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When Does FACA Apply in Practice

“So then what can we do if we’re worried about violating FACA but want consensus advice from an ADR-based collaborative community working group?”

Case Example
The following is an illustrative example consisting of an actual case and analysis of possible options. In this scenario, the BLM was sued for violating FACA. Here is what happened, and what you can do to avoid this type of legal action from being brought:

- The BLM office prepared an environmental impact statement (EIS) and a record of decision (ROD). They completed the ROD and then started putting the working group into place to advise the BLM on implementation of the EIS decisions.
- The BLM established the working group, determined the group’s membership, and controlled the agenda of the original working group. Meetings with the same group were recurring.
- The BLM was sued for violating FACA; this halted the work of the working group, as they had to be chartered in order to reconvene. It took two years to obtain the charter, and another year to reappoint members to the working group. This delayed the implementation of this portion of the ROD.
- Note: Until the committee was chartered as a FACA advisory committee, the office used an interim measure—town hall-style meetings operated by the field manager—in which input was taken from individuals but not from the group as a whole or by consensus.

Alternatives
Knowing what we do now about FACA, what could have been done differently to avoid violating FACA and needing to obtain a charter to proceed? There are several alternatives; although each avoids a FACA violation, they have different drawbacks that must be evaluated in deciding which alternative is most appropriate to use in a particular situation:

1. The BLM could have established a working group with solely government entities—other Federal, Tribal, State, and local government employees working in their official capacities. This solution would work in a place where many of the governmental organizations have constituencies that represent the different interests of the public; it is a form of indirect public representation, and such working groups made up only of governmental employees are exempt from FACA because of a provision in the Unfunded Mandates Reform Act of 1995. The disadvantage to this approach is that the public is not directly involved, and this approach may not work as well in situations where part of the goal of the collaboration is to gain greater trust of the BLM and public acceptance of BLM’s programs.

2. The BLM could have determined if one of the non-Federal entities involved would be interested in taking the lead in organizing and setting up the group. FACA only applies to Federal agencies, so if a Tribal, State, County, or local agency--or even a public interest group--was willing to put the collaborative group together and control membership, set up meetings, and handle other duties, the BLM would be able to participate without violating FACA. The BLM could even offer to provide funding for a neutral facilitator to organize and facilitate the process, as long as the BLM itself did not retain control or management of the process. The disadvantage to this approach is that the BLM would not have a leadership role in the process, which is sometimes desired. The group also may not focus on matters for which the BLM may need advice. This approach would work better where the BLM is most interested in what the community will come up with collaboratively, and the BLM does not have a need to manage or control the process. However, this approach still allows the BLM to be involved. The BLM could participate by providing information to be used in the collaborative process, answering questions, and providing a “reality check” for the direction in which the group is heading, without managing or controlling the deliberative process. If the BLM needs a stronger role or if it wishes to manage or control group advice and is most interested in advice from the group, it should consider chartering an advisory committee.

3. In some situations, the BLM can use a preexisting Resource Advisory Committee (RAC) or other FACA-chartered Advisory Committee (AC) and form a working group as a subcommittee. In this particular case, the state involved did not have any RACs or ACs, and this was not an option. However, where a RAC or AC exists, if the committee will form a working group subcommittee that reports back to the committee, the working group will not violate FACA. Make sure the working group always reports to the RAC or AC and not directly to the BLM. Also make sure that the BLM’s specific advisory committee regulations are complied with.

4. Sometimes group consensus is not the desired outcome; the BLM may only need input from a variety of different stakeholders in the public. Alternatively, sometimes the BLM needs to educate the community about its programs and decisions. In these situations, the best approach may be to hold town hall-style meetings with open public participation. As long as the BLM is not seeking advice from a group but is sharing information or seeking advice from individuals, this style of meeting will not trigger FACA. As indicated, this is the form of participation the office in the above scenario used while waiting for a FACA charter. The disadvantage is that since most often the BLM is seeking collaborative solutions in using ADR-based collaborative community working groups, this approach of seeking individual advice may not be adequate or appropriate for many of the BLM’s needs. Sometimes, however, this type of forum will generate the need for a working group in which the BLM can assist in the process development by using the guidelines discussed in the other scenarios in this section.

Other options for consideration:

• Fund neutral facilitators,
• Fund partnership series within the community to educate people in collaborative processes that may spark a community’s interest in forming its own groups as needed,
• Share management needs and ideas with Tribal, State, and local officials so that, when possible, efforts can be combined and non-Federal entities can take the lead in setting up collaborative community working groups,
• Share information with the community to help people better understand the complexity of the problem and real limitations faced by the BLM. Keep interactions with the public as open as possible.

 Next Sections:

• DOES FACA APPLY? DECISION CHART
• MEETING CHECKLIST
• FREQUENTLY ASKED QUESTIONS
• FURTHER INFORMATION