Federal Advisory Committee Act Guide

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How FACA Works

Background
This section of the guidebook is intended for those with little knowledge of FACA or those seeking deeper analysis of FACA.

There are few court decisions interpreting FACA’s application to collaborative groups. A 1989 decision by the U.S. Supreme Court (Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440) provides the most influential guidance, but subsequent court decisions have focused on issues especially relevant to BLM’s collaborative community working groups. This discussion summarizes the key decisions interpreting FACA, particularly those concerning whether or not a group is an “advisory committee” subject to the statute’s strict procedural requirements.

At the outset, it is important to note that the courts have generally looked favorably on agency participation in collaborative groups. Under FACA, agency representatives may freely participate in groups formed and controlled by Tribal, State, or local officials or nongovernmental organizations, contributing ideas and information and soliciting ideas that may be implemented in on-the-ground management. They must, in doing so, be cautious of the key FACA “triggers” illustrated in the Decision Chart and discussed in more detail here, as well as any other policy considerations.

Does the Group Involve People Outside the Federal Government?
FACA’s procedural requirements do not apply to committees composed wholly of officers or employees of the Federal government or officers or employees of Tribal, State, or local governments. Thus, for example, several Federal land management agencies could join together to coordinate planning activities across agency boundaries without implicating FACA. A court has also ruled that the Forest Service may consult with Tribal, State, and local officials concerning historic preservation plans at a national historic landmark without violating FACA. Questions will arise when an advisory group composed of government officers brings in an outside consultant to aid the group’s work. Several courts have noted that one-time consultation will not trigger FACA, but that the statute will apply if the consultant’s work is functionally indistinguishable from that of other committee members. If further questions arise about consultants, please contact your Solicitor’s Office.

Is the Group Organized and Cohesive?
The procedural requirements of FACA apply to any “committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof” that meets the criteria set out in the statute. Thus, it is immaterial whether an agency names a group an “advisory committee.” Instead, courts consider whether the members share a common and defined purpose, whether the group is organized and cohesive, and whether the agency is seeking input from the group as a collective body.

Thus, agency officials may consult freely with various stakeholder representatives, either individually or as a group, as long as there is no effort to solicit group-based opinion or advice concerning the agency’s policy or management. For example, a BLM manager might convene a town hall-type meeting to share information and solicit individual opinions on a current issue of public concern. As long as the manager does not ask for a group vote or consensus on the issue, this does not raise FACA concerns. If, however, the agency then takes the initiative to organize particular audience members into a working group to meet regularly and draft management alternatives to deal with the issue, FACA would most likely apply.

Did the Agency “Establish” an Advisory Group?
Agencies are most likely to fall within FACA when they play the primary role in establishing a working group including nongovernmental parties aimed at obtaining group-based advice and recommendations. Agency officials are most at risk when they convene a group, choose its members or otherwise control the methods of their selection, direct its focus on particular issues, provide the group’s funding, and provide its meeting places.

For example, courts have found that FACA applied in several cases in which Congress, the President, or Federal agencies have convened groups of experts to recommend management alternatives for national forests or to develop strategies for achieving regional wetlands restoration goals. In each of these cases, Federal officials assumed management authority over the advisory groups, controlling their membership and defining their work product goals.

In short, courts look at whether an agency actually formed an advisory group in determining whether it was “established” pursuant to FACA. Thus, BLM managers may cooperate with organizing efforts led by non-Federal agencies (i.e., Tribal, State, County, or local agencies) and nongovernmental organizations, as long as the agency is not the driving force behind the meetings and does not exert control over who attends and what is discussed.

Did the Agency “Utilize” an Advisory Group?
FACA is not limited to advisory groups directly established by the Federal government. On occasion, courts may also find that FACA applies because a Federal agency has “utilized” an outside group by exerting actual management and control over its structure and operations—in other words, the agency has acted as if it did, in fact, establish the group.

Courts have repeatedly emphasized their reluctance to find that an agency has “utilized” an advisory group under this strict standard. For example, several Federal courts have refused to apply FACA when agencies provided logistical, scheduling, and financial support to a group organized by others to discuss policy matters, reasoning that the agencies did not exert “substantial control” over the group’s work. Even when agency officials have served on these groups’ steering committees and provided substantial input to the groups’ findings, courts have clearly stated that “influence is not control.”

Thus, BLM managers may confidently encourage and participate in collaborative groups created by non-Federal entities. The key caution is to avoid acting as if the group belongs to the agency by exerting control over its membership, agenda, and activities.

Did the Group Offer Specific Advice or Recommendations to the Agency?
Sometimes Federal officials meet with stakeholder groups simply to share information or to monitor the results of management projects. Courts have viewed such joint efforts to gather data and otherwise implement Federal policy as “operational” work, not subject to FACA’s constraints. Thus, for example, BLM managers do not violate FACA by participating in collaborative groups focused on exchanging information or monitoring rehabilitation of private lands or Geographic Information System ecosystem maps. FACA concerns arise if the group turns its attention to developing advice or recommendations on agency policies or activities.

 

 Next Sections:
  • WHEN DOES FACA APPLY IN PRACTICE?
  • DOES FACA APPLY? DECISION CHART
  • MEETING CHECKLIST
  • FREQUENTLY ASKED QUESTIONS
  • FURTHER INFORMATION