Peter Williams, Associate Director
Earlier this year, I wrote about Urban Myths and the Paperwork Reduction Act (PRA). As you may already know, there are at least as many urban myths about the Federal Advisory Committee Act, commonly abbreviated as FACA.
Here, I want to give you some basics about FACA, a few tips, and some resources in case you want to know more. Keep in mind this idea about urban myths because there’s quite a bit of confusion about FACA.
Bottom line: if you plan to have a public meeting or to meet with a partner group, you need to be aware of FACA in order to stay on the right side of the law.
Congress passed FACA in 1972 to ensure that advice received by federal agencies is objective and publicly available and that citizen involvement in federal decisions is fair and equitable. It was designed to ensure that no one individual or group has undue influence. In this sense, it is one of the “sunshine laws” intended to shed light on federal decisions and decision making processes. It moves those discussions out of backrooms and into the light-of-day, creating transparency and accountability. FACA also sets up a process for “establishing, operating, overseeing, and terminating these advisory bodies” (i.e., committees) and for monitoring compliance with the Act (see the General Services Administration website for details HERE).
Advisory committees come in many sizes. Today, there are more than 1,000 FACA committees including 164 in USDA and 100 in DOI. If you work with a Resource Advisory Committee (RAC), you’re working with a FACA committee. The same is true if you work with the Marine Fisheries Advisory Committee through NOAA or the Great Lakes Advisory Board through EPA. Some committees have as few as four members and one actually has 3,600 members, but most have fewer than 100 members.
I encourage you to think about PRA and FACA together. They work like bookends around public engagement, sometimes setting boundaries for complementary activities and sometimes affecting the same planning or decision process. Federal agencies often engage with non-federal partners by collecting information and having meetings where information is exchanged. You may be doing one or the other – or both.
Here’s a snapshot of the differences between PRA and FACA:
- PRA applies to how information is collected and explains exemptions for engaging with the public.
- FACA applies to the public engagement process, including collaborative processes and meetings, and explains exemptions for sharing and collecting certain information.
When does FACA apply to what we’re doing?
Under the law, a federal agency must comply with FACA when it:
- establishes, utilizes*, controls, or manages
- a group with non-federal members**
- that provides the agency with consensus advice or recommendations.
Here’s the key: Only groups that meet all three of these legal elements are subject to FACA.
If you have a situation where your agency really wants to do all three, then the best direction is to set up an advisory committee. Federal advisory committees have been invaluable for many years. But, if you don’t want to set up an advisory committee, then be intentional when you design your process to avoid triggering a “FACA violation.” Once you cross that line, you create a legal vulnerability for your agency. Rarely, if ever, a good idea.
So, how do you avoid triggering FACA when working with non-federal employees? Make sure these folks are not providing consensus advice and your agency is not utilizing them as defined by FACA. The point is that a federal agency may not exercise actual management or control over a group that it also asks to reach consensus in their advice. An agency can establish, control, and manage a group to provide individual advice; an agency can receive consensus advice from a group it doesn’t establish, manage, or control. You can’t do both without setting up a chartered FACA committee.
More specifically, FACA does not prevent a federal agency or federal employee from convening a group of non-federal employees for the purposes of sharing individual opinions of the group members, which includes sharing opinions about why any initial opinions are important.
My biggest tip for you is this: Because “utilize” is a term-of-art, I’ve always found it easier to focus on the consensus part.
- Individual group members can provide personal opinions, advice, or recommendations without triggering FACA because those opinions are not the consensus of the group.
- This is true even if several individual members of a group provide similar or identical opinions, advice, or recommendations because the fact that some consensus might exist during the meeting doesn’t mean the purpose of the meeting was to reach consensus.
But, remember, whether FACA applies to a particular group or process is fact-specific, so you or others in your agency should talk with agency lawyers. Maybe it’s the Office of General Counsel or Solicitor’s Office, depending upon your agency. Not all agencies interpret FACA the same way, especially if there’s just been a recent issue. If in doubt, find an expert in your agency using the www.facadatabase.gov, which is hosted by GSA and updated at least annually.
Best Practices for Avoiding FACA Violations
If you’re going to work with members of the public or non-federal organizations, you want to make sure you, your partners, and others in your agency understand some best practices for avoiding FACA violations. Here are some ways to help participants understand how to work together in a FACA-compliant manner.
- Ensure that agency staff and external stakeholders understand what constitutes consensus advice or recommendations under FACA;
- Do not solicit consensus advice or recommendations from a group that was established, utilized, managed, or controlled by your agency;
- Inform (orally and in writing) members of a group that was established, utilized, managed, or controlled by your agency that the agency cannot obtain the group's consensus advice or recommendations without triggering FACA;
- Seek advice or recommendations from interested stakeholders only after making clear that the agency is not asking the group to reach consensus or to provide only consensus advice;
- Ensure that collaborative meetings are open to the public and properly advertised in advance;
- Have the group keep detailed minutes of all collaborative meetings; and
- Make all records, reports, transcripts, minutes, and other information related to a collaborative group publicly available.
* Under FACA, the term “utilize” does not have its ordinary meaning. Instead, FACA’s regulations provide that an agency “utilizes” a group only when it exercises actual management or control over a group’s operations. 41 C.F.R § 102-3.25
** The Uniform Mandates Reform Act of 1995 provides a limited exemption from FACA for certain groups of federal employees and elected officers of state, local, and tribal governments (or their properly designated employees) acting in their official capacity. 2 U.S.C. § 1534(b)