Federal Advisory Committee Act

Posted: Sep 7, 2010

Congress passed the Federal Advisory Committee Act (FACA) to open up the process through which non-government groups give advice to federal agencies, Congress, and the president. Federal advisory committees play an important role in shaping public policy by providing advice on a wide array of issues, such as stem cell research, drinking water standards, space exploration, drug approvals, and federal land management. About 950 advisory committees perform peer reviews of scientific research; offer advice on policy issues; identify long-range issues; and evaluate grant proposals, among other functions. 

The law and its regulations provide detailed rules for creating and operating official committees that advise the federal government. These rules include special requirements for balancing committee memberships, conducting open meetings, and keeping detailed records. These rules are designed to limit the influence (at least the behind-the-scenes influence) of special interest groups on federal agencies and the president. FACA does not apply to individuals and many groups — including most collaborative groups — giving advice. The following descriptions focus specifically on groups that advise federal agencies, but many of the rules apply to congressional and presidential advisory groups as well.
Federal Advisory Committee Act

Key Concepts

FACA Advisory Committees

The special requirements of FACA apply to many groups that advise or make recommendations to federal agencies, Congress or the president. In specific terms, FACA applies to committees, boards, commissions, councils, conferences, panels, task forces, or other similar groups "established by" or "utilized by" the federal government If a federal agency creates, manages, or controls such a group, it must be specially chartered and must follow FACA rules. 

Federal agencies can establish or create official advisory committees. For example, the Federal Land Policy and Management Act (FLPMA) requires the Secretary of the Interior to create FACA advisory committees, called Resource Advisory Committees (RACs), to advise her and the Bureau of Land Management (BLM) on public land management issues. Similarly, the Environmental Protection Agency created the National Environmental Justice Advisory Council to advise it on environmental justice matters. 

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The special requirements of FACA also apply to committees "utilized by" federal agencies. This does not mean that every time an agency gets advice from or "uses" a group, it has to follow FACA rules. A committee is not technically "utilized by" an agency unless the agency actually controls or manages the operations of the committee. Some important criteria to examine in determining if a group is managed by an agency is whether the agency manages or controls the group's membership and agenda or funds the group's activities. For example, a local citizens group could meet with federal officials to advise them on how to improve the condition of national forest trails without having to follow FACA rules. Watershed groups and many forestry groups are also examples of groups that give advice to agencies, but are not generally established, managed, or controlled by the agency, and so do not have to follow FACA rules.

For the text of FACA and FACA regulations, see Links: Laws and Regulations at the end of this section.

FACA Committee Composition

If a group fits the criteria for a FACA advisory committee, it must have a clearly defined purpose and a fairly balanced membership. The committee also has to be set up to assure that the advice and recommendations that it gives are not inappropriately influenced by either the agency or by any special interest. Legislation that establishes a committee can be quite specific about committee membership—like the RACs established under FLPMA—or may allow the agency to decide how to balance membership.

For more information on RACs, see the FLPMA section of this Web site. 

For more information on the composition of committees and conflicts of interest, see the GAO Report: Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance

In November 2009, the White House began implementing a new policy that forbids registered lobbyists from serving on advisory panels created under FACA, a move that could drastically alter the composition of these committees.  See "Lobbists pushed off advisory panels," Washington Post, 11/27/09.

Advisory Committees that do not have to follow FACA Rules

Some committees are exempt from FACA rules regardless of whether they are established, managed, or controlled by an agency.

  • A committee is exempt from FACA if it is composed entirely of federal employees or if it advises only state or local officials.
  • A group established or managed by an agency—for example, a group at a town hall meeting or NEPA scoping meeting—does not have to follow FACA rules if the purpose of the meeting is only to exchange information, or if the agency is asking for advice from all interested individuals at the meeting and not from the group acting as a whole.
  • A committee can also give advice to an agency without following FACA rules if advising the agency is not its primary purpose. For example, a committee created to help an agency perform some function—like planning an event—can give advice to the agency in order to coordinate the event. In this case, "advising" is not seen as the committee's primary purpose.
  • Congress can also, by law, specifically exempt any committee from FACA.

