations issued by the National Archives and Records Administration (see 36 CFR parts 1220, 1222, 1228, and 1234), or in accordance with the Presidential Records Act, 44 U.S.C. chapter 22.
Subpart E—How Does This Subpart Apply to Advice or Recommendations Provided to Agencies by the National Academy of Sciences or the National Academy of Public Administration?
§ 102-3.180 What does this subpart cover and how does it apply?
This subpart provides guidance to agencies on compliance with sec. 15 of the Act (codified at 5 U.S.C. 1014). Section 15 establishes requirements that apply only in connection with a funding or other written agreement involving an agency’s use of advice or recommendations provided to the agency by the National Academy of Sciences (NAS) or the National Academy of Public Administration (NAPA), if such advice or recommendations were developed by use of a committee created by either academy. For purposes of this subpart, NAS also includes the National Academy of Engineering, the National Academy of Medicine, and the National Research Council. Except with respect to NAS committees that were the subject of judicial actions filed before December 17, 1997, no part of the Act other than sec. 15 applies to any committee created by NAS or NAPA.
§ 102-3.185 What does this subpart require agencies to do?
(a) Section 15 requirements. An agency may not use any advice or recommendation provided to an agency by NAS or NAPA under an agreement between the agency and an academy, if such advice or recommendation was developed by use of a committee created by either academy, unless:
(1) The committee was not subject to any actual management or control by an agency or officer of the Federal Government; and
(2) In the case of NAS, the academy certifies that it has complied substantially with the requirements of sec. 15(b) of the Act (codified at 5 U.S.C. 1014(b)); or
(3) In the case of NAPA, the academy certifies that it has complied substantially with the requirements of sec. 15(b) (1), (2), and (5) of the Act (codified at 5 U.S.C. 1014(b)(1), (2), and (5), respectively).
(b) No agency management or control. Agencies must not manage or control the specific procedures adopted by each academy to comply with the requirements of sec. 15 of the Act (codified at 5 U.S.C. 1014) that are applicable to that academy. In addition, however, any committee created and used by an academy in the development of any advice or recommendation to be provided by the academy to an agency must be subject to both actual management and control by that academy and not by the agency.
(c) Funding agreements. Agencies may enter into contracts, grants, and cooperative agreements with NAS or NAPA that are consistent with the requirements of this subpart to obtain advice or recommendations from such academy. These funding agreements require, and agencies may rely upon, a written certification by an authorized representative of the academy provided to the agency upon delivery to the agency of each report containing advice or recommendations required under the agreement that:
(1) The academy has adopted policies and procedures that comply with the applicable requirements of sec. 15 of the Act (codified at 5 U.S.C. 1014); and
(2) To the best of the authorized representative’s knowledge and belief, these policies and procedures substantially have been complied with in performing the work required under the agreement.
Subpart F—Severability
§ 102-3.190 What portions of this part are severable?
All provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, it is GSA’s intention that the remaining provisions shall continue in effect.
PART 102-4—NONDISCRIMINATION IN FEDERAL FINANCIAL ASSISTANCE PROGRAMS [RESERVED]
PART 102-5—HOME-TO-WORK TRANSPORTATION
Subpart A—General
§ 102-5.5 Preamble.
(a) The questions and associated answers in this part are regulatory in effect. Thus compliance with the written text of this part is required by all to whom it applies.
(b) The terms “we,” “I,” “our,” “you,” and “your,” when used in this part, mean you as a Federal agency, an agency head, or an employee, as appropriate.
§ 102-5.10 What does this part cover?
This part covers the use of Government passenger carriers to transport employees between their homes and places of work.
§ 102-5.15 Who is covered by this part?
This part covers Federal agency employees in the executive, judicial, and legislative branches of the Government, with the exception of employees of the Senate, House of Representatives, Architect of the Capitol, and government of the District of Columbia.
§ 102-5.20 Who is not covered by this part?
This part does not cover:
(a) Employees who use a passenger carrier in conjunction with official travel, including temporary duty (TDY) or relocation;
(b) Employees who are essential for the safe and efficient performance of intelligence, counterintelligence, protective services, or criminal law enforcement duties when designated in writing as such by their agency head; or
(c) Employees who use a passenger carrier for transportation between places of employment and mass transit facilities (see, e.g., 41 CFR 102-34.210).
§ 102-5.25 What additional guidance concerning home-to-work transportation should Federal agencies issue?
Each Federal agency using Government passenger carriers to provide home-to-work transportation for employees who are essential for the safe and efficient performance of intelligence, counterintelligence, protective services, or criminal law enforcement duties should issue guidance concerning such use.
§ 102-5.30 What definitions apply to this part?
The following definitions apply to this part:
Agency head means the highest official of a Federal agency.
Clear and present danger means highly unusual circumstances that present a threat to the physical safety of the employee or their property when the danger is:
(1) Real; and
(2) Immediate or imminent, not merely potential; and
(3) The use of a Government passenger carrier would provide protection not otherwise available.
Compelling operational considerations means those circumstances where home-to-work transportation is essential to the conduct of official business or would substantially increase a Federal agency’s efficiency and economy.
Emergency means circumstances that exist whenever there is an immediate, unforeseeable, temporary need to provide home-to-work transportation for those employees necessary to the uninterrupted performance of the agency’s mission. (An emergency may occur where there is a major disruption of available means of transportation to or from a work site, an essential Government service must be provided, and there is no other way to transport those employees.)
Employee means a Federal officer or employee of a Federal agency, including an officer or enlisted member of the Armed Forces.
Federal agency means:
(1) A department (as defined in section 18 of the Act of August 2, 1946 (41 U.S.C. 5a));
(2) An executive department (as defined in 5 U.S.C. 101);
(3) A military department (as defined in 5 U.S.C. 102);
(4) A Government corporation (as defined in 5 U.S.C. 103(1));
(5) A Government controlled corporation (as defined in 5 U.S.C. 103(2));
(6) A mixed-ownership Government corporation (as defined in 31 U.S.C. 9101(2));
(7) Any establishment in the executive branch of the Government (including the Executive Office of the President);
(8) Any independent regulatory agency (including an independent regulatory agency specified in 44 U.S.C. 3502(10));
(9) The Smithsonian Institution;
(10) Any nonappropriated fund instrumentality of the United States; and
(11) The United States Postal Service.
Field work means official work requiring the employee’s presence at various locations other than their regular place of work. (Multiple stops (itinerant-type travel) within the accepted local commuting area, limited use beyond the local commuting area, or transportation to remote locations that are only accessible by Government-provided transportation are examples of field work.)
Home means the primary place where an employee resides and from which the employee commutes to their place of work.
Home-to-work transportation means the use of a Government passenger carrier to transport an employee between their home and place of work.
Passenger carrier means a motor vehicle, aircraft, boat, ship, or other similar means of transportation that is owned (including those that have come into the possession of the Government by forfeiture or donation), leased, or rented (non-TDY) by the United States Government.
Work means any place within the accepted commuting area, as determined by the Federal agency for the locality involved, where an employee performs their official duties.
Subpart B—Authorizing Home-to-Work Transportation
By statute, certain Federal officials are authorized for home-to-work transportation, as are employees who meet certain statutory criteria as determined by their agency head. The Federal officials authorized by statute are the President, the Vice-President, and other principal Federal officials and their designees, as provided in 31 U.S.C. 1344(b)(1) through (b)(7). Those employees engaged in field work, or faced with a clear and present danger, an emergency, or a compelling operational consideration may be authorized for home-to-work transportation as determined by their agency head. No other employees are transportation.
No, the agency head may not delegate the authority to make home-to-work determinations.
§ 102-5.45 Should determinations be completed before an employee is provided with home-to-work transportation?
Yes, determinations should be completed before an employee is provided with home-to-work transportation unless it is impracticable to do so.
§ 102-5.50 May determinations be made in advance for employees who respond to unusual circumstances when they arise?
Yes, determinations may be made in advance when the Federal agency wants to have employees ready to respond to:
(a) A clear and present danger;
(b) An emergency; or
(c) A compelling operational consideration.
Implementation of these determinations is contingent upon one of the three circumstances occurring. Thus, these may be referred to as “contingency determinations.”
§ 102-5.55 How do we prepare determinations?
Determinations must be in writing and include the:
(a) Name and title of the employee (or other identification, if confidential);
(b) Reason for authorizing home-to-work transportation; and
(c) Anticipated duration of the authorization.
§ 102-5.60 How long are initial determinations effective?
Initial determinations are effective for no longer than:
(a) Two years for field work, updated as necessary; and
(b) Fifteen days for other circumstances.
