10. Federal Advisory Committee Act

• Pages: 549-617

549

FEDERAL ADVISORY COMMITTEE ACT

10

Federal

Advisory

Committee

Act

549

Citations:

5 U.S.C. App. 2 (2000), enacted October 6, 1972, by Pub. L. No. 92-

463, 86 Stat. 770. Amended by Pub. L. No. 105-153, §1, Dec. 17, 1997, 111

Stat. 2689.

Lead Agency:

General Services Administration, Office of Administration, Committee

Management Secretariat, 18th & F Streets NW, Washington, D.C. 20405

(202) 708-5082; http://www.gsa.gov

Overview:

The Federal Advisory Committee Act (FACA) regulates the formation

and operation of advisory committees by federal agencies in the Executive

Branch. “Advisory committee” is defined in section 3 to include any commit-

tee or similar group that is established by statute or organization plan, estab-

lished or utilized by the President, or established or utilized by any agency in

the interest of obtaining advice or recommendations for the President or one

or more federal agencies or officers. Excepted from this definition are groups

not wholly composed of full-time, or permanent part-time, federal officers

or employees. In addition, the Act also exempts advisory committees of the

National Academy of Sciences, the National Academy of Public Administra-

tion,1 the Central Intelligence Agency, and the Federal Reserve System, any

1Although the advisory committees of the National Academy of Sciences

and the National Academy of Public Administration are exempted from the defi-

nition, the Act prohibits agencies from using the advice or recommendations of

committees created by these two national academies unless their creation and

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local civic group whose primary function is to render a public service with

respect to a federal program, and any State or local committee established to

advise State or local officials or agencies. Finally, some other statutes spe-

cifically exempt certain activities from the Act.2

The Act requires in part that new advisory committees be established

only after public notice and upon a determination that establishment is in the

public interest (§9(a)); that each advisory committee have a clearly defined

purpose and that its membership be fairly balanced in terms of the points of

view represented and the functions to be performed (§5); that the status of

and need for each committee be subject to periodic review (§§7, 14); and that

meetings of advisory committees be open to public observation, subject to

the same exemptions as those provided in the Government in the Sunshine

Act (§10).

Section 7 of the Act places oversight and policy responsibility in the

Administrator of the General Services Administration and directs the cre-

ation of a Committee Management Secretariat in GSA to fulfill those duties.

That office maintains a web page about federal advisory committees. (http:/

/www.gsa.gov/Portal/gsa/ep/channelView.do?pageTypeId=8203&channelId=-

13170).

At the end of fiscal year 2005, there were 943 federal advisory commit-

tees. Of these, 515 were not mandated by statute, a 35% decrease since 1993,

when Executive Order 12,838 (February 11, 1993) directed the elimination

of at least one-third of all discretionary advisory committees. The Office of

Management and Budget issued OMB Circular A-135 to implement this Ex-

ecutive Order.

The breadth of the definition of “advisory committee” has provoked

uncertainty and litigation.3 GSA regulations attempt to provide guidance in

meetings follow the specific procedures contained in section 15 of the Act. These

procedures generally mirror the requirements applicable to normal advisory com-

mittees but are tailored to the particular needs of the academies.

2See, e.g., 2 U.S.C. §1534(b) (exempting certain meetings between federal

officials and elected officers of state, local, or tribal governments acting in their

official capacity).

3See, e.g., In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) (persons are not

“members” of an “advisory committee” unless they have a vote in or, in the case of

consensus decisions, a veto over the committee’s decisions); Byrd v. U.S.E.P.A.,

174 F.3d 239 (D.C. Cir. 1999) (a panel convened by a consultant pursuant to a

contract with EPA requiring it to convene a panel to provide technical advice to

EPA, whose members were subject to EPA approval, was neither “established”

nor “utilized” by EPA); Judicial Watch v. Clinton, 76 F.3d 1232 (D.C. Cir. 1996)

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FEDERAL ADVISORY COMMITTEE ACT

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this regard. See 41 C.F.R. 102-3.25, 102-3.40. The requirement for commit-

tees to be balanced in terms of their composition and the procedures appli-

cable to “meetings” have also been the subject of litigation.4 Most of the

litigation under FACA has arisen pursuant to the judicial review provisions of

the APA; it is an open question whether FACA itself creates a private cause of

action for a violation of its terms.5

The statute itself prescribes no conflict-of-interest requirements for ad-

visory committee members. However, chapter 11 of title 18 of the U.S. Code,

particularly section 208, is applicable to federal employees generally, includ-

(President’s legal expense trust not an advisory committee); California Forestry

Assn. v. U.S. Forest Service, 102 F.3d 609 (D.C. Cir. 1996) (committee estab-

lished by agency to provide advice to Congress was “advisory committee” un-

der the Act because it also advised the agency).

In Public Citizen v. U.S. Dep’t of Justice, 109 S. Ct. 2558 (1989), the

Supreme Court held that FACA did not apply to the “special advisory relation-

ship” between the President and the American Bar Association Standing Com-

mittee on Federal Judiciary on matters of judicial nomination. The opinion turned

on the court’s conclusion that the ABA group was not a “utilized” committee

within the meaning intended by Congress and, thus, the ABA committee did not

fall under the statutory definition of “advisory committee” under FACA. Subse-

quent cases have further refined the definition of what constitutes a “utilized”

advisory committee. See, e.g., Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929

(D.C. Cir. 1995), cert. denied 116 S. Ct. 910 (1996); Washington Legal Found. v.

U.S. Sentencing Comm’n, 17 F.3d 1446 (D.C. Cir. 1994); Huron Env. Activist

League v. EPA, 917 F. Supp. 34 (D.D.C. 1996); Food Chemical News v. Young,

900 F.2d 328 (D.C. Cir. 1990); and Ctr. for Auto Safety v. Fed. Highway Admin.,

unpub. mem. opin. (Civ. Action No. 89-1045) (D.D.C. Oct.12, 1990).

4See, e.g., Cargill, Inc. v. United States, 173 F.3d 323 (D.C. Cir. 1996)

(what constitutes fair balance); Ass’n of Am. Physicians & Surgeons, Inc. v.

Clinton, 997 F.2d 898 (D.C. Cir. 1993) (the First Lady should be considered a

full-time federal employee for purposes of FACA); Public Citizen v. Dep’t of

HHS, Civ. Action, 795 F. Supp. 1212 (D.D.C. 1992) (what constitutes fair bal-

ance); Wash. Post v. National Council on the Arts, Civ. Action No. 92-0955

(D.D.C. April 29, 1992) (grounds for closure); Bureau of Nat’l Affairs v. President’s

Council of Advisors on Science and Technology, Civ. Action No. 92-1088 (D.D.C.

May 7, 1992) (grounds for closure); and Natural Resources Def. Council v. EPA,

806 F. Supp. 275 (D.D.C. 1992) (grounds for closure); Nader v. Baroody, 396 F.

Supp. 1231 (D.D.C. 1975); Ctr. for Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir.

1978); Lombardo v. Handler, 397 F. Supp. 792 (D.D.C. 1975), aff’d, 546 F.2d

1043 (D.C. Cir. 1976); Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048

(DDC 1974).

5 See Manshardt v. Fed. Judicial Qualifications Comm., 408 F.3d 1154, 1155 n.3

(9th Cir. 2005) (collecting cases).