Introduction
What is FACA?
Congress passed the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix (App.), in 1972 to create an orderly procedure by which Federal agencies may seek advice and assistance from citizens and experts. Congress was concerned that there were too many unregulated advisory groups, that some of those advisory groups were either not contributing anything of substantive value or were duplicating other committees’ efforts, and that the public could not participate in advisory group activities. FACA was one of several “good government” laws enacted to promote meaningful public participation in government decisions and to ensure that no particular interest groups would have unfair access to policy makers.
Now, any time a Federal agency intends to establish, control, or manage a group that gives advice as a group and has at least one member who is not a Federal, Tribal, State, or local government employee, the agency must comply with FACA and the related administrative guidelines developed by the General Services Administration (GSA). For the Bureau of Land Management (BLM), additional requirements for administering advisory committees are found at 43 CFR § 1784.
How Does FACA Apply to BLM’s ADR-Based Collaborative Activity?
The BLM charters its Resource Advisory Committees (RACs) and other advisory committees pursuant to the requirements of FACA and the BLM’s Advisory Committee regulations. The agency has many other opportunities, however, to participate in collaborative community working groups and other less formal assemblages of stakeholders without implicating FACA.
Alternative Dispute Resolution (ADR)-based collaborative community working groups are often set up by Federal, Tribal, State, and local government agencies, communities, and private entities as a way of bringing communities together to address common problems; work through conflicts; and develop forward-thinking strategies for medium- to long-term multiple use management, protection, and development. These multiparty and place-based groups utilize ADR strategies such as consensus-building, collaborative problem-solving, interest-based negotiating, mediating or facilitating, and joint fact-finding to seek common ground and to identify or elicit shared goals. Objectives of the groups include sharing knowledge, developing a common understanding of issues that need to be addressed, and achieving mutual gains. ADR-based collaborative community working groups also employ innovative forms of public participation to prevent conflict and promote cooperative solutions in which the public has a degree of ownership.
These groups are a relatively new development in agency efforts, and were clearly not contemplated or anticipated when FACA was signed into law. Depending on the nature of a particular group and the circumstances of its creation, FACA may govern its activities. Our working groups can nonetheless be designed and used in ways so as not to qualify as advisory committees under FACA. In designing and creating ADR-based collaborative community working groups, it is important to understand when a group may qualify as an advisory committee, because in instances where the group qualifies as an advisory committee, the BLM will need to comply with certain statutory and regulatory requirements, such as certification and notification under FACA.
How Will This Guidebook Help BLM Field Offices?
Whether or not a group falls under FACA, open public involvement should be a major consideration in the collaborative processes when participating in or designing ADR-based collaborative community working groups. This guidebook provides key considerations and best practices, examples of when FACA might or might not apply, and answers to frequently asked questions. With this information, field offices designing and setting up ADR-based collaborative community working groups will be able to decide which type of group will best serve the needs of the community and the agency. By following the key considerations, field offices can work with communities proactively and support and assist ADR-based collaborative community efforts while recognizing which types of actions would require a formal FACA charter.
Those with less familiarity with FACA may wish to refer to the “How FACA Works” section of this guidebook for background information before continuing on to the next section.
Next Sections:
- KEY CONSIDERATIONS
- HOW FACA WORKS
- WHEN DOES FACA APPLY IN PRACTICE?
- DOES FACA APPLY? DECISION CHART
- MEETING CHECKLIST
- FREQUENTLY ASKED QUESTIONS
- FURTHER INFORMATION
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