Title 16—Commercial Practices--Volume 1
PART 1018—ADVISORY COMMITTEE MANAGEMENT
§ 1018.1   Purpose.
This part contains the Consumer Product Safety Commission's regulations governing the establishment, operations and administration of advisory committees under its jurisdiction. These regulations are issued pursuant to section 8(a) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. I), and supplement Executive Order No. 11769 (39 FR 7125 (1974)) and Office of Management and Budget Circular No. A-63 (Rev.) (39 FR 12369 (1974)).
§ 1018.2   Definitions.
(a) Advisory Committee Act or Act means the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. I (1974)).
(b) OMB Circular No. A-63 means Office of Management and Budget Circular No. A-63 (Rev.), entitled “Advisory Committee Management” (39 FR 12369, April 5, 1974), as amended.
(c) Advisory Committee means any committee, board, commission, council, conference, panel, task force or other similar group, or any subcommittee or other subgroup, thereof, which is established or used by the Commission in the interest of obtaining advice or recommendations and which is not composed wholly of full-time officers or employees of the Federal Government.
(d) Statutory advisory committee means an advisory committee established or directed to be established by Congress.
(e) Non-statutory advisory committee means an advisory committee established by the Commission, including a committee which was authorized, but not established by Congress.
(f) Ad hoc advisory committee means a non-continuing, non-statutory advisory committee established by the Commission for the stated purpose of providing advice or recommendations regarding a particular problem which must be resolved immediately or within a limited period of time.
(g) Non-Commission established advisory committee means an advisory committee established by a Federal, State, or local instrumentality other than the Commission, or by a private organization or group and utilized by the Commission for advisory services.
(h) GSA Secretariat means the Committee Management Secretariat of the General Services Administration.
(i) Chairman means the Chairman of the Consumer Product Safety Commission.
§ 1018.3   Policy.
In application of this part, Commission officials shall be guided by the Advisory Committee Act, the statutes creating the Commission's advisory committees, and by the directives in Executive Order No. 11769 and OMB Circular No. A-63. Principles to be followed include:
(a) Limiting the number of advisory committees to those that are essential and terminating any committee not fulfilling its purpose;
(b) Insuring effective use of advisory committees and their recommendations, while assuring that decisional authority is retained by the responsible Commission officers;
(c) Providing clear goals, standards, and uniform procedures with respect to the establishment, operation, and administration of advisory committees;
(d) Ensuring that adequate information is provided to the public regarding advisory committees; and
(e) Ensuring adequate opportunities for access by the public to advisory committee meetings and information.
§ 1018.4   Applicability.
(a) This part shall apply to all advisory committees (whether statutory or non-statutory) subject to the jurisdiction of the Commission. This part also shall apply to ad hoc advisory committees and non-Commission established advisory committees when they are performing advisory services for the Commission.
(b) Nothing in this part shall apply to any of the following types of organizations:
(1) Any local civic group whose primary function is that of rendering a public service with respect to a Federal program;
(2) Any state or local government committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies;
(3) Any committee whether advisory, interagency, or intraagency which is composed wholly of full-time officers or employees of the Federal Government;
(4) Persons or organizations having contractual relationships with the Commission; and
(5) Persons or organizations developing consumer product safety standards under section 7 of the Consumer Product Safety Act (15 U.S.C. 2056).
(c) This part shall not apply to a committee or other group to the extent that it is specifically exempted by statute from the Federal Advisory Committee Act.
§ 1018.5   Advisory Committee Management Officer.
The Chairman shall designate an Advisory Committee Management Officer who shall:
(a) Exercise control and supervision over the establishment, procedures, and accomplishments of all advisory committees established or utilized by the Commission;
(b) Assemble and maintain the reports, records, and other papers of any such committee during its existence, and carry out, on behalf of the Secretary of the Commission, the provisions of section 552 of Title 5, United States Code (Freedom of Information Act) and the Commission's Procedures for Disclosure or Production of Information Under the Freedom of Information Act (16 CFR part 1015) with respect to such reports, records, and other papers; and
(c) Perform such other functions as specified in this part.
