When is Federal Advisory Committee Act (FACA) Applicable?

When FACA Is and Is Not Applicable To Interactions with The Private Sector

INTRODUCTION

FACA was enacted in 1972 to control the growth and operation of the "numerous committees, board, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government." 5 U.S.C. App. 1, § 2(a).

When initially enacted FACA assigned to the Office of Management and Budget (OMB) responsibility for government oversight of advisory committees. In 1977 President Carter, acting pursuant to a congressionally approved reorganization plan, transferred the advisory committee functions from OMB to the General Services Administration (GSA). (See Executive Order 12024.) The statutorily mandated Committee Management Secretariat (CMS) therefore, also was transferred to GSA to carry out this responsibility.

As part of its responsibility under FACA, GSA issues governmentwide guidelines and regulations for Federal Advisory Committee Management.

ILLUSTRATIVE SCENARIOS

The attachments contain scenarios which illustrate when FACA does and does not apply to interactions between Executive branch officials and the private sector. An overview of the process when FACA applies is also included.

SCENARIO ONE - FACA NOT APPLICABLE

Factual assumptions: As part of continuing National Performance Review (NPR) initiatives, the Administrator wishes a series of meetings with senior corporate executives from companies which have faced or are facing challenges similar to those facing government today, e.g., downsizing, restructuring, reduced resources, creative financing needs, labor and human resources concerns, increased customer relations demands, etc.

The Administrator's intent is to obtain experiential and anecdotal information from each executive on challenges faced by his/her company, how the company met the challenges, approaches which were productive or successful, and those which were not. The attendees may or may not change from session to session. The specific agenda subjects will likely change and may be set in advance or be free form. No consensus advice or recommendations resulting from group deliberation or interaction is expected or will be solicited.

FACA does not apply because:
 

• The intent is to obtain information or viewpoints from individual attendees as opposed to advice, opinions or recommendations from the group acting in a collective mode.

FACA coverage could become an issue if:
 

• The function/mission of the group changes over time and the Administrator begins to use the group as a source of consensus advice or recommendations. The more static the group composition, i.e., the same attendees at each meeting, the more likely an issue of FACA's applicability will arise.

SCENARIO TWO - FACA APPLICABLE

Factual assumptions: Same fact pattern as described in paragraph 1 of Scenario One except rather than seeking information on individual corporate experiences the Administrator prefers to establish a committee composed of senior corporate officials which will meet, interact, deliberate, and advise him on a variety of issues arising out of the NPR. The committee structure could include a core membership with subgroups.

FACA applies because:

• The committee is established by an agency head (the Administrator) to obtain advice or recommendations for himself or other federal officers in the executive branch; and
• The committee is not composed wholly of full-time, or permanent part-time federal employees.

REQUIREMENTS/PROCESS WHEN FACA APPLIES

Establishment:

• The Administrator is authorized to establish advisory committees to advise him/her on functions vested in the Administrator by the Federal Property and Administrative Services Act, or other GSA authorizing legislation.
• Committees which advise the Administrator also may be established by specific statutory language.
• No advisory committee can meet or take action prior to submitting a charter with the Administrator.
• The charter must contain the committee's designation, its objectives, its duration, the official to whom it reports, the agency or organization providing support, the duties of the committee, estimated operating costs, estimated number of meetings, and its termination date.

Members:

• The membership must be balanced in terms of points of view represented and the functions to be performed by the committee.
• Members are subject to ethics laws if they are appointed because of their personal knowledge, background or expertise. They are not subject to ethics laws if they are appointed to represent the point(s) of view of a particular group or segment of the public.
• Members usually are entitled to reimbursement for travel and per diem expenses. FACA also provides for direct compensation, but many members serve gratuitously.

Meetings:

• Must have 15 days advance notice in the Federal Register.
• Must be open to the public unless limited statutory bases for closure apply.
• Must have a Designated Federal Officer in attendance.
• Must have minutes which are available for public inspection (except for portions of a meeting which was closed).

FACA ADVISORY COMMITTEE MEMBERS APPLICABLE ETHICS STATUTES AND REGULATIONS

SGE - Special Government Employee (a person who serves not more than 130 days out of a 365 day period)

FTE - Full-time regular government employees

REP - Representative of particular interest group

I. Executive Orders apply to SGEs and FTEs but not to REPs
II. Standards of Conduct apply to SGEs and FTEs but not to REPs except as noted below.*
III. Conflicts of Interest apply to SGEs except as noted below** and FTEs but not to REPs.
IV. Ethics in Government Act including both the A. Public Financial Form and B. Confidential apply to SGEs and FTEs but not to REPs.

* Representative commission members would only be bound by the standards of conduct if the commission as a body made it applicable to all members. Representative members are reminded that nonpublic information should not be released to the public without permission.

** SGE's are treated less restrictively on a number of conflicts of interest laws.