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The Federal Advisory Committee Act: Issues and Proposed Reforms
Reeve T. Bull1
INTRODUCTION ................................................................................................................................................ 2
PART A: BACKGROUND OF FACA ................................................................................................................. 6
A BRIEF HISTORY OF FACA .............................................................................................................................6
FACA and its Predecessors ..........................................................................................................................6
Post-FACA Advisory Committee Legislation ...............................................................................................8
Implementing Regulations ............................................................................................................................9
Other Relevant Developments ....................................................................................................................11
Historical Usage of Advisory Committees .................................................................................................12
2. DEFINING THE SCOPE OF FACA‘S COVERAGE ................................................................................................12
a. “Group” Requirement ...............................................................................................................................13
b. “Established” or “Utilized” Requirement .................................................................................................15
c.
“Advice or Recommendations” Requirement ............................................................................................19
d. Statutory Exemptions .................................................................................................................................21
3. FACA‘S PROCEDURAL REQUIREMENTS ..........................................................................................................22
a. Authority for Committee Establishment .....................................................................................................22
b. Chartering and Other Committee Formation Requirements ......................................................................22
c.
Committee Membership Balance ...............................................................................................................23
d. Ensuring Unbiased Advice .........................................................................................................................24
e.
Meeting Notice Requirements ....................................................................................................................26
f.
Public Participation Requirements ............................................................................................................27
g. Closing Committee Meetings .....................................................................................................................28
h. Committee Document Requirements ..........................................................................................................29
i.
Management of Advisory Committees ........................................................................................................31
j.
Review and Termination of Existing Committees .......................................................................................31
1.

a.
b.
c.
d.
e.

PART B: RESEARCH METHODOLOGY AND FINDINGS .......................................................................... 32
PART C: RECOMMENDATIONS ................................................................................................................... 39
CLARIFYING THE SCOPE OF FACA ..................................................................................................................40
FACA Exceptions .......................................................................................................................................40
Asynchronous Virtual Meetings of Advisory Committees ..........................................................................45
2. STREAMLINING FACA‘S PROCEDURAL REQUIREMENTS .................................................................................47
a. Committee Formation Process ...................................................................................................................47
b. The Advisory Committee Cap .....................................................................................................................50
c.
Special Considerations for Negotiated Rulemaking Committees ...............................................................51
3. ENHANCING TRANSPARENCY AND OBJECTIVITY IN FEDERAL ADVISORY COMMITTEES .................................55
a. Promoting Committee Transparency .........................................................................................................55
1.

a.
b.

1

Attorney Advisor, Administrative Conference of the United States. The author prepared this report in his capacity
as Conference staff, but the views expressed are those of the author and do not necessarily reflect those of the
members of the Conference or its committees.

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b.

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Committee Member Conflict of Interest Standards ....................................................................................61

CONCLUSION................................................................................................................................................... 65
PROPOSED RECOMMENDATIONS .............................................................................................................. 66
APPENDIX A- Historical Numbers of Advisory Committees Covered By FACA................................................... 68
APPENDIX B- FACA Membership Survey .......................................................................................................... 69
APPENDIX C-Literature Review/Initial Interviews and Conference Member Survey ............................................ 72
APPENDIX D- Summary of FACA Workshop ...................................................................................................... 80

Introduction
Over the past several years, governmental entities have increasingly sought to interact
with members of the private sector and obtain outside advice for the government‘s
consideration.2 Indeed, merely one day after taking office, President Obama promised to create
―an unprecedented level of openness in government‖ and urged federal agencies to ―solicit
public feedback to assess and improve their level of collaboration and to identify new
opportunities for cooperation.‖3 Of course, public-private interaction has long been a fixture of
government, and government officials have sought private sector expertise from the very early
days of the Republic.4 Nonetheless, the emphasis on public participation has expanded in recent
years, and many federal agencies have sought opportunities to obtain outside advice and involve
members of the private sector in their work.
In their efforts to promote public-private interaction, a major consideration for
governmental entities is compliance with the Federal Advisory Committee Act (―FACA‖).5
2

See, e.g., Twenty Seventh Annual Report of the President on Federal Advisory Committees 1 (1998), available at
http://www.fido.gov/facadatabase/printedannualreports/1998-TwentySeventh%20Annual%20Report%20Of%20The%20President%20On%20Federal%20Advisory%20Committees.pdf
(―Advisory committees continue to represent an essential part of federal efforts to increase public participation‖);
Lisa Blomgren Bingham, The Next Generation of Administrative Law: Building the Legal Infrastructure for
Collaborative Governance, 2010 WIS. L. REV. 297, 298 (―On his first full day in office, President Barack Obama
committed to create ‗an unprecedented level of openness in Government‘ and ‗a system of transparency, public
participation, and collaboration‘ to strengthen democracy, ensure the public trust, and ‗promote efficiency and
effectiveness in Government.‘. . . The president's memorandum represents a commitment to collaborative
governance.‖).
3
Transparency & Open Government, 74 Fed. Reg. 4685, 4685 (Jan. 26, 2009) (memorandum dated January 21,
2009).
4
Michael H. Cardozo, The Federal Advisory Committee Act in Operation, 33 ADMIN. L. REV. 1, 1 (1981) (―The use
of advisory committees in the United States government started when the government started.‖); Steven P. Croley &
William F. Funk, The Federal Advisory Committee Act & Good Government, 14 YALE J. ON REG. 451, 458 & n.34
(1997).
5
5 U.S.C. App. 2.

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Enacted in 1972, FACA regulates the government‘s ability to interact with outsiders, formalizing
the process of seeking advice from groups containing at least one non-federal employee and
imposing various procedural requirements on groups from which such advice is sought.6 Though
Congress recognized the value of public-private interaction when enacting the Act,
acknowledging that federal advisory committees ―provide[] a means by which the best brains
and experience available in all fields of business, society, government and the professions can be
made available to the Federal Government at little cost,‖7 FACA also clearly reflects a desire to
cabin the power of advisory committees and place certain constraints on the government‘s ability
to seek private sector advice. Indeed, in its Findings and Purposes, the Act expressly declares
that ―new advisory committees should be established only when they are determined to be
essential and their number should be kept to the minimum necessary.‖8
As will be explored in greater detail, FACA‘s various limits on the use of advisory
committees reflect two primary policy concerns. First, FACA‘s framers felt that advisory
committees tended to proliferate unnecessarily and thereby squander federal resources. 9
Accordingly, FACA imposes a number of requirements designed to ensure that the government
does not create committees without providing an adequate justification for doing so.10 Second,
FACA‘s framers sought to ensure that committees operated objectively and were not improperly
captured by special interests.11 The Act achieves this policy in two ways. First, it directs all
authorities convening advisory committees to ensure that ―the advisory committee will not be
inappropriately influenced by the appointing authority or any special interest‖ and requires that
the membership of committees reflect an appropriate balance ―of the points of view represented
and the functions to be performed.‖12 Second, reflecting Justice Brandeis‘s insight that
―[p]ublicity is justly commended as a remedy for social and industrial diseases,‖13 the Act

6

See generally id.
HOUSE COMM. ON GOV‘T OPERATIONS, THE ROLE & EFFECTIVENESS OF FED. ADVISORY COMMS., H.R. REP. NO.
91-1731, at 4 (1970).
8
5 U.S.C. App. 2 § 2(b)(2).
9
HOUSE COMM. ON GOV‘T OPERATIONS, THE ROLE & EFFECTIVENESS OF FED. ADVISORY COMMS., H.R. REP. NO.
91-1731, at 15–17 (1970) (―One of the more significant problems is the danger of committees being permitted to
remain in existence beyond their usefulness.‖).
10
See, e.g., 5 U.S.C. App. 2 §§ 7(b) (directing the Administrator of the General Services Administration to conduct
a periodic ―comprehensive review‖ of existing committees to ensure that they are fulfilling their missions), 9(c)
(requiring that new and renewed advisory committees file a charter that sets forth the committee‘s mission and the
―time necessary for the committee to carry out its purpose‖).
11
HOUSE COMM. ON GOV‘T OPERATIONS, THE ROLE & EFFECTIVENESS OF FED. ADVISORY COMMS., H.R. REP. NO.
91-1731, at 18–20 (1970).
12
5 U.S.C. App. 2 §§ 5(b)(2)–(3), (c).
13
LOUIS DEMBITZ BRANDEIS, OTHER PEOPLE‘S MONEY 92 (1914).
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imposes various transparency requirements to ensure that committees operate publicly and that
everyday citizens have the opportunity to express their views to committee members.14
FACA has undoubtedly furthered its goals of efficiency and transparency. As will be
examined in more detail, the total number of advisory committees has remained fairly stable over
time, and committee meetings are relatively open and transparent. At the same time, the Act has
fallen under increasing criticism, with some asserting that its various procedural requirements
stifle the government‘s ability to seek outside advice and others contending that its provisions are
insufficient to promote openness and transparency. On one hand, many federal agencies that
work extensively with advisory committees have argued that it limits their ability to collaborate
with private parties or otherwise seek outside information. The necessity of formally chartering
a committee, announcing its meetings, receiving public input, and then holding a public meeting
has led many agencies to avoid the formal advisory committee process whenever possible by
exploiting one of the Act‘s many ―exceptions.‖15 On the other hand, representatives from open
government organizations and other members of the public interested in the work of advisory
committees have contended that committees are insufficiently transparent, with committees‘
deliberations and membership information (such as potential sources of bias and conflicts of
interest) remaining overly obscure. Congress has taken up this clarion call for increased
transparency and has proposed multiple bills in the past several sessions that would, as a general
matter, fill many of the interstices in FACA‘s coverage and impose greater public disclosure
requirements on committees.16
Both in light of its general mandate to improve administrative process17 and its historical
interest in matters of public-private interaction and collaborative governance,18 the
Administrative Conference of the United States undertook this study of FACA to obtain greater
insight into the competing interests at play and to devise recommendations that would both
eliminate procedural hurdles to the use of advisory committees and promote greater openness
and transparency. The study has involved a close review of the relevant FACA literature as well
as extensive data gathering from federal agencies that use advisory committees and members of
the public interested in the work of such committees. The Administrative Conference undertook
14

See, e.g., 5 U.S.C. App. 2 § 10 (requiring that advisory committee meetings be open to the public and that citizens
have the opportunity to file written statements, and, in appropriate circumstances, address advisory committees).
15
James T. O‘Reilly, Federal Advisory Committee Act: Inhibiting Effects upon the Utilization of New Media in
Collaborative Governance & Agency Policy Formation 23–24 (Apr. 15, 2011), available at
http://www.acus.gov/wp-content/uploads/downloads/2011/04/OReilly-FACA-Report-4-15-2011-Redline2.pdf.
16
See, e.g., H.R. 1144, 112th Cong. (2011).
17
5 U.S.C. § 595.
18
See, e.g., Administrative Conference of the United States, Recommendation 82-4, Procedures for Negotiating
Proposed Regulations, 47 Fed. Reg. 30,701 (July 15, 1982); Administrative Conference of the United States,
Recommendation 85-5, Procedures for Negotiating Proposed Regulations, 50 Fed. Reg. 52,893 (Dec. 27, 1985).

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a very extensive empirical study that involved multiple rounds of data gathering, as explained in
greater detail in Part B. First, a Conference consultant interviewed Committee Management
Officers at twelve agencies that make extensive use of advisory committees. Second, the
Conference circulated a set of inquiries focusing on a number of salient issues under FACA to its
government members and asked its public members generally about potential issues under
FACA. The Conference‘s government members include individuals from the vast majority of
agencies that make major usage of advisory committees, and its public members include several
attorneys who have written on FACA and litigated some of the most significant FACA cases.
Third, the Conference conducted a workshop that included both government and private sector
experts on FACA to obtain further input on the most pressing issues as identified in the
Conference membership survey. Finally, Conference staff conducted a series of additional
interviews with survey respondents, workshop participants, and contacts recommended by
Conference members to obtain additional information on various issues discussed during the
workshop. Throughout its data gathering efforts, the Conference sought to obtain a diversity of
perspectives, receiving input both from within and outside the government.
As will be explained in detail, the data gathered suggest that, despite their competing
concerns, an unbridgeable gulf does not exist between those who seek to streamline the advisory
committee process and those who advocate increased transparency. Whatever historical bias
may have existed against the use of advisory committees, both sides are in fundamental
agreement that such committees provide invaluable information to the federal government at
relatively minimal cost and open an important avenue for public participation in government.19
In this light, both parties have a vested interest in ensuring that committees can operate
effectively, free of crippling procedural burdens, and both parties recognize the need to ensure
that the process is open and transparent. Accordingly, this report focuses on eliminating
ambiguities in the statutory regime and removing procedural hurdles that unnecessarily constrain
the use of advisory committees while identifying relatively straightforward activities that
committees might undertake to greatly increase transparency. FACA has always sought to
preserve a delicate balance between maintaining an efficient source of outside advice, on one
hand, and checking the influence of special interests on the advice received by government, on
the other. This report proposes various readjustments to that balance designed to update FACA
for the 21st century, seeking to ensure that the statute facilitates rather than hinders public-private
19

Twenty Seventh Annual Report of the President on Federal Advisory Committees 1 (1998), available at
http://www.fido.gov/facadatabase/printedannualreports/1998-TwentySeventh%20Annual%20Report%20Of%20The%20President%20On%20Federal%20Advisory%20Committees.pdf
(―Advisory committees continue to represent an essential part of federal efforts to increase public participation‖);
Cary Coglianese et al., Transparency & Public Participation in the Federal Rulemaking Process: Recommendations
for the New Administration, 77 GEO. WASH. L. REV. 924, 953 (2009) (―Procedural barriers to advisory committee
formation may tend to discourage their use, despite the fact that, when operating as intended, such committees
provide an excellent means of fostering diverse public participation.‖).

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interaction while striving to maintain and even enhance the Act‘s traditional commitment to
openness and transparency.
The report is divided into three parts. Part A focuses exclusively on positive law,
including three sections that examine the background of the Act. Section 1 provides a brief
history of the enactment of FACA and its implementing regulations, focusing particularly on the
policies that Congress intended the Act to serve. Section 2 examines which government-public
interactions are subject to FACA and which are not, reviewing the cases that have interpreted the
Act and considering how they have delimited the scope of its coverage. Section 3 then analyzes
the various procedural requirements imposed by FACA in detail. Sections 1–3 identify potential
ambiguities in the Act and other areas of uncertainty and inefficiency, but they do not
recommend any revisions to the Act, reserving such discussion for later sections.
Part B describes the data gathering effort undertaken by the Conference in connection
with the FACA project. It describes the literature review, surveys, and workshop that the author
and other Conference staff, members, and a consultant conducted to gather information on the
salient issues under FACA. Part B also provides a brief overview of the primary FACA issues
identified during the data gathering effort. The report also includes 3 appendices that summarize
the results of this data gathering effort in detail.
Part C of the report analyzes the information that the Conference gathered and proposes a
number of recommendations for improving upon the existing FACA regime and spreading
various ―best practices‖ amongst agencies. Section 1 offers various proposals for clarifying the
scope of the Act. If agencies are unsure of whether FACA applies to any given interaction, they
may be chilled from meeting with private parties or may structure such meetings to take
advantage of certain ―safe harbors‖ created by exceptions in the existing FACA regime. The
report offers various recommendations to clarify the Act‘s applicability and minimize the risk of
chilling interaction or encouraging circumvention of the Act. Section 2 identifies certain
procedural burdens associated with FACA that create unnecessary hurdles for agencies without
greatly furthering the policies of the Act and recommends potential solutions to those issues.
Section 3 then considers possible reforms to the current FACA regime and best practices within
the existing regime that would promote increased transparency without imposing a large
procedural burden on agencies.
Part A: Background of FACA
1.

A Brief History of FACA
a.

FACA and its Predecessors

In the last 60 years, a time characterized by the rise of the administrative state and
increased demand for private sector advice, the federal government has made increasingly

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significant use of advisory committees.20 Over that same period, the government has undertaken
various efforts to control the use of advisory committees so as to ensure that such committees do
not exercise undue influence or proliferate excessively. The first formal attempt to regulate
advisory committees arose from concerns that they would facilitate anticompetitive behavior by
providing a forum for private industry groups to confer with the federal government. 21 As a
prophylactic measure against such violations, in 1950, the Department of Justice issued a set of
guidelines intended to thwart any effort to use advisory committee meetings as a platform for
market participants to secretly meet with regulators.22 As a general matter, the guidelines sought
to ensure that the federal government exercised the initiative in establishing any advisory
committee, thereby minimizing the risk that private groups would exploit committee meetings as
a means of colluding with competitors and influencing government policy.23 Specifically, the
guidelines imposed five requirements on the activities of advisory committees: (1) either
Congress or the convening agency had to decide that any given committee was necessary to
achieve statutory duties; (2) the government had to set the committee‘s agenda; (3) a full-time
government official had to call and chair all committee meetings; (4) minutes had to be kept for
each meeting; and (5) the committee‘s findings had to be purely advisory in the sense that the
government had to make the ultimate decision, if any, that would result from the committee‘s
work.24
Unfortunately, agencies largely ignored the Justice Department‘s guidelines, which were
essentially hortatory, leading Congressman Dante Fascell to sponsor a bill in 1957 that would
legally require agencies to report to Congress on their use of advisory committees and impose
various procedural controls on such agencies.25 Congress ultimately failed to enact the bill,26 and
it thereafter essentially abdicated any efforts to regulate advisory committees, leaving the task to
the executive branch, until the enactment of FACA. Taking up the effort that Congress had
abandoned, the Bureau of Budget issued a directive in 1962 that essentially incorporated the
substance of the original Justice Department Guidelines.27 Also in 1962, President Kennedy
issued Executive Order 11,007, which similarly echoed the 1950 Justice Department guidelines
and applied them to all advisory committees.28
Executive Order 11,007 governed the activities of advisory committees for approximately
a decade, from its enactment in 1962 until the promulgation of FACA in 1972. Congress
resumed its consideration of the advisory committee process in 1970.29 A major motivation for
doing so was the perception that advisory committees needlessly consumed federal resources and
20

H.R. REP. NO. 576, 85th Cong., at 2 (1957); The Federal Advisory Committee Act, 10 HARV. J. ON LEGIS. 217,
219–20 (1972).
21
Public Citizen v. United States, 491 U.S. 440, 456 (1989).
22
Id.
23
The Federal Advisory Committee Act, supra note 20, at 220.
24
Id. at 220 n.18.
25
Public Citizen, 491 U.S. at 456; H.R. 7390, 85th Cong. (1957).
26
Public Citizen, 491 U.S. at 456.
27
Id.
28
Id. at 456–57; The Federal Advisory Committee Act, supra note 20, at 221.
29
The Federal Advisory Committee Act, supra note 20, at 221–22.

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ultimately had little impact on agencies‘ regulatory activities, leading to provisions requiring
agencies to continuously review the propriety of existing committees.30 Another significant
concern was the need to preserve a role for the public in committee business and to ensure that
committees‘ work remained transparent, and the legislation accordingly contained provisions
designed to ensure public access to committee meetings and records.31 As a related matter,
Congress sought to limit the ability of industry to exercise undue influence through advisory
committees, a focus that harkened back to the original concern over antitrust violations reflected
in the Justice Department guidelines.32 Ultimately, the House and Senate passed the bill that
became FACA in September 1972, and the President signed the legislation on October 6 of that
year.33
The twenty-two years of Executive Branch and Congressional activity culminating in
FACA reveal two major concerns that the Act and its predecessors sought to combat: (1)
ensuring that federal resources are not misallocated towards committees that serve little purpose
and (2) promoting the objectivity of advisory committees by preventing their being overrun by
special interests, at least partly through ensuring that the committee process is transparent and
preserves at least a limited role for public participation.34 Both policies remain important
considerations and have continued to animate later efforts to regulate advisory committees.35
b.

Post-FACA Advisory Committee Legislation

As a general matter, FACA has proven to be a fairly durable statutory regime and has
survived more or less intact over the course of the past 40 years. Of course, as will be explored
in more detail in Section 2, federal courts have considerably narrowed the potential sweep of the
legislation by interpreting it to contain a number of exceptions. Congress, too, has narrowed
FACA‘s coverage by passing special legislation to exempt certain groups from complying with
the Act. For instance, in 1995, Congress passed the Unfunded Mandates Reform Act,36 which
contained a provision dealing with federal advisory committees. The Act exempted from FACA
meetings between federal officials and officials from state, local, and/or tribal governments for
the purpose of exchanging information or advice about federal programs designed to share
government responsibilities.37 In 1997, Congress passed a set of amendments to FACA that
30

Id. at 222; see also HOUSE COMM. ON GOV‘T OPERATIONS, THE ROLE & EFFECTIVENESS OF FED. ADVISORY
COMMS., H.R. REP. NO. 91-1731, at 4, 12, 15–16 (1970).
31
HOUSE COMM. ON GOV‘T OPERATIONS, THE ROLE & EFFECTIVENESS OF FED. ADVISORY COMMS.,, H.R. REP. NO.
91-1731, at 18–20 (1970).
32
Croley & Funk, supra note 4, at 460.
33
Pub. L. No. 92-463, 86 Stat. 770 (1972) (codified at 5 U.S.C. App. 2); The Federal Advisory Committee Act,
supra note 20, at 224–25.
34
Public Citizen, 491 U.S. at 459; Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929, 932–33 (D.C. Cir. 1995)
35
See, e.g., H.R. 1144, 112th Cong. (2011) (imposing various obligations on agencies beyond the existing FACA
requirements designed to promote transparency); Exec. Order No. 12,838, 58 Fed. Reg. 8,207 (Feb. 10, 1993)
(Executive Order issued by President Clinton that instructed agencies to justify existing advisory committees and
proposed advisory committees and directed agencies to reduce the total number of committees by one-third).
36
Pub. L. No. 104-4, 109 Stat. 48 (1995).
37
Id. § 204(b), 109 Stat. at 66.

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exempted meetings of committees formed by the National Academy of Sciences and National
Academy of Public Administration, though the legislation also created a separate set of
obligations that applied to committee meetings of those two agencies.38
More recently, Congress has shown an increased willingness to make more fundamental
changes to FACA, and, in contrast to previous amendments that have exempted certain types of
meetings from the Act, current legislative efforts have sought to expand FACA‘s coverage. On
March 5, 2009, Congressman William Lacy Clay introduced a bill that would have enacted a
number of revisions to FACA.39 Most notably, the bill would have created a conflict of interest
regime for all members of advisory committees40; eliminated the FACA exceptions that apply to
subcommittees, committees convened by contractors, and committees in which the nongovernmental participants formally lack a vote; and required committees to undertake additional
efforts to promote transparency, such as posting information about committee members online
and either transcribing or webcasting all committee meetings.41 Though the House passed
Congressman Clay‘s bill by 250-124 on July 26, 2010, the Senate took no further action on the
legislation.42 On March 17, 2011, Congressman Elijah Cummings introduced a bill that
essentially replicated many of the provisions of the earlier Clay bill.43 Like the Clay bill,
Cummings‘ proposed legislation would eliminate several of the exceptions to the Act‘s coverage
and require committees to disclose additional information such as background data on committee
members.44 Cummings‘ bill would not impose a common conflict of interest regime on all
committee members, but it would clarify the group of committee members who must comply
with federal ethics standards.45 This bill is currently pending in the House of Representatives.
c.