§ 1018.11   Charters.
(a) No advisory committee shall meet or take any action until its charter has been filed with the GSA Secretariat in accordance with the requirements of section 9(c) of the Federal Advisory Committee Act.
(b) The Advisory Committee Management officer shall have responsibility for the preparation and filing of charters.
§ 1018.12   Statutory advisory committees.
The Commission has one statutory advisory committee subject to the Federal Advisory Committee Act. The Toxicological Advisory Board was established by the Commission on December 22, 1978, pursuant to section 20 of the Federal Hazardous Substances Act, as amended (Pub. L. 95-631, 92 Stat. 3747, 15 U.S.C. 1275).
§ 1018.13   Non-statutory advisory committees.
(a) In proposing to establish a non-statutory advisory committee, the Commission shall follow the procedural requirements of section 9(a)(2) of the Advisory Committee Act and section 6(a) of OMB Circular No. A-63.
(b) A non-statutory advisory committee shall not be established if the proposed function can be performed effectively by Commission personnel, by an existing advisory committee, or by another Federal agency.
§ 1018.14   Non-Commission established advisory committees.
(a) To the extent practicable, the Commission shall utilize advisory committees already established by Federal, State, or local government or by private organizations, rather than establish a new advisory committee or expand the functions of an existing Commission advisory committee.
(b) In utilizing a non-Commission established advisory committee, Commission officials shall follow the applicable provisions of this part and the requirements of the Advisory Committee Act.
§ 1018.15   Membership composition.
The Toxicological Advisory Board, as specified in section 20 of the Federal Hazardous Substances Act, as amended (Pub. L. 95-631, 92 Stat. 3747, 15 U.S.C. 1275), shall be composed of nine members appointed by the Commission. Each member of the Board shall be qualified by training and experience in one or more fields applicable to the duties of the Board, and at least three of the members of the Board shall be members of the American Board of Medical Toxicology. The Commission will seek a balanced membership, including individuals representative of consumers, government and industry.
§ 1018.16   Membership selection.
(a) Whenever new applicants are required for a Commission advisory committee, public notice will be issued in the Federal Register inviting individuals to submit, on or before a specified date, applications or nominations for membership.
(b) An applicant for membership on an advisory committee shall disclose all affiliations, either paid or as a volunteer, that bear any relationship to the subject area of product safety or to membership on the advisory committee. This disclosure shall include both current affiliations and relevant past affiliations.
(c) The Secretary of the Commission shall, from time to time, appoint a Candidate Evaluation Panel consisting of qualified, staff members of the Commission, including the Advisory Committee Management Officer.
(d) The Candidate Evaluation Panel, using selection criteria established by the Commission, shall evaluate all candidates and submit to the Commissioners the names of those candidates it recommends for membership. Where possible, at least three candidates shall be recommended for each appointment to be made. Final selection for membership shall be made by the Commissioners.
(e) The membership of each Commission Advisory Committee shall be fairly balanced in terms of geographic location, age, sex, and race.
§ 1018.17   Appointments.
(a) The Chairman shall appoint as members to advisory committees those persons selected by the Commissioners.
(b) The term of appointment to an advisory committee shall be for two years, unless otherwise specified by the Commission. To promote maximum participation, an advisory committee member may serve for only one consecutive full term. This subsection shall not be deemed to affect the term of appointment of any present member of an advisory committee in effect on the original effective date of this part, September 24, 1975.
(c) A vacancy that occurs during the term of an appointment normally will be filled by the Commission from the applications or nominations on file. Appointment to any such vacancy will be for the unexpired portion of the original appointment. Appointees to such an unexpired term may be reappointed for a full two-year term.