Congressional Exemptions from FACA

Does Congress still support the purposes of FACA? In a survey of House and Senate legislation pertaining to the environment from 1991 through 2003, FACA was explicitly mentioned in 22 bills. Ten of these bills stated that FACA would apply to the committees formed under the bills, while 12 bills exempted committees from FACA. Of the 22 pieces of legislation surveyed, four of these went on to become law. Three exempted the committees that they authorized from FACA. 

A recent exemption from FACA regarding public land management is in the Healthy Forests Act of 2003 (HFRA). HFRA does not create an advisory committee, but it does require communities and federal agencies to work collaboratively on community wildfire protection plans. While this type of federal participation would not generally be subject to FACA anyway, HFRA is explicit that FACA does not apply to these cooperative efforts. 

On the other hand, legislation proposed in the 112th Congress and introduced again in the 113th Congress would strengthen FACA. The "Federal Advisory Act Amendments of 2011" would have required appointments to advisory panels to be made without regard to political affiliation, added new reporting requirements, and made the panels' meetings more accessible to the public.

FACA Regulations

Despite the important purpose of FACA, the law has been perceived by many community-based, collaborative groups and federal agencies as an obstacle to groups meeting with and having a voice in agency decisions. While FACA does create obstacles to unfettered influence of advisory groups, some of the criticisms of FACA have been the result of vague and confusing regulations defining the scope of the law. Changes to these regulations in 2001 clarified how FACA applies to certain situations and groups. If agencies understand and apply these regulations, FACA should be much less of an obstacle to collaborative groups. 

For more information on these changes, see this General Services Administration web site

For copies of the FACA regulations, click here.

Process Essentials: Committee Management and Operations

Open Process

One of the main goals of FACA is to give the public the opportunity to participate actively in the federal government's decision-making process. Allowing open meetings and input from the public is very important in furthering this goal. While actual membership on committees is limited, any member of the public is allowed to either speak to the committee or file a written statement with the committee. Most advisory committee meetings, even those held by telephone or by other electronic means, must be open to the public and scheduled at a reasonably accessible location and a convenient time.

Notice of Meetings

In order to allow the public the time to attend meetings, adequate notice must be given. At a minimum, advisory committees must publish notice of all committee meetings in the Federal Register at least 15 calendar days before the meeting occurs. The notice must include the time, date, place, and purpose of the meeting, a summary of the agenda, and the name and phone number of the agency contact person. Since most people do not read the federal register on a regular basis, notice of meetings is often published in local newspapers as well.

Record Keeping

FACA requires detailed and thorough record keeping in order to keep the public informed and to allow for review of every committee's work. FACA committees must keep detailed minutes of each committee meeting, including any closed meetings, and copies of any documents it uses or issues. The public must have immediate access to all committee records without having to file requests for the documents. 

FACA Charters

FACA committees can be:

  • discretionary -- established under the authority of an agency head or authorized, but not required by, statute (e.g., the National Environmental Justice Advisory Council, established by the Environmental Protection Agency, or
  • non-discretionary -- required either by statute or Presidential directive.

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See the PAWG charter for an example of a FACA charter. Non-discretionary advisory committees may be established under general land management statutes and operate for many years like the resource advisory committees (RACs) established under FLPMA to advise the BLM. They may also be for specific purposes and very short-lived like the Federal Water Rights Task Force. The task force, created as a result of a controversy in Colorado over "by-pass flows" on U.S. Forest Service lands, operated for a little more than a year to produce a report to Congress. The Pinedale Anticline Working Group (PAWG) is a FACA chartered group currently advising BLM on oil and gas development in a rapidly developing area of Wyoming. 

Creating Committees

Congress also wanted to limit the potential number of official advisory committees, so FACA committees can only be created by an agency when they are essential to the agency's performance of a legal duty or responsibility. Before committees can be set up, high-level officials within the sponsoring agency must review and approve the request, and the agency must consult with theGeneral Services Administration (GSA), which has oversight of FACA advisory committees. This procedural requirement helps account for the substantial delays that may arise when it is determined that an advisory group must comply with FACA. Once a committee is approved, the sponsoring agency prepares a charter outlining the committee's mission and specific duties and forwards it to the GSA for final review. The committee cannot begin operation until the agency publishes notice of the committee in the Federal Register and files the approved charter with Congress.