Implementing Regulations

In the original legislation passed in 1972, FACA delegated to the Office of Management
and Budget (―OMB‖) the tasks of promulgating regulations to assist agencies in complying with
FACA and annually reviewing advisory committees to ensure that committees do not outlive

38

Pub. L. No. 105-153, 111 Stat. 2689 (1997).
H.R. 1320, 111th Cong. (2009).
40
As will be explained at length in Section A.3.d, members of advisory committees are generally divided into two
groups: (a) special government employees and (b) representatives. Special government employees are subject to a
somewhat less stringent version of the ethics regime that applies to traditional federal employees, whereas
representatives are not subject to any ethics standards. Clay‘s bill would have ensured that a minimal conflict of
interest regime applied to all committee members, though special government employees would still have been
subject to additional ethics standards.
41
Id.
42
Wendy R. Ginsberg, Federal Advisory Committees: An Overview 2 (Jan. 24, 2011), available at
http://assets.opencrs.com/rpts/R40520_20110124.pdf.
43
H.R. 1144, 112th Cong. (2011).
44
Id.
45
Id. § 101.
39

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their useful lifespan.46 In 1977, by Executive Order, President Carter transferred the functions
assigned to OMB to the General Services Administration (―GSA‖).47
GSA issued its initial set of FACA regulations in 1987.48 The regulations
comprehensively addressed the processes for establishing advisory committees, the
responsibilities of agencies for maintaining existing committees, and the steps required to
comply with the open meeting requirements of the Act.49 On July 19, 2001, GSA published a
final rule establishing updated regulations.50 Amongst other things, the revised regulations
clarified the exemption for subcommittees, contained additional guidance on FACA‘s
applicability to meetings conducted via electronic means, and elucidated the requirements for
ensuring balanced committee membership.51 The 2001 regulations currently remain in effect.
Though the GSA regulations provide significant clarification of the steps agencies must
undertake to comply with FACA, the federal courts have declined to accord Chevron deference52
to the regulations.53 This lack of deference arises as a result both of the significant delay
between FACA‘s enactment in 1972 and the promulgation of the first set of regulations in 198754
and of the fact that FACA is subject to interpretation by all agencies that utilize advisory
committees, eliminating the need to defer to any one agency‘s interpretation.55 Thus, though the
regulations provide significant clarification of the Act for agencies, a committee cannot be

46

Pub. L. No. 92-463, § 7, 86 Stat. 770, 772–73 (1972).
Exec. Order No. 12,024, 42 Fed. Reg. 61,445 (Dec. 1, 1977). The Executive Order also transferred the
President‘s duties for filing an annual report on the activities of advisory committees, 5 U.S.C. App. 2 § 6, which
had also previously been undertaken by OMB pursuant to Executive Order 11,769, 39 Fed. Reg. 7,125 (Feb. 21,
1974), to GSA. The annual reporting requirement, however, has since been terminated. Federal Reports
Elimination and Sunset Act of 1995, Pub. L. No. 1044-66, § 3003, 109 Stat. 707, 734–36 (1995).
48
Federal Advisory Committee Management, 52 Fed. Reg. 45,926 (December 2, 1987).
49
Id.
50
Federal Advisory Committee Management, 66 Fed Reg. 37,728 (July 19, 2001) (codified at 41 C.F.R. § 102-3).
51
Id. at 37,728–31.
52
Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984) (―We have long recognized that
considerable weight should be accorded to an executive department's construction of a statutory scheme it is
entrusted to administer . . . .‖).
53
See, e.g., Public Citizen, 491 U.S. at 463 n.12; Ass’n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 913
(D.C. Cir. 1993).
54
Public Citizen, 491 U.S. at 463 n.12.
55
Am. Physicians & Surgeons, 997 F.2d at 913.
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assured that its compliance with the regulations will necessarily shield it from a claim that it has
violated FACA.56
d.

Other Relevant Developments

In addition to FACA, a number of other statutes impact the activities of federal advisory
committees. For instance, as will be explored in greater detail in Section 3, the federal ethics
laws govern the activities of certain members of advisory committees,57 and portions of the
Freedom of Information Act58 and Government in the Sunshine Act59 are incorporated by
reference into FACA.60
The Executive Branch has also issued executive orders and other directives designed to
regulate advisory committees so as to achieve certain policy preferences of the sitting
Administration. For instance, shortly after he was sworn into office, President Clinton issued
Executive Order 12,838, which required agencies to terminate one-third of all advisory
committees not required by statute, submit a justification for existing committees to the Office of
Management and Budget, and refrain from creating any new committees unless ―compelling
considerations‖ necessitate it.61 The Office of Management and Budget thereafter issued a
guidance document that essentially capped the total number of advisory committees that all
agencies could host at a level at or below the reduced number of committees permitted by the
Executive Order.62
More recently, in line with his overall goals of promoting transparency and openness in
government, President Obama has banned the appointment of registered lobbyists to serve on
advisory committees.63 Interestingly, these Presidential initiatives echo the policies that initially

56

As a general matter, the regulations hew closely to the language of FACA itself, but, in a few cases, the
regulations considerably elaborate on the statutory language or even ostensibly contradict certain portions of the
Act. For instance, FACA provides that any group providing advice ―or any subcommittee or sub-group thereof‖ is
subject to the requirements of the Act, 5 U.S.C. App. 2 § 3(2), whereas the regulations provide that subcommittees
are exempt from FACA, 41 C.F.R. § 102-3.35. Though the regulations do not necessarily contradict the Act, since
the regulations acknowledge that the Act applies to subcommittees that report directly to the agency, id. § 1023.145, such facial discrepancies between the Act and the regulations can understandably create some level of
consternation on the part of agencies attempting to comply scrupulously with FACA.
57
18 U.S.C. § 202(a) (defining ―special government employee,‖ a classification that applies to many members of
advisory committees).
58
5 U.S.C. § 552.
59
Id. § 552b.
60
Id. App. 2 §§ 10(b), (d).
61
Exec. Order No. 12,838, 58 Fed. Reg. 8,207 (Feb. 10, 1993).
62
Office of Management & Budget, Circular A-135: Management of Federal Advisory Committees, 59 Fed. Reg.
53,856, 53,857 (Oct. 26, 1994).
63
Presidential Memorandum: Lobbyists on Agency Boards and Commissions, 75 Fed. Reg. 35,955 (June 18, 2010)
(―I hereby direct the heads of executive departments and agencies not to make any new appointments or
reappointments of federally registered lobbyists to advisory committees and other boards and commissions.‖).

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motivated the enactment of FACA, to wit, ensuring that committees do not improperly
proliferate and that they act objectively and transparently.
e.

Historical Usage of Advisory Committees

Following the issuance of Executive Order 12,838 in 1993, the total number of advisory
committees declined from 1,304 in 1993 to 970 in 1995.64 The committees eliminated as a result
of the Executive Order were primarily those authorized but not required by statute and those
formed at the behest of individual agencies (i.e., so-called ―discretionary committees‖), which
decreased by 256 between 1993 and 1995. Though the Executive Order did not apply to
committees required by statute, the number of statutory committees also decreased by 85
between 1993 and 1995.
From 1995 to 2009, the total number of committees remained relatively constant,
oscillating between 920 and 1000. In the last two years, the total number of committees has
increased, from 953 to 1069. The increase in committees in the last two years has been almost
entirely a result of increasing numbers of statutory committees: Congress has created 124 new
committees in that period, whereas the total number of discretionary committees has actually
decreased. Other than the substantial uptick in the number of statutory committees in the last
two years, however, the total number of committees has remained relatively constant since the
Executive Order was issued. The numbers of statutory and discretionary committees have both
fluctuated between 400 and 500 committees of each type. A year-by-year breakdown of
committees by type over the past 18 years appears in Appendix A of this report.
2.

Defining the Scope of FACA’s Coverage

Since its enactment, FACA has generated consternation on the part of federal agencies as
a consequence of its potential applicability to a wide range of interactions between the
government and private citizens. As written, the Act could be read so broadly as to apply to
basically any exchange between a federal government employee and two or more persons not
employed by the federal government. Per its terms, the Act applies to every ―advisory
committee,‖ with ―advisory committee‖ being defined as ―any committee, board, commission,
council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof‖ that is ―established or utilized‖ by statute, the President, or a federal agency ―in
the interest of obtaining advice and recommendations.‖65 Acknowledging the vagueness of the
statute, the Supreme Court has noted that the Act could be interpreted to ―extend FACA‘s
requirements to any group of two or more persons, or at least any formal organization, from
which the President or an Executive agency seeks advice.‖66 The Supreme Court ultimately
found such a broad reading untenable and limited the scope of the Act‘s coverage by narrowly
64

All statistics on the total number of advisory committees were obtained from the Federal Advisory Committee
Database maintained on the Federal Interagency Databases Online (―FIDO‖), available at
http://www.fido.gov/facadatabase/public.asp.
65
5 U.S.C. App. 2 §§ 3(2), 4(a).
66
Public Citizen, 491 U.S. at 452.

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defining the types of committees that are ―utilized‖ by agencies,67 but some uncertainty still
surrounds the precise scope of FACA‘s coverage.
Though FACA apparently does not extend so broadly as a literal reading of the statute
would suggest, much ink has been spilled, both in the case law and in scholarly research, to
define precisely when the statute applies. As a general matter, an interaction between the federal
government and two or more persons outside of the government must meet the following
qualifications to trigger FACA: (1) the entity that interacts with the government must qualify as a
―group‖; (2) the group must be ―established‖ or ―utilized‖ by the federal government; and (3) the
group must provide ―advice‖ or ―recommendations‖ to the government.68 Many of the
―exceptions‖ to FACA, such as those for subcommittee meetings or for committees convened by
private contractors, are more properly characterized as interactions that simply do not meet one
or more of these three sine qua non conditions for triggering FACA.69
This section analyzes the relevant case law and FACA‘s implementing regulations to
provide an overview of the scope of FACA‘s coverage. As the section will demonstrate, some
degree of uncertainty regarding the precise ambit of FACA exists. The section will focus solely
on stating positive law, eschewing any normative analysis. Section 5, by contrast, includes
specific recommendations for clarifying the determination of when the statute applies.
a.

“Group” Requirement

FACA defines ―advisory committee‖ to include ―any committee, board, commission,
council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof.‖70 Clearly, ―group‖ implies an assemblage of two or more persons, and FACA
therefore does not apply to meetings between agencies and individual providers of advice.
FACA also does not apply to a group that consists solely of officers or employees of the federal
government.71
In addition to these fairly mechanical aspects of the ―group‖ requirement, the case law
has also created an amorphous exception to FACA that arises when an agency seeks advice from
an assemblage of persons acting not as a formal group but as a collection of individuals. Shortly
after the enactment of FACA, the United States District Court for the District of Columbia was
called upon to determine whether FACA applied to meetings organized by a Public Liaison
Assistant to the President in which the assistant met with different groups of government and
67

Id. at 462 (―The phrase ‗or utilized‘ therefore 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 such as the National Academy of Sciences ‗for‘ public agencies as
well as ‗by‘ such agencies themselves.‖).
68
Steven P. Croley, Practical Guidance on the Applicability of the Federal Advisory Committee Act, 10 ADMIN. L.
REV. AM. U. 111, 134 (1996).
69
Nevertheless, for the sake of conciseness and consistency with colloquial usage, this report will generally refer to
such areas of non-coverage as ―exceptions.‖
70
5 U.S.C. App. 2 § 3(2).
71
Id. § 3(2)(i); Am. Physicians & Surgeons, 997 F.2d at 911.

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industry leaders on a biweekly basis.72 The court criticized the sweeping wording of the Act,
opining that it ―is not a model of draftsmanship,‖ and stated that it could be read so broadly as to
apply to ―ad hoc groups . . . as well as any other less formal conference of two or more nongovernment persons who advise the President.‖73 Finding that broad reading untenable, it
determined that FACA did not apply to the meetings at issue, since the meetings did not arise
from a formal Presidential request for recommendations and because ―[t]he committees were not
formally organized and there is little or no continuity.‖74 Thus, to meet the ―group‖ requirement,
a federal advisory committee must be more than a mere assemblage of two or more persons that
provides information to the government: the group must include some formal organization and
be charged with a specific task.
In Association of American Physicians & Surgeons, Inc. v. Clinton,75 the D.C. Circuit
elaborated at greater length on the ―group‖ requirement of FACA. After having concluded that a
Task Force convened to provide advice on healthcare policy was exempt from FACA because it
consisted entirely of federal employees (concluding that the First Lady, the only arguably nonfederal member of the Task Force, qualified as a federal employee),76 the court turned to the
question of whether working groups under the Task Force, which included non-federal
representatives, were subject to the requirements of the Act. Though the court ultimately
remanded the issue of FACA‘s applicability to the working groups, it discussed at length the
characteristics of a group subject to FACA:
It is not so much that a group is not a FACA advisory committee unless it gives
―consensus‖ advice. . . . The point, it seems to us, is that a group is a FACA
advisory committee when it is asked to render advice or recommendations, as a
group, and not as a collection of individuals. The group‘s activities are expected
to, and appear to, benefit from the interaction among the members both internally
and externally.77
Thus, though the group need not necessarily reach a consensus conclusion, the sine qua non of
the ―group‖ requirement is the existence of interaction amongst group members in developing
advice for the government.78
Though the interpretation of the ―group‖ requirement adopted by the courts seems
appropriate, given the procedural burden that would be created by requiring agencies to comply
with the strictures of FACA even when seeking individual advice from persons outside of the
government, the exception for seeking individual advice has proven somewhat difficult to apply
in practice. First, the boundary between ―group‖ and ―individual‖ advice is not terribly clear,
and agencies may have difficulty determining when a relatively informal assemblage wherein
72

Nader v. Baroody, 396 F. Supp. 1231 (D.D.C. 1975).
Id. at 1232.
74
Id. at 1234.
75
997 F.2d 898 (D.C. Cir. 1993).
76
Id. at 911.
77
Id. at 913.
78
Id.
73

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thoughts are solicited from participants more or less individually evolves into a more formal
―group‖ subject to FACA.79 Moreover, even if an agency scrupulously structures a meeting to
avoid extensive group interaction, such as by assembling a group of experts and asking that each
attendee provide advice individually and refrain from commenting on statements made by other
participants,80 it can be difficult to ensure that participants structure their statements purely as
individual responses and do not attempt to interact with fellow attendees or tailor their responses
in accordance with statements by other participants.81
b.

“Established” or “Utilized” Requirement

By its terms, FACA applies to all committees that are ―established‖ by statute or
―established or utilized‖ by the President or Congress for purposes of obtaining advice or
recommendations.82 The meaning of ―established‖ is relatively straightforward: any group
―formed by, at the prompting of, or solely for the federal government‖ is ―established‖ by the
government or purposes of FACA.83 The term ―utilized,‖ by contrast, poses much more
significant interpretive difficulties. Theoretically, any private group whose work the government
even remotely considers has been ―utilized‖ by the government for purposes of obtaining advice,
yet such a broad reading would undoubtedly sweep up conduct that Congress did not intend to
subject to the formal strictures of FACA. Thus, courts have struggled with defining the precise
contours of the term ―utilized‖ under the Act.
In Public Citizen v. United States,84 one of the few Supreme Court cases to analyze
FACA, the Court considered the meaning of the word ―utilized‖ under the Act. The case
concerned the President‘s ability to receive advice from the American Bar Association (―ABA‖)
with respect to judicial nominees.85 When the President selected (but had not yet announced) a
potential nominee for one of the federal courts of appeals, he would submit the name to an ABA
committee, which would consider the nominee‘s response to a questionnaire, review the
nominee‘s writings, and potentially interview the nominee to develop a recommendation

79

See Administrative Conference of the United States, Recommendation 80-3, Interpretation & Implementation of
the Federal Advisory Committee Act, 45 Fed. Reg. 46,771 (July 11, 1980) (characterizing FACA‘s applicability ―to
groups convened by agencies, on an ad hoc basis, without formal organization or structure or continuing existence,
to obtain views on particular matters of immediate concern to the agency‖ as one of ―[t]he most serious problems
regarding the coverage of FACA‖).
80
FACA‘s implementing regulations specifically acknowledge the ability of agencies to obtain advice from private
parties individually, even if they are gathered in a single forum, without triggering FACA. 41 C.F.R. § 102-3.40(e)
(―Any group that meets with a Federal official(s), including a public meeting, where advice is sought from the
attendees on an individual basis and not from the group as a whole‖ is ―not covered by the Act.‖).
81
See, e.g., Ala.-Tombigbee Rivers Coal. v. Dep’t of the Interior, 26 F.3d 1102, 1105 (11th Cir. 2004) (finding that
a committee violated FACA where it was initially structured to involve individual advice by members but was later
restructured such that members met and prepared a common report).
82
5 U.S.C. App. 2 § 3(2).
83
Aluminum Co. of Am. v. Nat’l Marine Fisheries Serv., 92 F.3d 902, 905 (D.C. Cir. 1996).
84
491 U.S. 440 (1989).
85
Id. at 444.

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regarding the nominee‘s qualifications for the federal judiciary.86 The President could then
consider the ABA‘s findings in determining whether or not to nominate the particular
candidate.87 The Washington Legal Foundation (―WLF‖), a non-profit legal organization,
unsuccessfully attempted to obtain the names of the nominees under consideration by the ABA
and the reports and minutes from the meetings considering those nominees.88 Following their
failure to obtain such materials, the WLF brought suit against the Department of Justice, arguing
that FACA applied to the meetings of the ABA committee and that the committee therefore must
make all documents it considered available for public inspection and copying.89
The case ultimately produced two opinions, a majority opinion by Justice Brennan and a
concurrence in the judgment by Justice Kennedy, and both opinions reflected obvious
discomfiture with the potential of FACA to limit the President‘s ability to obtain advice from
private parties. In his concurrence in the judgment, Justice Kennedy concluded that the statute
effected an unconstitutional interference with the President‘s ability to obtain advice on potential
judicial appointees in contravention of the Appointments Clause.90 In the majority opinion,
Justice Brennan avoided these concerns by examining the legislative history to conclude that
Congress intended a relatively narrow reading of the term ―utilized.‖91 Describing the word
―utilize‖ as a ―woolly verb‖ with ―contours left undefined by the statute itself,‖ the Court
concluded:
The phrase ―or utilized‖ therefore 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 quasipublic organizations such as the National Academy of Sciences ―for‖ public
agencies as well as ―by‖ such agencies themselves.92
Thus, since the ABA committee was formed entirely by private entities, it did not trigger
FACA.93
The result in Public Citizen clearly seems correct, given the constitutional issues that
would be raised by applying FACA to the President‘s attempts to obtain private sector advice on
judicial nominees.94 Unfortunately, the case fails to elucidate whether the Court intended the
narrow reading of ―utilized‖ it adopted to apply to all advisory committees, only to Presidential
advisory committees, or only to those committees wherein significant constitutional concerns
86

Id. at 444–45.
Id. at 445.
88
Id. at 447.
89
Id.
90
Id. at 482 (Kennedy, J., concurring in the judgment).
91
Id. at 463–64 (―A literalistic reading . . . would catch far more groups and consulting arrangements than Congress
could conceivably have intended.‖).
92
Id. at 452, 462.
93
Id. at 463.
94
Id. at 466 (―That construing FACA to apply to the Justice Department‘s consultations with the ABA committee
would present formidable constitutional difficulties is undeniable.‖).
87

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exist. Thus, Public Citizen did not necessarily establish a clear line of demarcation between
groups that are ―established or utilized‖ by the government and those that are not, and, in the
years following the decision, lower courts have continued to struggle with defining the precise
contours of the requirement.95
As a general matter, post-Public Citizen cases have focused on the degree of control an
agency wields over an advisory committee in determining whether or not the committee is
―utilized‖ within the meaning of FACA. In Washington Legal Foundation v. United States
Sentencing Commission,96 the D.C. Circuit applied a functional test for determining whether the
Department of Justice (―DOJ‖) ―utilized‖ a working group established by the United States
Sentencing Commission so as to implicate FACA.97 Specifically, the court asserted that the
agency must exert ―something along the lines of actual management or control of the advisory
committee.‖98 In that case, even though DOJ supplied two representatives to the working group
and ―played an important role in the Group‘s decisionmaking‖ and would likely ―exercise
significant influence on [the] deliberations and on the ensuing recommendations,‖ the agency did
not control the proceedings and therefore did not ―utilize‖ the committee so as to implicate
FACA.99
The degree of control that an agency must exert to ―utilize‖ a committee is perhaps even
more extensive when the entity is formed by a private organization.100 In Food Chemical News
v. Young,101 the D.C. Circuit considered whether FACA applied to a group of experts convened
by a private scientific organization pursuant to a contract with the Food and Drug Administration
(―FDA‖).102 Though the court did not foreclose the possibility that a privately formed entity
could be subject to FACA, it suggested that the circumstances under which such an entity could
95

Of course, if a committee is directly formed by a quasi-public entity, it fairly easily qualifies as being ―utilized‖
by the government. For instance, Animal Legal Defense Fund, Inc. v. Shalala, 104 F.3d 424 (1997) considered
whether FACA applied to the activities of a committee of the National Academy of Sciences convened to prepare a
guide on the care and use of laboratory animals. Id. at 426. Applying Public Citizen directly, the D.C. Circuit held
that committees of the National Academy of Sciences, a quasi-public entity, ―were precisely the sort of advisory
committees that would be covered by the Act.‖ Id. at 427. Nevertheless, the universe of committees directly or
even indirectly established by quasi-public entities is likely to be relatively small, and the more salient question is
whether an entity technically established by a private group but subject to extensive governmental influence is
―utilized‖ by the government within the meaning of FACA.
96
17 F.3d 1446 (D.C. Cir. 1994).
97
Id. at 1450. Though the United States Sentencing Commission ―established‖ the working group, the court found
that fact alone insufficient to trigger FACA because the Sentencing Commission was formed by the judicial branch
and therefore did not qualify as an ―agency‖ within the meaning of FACA. Id. at 1449–50. Thus, the court
considered whether or not the Department of Justice, which undoubtedly qualified as an ―agency,‖ utilized the
working group‘s output. Id. at 1450.
98
Id.
99
Id. at 1450–51.
100
See Public Citizen, 491 U.S. at 462 (suggesting that ―utilized‖ committees might include only those formed by
public or quasi-public entities).
101
900 F.2d 328 (D.C. Cir. 1990).
102
Id. at 329.

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implicate the Act were extremely rare, requiring that the group be ―so closely tied to an agency
as to be amenable to strict management by agency officials.‖103 In Byrd v. Environmental
Protection Agency,104 the D.C. Circuit reasserted the standard articulated in Food Chemical
News:
[T]he utilized test is a stringent standard, denoting something along the lines of
actual management or control of the advisory committee. Indeed, this Court has
held that participation by an agency or even an agency‘s ―significant influence‖
over a committee‘s deliberations does not qualify as management and control
such that the committee is utilized by the agency under FACA.105
The court so held even though the agency provided the contractor convening the committee at
issue in Byrd with a ―task order‖ defining the objective, method, and scope of studies to be
performed; gave the contractor a list of recommended committee members; and reserved the
power to approve the contractor‘s selection of committee members.106
Though the Byrd court also did not foreclose the possibility that an agency could exert
sufficient control over a privately organized committee to meet the ―utilized‖ requirement of the
Act, explicitly stating that the result may have been different had the agency vetoed the
contractor‘s selection of committee members,107 many have interpreted this line of cases to
create a per se exemption for all committees convened at the behest of a private entity, such as a
government contractor, rather than a public or quasi-public entity.108 In any event, regardless of
whether the cases create a per se exception, an agency can relatively easily avoid the strictures of
FACA by outsourcing its committee work to private contractors and ensuring that the contractors
retain at least a limited degree of discretion in operating the committees so created. A bill that
would eliminate this so-called ―contractor exception‖ is currently pending in Congress.109
In short, the ―utilized‖ requirement under FACA has been interpreted relatively narrowly
by the federal courts. At the very least, an agency must exert a high degree of control over an
advisory committee to ―utilize‖ it within the meaning of FACA, and committees formed by
private entities, such as government contractors, may be per se exempt from coverage under the
statute.

