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Key Considerations
Summary
When participating in and encouraging ADR-based collaborative community working groups, the BLM, other agencies, and stakeholders often find that they do not want to form an advisory committee, either because of the time it takes to get a FACA charter approved, or because of the complexity of the issue and the desire for setting up temporary or ad hoc groups with enough flexibility to address a range of different needs and purposes. Such offices should take a two-pronged approach:
1. Avoid creating advisory committees that require FACA compliance; and
2. Minimize the potential for harmful effects should a court later determine that a working group designed to avoid FACA is in fact subject to the requirements of FACA.
Of course, if it is determined that an advisory committee would be useful to a particular issue, staff should go the traditional route of seeking a FACA charter and, once it is approved, set up an advisory committee in accordance with FACA. For more information about how to set up an advisory committee, contact your Committee Management Officer; for advice about whether to set up an advisory committee, contact your Solicitor’s Office.
Guidance for Meeting with Groups
BLM offices should first determine whether participants in the collaborative group will probably include members that are not Federal, Tribal, State, or local government employees. If participants are solely Federal, Tribal, State, and local government employees operating in their official capacities, the group is exempt from the administrative requirements of FACA.
If participants will meet regularly or formally, you have two options without implicating FACA:
1. Ensure that the BLM does not establish, manage, or control the group. Ensure that the BLM does not make decisions on or otherwise control group membership, send out meeting invitations, or host the meeting. Ensure that the BLM does not manage or control the group’s agenda. Limit the BLM’s role to that of a group participant; avoid taking on a leadership role in the group. If facilitation is necessary to run meetings, encourage the group to hire a neutral facilitator who is not connected with the BLM rather than have the BLM facilitate. Funding the group or holding a disproportionate number of the group’s meetings on BLM property may be seen as indicators of management or control.
Many offices have found that State, County, or local agencies with a stake in an issue are willing to establish or manage groups. Since FACA only applies to Federal agencies, if a non-Federal agency forms or manages the group, there is no FACA concern. Also, some offices funded partnership series programs in the community, at which community members came together and spontaneously formed their own group. This too is acceptable, as long as the BLM does not provide the driving force behind the group’s formation.
Or,
2. If the BLM establishes, manages, or controls the group, ensure that the group does not render specific advice or recommendations to the agency as a group, whether by consensus majority or otherwise. Seek only information, not advice, from the group as a whole. Seek advice only from individual members of the group; make clear to the group that you will not accept advice from the group as a whole and that the purpose of the meeting is not to develop group-based advice on the issue or issues. Ensure that meetings that are not ad hoc are well publicized and that membership remains open to all, such as through town hall-style meetings.
This approach will probably be rarely used, as the goal of most ADR-based collaborative community working groups will be to reach a group consensus on an issue.
Alternatively, if you wish to obtain advice from a group, you may pursue a charter for a FACA committee. Benefits of forming such a chartered committee include assuring participants that their advice will be formalized. FACA also allows the BLM to have a central role in the formation and agenda of the committee, and may be useful when stakeholders are defined and issues are long-standing within an area and need a formalized, lengthy commitment by and involvement of the BLM. Another alternative is to set up a subcommittee of an existing FACA committee, usually a Resource Advisory Committee (RAC), to study or consider an issue. The subcommittee will not have to comply with FACA procedures, but will have to submit its advice to the parent FACA committee for full consideration before it is transmitted to the Bureau.
Best Practices
Offices of the BLM should ensure that all ADR-based collaborative community working group meetings in which the BLM participates meet general open government criteria.
o Establish by word and deed that all working group meetings are open to the public;
o Publish timely notice of each working group meeting in appropriate local forums to ensure that all interested persons know about the meeting in advance;
o Permit interested persons to attend, appear before, or file statements with any working group; make sure group membership is balanced across the spectrum of interests and stakeholders;
o Until the group ceases to exist, make available for public inspection and copying at the BLM’s office (and online if possible) all records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents that are made available to or prepared for or by the group;
o Make sure that detailed minutes of each meeting of the working group are kept, containing a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the working group.
See Meeting Checklist for a quick reference when attending or participating in collaborative working group meetings.
What Is Required of an Advisory Committee Under FACA?
If a group is considered an advisory committee under FACA, the statute requires the BLM to follow a number of specific procedural requirements. Note that the BLM also has specific advisory committee regulations that must be followed. For specific statutory and regulatory language, see 5 U.S.C. App. and 43 CFR § 1784, respectively, which are accessible through links listed in the Further Information section of this guidebook. In fact, many of FACA’s requirements are closely related to standard “best practices” for conducting collaborative work:
| Best Practices for Conflict Management-Based Collaboration
| FACA and BLM Requirements
|
|---|---|
| Conduct a convening or situation assessment to define issues and affected parties. | Analyze the need and membership before establishing a committee. |
| Involve all affected parties in a manageable-sized group. | Maintain a balanced membership. |
| Develop a clearly defined purpose and outcomes and a collective definition of purpose, roles, schedule, procedures and outcomes. | State objectives, scope, schedule, and resources in a formal charter. Develop additional ground rules or protocols to further define operations. |
| Conduct discussions in a transparent and participatory manner. | Conduct open public meetings and provide opportunity for public comment. |
| Plan and announce meetings in advance so that attendees are prepared. | Announce meetings 30 days in advance in the Federal Register. |
| Provide access to information; build common information base. | Prepare meeting summaries and make them publicly available. |
In some instances, chartering an advisory committee is the best approach for achieving the BLM’s management objectives. A chartered committee assures participants that their advice will be formally acknowledged in a structured, transparent, and inclusive public process. FACA allows the BLM to have a central role in the formation and agenda of the committee, which may be useful when stakeholders are defined and issues are long-standing and need a formalized, lengthy commitment by and involvement of the BLM. A FACA-chartered committee allows the BLM to expend funds to support committee work; subcommittees can be used to further the work of collaborative groups, which report back to the FACA-chartered committee. Chartering an advisory committee also avoids potentially disruptive and time- and resource-consuming litigation regarding compliance with FACA.
On the other hand, chartering an advisory committee is time-consuming and may unduly restrict the scope of an ADR-based collaborative community working group’s discussions. If seeking to encourage and participate in collaborative work that does not fall under the auspices of FACA, BLM managers should nonetheless seek to satisfy FACA’s important principle of open public participation.
Next Sections:
- 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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