(d) Notwithstanding paragraphs (b) and (c) above, members of the Toxicological Advisory Board shall be appointed for terms of three years. Members may be reappointed for a subsequent three-year term. Any vacancy on the Board shall be filled in the same manner in which the original appointment was made. Any person appointed to fill a vacancy occurring before the expiration of the term for which his or her predecessor was appointed shall serve only for the remainder of such term.
§ 1018.21   Calling of meetings.
Advisory committees shall, as a general rule, meet four times per year, except that, as provided by statute, the Toxicological Advisory Board shall meet not less than two times each year. No advisory committee shall hold a meeting without advance approval of the Chairman or the Commission official designated under § 1018.23(a). Before giving such advance approval, the Chairman or Commission official shall notify the Commission of the date of the proposed meeting.
§ 1018.22   Notice of meetings.
(a) Meetings shall be called by written and/or oral notice to all members of the advisory committee.
(b) Notice of each advisory committee meeting shall be published in the Federal Register as well as other means to give widespread public notice, at least 15 calendar days before the date of the meeting, except that shorter notice may be provided in emergency situations. Reasons for such emergency exceptions shall be made part of the meeting notice.
(c) A meeting notice shall include:
(1) The official designation of the committee;
(2) The address and site of the meeting;
(3) The time of the meeting;
(4) The purpose of the meeting, including where appropriate, a summary of the agenda;
(5) Whether, or the extent to which, the public will be permitted to attend or participate;
(6) An explanation of how any person who wishes to do so may file a written statement with the committee before, during, or after the meeting; and
(7) The procedure by which a public attendee may present an oral statement or question to members of the committee.
§ 1018.23   Designated Commission employee.
(a) The Chairman shall designate a member of the Commission or other Commission officer or employee to chair or attend each meeting of each advisory committee.
(b) Unless otherwise provided in the statute creating a statutory advisory committee, the committee normally will be chaired, on a rotating basis, by a member of the Commission.
(c) No advisory committee shall conduct any meeting in the absence of the officer or employee designated under paragraph (a) of this section.
(d) The officer or employee designated under paragraph (a) of this section is authorized to adjourn any advisory committee meeting whenever he or she determines adjournment to be in the public interest.
§ 1018.24   Agenda.
Prior to each advisory committee meeting, the Advisory Committee Management Officer shall prepare and, after approval by the officer or employee designated under § 1018.23 (a), shall distribute to each committee member the agenda for that meeting. The agenda for a meeting shall list the matters to be discussed at the meeting and shall indicate whether and when any part of the meeting will concern matters which are exempt from public disclosure under the Freedom of Information Act (5 U.S.C. 552(b) or section 6(a)(2) of the Consumer Product Safety Act (15 U.S.C. 2045(a)(2)).
§ 1018.25   Minutes and meeting reports.
(a) The Advisory Committee Management Officer shall be responsible for the preparation of detailed minutes of each meeting of each advisory committee. The minutes shall include at least the following:
(1) The time and place of the meeting;
(2) A list of advisory committee members and staff and Commission employees present at the meeting;
(3) A complete summary of all matters discussed and conclusions reached;
(4) Copies of all reports received, issued, or approved by the advisory committee; and
(5) A description of public participation, including a list of members of the public who presented oral or written statements and an estimate of the number of members of the public who attended the meeting.
(b) The chairman of the advisory committee shall certify the accuracy of the minutes.
(c) Whenever a non-Commission established committee convenes and, at the request of the Commission, a portion of the session is allocated to the rendering of advisory services to the Commission, the Advisory Committee Management Officer shall attend and prepare minutes for that portion of the meeting in accordance with this section.
(d) In addition to the information required by subsection (a) of this section, the minutes of the Toxicological Advisory Board shall specify the reasons for all conclusions reached and, where conclusions are not unanimous, the Board is encouraged to submit minority or dissenting opinions.
§ 1018.26   Advisory functions.
(a) Unless otherwise specifically provided by statute, advisory committees shall be utilized solely for advisory functions.