§ 102-5.65 What procedures apply when the need for home-to-work transportation exceeds the initial period?
The agency head may approve unlimited subsequent determinations, when the need for home-to-work transportation exceeds the initial period, for no longer than:
(a) Two years each for field work, updated as necessary; and
(b) Ninety calendar days each for other circumstances.
Agencies should consider the following when making a determination to authorize home-to-work transportation for field work:
(a) The location of the employee’s home in proximity to their work and to the locations where non-TDY travel is required; and
(b) The use of home-to-work transportation for field work should be authorized only to the extent that such transportation will substantially increase the efficiency and economy of the Government.
The following circumstances do not establish a basis for authorizing home-to-work transportation for field work:
(a) When an employee assigned to field work is not actually performing field work.
(b) When the employee’s workday begins at their work; or
(c) When the employee normally commutes to a fixed location, however far removed from their official duty station (for example, auditors or investigators assigned to a defense contractor plant).
For instances where an employee is authorized for home-to-work transportation under the field work provision, but performs field work only on an intermittent basis, the agency shall establish procedures to ensure that a Government passenger carrier is used only when field work is actually being performed. Although some employees’ daily workstation is not located in a Government office, these employees are not performing field work. Like all Government employees, employees working in a “field office” are responsible for their own commuting costs.
§ 102-5.80 What are some examples of positions that may involve field work?
Examples of positions that may involve field work include, but are not limited to:
(a) Quality assurance inspectors;
(b) Construction inspectors;
(c) Dairy inspectors;
(d) Mine inspectors;
(e) Meat inspectors; and
(f) Medical officers on outpatient service.
The assignment of an employee to such a position does not, of itself, entitle an employee to receive daily home-to-work transportation.
§ 102-5.85 What information should our determination for field work include if positions are identified rather than named individuals?
If positions are identified rather than named individuals, your determination for field work should include sufficient information to satisfy an audit, if necessary. This information should include the job title, number, and operational level where the work is to be performed (e.g., five recruiter personnel or, positions at the Detroit Army Recruiting Battalion).
An agency head may elect to designate positions rather than individual names, especially in positions where rapid turnover occurs.
Yes, situations may arise where, for cost or other reasons, it is in the Government’s interest to base a Government passenger carrier at a Government facility located near the home-to-work rather than authorize the home-to-work transportation.
No, the comfort and/or convenience of an employee is not considered sufficient justification to authorize home-to-work transportation.
§ 102-5.100 May we use home-to-work transportation for other than official purposes?
No, you may not use home-to-work transportation for other than official purposes. However, if your agency has prescribed rules for the incidental use of Government vehicles (as provided in 31 U.S.C. note), you may use the vehicle in accordance with those rules in connection with an existing home-to-work authorization.
§ 102-5.105 May others accompany an employee using home-to-work transportation?
Yes, an employee authorized for home-to-work transportation may share space in a Government passenger carrier with other individuals, provided that the passenger carrier does not travel additional distances as a result and such sharing is consistent with the employee’s Federal agency’s policy. When a Federal agency establishes its space sharing policy, the Federal agency should consider its potential liability for and to those individuals. Home-to-work transportation does not extend to the employee’s spouse, other relatives, or friends unless they travel with the employee from the same point of departure to the same destination, and this use is consistent with the Federal agency’s policy.
Subpart C—Documenting and Reporting Determinations
§ 102-5.110 Must we report our determinations outside of our agency?
Yes, you must submit your determinations to the following Congressional Committees:
(a) Chairman, Committee on Governmental Affairs, United States Senate, Suite SD-340, Dirksen Senate Office Building, Washington, DC 20510-6250; and
(b) Chairman, Committee on Governmental Reform, United States House of Representatives, Suite 2157, Rayburn House Office Building, Washington, DC 20515-6143.
§ 102-5.115 When must we report our determinations?
You must report your determinations to Congress no later than 60 calendar days after approval. You may consolidate any subsequent determinations into a single report and submit them quarterly.
§ 102-5.120 What are our responsibilities for documenting use of home-to-work transportation?
Your responsibilities for documenting use of home-to-work transportation are that you must maintain logs or other records necessary to verify that any home-to-work transportation was for official purposes. Each agency may decide the organizational level at which the logs should be maintained and kept. The logs or other records should be easily accessible for audit and should contain:
(a) Name and title of employee (or other identification, if confidential) using the passenger carrier;
(b) Name and title of person authorizing use;
(c) Passenger carrier identification;
(d) Date(s) home-to-work transportation is authorized;
(e) Location of residence;
(f) Duration; and
(g) Circumstances requiring home-to-work transportation.
PARTS 102-6—102-30 [RESERVED]
SUBCHAPTER B—PERSONAL PROPERTY
PART 102-31—GENERAL [RESERVED]
PART 102-32—MANAGEMENT OF PERSONAL PROPERTY [RESERVED]
PART 102-33—MANAGEMENT OF GOVERNMENT AIRCRAFT
Subpart A—How These Rules Apply
General
§ 102-33.5 To whom do these rules apply?
(a) The rules in this part apply to all Federally-funded aviation activities of executive branch agencies of the U.S. Government who use Government aircraft to accomplish their official business, except for the exemptions listed in paragraph (b) of this section.
(b) The rules in this part do not apply to the following:
(1) The Armed Forces, except for:
(i) Section 102-33.25(e) and (g), which concern responsibilities related to the Interagency Committee for Aviation Policy (ICAP); and
(ii) Subpart D of this part, “Disposing of Government Aircraft and Aircraft Parts.”
(2) The President or Vice President and their offices;
(3) Aircraft when an executive agency provides Government-furnished avionics for commercially owned or privately owned aircraft for the purposes of technology demonstration or testing; and
(4) Privately owned aircraft that agency personnel use for official travel (even though such use is Federally-funded).
§ 102-33.6 How are the terms “we,” “you,” “your,” and “our” used in this part?
In this part, “we”, “you”, “your”, and “our” refer to agency aviation managers or an executive agency.
§ 102-33.10 May we request approval to deviate from these rules?
(a) You may request approval to deviate from the rules in this part. See §§ 102-2.60 through 102-2.110 of this chapter for guidance on requesting a deviation. In most cases, GSA will respond to your written request within 30 days;
(b) GSA may not grant deviations from the requirements of OMB Circular A-126, “Improving the Management of Government Aircraft;” and
(c) You should consult with GSA’s Aviation Policy Division before you request a deviation.
§ 102-33.15 How does this part relate to Title 14 of the Code of Federal Regulations?
This part does not supersede any of the regulations in 14 CFR Chapter I, “Federal Aviation Administration, Department of Transportation.”
§ 102-33.20 What definitions apply to this part?
The following definitions apply to this part:
Acquire means to procure or otherwise obtain personal property, including by lease or rent.
Acquisition date means the date that the acquiring executive agency took responsibility for the aircraft, e.g., received title (through purchase, exchange, or gift), signed a bailment agreement with the Department of Defense (DOD), took physical custody, received a court order, put into operational status an aircraft that is newly manufactured by the agency, or otherwise accepted physical transfer (e.g., in the case of a borrowed aircraft).
Aircraft part means an individual component or an assembly of components that is used on aircraft.
Armed Forces mean the Army, Navy, Air Force, Marine Corps, and Coast Guard, including their regular and Reserve components and members serving without component status. For purposes of this part, the National Guard is also included in the Armed Forces.
Aviation life support equipment (ALSE) means equipment that protects flight crewmembers and others aboard an aircraft, assisting their safe escape, survival, and recovery during an accident or other emergency.
Aviation Policy Division is a division in the Office of Asset and Transportation Management, Office of Government-wide Policy, GSA. Contact the staff via the Aircraft Management Overview page at http://www.gsa.gov/aviationpolicy.
Crewmember means a person assigned to operate or assist in operating an aircraft during flight time. Crewmembers perform duties directly related to the operation of the aircraft (e.g., as pilots, co-pilots, flight engineers, navigators) or duties assisting in operation of the aircraft (e.g., as flight directors, crew chiefs, electronics technicians, mechanics). See also the terms and definitions for “Qualified non-crewmember” and “Passenger” in this section.
Criticality code means a single digit code that DOD assigns to military Flight Safety Critical Aircraft Parts (FSCAP) (see §§ 102-33.115 and 102-33.370).
Data plate means a fireproof plate that is inscribed with certain information required by 14 CFR part 45 (or for military surplus aircraft, as required by Military Specifications), and secured to an aircraft, aircraft engine, or propeller. The information must be marked by etching, stamping, engraving, or other approved method of fireproof marking. The plate must be attached in such a manner that it is not likely to be defaced or removed during normal service or lost or destroyed in an accident. Data plates are required only on certificated aircraft. However, non-certificated aircraft may also have data plates.