103

Id. at 333 (internal citations omitted).
174 F.3d 239 (D.C. Cir. 1999).
105
Id. at 246 (internal citations omitted).
106
Id. at 246–47.
107
Id. at 247.
108
See Hearing on the Federal Advisory Committee Act (FACA) of 2008, 110th Cong. 56–57 (2008) (testimony of
Professor Sidney A. Shapiro) (describing the ―contractor loophole‖ to FACA that has arisen from Food Chemical
News and Byrd); Bipartisan Policy Center, Improving the Use of Science in Regulatory Policy 25 (Aug. 5, 2009)
(―Federal agencies should not be able to circumvent [FACA] by contracting out the appointment or operation of
advisory committees.‖).
109
H.R. 1144, 112th Cong. § 102(c) (2011)
104

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“Advice or Recommendations” Requirement

In its definition section, FACA provides that ―advisory committee‖ includes any group
―established or utilized‖ by the government ―in the interest of obtaining advice or
recommendations.‖110 This requirement contains two components: (a) the group must provide
―advice‖ or ―recommendations‖ and (b) the advice or recommendations must be intended for the
use of the federal government. The second component has been subject to less scrutiny than the
first, though it can create some uncertainty for committees. In Sofamor Danek Group, Inc. v.
Gaus,111 the D.C. Circuit determined that FACA did not apply to a committee‘s work where its
work product was intended primarily for the benefit of private parties and was only incidentally
used by the government after the fact.112 Of course, when a committee‘s work product is
intended for multiple end users, it can be difficult to ascertain whether an agency‘s intended
usage of the product is sufficient to trigger FACA.113
The ―advice or recommendations‖ requirement is considerably more nebulous in its
application, and it has been read to create a number of exceptions to the statute‘s coverage.
Essentially, to meet the requirement, the group of interest must be ―primarily advisory in
nature.‖114 The D.C. Circuit has defined ―advisory‖ to mean that ―the advice called for is . . .
directed to governmental policy.‖115 Thus, a committee that is convened solely to provide
factual or other non-policy-oriented information, even if it is established by a federal agency or
the President and deliberates as a group, is not subject to FACA.116 The requirement that the
advice sought must concern matters of policy is the source of a number of exceptions contained
in FACA‘s implementing regulations. For instance, the Act does not apply to ―[g]roups
assembled to exchange facts or information,‖117 because such committees are merely providing
background information and therefore do not address matters of policy. The regulations
similarly exempt ―[o]perational committees,‖ i.e., those performing ―functions . . . specifically
authorized by statute or Presidential directive,‖118 because such committees have no discretion in
choosing amongst and advising on potential courses of action. ―Preparatory work‖ and
―[a]dministrative work‖ undertaken by a committee do not fall within the purview of the Act
because they are not specifically directed towards providing policy advice.119
110

5 U.S.C. App. 2 § 3(2) (emphasis added).
61 F.3d 929 (D.C. Cir. 1995).
112
Id. at 914.
113
See, e.g., Cal. Forestry Ass’n v. United States Forest Serv., 102 F.3d 609, 612–13 (D.C. Cir. 1996) (concluding
that, even though Congress made use of a committee‘s advice, the work product was at least partly intended for use
by a federal agency, the Forest Service, and that FACA therefore applied, distinguishing Sofamor Danek on the
grounds that, in that case, a statute specifically stated that private parties were the intended beneficiaries of the
committee‘s advice).
114
Judicial Watch, Inc. v. Clinton, 76 F.3d 1232, 1233 (D.C. Cir. 1996).
115
Id.
116
Id. at 1234 (―The term ‗policy‘ implies choice; advice on an identified government policy is necessarily advice
which favors one of alternative positions or courses of action.‖).
117
41 C.F.R. § 102-3.40(f).
118
Id. § 102-3.40(k).
119
Id. § 102-3.160.
111

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Similar logic leads to two of the more controversial exceptions under FACA: those for
subcommittees and for groups whose private participants are non-voting members. Though the
statute explicitly states that the term ―advisory committee‖ includes any formal group of persons
―or any subcommittee or sub-group thereof,‖120 the implementing regulations provide that
subcommittees are exempt insofar as they report to a parent committee.121 As explained in the
Supplementary Information to the rule enacting the FACA regulations, ―[m]ost
subcommittees . . . report only to a parent advisory committee and it is the parent committee that
is normally responsible for providing advice or recommendations to the Government. In this
conventional scenario, the subcommittee is not subject to the Act because it is not providing
advice to the Government.‖122
By similar reasoning, the D.C. Circuit has held that FACA is not triggered if federal
officials meet with private parties in a setting where the private parties do not actually vote as
members of a full committee, even if the private parties participate in discussions and provide
useful information to the federal officials.123 The court explained:
The outsider might make an important presentation, he might be persuasive, the
information he provides might affect the committee‘s judgment. But having
neither a vote nor a veto over the advice the committee renders to the President,
he is no more a member of the committee than the aides who accompany
Congressmen or cabinet officers to committee meetings.124
Thus, so long as private parties do not have a final vote on the advice provided to the
government, even if they provide input critical to the development of that advice, FACA is not
implicated.
Though the subcommittee and non-voting member exceptions seem to follow naturally
from the ―advice or recommendations‖ requirement of the statute, they have proven enormously
controversial.125 As a matter of logic, one can easily see how the exceptions could permit
agencies to circumvent the statute. For instance, an agency could structure its advisory
committees such that all of the important work takes place at the subcommittee level, with the
parent committee merely reviewing its subcommittees‘ work and issuing final decisions.
Though a parent committee cannot rubber stamp a subcommittee‘s work,126 the statute and
implementing regulations are less than clear on how much authority a committee can delegate to
120

5 U.S.C. App. 2 § 3(2).
41 C.F.R. § 102-3.35(a).
122
Federal Advisory Committee Management, 66 Fed. Reg. 37,728, 37,729 (July 19, 2001) (emphasis added).
123
In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005).
124
Id. (emphasis added).
125
See, e.g., Hearing on the Federal Advisory Committee Act (FACA) of 2008, 110th Cong. 56–59 (2008)
(testimony of Professor Sidney A. Shapiro) (criticizing the ―Contractor‖ and ―Nonvoting Participant Loophole[s]‖
and urging Congress to close the same).
126
Charles Howton et al., FACA for Facilitators 30, available at
http://www.fs.fed.us/emc/nepa/ecr2008/sessions/materials/25/FACA%20for%20Facilitatators%20Presentation.pdf.
121

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a subcommittee without running afoul of FACA. Similarly, under the ―non-voting participant‖
exception, an agency could structure its committees to extend voting rights only to federal
employees but to include private parties who will participate in all discussions and influence the
ultimate decision made by the committee.
In light of the controversy surrounding the ―subcommittee‖ and ―non-voting participant‖
exceptions, Congress is currently considering legislation that would eliminate those two
exceptions.127 Nevertheless, regardless of the ultimate fate of those specific exceptions, the
―advice or recommendations‖ requirement is likely to remain an important lever for determining
the applicability of FACA, ensuring that the Act only applies when the government is formally
seeking advice from private entities.
d.

Statutory Exemptions

In addition to the FACA exceptions that arise from federal courts‘ and agencies‘
interpretation of the statute‘s various requirements, the Act itself contains a number of specific
exceptions for certain entities. The original Act exempted committees established by the Central
Intelligence Agency and the Federal Reserve System.128 The Unfunded Mandates Reform Act of
1995 provided that FACA does not apply to meetings between federal officials and
representatives from state, local, or tribal governments for purposes of exchanging information
or advice about federal programs designed to share governmental responsibilities.129 Pursuant to
the Federal Advisory Committee Act Amendments of 1997, FACA does not apply to committees
created by the National Academy of Sciences or the National Academy of Public
Administration,130 though various other procedural requirements apply to committees created by
those two agencies.131
As a general matter, the statutory exceptions to FACA are much more straightforward
than the exceptions that arise from interpretation of the statutory language: if one of the
exempted entities forms an advisory committee, the Act does not apply to that committee‘s
activities. Of course, some difficulties can arise, such as determining how directly an exempted
entity must control a committee‘s work for it to qualify for the FACA exemption,132 but the
statutory exceptions tend to be relatively sui generis and are not available to the majority of
advisory committees.

127

H.R. 1144, 112th Cong. § 102 (2011).
Federal Advisory Committee Act, Pub. L. No. 92-463, § 4(b), 86 Stat. 770, 771 (1972).
129
Pub. L. No. 104-4, § 204(b), 109 Stat. 48, 66 (1995).
130
Pub. L. No. 105-153, 111 Stat. 2689 (1997).
131
5 U.S.C. App. 2 §§ 3(2)(ii), 15.
132
See, e.g., Ctr. for Arms Control & Non-Proliferation v. Pray, 531 F.3d 836, 841 (D.C. Cir. 2008) (concluding
that the Central Intelligence Agency ―utilized‖ an advisory committee, thereby rendering it exempt from the purview
of FACA).
128

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3.

September 12, 2011

FACA’s Procedural Requirements

FACA imposes a panoply of procedural requirements on federal advisory committees
designed to ensure that committees do not outlive their useful lifespan and that the committees‘
activities are transparent and not excessively beholden to special interests. This section
examines the requirements chronologically, beginning with the steps a committee must take to
convene a new advisory committee, continuing with the various procedural requirements that
apply to a committee‘s work, and concluding with the process for eliminating a committee that
has completed its mission.
a.

Authority for Committee Establishment

Advisory committees can be established by Congress, the President, or by individual
agencies. Committees are classed as either ―discretionary‖ or ―non-discretionary.‖133 ―Nondiscretionary‖ advisory committees can arise in either of two ways: (a) Congress establishes an
advisory committee or directs the President to do so or (b) the President establishes an advisory
committee by executive order or some other directive.134 ―Discretionary‖ advisory committees
also may be established in either of two ways: (a) Congress specifically authorizes an advisory
committee, and the President or an agency establishes the committee so authorized or (b) an
agency establishes a committee of its own initiative.135
b.

Chartering and Other Committee Formation Requirements

Under FACA, ―[n]o advisory committee shall meet or take any action until an advisory
committee charter has been filed with (1) the Administrator [of GSA], in the case of Presidential
advisory committees, or (2) with the head of the agency to whom any advisory committee reports
and with the standing committee of the Senate and House of Representatives having legislative
jurisdiction over such agency.‖136 The implementing regulations additionally require that the
charter be filed with the Library of Congress and GSA‘s Committee Management Secretariat. 137
The charter must contain certain information designed to define the scope of the
committee‘s mission and ensure that the agency allocates its resources efficiently in establishing
the committee. Specifically, FACA requires that the charter state, inter alia, the ―objectives and
scope‖ of the committee‘s work, the amount of time required for the committee to complete its
mission, an estimated operating cost for the committee, and the estimated number and frequency
of committee meetings.138 As a default matter, advisory committees expire two years after

133

41 C.F.R. § 102-3.50.
5 U.S.C. App. 2 § 3(2); 41 C.F.R. §§ 102-3.50(a)–(b).
135
5 U.S.C. App. 2 § 3(2); 41 C.F.R. §§ 102-3.50(c)–(d).
136
5 U.S.C. App. 2 § 9(c).
137
41 C.F.R. §§ 102-3.70(a)(3)–(4).
138
5 U.S.C. App. 2 § 9(c); 41 C.F.R. § 102-3.75.
134

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initiation,139 and the agency must renew the charter of committees whose duration exceeds that
two-year period, as explained in more detail in Section A.3.j.
In chartering and re-chartering their committees, agencies are required to consult with
GSA.140 During that consultation, the agency must explain its need for the proposed committee,
show that the committee‘s work cannot be performed by other existing committees or groups
within the agency, and describe the agency‘s plan for ensuring that the committee‘s membership
is fairly balanced.141 GSA informs agencies of any deficiencies in their charter and provides
advice on committee formation but does not formally approve proposed committee charters.
c.

Committee Membership Balance

FACA provides that standing committees of the House of Representatives and Senate
considering legislation creating an advisory committee must ensure that ―the membership of the
advisory committee [is] fairly balanced in terms of the points of view represented and the
functions to be performed by the advisory committee.‖142 Though the statutory sub-section
setting forth the balance requirement applies only to legislation establishing advisory
committees, the statute later provides that the balance requirement ―shall be followed by the
President, agency heads, or other Federal officials in creating an advisory committee.‖143
The statute contains no further guidance on the precise dimensions on which agencies
must ensure that their advisory committees are ―balanced.‖ The implementing regulations
provide some additional clarification, stating that, in connection with chartering a new
committee, agencies should submit a plan to GSA for attaining balanced membership, which
must ―ensure that, in the selection of members for the advisory committee, the agency will
consider a cross-section of those directly affected, interested, and qualified, as appropriate to the
nature and functions of the advisory committee.‖144 The regulations also enumerate a series of
factors that an agency might consider in determining how to balance its advisory committees,
including: (a) the mission of the advisory committee; (b) the geographic, ethnic, social,
economic, or scientific impact of the committee‘s recommendations; (c) the need for specific
types of perspectives, ―such as those of consumers, technical experts, the public at large,
academia, business, or other sectors‖; (d) the value of considering divergent viewpoints; and (e)
the relevance of the perspective of State, local, and tribal governments.145
Though the regulations provide much more detail than the Act itself, agencies still enjoy
a great deal of discretion in determining how to ensure balance on their advisory committees.
Though this likely affords agencies a necessary degree of flexibility, it also potentially creates
some uncertainty in determining whether or not the balance requirements have been satisfied.
139

41 C.F.R. § 102-3.55(a).
Id. § 102-3.60.
141
Id. § 102-3.60(b).
142
5 U.S.C. App. 2 § 5(b)(2).
143
Id. § 5(c).
144
41 C.F.R. § 102-3.60(b)(3).
145
Id. § 102-3, sub-pt. B, App. A.
140

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For instance, must a scientific advisory committee invite ―skeptics‖ of a generally accepted
scientific theory to serve as members in the name of achieving ―balance,‖ even if the ―skeptics‖
represent the position of an extreme minority in the scientific community? The Government
Accountability Office has recommended that agencies not only seek committee members from
diverse disciplines but also strive to achieve balance in the points of view represented amongst
committee members,146 though it does not indicate how well-accepted a viewpoint must be
before it can justifiably claim the right to representation at advisory committee discussions.
In any event, in light of the open-ended nature of FACA‘s balance requirements, courts
are highly deferential in determining whether or not a given committee‘s membership is properly
balanced. Indeed, the Ninth Circuit has held that FACA itself does not provide sufficient
guidance on the balance requirements for a claim that an agency violated those requirements to
be justiciable.147 Other courts have held that claims that an agency violated FACA‘s balance
requirements are justiciable, but the agency‘s actions are reviewed with a high degree of
deference.148 Thus, courts are unlikely to enjoin an agency from relying on the work product of
an advisory committee as a consequence of imbalanced committee membership, but agencies
that wish to comply scrupulously with FACA may nonetheless struggle with determining
whether they have sufficiently ensured that their committees are appropriately balanced.
d.

Ensuring Unbiased Advice

Both FACA and its implementing regulations contain few provisions related to ensuring
that committee members provide objective, unbiased advice. FACA broadly states that agencies
should ―assure that the advice and recommendations of the advisory committee will not be
inappropriately influenced by the appointing authority or any special interest.‖149 The
implementing regulations provide little additional clarification, stating simply that the agency
head must ensure that the committee members comply with relevant conflict of interest statutes

146

U.S. GOV‘T ACCOUNTABILITY OFFICE, GAO-04-328, ADDITIONAL GUIDANCE COULD HELP AGENCIES BETTER
ENSURE INDEPENDENCE AND BALANCE 39–40 (2004) (―Additional information about the candidates‘ viewpoints and
potential biases would better ensure that the committees are, and are perceived as being, fairly balanced in terms of
points of view—and that no one interest or viewpoint dominates.‖) (hereafter ―GAO 2004 Report‖); see also U.S.
GOV‘T ACCOUNTABILITY OFFICE, GAO-08-611T, ISSUES RELATED TO THE INDEPENDENCE & BALANCE OF
ADVISORY COMMITTEES 14 (2008) (reiterating the Government Accountability Office‘s call for agencies to consider
the points of view of potential committee members in achieving overall balance) (hereafter ―GAO 2008 Report‖).
147
Ctr. for Policy Analysis on Trade & Health v. Office of the United States Trade Representative, 540 F.3d 940,
945–46 (9th Cir. 2008) (holding that FACA and a separate statute appertaining to a committee‘s work did not
provide sufficient detail on the dimensions on which balance must be achieved so as to support a justiciable claim,
though acknowledging that a separate statute could provide sufficient supplementary detail in another case).
148
See, e.g., Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1232–33 (10th Cir. 2004) (concluding that FACA‘s
balance requirements are justiciable); Cargill, Inc. v. United States, 173 F.3d 323, 334 (5th Cir. 1999) (―[W]e
conclude that the functional balance and adequate staffing requirements, while subject to a deferential standard of
review, are justiciable.‖);
149
5 U.S.C. App. 2 §§ 5(b)(3), (c).

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and ethics regulations, including those promulgated by the Office of Government Ethics
(―OGE‖).150
Notwithstanding the lack of detail in FACA and its implementing regulations, OGE has
developed extensive guidance on the ethics rules that should apply to advisory committee
members. As a general matter, the set of ethics standards (or lack thereof) that applies to
committee members depends critically on the initial designation of each member as either a
Special Government Employee (―SGE‖) or as a representative. Congress specifically created the
SGE category by statute151 to implement a hybrid class of ethics standards for individuals who
provide significant services to the government and therefore should be subject to certain ethical
obligations but who should not be subject to the full panoply of standards applicable to full
government employees.152 Unless if a statute specifically provides that a committee member
should serve as an SGE, individual agencies enjoy the discretion of whether to appoint
committee members as SGEs or representatives. As a general matter, SGEs are selected as a
consequence of their individual expertise, whereas representatives, as the name implies, are
selected to represent a particular group.153 In making this determination, the following factors
support appointment of a committee member as a representative: lack of compensation,154
appointment as the result of a recommendation by an outside group, and ability to speak on
behalf of an outside organization.155
SGEs are essentially subject to the same ethics standards that apply to full-time
government employees, though the standards often apply somewhat less stringently to SGEs.156
Perhaps most significantly, SGEs are subject to conflict of interest standards that prohibit them
from participating in any particular matter that has a direct effect on their own financial interests
150

41 C.F.R. § 102-3.105(h).
18 U.S.C. § 202(a) (―[T]he term ‗special Government employee‘ shall mean an officer or employee of the
executive or legislative branch of the United States Government, of any independent agency of the United States or
of the District of Columbia, who is retained, designated, appointed, or employed to perform, with or without
compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five
consecutive days, temporary duties either on a full-time or intermittent basis . . . .‖).
152
U.S. Office of Government Ethics, Conflict of Interest and the Special Government Employee: A Summary of
Ethical Requirements Applicable to SGEs 1, available at http://ethics.od.nih.gov/topics/OGE-SGE.pdf (hereafter
―SGE Standards Summary‖).
153
U.S. Office of Government Ethics, Memorandum from J. Jackson Walter, Director of the Office of Government
Ethics, to Heads of Departments & Agencies of the Executive Branch regarding Members of Federal Advisory
Committees and the Conflict-of-Interest Statutes 3–4 (July 9, 1982), available at
http://www.usoge.gov/ethics_guidance/opinons/advop_files/1982/82x22.pdf (hereafter ―Walter Memorandum‖).
154
Though a member‘s receipt of compensation is virtually dispositive of his or her qualifying as an SGE, the lack
of compensation is merely one factor to consider in determining whether or not he or she is appropriately classified
as a representative. U.S. Office of Government Ethics, Memorandum from Marilyn L. Glynn, General Counsel, to
Designated Agency Ethics Officials regarding Federal Advisory Committee Appointments 5–6 (Aug. 18, 2005),
available at http://www.usoge.gov/ethics_guidance/opinons/advop_files/2005/05x4.pdf (hereafter ―Glynn
Memorandum‖).
155
Walter Memorandum, supra note 153, at 4–5.
156
SGE Standards Summary, supra note 152, at 5–14.
151

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or those of certain closely related persons.157 A conflicted SGE may receive a waiver, however,
if the official responsible for his or her appointment certifies that the conflict is insufficient to
bias the proposed committee member‘s advice or that the need for the potential committee
member‘s services outweighs the risk posed by the conflict.158 Representatives, by contrast, are
not formally subject to any ethics standards, though some agencies choose to impose certain
ethical restrictions on their representative committee members.159
As a matter of logic, appointing certain committee members as representatives exempt
from conflict of interest standards makes sense, given that representatives will speak on behalf of
a particular group and therefore, essentially by definition, have an inherent conflict of interest.
The agency will presumably discount any bias inherent in representative members‘ advice while
still considering the advice to the extent the partisan perspective of a particular group affected by
an agency‘s decisionmaking is relevant. The process is susceptible to abuse, however, insofar as
the agency enjoys essentially complete discretion in determining whether to appoint committee
members as SGEs or representatives. In this light, the Government Accountability Office has
found that agencies sometimes appoint an excessively large number of committee members as
representatives.160 Specifically, agencies sometimes determine that potential committee
members ―represent‖ certain fields of study (e.g., toxicology, epidemiology), even though such
persons should more properly be classified as SGEs insofar as they are chosen for specific
expertise they posses.161
e.

Meeting Notice Requirements

Pursuant to FACA, ―timely notice of each [committee] meeting shall be published in the
Federal Register.‖162 The implementing regulations elaborate upon the definition of ―timely‖
notice and provide details on what information such notice must include. Specifically, the notice
must appear in the Federal Register at least 15 days in advance of the proposed advisory
committee meeting.163 Though a committee may give less than 15 days advanced notice in
―exceptional circumstances,‖ it must include its reasons for doing so in the Federal Register

157

18 U.S.C. § 208; SGE Standards Summary, supra note 152, at 11.
18 U.S.C. §§ 208(b)(1), (3); SGE Standards Summary, supra note 152, at 11–12.
159
See, e.g., Glynn Memorandum, supra note 154, at 4 n.10 (noting that ―some agencies do address potential
conflicts of interest of their representative members to some extent‖ and chronicling certain efforts of the
Department of the Interior in this respect). The Administrative Conference of the United States has previously
recommended that agencies impose certain ethics standards on all members of their advisory committees, regardless
of the formal status of each committee member. Administrative Conference of the United States, Recommendation
1989-3, Conflict-of-Interest Requirements for Federal Advisory Committees, 54 Fed. Reg. 28,964 (July 10, 1989).
160
GAO 2004 Report, supra note 146, at 5; see also GAO 2008 Report, supra note 146, at 7.
161
GAO 2004 Report, supra note 146, at 23.
162
5 U.S.C. App. 2 § 10(a)(2).
163
41 C.F.R. § 102-3.150(a). For agencies scheduling committee meetings, the 15-day advance notice requirement
means that the agency must submit its proposed notice to the Federal Register at least 18 days in advance of the
scheduled meeting, since the Federal Register must receive the draft notice 3 business days prior to its publication.
National Archives and Records Administration, Federal Register Document Drafting Handbook 8-5 (1998).
158

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notice announcing the meeting.164 At a minimum, the Federal Register notice must include (a)
the name of the advisory committee that proposes to meet; (b) the time, date, place, and purpose
of the meeting; (c) a summary of the meeting agenda; (d) a statement of whether the meeting is
open, closed, or partially closed (including the justification for any complete or partial closure of
the meeting); and (e) the name and telephone number of the Designated Federal Officer (―DFO‖)
or another agency official whom members of the public may contact regarding meeting
information.165
f.

Public Participation Requirements

FACA contains two provisions directly applicable to public participation at scheduled
committee meetings: (a) it broadly states that ―[e]ach advisory committee meeting shall be open
to the public‖166 and (b) it provides that ―[i]nterested persons shall be permitted to attend, appear
before, or file statements with any advisory committee.‖167 The implementing regulations
elaborate considerably on each requirement, explaining the steps committees must take to ensure
that their meetings are sufficiently ―open‖ and describing precisely how members of the public
may participate in committee meetings.
With respect to the openness of meetings, the agency head must ensure that committee
meetings are held ―at a reasonable time‖ and ―in a manner or place reasonably accessible to the
public,‖ including providing access for persons with disabilities.168 In addition, the regulations
provide that the meeting room must have sufficient capacity to accommodate the committee
members as well as ―a reasonable number of interested members of the public.‖169 With respect
to public participation, under all circumstances, any interested member of the public is
―permitted to file a written statement with the advisory committee.‖170 Further, if the ―agency‘s
guidelines so permit,‖ members of the public may also ―speak or otherwise address the advisory
committee.‖171 If an agency fears that public attendees at the meetings of its advisory
committees will become disruptive or otherwise interfere with the efficient conduct of meetings,
it can implement guidelines for public participation or simply limit public input to the filing of
written statements.
Though the open meeting and public participation requirements are fairly
straightforward, the rise of ―new media‖ has complicated the picture somewhat. The
implementing regulations succinctly state that ―[a]ny advisory committee meeting conducted in
whole or part by a teleconference, videoconference, the Internet, or other electronic medium
164

41 C.F.R. § 102-3.150(b).
Id. § 102-3.150(a).
166
5 U.S.C. App. 2 § 10(a)(1).
167
Id. § 10(a)(3).
168
41 C.F.R. § 102.3.140(a).
169
Id. § 102-3.140(b).
170
Id. § 102-3.140(c). Unlike the process for comments submitted during informal rulemakings, which the agency
must consider to the extent they present ―relevant matter,‖ 5 U.S.C. § 553(c), FACA does not contain any formal
requirement that the agency consider the comments or address the relevant matter, if any, presented therein.
171
41 C.F.R. § 102-3.140(d).
165

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meets‖ the open meeting and public participation requirements.172 Thus, committee members
could, for instance, meet remotely via teleconference so long as they provide a dial-in number
for members of the public to listen to the call and, if the agency‘s guidelines permit, comment
during the discussion. The Internet, however, opens a number of potential avenues for ―virtual
meetings‖ that much less closely resemble traditional in-person meetings. For instance,
committee members might discuss a topic via a series of ―reply all‖ email messages. Such a
―virtual meeting‖ likely violates the ―open meeting‖ requirements, however, since the public
would not have real-time access to the emails as they are being circulated (i.e., the public could
not ―attend‖ the meeting).173 Consequently, though the regulations clearly contemplate that
committees can use ―new media‖ to conduct meetings, any proposal for exploiting such
technological advances must carefully ensure that it satisfies the open meeting and public
participation requirements of FACA.
g.