(b) The Commission shall ensure that the advice and recommendations of advisory committees shall not be in-appropriately influenced by the Commission, its staff, or by any special interest, but will be the result of the advisory committee's independent judgment.
§ 1018.27   Public participation.
(a) The Commission is committed to a policy of encouraging public participation in its activities and will hold all advisory committee meetings open to the public.
(b) The guidelines in section 8(c) of OMB Circular A-63 shall be followed in providing public access to advisory committee meetings.
§ 1018.28   Records and transcripts.
(a) Subject to section 552 of title 5, United States Code (Freedom of Information Act) and 16 CFR part 1015 (Commission's Procedures for Disclosure or Production of Information under the Freedom of Information Act), the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agendas or other documents which were made available to or prepared for or by an advisory committee shall be made available for public inspection and copying in the Commission's Office of the Secretary.
(b) Advisory Committee documents shall be made available until the advisory committee ceases to exist. Disposition of the advisory committee documents shall be determined by the Secretary of the Commission at that time.
§ 1018.29   Appeals under the Freedom of Information Act.
Appeals from the denial of access to advisory committee documents shall be considered in accordance with the Commission's Procedures for Disclosure or Production of Information under the Freedom of Information Act (16 CFR part 1015).
§ 1018.31   Support services.
Unless the statutory authority for a particular advisory committee provides otherwise, the Advisory Committee Management Officer shall be responsible for providing and overseeing all necessary support services for each advisory committee established by or reporting to the Commission. Support services include providing committee staff, meeting rooms, supplies, and funds, including funds for the publication of reports.
§ 1018.32   Compensation and travel expenses.
(a) A single rate of compensation will be offered to members of all advisory committees with the exception of government employees and those individuals whose company or organization prohibits such payment. This rate shall be $100 per day for each day in attendance at the meeting and for each day of travel.
(b) The Commission shall determine per diem and travel expenses for members, staffs, and consultants in accordance with section 7(d) of the Advisory Committee Act and section 11 of OMB Circular No. A-63.
(c) Members of advisory committees, while engaged in the performance of their duties away from their homes or regular place of business, may be allowed travel expenses including per diem in lieu of expenses as authorized by 5 U.S.C. 5703.
§ 1018.33   Change of status.
Any advisory committee member who changes his or her affiliation or who assumes an additional affiliation, so as to actually or potentially affect his or her representational capacity on an advisory committee (upon which the member's application was based), shall immediately notify, in writing, the Advisory Committee Management Officer. Such notification shall include all relevant information concerning the change in affiliation and a statement by the member expressing his or her opinion regarding the implications of such change. The notification and any other relevant information shall be evaluated by the Commissioners to determine the appropriateness of the member's continued membership on the advisory committee.
§ 1018.34   Conflict of interest.
Members of the Commission's statutory advisory committees are not legally subject to the standards of conduct and conflict of interest statutes and regulations applicable to Commission employees. However, it is important to avoid situations in which a member of an advisory committee has an actual or apparent conflict of interest between the member's private interests (or the interests of the member's organization) and the member's interest in properly performing his or her duties as an advisory committee member. To preclude any such actual or apparent conflict of interest, committee members shall be subject to the following guidelines:
(a) Committee members should not personally participate, either for themselves or on behalf of an organization, in negotiations, or the preparation of negotiations, for contracts with or grants from the Commission. Nor should committee members, either as an individual or on behalf of an organization, become personally involved in the performance of work under such a negotiated contract or grant awarded by the Commission. Committee members may participate in preparing bids for and performing work under advertised contracts where price is the single factor in the determination of award.
(b) Committee members should not become personally involved in the preparation or submission of a proposal to develop a safety standard or regulation under any of the Acts administered by the Commission.