Declassify means to remove a lost, destroyed, or non-operational aircraft from the Federal aircraft inventory. Agencies may declassify only non-operational aircraft that they will retain for ground use only. Agencies must declassify an aircraft following the rules in §§ 102-33.415 and 102-33.420.
Disposal date means the date that the disposing executive agency relinquishes responsibility for an aircraft, for example, when the agency transfers title in the case of an exchange/sale; returns the aircraft to the lessor or bailer; declassifies it (for FAIRS, declassification is considered a “disposal” action, even though the agency retains the property); or relinquishes custody to another agency (i.e., in the case of excess (transferred) or surplus (donated or sold) aircraft).
Donated aircraft means an aircraft disposed of as surplus by GSA through donation to a non-Federal government, a tax-exempt nonprofit entity, or other eligible recipient, following the rules in part § 102-37 (some agencies, for example DOD, may have independent donation authority.)
Exchange means to replace personal property by trade or trade-in with the supplier of the replacement property.
Exchange/sale means to exchange or sell non-excess, non-surplus personal property and apply the exchange allowance or proceeds of sale in whole or in part payment for the acquisition of similar property. See 40 U.S.C. 503.
Exclusive use means a condition under which an aircraft is operated for the sole benefit of the U.S. Government.
Executive agency means any executive department or independent establishment in the executive branch of the United States Government, including any wholly owned Government corporation. See 5 U.S.C. 105.
Federal Acquisition Service (FAS) means a component of GSA. FAS is organized by geographical regions. The FAS Property Management Division in GSA’s Pacific Rim Region, 450 Golden Gate Ave., San Francisco, CA 94102-3434, has responsibility for disposing of excess and surplus aircraft.
Federal aircraft means manned or unmanned aircraft that an executive agency owns (i.e., holds title to) or borrows for any length of time. Federal aircraft include—
(1) Bailed aircraft: Federal aircraft that is owned by one executive agency, but is in the custody of and operated by another executive agency under an agreement that may or may not include cost-reimbursement. Bailments are executive agency to executive agency agreements and involve only aircraft, not services;
(2) Borrowed aircraft: Aircraft owned by a non-executive agency and provided to an executive agency for use without compensation. The executive agency operates and maintains the aircraft;
(3) Forfeited aircraft: Aircraft acquired by the Government either by summary process or by order of a court of competent jurisdiction pursuant to any law of the United States;
(4) Loaned aircraft: Federal aircraft owned by an executive agency, but in the custody of a non-executive agency under an agreement that does not include compensation; and
(5) Owned aircraft: An aircraft for which title or rights of title are vested in an executive agency.
When an executive agency loans or bails an aircraft that meets the criteria for Federal aircraft, the loaned or bailed aircraft is still considered a Federal aircraft in the owning agency’s inventory, except when DOD is the owning agency of a bailed aircraft. In that case, the aircraft is recorded in the inventory of the bailee.
Federal Aviation Interactive Reporting System (FAIRS) is a management information system operated by GSA to collect, maintain, analyze, and report information on Federal aircraft inventories and cost and usage of Federal aircraft and CAS aircraft (and related services) (see §§ 102-33.395 through 102-33.440).
Flight Safety Critical Aircraft Part (FSCAP) means any aircraft part, assembly, or installation containing a critical characteristic whose failure, malfunction, or absence could cause a catastrophic failure resulting in loss or serious damage to the aircraft or an uncommanded engine shutdown resulting in an unsafe condition.
Full service contract means a contractual agreement through which an executive agency acquires an aircraft and related aviation services (e.g., pilot, crew, maintenance, catering) for exclusive use. Aircraft hired under full service contracts are commercial aviation services (CAS), not Federal aircraft, regardless of the length of the contract.
Government aircraft means manned or unmanned aircraft operated for the exclusive use of an executive agency. Government aircraft include—
(1) Federal aircraft (see definition for “Federal aircraft” in this section); and
(2) Aircraft hired as commercial aviation services (CAS). CAS include—
(i) Leased aircraft for exclusive use for an agreed upon period of time (The acquiring executive agency operates and maintains the aircraft);
(ii) Capital lease aircraft for which the leasing agency holds an option to take title;
(iii) Charter aircraft for hire under a contractual agreement for one-time exclusive use that specifies performance (The commercial source operates and maintains a charter aircraft);
(iv) Rental aircraft obtained commercially under an agreement in which the executive agency has exclusive use for an agreed upon period of time (The executive agency operates, but does not maintain, a rental aircraft);
(v) Contracting for full services (i.e., aircraft and related aviation services for exclusive use); or
(vi) Obtaining related aviation services (i.e., services but not aircraft) by commercial contract, except those services acquired to support a Federal aircraft.
Governmental function means a Federally-funded activity that an executive agency performs in compliance with its statutory authorities.
Intelligence community means those agencies identified in the National Security Act, 50 U.S.C. 401a(4).
Inter-service support agreement (ISSA) means any agreement between two or more executive agencies (including the Department of Defense) in which one agency consents to perform aviation support services (e.g., providing an aircraft and other aviation services or providing only services) for another agency with or without cost-reimbursement. An executive agency-to-executive agency agreement that involves only the use of an aircraft, not services, is a bailment, not an ISSA.
Life-limited part means any aircraft part that has an established replacement time, inspection interval, or other time-related procedure associated with it. For non-military parts, the FAA specifies life-limited part airworthiness limitations in 14 CFR 21.50, 23.1529, 25.1529, 27.1529, 29.1529, 31.82, 33.4, and 35.5, and on product Type Certificate Data Sheets (TCDS). Letters authorizing Technical Standards Orders (TSO) must also note or reference mandatory replacement or inspection of parts.
Military aircraft part means an aircraft part used on an aircraft that was developed by the Armed Forces (whether or not it carries an FAA airworthiness certificate).
Non-operational aircraft means a Federal aircraft that is not safe for flight and, in the owning executive agency’s determination, cannot economically be made safe for flight. This definition refers to the aircraft’s flight capability, not its mission-support equipment capability. An aircraft that is temporarily out of service for maintenance or repair and can economically be made safe for flight is considered an operational aircraft.
Official Government business in relation to Government aircraft—
(1) Includes, but is not limited to—
(i) Carrying crewmembers, qualified non-crewmembers, and cargo directly required for or associated with performing Governmental functions (including travel-related Governmental functions);
(ii) Carrying passengers authorized to travel on Government aircraft (see OMB Circular A-126); and
(iii) Training pilots and other aviation personnel.
(2) Does not include—
(i) Using Government aircraft for personal or political purposes, except for required use travel and space available travel as defined in OMB Circular A-126; or
(ii) Carrying passengers who are not officially authorized to travel on Government aircraft.
Operational aircraft means a Federal aircraft that is safe for flight or, in the owning executive agency’s determination, can economically be made safe for flight. This definition refers to the aircraft’s flight capability, not its mission-support capability. An aircraft temporarily out of service for maintenance or repair is considered an operational aircraft.
Original equipment manufacturer (OEM) means the person or company who originally designed, engineered, and manufactured, or who currently holds the data rights to manufacture, a specific aircraft or aircraft part. Parts produced under a Parts Manufacturer Approval (PMA) are not considered OEM parts, even though they can be acceptable replacement parts for OEM parts.
Passenger means a person flying onboard a Government aircraft who is officially authorized to travel and who is not a crewmember or qualified non-crewmember.
Performance indicator means a quantitative or qualitative term or value for reporting organizational activities and results, generally with respect to achieving specific goals related to outcomes, outputs, efficiency, and inputs. When applied to aircraft, performance indicators typically measure the effectiveness and efficiency of the processes involved with safely delivering aircraft services.
Production approval holder (PAH) means the person or company who holds a Production Certificate (PC), Approved Production Inspection System (APIS), Parts Manufacturer Approval (PMA), or Technical Standards Orders Authorization (TSOA), issued under provisions of 14 CFR part 21, Certification Procedures for Products and Parts, and who controls the design, manufacture, and quality of a specific aircraft part.
Qualified non-crewmember means an individual, other than a member of the crew, aboard an aircraft—
(1) Operated by an United States Government agency in the intelligence community; or
(2) Whose presence is required to perform or is associated with performing the Governmental function for which the aircraft is being operated (Qualified non-crewmembers are not passengers).
Registration mark means the unique identification mark that is assigned by the FAA and displayed on U.S.-registered Government aircraft (except Armed Forces aircraft). Foreign-registered aircraft hired as CAS will carry their national registration markings. Registration markings are commonly referred to as tail numbers.
