The Federal Advisory Committee Act under Administrative Law
The Federal Advisory Committee Act (FACA)
Under Administrative Law
Overview
The Federal Advisory Committee Act (FACA), enacted in 1972, is a key statute governing the operation of advisory committees established by the federal government. Its main purpose is to ensure that advice provided to the executive branch is objective, accessible, and transparent to the public.
FACA regulates the creation, management, and operation of federal advisory committees, requiring transparency, public involvement, and balanced representation of interests.
Key Provisions of FACA
1. Definition and Scope
FACA applies to advisory committees established or utilized by the President or federal agencies to provide advice or recommendations.
It covers committees, boards, commissions, councils, or other similar groups, but excludes committees composed entirely of full-time federal employees.
2. Transparency and Public Access
Advisory committees must hold meetings open to the public unless an exemption applies.
Notice of meetings must be published in the Federal Register at least 15 calendar days in advance.
Minutes, reports, transcripts, and other documents must be made available for public inspection.
3. Balanced Membership
Committees must be fairly balanced in terms of points of view and expertise.
Membership cannot be dominated by one interest group to ensure diverse perspectives.
4. Charter Requirements
Each advisory committee must have a written charter filed with the General Services Administration (GSA).
The charter includes the committee’s purpose, membership criteria, and estimated costs.
5. Record Keeping and Reporting
Committees must keep detailed records of their activities.
Annual reports must be submitted describing the committee’s operations and expenditures.
6. Limitations on Operations
Advisory committees cannot exercise direct control over federal agencies or make final decisions.
They provide recommendations but do not have decision-making authority.
Purpose and Importance
FACA promotes accountability and openness in government advisory processes by:
Preventing secretive decision-making.
Ensuring advisory groups represent diverse interests.
Providing the public the right to observe and understand advisory processes influencing policy.
Relevant Case Law on FACA
Case 1: Public Citizen v. Department of Justice, 491 U.S. 440 (1989)
Issue: Whether the Attorney General’s advisory committee on the nomination of federal judges was subject to FACA.
Facts: The Department of Justice contended that the advisory group was exempt from FACA because it was an intra-agency advisory group.
Holding: The Supreme Court ruled that the advisory committee was subject to FACA because it was established by the Attorney General and included members who were not full-time federal employees.
Significance: Clarified the scope of FACA, emphasizing that advisory committees including non-government members are generally subject to its requirements.
Case 2: American Horse Protection Association v. Lyng, 812 F.2d 1 (D.C. Cir. 1987)
Issue: Whether the Secretary of Agriculture violated FACA by creating an advisory committee that lacked balanced representation.
Facts: The advisory committee on wild horses allegedly had members biased towards the livestock industry.
Holding: The court found a violation of FACA because the committee membership was not fairly balanced.
Significance: Reinforced the requirement that advisory committees must fairly represent diverse viewpoints.
Case 3: Citrin v. U.S. Customs Service, 762 F. Supp. 782 (D.D.C. 1991)
Issue: Whether meetings of an advisory committee were unlawfully closed to the public.
Facts: The plaintiff challenged the closure of committee meetings that were supposed to be open under FACA.
Holding: The court held that the government must adhere strictly to FACA’s open meeting provisions and that exceptions must be narrowly construed.
Significance: Established strong protections for public access to advisory committee meetings.
Case 4: Association of American Physicians and Surgeons, Inc. v. Clinton, 997 F. Supp. 1 (D.D.C. 1998)
Issue: Compliance with FACA by the President’s advisory committee on health care.
Facts: Plaintiffs argued that the committee violated FACA by failing to publish notices and meeting records.
Holding: The court required the committee to comply fully with FACA’s transparency and procedural requirements.
Significance: Emphasized the mandatory nature of FACA’s procedural rules.
Summary of Legal Principles under FACA
| Principle | Explanation | Case Example |
|---|---|---|
| Scope of FACA | Applies broadly to committees with non-government members | Public Citizen v. DOJ (1989) |
| Balanced Membership | Committees must fairly represent diverse interests | American Horse Protection Ass’n (1987) |
| Open Meetings | Meetings must be open unless narrowly exempted | Citrin v. U.S. Customs (1991) |
| Transparency and Recordkeeping | Notices, minutes, and records must be publicly available | Ass’n of American Physicians v. Clinton (1998) |
Practical Impact
Agencies creating advisory committees must file charters, publish meeting notices, keep detailed records, and ensure diverse membership.
Members of the public and interest groups can attend meetings and access committee documents, promoting government transparency.
Failure to comply with FACA can lead to injunctions stopping committee operations or invalidating committee recommendations.
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