Closing Committee Meetings

The open meeting and public participation requirements of FACA do not apply to any
portion of a committee meeting that the President or agency head decides should be closed.174
To close a committee meeting, the President or agency head must determine that one of the
exceptions to the open meeting requirements of the Government in the Sunshine Act is met.175
Those exceptions protect, inter alia, information that must be kept secret for reasons of national
security, trade secrets or other confidential financial information, certain personal information,
and certain information related to law enforcement.176
Though meetings may be closed under appropriate circumstances, the agency must
follow a specific procedure in doing so. The committee‘s Designated Federal Officer must
submit his or her justification for closing the meeting, citing the specific section(s) of the
Sunshine Act that apply, to the agency head, who must be given sufficient time (usually 30
calendar days) to consider the request.177 The agency‘s general counsel also must review the
request.178 If the agency head determines that the meeting should be closed, he or she must issue
a written determination to that effect and make a copy thereof available to the public upon

172

Id. § 102-3.140(e).
Any meeting in which a covered group prepares advice or recommendations for consideration by the President or
federal agencies is subject to FACA. 5 U.S.C. App. 2 § 3(2). The implementing regulations provide that meetings
that take place in electronic fora are subject to FACA‘s requirements. 41 C.F.R. § 102-3.140(e). Thus, so long as
the emails exchanged are substantive and pertain to advice or recommendations that the committee might provide
(as opposed to emails relating to purely procedural matters, such as scheduling meetings, which likely are exempt
from FACA under the ―administrative work‖ exception), the email exchange likely constitutes a ―virtual meeting‖
subject to the Act.
174
5 U.S.C. App. 2 § 10(d).
175
See 5 U.S.C. § 552b(c) (Sunshine Act exceptions permitting closed meetings).
176
Id.
177
41 C.F.R. § 102-3.155(a).
178
Id. § 102-3.155(b).
173

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request.179 Finally, the committee must still issue an annual report containing a ―summary of its
activities‖ related to meetings that it has closed.180
Notwithstanding the statute‘s presumption in favor of open meetings and the fairly
extensive procedural requirements for closing committee meetings, empirical studies have
indicated that the majority of committee meetings are either partially or fully closed.181 Thus,
agencies apparently make fairly liberal use of the mechanism for closing committee meetings,
though the frequency with which committee meetings are closed varies from agency to
agency.182
h.

Committee Document Requirements

FACA and associated statutes impose a number of requirements related to the production,
retention, and public availability of committee documents. With respect to documents prepared
over the course of the committee‘s work, FACA requires that ―the records, transcripts, minutes,
appendixes, working papers, drafts, studies, agenda, or other documents that were made
available to or prepared for or by each advisory committee shall be available for public
inspection and copying,‖ except if the documents qualify for one of the exceptions under the
Freedom of Information Act (―FOIA‖).183 Of the various FOIA exceptions, the exemption for
―pre-decisional materials,‖184 popularly known as ―exemption 5,‖ likely would cover the largest
number of committee documents. The Office of Legal Counsel, however, has interpreted that
exception extremely narrowly as it applies to documents of federal advisory committees, holding
that ―exemption 5 is not generally applicable to materials prepared by or for an advisory
committee, but that it does extend to protect privileged documents delivered from the agency to
an advisory committee.‖185 The Office of Legal Counsel reached this conclusion because ―by its
179

5 U.S.C. App. 2 § 10(d); 41 C.F.R. §§ 102-3.155(c)–(d).
5 U.S.C. App. 2 § 10(d).
181
According to the FACA database maintained at Federal Interagency Databases Online (―FIDO‖), in fiscal year
2010, 28% of committee meetings were fully open, 68% were completely closed, and 4% were partially closed. See
FACA Database: FY2010 Government Totals, http://fido.gov/facadatabase/rptgovttotals.asp (last visited July 26,
2011); see also U.S. GOVERNMENT ACCOUNTABILITY OFFICE, GAO/GGD-98-147, VIEWS OF COMMITTEE MEMBERS
& AGENCIES ON FEDERAL ADVISORY COMMITTEE ISSUES 4 (1998) (―The overall responses we received from
committee members on the issue of public participation were mixed. About 27 percent of the respondents said that
all of their committee meetings were open to the public, and 37 percent said that all of their committee meetings
were closed to the public. Another 19 percent of respondents said some meetings or portions of meetings were
closed.‖); Rebecca J. Long & Thomas C. Beierle, The Federal Advisory Committee Act & Public Participation in
Environmental Policy 33 (Jan. 1999) (noting that only 42 percent of committee meetings were open to the public in
fiscal year 1997).
182
Long & Beierle, supra note 181, at 33 (―While only 42 percent of all federal advisory committee meetings were
open to the public during FY 1997, virtually all EPA, DOE, and DOI advisory committees were open to the
public.‖).
183
5 U.S.C. App. 2 § 10(b); see also 5 U.S.C. § 552(b) (FOIA exceptions).
184
Id. § 552(b)(5) (―This section does not apply to matters that are . . . inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .‖).
185
Disclosure of Advisory Committee Deliberative Materials, 12 Op. O.L.C. 73, 77 (1988).
180

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terms exemption 5 protects only inter-agency and intra-agency documents and because an
advisory committee is not an agency.‖186 Thus, though meetings between committee members in
preparation for a full advisory committee meeting need not be made open for public
participation,187 the documents the members consider during those preparatory sessions are
generally subject to public disclosure.
Nevertheless, FACA does not necessarily require every scrap of paper viewed by an
advisory committee member to be made publicly available. First, by its terms, FACA only
requires documents that were ―made available to or prepared for or by each advisory committee‖
be made available to the public.188 Thus, much as meetings of subcommittees are not subject to
the various procedural requirements under FACA,189 documents distributed amongst groups
smaller than the entire advisory committee presumably are not subject to public disclosure.
Second, FACA requires only that committee documents be ―available for public inspection and
copying,‖190 not that the agency undertake affirmative steps to make all committee documents
available absent a specific request. Of course, some committees voluntarily make their
documents available without specifically receiving a request to do so, such as by posting relevant
documents on the committee‘s website, but doing so is not a FACA requirement.
FACA also requires committees to prepare certain documents in connection with
committee meetings. Most notably, it provides that ―[d]etailed minutes of each meeting of each
advisory committee shall be kept.‖191 The minutes must include a list of meeting attendees; the
time, date, and place of the meeting; a complete description of matters discussed and conclusions
reached; and copies of all reports considered by the committee.192 The DFO must ensure that the
committee chair certifies the minutes within 90 days of the relevant advisory committee
meeting.193
FACA‘s implementing regulations provide that ―[o]fficial records generated by or for an
advisory committee must be retained for the duration of the advisory committee.‖194 The
National Archives and Records Administration (―NARA‖) has issued guidance that elaborates on
the relatively sparse provisions relating to document retention in the regulations. NARA‘s
General Records Schedule 26 sets forth certain official records that must be retained for the life
of the committee, including the charter, meeting minutes, official reports, and documents
supporting recommendations (including documents considered by subcommittees).195 Once the
committee ceases to exist, documents of that type must be transferred to NARA for archiving.196
186

Id.
41 C.F.R. § 102-3.160(a).
188
5 U.S.C. App. 2 § 10(b) (emphasis added).
189
41 C.F.R. § 102-3.35.
190
5 U.S.C. App. 2 § 10(b).
191
Id. § 10(c).
192
Id.; 41 C.F.R. § 102-3.165.
193
5 U.S.C. App. 2 § 10(c); 41 C.F.R. § 102-3.165(c).
194
41 C.F.R. § 102-3.175(e).
195
National Archives and Records Administration, General Records Schedule 26 § 2(a).
196
Id.
187

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Documents that simply relate to the day-to-day workings of committees, such as staff
correspondence, public mail, and extra copies of documents falling into the first category may be
destroyed after three years.197 Documents posted on the web may be deleted when they are no
longer needed, so long as the original document is appropriately preserved in paper form.198
Committee web pages also may be deleted when no longer needed, but the committee must first
consult with NARA to determine whether certain portions merit retention.199
i.

Management of Advisory Committees

FACA imposes a number of requirements related to the ongoing management of existing
advisory committees and assigns certain roles to agency staff in that management process.
Specifically, the head of the agency must issue guidelines governing the work of the agency‘s
committees, annually review the need to perpetuate each existing advisory committee, determine
the compensation (if any) for committee members and consultants, ensure that committee
members are not inappropriately influenced by special interests or the agency itself, ensure that
the committee members follow all relevant ethical requirements, and appoint one agency
employee to serve as a Committee Management Officer (―CMO‖) for all committees and
individual agency employees to serve as Designated Federal Officers (―DFO‖) for each of the
agency‘s advisory committees.200
The CMO and DFOs, in turn, generally handle the day-to-day affairs of an agency‘s
advisory committees. Specifically, the CMO is responsible for ―exercis[ing] control and
supervision over the establishment, procedure, and accomplishments of advisory committees
established by the agency‖ and maintaining all committee records (including the charter, the
annual comprehensive review, the agency‘s advisory committee guidelines, and documentation
for closed meetings).201 The DFO is responsible for calling each committee meeting, approving
the agenda thereof, attending the meeting, adjourning the meeting when he or she deems it to be
in the public interest, and chairing the meeting when directed to do so by the agency head.202
j.

Review and Termination of Existing Committees

A major motivation for the enactment of FACA was the need to ensure that advisory
committees are ―terminated when they are no longer carrying out the purposes for which they
were established.‖203 In addition to requiring that agency heads regularly review the work of
their agencies‘ advisory committees to ensure that they do not outlive their useful lifespan,204
FACA creates a formal process by which GSA‘s Committee Management Secretariat regularly
197

Id. § 2(b).
Id. § 2(c).
199
Id.
200
5 U.S.C. App. 2 § 8; 41 C.F.R. § 102-3.105.
201
5 U.S.C. App. 2 § 8(b); 41 C.F.R. § 102-3.115.
202
41 C.F.R. § 102-3.120.
203
5 U.S.C. App. 2 § 2(b)(3).
204
41 C.F.R. § 102-3.105(e).
198

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reviews the usefulness of existing advisory committees. In performing this review, the
Committee Management Secretariat requests information from existing committees and then
conducts an annual review to determine whether each committee is accomplishing its intended
purpose, whether its mission should be revised, and whether it should be merged with another
committee or abolished entirely.205
In addition to GSA‘s annual comprehensive review, the chartering requirements impose
an additional check on the perpetuation of unnecessary advisory committees. Specifically,
unless otherwise specified by statute, all advisory committee charters expire after two years by
default.206 Thus, all discretionary committees must be reexamined for continued relevance every
two years, as must those statutory advisory committees for which Congress does not provide for
a different lifespan. Once the charter has expired, the agency may renew the committee‘s charter
if it determines that the committee continues to serve a useful purpose. In so doing, the agency
must provide a justification for perpetuating the committee, including an explanation of the need
for the committee and of the inability of existing committees to assume the functions of the
committee at issue.207 Additionally, if the agency determines to change the mission of one of its
existing advisory committees, it must consult with the Committee Management Secretariat,
explaining the justification for the change, and then file an amended charter.208 In theory, the
chartering requirements ensure that existing advisory committees do not persist beyond the
completion of their mission by requiring periodic reevaluations and that the agency does not
improperly expand the scope of a committee‘s work by requiring consultation with the
Committee Management Secretariat when the committee structure undergoes any major change.
If the agency determines that a committee has outlived its useful lifespan, either of its
own accord or as part of the annual review by the Committee Management Secretariat or the rechartering process, it must terminate the committee.209 An agency should terminate an existing
committee when it has accomplished its stated objectives, its work has become obsolete, or the
costs of the committee outweigh its benefits.210
Part B: Research Methodology and Findings
As the background sections illustrate, FACA attempts to promote efficiency and
transparency in agencies‘ use of advisory committees by imposing a number of procedural
requirements. The statute maintains a delicate balance between furthering those policies, on one
hand, and imposing such onerous procedural burdens that agencies can no longer effectively
make use of advisory committees, on the other. The background sections suggest that, as a
general matter, FACA, its implementing regulations, and other associated statutes and
regulations have created a regime that effectively controls potential abuses in the advisory
205

5 U.S.C. App. 2 § 7; 41 C.F.R. §§ 102-3.100, 102-3.175(b).
41 C.F.R. § 102-3.55(a).
207
Id. § 102-3.60.
208
Id. § 102-3.85.
209
Id. § 102-3.30(b).
210
Id.
206

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committee process while nonetheless maintaining a relatively efficient system for convening and
operating advisory committees. Nevertheless, the background sections also demonstrate that, in
a number of instances, the FACA standards are somewhat unclear, creating uncertainty for
agencies regarding whether the Act applies to any given interaction or whether or not meetings
are conducted in full compliance with FACA. The existing FACA regime also arguably imposes
a number of requirements that create heavy procedural burdens without substantially advancing
the Act‘s dual goals of promoting efficiency and transparency. Conversely, in some instances,
the Act perhaps does not go far enough in promoting such goals, failing to require or encourage
certain practices that would greatly facilitate efficiency and transparency without imposing
significant procedural burdens on agencies.
In conducting the research underlying this report, the Administrative Conference staff
broadly analyzed the existing FACA regime with an eye towards determining whether or not it is
effectively advancing its underlying goals without imposing an unnecessary burden on agencies‘
ability to obtain outside advice. The research proceeded in five phases. First, Professor Jim
O‘Reilly of the University of Cincinnati Law School conducted a survey of CMOs at twelve
agencies that make relatively extensive use of advisory committees on behalf of the Conference.
Professor O‘Reilly‘s survey generally inquired as to whether FACA limits agencies‘ ability to
meet with outsiders and posed a number of specific questions related to agencies‘ use of ―new
media.‖ The results of Professor O‘Reilly‘s survey suggested that agencies make relatively
generous use of FACA‘s ―exceptions‖ to avoid the procedural strictures of the Act.211
In the second phase, the Administrative Conference staff sought additional detail on
potential issues created by FACA and elucidation of the procedural burdens that might lead
agencies to avoid triggering the Act. Conference staff reviewed the existing FACA literature,
including bills before Congress containing proposed FACA reforms, reports from governmental
entities (such as the Government Accountability Office), reports from private organizations (such
as the Bipartisan Policy Center), and law review articles to obtain a sense of the major issues that
have arisen in the implementation of FACA. Conference staff also spoke informally with a
number of experts who have written on the Act.
In the third phase of the research, the Conference staff prepared a list of questions
designed to elicit information on each of the major issues identified during the literature review.
A copy of the list of inquiries appears in Appendix B to this article. The Conference staff
circulated this set of inquiries to all government members of the Administrative Conference,
which include representatives from major federal agencies.212 The staff asked these Conference
members to circulate the survey to the persons within their agencies who receive advice provided

211

The results of Professor O‘Reilly‘s survey are summarized in his report to the Conference, which is available at
http://www.acus.gov/wp-content/uploads/downloads/2011/04/OReilly-FACA-Report-4-15-2011-Redline2.pdf.
Since several survey respondents requested anonymity, Professor O‘Reilly‘s report does not identify the respondents
by name or agency but rather provides a general overview of the survey results.
212
For a full list of government members of the Administrative Conference, please visit the following webpage:
http://www.acus.gov/about/the-assembly/government-members/.

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by advisory committees or deal with the legal aspects of committee activities.213 The Conference
ultimately received 21 responses from federal agencies. In addition, the Conference staff sought
general views on potential problems under FACA from public members of the Conference,
which include law professors, private attorneys, members of non-profit organizations, and other
members of the private sector.214 Four public members provided input. A summary of all
responses (including those from government and public members) appears in Appendix C to the
report.215 By seeking input from the public and private sectors, the Conference sought to obtain
a balanced perspective on the strengths and weaknesses of the current FACA regime.
In the fourth phase of the research, the Conference convened a workshop to consider the
most salient issues under FACA identified by the initial literature review and membership
questionnaire. The Conference again sought to obtain a mix of viewpoints, inviting federal
employees with extensive experience in the use of advisory committees, scholars who have
written on issues under FACA, representatives from non-profit organizations that advocate
government transparency, and interested members of the public. Approximately 50 such
individuals participated in the workshop. The topics considered at the workshop included the
following:
(1)
Should the conflict of interest standards applicable to advisory committee
members be modified?
(2)
Should the chartering and re-chartering process for new and existing advisory
committees be revised?
(3)
Should the ―exceptions‖ to FACA‘s coverage be eliminated, amended, or
clarified?
(4)
What steps should committees take to promote transparency beyond the minimum
requirements of FACA? For instance, should committees solicit public input on potential
committee members, post committee documents online, or webcast committee meetings?
(5)
Would hosting virtual, asynchronous meetings of advisory committees via web
forum be useful?
(6)

What other issues under FACA are particularly pressing?

213

Specifically, the survey requested that Conference members forward the inquiries to ―those who receive and use
the advice that [advisory] committees provide‖ and/or ―people who deal with the legal aspects of FACA
compliance.‖ Since Professor O‘Reilly‘s survey already produced input from CMOs, the second survey sought
information from the ―clients‖ of the agencies‘ advisory committees.
214
For a full list of the public members of the Administrative Conference, please visit the following webpage:
http://www.acus.gov/about/the-assembly/public-members/. Several of the Conference‘s public members have
written or testified on FACA issues and have litigated a number of cases dealing with the Act.
215
Since several survey respondents asked that their responses not be publicly promulgated, the report provides only
a general overview of survey responses and does not identify individual respondents by name or agency.

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A brief summary of the input received at the FACA workshop appears in Appendix D to this
report.
In the fifth phase of the research, the Administrative Conference staff conducted detailed
telephone interviews with a number of governmental FACA experts, designed to follow up on
certain points raised in the workshop and ensure that the information gathered includes the views
of all relevant entities. First, several workshop participants identified relatively broad problems,
such as delays in committee formation, and Conference staff sought additional detail on such
topics. For instance, with respect to the issue of delays in committee formation, Conference staff
contacted the individuals who raised that issue at the workshop to gain additional information on
the precise reasons for such delays. Second, Conference staff contacted a number of individuals
who work in agency program offices or who otherwise deal with the issues associated with
convening advisory committees and receiving their advice, so as to ensure that the data included
the views of ―clients‖ of advisory committees in addition to the perspectives of those responsible
for the day-to-day details of operating such committees and the legal aspects of FACA
compliance. Third, Conference staff contacted several individuals specifically recommended by
members of the Conference as possessing expertise in the source of delays related to ―standing
up‖ committees. Conference staff both posed general questions about such delays and
specifically inquired as to whether the delays are caused externally, either by formal FACA
requirements or suggestions made by GSA in its charter consultation role, or internally, arising
from ―gloss‖ that agencies themselves place on the various FACA requirements or from internal
requirements separate from the FACA regime.
Ultimately, the Conference‘s data gathering efforts produced an extensive body of
information containing input from an array of parties involved in the advisory committee
process. Professor O‘Reilly‘s survey, the membership inquiries, and the workshop gathered
input both from CMOs, who deal with the ―nuts-and-bolts‖ of FACA compliance, and federal
employees that receive committees‘ work product and deal with the legal aspects of FACA
compliance, who are closely attuned to any delays or inefficiencies in the process. Of the 51
agencies that host one or more advisory committees, 29 have one or more representatives who
serve as government members of the Administrative Conference, and those 29 agencies tend to
be those that have the largest numbers of committees. Of those 29 agencies, 22 responded to the
membership survey, sent a representative to the workshop, or participated in both. A number of
private sector FACA experts and members of the public interested in the work of advisory
committees (including several representatives from open government organizations) attended the
workshop and provided their views. Finally, the Conference staff has intensively reviewed the
FACA literature and interviewed a number of FACA experts. Thus, the data reflect the views
both of government agencies that seek outside advice and of private parties with an interest in
ensuring that the advice-seeking process functions openly and transparently. The results of this
extensive data gathering effort are summarized briefly below and analyzed at greater detail in
Appendices B–D at the end of this report.
As a general matter, the data gathered provide context on the primary issues under FACA
and potential solutions thereto. In the early stages of the FACA project, the Administrative
Conference staff received a number of requests from its government members to conduct a
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detailed study of FACA, given the constraints that the statute can pose on agencies‘ ability to
interact with the private sector. At the same time, the Conference staff also received informal
suggestions from members of non-profit open government organizations urging the Conference
to examine revisions to the Act that would promote increased transparency. The results of the
research suggest that both sets of concerns are legitimate. In some instances, FACA is unclear,
creating some trepidation on the part of agencies in interacting with outsiders, and in other cases
the existing FACA regime creates procedural burdens for agencies that outweigh any
countervailing benefit in increased transparency or efficiency. At the same time, under the
existing FACA regime, agencies often fail to undertake relatively simple ―best practices‖ that
would greatly increase transparency at a relatively minimal cost to the agency. Advances in
technology have greatly simplified the process of advertising and involving the public in
committee work, and agencies should exploit those technologies to the extent possible.
With respect to burdens created by the existing FACA regime, the informal discussions
between Conference staff and government members in the early stages of the project suggested
that a major problem in agencies‘ compliance with FACA is unnecessary delays. Some
suggested that convening an advisory committee generally requires at least several months of
initial groundwork, and the process can often exceed one year. Thus, in its data gathering, the
Conference staff focused closely on identifying the sources of these delays. As a general matter,
the data gathered suggest that the most significant delays occur in the early stages of the
committee process, while the committee is selecting members and preparing its charter. Though
a few respondents to the government member survey suggested that post-formation delays can
pose an issue, with some pointing to the requirement of announcing meetings 15 days in advance
in the Federal Register as a burden, the data gathered strongly suggest that the most significant
delays arise from the committee formation process.
Delays in convening committees could theoretically be caused by either or both of the
following issues: (1) in its consultative role in committee chartering, GSA could point to various
flaws in proposed charters and/or potential improvements thereto (or could simply require a
lengthy amount of time to review the charter), and implementing GSA‘s suggestions could
require a significant time commitment on the part of agencies or (2) agencies could themselves
impose relatively extensive procedural burdens in forming committees that could significant
delay the formation process. In order to elucidate which of these concerns comprised the
primary source of delay (or whether they both contribute to delay), the Conference staff
structured the membership survey to ask separately about delays in chartering and internal
processes imposed by agencies, the workshop inquiries also specifically addressed the question
of the primary source of delays, and Conference staff interviewed a number of government
employees who had pointed to delays as an issue and specifically asked about delays of both
types and about which proves more significant.
As a general matter, the data gathered suggest that the latter source of delay is far more
significant. Though GSA often does point to various flaws in proposed charters, and though
rectifying those issues can take time, the respondents indicated that internally imposed
requirements create far more significant delays than do any suggestions tendered by GSA during
the committee formation process. Specifically, a number of agency respondents indicated that
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their agencies had developed internal plans for achieving optimal balance of committees and that
complying with those balance plans could be very time consuming. A number of agency
respondents also indicated that the internal review process often consisted of multiple levels and
that the formation of committees could become protracted while the proposed committee
proceeded through the various levels of review. Section C.2.a will examine recommendations
for resolving these issues.
Though much less significant than the concern over delays resulting from committee
formation, some agencies expressed some consternation regarding the use of new media.216 Of
course, agencies can likely exploit many of the recent advances in social media with little
concern of running afoul of FACA. For instance, an agency‘s receiving comments on its
Facebook page or posing a question to the general public via Twitter or a blog and receiving
responses thereto is unlikely to trigger FACA, since the agency has not established any formal
committee from which it is seeking group advice but instead is simply receiving individual
inputs from an amorphous, unorganized assemblage of individuals.217 Thus, the various
government employees surveyed or polled by Conference staff did not express significant
concerns regarding the use of social media. Nevertheless, many agencies expressed concerns
regarding the use of email, given the risk that an email exchange amongst committee members
could result in a ―virtual meeting,‖ as examined in A.3.f. In this light, committees often avoid
the use of email or simply advise their committees to exchange emails only amongst small
groups, thereby exploiting the subcommittee exception.218 Of course, this creates procedural
burdens for agencies, given the prevalence of email communication in modern culture. In this
light, this report presents two sets of recommendations designed to alleviate such concerns: (1) in
section C.1.b, it presents a proposal for a ―virtual meeting‖ whereby committee members could
exchange preliminary thoughts via electronic means in full compliance with FACA and (2) in
section C.1.a, it recommends replacing the subcommittee exception with a more robust
preparatory work exception, which would allow private pre-meeting exchanges amongst all
committee members, by email or otherwise.
Administrative law scholars and several agency respondents and workshop participants
have suggested that FACA‘s various procedural burdens can be particularly problematic for
committees that conduct negotiated rulemaking,219 a process by which the relevant stakeholders
meet to negotiate the text of a proposed rule.220 In this light, Section C.2.c proposes various
216