Related aviation services contract means a commercial contractual agreement through which an executive agency hires aviation services only (not aircraft), e.g., pilot, crew, maintenance, cleaning, dispatching, or catering.
Required use travel means use of a Government aircraft for the travel of an executive agency officer or employee where the use of the Government aircraft is required because of bona fide communications or security need of the agency or exceptional scheduling requirements. Required use travel must be approved as described in OMB Circular A-126.
Risk analysis and management means a systematic process for—
(1) Identifying risks and hazards associated with alternative courses of action involved in an aviation operation;
(2) Choosing from among these alternatives the course(s) of action that will promote optimum aviation safety;
(3) Assessing the likelihood and predicted severity of an injurious mishap within the various courses of action;
(4) Controlling and mitigating identified risks and hazards within the chosen course(s) of action; and
(5) Periodically reviewing the chosen course(s) of action to identify possible emerging risks and hazards.
Safe for flight means approved for flight and refers to an aircraft, aircraft engine, propeller, appliance, or part that has been inspected and certified to meet the requirements of applicable regulations, specifications, or standards. When applied to an aircraft that an executive agency operates under FAA regulations, safe for flight means “airworthy,” i.e., the aircraft or related parts meet their design specifications and are in a condition, relative to wear and deterioration, for safe operation. When applied to an aircraft that an executive agency uses, but does not operate under the FAA regulations, safe for flight means a state of compliance with military specifications or the executive agency’s own Flight Program Standards, and as approved, inspected, and certified by the agency.
Safety Management System (SMS) means a formal, top-down business-like approach to managing safety risk. It includes systematic procedures, practices, and policies for the management of safety, safety risk management, safety policy, safety assurance, and safety promotion. For more information on SMS, refer to FAA Advisory Circular 120-92, “Safety Management Systems for Aviation Service Providers.”
Senior Aviation Management Official (SAMO) means the person in an executive agency who is the agency’s primary member of the Interagency Committee for Aviation Policy (ICAP). This person must be of appropriate grade and position to represent the agency and promote flight safety and adherence to standards.
Serviceable aircraft part means a part that is safe for flight, can fulfill its operational requirements, and is sufficiently documented to indicate that the part conforms to applicable standards/specifications.
Suspected unapproved part means an aircraft part, component, or material that any person suspects of not meeting the requirements of an “approved part.” Approved parts are those that are produced in compliance with 14 CFR part 21, are maintained in compliance with 14 CFR parts 43 and 91, and meet applicable design standards. A part, component, or material may be suspect because of its questionable finish, size, or color; improper (or lack of) identification; incomplete or altered paperwork; or any other questionable indication. See detailed guidance in FAA Advisory Circular 21-29, “Detecting and Reporting Suspected Unapproved Parts,” available from the FAA at http://www.faa.gov.
Traceable part means an aircraft part whose manufacturer or production approval holder can be identified by documentation, markings/characteristics on the part, or packaging of the part. Non-military parts are traceable if you can establish that the parts were manufactured in accordance with or were previously determined to be airworthy under rules in 14 CFR parts 21 and 43. Possible sources for making a traceability determination could be shipping tickets, bar codes, invoices, parts marking (e.g., PMA, TSO), data plates, serial/part numbers, manufacturing production numbers, maintenance records, work orders, etc.
Training means instruction for all flight program personnel (to include administrative, maintenance and dispatch personnel), which enables them to qualify initially for their positions and to maintain qualification for their positions over time.
This instruction can apply to either public or civil missions as defined in the latest version of the FAA’s Advisory Circular for Government aircraft operations.
Unmanned Aircraft Systems (UAS) means an unmanned aircraft and its associated elements related to safe operations, which may include but not be limited to control stations, data communications links, support equipment, payloads, flight termination systems, and launch/recovery equipment. The unmanned aircraft (UA) is the flying component of the system, flown by a pilot via a ground control system, or autonomously through the use of an on-board computer, communication links, and any additional equipment necessary for the unmanned aircraft to operate safely. The Federal Aviation Administration issues either an Airworthiness Directive (AD) or a Certificate of Authorization (COA) for the entire system, not just the flying component of the system. Reporting of UAS costs and flight hours is only required if the accumulated costs for acquisition and operations meets the agency’s threshold for capitalization, and the UAS has a useful life of two years or more.
Unsalvageable aircraft part means an aircraft part that cannot be restored to a condition that is safe for flight because of its age, its physical condition, a non-repairable defect, insufficient documentation, or its non-conformance with applicable standards/specifications.
U.S. Government Aircraft Cost Accounting Guide (CAG) means guidance for the accounting of Government aircraft costs published by GSA and is based on the cost guidance within OMB Circular A-126, OMB Circular A-76, FAIRS, and the U.S. Government Standard General Ledger.
Responsibilities
§ 102-33.25 What are our responsibilities under this part?
Under this part, your responsibilities are to—
(a) Acquire, manage, and dispose of Federal aircraft (see the definition of “Federal aircraft” in § 102-33.20) and acquire and manage Commercial Aviation Services (CAS) (see the definition for “CAS” in paragraph (2) of the definition of “Government aircraft” in § 102-33.20) as safely, efficiently, and effectively as possible consistent with the nature of your agency’s aviation missions;
(b) Document and report the—
(1) Types and numbers of your Federal aircraft;
(2) Costs of acquiring and operating Government aircraft;
(3) Amount of time that your agency uses Government aircraft; and
(4) Accidents and incidents involving Government aircraft;
(c) Ensure that your Government aircraft are used only to accomplish your agency’s official Government business;
(d) Ensure that all passengers traveling on your agency’s Government aircraft are authorized to travel on such aircraft (see OMB Circular A-126);
(e) Appoint (by letter to the Deputy Associate Administrator, Office of Asset and Transportation Management, Office of Government-wide Policy, GSA) a Senior Aviation Management Official (SAMO), who will be your agency’s primary member of the ICAP (this paragraph (e) applies to all executive agencies that use aircraft, including the Department of Defense (DOD), the Federal Aviation Administration (FAA), and the National Transportation Safety Board (NTSB), but excludes executive agencies that only hire aircraft occasionally for a specific flight). It is suggested that an agency’s SAMO have:
(1) Experience as a pilot or crew member; or
(2) Management experience within an aviation operations management/flight program.
(f) Designate an official (by letter to the Deputy Associate Administrator, Office of Asset and Transportation Management, Office of Government-wide Policy, GSA) to certify the accuracy and completeness of information reported by your agency through FAIRS. (Armed Forces agencies, which include the DOD and the U.S. Coast Guard, are not required to report information to FAIRS.);
(g) Appoint representatives of the agency as members of ICAP subcommittees and working groups;
(h) Ensure that your agency’s internal policies and procedures are consistent with the requirements of OMB Circulars A-126, A-76 and A-11, Federal Aviation Administration Advisory Circular 120-92, and this part; and
(i) Ensure that safety and other critical aviation program requirements are satisfied. Executive agencies that only hire aircraft occasionally for specific flights, must either:
(1) Establish an aviation program that complies with the requirements of OMB Circular A-126; or
(2) Hire those aircraft through an agency with a policy-compliant aviation program.
§ 102-33.30 What are the duties of an agency’s Senior Aviation Management Official (SAMO)?
The duties of an agency’s Senior Aviation Management Official (SAMO) are to—
(a) Represent the agency’s views to the ICAP and vote on behalf of the agency as needed;
(b) Contribute technical and operational policy expertise to ICAP deliberations and activities;
(c) Serve as the designated approving official for FAIRS when the agency elects to have one person serve as both the SAMO and the designated official for FAIRS (DOD will not have a designated official for FAIRS); and
(d) Appoint representatives of the agency as members of ICAP subcommittees and working groups.
§ 102-33.35 How can we get help in carrying out our responsibilities?
To get help in carrying out your responsibilities under this part, you may—
(a) Call or write to GSA’s Aviation Policy Division (see definition in § 102-33.20); or
(b) Find additional aviation program management information on the Internet at http://www.gsa.gov/aviationpolicy.
§ 102-33.40 What are some of GSA’s responsibilities for Federal aviation management?
Under OMB Circular A-126, “Improving the Management and Use of Government Aircraft,” (http://www.whitehouse.gov/omb) GSA’s chief responsibilities for Federal aviation management are to maintain—
(a) A single office to carry out Governmentwide responsibilities for Government aircraft management, and publishing that policy;
(b) An interagency committee (i.e., the ICAP), whose members represent the executive agencies that use Government aircraft to conduct their official business (including FAA and NTSB specifically) and advise and consult with GSA on developing policy for managing Government aircraft;
(c) A management information system to collect, analyze, and report information on the inventory, cost, usage, and safety of Government aircraft; and
(d) A set of performance indicators, policy recommendations, and guidance for the procurement, operation, and safety and disposal of Government aircraft.
