Federal Advisory Committee Act

• Author: William Funk - Jeffrey S. Lubbers
• Pages: 553-630

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FEDERAL ADVISORY COMMITTEE ACT

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Federal

Advisory

Committee

Act

553

Citations:

5 U.S.C. App. 2 (2012), 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; Pub. L. No. 111-259, Title IV, § 410(a), Oct. 7, 2010, 124 Stat. 2724.

Lead Agency:

General Services Administration, Office of Administration, Committee

Management Secretariat, 18th & F Streets NW, Washington, DC 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 defini-

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

committees created by these two national academies unless their creation and

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

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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 specifi-

cally 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 has 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 the Act and its operation (http://

www.gsa.gov/portal/content/100916).

In any given year there are about 1,000 federal advisory committees. Of

these, in 2011, 469 were not mandated by statute, a 41 percent decrease since

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

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

Office of Management and Budget issued OMB Circular A-135 to implement

this Executive Order.

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

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

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 meetings between federal offi-

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

official capacity for the purpose of exchanging advice relating to the manage-

ment or implementation of federal programs that share intergovernmental re-

sponsibilities or administration).

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); Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d

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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 com-

mittees to be balanced in terms of their composition and the procedures ap-

plicable to “meetings” has also been the subject of litigation.4 Most of the

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

898 (D.C. Cir. 1993) (in order to constitute an advisory committee, a group must

have, in large measure, an organized structure, a fixed membership, and a spe-

cific purpose); Judicial Watch v. Clinton, 76 F.3d 1232 (D.C. Cir. 1996) (President’s

legal expense trust not an advisory committee); California Forestry Ass’n v. U.S.

Forest Serv., 102 F.3d 609 (D.C. Cir. 1996) (committee established by agency to

provide advice to Congress was “advisory committee” under the Act because it

also advised the agency).

In Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989), the Su-

preme Court held that FACA did not apply to the “special advisory relationship”

between the President and the American Bar Association Standing Committee

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. Subsequent

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

committee. See, e.g., Town of Marshfield v. FAA, 552 F.3d 1 (1st Cir. 2008)

(committee was organized by or under the direction of the agency); Sofamor

Danek Group, Inc. v. Gaus, 61 F.3d 929 (D.C. Cir. 1995), cert. denied, 116 S. Ct.

910 (1996); Wash. Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446 (D.C.

Cir. 1994); Huron Env. Activist League v. U.S. EPA, 917 F. Supp. 34 (D.D.C.

1996); Food Chem. News v. Young, 900 F.2d 328 (D.C. Cir. 1990); and Ctr. for

Auto Safety v. Fed. Highway Admin., unpub. mem. opin. (Civ. A. No. 89-1045)

(D.D.C. Oct.12, 1990).

4See, e.g., Ctr. for Policy Analysis on Trade and Health (CPATH) v. Office

of U.S. Trade Rep., 540 F.3d 940 (9th Cir. 2008) (FACA provides no meaningful

standards to apply to consider whether a committee’s membership is fairly bal-

anced, precluding review under the APA); 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); Pub. Citizen v.

Dep’t of Health & Human Servs., 795 F. Supp. 1212 (D.D.C. 1992) (what consti-

tutes fair balance); Wash. Post et al. v. National Council on the Arts, Civ. A. No.

92-0955 (D.D.C. Apr. 29, 1992) (grounds for closure); Bureau of Nat’l Affairs v.

President’s Council of Advisors on Science and Tech., Civ. A. No. 92-1088 (D.D.C.

May 7, 1992) (grounds for closure); Natural Res. 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 Chem. News, Inc. v. Davis, 378 F. Supp. 1048 (D. D. C. 1974).