As Committee on Collaborative Governance members will recall, the initial focus of the project was on the use of
new media under FACA. As will be addressed in Part C, this report carries forward the project‘s initial interest in
uses of new media, providing a number of specific recommendations for their use by committees, while also
examining the Act more broadly.
217
See Physicians & Surgeons, 997 F.2d at 911 (FACA only applies to assemblages of persons providing advice as a
group); Nader, 396 F. Supp. at 1234 (FACA only applies to committees with some formal organization).
218
41 C.F.R. § 102-3.35.
219
Jeffrey S. Lubbers, Achieving Policymaking Consensus: The (Unfortunate) Waning of Negotiated Rulemaking, 49
S. TEX. L. REV. 987, 1001 (2008) (―A fourth impediment to using [negotiated rulemaking] is the applicability of
FACA to the process.‖).
220
DAVID M. PRITZKER & DEBORAH S. DALTON, NEGOTIATED RULEMAKING SOURCEBOOK 1 (1995) (―The essence
of the idea is that in certain situations it is possible to bring together representatives of the agency and the various

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potential reforms designed to mitigate the procedural burden imposed on negotiated rulemaking
committees.
A separate procedural burden that did not necessarily pose a tremendous issue for
agencies but that nevertheless created some consternation was Executive Order 12,838‘s cap on
the number of advisory committees. As shown in Section A.1.e, the cap created by the order has
not yet been exceeded, and agencies likely are not in any imminent danger of exceeding it, but
the data gathering suggested that some agencies were unsure of whether they were likely to
exceed the cap and therefore limited their formation of new committees. Section C.2.b addresses
this issue by recommending rescission of the cap. The purpose of the cap is to ensure that
committees do not proliferate unnecessarily, yet FACA already contains a number of provisions
designed to achieve that end, and the marginal value of the cap is therefore minimal.
As a general matter, the data did not suggest that confusion over the scope of FACA‘s
coverage posed a major problem for agencies, though some uncertainty in the Act‘s applicability
to certain interactions does exist. When asked whether FACA posed an impediment to their
desired interactions with outsiders or whether uncertainty in the scope of FACA‘s coverage
chilled outside communications, the majority of agency survey respondents indicated that it did
not. Nevertheless, a number of survey respondents, workshop participants, and interviewees did
indicate that certain clarifications in the scope of FACA‘s coverage would be beneficial. In
particular, a number of respondents strongly suggested that committees require an efficient
means of conducting pre-meeting exchanges outside of the purview of FACA. Many committees
have accomplished such exchanges by making use of FACA‘s subcommittee exception,221 yet
Congress has proposed to repeal that exception in H.R. 1144.222 Furthermore, the subcommittee
exception is an imperfect mechanism for permitting agencies to conduct preparations for
committee meetings outside of FACA‘s purview, given that some preparatory activities may
require the input of the full committee. In that light, Section C.1.a recommends replacing the
subcommittee exception with a more robust, statutorily enshrined exception allowing committees
to efficiently prepare for meetings.223
Finally, the data gathering suggested that a number of revisions to the existing FACA
regime could enhance the transparency of committees. First, the Act contains a number of
exceptions, most notably the contractor and non-voting member exception, that are generally
seen as improper loopholes to the statute‘s coverage. Though they certainly allow committees to
meet more expeditiously, most respondents, including several from federal agencies, felt that the
exceptions created improper statutory work-arounds, allowing agencies to exploit technicalities
interest groups to negotiate the text of a proposed rule. The negotiators try to reach a consensus through a process of
evaluating their own priorities and making tradeoffs to achieve an acceptable outcome on the issues of greatest
importance to them.‖).
221
Id.
222
H.R. 1144, 112th Cong. § 102(b) (2011)
223
Though the regulations contain a preparatory work exception, 41C.F.R. § 102-3.160(a), it is somewhat vague,
and Section C.1.a therefore recommends providing a more concrete definition of ―preparatory work‖ that would be
of greater use to agencies.

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to exempt activities that likely should fall within the purview of FACA. Accordingly, Section
C.1.a recommends the repeal of certain exceptions while suggesting the retention of others that
are critical to allowing committees to meet efficiently. Second, given its vintage, FACA fails to
acknowledge various uses of new media that would greatly enhance transparency without
imposing a major procedural burden on agencies, such as posting committee documents,
webcasting committee meetings, and soliciting public input on potential committee members as
appropriate. Though the report does not recommend that agencies be required to undertake such
activities, given the wide variation in agencies‘ needs and resources, it does commend such
practices to agencies as a series of ―best practices‖ in Section C.3.a. Finally, the data gathered
and various references in the FACA literature suggest that the existing ethics regime, though
generally sound, does feature some inefficiencies, with certain committee members who should
be subject to ethics provisions enjoying exemption and other committee members being subject
to such provisions when they likely should be exempt. A sound ethics regime is critical to
ensuring objectivity on committees, and Section C.3.b therefore recommends certain revisions
that would ensure that the ethics system covers the appropriate individuals without deterring
committee service by casting too wide of a net.
Part C: Recommendations
In its initial consideration of Professor O‘Reilly‘s report, the Committee on Collaborative
Governance held two meetings to consider both that report and a series of draft recommendations
prepared by Conference staff.224 As a general matter, the initial recommendations focused
closely on the use of new media, recommending that agencies explore potential uses of new
media and that GSA provide guidance intended to elucidate permissible uses thereof. This report
carries forward the spirit of those recommendations. It continues to endorse agencies‘ exploring
potential uses of new media and GSA‘s providing training on permissible uses of new media, a
process that GSA has already begun to undertake.225 Rather than generally recommending that
agencies explore the use of new media, however, the report identifies a number of new media
uses that agencies can and should exploit, such as hosting asynchronous virtual meetings, posting
committee documents online, and posting webcasts of committee meetings. Of course, the report
does not intend these recommendations to serve as an exhaustive list, and individual agencies
and GSA should, as a general matter, continue to exploit media advances and integrate those
technologies into their advisory committee programs as appropriate.
The report also looks much more broadly at FACA and seeks to identify changes in the
existing regime, whether or not related to new media, that will allow committees to operate
effectively without thwarting the policies of efficiency and transparency that the Act was
224

Both Professor O‘Reilly‘s report and the initial recommendations are available on the webpage for the FACA
project, available at http://www.acus.gov/research/the-conference-current-projects/faca-in-the-21st-century/.
225
For instance, in a FACA conference it hosted on September 7–8, 2011, GSA provided extensive information on
how agencies can exploit advances in social media while maintaining compliance with FACA. The materials from
the conference are available at http://www.facatrainingconference.com/, under the ―Conference Tracks‖ tab.

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designed to serve. Specifically, section C.1 examines certain clarifications in the Act designed to
eliminate unnecessary uncertainty about the scope of FACA‘s coverage and the associated risk
that agency usage of advisory committees will be chilled.226 Section C.2 considers various
adjustments to the existing FACA regime designed to remove unnecessary impediments to
committees‘ meeting efficiently, focusing particularly on sources of delay in the use of
committees. Finally, section C.3 then examines various revisions to the existing regime and
certain ―best practices‖ designed to promote transparency without imposing an onerous
procedural burden on agencies.
1.

Clarifying the Scope of FACA
a.

FACA Exceptions

As explored in Section 2 of the report, federal courts and agencies have interpreted
FACA such that it does not apply to certain interactions between the government and outside
groups. Under these so-called ―exceptions,‖ FACA does not apply to (a) subcommittees that
report to a parent committee (―subcommittee exception‖); (b) interactions in which the
government seeks advice from outside experts individually (―individual advice exception‖); (c)
groups convened by government contractors, even if done at the behest of a federal agency
(―contractor exception‖); and (d) groups in which the private participants are not able to vote on
committee determinations (―non-voting member exception‖).
In H.R. 1144, Congress proposes to eliminate the subcommittee, contractor, and nonvoting member exceptions.227 Notably, Congress has not attempted to eliminate the individual
advice exception. This report agrees that the contractor and non-voting member exceptions
should be eliminated and that the individual advice exception should be retained. With respect to
the subcommittee exception, this report favors elimination thereof but argues that it should be
replaced with a more robust, statutorily sanctioned exception for ―preparatory work‖ that more
effectively allows groups of committee members to prepare for committee meetings without
encountering excessive procedural burdens under FACA.
The contractor exception is premised on the notion that an agency can almost never exert
sufficient control over a private entity to ―utilize‖ that group within the meaning of FACA.228
Though the cases establishing the contractor exception adopt a reasonable interpretation of the
word ―utilize,‖ particularly given the Supreme Court‘s narrow construction of that term in Public

226

Several of the recommendations in section C.1 are also relevant to promoting other policies besides clarifying the
scope of the Act. For instance, rescinding the contractor and non-voting member exceptions, as recommended in
C.1.a, would foster transparency, and allowing asynchronous virtual meetings, as recommended in C.1.b, would
alleviate procedural burdens caused by agencies‘ reluctance to allow committee members to circulate emails to the
entire group.
227
H.R. 1144, 112th Cong. § 102 (2011).
228
See Byrd, 174 F.3d at 246; Food Chem. News, 900 F.2d at 333.

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Citizen,229 as a matter of policy, the exemption of committees convened by contractors has
arguably created an inappropriate loophole in FACA‘s coverage. Indeed, an agency could
theoretically outsource the committee formation process while still exercising a relatively high
degree of control over the contractor‘s operation of the committee, which seems like an improper
end run around the statute.230 In ACUS‘s data gathering efforts, several survey231 and workshop
participants criticized the contractor exception whereas very few defended it, and those who did
asserted only that FACA exceptions generally were beneficial to agencies rather than offering a
specific defense of exempting committees convened by contractors. No agency specifically
asserted that the contractor exception was critical to its ability to efficiently obtain outside
advice. The contractor exception has also been heavily disparaged in proposals for FACA
reform.232
Of course, the contractor exception can expedite agencies‘ efforts to obtain advice by
exempting a type of activity from the purview of FACA. For instance, an agency could likely
form a committee much more expeditiously by working through a contractor than by establishing
the committee itself insofar as the process would not be subject to the formal chartering
requirements. Similarly, contractor-convened committees can meet more expeditiously insofar
as they are exempt from the notice and open meeting requirements. Indeed, as a general matter,
privately organized committees likely should not be subject to FACA unless the government
exerts a fairly high degree of control in their formation,233 given the difficulty that would arise
from requiring a private organization to comply with FACA‘s various procedural requirements,
such as chartering and conducting open meetings. Nevertheless, the data gathered suggest that
the contractor exception creates too grave a danger that committees will circumvent the statute
by the simple expedient of instructing a contractor to form a committee rather than doing so
directly. Though any exchange in which the agency merely uses advice of an independently
formed private group should continue to fall below the purview of FACA, in instances where the
agency actually directs a contractor to form a committee, it likely has exerted sufficient control
over the committee that the contractor should conduct meetings in full compliance with the Act,
notwithstanding the holdings of Byrd and Food Chemical News. In this light, the report
recommends that Congress eliminate the contractor exception.
The non-voting member exception similarly arises from a relatively formalistic
interpretation of FACA‘s requirements, holding that private sector committee members do not
229

491 U.S. at 462.
See Byrd, 174 F.3d at 246–47 (holding that a government contractor convened committee did not implicate
FACA even where the agency provided the contractor convening the committee with a ―task order‖ defining the
objective, method, and scope of studies to be performed; gave the contractor a list of recommended committee
members; and reserved the power to approve the contractor‘s selection of committee members).
231
Unless otherwise noted, ―survey‖ hereafter refers to the survey of the Conference‘s government members and the
general FACA inquiry sent to public members rather than the survey of CMOs conducted by Professor O‘Reilly.
232
See, e.g., Hearing on the Federal Advisory Committee Act (FACA) of 2008, 110th Cong. 56–57 (2008)
(testimony of Professor Sidney A. Shapiro) (decrying the ―[c]ontractor [l]oophole‖); Bipartisan Policy Center, supra
note 108, at 25 (―Federal agencies should not be able to circumvent the [requirements of FACA] by contracting out
the appointment or operation of advisory committees.‖).
233
Public Citizen, 491 U.S. at 462; Byrd, 174 F.3d at 246; Food Chem. News, 900 F.2d at 333.
230

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provide ―advice or recommendations‖ to an agency unless if they have the right to vote on or
veto committee proposals.234 One can easily envision how a committee might use this exception
to evade FACA‘s requirements: an agency could simply structure a committee to include only
government employees as voting members but could still receive extensive advice from private
sector participants without triggering FACA.235 Like the contractor exception, the non-voting
member exception was criticized by several workshop participants and was only defended
indirectly insofar as some asserted generally that the exceptions were collectively useful. It also
has been criticized in FACA reform proposals.236
Of course, like the contractor exception, the non-voting member exception does create a
relatively efficient means for seeking outside advice, outside of the confines of FACA. To the
extent that agencies must structure meetings to exploit the exception in order to efficiently obtain
outside advice, a strong argument could be made for retention of the exception. The data
gathered, however, tends to suggest that agencies do not extensively use the non-voting member
exception. Indeed, given the tension between the D.C. Circuit‘s Cheney decision and its earlier
holding in Physicians & Surgeons, wherein the court focused not on whether committee
members exercised a vote or veto (and specifically asserted that a committee need not achieve
―consensus‖ to trigger FACA) but rather on whether group interaction existed,237 some agencies
indicated that they continue to treat committees involving non-voting members as being subject
to the Act, given the ambiguity in the case law. Furthermore, no survey respondent, workshop
participant, or agency interviewee indicated that the non-voting member exception was critical to
agencies‘ efficiently obtaining outside advice. In this light, the report recommends that Congress
eliminate the non-voting member exception.
The individual advice exception, like the other two analyzed thus far, similarly arises
from judicial interpretation of the statute: assemblages of persons from whom advice is received
individually are not ―groups‖ under the purview of FACA.238 Unlike the others, however, the
exception has not been subject to widespread criticism. Congress has not proposed to eliminate
the exception in any of the recent FACA reform bills. It has generally not been criticized in the
literature. Several survey respondents and workshop participants from government agencies
indicated that the exception was critical to their efficiently obtaining outside advice. A handful
of workshop participants indicated that agencies should document contacts with outsiders, but
234

Cheney, 406 F.3d at 728 (―[H]aving neither a vote nor a veto over the advice the committee renders to the
President, [private sector committee participants are] no more . . . member[s] of the committee than the aides who
accompany Congressmen or cabinet officers to committee meetings.‖).
235
Indeed, the committee‘s vote could become a mere formality insofar as the agency will ultimately make the
determination of how to utilize the committee‘s work product. Thus, the committee could document all advice
received from participants, public and private, and then hold a pro forma vote on the formal recommendation that
the committee would issue. The agency could then ignore the formal recommendation and simply focus on the
underlying advice.
236
See, e.g., Hearing on the Federal Advisory Committee Act (FACA) of 2008, 110th Cong. 58–59 (2008)
(testimony of Professor Sidney A. Shapiro) (recommending elimination of the ―[n]onvoting [p]articipant
[l]oophole‖)
237
997 F.2d at 913.
238
Am. Physicians & Surgeons, 997 F.2d at 913.

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they did not argue that such exchanges should be subject to the full rigors of FACA.239 Of
course, subjecting such individual exchanges to FACA would promote transparency, at least to
the extent it did not deter the government from meeting with outside parties entirely, but
extending the Act to such activities would be extremely difficult to implement in practice. For
instance, an agency likely would be unable to post requests for comments on its website or to
hold a town-hall meeting seeking individually stated views from the public attendees without
preparing a charter for the group from whom advice is sought and announcing all meetings in
advance, a burden that would likely prove prohibitive to engaging in such practices. Given the
impracticality of subjecting such exchanges to FACA, the strong support voiced in favor of the
exception, and the lack of any significant criticism thereof, this report recommends that Congress
retain the individual advice exception.
The final exception, that for meetings of subcommittees, has proven considerably more
controversial, with strong arguments raised both for its retention and its elimination. H.R. 1144
would eliminate the exception outright.240 FACA experts have criticized the subcommittee
exception, arguing that, so long as it does not ―rubber stamp‖ the subcommittee‘s work, the
parent committee can move much of the important work to the subcommittee level and thereby
evade FACA‘s transparency requirements.241 Several workshop participants echoed this
sentiment, asserting that the subcommittee exception creates the potential for abuse and should
be eliminated. On the other hand, some workshop participants and survey respondents, all of
whom hailed from federal agencies, asserted that the subcommittee exception is critical to their
efficient use of advisory committees. Thus, the available evidence poses a conundrum: outright
elimination of the exception would render it difficult for committees to meet effectively, but
retention of the exception preserves a relatively simple means of circumventing FACA.
To resolve the dilemma, one must delve more deeply into the purported justifications for
the exception. As a general matter, workshop participants and survey respondents who defended
the exception averred that it was critical to prepare for committee meetings. Specifically, they
emphasized that they frequently used working groups containing selected committee members to
prepare draft documents, decide on topics for committee meetings, and plan future committee
business, all preparatory activities. Though the implementing regulations do contain an
exception for ―[p]reparatory work,‖242 it is somewhat vague,243 and committees therefore use

239

This report takes no position either in favor of or against the documentation of ex parte contacts between
agencies and outside individuals, which is an issue beyond the scope of the current project.
240
H.R. 1144, 112th Cong. § 102(b) (2011).
241
Hearing on the Federal Advisory Committee Act (FACA) of 2008, 110th Cong. 59 (2008) (testimony of Professor
Sidney A. Shapiro).
242
41 C.F.R. § 102.3-160(a).
243
Specifically, the preparatory work exception in the regulations refers only to two activities as being exempted: (a)
conducting pre-meeting research and (b) drafting position papers. 41 C.F.R. § 102-3.160(a). Though these
activities are important aspects of committee preparation, they do not exhaust the universe of activities for which a
preparatory work exception is appropriate. For instance, the regulations do not make clear whether committee
member‘s deciding on potential topics of discussion at a meeting are exempt. As such, the preparatory work
exception proposed in the report would be defined much more broadly, including all activities that do not involve

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subcommittees as a ―safe harbor‖ to ensure that they are operating below the purview of FACA
when preparing for meetings.244
In this light, the subcommittee exception would largely be unnecessary if agencies could
take advantage of a relatively clear ―preparatory work‖ exception that would permit them to
conduct the initial work required to prepare for full meetings outside of the full strictures of
FACA. Under the proposed exception, any exchange amongst committee members that does not
involve formal debate or voting upon final advice or recommendations that will be provided to
an agency should fall within a ―preparatory work‖ exception. The proposed preparatory work
exception would include most activities that formerly qualified for the subcommittee exception,
such as using working groups to draft papers or decide on topics for discussion at a meeting.
Further, the preparatory work exception would allow such preliminary activities to be conducted
privately even if the entire committee engaged therein, which would be more efficient in cases
wherein the entire group‘s input is useful. At the same time, replacing the subcommittee
exception with a preparatory work exception would eliminate the risk that committees would
delegate almost all major tasks to subcommittees: any activity involving formal debate or vote on
a committee‘s recommendation would be subject to FACA, regardless of whether it is
undertaken by a subcommittee or the full committee. Section 10(b) of FACA would apply to
such exchanges, requiring that all documents considered by the full group be made publicly
available on request, but the notice and open meeting requirements would not apply.245
Committees could, of course, choose to make such preparatory deliberations open to the
public,246 but they would not be required to do so.
Thus, this report recommends that Congress eliminate the subcommittee exception, as
contemplated in H.R. 1144, but that it couple that change with the creation of a new, statutorily
enshrined ―preparatory work‖ exception. The exception should explicitly establish that
exchanges that do not involve formal debate or voting on committee advice or recommendations
are not subject to the notice or open meeting requirements of the Act, though associated
documents (e.g., intermediate drafts of reports) must be made publicly available on request.
Congress might include an enumerated, non-exhaustive list of activities that qualify as
preparatory work (e.g., drafting documents for consideration at meetings, deciding on meeting
topics, considering future projects for the committee) so as to ensure that committees are not
chilled from conducting pre-meeting exchanges out of uncertainty concerning whether they
trigger FACA. Conversely, Congress should ensure that the exception is defined sufficiently

formal consideration of or voting on committee advice. The exception would also ideally contain a list of activities
that qualify as preparatory work.
244
Furthermore, the preparatory work exception is contained only in the regulations, which are not entitled to
Chevron deference, and receives no mention in the statute. Public Citizen, 491 U.S. at 463 n.12; Am. Physicians &
Surgeons, 997 F.2d at 913. Of course, the subcommittee exception also is contained only in the regulations, but it is
clearer in scope than the preparatory work exception.
245
5 U.S.C. §§ 10(a)–(b); 41 C.F.R. §§ 102-3.140, 102-3.150, 102-3.170.
246
One means of opening such initial exchanges to the public would be by conducting the preliminary discussions
on an online web forum to which the public would have access. This proposal is discussed at greater length in
Section C.1.b.

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narrowly that any exchange involving debate or voting on the advice or recommendations that
the committee ultimately provides is subject to the full set of FACA requirements.
Recommendation 1: Congress should eliminate the contractor and non-voting member
exceptions. It should leave the individual advice exception intact. It should eliminate the
subcommittee exception but should replace it with a statutory exception for ―preparatory work‖
of committees, which should be defined as precisely as possible to ensure that committees make
effective use of the exception.
b.