See OMB Circular A-126 (http://www.whitehouse.gov/omb) for a complete listing of GSA’s responsibilities related to Federal aviation.
Subpart B—Acquiring Government Aircraft and Aircraft Parts
Overview
§ 102-33.50 Under what circumstances may we acquire Government aircraft?
(a) When you meet the requirements for operating an in-house aviation program contained in OMB Circular A-76, “Performance of Commercial Activities” and OMB Circular A-11, “Preparation, Submission, and Execution of the Budget,” Part 2, “Preparation and Submission of Budget Estimates,” Section 25.5, “Summary of Requirements,” Table 1, which refers to the Business Case for Acquisition and Maintenance of Aircraft, and Section 51.18, “Budgeting for the acquisition of capital assets,” subparagraph (d) (Both circulars are available at http://www.whitehouse.gov/omb), you may—
(1) Acquire Federal aircraft when—
(i) Aircraft are the optimum means of supporting your agency’s official business;
(ii) You do not have aircraft that can support your agency’s official business safely (e.g., in compliance with applicable safety standards and regulations) and cost-effectively;
(iii) No commercial or other Governmental source is available to provide aviation services safely (i.e., in compliance with applicable safety standards and regulations) and cost-effectively; and
(iv) Congress has specifically authorized your agency to purchase, lease, or transfer aircraft and to maintain and operate those aircraft (see 31 U.S.C. 1343);
(2) Acquire Commercial Aviation Services (CAS) when—
(i) Aircraft are the optimum means of supporting your agency’s official business; and
(ii) Using commercial aircraft and services is safe (i.e., conforms to applicable laws, safety standards, and regulations) and is more cost effective than using Federal aircraft, aircraft from any other Governmental source, or scheduled air carriers.
(b) When acquiring aircraft, aircraft selection must be based on need, a strong business case, and life-cycle cost analysis, which conform to OMB Circular A-11, “Preparation, Submission, and Execution of the Budget,” Part 2, “Preparation and Submission of Budget Estimates,” Section 25.5, “Summary of Requirements,” Table 1, which refers to the Business Case for Acquisition and Maintenance of Aircraft (available at http://www.whitehouse.gov/omb).
§ 102-33.55 Are there restrictions on acquiring Government aircraft?
Yes, you may not acquire—
(a) More aircraft than you need to carry out your official business;
(b) Aircraft of greater size or capacity than you need to perform your Governmental functions cost-effectively; or
(c) Federal aircraft that Congress has not authorized your agency to acquire or Federal aircraft or commercial aircraft and services for which you have not followed the requirements in OMB Circulars A-76 and A-11 (available at http://www.whitehouse.gov/omb).
§ 102-33.60 What methods may we use to acquire Government aircraft?
Following the requirements of §§ 102-33.50 and 102-33.55, you (or an internal bureau or sub-agency within your agency) may acquire Government aircraft by means including, but not limited to—
(a) Purchase;
(b) Borrowing from a non-Federal source;
(c) Bailment from another executive agency;
(d) Exchange/sale;
(e) Reimbursable transfer from another executive agency (see §§ 102-36.75 and 102-36.80);
(f) Transfer from another executive agency as approved by GSA;
(g) Reassignment from one internal bureau or subagency to another within your agency;
(h) Transfer of previously forfeited aircraft;
(i) Insurance replacement (i.e., receiving a replacement aircraft);
(j) Capital lease;
(k) Rent or charter;
(l) Contract for full services (i.e., aircraft plus crew and related aviation services) from a commercial source; or
(m) Inter-service support agreements with other executive agencies for aircraft and services.
§ 102-33.65 What is the process for acquiring Government aircraft?
Acquiring Government aircraft, as described in §§ 102-33.70 through 102-33.105, generally follows a three-step process:
(a) Planning;
(b) Budgeting; and
(c) Contracting.
Planning To Acquire Government Aircraft
§ 102-33.70 What directives must we follow when planning to acquire Government aircraft?
When planning to acquire Government aircraft, you must follow the requirements in—
(a) 31 U.S.C. 1343, “Buying and Leasing Passenger Motor Vehicles and Aircraft”;
(b) OMB Circular A-126, “Improving the Management and Use of Government Aircraft” (http://www.whitehouse.gov/omb);
(c) OMB Circular A-11, Part 2, Section 25.5, Table 1, Business Case for Acquisition and Maintenance of Aircraft (http://www.whitehouse.gov/omb);
(d) OMB Circular A-76, “Performance of Commercial Activities” (http://www.whitehouse.gov/omb); and
(e) OMB Circular A-94, “Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs” (http://www.whitehouse.gov/omb).
§ 102-33.75 What other guidance is available to us in planning to acquire Government aircraft?
You can find guidance for acquisition planning in:
(a) The “Aviation Planning Desk Guide” (available at http://www.gsa.gov/aviationpolicy) and
(b) OMB’s “Capital Programming Guide,” which is a supplement to OMB Circular A-11 (http://www.whitehouse.gov/omb).
OMB Circular A-76
§ 102-33.80 Must we comply with OMB Circular A-76 before we acquire Government aircraft?
Yes, before you acquire Government aircraft, you must comply with OMB Circular A-76 (http://www.whitehouse.gov/omb). If you are acquiring Federal aircraft, you must ensure that the private sector cannot provide Government aircraft or related aviation services more cost-effectively than you can provide Federal aircraft and related services.
The Process for Budgeting To Acquire Government Aircraft
§ 102-33.90 What is the process for budgeting to acquire a Federal aircraft (including a Federal aircraft transferred from another executive agency)?
(a) The process for budgeting to acquire a Federal aircraft or to accept a Federal aircraft transferred from another executive agency requires that you have specific authority from Congress in your appropriation, as called for in 31 U.S.C. 1343, to—
(1) Purchase, capital lease, or lease a Federal aircraft and to operate and maintain it; or
(2) Accept a Federal aircraft transferred from another executive agency and to operate and maintain it.
(b) For complete information on budgeting to own Federal aircraft (i.e., large purchase of a capital asset), see OMB Circular A-11, Part 2, Sections 25.1 and 51.18. Also see §§ 102-33.70 and 102-33.75.
§ 102-33.95 What is the process for budgeting to acquire Commercial Aviation Services (CAS)?
Except for leases and capital leases, for which you must have specific Congressional authorization as required by 31 U.S.C. 1343, you may budget to fund your CAS out of your agency’s operating budget. Also see §§ 102-33.70 and 102-33.75.
Contracting To Acquire Government Aircraft
§ 102-33.100 What are our responsibilities when contracting to purchase or capital lease a Federal aircraft or to award a CAS contract?
In contracting to purchase or capital lease a Federal aircraft or to award a CAS contract, you must follow the Federal Acquisition Regulation (FAR) (48 CFR Chapter 1) unless your agency is exempt from following the FAR.
§ 102-33.105 What minimum requirements must we put into our CAS contracts?
At a minimum, your CAS contracts and agreements must require that any provider of CAS comply with—
(a) Civil standards in 14 CFR that are applicable to the type of operation(s) you are asking the contractor to conduct;
(b) Applicable military standards; or
(c) Your agency’s Flight Program Standards (see §§ 102-33.140 through 102-33.185 for the requirements for Flight Program Standards).
Acquiring Aircraft Parts
§ 102-33.110 What are our responsibilities when acquiring aircraft parts?
When acquiring aircraft parts, you must:
(a) Acquire the parts cost-effectively and acquire only what you need;
(b) Inspect and verify that all incoming parts are documented as safe for flight prior to installation;
(c) Obtain all logbooks (if applicable) and maintenance records (for guidance on maintaining records for non-military parts, see Federal Aviation Administration (FAA) Advisory Circular 43-9C, “Maintenance Records,” which is available from the FAA at http://www.faa.gov);
(d) Plan for adequate storage and protection; and
(e) Refer to FAA Advisory Circular 21-29C, Change (2), “Detecting and Reporting Suspected Unapproved Parts” (http://www.faa.gov).
§ 102-33.115 Are there requirements for acquiring military Flight Safety Critical Aircraft Parts (FSCAP)?
Yes, when you acquire military Flight Safety Critical Aircraft Parts (FSCAP), you must—
(a) Accept FSCAP only when it is documented or traceable to its original equipment manufacturer. A part’s DOD FSCAP Criticality Code should be marked or tagged on the part or appear on its invoice/transfer document (see § 102-33.375 for further explanation of the FSCAP Criticality Codes); and
(b) Not install undocumented, but traceable FSCAP until you have the parts inspected and recertified by the original equipment manufacturer or other FAA-approved facility (see § 102-33.370 on FSCAP and AC 20-142).