(c) Committee members representing anyone in a professional capacity in a proceeding before the Commission should, pursuant to paragraph (e) and (f) of this section, advise the committee chairperson and the other members of the committee on which he or she serves of the representation prior to the committee's discussion regarding that proceeding. Where the chairperson of the committee determines that the representation involves a conflict or the appearance of a conflict of interest, the member will be asked to withdraw from the discussion of the proceeding. In circumstances where withdrawal from the committee's discussion or consideration of the matter is determined by the Commission to be insufficient to avoid a conflict or apparent conflict of interest, continued representation may be considered incompatible with membership on the committee.
(d) Committee members should exercise caution to ensure that their public statements are not interpreted to be official policy statements of the Commission.
(e) Committee members shall disclose to the committee chairperson and to the other members of the committee on which he or she serves, any special interest in a particular proceeding or matter then pending before the committee which in any way may affect that member's position, views or arguments on the particular proceeding or matter. The disclosure shall be made orally prior to the commencement of the discussion. “Special interest” is not intended to include a member's general interest in presenting a position, views, or arguments in his or her representational capacity.
(f) Where the chairperson of the committee determines that the disclosure referred to in paragraph (e) of this section reveals a conflict or apparent conflict of interest with respect to a member's involvement in the committee's consideration or discussion of a particular matter, the member will be asked to withdraw from the discussion of the matter.
(g) The provisions of paragraphs (a) and (b) of this section do not apply to state and local government officers and employees.
§ 1018.35   Termination of membership.
Advisory committee membership may be terminated at any time upon a determination by the Commission that such action is appropriate.
§ 1018.41   Agency records on advisory committees.
(a) In accordance with section 12(a) of the Advisory Committee Act, the Advisory Committee Management Officer shall maintain, in the Office of the Secretary, records which will fully disclose the nature and extent of the activities of each advisory committee established or utilized by the Commission.
(b) The records shall include a current financial report itemizing expenditures and disclosing all funds available for each advisory committee during the current fiscal year.
(c) The records shall also include a complete set of the charters of the Commission's advisory committee and copies of the annual reports on advisory committees.
§ 1018.42   Annual report.
(a) The Advisory Committee Management Officer shall prepare an annual report on the Commission's advisory committees for inclusion in the President's annual report to Congress as required by section 6(c) of the Advisory Committee Act. This report shall be prepared and submitted in accordance with General Services Administration guidelines (39 FR 44814, December 27, 1974).
(b) Results of the annual comprehensive review of advisory committee made under § 1018.43 shall be included in the annual report.
§ 1018.43   Comprehensive review.
A comprehensive review of all Commission established or utilized advisory committees shall be made annually in accordance with section 10 of the GSA Circular No. A-63, as amended, and shall be submitted to the GSA Secretariat by November 30 of each year.
§ 1018.61   Statutory advisory committees.
A new charter shall be filed for each statutory advisory committee in accordance with section 9(c) of the Advisory Committee Act and § 1018.11 upon the expiration of each successive two-year period following the date of enactment of the statute establishing or requiring the establishment of the committee.
§ 1018.62   Non-statutory advisory committees.
(a) Each non-statutory advisory committee established by the Commission after the effective date of this part shall terminate not later than two years after its establishment unless prior to that time it is renewed in accordance with paragraph (c) of this section.
(b) Each non-statutory advisory committee which is renewed by the Commission shall terminate not later than two years after its renewal unless prior to that time it is again renewed in accordance with paragraph (c) of this section.
(c) Before a non-statutory advisory committee can be renewed by the Commission, the chairman shall inform the GSA Secretariat by letter not more than 60 days nor less than 30 days before the committee expires of the following:
(1) His or her determination that renewal is necessary and is in the public interest;
(2) The reasons for his or her determination;
(3) The Commission's plan to attain balanced membership of the committee, and;
(4) An explanation of why the committee's functions cannot be performed by the Commission or by another existing advisory committee.
(d) If the GSA Secretariat concurs, the Chairman shall certify in writing that the renewal of the advisory committee is in the public interest and shall publish notice of the renewal in the Federal Register and shall file a new charter.