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Federal Advisory Committee Act (1972)

Federal Advisory Committee Act (1972)

William Funk

Both the president and federal agencies receive advice from committees that are at least partially made up of private persons. Congress passed the Federal Advisory Committee Act (P.L. 92-463, 86 Stat. 770) in 1972 to regulate the creation and operation of these committees. Congress was responding to two problems: (1) the large number of advisory committees, many of which were duplicative, wasteful, and of limited usefulness, and (2) the secretiveness of most advisory committees' operations and the undue influence certain private groups allegedly wielded in these committees.

THE ACT'S REQUIREMENTS

To address the issue of the number of federal advisory committees, the act requires both the president and the administrator of the General Services Administration (GSA), which is given general management responsibility for all federal advisory committees, to make an annual report on the activities and costs of advisory committees and to review whether committees should be retained or abolished. In addition, the act makes it more difficult to establish new advisory committees. Under section 9(a) of the act, no new advisory committee can be created unless the president or a statute has specifically authorized it, or the head of an agency formally determines after consultation with the administrator of GSA that the establishment of a new advisory committee is "in the public interest in connection with the performance of duties imposed on that agency by law." This prohibition is enforced by a separate requirement that no advisory committee shall meet or take any action until a charter for the committee has been filed with the administrator of GSA for presidential advisory committees, or with the head of the agency to which the advisory committee reports, and with the standing committees of the Senate and House having jurisdiction over such agency. Although an advisory committee cannot be established for longer than two years, the act allows the president or the head of an agency to renew committees created by them for additional and successive two-year periods.

To solve the problems of secretiveness and excessive influence of private groups, Congress required various procedures to open up advisory committee meetings:

  • Each advisory committee meeting must be open to the public, and interested persons may attend, appear before, and file statements with the committee.
  • Meetings or portions of meetings may be closed to the public only when the president or the head of an agency determines that closing is in accordance with the provisions of the Government in the Sunshine Act for closing meetings under that act.
  • Agencies must provide effective public notice of committee meetings, including publication in the Federal Register.
  • Detailed minutes must be kept of the meetings, and the minutes and other documents received by or generated by the committee must be made available to the public, subject only to the same limitations as records under the Freedom of Information Act.
  • To limit the influence of any particular private group, the membership of advisory committees must be fairly balanced in terms of points of view represented and functions to be performed.
  • Advisory committees cannot meet except with the approval of an officer or employee of the federal government who is designated to attend or chair their meetings and who also approves the agenda for the meeting.

THE DEFINITION OF AN ADVISORY COMMITTEE

The definition of an advisory committee is a critical issue, because it determines whether the particular requirements governing the creation and operation of advisory committees are applicable. A fair amount of litigation has centered on this issue. Section 3(2) of the act defines "advisory committee" as: "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ..., which is(A) established by statute or reorganization plan, or; (B) established or utilized by the President, or; (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government."

However, the act exempts a number of groups from this definition that otherwise would be advisory committees. These include any committee composed entirely of full-time or part-time employees of the federal government; any committee created by the National Academy of Sciences or the National Academy of Public Administration; any committee created or utilized by the Central Intelligence Agency or the Federal Reserve System; and, generally, local civic groups, state and local committees, and groups of state and local legislators. Statutes that create advisory committees sometimes also exempt those committees from the definition contained in the act.

INTERPRETING THE ACT

When do the president and the Department of Justice "utilize" a committee for the purpose of obtaining advice, thereby subjecting it to the act's requirements? In 1989 a Supreme Court case addressed this important question concerning interpretation of the act. The American Bar Association (ABA) maintained a standing committee to review candidates for judicial nominations. These names were forwarded to it by the Department of Justice, and the committee in return provided the president and the Department of Justice with the results of the committee's review. Thus, in a commonsense understanding of the term, the president and the department utilized the ABA committee for advice. Because the committee did not function in accordance with the requirements of the act, a public interest group sued to enforce the act in Public Citizen v. U.S. Department of Justice.

In that case, the Supreme Court concluded that Congress could not have intended to impose the requirements of the act on any private group that the president or an agency happened to seek advice from. Rather, the Court said, the word "utilized" "appears to have been added simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations ... 'for' public agencies as well as 'by' such agencies themselves...." (491 U.S. at 462). The result of this very restrictive interpretation by the Court was largely to eliminate the requirements of the act for "utilized" advisory committees.

The other major interpretive issue, which has arisen on numerous occasions, is what constitutes the "establishment" of a group for the purpose of providing advice to an agency. Initially, it appears that the agency must establish the group so as to obtain the group's advice, as opposed to the individual advice of each of the members (Association of American Physicians and Surgeons, Inc. v. Clinton [1993]). The GSA, in its role of managing advisory committees generally, has taken the position that committees that are primarily operational and only incidentally provide advice are not subject to the act. In addition, the GSA advises that committees that only provide facts and information are not subject to the act. Court decisions have not definitively ruled on either of these interpretations. Nevertheless, the difficulty in policing the line between "operations" and "advice" and between "facts and information" and "advice" makes it risky for committees to use these two interpretations to avoid being covered by the act.

Finally, there is a question as to how formal the establishment of a group must be in order to trigger the act's requirements. An early case in a lower court found that biweekly, three-hour meetings between high executive officials and major business organizations and other groups in the private sector were not advisory committee meetings because the meetings involved different people from meeting to meeting and because the advice they provided was general advice as to whatever concerned these persons. On the other hand, other lower-court cases have found even a one-time meeting of agency officials with a group of outside experts on a particular policy initiative to be an advisory committee meeting.

JUDICIAL REVIEW

An agency's failure to comply with the act's procedural requirements applicable to meetings may be challenged under the federal Administrative Procedure Act. When the committee is engaged in a continuing enterprise, a court may order the committee to comply with the act. When, however, the committee has completed its work, it is less clear how the court should respond. One court prohibited an agency from using the advice and information provided to it by a committee, which resulted in the inability of the agency to list a species as endangered. Usually, however, courts merely order that the documents provided to or by the committee be made available to the public.

See also: Administrative Procedure Act ; Freedom of Information Act ; Government in the Sunshine Act .

BIBLIOGRAPHY

Croley, Steven P., and William F. Funk. "The Federal Advisory Committee Act and Good Government." 14 Yale Journal on Regulation 451 (1997).

Funk, William, Jeffrey S. Lubbers, and Charles Pou, Jr., eds. "Federal Advisory Committee Act." In Federal Administrative Procedure Sourcebook, 3d ed., Chicago: American Bar Association, 2000.

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FACA

FACA Fellow of the American College of Anesthesiologists

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