§ 102-33.120 Are there requirements for acquiring life-limited parts?
Yes, when you acquire new or used life-limited parts, you must—
(a) Identify and inspect the parts, ensuring that they have civil or military-certified documentation; and
(b) Mutilate and dispose of any expired life-limited parts (see § 102-33.370 on handling life-limited parts).
Subpart C—Managing Government Aircraft and Aircraft Parts
Overview
§ 102-33.125 If we use Federal aircraft, what are our management responsibilities?
If you use Federal aircraft, you are responsible for—
(a) Establishing agency-specific Flight Program Standards, as defined in §§ 102-33.140 through 102-33.185;
(b) Accounting for the cost of acquiring, operating, and supporting your aircraft;
(c) Accounting for the use of your aircraft;
(d) Maintaining and accounting for aircraft parts;
(e) Reporting inventory, cost, and utilization data (for reporting requirements, see subpart E of this part); and
(f) Properly disposing of aircraft and parts following §§ 102-33.240 through 102-33.375.
§ 102-33.130 If we hire CAS, what are our management responsibilities?
If you hire CAS, you are responsible for—
(a) Establishing agency-specific Flight Program Standards, as defined in §§ 102-33.140 through 102-33.185, as applicable, and requiring compliance with these standards in your contracts and agreements;
(b) Accounting for the cost of your aircraft and services hired as CAS;
(c) Accounting for the use of your aircraft hired as CAS; and
(d) Reporting the cost and usage data for your CAS hires (for reporting requirements, see subpart E of this part).
§ 102-33.135 Do we have to follow OMB Circular A-123, “Management Accountability and Control,” for establishing management controls for our aviation program?
Yes, you must follow OMB Circular A-123, “Management’s Responsibility for Accountability and Control” (http://www.whitehouse.gov/omb), when establishing management controls for your aviation program. The circular requires that you establish organizations, policies, and procedures to ensure that, among other things, your aviation program achieves its intended results and you use your resources consistently with your agency’s missions.
Establishing Flight Program Standards
§ 102-33.140 What are Flight Program Standards?
Flight Program Standards are the minimum requirements that must be incorporated into your flight programs to ensure that your aircraft are operated safely, effectively, and efficiently. These requirements must:
(a) Be specific to your agency’s aviation operations, including your CAS;
(b) Meet the requirements identified in §§ 102-33.155 through 102-33.185.
(c) Meet or exceed applicable civil or military rules (in particular 49 U.S.C. 40102(a)(37) and 40125), and applicable FAA regulations); and
(d) Incorporate risk management techniques when civil or military rules do not apply.
§ 102-33.145 Why must we establish Flight Program Standards?
You must establish Flight Program Standards because Title 14 of the Code of Federal Regulations (14 CFR) may not cover or address all aspects of your agency’s flight program, such as non-certificated aircraft, high-risk operations, special personnel requirements, etc.
§ 102-33.150 What Federally-funded aviation activities of executive agencies are exempt from establishing Flight Program Standards under this part?
The following Federally-funded activities are exempt from establishing Flight Program Standards under this part:
(a) The Armed Forces (which includes the U.S. Coast Guard);
(b) Agencies in the Intelligence Community; and
(c) Entities outside the executive branch of the Federal Government when using aircraft loaned to them by an executive agency (that is, owned by an executive agency, but operated by and on behalf of the loanee) unless the loanee—
(1) Uses the aircraft to conduct official Government business; or
(2) Is required to follow §§ 102-33.140 through 102-33.185 under a Memorandum of Agreement governing the loan.
§ 102-33.155 How must we establish Flight Program Standards?
To establish Flight Program Standards, you must write, publish (as appropriate), implement, and comply with standards (specific to your agency), which establish or require (contractually, where applicable) policies and procedures for—
(a) Management/administration of your flight program (in this part, “flight program” includes CAS contracts);
(b) Operation of your flight program;
(c) Maintenance of your Government aircraft;
(d) Training for your flight program personnel;
(e) Safety of your flight program;
(f) Accident reporting and investigation as appropriate; and
(g) Reporting to FAIRS as required by this part.
Management/Administration
§ 102-33.160 What standards must we establish or require (contractually, where applicable) for management/administration of our flight program?
For management/administration of your flight program, you must establish or require (contractually, where applicable)—
(a) A management structure responsible for the administration, operation, safety, training, maintenance, and financial needs of your aviation operation (including establishing minimum requirements for these items for any commercial contracts); and
(b) Guidance describing the roles, responsibilities, and authorities of your flight program personnel, e.g., managers, pilots and other crewmembers, flight safety personnel, maintenance personnel, administrative personnel and dispatchers.
Operations
§ 102-33.165 What standards must we establish or require (contractually, where applicable) for operation of our flight program?
For operation of your flight program, you must establish or require (contractually, where applicable)—
(a) Basic qualifications and currency requirements for your pilots and other crewmembers, maintenance personnel, administrative personnel and other mission-related personnel;
(b) Limitations on duty time and flight time for pilots and other crewmembers;
(c) Procedures to record and track flight time, duty time, training of crewmembers, and applicable medical requirements;
(d) Compliance with owning-agency or military safety of flight notices and operational bulletins;
(e) Flight-following procedures to notify management and initiate search and rescue operations for lost or downed aircraft;
(f) Dissemination, as your agency determines appropriate, of a disclosure statement to all crewmembers and qualified non-crewmembers who fly aboard your agency’s Government aircraft (see Appendix A to this part);
(g) Creation of a manifest, at the origin of each flight, that contains the full names of all persons on board for each leg of flight, a point of contact for each person, and phone numbers for the points of contact;
(h) Documentation of any changes in the manifest by leg, and retention of manifests for two years from the time of flight;
(i) Procedures for reconciling flight manifests with persons actually on board and a method to test those procedures periodically;
(j) At the origin of each flight, preparation of a complete weight and balance computation and a cargo-loading manifest, and retention of this computation and manifest for 30 days from the date of flight;
(k) Appropriate emergency procedures and equipment for specific missions;
(l) Procedures to ensure that required Aviation Life Support Equipment (ALSE) is inspected and serviceable; and
(m) Procedures to implement a “risk assessment” before each flight and/or as frequently as necessary that include such items as weather, crew rest, type of flight (low level, Instrument Flight Rules (IFR), night, etc.) crew makeup, etc. This process should be accomplished in accordance with your agency’s operations, flight dispatch, or flight following procedures/program.
Maintenance
§ 102-33.170 What standards must we establish or require (contractually, where applicable) for maintenance of our Government aircraft?
For maintenance of your Government aircraft, you must establish or require (contractually, where applicable)—
(a) Procedures to record and track duty time and training of maintenance personnel;
(b) Aircraft maintenance and inspection programs that comply with whichever is most applicable among—
(1) Programs for ex-military aircraft;
(2) Manufacturers’ programs;
(3) FAA-approved programs (i.e., following the applicable parts of 14 CFR);
(4) FAA-accepted programs (i.e., those following ICAP guides or similar programs that have been accepted by the FAA); or
(5) Your agency’s self-prescribed programs;
(c) Compliance with owning-agency or military safety of flight notices, FAA airworthiness directives, advisory circulars and orders, or mandatory manufacturers’ bulletins applicable to the types of aircraft, engines, propellers, and appliances you operate;
(d) Procedures for operating aircraft with inoperable instruments and equipment (i.e., Minimum Equipment Lists and Configuration Deviation Lists);
(e) Technical support, including appropriate engineering documentation and testing, for aircraft, powerplant, propeller, or appliance repairs, modifications, or equipment installations;
(f) A quality control system for acquiring replacements, ensuring that the parts you acquire are suitable replacement parts and have the documentation needed to determine that they are safe for flight and are inspected and tested, as applicable;
(g) Procedures for recording and tracking maintenance actions; inspections; and the flight hours, cycles, and calendar times of life-limited parts and FSCAP; and
(h) The use of alternative aviation fuels in fleet aircraft to the maximum extent possible consistent with the availability of approved alternative fuels and aircraft operating procedures or manuals for those aircraft.
Training
§ 102-33.175 What standards must we establish or require (contractually, where applicable) to train our flight program personnel?
You must establish or require (contractually, where applicable) the following standards to train your flight program personnel—
(a) An instructional program to train your flight program personnel, initially and on a recurrent basis, in their roles, responsibilities, authorities, and in the operational skills relevant to the types of operations that you conduct. Flight program personnel may include, e.g., managers, pilots and other crewmembers, flight safety personnel, maintenance personnel, administrative personnel and dispatchers; and
(b) An instructional program that meets the specific requirements for safety manager training identified in § 102-33.180(a).
