Federal Advisory Committee Act
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.
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 committee or similar group that is established by statute or organization plan, established 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 Administration, the Central Intelligence Agency, and the Federal Reserve System, any 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 specifically exempt certain activities from the Act.
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 creation of a Committee Management Secretariat in GSA to fulfill those duties. That office maintains a web page about the Act and its operation.
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 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 Executive Order.
The breadth of the definition of “advisory committee” has provoked uncertainty and litigation. GSA regulations attempt to provide guidance in this regard. See 41 C.F.R. §§ 102-3.25, 102-3.40. The requirement for committees to be balanced in terms of their composition and the procedures applicable to “meetings” has also been the subject of litigation. 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.
The statute itself prescribes no conflict-of-interest requirements for advisory committee members. However, chapter 11 of title 18 of the U.S. Code, particularly section 208, is applicable to federal employees generally, including the category of “special government employees.” Unless an advisory committee member is appointed as a representative of a particular interest, and is thus not considered a government employee, he or she is likely to be a special government employee, whether or not compensated. Section 208(b)(3) authorizes an official who appoints an advisory committee member to exempt a special government employee where the need for the individual’s services outweighs the potential for a conflict of interest. See generally Memorandum Opinion for the Chief Counsel, Food and Drug Administration, 2 Op. O.L.C. 151 (1978).
Special government employees are subject to disclosure requirements. See 57 Fed. Reg. 11,800 (Apr. 7, 1992).
Section 219(a) of title 18 of the U.S. Code makes it a criminal offense for a public official to be or to act as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938. The Department of Justice has concluded that members of federal advisory committees governed by the Federal Advisory Committee Act come within the definition of “public official.” Letter of Deputy Assistant Attorney General, Office of Legal Counsel, to Deputy Counsel to the President (Apr. 29, 1991). Section 219(b) allows the head of an agency to exempt from section 219(a) those individuals who serve on advisory committees as “special government employees” but not those who serve as representatives. In addition, the Department took the position that the Emoluments Clause of the U.S. Constitution, Article 1, § 9, cl. 8, prohibits an individual who is an agent of a foreign government from serving on an advisory committee absent specific congressional consent. The Department concluded that Congress has not consented to such service by enacting the Federal Advisory Committee Act.
Congress considered legislation to establish minimum standards for the organization and operation of federal advisory committees intermittently since the mid-1950s. After oversight hearings in the 91st Congress (1969-70), legislation was introduced in both houses in the 92nd Congress, and both the Senate Committee on Governmental Affairs and the House Committee on Government Operations held hearings. The House Committee on Government Operations reported out H.R.4383, the Federal Advisory Committee Standards Act, in April 1972 (H.R. Rep. No. 92-1017), which was considered and passed by the House on May 9, 1972. The Senate Committee on Governmental Affairs, having considered three separate bills, reported a clean bill, S.3529, the Federal Advisory Committee Act, on September 7, 1972 (S. Rep. No. 92-1098). The Senate approved this bill on September 12, 1972, and substituted its text for that in the House-passed bill. The relatively minor differences between the two bills were resolved in a Conference Report (H.R. Rep. No. 92-1403), which the Senate adopted on September 20, 1972. FACA became effective on January 4, 1973.
On November 9, 1997, Representative Horn, Chair of the House Subcommittee on Government Management, Information, and Technology, introduced H.R. 2977, the Federal Advisory Committee Act Amendments of 1997, to the 105th Congress. The proposed legislation sought to clarify public disclosure requirements applicable to the National Academy of Sciences and the National Academy of Public Administration and to overrule legislatively the decision of Animal Legal Defense Fund v. Shalala, 104 F.3d 424 (D.C. Cir. 1997). The bill was marked with few revisions and passed the same day. (Cong. Rec. H 10578). On November 13, 1997, the Senate introduced and passed H.R. 2977 with no revisions. (Cong. Rec. S 12515). The Federal Advisory Committee Act Amendments of 1997 became Public Law 105-153 on December 17, 1997.
Section 410 of the Intelligence Authorization Act for Fiscal Year 2010, Pub. Law No. 111-259, October 7, 2010, 124 Stat. 2654, added the Director of National Intelligence to the list of agencies exempted from compliance with the Federal Advisory Committee Act.
The relevant legislative history materials of the original Act are collected in Federal Advisory Committee Act (Public Law 92-463), Source Book—Legislative History, Texts, and Other Documents (1978), prepared for the Senate Committee on Governmental Affairs.
Legislative History and Congressional Documents
- Cong. Research Serv., Federal Advisory Committee Act (Pub. L. No. 92-463), Source Book – Legislative History, Texts and Other Documents (1978).
- Hearings on Bills to Amend the Federal Advisory Committee Act, Pub. L. No. 92-463, 86 Stat. 770 (1972) before Subcomm. on Reports, Accounting, and Mgmt. of the S. Comm. on Governmental Affairs, 94th Cong. (1976).