Asynchronous Virtual Meetings of Advisory Committees

FACA‘s implementing regulations contain a clear acknowledgement of the propriety of
agencies‘ exploiting ―new media‖ to conduct advisory committee meetings, stating that ―[a]ny
advisory committee meeting conducted in whole or part by a teleconference, videoconference,
the Internet, or other electronic medium meets the requirements of this subpart.‖247 Pursuant to
this guidance, federal advisory committees have already conducted meetings via teleconference
or videoconference, allowing committee members to interact from remote locations and
members of the public to listen to the conversation by calling into the meeting or viewing it via
streaming video over the Internet. Advisory committees also frequently hold in-person meetings
and webcast the event so that a larger number of citizens can view the committees‘ deliberations.
To the author‘s knowledge, however, advisory committees have never conducted asynchronous
virtual meetings in which committee members discuss a topic over the course of weeks or
months on a publicly available online web forum. Despite its novelty, such a method of hosting
committee meetings is lawful under FACA and its implementing regulations,248 and agencies
should consider using this method for committee meetings to the extent it is beneficial to do so.
Though the framers of FACA clearly did not contemplate the occurrence of asynchronous
virtual committee meetings when FACA was passed, such meetings comply with all of the
requirements of the statute and implementing regulations. First, such meetings would comply
with all of the relevant requirements for providing advance notice of committee meetings. The
committee would issue a Federal Register notice 15 days in advance stating the time period for
the meeting (which could be as long as several months) and the web address at which it will
occur (i.e., the ―time, date, [and] place . . . of the meeting)249; providing a summary of the
meeting agenda and a statement of whether the meeting will be open or closed250; and giving the
247

41 C.F.R. § 102.3.140(e).
This report provides a brief analysis of the provisions of FACA and its implementing regulations that would be
implicated by an agency‘s hosting an asynchronous virtual committee meeting via web forum. The Administrative
Conference has also prepared a more detailed document containing an in-depth analysis of those requirements as
well as the requirements of other statutes and potential policy concerns associated with such meetings. See
generally Reeve T. Bull, Ongoing Web Forum Meetings of Federal Advisory Committees: A Proposed Use of “New
Media” under the Federal Advisory Committee Act (Mar. 17, 2011), available at http://www.acus.gov/wpcontent/uploads/downloads/2011/03/FACA-Web-Forum-Memo-3-17-2011-_2_.pdf.
249
41 C.F.R. § 102-3.150(a)(2).
250
Id. §§ 102-3.150(a)(3)–(4).
248

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name and contact information for the committee‘s DFO.251 The DFO, pursuant to his or her
statutory duties, would call or approve each meeting and its associated agenda252 and would
moderate the forum by approving all submissions prior to their posting, thereby fulfilling the
requirement that the DFO ―[a]ttend the meetings‖ of the committee.253 The virtual meetings
would be ―open to the public‖ insofar as any interested citizen could merely log on to the
committee‘s web site and view all postings.254 Members of the public also could submit
comments to the DFO for posting, thereby meeting the requirement that citizens may ―file a
written statement.‖255 All committee documents would be made available in a ―reading room‖
on the committee website,256 and the committee would prepare and post minutes summarizing
the forum discussions at the conclusion of the process.257
The advantages of holding a committee meeting via a virtual web forum are numerous.
First, such a forum holds the potential of vastly improving the transparency of advisory
committees by allowing a substantially increased number of citizens to view and contribute to a
committee‘s work.258 At traditional committee meetings, public access is effectively limited to
those who live in relatively close proximity to the forum at which the meeting occurs. In a
virtual meeting, the pool of potential public participants includes all citizens with Internet
access.259 Second, the use of virtual meetings could create considerable cost savings for
agencies, eliminating the travel costs required to convene the committee members in a single
forum.260 Third, by facilitating the process of holding long-term discussions on specific topics,
virtual web forum meetings hold the potential to vastly increase the amount of committee work
to which the public has access. Currently, committees often make use of the ―preparatory work‖
exception261 or perform research leading up to a committee meeting at the subcommittee level262
251

Id. § 102-3.150(a)(5).
5 U.S.C. App. 2 § 10(f); 41 C.F.R. §§ 102-3.120(a)–(b).
253
5 U.S.C. App. 2 § 10(e); 41 C.F.R. § 102-3.120(c).
254
5 U.S.C. App. 2 § 10(a)(1).
255
5 U.S.C. App. 2 § 10(a)(3); 41 C.F.R. § 102-3.140(c). The implementing regulations also provide that, ―if the
agency‘s guidelines permit,‖ members of the public should be permitted to ―address the advisory committee.‖ 41
C.F.R. § 102-3.140(d). Since the entire forum will occur in a written medium, the ability to ―address the advisory
committee‖ collapses into the ability to ―file a written statement.‖ Id. §§ 102-3.140(c)–(d).
256
5 U.S.C. App. 2 § 10(b); 41 C.F.R. § 102-3.170.
257
5 U.S.C. App. 2 § 10(c); 41 C.F.R. § 102-3.165.
258
See Bull, supra note 248, at 6.
259
Id. Of course, as a result of the so-called ―digital divide,‖ not all members of the public will be able to
participate. Peter K. Yu, Bridging the Digital Divide: Equality in the Information Age, 20 CARDOZO ARTS & ENT.
L.J. 1, 2 (2002). Nonetheless, citizens without an in-home internet connection can often obtain web access at a local
library, and agencies could presumably provide physical print-outs of the forum discussions for citizens who are
unfamiliar with using computers. Bull, supra note 248, at 6.
260
Of course, agencies would likely continue to make use of traditional, in-person meetings. Nevertheless, in
circumstances wherein the agency wishes to meet quickly or inexpensively or where the need for an in-person
meeting is otherwise diminished, agencies could greatly benefit from the option of hosting virtual meetings via web
forum.
261
41 C.F.R. § 102-3.160(a).
262
Id. § 102-3.35.
252

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to avoid the need for convening a full committee meeting when conducting initial background
discussions. With a virtual meeting, the committee could conduct much of this preparatory work
in full view of the public, since any thought a committee member wished to express, however
minor, could easily be posted to the forum. Thus, virtual meetings promise to increase
transparency of committee meetings, to expand public participation, and to improve the
efficiency of the meeting process.
Several workshop participants and survey respondents expressed interest in holding
asynchronous web meetings. Though they did not feel committees should be required to host
such meetings and indicated that they would continue to hold in-person meetings and explore the
use of technology to hold other types of ―virtual meetings,‖ such as webcasting traditional
meetings, many voiced support for the idea, and none suggested that such meetings would be
unlawful or should be prohibited for reasons of policy.
Recommendation 2: GSA should amend section 102-3.140(e) of the implementing
regulations to clarify that, in addition to hosting teleconferenced or webconferenced meetings,
agencies also may host asynchronous virtual meetings that can occur over the course of days,
weeks, or months, on a moderated web forum. Agencies with advisory committees should
consider holding certain committee meetings via such online forums as appropriate.
2.

Streamlining FACA’s Procedural Requirements
a.

Committee Formation Process

As explored in Section 3, agencies must take a number of steps prior to forming an
advisory committee. They must ensure that they select a balanced slate of committee
members,263 prepare a committee charter,264 and consult with GSA to discuss the need for the
proposed committee and obtained feedback on the committee‘s charter.265 In addition to the
steps formally required by FACA and its implementing regulations, many agencies have
implemented additional internal processes related to committee formation. For instance, some
agencies have highly detailed committee balance plans that require that the membership of a
proposed committee is balanced on a number of different dimensions. In light of the various
procedures associated with ―standing up‖ an advisory committee, the committee formation
process can often take several months.
In order to identify potential mechanisms for streamlining this process, the
Administrative Conference staff asked survey respondents, workshop participants, and a number
of federal agency interviewees to discuss potential sources of delay in committee formation. The
Conference staff also specifically asked whether the delays are primarily external to agencies,
being caused either by FACA‘s procedural requirements or by suggestions made by GSA during
the charter review process (or delays in GSA‘s charter review), or internal to agencies
263

5 U.S.C. App. 2 §§ 5(b)(2), (c); 41 C.F.R. § 102-3.75.
5 U.S.C. App. 2 § 9(c); 41 C.F.R. § 102-3.75.
265
41 C.F.R. § 102-3.60.
264

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themselves, being caused by ―gloss‖ agencies place on the statutory requirements. As a general
matter, the responses gathered tend to support the latter conclusion. Though GSA often points
out issues in proposed committee charters, and though agencies generally feel obliged to resolve
these issues notwithstanding the fact that GSA merely provides advice and does not formally
approve such charters, the data suggests that the amount of time required to resolve these issues
is relatively minimal in comparison to the amount of time required to comply with various selfimposed procedural burdens that certain agencies implement. First, many respondents suggested
that the member selection process can be excessively time consuming due to various internal
procedural requirements. In particular, federal agency respondents pointed to steps designed to
ensure balanced membership as a source of delay, given that finding potential members who
satisfy all of the various dimensions on which the agency wishes to achieve balance can be time
consuming. Second, several respondents noted that internal approval of committee formation
can become prolonged due to the requirement for multiple levels of review. Finally, some
respondents asserted that delays often arise from agency resource constraints, suggesting that
committee formation is often not a high priority and that much of the delay results from failure
of the relevant parties to complete the required steps in a timely fashion. For instance, one
agency suggested that the committee formation process generally takes 8–9 months but the
agency was able to form a committee in 3 weeks when it placed a very high priority on the
process.
Of course, experience will vary from agency to agency, and this report therefore does not
attempt to recommend any ―one-size-fits-all‖ solution to the delays in committee formation.
Rather, it attempts to provide suggestions for streamlining committee formation while
recognizing that many of the internal processes agencies have adopted can serve useful purposes.
First, agencies should assess every proposed advisory committee in light of its mission and tailor
the formation process accordingly. For instance, a committee dealing with water rationing in the
Southwest need not include members from locales outside of the affected area in the name of
―geographic balance.‖ A committee dealing with poverty relief programs should be
socioeconomically balanced, but a scientific peer review panel likely need not be balanced on
that dimension.
At the same time, agency balance plans can serve the important policy of ensuring that
committee members come from a variety of different backgrounds, regardless of whether FACA
formally requires balance on those dimensions. In this light, the report recommends that
agencies consider the following when forming advisory committees: factors relevant to the
committee‘s work (e.g., socioeconomic diversity on a poverty relief panel), factors that are
desirable but are not directly relevant to the committee‘s work, and the time and resources
available to the committee. The agency should always strive to achieve balance on the relevant
factors; on the other factors, the agency may also attempt to achieve balance but should consider
whether or not doing so is possible given its time and resource constraints. On relatively large
committees or those whose work is not particularly time sensitive, achieving an ideal
membership balance may be possible; on smaller committees or those under tight time
constraints, such an ideal balance may not be possible. In any event, courts review committee

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balance with a very high level of deference (if it is even reviewable at all),266 and agencies
therefore need not expend excessive effort in ensuring that committee membership is perfectly
balanced in every instance.
Agencies should also consider centralizing the approval process for committee formation
in a single office (such as the General Counsel‘s Office) or individual (such as the Committee
Management Officer) granted final authority to approve committee formation on the agency‘s
behalf.267 When agency representatives who indicated that their agencies utilize multiple levels
of approval were asked about the reason for doing so, the primary explanations were that
committees approved by the top brass tend to enjoy greater prestige and that requiring multiple
levels of review increases the likelihood that any potential problems will be caught and that the
committee meets the agency‘s policy aims. Such concerns are undoubtedly legitimate, but the
same ends could likely be accomplished by centralizing the committee review process in a single
office (such as the General Counsel‘s office) or official (such as the CMO) rather than instituting
a multiple level approval chain. Specifically, the agency could employ a ―hub and spokes‖
model, wherein each individual office reports its concerns to a central person or group, rather
than a multi-link chain terminating at the top of the agency. The agency head could periodically
convey his or her desired policies in the use of advisory committees to the central hub, which
would be responsible for ensuring that those policies were implemented. The central office
would also strive to meet the concerns of other agency offices with jurisdiction over committee
formation. Though the proposed model could still result in delays, given that all affected entities
may not expeditiously report to the central office, it would likely expedite the process somewhat
by eliminating the need for one level to sign off before proceeding to the next level.
As a related matter, federal agency survey respondents and workshop participants also
expressed some frustration with the process of convening committees that are required by statute.
Specifically, to the extent that Congress establishes a committee but fails to articulate its mission
in any detail, agencies often struggle with determining the appropriate balance of committee
members, with setting forth the committee‘s purpose and expected duration in its charter, and
with determining when the committee has completed its mission. Thus, when adopting
legislation to create an advisory committee, Congress should provide as much detail as possible
to ensure that the committee will function efficiently. Specifically, Congress should define the
committee‘s mission and objectives, set forth an approximate duration for the committee‘s work,
and provide an estimated cost for the committee‘s work if it intends the committee to operate
within a specific budget.268 To the extent that Congress intends a particular balance amongst the

266

See, e.g., Ctr. for Policy Analysis, 540 F.3d at 945–46 (finding a claim that an agency violated the balance
requirements nonjusticiable); Cargill, 173 F.3d at 334 (applying deference to the review of the balance
requirement).
267
For committees formed at the behest of individual agencies, the agency head must personally make the
determination of a need for a committee, 5 U.S.C. App. 2 § 9(a)(2), but he or she need not personally approve the
charter, the slate of members chosen for committee service, or other aspects of committee formation. These
mechanical aspects of the process could be delegated to a lower level office or official.
268
See 5 U.S.C. App. 2 § 9(c) (setting forth these requirements, amongst others, as the elements of the committee
charter).

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committee members, it should set forth that desired balance in the authorizing legislation.269
Congress should not generally exempt committees it creates from the two-year charter renewal
process270 unless if it explicitly sets forth the committee‘s mission and provides an estimated
timeline for the committee‘s work, such that statutory committees do not unnecessarily languish
once they have achieved their purposes.
Recommendation 3: Agencies should assess each committee that they propose to
establish to determine precisely what factors should influence committee membership and strive
to achieve balance on those factors in all instances. Agencies should also consider any other
balance factors they consider desirable as well as the resources they have available and attempt
to achieve balance on those factors as appropriate under the circumstances. In addition, agencies
should centralize the committee formation process in an individual or office and should strive to
eliminate any unnecessary levels of review.
Recommendation 4: Congress should, to the extent possible, set forth the mission,
estimated duration, budget, and preferred membership balance for all statutorily established
committees. It is particularly critical that Congress do so for committees that it exempts from the
two year renewal process established by FACA.
b.

The Advisory Committee Cap

As explored above, shortly after taking office, President Clinton issued Executive Order
12,838, which, amongst other things, required that agencies reduce the total number of
discretionary advisory committees they hosted by one-third.271 The following year, the Office of
Management and Budget issued Circular A-135, which essentially froze the number of
discretionary advisory committees agencies could host at the level set by the executive order, i.e.,
two-thirds the total number of discretionary committees in existence prior to the issuance of the
executive order.272 GSA currently administers this cap by maintaining an overall ―budget‖ of
approximately 530 discretionary committees that can be established by all federal agencies.273
At present, federal agencies collectively host 465 discretionary advisory committees.274
Agencies are not individually allocated a specific number of discretionary advisory committees
to host; so long as the collective total falls below the cap, no agency will be prohibited from
chartering a new committee.
269

See id. §§ 5(b)(2); 41 C.F.R. § 102-3.75 (FACA balance requirements).
5 U.S.C. App. 2 § 14(a)(1)(B) (statutory committees terminate after two years unless authorizing legislation
provides otherwise); 41 C.F.R. § 102-3.55(a)(1).
271
Exec. Order No. 12,838, § 3, 58 Fed. Reg. 8,207 (Feb. 10, 1993).
272
Office of Management & Budget, Circular No. A-135, 59 Fed. Reg. 53,856, 53,857 (Oct. 26, 1994) (―The Office
of Management and Budget shall . . . set advisory committee ceilings for each agency within the government-wide
advisory committee reduction goal established by the Executive order.‖).
273
GSA’s Actions to Implement the Federal Advisory Committee Act, 105th Cong. (1997) (statement of G. Martin
Wagner, Associate Administrator, Office of Governmentwide Policy, General Services Administration).
274
U.S. General Services Administration, Types of Federal Advisory Committees,
http://www.gsa.gov/portal/content/248961 (last visited on August 23, 2011) (listing 266 agency authorized
committees and 199 statutorily authorized committees for a total of 465 discretionary committees).
270

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Notwithstanding the fact that federal agencies have not exceeded the overall cap on
discretionary advisory committees and that the number of such committees has remained
relatively constant over the years, agencies may be somewhat reluctant to form additional
committees, even if such committees would be beneficial, for fear of contributing to an increase
in aggregate committee usage that would ultimately trigger the cap. Several survey respondents
and workshop participants expressed support for repealing the cap, and none defended it.275
Some agency respondents noted that agency officials considering formation of a committee are
not always aware that they are not in imminent danger of exceeding the cap and therefore
attempt to minimize the number of committees they form. Furthermore, the cap reflects an
inappropriate bias against advisory committees, implying that any committees beyond an
arbitrary number are necessarily inefficient. Several workshop participants asserted that, in fact,
advisory committees are an exceptional bargain for the government, leading to advice worth far
more than the relatively minimal expenses associated with committee meetings. Though
ensuring that committees do not proliferate unnecessarily is an appropriate goal of the statute,276
and though the cap absolutely ensures that committees will not proliferate beyond a set level, the
Act already contains elaborate provisions designed to weed out committees that have outlived
their useful lifespan, including the re-chartering requirement and GSA‘s annual review of
existing committees.277 Thus, the marginal value of imposing an arbitrary cap on the total
number of discretionary committees is small to nonexistent.
Recommendation 5: The President and Office of Management and Budget should rescind
Executive Order 12,838 and Circular A-135, respectively, thereby eliminating any cap on the
number of advisory committees.
c.

Special Considerations for Negotiated Rulemaking Committees

During the course of the Conference‘s data gathering effort, a number of individuals,
including both government employees and members of the private sector, suggested that the
Conference may wish to consider relaxing FACA‘s applicability to committees convened to
conduct negotiated rulemaking or even exempting such committees from FACA‘s requirements
entirely. Negotiated Rulemaking is a process whereby the government convenes the relevant
stakeholders for purposes of negotiating the text of a proposed rule, prior to formally initiating
the rulemaking process.278 The Administrative Conference proposed the concept of negotiated
275

See also Coglianese, supra note 19, at 954 (―At a minimum, the new administration should eliminate the formal
and informal restrictions on the allowable number of discretionary advisory committees that have followed from
Executive Order 12,838.‖).
276
5 U.S.C. App. 2 § 2(b)(2) (―[N]ew advisory committees should be established only when they are determined to
be essential and their number should be kept to the minimum necessary.‖).
277
Id. §§ 7(b), 9(c); 41 C.F.R. §§ 102-3.55–85.
278
Pritzker & Dalton, supra note 220, at 1 (―The essence of the idea is that in certain situations it is possible to bring
together representatives of the agency and the various interest groups to negotiate the text of a proposed rule. The
negotiators try to reach a consensus through a process of evaluating their own priorities and making tradeoffs to
achieve an acceptable outcome on the issues of greatest importance to them.‖).

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rulemaking in the early 1980s,279 and Congress explicitly authorized the process in the
Negotiated Rulemaking Act of 1990.280 Negotiated rulemaking committees are generally subject
to the full rigors of FACA, absent a specific exemption.281 In some specific instances, Congress
has required use of negotiated rulemaking by an agency and has given a blanket exclusion from
FACA.282 More generally, the negotiated Rulemaking Act provides that in establishing and
administering a negotiated rulemaking committee under the Act, ―the agency will comply with
the Federal Advisory Committee Act . . . except as otherwise provided in [the Negotiated
Rulemaking Act].‖283 The requirements of FACA that are modified by the Negotiated
Rulemaking Act relate to who chairs the meetings, the extent to which committee members‘
expenses may be paid, provisions for terminating the committee, and an additional required
public notice announcing the agency‘s intent to establish the committee and inviting persons who
believe their interests are not adequately represented to apply for membership.284 An additional
exclusion from FACA exists under the Unfunded Mandates Reform Act of 1995, in the special
situation where all members are representatives of state, local tribal and federal entities.285
The survey respondents, workshop participants, and agency interviewees who identified
issues related to negotiated rulemaking suggested that the Conference might consider whether
negotiated rulemaking committees should be subject to FACA or, alternatively, whether FACA
should apply differently to negotiated rulemaking committees. Based on these research findings
and the relevant literature, this report recommends that, at the very least, special considerations
should apply to negotiated rulemaking committees, and such committees should perhaps be
exempt from FACA entirely. Unfortunately, Conference staff was not able to contact all relevant
stakeholders prior to circulating this report, and it is still waiting to hear from a number of
experts in the negotiated rulemaking process. In this light, rather than specifically endorsing one
set of reforms, the report simply puts forth two potential recommendations based on the research
conducted to date. The Conference staff will continue to conduct research and update the report
accordingly. Committee members are invited to offer their views on this topic, suggest any
potential avenues for additional research, and endorse one of the proposed reforms or instead
propose some third set of reforms.
The first potential set of reforms would involve exempting negotiated rulemaking
committees from FACA entirely. As Appendix A indicates, the number of committees dedicated
to negotiated rulemaking gradually increased over the course of the 1990s, reaching a peak of 14
in 1999, but their use has since atrophied, with generally only 1–4 committees‘ being dedicated
to such activities in each of the last several years. One administrative law scholar has suggested
279

Administrative Conference of the United States, Recommendation 82-4, Procedures for Negotiating Proposed
Regulations, 47 Fed. Reg. 30,701 (July 15, 1982); Administrative Conference of the United States,
Recommendation 85-5, Procedures for Negotiating Proposed Regulations, 50 Fed. Reg. 52,893 (Dec. 27, 1985).
280
Pub. L. No. 101-648, 104 Stat. 4969 (1990) (codified at 5 U.S.C. § 561 et seq.).
281
5 U.S.C. § 562(7).
282
See, e.g., Higher Education Amendments of 1992, PL 102-325, § 497(c), 106 Stat. 448 (1992).
283
5 U.S.C. § 565(a)(1).
284
Administrative Conference of the United States, Building Consensus in Agency Rulemaking: Implementing the
Negotiated Rulemaking Act 16 (Oct. 1995) (report to Congress).
285
2 U.S.C. § 1534(b).

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that the rigors of FACA have at least partly contributed to agencies‘ general disuse of negotiated
rulemaking,286 and several survey respondents, workshop participants, and agency interviewees,
both from the private and public sectors, echoed this sentiment. In some instances, Congress has
affirmatively exempted agencies‘ use of negotiated rulemaking from FACA.287 Furthermore, the
original Administrative Conference recommendation on negotiated rulemaking,
Recommendation 82-4, provided that ―[t]he legislation [establishing negotiated rulemaking]
should provide substantial flexibility for agencies to adapt negotiation techniques to the
circumstances of individual proceedings, as contemplated in this recommendation, free of the
restrictions of the Federal Advisory Committee Act and any ex parte limitations.‖288 The
Negotiated Rulemaking Act states that ―[n]othing in this [Act] should be construed as an attempt
to limit innovation and experimentation with the negotiated rulemaking process or with other
innovating rulemaking procedures otherwise authorized by law.‖289
Of course, exempting negotiated rulemaking committees from FACA wholesale would
potentially undermine the statute‘s efforts to promote transparency. Nevertheless, the Negotiated
Rulemaking Act could be amended to incorporate those aspects of FACA that promote
transparency without incorporating those aspects that might unnecessarily prolong the process
without producing substantial countervailing benefits. For instance, the statistics cited in
Appendix A suggest that negotiated rulemaking committees have not proliferated excessively,
and the Obama Administration has specifically encouraged increased collaboration amongst the
public and private sectors,290 so the chartering requirements, which are designed largely to quell
the proliferation of unnecessary committees, likely need not apply to negotiated rulemaking
committees. The public notice and open meeting requirements, by contrast, should perhaps
continue to apply to such meetings, particularly given the concerns about stakeholders‘
inappropriately influencing the government in private meetings that partly motivated FACA‘s
enactment and that would seem to be quite salient in negotiated rulemakings.291 Accordingly,
the Conference could recommend that negotiated rulemaking committees be exempt from FACA
but that the Negotiated Rulemaking Act be amended to require that such committees hold public
meetings (though meetings of sub-committees would, as under the present FACA regime, be
exempt, for the reasons explored below) and announce those meetings in the Federal Register.
Recommendation 6- Alternative A: Congress should amend the Negotiated Rulemaking
Act (5 U.S.C. § 561 et seq.) to provide that committees engaged in negotiated rulemaking are
286

Lubbers, supra note 219, at 1001 (2008) (―A fourth impediment to using [negotiated rulemaking] is the
applicability of FACA to the process.‖).
287
See, e.g., 20 U.S.C. § 6571(b)(4) (exempting the Department of Education from the strictures of FACA for a
statutorily required negotiated rulemaking); Pub. L. No. 111-239, § 2(b)(2)–(3), 124 Stat. 2501 (2010) (―Any
negotiated rulemaking committee established by the Secretary of Agriculture pursuant to [the section authorizing the
negotiated rulemaking committee] shall not be subject to the Federal Advisory Committee Act . . . .‖).
288
Administrative Conference of the United States, Recommendation 82-4, Procedures for Negotiating Proposed
Regulations, 47 Fed. Reg. 30,701 (July 15, 1982).
289
5 U.S.C. § 561.
290
Transparency & Open Government, 74 Fed. Reg. 4685, 4685 (Jan. 26, 2009) (memorandum dated January 21,
2009).
291
Croley & Funk, supra note 4, at 460.