Safety
§ 102-33.180 What standards should we establish or require (contractually, where applicable) for aviation safety management?
You should establish or require (contractually, where applicable) the following aviation safety management standards:
(a) By June 30, 2015, a Safety Management System (SMS) that complies with the FAA’s current Advisory Circular that addresses Safety Management Systems (SMS) or an equivalent internationally recognized SMS standard. The SMS should include:
(1) Policies that define clear roles and responsibilities for implementing an SMS. This includes ensuring that senior level management has the ultimate responsibility for your SMS. It also includes appointing members of management as qualified aviation safety managers and safety officers (i.e., individuals who are responsible for an agency’s aviation safety program, regardless of title), who should be—
(i) Experienced as pilots, crewmembers, maintenance personnel, or have experience in aviation management or aviation maintenance program management; and
(ii) Graduated or certificated from an aviation safety officer course provided by a recognized training provider and authority in aviation safety before appointment or within one year after appointment; and
(2) A program for preventing accidents, which includes—
(i) Measurable accident prevention procedures (e.g., safety reviews, clear roles and responsibilities, operations and maintenance procedures, pilot and mechanic proficiency evaluations, fire drills, hazard analyses);
(ii) A procedure or system for disseminating accident-prevention information;
(iii) Safety training;
(iv) An aviation safety awards program that includes applying for the annual Federal Aviation Awards as appropriate;
(v) An annual review to ensure compliance with the GSA Gold Standard Program; and
(vi) A safety council or committee (applies to Federal aircraft-owning agencies);
(b) Procedures and processes for risk analysis and risk management that identify and mitigate hazards through formal administrative and engineering controls and provide recommendations to senior level managers for managing risk to an optimum level;
(c) Policies that require the use of independent, unbiased inspectors to verify compliance with the standards called for in this;
(d) Procedures for reporting unsafe operations to agency aviation safety officers and senior aviation safety managers without reprisal;
(e) A system to collect and report information on aircraft accidents and incidents (as required by 49 CFR part 830 and 41 CFR 102-33.445 and 102-33.450);
(f) Policies that identify clear standards for acceptable behavior; and
(g) A security program that includes—
(1) A designated security manager;
(2) A threat assessment process;
(3) Procedures for preventing and deterring unlawful acts;
(4) Procedures for responding to threats and unlawful acts;
(5) Security training for personnel; and
(6) Policies and procedures for a mail security plan that meet the mail security requirements contained in FMR 102-192, “Mail Management,” Subpart C, “Security Requirements for All Agencies,” §§ 102-192.70 through 102-192.80. Specifically, section 102-192.80 identifies topics that must be addressed in an agency’s mail security plan, to include a plan to protect staff and all other occupants of agency facilities from hazards that might be delivered in the mail, which would include an agency’s use of aircraft for mail delivery.
§ 102-33.185 What standards must we establish or require (contractually, where applicable) for responding to aircraft accidents and incidents?
You must establish or require (contractually, where applicable) the following standards for responding to aircraft accidents and incidents:
(a) An aircraft accident/incident reporting policy to ensure that you will comply with the National Transportation Safety Board’s (NTSB) regulations (located in 49 CFR parts 830 and 831), including notifying NTSB immediately when you have an aircraft accident or an incident as defined in 49 CFR 830.5. In addition, this policy must contain a method of notifying the U.S. General Services Administration of an accident or incident that was reported to the NTSB. Refer to §§ 102-33.445 and 102-33.450 for further information;
(b) An agency, bureau, or field level accident/incident response plan, modeled on the NTSB’s “Federal Plan for Aviation Accidents Involving Aircraft Operated by or Chartered by Federal Agencies,” and periodic disaster response exercises to test your plan. A copy of the NTSB’s plan is available at http://www.ntsb.gov. The plan should also refer to or incorporate procedures (as outlined in FAA Advisory Circular 120-92) to identify the potential for accidents or incidents;
(c) Procedures (see 49 CFR 831.11) for participation as a party to NTSB accident or incident investigations involving aircraft that your agency either owns or hires, and for conducting parallel investigations, as appropriate;
(d) Training in investigating accidents/incidents for your agency’s personnel who may be asked to participate in NTSB investigations or to conduct a parallel investigation; and
(e) Procedures for disseminating, in the event of an aviation disaster that involves one of your Government aircraft, information about eligibility for benefits contained in the disclosure statement in appendix A of this part to anyone injured, to the injured or deceased persons’ points of contact (listed on the manifest), and to the families of injured or deceased crewmembers and qualified non-crewmembers.
This part does not supersede any of the regulations in 49 CFR parts 830 and 831. For definitions of terms and complete regulatory guidance on notifying the NTSB and reporting aircraft accidents and incidents, see 49 CFR parts 830 and 831.
Accounting for the Costs of Government Aircraft
§ 102-33.190 What are the aircraft operations and ownership costs for which we must account?
You must account for the operations and ownership costs of your Government aircraft, including your Unmanned Aircraft Systems (UAS), as described in the “U.S. Government Aircraft Cost Accounting Guide” (CAG), available at (http://www.gsa.gov/aviationpolicy), which follows OMB Circular A-126 (http://www.whitehouse.gov/omb). To account for aircraft costs, you must do at least the following:
(a) Justify acquisitions to support the agency’s aviation program;
(b) Justify the use of Government aircraft in lieu of commercially available aircraft, and the use of one Government aircraft in lieu of another;
(c) Develop a variable cost rate for each aircraft or aircraft type (i.e., make and model) in your inventory;
(d) Recover the costs of operating Government aircraft;
(e) Determine the cost effectiveness of various aspects of agency aircraft programs; and
(f) Accumulate aircraft program costs following the procedures defined in the CAG, available at (http://www.gsa.gov/aviationpolicy).
§ 102-33.195 Do we need an automated system to account for aircraft costs?
(a) Yes, if you own Federal aircraft or operate bailed aircraft, you must maintain an automated system to account for aircraft costs by collecting the cost data elements required by FAIRS. The functional specifications and data definitions for a FAIRS-compliant system are described in the “Common Aviation Management Information Standard” (C-AMIS), which is available from the Aviation Policy Division. See §§ 102-33.395, 102-33.405, and 102-33.410 for more information on FAIRS, and §§ 102-33.455 and 102-33.460 for more information on C-AMIS.
(b) Agencies that use only CAS aircraft and do not have Federal aircraft must keep records adequate for reporting information through FAIRS, but are not required to have an automated system. See §§ 102-33.435 and 102-33.440 for the information on CAS that you must report through FAIRS.
§ 102-33.200 Must we periodically justify owning and operating Federal aircraft?
Yes, after you have held a Federal aircraft for five years, you must:
(a) Justify owning and operating the aircraft by reviewing your operations and establishing that you have a continuing need for the aircraft, using the procedures required in OMB Circular A-76 and OMB Circular A-11, Part 7, Appendix B, Budgetary treatment of lease-purchases and leases of capital assets; and
(b) Review the continuing need for each of your aircraft and the cost-effectiveness of your aircraft operations as directed by OMB Circulars A-11 and A-76, every five years.
§ 102-33.205 When we use our aircraft to support other executive agencies, must we recover the operating costs?
Yes, you must recover the following:
(a) Under 31 U.S.C. 1535 and other statutes, you may be required to recover the costs of operating aircraft in support of other agencies. Depending on the statutory authorities under which you acquired and operate your aircraft, you will use either of the following two methods for establishing the rates charged for using your aircraft:
(1) The variable cost recovery rate; or
(2) The full cost recovery rate.
(b) See the U.S. Government Aircraft Cost Accounting Guide (CAG) (http://www.gsa.gov/aviationpolicy), for the definitions of “variable cost recovery rate” and “full cost recovery rate.”
Accounting for the Use of Government Aircraft
§ 102-33.210 How do we account for the use of our Government aircraft?
To account for the use of Government aircraft, including your Unmanned Aircraft Systems (UAS), you must document all flights and keep this documentation for two years after the date of the flight. For each flight, record the—
(a) Aircraft’s registration mark;
(b) Owner and operator (the owner may not be the operator, as is the case when a CAS aircraft, owned commercially, is operated by U.S. Government personnel);
(c) Purpose of the flight (the Governmental function that the aircraft was dispatched to perform);
(d) Departure and destination points;
(e) Flight date(s) and times;
(f) Manifest (see § 102-33.165(g) and (h)); and
(g) Name(s) of the pilot(s) and crewmembers.
§ 102-33.215 May we use Government aircraft to carry passengers?