- Oversight of the Federal Advisory Committee Act, Hearing Before S. Comm. on Governmental Affairs, , 98th Cong. (1984).
- Federal Advisory Committee Act and the President’s AIDS Commission, Hearing Before the S. Comm. on Governmental Affairs, 100th Cong. (1987).
- Department of Defense Strategic Defense Initiative Organization Compliance with the Federal Advisory Committee Act, Hearing before S. Comm. on Governmental Affairs, 100th Cong. (1988).
- Federal Advisory Committee Amendments of 1988, Hearing Before S. Comm. on Governmental Affairs, 100th Cong. (1988).
- Federal Advisory Committee Act Amendments of 1989, Hearing Before S. Comm. on Governmental Affairs, 101st Cong. (1989).
- Federal Advisory Committee Act Amendments of 1992, S. Rep. No. 102-281, 102d Cong. (1992).
- Hearing on the Federal Advisory Committee Act before the Subcomm. on Government Mgmt., Info., and Techn. of H. Comm. on Gov't Reform and Oversight Committee, 105th Cong., 1st Sess. (1997).
- Federal Advisory Committee Act Amendments of 2015, H.R. Rep. No. 114–386 (2016).
- Federal Advisory Committee Act Amendments of 2017, S. Rep. No. 115-217 (2018).
Administrative Conference Recommendations
- 80-3, Interpretation and Implementation of the Federal Advisory Committee Act
- 82-4, Procedures for Negotiating Proposed Regulations
- 85-5, Procedures for Negotiating Proposed Regulations
- 89-3, Conflict-of-Interest Requirements for Federal Advisory Committees
- 2011-7, The Federal Advisory Committee Act—Issues and Proposed Reforms
- 2017-2, Negotiated Rulemaking and Other Options for Public Engagement
Other Government Documents
- Annual Report of the President on Federal Advisory Committees (1972-1998), available at https://www.facadatabase.gov/rpt/printedannualreports.asp) (The annual report was discontinued in favor of providing the information online for the period 1997-2012: http://www.fido.gov/facadatabase/public.asp. Subsequently, the information is available in datasets at http://facadatabase.gov/.).
- Executive Order 12,838, Termination and Limitation of Federal Advisory Committees, 58 Fed. Reg. 8,207 (Feb. 10, 1993).
- U.S. General Accounting Office Report, Federal Advisory Committee Act: Advisory Committee Process Appears to Be Working, but Some Concerns Exist. T-GGD-98-163. July 14, 1998, available at http://www.gao.gov/archive/ 1998/gg98163t.pdf.
- U.S. General Accounting Office Report, Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance GAO-04-328. April 16, 2004, available at http://www.gao.gov/ new.items/d04328.pdf.
- U.S. Gov’t Accountability Office, Federal Advisory Committee Act: Issues Related to the Independence and Balance of Advisory Committees. GAO-08-611T. Apr. 2, 2008, available at http://www.gao.gov/assets/120/ 119486.pdf.
- Office of Management and Budget, Circular A-135, Management of Federal Advisory Committees, 59 Fed. Reg. 53,856 (Oct 26, 1994).
Books and Articles
- Litigation Under the Federal Open Government Laws: The Privacy Act, The Freedom of Information Act, The Federal Advisory Committee Act, The Government in the Sunshine Act (various editions), most recent 2010, published by the Electronic Privacy Information Center.
- Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 (1994).
- Reeve T. Bull, The Federal Advisory Committee Act: Issues and Proposed Reforms (Sept. 12, 2011), available at www.acus.gov/report/reevet-bulls-report-faca.
- Michael H. Cardozo, The Federal Advisory Committee Act in Operation, 33 Admin. L. Rev. 1 (1981).
- Jennifer E. Chung, Federal Advisory Committee Act (part of annual D.C. Circuit Review), 65 Geo. Wash. L. Rev. 786 (1997).
- Steven P. Croley, Practical Guidance on the Applicability of the Federal Advisory Committee Act, 10 Admin. L.J. Am. U. 111 (1996).
- Steven P. Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on Reg. 451 (1997).
- David Marblestone, The Coverage of the Federal Advisory Committee Act, 35 Fed. B.J. 119 (1976).
- Megan Colleen McHugh, The Affordable Care Act's Federal Advisory Committees, 8 WM. & MARY POL'Y REV. 1 (2016).
- Brian C. Murphy, Implementation of the Federal Advisory Committee Act: An Overview, 9 Gov’t Pubs. Rev. 3 (1982).
- Mary Kathryn Palladino, Ensuring Coverage, Balance, Openness, and Ethical Conduct for Advisory Committee Members Under the Federal Advisory Committee Act, 5 Admin. L.J. 231 (1991).
- Richard A. Wegman, The Utilization and Management of Federal Advisory Committees (Kettering Foundation, 1983).
Statutory Provisions and Regulations
Federal Advisory Committee Act, 5 U.S.C. app. § 2.
General Services Administration, Federal Advisory Committee Management Regulations, 41 C.F.R. Part 102-3.