Federal Advisory Committee Act

AuthorWilliam Funk - Jeffrey S. Lubbers
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
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
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://
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
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).

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