For an example of a FACA chartered committee and the Federal Register notice, see the Farm, Ranch, and Rural Communities Advisory Committee.

Renewing Committees

The requirements for renewing an advisory committee after its scheduled termination are very similar to the requirements for creating an advisory committee.

Terminating Committees

An advisory committee usually automatically terminates two years after it is established, unless a statute authorizing the committee specifically provides for a different duration. In addition, the president or agency head can terminate the advisory committee earlier if he or she determines that the committee has fulfilled its purpose, it is no longer carrying out its purpose, or that the cost of operation is too much relative to the benefits of the committee.

Subcommittees and Contractors

Advisory committees can create subcommittees to assist them. These subcommittees can include individuals that are not members of the main committee, but the subcommittees must be approved by the agency that created the parent committee. Generally, subcommittees that report to a parent advisory committee are not subject to FACA rules unless they provide advice or recommendations directly to the federal agency. Agencies can also hire contractors to give them advice, and these contractors are not generally subject to FACA rules. For example, the U.S. Forest Service hired the Pinchot Institute for Conservation to coordinate multi-party monitoring of stewardship contracting pilot projects. The federal, regional, and local monitoring groups used in this process advise the contractor and the contractor advises the Forest Service -- all outside the constraints of FACA. 

For more information, see the Stewardship Contracting section of this Web site. 

Collaboration in Action: NWCOS and FACA

Northwest Colorado Stewardship (NWCOS) has struggled with how to deal with requirements of FACA for their participation in preparation of the Little Snake Resource Management Plan (RMP) and its accompanying environmental impact statement (EIS). The group created a subcommittee of a half dozen of their members to discuss the issue and make recommendations. That group considered:

  • Becoming formally FACA chartered;
  • Adjusting NWCOS so that it would provide the individual advice of members to the agency, rather than a consensus recommendation;
  • Work as a subgroup of the FACA chartered Northwest Resource Advisory Council; and
  • Work under a contractor to the agency.

Becoming a RAC subgroup option had potential, but there was some question of whether the RAC guidelines allowed for open, flexible membership of its subgroups. The RAC is also limited to Colorado residents, and NWCOS did not wish to limit membership in any way. The RAC would also have had to approve and transmit the subgroups recommendations to BLM -- a challenge in itself -- but especially difficult because the RAC only meets four times per year. 

NWCOS and BLM decided to work through a contractor -- the Keystone Center -- already on board helping to develop protocols and set the collaborative strategy for NWCOS. In FY 05, Keystone will manage the group and guide it through a community visioning and community alternative development process for the RMP and its EIS. Along with the general public, NWCOS will also be providing baseline data to BLM and helping with the NEPA scoping process, encouraging non-NWCOS member community participation. 

NWCOS is not intended to substitute for the normal NEPA public participation process, but rather to be a supplement to it. Members of the community, industry, conservationists and others can participate in the NEPA process on their own and through NWCOS. Like NWCOS, other groups can make their own recommendations for alternatives. 

For additional information on the Little Snake River RMP process, get on the BLM mailing list or visit their website at www.co.blm.gov/nepa/rmpdocs/lsfodocs/lsfopa.htm

Links

Public Laws and Regulations

Federal Advisory Committee Act of 1972
as amended, Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, 5 USCA App. 2
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FACA Regulations
In 2001, the General Services Administration revised the regulations regarding FACA advisory committees. The final rule provided more guidance relating to the management of advisory committees and their subcommittees, corrected and clarified the definition of "utilized," as well as clarified more precisely when certain groups are subject to FACA.
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General Services Administration (GSA)

General FACA Information
The GSA website provides links to the Act, FACA regulations, various GSA reports and brochures, samples of FACA committee bylaws, meeting minutes, charters, and Federal Register notices, the Executive Order related to FACA, training sessions on FACA, a database of FACA committees and other web links.
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