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exempt from FACA. Congress should also amend the Negotiated Rulemaking Act to provide
that full meetings of such committees are open to the public (though meetings of sub-groups of
committee members, or ―caucuses,‖ can be conducted privately) and that such committees must
provide advance notice of their meetings.
As an alternative, rather than exempting negotiated rulemaking committees from FACA,
Congress could provide certain exceptions for such committees, and the committees themselves
could undertake certain ―best practices‖ that would simplify their compliance with FACA.
Specifically, to the extent Congress repeals the subcommittee exception, as recommended in
Section C.1.a, it should create a statutory carve out for negotiated rulemaking committees‘ use of
―caucuses,‖ which consist of smaller sub-groups of committee members, to discuss negotiating
positions and other issues and report back to the full committee, often during the course of a
formal meeting. Agency representatives surveyed by Conference staff indicated that the ability
to have closed caucuses is critical in allowing parties to draft or determine negotiating positions,
and this process would be greatly undermined by requiring such caucus discussions to be noticed
in advance and opened for public participation.292 This process has not been subject to abuse
inasmuch as the issues discussed in caucus would normally need to be reported back to the full
committee for plenary consideration. Since such caucus discussions often occur during the
course of committee meetings, however, they would not necessarily qualify for the proposed
statutory preparatory work exception.
In addition, one representative at an agency that utilizes negotiated rulemaking indicated
that the procedural burdens created by the FACA chartering requirement can be mitigated by use
of standing committees. Specifically, the agency creates a committee or set of committees
dedicated solely to conducting negotiated rulemakings and then continuously renews the
agency‘s charter for that purpose, rather than chartering a new committee every time the agency
wishes to undertake a negotiated rulemaking. Of course, agencies that wish to make use of this
procedure would likely need to conduct a relatively large number of negotiated rulemakings.
The agency must justify the necessity of each of its committees every two years as part of the
formal charter renewal process,293 and the agency may struggle to justify a committee if it does
not intend to undertake any negotiated rulemakings in the immediate future. Nevertheless, if an
agency plans to make relatively extensive use of negotiated rulemaking, it can save considerable
time by use of a standing committee rather than forming a new committee every time that it
wishes to conduct a negotiated rulemaking.294
292

See also Administrative Conference of the United States, Recommendations 82-4, Procedure for Negotiating
Proposed Regulations, 47 Fed. Reg. 30,701 (1982) (―The negotiating group should be authorized to close its
meeting to the public only when necessary to protect confidential data or when, in the judgment of the participants,
the likelihood of achieving consensus would be significantly enhanced.‖); Pritzker & Dalton, supra note 220, at 72
(―The Administrative Conference has suggested the usefulness of statutory language that would explicitly authorize
private meetings of subgroups or caucuses of a negotiated rulemaking committee for the purpose of determining
negotiating positions, alternative proposals, or other matters for consideration by the full committee in open
session.‖).
293
5 U.S.C. App. 2 § 14(a)(1); 41 C.F.R. §§ 102.3-65–75.
294
Of course, as indicated in Section C.2.a, the major source of delay in committee formation often arises from
agencies‘ internal processes rather than the formal chartering requirement. As such, recommendation 3 applies fully

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Recommendation 6- Alternative B: Agencies should, as appropriate, consider the use of
standing committees to undertake all negotiated rulemaking activities and simply renew the
charter of such committees rather than undertaking the chartering process anew for each
proposed negotiated rulemaking committee. Congress should amend 5 U.S.C. § 565(a)(1)
(Negotiated Rulemaking Act) to provide that negotiated rulemaking caucuses (i.e., informal
discussions among members of a committee subgroup outside of or during a break in the
committee‘s formal meeting) may be held in private notwithstanding the requirements of FACA.
3.

Enhancing Transparency and Objectivity in Federal Advisory Committees
a.

Promoting Committee Transparency

As a general matter, FACA effectively promotes transparency in ensuring that committee
meetings are open to public attendance and public participation in creating an opportunity for
citizens to submit information to advisory committee for consideration by the membership.
Nevertheless, committees can undertake a variety of additional, relatively straightforward steps
that would greatly advance the policies of transparency and public participation without
imposing major compliance burdens or extensive costs on agencies. This section explores a
series of ―best practices‖ that agencies should generally pursue to ensure that their committees
operate openly and transparently. The report does not, however, recommend that FACA or its
implementing regulations be revised so as to require agencies to undertake such ―best practices,‖
primarily because the costs of doing so might outweigh the benefits in certain instances.
Nonetheless, in all cases, agencies should consider whether to implement these practices and
should generally choose to do so unless if compelling circumstances advise in favor of
dispensing with them.
i.

Posting Committee Documents Online

As explained in Section 3, FACA requires only that committee documents that are
prepared for or by the full committee be made available for public inspection and copying on
request.295 Thus, committees are under no formal obligation to publish their documents or
otherwise take affirmative steps to ensure that the public may easily access such documents.
Given FACA‘s vintage, requiring a specific public request to trigger the document availability
provision made logical sense in the early days of the statutory regime: in 1972, a committee
could not widely disseminate its documents without incurring a considerable publication
expense, and requiring the committee to do so would likely have been cost prohibitive for most
agencies. In the wake of the ―Internet revolution,‖ however, the cost of circulating committee

to negotiated rulemaking committees. For instance, while a negotiated rulemaking committee should likely contain
a balance of various stakeholders, the committee should only attempt to obtain balance on other factors to the extent
it is able to do so under existing time and resource constraints.
295
5 U.S.C. App. 2 § 10(b); 41 C.F.R. § 102-3.170.

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documents has diminished significantly. For instance, a committee could easily post important
documents on its website for viewing by interested members of the public.296
In this light, commentators both from within and outside of the government have
recommended that committees post all relevant documents associated with their work on a
publicly available committee website.297 Survey respondents and workshop participants
generally echoed this sentiment, though several respondents from federal agencies suggested that
the types of documents to be posted should be well defined, lest the posting process become
exceedingly burdensome or the website contain a deluge of relatively trivial items that would
conceal more important documents.
Accordingly, each committee should create a website, accessible from its parent agency‘s
website and GSA‘s ―eFACA‖ site.298 Documents that may be of interest to the public and that
committee members should consider posting on their web pages include, inter alia, Federal
Register notices of committee meetings, reports and other formal documents considered by the
committee, committee recommendations, biographies of committee members (including their
professional affiliations and other information), meeting agendas, meeting minutes, public
comments received by the committee, and transcripts or webcasts of previous meetings. Other
documents, such as intermediate versions of reports, routine correspondence received by the
committee, or other relatively peripheral documents are of lesser interest to the public and likely
should not be posted, lest the committee webpage become unwieldy and conceal relevant
information amidst a deluge of redundant or immaterial information.
As a general matter, agencies should attempt to post documents relevant to a scheduled
committee meeting, such as reports to be considered or meeting agendas, at least 15 days in
advance, such that they are available when the Federal Register notice announcing the meeting
appears.299 Papers or video files that chronicle the discussions occurring at committee meetings,
such as transcripts, webcasts, and meeting minutes, should be made available as soon as
296

For background purposes, please see the webpage for this project on the Administrative Conference‘s website:
http://www.acus.gov/research/the-conference-current-projects/faca-in-the-21st-century/. Though the Administrative
Conference‘s various ―committees‖ are technically subcommittees under FACA, since they report to a parent
committee (the Assembly of the Administrative Conference), the Conference voluntarily treats its subcommittees as
full committees for purposes of the FACA requirements other than chartering. As you will see, the webpage for this
project includes relevant documents such as reports, committee memoranda, draft recommendations, meeting
minutes, and public comments.
297
See, e.g., Hearing on the Federal Advisory Committee Act (FACA) of 2008, 110th Cong. 44 (2008) (statement of
Robert Flaak) (―GSA recommends that agencies make maximum use of the Internet, and display relevant agency
and committee documents and products on agency websites, as appropriate, that would serve to be informative and
contemporaneously available to all interested parties and the public at large.‖); Project on Government Oversight et
al., Additional Comments on ACUS Review of the Federal Advisory Committee Act in the 21 st Century 2 (April 15,
2011) (―We‘d like to see on the Advisory Committee‘s websites, perhaps hosted through/by GSA‘s management
secretariat, timely information about the committee, including notices, agendas, meeting transcripts, forms, webcast
meetings and archived video recordings of proceedings, documents, names, and brief biographies of its members.‖).
298
GSA‘s ―eFACA‖ site is available at http://www.gsa.gov/portal/content/248953.
299
41 C.F.R. § 102-3.150(a).

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practicable following the committee meeting to which they relate. Of course, special
circumstances may interfere with a committee‘s ability to post such materials expeditiously. For
instance, a committee may need the time between the promulgation of the Federal Register
notice and the scheduled meeting time to finalize a report for consideration at a meeting. In this
light, this report does not recommend that FACA or its implementing regulations be amended to
require the posting of such materials within any specific period of time. Rather, committees
should simply be mindful of public interest in their work and should attempt to post all
documents in a sufficiently timely manner that they will be useful to interested members of the
public.
Recommendation 7: Agencies should post all documents relevant to a committee‘s
substantive work on an easily accessible online forum, such as the committee‘s web page.
Agencies should strive to post all documents that are relevant to upcoming meetings at least 15
days in advance and all documents that chronicle the events of committee meetings as quickly
after the meetings as possible.
ii.

Webcasting Committee Meetings

FACA does not contain any provision relevant to webcasting committee meetings, which
is unsurprising in light of its enactment prior to the onset of the ―digital age.‖ The implementing
regulations, the most recent iteration of which were enacted following the rise of the Internet,
clarify that a committee is permitted to webcast its meetings or even hold virtual meetings over
the Internet,300 but they do not require committees to provide such online access to their
deliberations. H.R. 1144 would alter this landscape by specifically requiring that committees
provide either a transcript or an audio or video recording of their meetings.301
Webcasting committee meetings can significantly enhance transparency by vastly
expanding the number of members of the public who can practicably view committee meetings.
Attendance at traditional meetings is, for all intents and purposes, effectively limited to those
who live within a few miles of the meeting site, whereas any individual throughout the nation
with web access can view webcast meetings. Of course, to the extent that the committee‘s
guidelines permit members of the public to ―speak or otherwise address the advisory
committee,‖302 persons viewing the meeting by webcast will be at a disadvantage vis-à-vis those
attending the meeting in person, who can actually comment at the meeting itself. Nevertheless,
remote participants can always submit their thoughts to the committee in writing.303
Though workshop participants and survey respondents mostly lauded the idea of
webcasting committee meetings, some respondents from federal agencies raised concerns about
300

Id. § 102-3.140(e).
H.R. 1144, 112th Cong. (2011) (―[T]he head of the agency to which the advisory committee reports shall make
publicly available . . . . [t]ranscripts or audio or video recordings of all meetings of the committee.‖); see also H.R.
1320, 111th Cong. (2009) (same).
302
41 C.F.R. § 102-3.140(d).
303
Id. § 102-3.140(c).
301

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the cost of doing so. Indeed, unlike posting committee documents, which is relatively costless to
the agency so long as it already has a committee website, webcasting committee meetings can
create considerable expenses, particularly if the agency utilizes a relatively high-quality video
provider. In light of these costs, the report recommends only that agencies consider whether the
benefits of providing expanded access through webcasting meetings outweigh the costs of doing
so. As a general matter, agencies that conduct a large number of committee meetings are more
likely to be able to justify the upfront cost associated with purchasing webconferencing
technology. The agency should also assess the likely level of public interest in its work. For
instance, committees that deal with controversial issues are likely to garner much greater public
attention than committees that deal with relatively obscure, technical matters, and the benefits of
webconferencing committee meetings may therefore be significantly greater for agencies that
host a relatively large number of committees of the former type.
In considering the costs and benefits of such technology, agencies should also take into
account the potential savings that such technologies can create. For instance, if the committee
uses the webconferencing technology not only to broadcast in-person meetings but also to
conduct certain meetings entirely by webconference, it can capture significant pecuniary savings
by eliminating travel expenses. In addition, the agency could save considerable money by
conducting certain meetings via an online web forum, as recommended in Section C.1.b, which
would perhaps free funds to webcast in-person meetings. In short, though exploiting new
technologies can create expenses for agencies, agencies also can capture significant savings by
deploying such technologies, and they should consider such overall costs and benefits in
deciding which technological investments will optimally promote efficient and transparent
committee meetings.
Recommendation 8: Agencies should consider providing live webcasts of committee
meetings and/or posting recorded broadcasts following such meetings. In determining whether
to invest in webcasting technology, agencies should consider the likely level of public interest in
their committees‘ work and the net costs and benefits of adopting such technologies. Agencies
should also take into account the cost savings that such technologies can create when deciding
whether to invest therein.
iii.

Soliciting Public Input on Potential Committee Members

FACA‘s primary provision relating to the composition of advisory committees is its
requirement that such committees ―be fairly balanced in terms of the points of view represented
and the functions to be performed.‖304 As explored in Section A.3.c, agencies enjoy a great deal
of discretion in ensuring that committees are proper balanced.305 So long as they satisfy these
open-ended balance requirements, agencies are essentially free to choose whomever they wish to
304

5 U.S.C. App. 2 §§ 5(b)(2), 5(c).
Indeed, agencies‘ authority in this regard is perhaps carte blanche, given that at least one Court of Appeals has
held that, absent additional guidance from another statute on the required committee composition, challenges to
committee action based on the balance requirement are non-justiciable. Ctr. for Policy Analysis, 540 F.3d at 945–
46.
305

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serve on advisory committees. Nevertheless, public opinion and perceived legitimacy can act as
powerful checks on the work of advisory committees. First, if an agency staffs a committee with
sub-stellar experts, the ultimate recipients of the committee‘s work and, in high profile
committees, the general public will be less likely to accept the committee‘s conclusions. Second,
as a consequence of the open-ended nature of the balance inquiry, it is unclear how well
represented a particular viewpoint must be before it is entitled to representation on a ―balanced‖
committee.306 Thus, if a particular ―scientific‖ viewpoint is extremely popular in the court of
public opinion but is almost uniformly rejected in the scientific literature, an agency may face
pressure to include adherents of that viewpoint on its committees, even if it accords the
viewpoint influence disproportionate to its weight in the scientific community by so doing.307
One potential means of ensuring that the selection of committee members takes some
account of public sentiment is soliciting public input on possible candidates for advisory
committees. Specifically, prior to forming a committee, an agency could issue a Federal
Register notice and/or an announcement on its website stating that it intends to form a committee
to address a particular issue and requesting public input on experts with relevant training and
experience. Once the agency has selected a preliminary slate of members, it could also seek
public comment on such nominees to determine if the candidates are sufficiently qualified, have
conflicts of interest, or are otherwise subject to some bias that would compromise their
objectivity. This proposal has received some traction both in the FACA literature and in
proposed FACA reform legislation. The Bipartisan Policy Center, Project on Government
Oversight, Union of Concerned Scientists, and OMB Watch have endorsed these processes for
soliciting the public‘s views on advisory committee candidates.308 H.R. 1144 includes
provisions requiring agencies to announce the formation of committees in the Federal Register

306

See, e.g., GAO 2004 Report, supra note 146, at 40 (―Additional information about the candidates‘ viewpoints and
potential biases would better ensure that the committees are, and are perceived as being, fairly balanced in terms of
points of view—and that no one interest or viewpoint dominates.‖); Bipartisan Policy Center, supra note 108, at 18,
24 (asserting that the scientific committees must achieve ―balance among the applicable scientific disciplines‖ and,
despite acknowledging that ―[a]gencies should not shy away from including scientists on a panel who are considered
‗outliers‘ on the question(s) under consideration,‖ recommending that ―the committee as a whole represents the
mainstream‖).
307
For instance, if a committee is to consist of three members and is to include one ―skeptic‖ of a particular
scientific consensus, the ―skeptical‖ viewpoint enjoys a representation of 33.3% on the committee, even though it
might only be accepted by a much smaller percentage of relevant scientists.
308
Bipartisan Policy Center, supra note 108, at 18 (―Options for achieving greater transparency include: seeking
recommendations for members on the Web and/or through contacts with relevant groups; publicly announcing on
the Web the criteria for membership (such as the range of scientific disciplines that need to be included); and
announcing proposed members on the Web . . . to solicit public comment.‖); Project on Government Oversight,
supra note 297, at 2 (recommending that agencies forming advisory committees ―solicit suggestions of nominees
from the public as a request for comments in the Federal Register,‖ ―provide a mechanism for interested persons to
comment [on potential committee nominees] through the agency‘s official website,‖ and offer an opportunity for
members of the public ―to submit . . . comments after an agency posts a list of the names and bios of advisory
committee nominees under consideration‖).

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and on the agency website, to solicit public input on potential committee members, and to
consider such public input when staffing the committee.309
Several workshop participants and survey respondents expressed support for the idea of
soliciting public nominations for potential committee members, noting that it renders committees
more transparent and promotes public involvement in committees‘ work. Other survey
respondents, however, expressed concern that members of the public could become alienated if
the committee does not ultimately include their preferred nominees, even if appointment of such
individuals would compromise the balance of the committee. To provide an oversimplified
example, imagine that 1% of scientists advocate a particular scientific theory but that 50% of the
public subscribes to that viewpoint. Also imagine that an agency intends to appoint a ten
member committee to consider an issue implicating that theory. Presumably, roughly 50% of the
recommendations for committee members will nominate persons from the 1% of the scientific
community that supports that viewpoint, but selecting five (50%) or even one (10%) committee
member from that pool of nominees would accord that viewpoint a representation wildly
disproportionate to its acceptance in the scientific community. If the committee declines to
appoint adherents of that viewpoint, however, it will likely face public backlash.
In light of the potential drawbacks associated with soliciting public nominees for
committee members, this report not only declines to recommend that agencies uniformly adopt
that practice but also specifically advises against agencies‘ doing so in every instance. Rather,
the agency should identify those instances in which soliciting public input on committee
nominees would be beneficial and should do so only in those cases. Factors that would favor a
committee‘s soliciting such input include: (a) lack of political controversy surrounding the
subject matter for consideration by the committee; (b) likelihood that the leading experts in the
field may not be immediately apparent to the agency; and (c) the comprehensibility of the subject
matter of the committee‘s work. In other cases, an agency may instead wish to solicit committee
nominations from a smaller subset of the general public. For instance, in the hypothetical
offered in the previous paragraph, the committee might seek recommendations from the
scientific community rather than broadly soliciting nominations from the general public. In still
other cases, the urgency of a proposed committee‘s mission may foreclose the agency‘s seeking
any input whatsoever on possible nominees. Thus, this report advises against a ―one-size-fitsall‖ approach and instead urges agencies to identify the instances in which outside input on
potential committee nominees would be beneficial and seek such input as appropriate.
Workshop participants and survey respondents generally praised the idea of seeking
public input after a proposed slate of committee members has been selected. Indeed, many
participants suggested that doing so would allow the public to comment on potential sources of
committee member bias or conflicts of interest. Agencies should generally not post such
comments so as to avoid embarrassing committee members.310 Agencies also should be aware of
309

H.R. 1144, 112th Cong. § 101(c) (2011).
Of course, were someone to request the public comments submitted on the proposed slate of committee members
under FOIA, the agency would likely be required to disclose such information. Thus, to the extent an agency adopts
this practice, it likely should inform its potential committee members that any comments received are not necessarily
310

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the fact that committee members might suffer embarrassment if they are included in the original
slate but are not ultimately chosen, which would imply either that they were unqualified or were
subject to bias or a conflict of interest. Agencies could likely mitigate this issue somewhat by
starting with a slate of potential committee members that is significantly larger than the number
of available slots on the committee, thereby diminishing the stigma of not being selected, but
doing so may not be practicable in all cases, particularly when the agency faces tight time
constraints. In this light, the report does not recommend that committees undertake this process
in every instance. Rather, the committee should consider the amount of time available, the risk
of embarrassing potential committee members, and the likelihood of ferreting out sources of bias
or conflicts of interest and then determine whether or not to solicit public comments on proposed
members.
Recommendation 9: Agencies should consider announcing proposed committees in
advance in the Federal Register and on the agencies‘ websites and, as appropriate, soliciting
public input concerning potential committee members. Such input is particularly likely to be
valuable when the committee‘s work is relatively uncontroversial and comprehensible and when
the agency may benefit from the public‘s insight in finding qualified committee members. In
cases where general public input is deemed inappropriate, the agency may still wish to solicit
input from experts with experience in the subject matter of the committee‘s assignment or from
groups particularly affected by the committee‘s work. Agencies should also consider publicly
announcing the preliminary slate of committee members selected prior to finalizing the group
and accepting confidential public input on potential conflicts of interest, bias, or other matters
relevant to member selection.
b.

Committee Member Conflict of Interest Standards

As explored in Section A.3.d, advisory committee members are currently subject to a
bifurcated ethics regime: individuals chosen to provide expert advice are classified as SGEs and
are subject to a less stringent version of the ethics rules applicable to federal employees whereas
individuals chosen to represent a specific group, who are denominated as ―representatives,‖ are
not subject to ethics standards. As a general matter, survey respondents and workshop
participants expressed satisfaction with the existing ethics regime. Nevertheless, a handful of
survey respondents and workshop participants expressed dissatisfaction with the existing system,
with some arguing that it is overly burdensome and others contending that it is insufficiently
stringent. Notwithstanding the wide array of survey responses, a few relatively uncontroversial
propositions may be gleaned from the empirical research conducted and from past studies of the
conflict of interest standards applicable to advisory committees:
(1) Federal agencies generally enjoy discretion in determining whether to classify
committee members as SGEs or representatives,311 and that discretion has occasionally been
confidential and might be disclosed in the event of a FOIA request, but the agency should not generally post such
comments or otherwise share them publicly absent any such request.
311
Glynn memorandum, supra note 154, at 5 (―While Congress may sometimes specify in legislation the status of
members serving on an advisory committee, it may not always do so or do so clearly. Where a committee‘s

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subject to abuse, with some agencies classifying essentially all committee members as
―representatives‖ so as to avoid the strictures of the ethics laws.312 Though a ―representative‖
should generally represent a specific organization or interest group,313 agencies have
occasionally classed committee members who ―represent‖ a particular field or discipline as
―representatives.‖314 This, of course, effectively obliterates any distinction between SGEs, who
generally ―are hired for their expertise and skills,‖315 and representatives: the difference between
an expert in toxicology and a ―representative‖ of the field of toxicology is fine to nonexistent.
(2) Several survey respondents and workshop participants suggested that specific types of
committee members, such as those serving on peer review, grant award, or product approval
panels, should be subject to relatively stringent ethics requirements, whereas other committee
members, such as those serving on committees dealing with issues of general policymaking on
which impartiality is less critical, need not be subject to extensive ethics standards. The FACA
literature generally reinforces this distinction, contending that ethics standards are particularly
appropriate when committee members are expected to provide neutral advice, especially
concerning a technical matter, and are significantly less important in other contexts.316
(3) The federal ethics laws authorize committees to grant waivers to SGEs with conflicts
of interest when the government determines that the conflict is insufficient to affect the proposed
member‘s integrity or that the need for the proposed member‘s services outweighs the risk of a
conflict.317 Though a copy of the waiver must be made available to members of the public upon
request,318 the agency need not provide public notice when it grants such a waiver.319 Several
workshop participants criticized this lack of a requirement for public disclosure of waivers,
stating that it leads to ―undisclosed conflicts‖ in committee members.320
As a theoretical matter, the bifurcated analysis adopted in the existing ethics regime is
appropriate: certain members are expected to provide neutral advice and should be subject to
enabling authority does not contain any language sufficiently identifying a member‘s status or that language is itself
ambiguous, agency officials must determine the status of members serving on a committee.‖).
312
GAO 2004 Report, supra note 146, at 5; see also GAO 2008 Report, supra note 146, at 7.
313
See Walter Memorandum, supra note 153, at 3–5; Glynn Memorandum, supra note 154, at 3, 5–9.
314
GAO 2004 Report, supra note 146, at 23 (―We found that Energy, Interior, and USDA appoint some members to
their committees on the basis that they represent various scientific or technical fields, such as biology or
toxicology.‖).
315
Id. at 11.
316
See, e.g., Bipartisan Policy Center, supra note 108, at 17 (―All non-government members of scientific advisory
committees should be appointed as Special Government Employees . . . .‖); James W. Conrad, Jr., Federal
Approaches to Defining & Managing Conflict of Interest & Bias as They Bear on the Use of Science in Public
Policy 13 (Mar. 18, 2009) (noting that classifying committee members as SGEs is particularly critical in the
scientific context).
317
18 U.S.C. §§ 208(b)(1), (3); 5 C.F.R. §§ 2640.301–02.
318
5 C.F.R. § 2640.304.
319
Hearing on the Federal Advisory Committee Act (FACA) of 2008, 110th Cong. 62 (2008) (testimony of Professor
Sidney A. Shapiro).
320
See also id.

