Federal Advisory Committee Act

The Federal Advisory Committee Act (FACA) (Pub.L. 92–463, 86 Stat. 770, enacted October 6, 1972), is a United States federal law which governs the behavior of federal advisory committees. In particular, it has special emphasis on open meetings, chartering, public involvement, and reporting.[1] The U.S. General Services Administration (GSA) oversees the process. During fiscal year 2008, GSA reported 917 active committees composed of almost 64,000 members that provided advice and recommendations to 50 federal agencies. Financially, the cost of these committees amounted to $344.3 million in fiscal year 2008.[2]

Overview

Advisory committees

The Federal Advisory Committee Act defines advisory committee as "any committee, board, commission, council, conference, panel, task force, or other similar group" that dispenses "advice or recommendations" to the President of the United States, and excludes bodies that also exercise operational functions.[3] They are provisional bodies and have the advantage of being able to circumvent bureaucracy and collect a range of opinions.

Committees composed of full-time officers or employees of the federal government do not count as advisory committees under FACA. Furthermore, the following organizations are also not governed by FACA: the Advisory Commission on Intergovernmental Relations, the Commission on Government Procurement, the National Academy of Sciences, the Central Intelligence Agency, the Federal Reserve, and the National Academy of Public Administration.[4]

Purpose

In drafting FACA, legislators wanted to ensure that advice by the various advisory committees is "objective and accessible to the public" by formalizing the process for "establishing, operating, overseeing, and terminating" the committees. The Committee Management Secretariat at the GSA is charged with monitoring compliance.

In particular the Act restricts the formation of such committees to only those which are deemed essential, limits their powers to provision of advice to officers and agencies in the executive branch of the Federal Government, and limits the length of term during which any such committee may operate. Further, FACA was an attempt by Congress to curtail the rampant "locker-room discussion" that had become prevalent in administrative decisions. These "locker-room discussion" are masked under titles like "task force", "subcommittee", and "working group" meetings, which are less than full FACA meetings and so they do not have to be open to the public. FACA declared that all administrative procedures and hearings were to be public knowledge.[5]

Database

The Federal Advisory Committee Act requires a database that may be accessed by all federal agencies to manage advisory committees government-wide. The database is used by Congress to perform oversight of related executive branch programs. It is also searchable and available to inform the public, the media, and others, to stay abreast of important developments resulting from advisory committee activities. Members of each of the various committees are listed with information such as term of service and corporate affiliation. Facts sheets, reports, expenses, charter, and other information is included in the database.

Public notice

A committee must provide public notice in the Federal Register 15 days prior to the meeting. It must publish all information regarding the meeting, including committee name, the time, place, and purpose of the meeting, and a summary of the agenda. Additionally, if any part of the meeting is closed to the public, the notice must include the committee name; the time, place and purpose of the meeting; a summary of the agenda; and if any portion of the meeting is closed, the reason and exemption(s) in the Government in the Sunshine Act that apply. An advisory committee meeting can be closed to the public if the president or an agency head determines that any of the 10 exemptions to the Sunshine Act apply (see below). The committee must provide access to materials provided to it, including reports, transcripts, minutes, working papers, agendas or other documents unless any of the nine FOIA exemptions would apply. The committees must also keep minutes of their meetings.

Amendments

In March, 2012 the Government Accountability Office issued a report on FACA groups in DOT and DOE. In this report, they state:

"Advisory groups—those established under the Federal Advisory Committee Act (FACA) and other groups not subject to the act—can play an important role in the development of policy and government regulations. There are more than 1,000 FACA advisory groups and an unknown number of non-FACA advisory groups governmentwide. Non-FACA groups include intergovernmental groups. Section 21 of Pub. L. No. 111-139 requires GAO to conduct routine investigations to identify programs, agencies, offices, and initiatives with duplicative goals and activities. In that context, GAO reviewed (1) the extent to which the Department of Transportation’s (DOT) and Department of Energy’s (DOE) assessment process helps ensure advisory group efforts are not duplicative and what challenges, if any, exist in assessing potential duplication, and (2) to what extent DOT and DOE advisory groups are useful in assisting their respective agencies in carrying out their missions and how the groups’ usefulness could be enhanced." This review resulted in four recommendations geared toward preventing duplication of efforts among FACA groups.

Criticism

FACA has drawn criticism as an unconstitutional infringement upon "long-recognized presidential powers". Critics maintain that FACA "violates separation of powers by limiting the terms on which the President can acquire information from nongovernmental advisory committees".[6]

See also

Further reading
  • Arnold, Jason Ross (2014). Secrecy in the Sunshine Era: The Promise and Failures of U.S. Open Government Laws. University Press of Kansas. ISBN 978-0700619924. See chapter 4.

References
  1. Committee Management Secretariat (15 June 2012). "The Federal Advisory Committee Act". Federal Advisory Committee Management - Legislation and Regulations. U.S. General Services Administration. Retrieved 20 July 2012.
  2. Ginsberg, Wendy R. (16 April 2009). Federal Advisory Committees: An Overview (R40520) (PDF). Congressional Research Service.
  3. Federal Advisory Committee Act 3(2), 9(b) (PDF). U.S. House of Representatives. 1972. Archived from the original (PDF) on 2012-09-16. Retrieved 2012-07-20.
  4. "The Federal Advisory Committee Act". Media Law Resources - Federal Open Government Guide. Reporters Committee for Freedom of the Press. Retrieved 20 July 2012.
  5. http://sociology.ucsc.edu/whorulesamerica/power/federal_advisory_committees.html%5B%5D
  6. Bybee, Jay S. (1 January 1994). "Advising the President: Separation of Powers and the Federal Advisory Committee Act". Yale Law Journal. 104 (5): 51–125. Retrieved 20 July 2012.
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