Yes, you may use Government aircraft to carry passengers with the following restrictions:
(a) You may carry passengers only on aircraft that you operate or require contractually to be operated in accordance with the rules and requirements in 14 CFR; and
(b) For certain kinds of travel, your agency must justify passengers’ presence on Government aircraft. See OMB Circular A-126 and the Federal Travel Regulation (FTR) §§ 301-10.260 through 301-10.266, and 301-70.800 through 301-70.808, and 301-70.910 (41 CFR 301-10.260 through 301-10.266, 301-70.800 through 301-70.808, and 301-70.910) for complete information on authorizing travel and analyzing costs before authorizing travel on Government aircraft.
§ 102-33.220 What are the responsibilities of our aviation program in justifying the use of a Government aircraft to transport passengers?
After receiving a request from your agency, your aviation program’s responsibilities in justifying the use of a Government aircraft to transport passengers are to your travel approving authority:
(a) Cost estimates to assist in determining whether or not use of a Government aircraft to carry passengers is justified. See OMB Circular A-126 (http://www.whitehouse.gov/omb) for more information on justifying travel on Government aircraft. See also FTR §§ 301-10.260 through 301-10.266, and 301-70.800 through 301-70.808, and 301-70.910 (41 CFR 301-10.260 through 301-10.266, 301-70.800 through 301-70.808, and 301-70.910) for guidance on estimating the cost of using a Government aircraft. The cost of using a Government aircraft is—
(1) The variable cost of using a Federal aircraft;
(2) The amount your agency will be charged by a CAS provider; or
(3) The variable cost of using an aircraft owned by another agency as reported by the owning agency; and
(b) Information to assist in the analysis of alternatives to travel on Government aircraft. The information must include the following:
(1) If no follow-on trip is scheduled, all time required to position the aircraft to begin the trip and to return the aircraft to its normal base of operations;
(2) If a follow-on trip requires repositioning, the cost for the repositioning should be charged to the associated follow-on trip;
(3) If an aircraft supports a multi-leg trip (a series of flights scheduled sequentially), the use of the aircraft for the total trip may be justified by comparing the total variable cost of the entire trip to the commercial aircraft cost (including charter) for all legs of the trip; and
(4) The use of foreign aircraft as CAS is authorized when the agency has determined that an equivalent level of safety exists as compared to U.S. operations of a like kind. The safety of passengers shall be the overriding consideration for the selection of travel mode when comparing foreign sources of scheduled commercial airlines and CAS.
Managing Aircraft Parts
§ 102-33.225 How must we manage aircraft parts?
You must manage your aircraft parts by maintaining proper storage, protection, maintenance procedures, and records for the parts throughout their life cycles.
§ 102-33.230 May we use military FSCAP on non-military FAA-type certificated Government aircraft?
You may use dual-use military FSCAP on non-military aircraft operated under restricted or standard airworthiness certificates if the parts are inspected and approved for such installation by the FAA. See detailed guidance in FAA Advisory Circular 20-142, Change (1), “Eligibility and Evaluation of U.S. Military Surplus Flight Safety Critical Aircraft Parts, Engines, and Propellers” (http://www.faa.gov).
§ 102-33.235 What documentation must we maintain for life-limited parts and FSCAP?
For life-limited parts and FSCAP, you must hold and update the documentation that accompanies these parts for as long as you use or store them. When you dispose of life-limited parts or FSCAP, the up-to-date documentation must accompany the parts. (See § 102-33.370.)
Subpart D—Disposing or Replacing of Government Aircraft and Aircraft Parts
Overview
§ 102-33.240 What must we consider before disposing or replacing aircraft and aircraft parts?
Before disposing of aircraft and aircraft parts, you must first determine if the aircraft or parts are excess to your agency’s mission or, if your aircraft or parts are not excess, if you will need replacements, as follows:
| (a) If your aircraft/parts are . . . | And . . . | Then . . . |
|---|---|---|
| No longer needed to perform their mission(s) for your agency, i.e., they are excess to your needs, | You do not need to replace them, | You must report them to GSA as excess property (see 41 CFR 102-36.45(e)). |
| (b) If your aircraft/parts are . . . | And . . . | Then . . . |
| No longer suitable, or capable of performing their mission(s) for your agency, | You do need to replace them, | You may consider using the exchange/sale authority (see 41 CFR part 102-39). |
§ 102-33.245 May we report as excess, or replace (i.e., by exchange/sale), both operational and non-operational aircraft?
Yes, you may report as excess, or replace both operational and non-operational aircraft by following the rules governing excess personal property and exchange/sale (see 41 CFR parts 102-36 and 102-39, respectively).
§ 102-33.250 May we declassify aircraft?
Yes, you may declassify aircraft (See §§ 102-33.415 and 102-33.420).
(a) A declassified aircraft is no longer considered an aircraft, but may be considered as a group of aircraft parts or other property for ground use only.
(b) You must retain documentation and traceability on all parts that are intended for use as replacement parts on other aircraft. You must carry such “aircraft parts or other property” on your property records under the appropriate Federal Supply Classification group(s) (e.g., miscellaneous property).
(c) For disposal of the property remaining after declassification of an aircraft, you must follow the property disposal regulations in 41 CFR parts 102-36, 102-37, 102-38 and 102-39.
§ 102-33.255 Must we document FSCAP or life-limited parts installed on aircraft that we will report as excess or replace?
Yes, you must comply with the documentation procedures described in § 102-33.370 if your aircraft and/or engines contain FSCAP or life-limited parts that you will report as excess or replace.
§ 102-33.260 When we report as excess, or replace, an aircraft (including a declassified aircraft), must we report the change in inventory to the Federal Aviation Interactive Reporting System (FAIRS)?
(a) Yes. When you report as excess or replace an aircraft you must report the change in inventory to FAIRS. For more information see § 102-33.405.
(b) Within 14 calendar days of the date you dispose of the aircraft, you must report—
(1) The disposal method (e.g., reassignment, inter-agency transfer, donation, sale as surplus or scrap, declassification, or exchange/sale);
(2) The disposal date; and
(3) The identity and type of recipient (e.g., State, educational institution, executive agency, commercial vendor).
Reporting Excess Federal Aircraft
§ 102-33.265 What must we do with aircraft that are excess to our needs?
If aircraft are excess to your needs, you must:
(a) Reassign the aircraft within your agency if any of your sub-agencies can use the aircraft; or
(b) Report the aircraft as excess property to GSA (see 41 CFR part 102-36) if none of your sub-agencies can use the aircraft.
§ 102-33.270 What is the process for reporting an excess aircraft?
To report an excess aircraft, you must:
(a) Report electronically to GSA’s Federal Disposal System GSAXcess® (http://gsaxcess.gov). For information on reporting excess property electronically, contact the Federal Acquisition Service (FAS), Pacific Rim Region (Region 9) at (415) 522-2777; and
(b) Submit a Standard Form (SF) 120, Report of Excess Personal Property (see § 102-2.135), to: General Services Administration, Federal Acquisition Service, Pacific Rim Region, 450 Golden Gate Avenue, 4th Floor West, San Francisco, CA, 94102-3434.
Replacing Aircraft Through Exchange/Sale
§ 102-33.275 What should we consider before replacing our aircraft through exchange/sale?
Before an exchange/sale of your aircraft, you should consider whether:
(a) You have a continuing need for similar property and that the property being exchanged or sold is not excess or surplus; and
(b) The exchange/sale meets all other requirements in 41 CFR part 102-39.
§ 102-33.280 What are our options if we need a replacement aircraft?
If you need to replace an aircraft, your options are—
(a) Negotiating and conducting an exchange transaction directly with an aircraft provider and obtaining credit toward the purchase of a replacement aircraft, following the procurement rules applicable to your agency; or
(b) Selling the aircraft and using the proceeds to offset the cost of purchasing a replacement aircraft, following 41 CFR part 102-39. Sales Centers (SC) that are currently authorized to conduct sales, as well as contact information for the GovSales Program Manager, are available on the GovSales Web site at http://www.gsa.gov/portal/content/105020.
§ 102-33.285 Do we need to include any special disclaimers in our exchange/sale agreements for non-certificated aircraft or aircraft that we have operated as public aircraft (i.e., not in compliance with 14 CFR)?
Yes, when you exchange/sell non-certificated aircraft or aircraft maintained as public aircraft, you must ensure that the exchange/sale offerings contain the following statement:
“Warning to purchasers/recipients. The aircraft you are purchasing or receiving in an exchange may not be in compliance with applicable Federal Aviation Administration (FAA) requirements. You are solely responsible for bringing the aircraft into compliance with 14 CFR C