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ethics standards321 whereas other members are essentially expected to provide biased or
conflicted advice and need not be subject to such standards.322 The problems identified in the
survey and workshop, however, indicate that the existing scheme does not always result in
appropriate classification of members into categories. In analyzing those responses and the
relevant literature, it appears that a major source of confusion is the use of the term
―representative‖ to define the class of persons not subject to ethics standards. First, committees
have abused their discretion in classifying members by reading the term ―representative‖ so
broadly as to apply to any member that ―represents‖ any discipline or concept (and thereby
essentially eliminating the need to classify any member as an SGE). Second, individuals who
represent specific organizations or institutions arguably do not constitute the entire universe of
potential members a committee may wish to exempt from the ethics requirements applicable to
SGEs.
In this light, this report recommends a slightly revamped ethics regime that does not rely
on the term ―representative.‖ Instead, it classifies committee members into two distinct,
mutually exclusive categories that are arbitrarily denominated ―Type I‖ and ―Type II.‖ The
Types are defined as follows:
Type I members include the following:
(1) Individuals chosen to represent a particular organization or interest group—This
category would include all persons who were appropriately classified as ―representatives‖ in the
prior scheme.
(2) Individuals subject to known biases and/or conflicts of interest whose interested
advice is nonetheless useful to the agency—Certain workshop participants indicated that the
process of obtaining waivers for existing conflicts of interest is relatively difficult, with agencies
seldom granting such waivers. In cases wherein an agency wishes to obtain advice from a party
with a known conflict of interest or source of bias but cannot expeditiously analyze and waive
the potential conflicts or protect against the potential sources of bias, it might instead simply
wish to appoint the member without subjecting him or her to ethics requirements, yet such
persons may not always qualify as ―representatives.‖ For instance, were the Department of
Treasury to seek advice on bailing out ailing automakers, it may seek the advice of Wall Street
executives, given their expertise in financial markets, while knowing full well that the advice
sought is probably subject to conflicts of interest insofar as the executives‘ general livelihood
and stock portfolios are likely to be significantly impacted by the fate of the automakers. It is
difficult to classify such persons as ―representatives‖ since they are not necessarily representing
any specific group or interest (unless if the interest they represent is taken to be the business
community generally), and it would be cumbersome to appoint them as SGEs and then waive all
of their various conflicts, which might deter their desire to serve. In the proposed scheme, such
321

A separate issue, of course, is whether the panoply of ethics requirements that apply to such members is
appropriate. Though a few survey respondents and workshop participants contended that the ethics standards were
overly stringent, the vast majority of such persons indicated that the ethics standards currently applicable to SGEs
are appropriate.
322
GAO 2004 Report, supra note 146, at 13.

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persons could simply be appointed as Type I members, and the agency and general public would
know to consider any advice provided with appropriate reservations.
(3) Individuals chosen to offer advice on a matter of policy wherein impartiality is neither
expected nor necessary— Several workshop participants suggested that unconflicted, unbiased
advice is less significant on certain matters wherein the agency may expect to receive slanted
advice, such as in a matter concerning a general policy question (e.g., an issue related to tax or
education policy), opposed to advice wherein neutrality is critical (e.g., a grant review or product
approval panel). Of course, ethical considerations may not always be irrelevant to general
policymaking. For instance, were a committee to consider potential technological policies,
committee members might be inclined to favor recommend policies that would favor technology
stocks in their stock portfolios. Nevertheless, in some instances, conflict of interest and bias
concerns may be sufficiently remote to justify non-application of ethics standards, yet not all
committee members can easily be classed as ―representatives‖ in such cases. For instance, were
the Internal Revenue Service to convene a taxpayer citizens‘ panel to consider the propriety of
various deductions, it would be well aware that individual citizens will favor those deductions
from which they benefit and be indifferent or hostile to those that are unavailable to them.
Again, it is somewhat unwieldy to appoint such persons to a committee as ―representatives,‖
since the group they ―represent‖ is massive (i.e., the taxpaying public), and the Type I
membership category would therefore be useful in this context as well.
The committee should publicly disclose the names of all committee members and
indicate which members are classified as Type I. The committee also should publicly disclose
all organizations ―represented‖ by Type I members in the first group and all known biases and
conflicts of Type I members in the second group.
Type II members include the following: All committee members who do not qualify for
any of the Type I categories should be classified as Type II members. Individuals chosen for
peer review, grant award, or product approval panels, or other committees in which member
neutrality is expected should always be classed as Type II members (i.e., persons who qualify for
one of the Type I categories should not be appointed to such committees), unless if the agency
specifically wishes to appoint individuals representing a particular bias to such committees so as
to achieve balance. All Type II members qualify as SGEs and are subject to the associated ethics
restrictions. Whenever a Type II member receives a conflict of interest waiver, the committee
should publicly announce the waiver on its website.
As explained in Section A.3.d, FACA itself does not presently contain formal ethics
standards.323 H.R. 1144 proposes to amend this omission by essentially codifying the existing
system for appointing members as SGEs or representatives.324 This report recommends that
Congress instead adopt the proposed member classification scheme, which largely preserves the
323

FACA does assure ―that the advice and recommendations of the advisory committee will not be inappropriately
influenced by the appointing authority or by any special interest,‖ 5 U.S.C. App. 2 §§ 5(b)(3), (c), but it does not
address the distinction between SGEs and ―representatives,‖ which are products of the Office of Government Ethics‘
administration of federal employee criminal ethics laws.
324
H.R. 1144, 112th Cong. § 101(b) (2011).

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existing ethics system that has evolved over the past decades but includes a slightly more
nuanced categorization of committee members that hopefully should eliminate some of the
confusion and abuse that have arisen under the current system.
Recommendation 10: Congress should amend FACA to contain an ethics regime whereby
potential committee members are classified as Type I members, as defined above, which are not
subject to ethics standards, and Type II members, also defined above, which are classified as
SGEs. Agencies should publicly disclose representations and known sources of bias or conflict
of interest for Type I members and should similarly announce any waivers granted to Type II
members.
Conclusion
For the past 40 years, FACA has maintained a delicate balance between promoting
efficiency and transparency in agencies‘ use of advisory committees, on one hand, and ensuring
that committees are not stifled by crippling procedural burdens that preclude their ability to
function effectively, on the other. As a general matter, the statute and its implementing
regulations strike an appropriate balance, and it has been slightly readjusted over the years to
ensure that a relative equipoise between the competing policies is maintained. The increasing
interest in promoting public participation in government processes and the flurry of legislative
activity relating to FACA in the last several years suggest that another readjustment is potentially
in order. This report has analyzed the Act, its implementing regulations, and associated legal
requirements in detail to attempt to identify a set of revisions that will optimally promote that
balance. As a general matter, it has proposed changes to clarify the Act and eliminate certain
unnecessary procedural burdens, on one hand, while proposing relatively simple ―best practices‖
agencies might undertake and certain statutory revisions designed to enhance transparency and
objectivity, on the other. Congress clearly was correct when it opined that advisory committees
―provide[] a means by which the best brains and experience available in all fields of business,
society, government and the professions can be made available to the Federal Government at
little cost.‖325 This report has hopefully elucidated a set of reforms that can ensure that the
government preserves that critical source of outside advice while still furthering the goals of
openness, transparency, and efficiency that FACA was enacted to promote.

325

HOUSE COMM. ON GOV‘T OPERATIONS, THE ROLE & EFFECTIVENESS OF FED. ADVISORY COMMS., H.R. REP. NO.
91-1731, at 4 (1970).

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Proposed Recommendations
Recommendation 1: Congress should eliminate the contractor and non-voting member
exceptions. It should leave the individual advice exception intact. It should eliminate the
subcommittee exception but should replace it with a statutory exception for ―preparatory work‖
of committees, which should be defined as precisely as possible to ensure that committees make
effective use of the exception.
Recommendation 2: GSA should amend section 102-3.140(e) of the implementing regulations
to clarify that, in addition to hosting teleconferenced or webconferenced meetings, agencies also
may host asynchronous virtual meetings that can occur over the course of days, weeks, or
months, on a moderated web forum. Agencies with advisory committees should consider
holding certain committee meetings via such online forums as appropriate.
Recommendation 3: Agencies should assess each committee that they propose to establish to
determine precisely what factors should influence committee membership and strive to achieve
balance on those factors in all instances. Agencies should also consider any other balance factors
they consider desirable as well as the resources they have available and attempt to achieve
balance on those factors as appropriate under the circumstances. In addition, agencies should
centralize the committee formation process in an individual or office and should strive to
eliminate any unnecessary levels of review.
Recommendation 4: Congress should, to the extent possible, set forth the mission, estimated
duration, budget, and preferred membership balance for all statutorily established committees. It
is particularly critical that Congress do so for committees that it exempts from the two year
renewal process established by FACA.
Recommendation 5: The President and Office of Management and Budget should rescind
Executive Order 12,838 and Circular A-135, respectively, thereby eliminating any cap on the
number of advisory committees.
Recommendation 6- Alternative A: Congress should amend the Negotiated Rulemaking Act (5
U.S.C. § 561 et seq.) to provide that committees engaged in negotiated rulemaking are exempt
from FACA. Congress should also amend the Negotiated Rulemaking Act to provide that full
meetings of such committees are open to the public (though meetings of sub-groups of
committee members, or ―caucuses,‖ can be conducted privately) and that such committees must
provide advance notice of their meetings.
Recommendation 6- Alternative B: Agencies should, as appropriate, consider the use of
standing committees to undertake all negotiated rulemaking activities and simply renew the
charter of such committees rather than undertaking the chartering process anew for each
proposed negotiated rulemaking committee. Congress should amend 5 U.S.C. § 565(a)(1)
(Negotiated Rulemaking Act) to provide that negotiated rulemaking caucuses (i.e., informal
discussions among members of a committee subgroup outside of or during a break in the
committee‘s formal meeting) may be held in private notwithstanding the requirements of FACA.
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Recommendation 7: Agencies should post all documents relevant to a committee‘s substantive
work on an easily accessible online forum, such as the committee‘s web page. Agencies should
strive to post all documents that are relevant to upcoming meetings at least 15 days in advance
and all documents that chronicle the events of committee meetings as quickly after the meetings
as possible.
Recommendation 8: Agencies should consider providing live webcasts of committee meetings
and/or posting recorded broadcasts following such meetings. In determining whether to invest in
webcasting technology, agencies should consider the likely level of public interest in their
committees‘ work and the net costs and benefits of adopting such technologies. Agencies should
also take into account the cost savings that such technologies can create when deciding whether
to invest therein.
Recommendation 9: Agencies should consider announcing proposed committees in advance in
the Federal Register and on the agencies‘ websites and, as appropriate, soliciting public input
concerning potential committee members. Such input is particularly likely to be valuable when
the committee‘s work is relatively uncontroversial and comprehensible and when the agency
may benefit from the public‘s insight in finding qualified committee members. In cases where
general public input is deemed inappropriate, the agency may still wish to solicit input from
experts with experience in the subject matter of the committee‘s assignment or from groups
particularly affected by the committee‘s work. Agencies should also consider publicly
announcing the preliminary slate of committee members selected prior to finalizing the group
and accepting confidential public input on potential conflicts of interest, bias, or other matters
relevant to member selection.
Recommendation 10: Congress should amend FACA to contain an ethics regime whereby
potential committee members are classified as Type I members, as defined above, which are not
subject to ethics standards, and Type II members, also defined above, which are classified as
SGEs. Agencies should publicly disclose representations and known sources of bias or conflict
of interest for Type I members and should similarly announce any waivers granted to Type II
members.

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Appendix A
Historical Numbers of Advisory Committees Covered by FACA
Year

Total
Number of
Federal
Advisory
Committees

Statutory
(Created by
Congress)

Presidential

Nondiscretionary
(Statutory +
Presidential)

Created
by
Agency
Authority

Authorized
by Law

Discretionary
(Agency Created
+ Statutorily
Authorized)

Negotiated
Rulemaking
Committees

2011

1069

555

49

604

266

199

465

3

2010

1046

549

45

594

257

195

452

4

2009

953

431

35

466

281

206

487

2

2008

922

416

33

449

282

191

473

3

2007

924

425

35

460

273

191

464

1

2006

929

423

35

458

276

195

471

2

2005

945

428

36

464

290

191

481

4

2004

983

461

37

498

279

206

485

6

2003

976

449

43

492

271

213

484

7

2002

978

444

51

495

265

218

483

8

2001

991

435

56

491

279

221

490

10

2000

955

404

53

457

278

220

498

12

1999

951

403

51

454

271

226

497

14

1998

939

403

52

455

261

223

484

10

1997

963

424

50

474

261

228

489

9

1996

987

434

46

480

269

238

507

7

1995

970

414

38

452

262

256

518

2

1994

1,186

428

26

454

316

416

732

1

1993

1,304

499

31

530

397

377

774

0

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Appendix B
FACA Membership Survey

Administrative Conference Chairman Paul Verkuil circulated the attached survey to all
government members of the Conference on July 1, 2011, asking for a response by July 18, 2011.
Chairman Verkuil also invited public members to provide input on potential issues under the
Federal Advisory Committee Act. The Conference ultimately received responses from 21
different government agencies and 4 public members of the Conference. The results of that
survey are summarized in Appendix C.

Dear Members,
In connection with the Committee on Collaborative Governance‘s project on the Federal
Advisory Committee Act (―FACA‖), ACUS staff has prepared a list of questions to solicit your
input on the most pressing issues under the statute. Please either answer the questions yourself
or refer them to a suitable person in your agency. A consultant engaged by the Conference has
already surveyed agency FACA Committee Management Officers (CMOs), so we are not
seeking responses from CMOs. Rather, our targets include the ―clients‖ of FACA committees -those who receive and use the advice that such committees provide, and/or people who deal with
the legal aspects of FACA compliance. A suitable respondent would be a senior program officer
or a member of your agency‘s General Counsel‘s office.
To the respondent: We have provided a list of detailed questions asking about specific
aspects of FACA compliance, but please do not feel obligated to respond to each specific
inquiry. Rather, use the questions as a guide in identifying aspects of FACA that would be
worthwhile to consider in an ACUS project. Even if your agency does not use advisory
committees, feel free to answer any questions for which you have information based on
your general experience with advisory committees. Finally, indicate which issues under
FACA you deem particularly pressing and/or urgently in need of resolution (whether or
not they are addressed in the list of questions).
We plan to hold a workshop in early August and will consider the results of these questions in
identifying possible topics, so please respond to these questions by July 18. Please send your
responses and any questions to Deputy General Counsel David Pritzker (dpritzker@acus.gov;
202-480-2093) or Attorney Advisor Reeve Bull (rbull@acus.gov; 202-480-2083). Include the
name, email address, and telephone number of the person who is responding to the questions. If
you would prefer, you can also call Reeve or David to discuss your answers. We greatly
appreciate your taking time to offer feedback!
General Question: Please comment on your agency‘s experience in setting up and conducting
meetings of advisory committees under FACA (5 U.S.C. App. 2) and its implementing
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regulations (41 C.F.R. 102-3). What works particularly well in that process? Conversely, what
problems, if any, have you encountered in trying to set up FACA committees or conduct
committee meetings, and what would you envision as possible solutions to those problems?
Specific Questions: The following questions identify potential issues with FACA based on our
initial literature review. We do not necessarily expect you to provide a response to each
question. If you provide answers to several of the questions, please indicate which issues you
consider most important.
(1) In considering the various procedural requirements of FACA and its implementing
regulations, describe what you see as the pluses and minuses of the main requirements, that is (a)
whether you find that the requirements serve valuable purposes in terms of promoting the goals
of FACA, and (b) whether the requirements impose unnecessary costs or burdens on your
agency. In particular, give us your thoughts on the chartering requirements (5 U.S.C. App. 2 §
9(c)), the requirement to provide 15-days advance notice of FACA committee meetings in the
Federal Register (5 U.S.C. App. 2 § 10(a)(2); 41 C.F.R. § 102-3.150(a)), and the requirement
that committee meetings and documents be public (5 U.S.C. App. 2 § 10(a)(3), (b); 41 C.F.R. §§
102-3.140, 102-3.170).
(2) What are the positives and negatives of other requirements associated with advisory
committees imposed either by statutes or regulations other than FACA itself (e.g., NARA‘s
General Records Schedule 26) or by your own agency‘s internal procedures (e.g., requirements
for selecting committee members)?
(3) Does FACA unnecessarily constrain your agency‘s ability to meet with groups outside of the
government? Conversely, do the exceptions to FACA (such as the sub-committee exception, the
exception for seeking individual advice, or the exception for contractor-convened committees)
improperly permit agencies to work around the basic FACA requirements?
(4) Is your agency ever reluctant to meet with groups outside of the government due to
uncertainty concerning whether or not FACA applies?
(5) Does FACA deter your agency‘s use of ―new media‖ (email, Facebook, Twitter, etc.) to
interact with groups outside of the government or communicate among committee members?
(6) Do you consider the conflict of interest standards that apply to members of your agency‘s
advisory committees appropriate as currently structured, or should the conflict standards be made
either less or more stringent? In particular, would any of the following changes be helpful in
policing against conflicts, or would they deter service on advisory committees without adding
much value:

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Classifying more committee members as Special Government Employees rather than
―representatives‖ or applying a common disclosure regime to all members regardless
of status.
Making certain information about committee members public (e.g., prior
representations or identity [if not exact amount] of financial holdings).
(7) Should committees undertake any efforts beyond the technical requirements of FACA to
promote greater public input to the committees? Conversely, are FACA‘s public transparency
requirements already sufficient? Consider, in this light, whether any of the following would be
helpful or instead would impose unnecessary procedural burdens:
Soliciting and considering input from the public about potential committee members.
Making committee documents publicly available (e.g., by posting on your agency‘s
website).
Hosting webcasts of committee meetings.
Allowing members of the public to interact with committee members during meetings
(rather than simply having a designated public comment period at the end of the
meeting).
(8) Does FACA provide sufficient clarity to ensure that the membership of each of your agency‘s
advisory committees is balanced (5 U.S.C. App. 2 § 5(b)(3), (c)) or would a more detailed
description of the factors on which balance must be achieved (either in the statute or
implementing regulations) be helpful? What are the factors your agency considers in ensuring
that its committees are balanced?
(9) How effective do you consider the chartering and charter renewal process managed by GSA
in ensuring that committees do not outlive their useful lifespan? Are there other steps that
agencies, the President, or Congress should take to ensure that committees disband when their
mission is complete?
(10) Would it be useful to have a mechanism whereby FACA committees could meet over a
period of days, weeks, or months, via a web-based message forum, to which committee members
would post messages, and to which the public would have access?
Thank you for your participation; please contact us if you have any questions.

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Appendix C
Literature Review/Initial Interviews and Conference Member Survey
The charts below contain four pieces of information: (a) topics identified in the
Conference staff‘s initial review of the FACA literature and in interviews with FACA experts;
(b) the number of times the topic was addressed in the membership survey (with each agency‘s
response counting only once, even if the agency had a number of sub-groups whose responses
were compiled in its response); (c) the number of times the topic was mentioned in the literature
or in interviews Conference staff conducted with FACA experts (with each source that
mentioned the issue counting once); and (d) a brief summary of the overall sentiment on the
particular issue. For the sake of conciseness, only topics that were mentioned more than once are
included in the charts.
The responses are grouped into two separate charts based on the level of consensus
reached: (1) Chart 1 contains topics on which the survey responses, articles, and outside
interviews showed essential agreement (though some contained a few dissenting views) and (2)
Chart 2 contains topics on which there was divergence in opinion. All topics are assorted in
decreasing order of interest, with the topics that garnered the most interest (based primarily on
numbers of times the topic was mentioned) appearing first.
The charts characterize responses by source (agency survey respondents, private survey
respondents, persons interviewed by staff, literature references) but do not identify the sources
by name or organization. The report omits that information because a number of persons
interviewed by the staff and survey respondents requested that their responses remain
anonymous.
Chart 1: Topics on Which the Responses Were Essentially in Agreement
Potential Topic

Number of
Mentions in
Membership
Questionnaire

Posting
Committee
Materials
Online

12

Number of
Mentions in
Staff’s
Literature
Review/Initial
Interviews
1

72

General Sentiment on the Issue

Agency survey respondents universally
touted the value of making committee
documents available online in advance
of meetings, though most did not feel
that the requirement should be
mandatory, and one noted that only

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Soliciting
Public Input on
Potential
Committee
Nominees

14

3

Asynchronous
Virtual Web
Meetings

13

1

Webcasting
Committee
Meetings

11

0

Executive Order 2
12,838

3

relatively important documents should
be posted (lest the agency website be
flooded with a deluge of relatively
useless materials).
With five exceptions, governmental
survey respondents supported the idea of
soliciting public input on potential
committee nominees (and several
already do so), though they generally
opposed making such a process
mandatory. Members of NGOs
interested in governmental transparency
strongly support this reform. One
agency survey respondent, however,
raised the concern that committee
balance requirements may necessitate
their rejecting popular nominees, which
could alienate the public, and two other
agency respondents expressed concerns
about the amount of time that soliciting
public input would take.
The general consensus amongst agency
survey respondents appeared to be that
such meetings could be useful and lead
to cost savings but that agencies should
not be required to hold meetings in that
manner and that many committees
would prefer to continue to meet inperson.
Several agency survey respondents
praised the concept of webcasting
committee meetings, though none
thought that it should be required and
four raised concerns about the cost of
doing so.
The survey responses and FACA articles
all state that the Executive Order‘s
arbitrary cap on the number of advisory
committees is counterproductive.
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Closed
Meetings

0

3

Exempting
Negotiated
Rulemaking
Committees
from FACA

2

0

Clarifying the
―Utilized‖
Standard under
Public Citizen

3

0

Several reports in the FACA literature
support the idea of making it easier to
close committee meetings but requiring
that the committee give an explanation
of its decision after the fact.
One private survey respondent and one
agency respondent mentioned exempting
negotiated rulemaking committees from
FACA as one possible means of
promoting greater collaboration between
agencies and the public.
Two private survey respondents and one
agency respondent proposed providing
greater clarity on when an agency
―utilizes‖ a committee so as to implicate
FACA: one private respondent asserts
that it should be easier to show that a
committee has been utilized whereas the
other private respondent and agency
respondent simply assert that the
standard should be clarified.

Chart 2: Topics Where the Responses Showed Significant Disagreement
Potential Topic

Number of
Mentions in
Membership
Questionnaire

Amending the
Conflict of
Interest
Standards
Applicable to
Committee
Members

15

Number of
Mentions in
Staff’s
Literature
Review/Initial
Interviews
11

74

General Sentiment on the Issue

Most governmental survey respondents
indicated that classifying more
committee members as SGEs or
imposing a disclosure regime on all
committee members regardless of
classification would deter service on
committees, though several indicated
that they impose more rigorous ethics

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September 12, 2011
requirements than they are required to
implement. Several respondents
proposed ideas for modifying the
existing regime: (a) one agency
respondent proposed treating erstwhile
―representatives‖ as mere public
attendees that are not formally part of
the committee; (b) one private survey
respondent proposed eliminating the
SGE designation; and (c) another
private survey respondent proposed very
strict standards for committees dealing
with a specific product or grant and a
generally applicable disclosure regime
for other committees.

Propriety of the
FACA
Exceptions

11

As a general matter, the FACA
literature (including past ACUS
recommendations) favors applying a
common disclosure regime to all
committee members and clarifying
when members should be appointed as
SGEs (with a GAO report indicating
that a larger number of members should
be appointed as SGEs than is currently
the case).
A significant rift between agencies and
FACA experts outside of the
government exists on this point: several
governmental survey respondents and
agency lawyers interviewed by
Conference staff indicated that certain
exceptions were critical, and no agency
criticized any of the exceptions; most
non-governmental FACA experts, by
contrast, supported eliminating some or
all of the exceptions. Nevertheless,
some exceptions were much more
popular than others: relatively few non-

10

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Chartering

12

September 12, 2011
government experts criticized the
subcommittee and individual advice
exceptions (though the subcommittee
exception received considerably more
criticism than the individual advice
exception), and many government
respondents praised them; many nongovernment experts criticized the
contractor and non-voting member
exceptions, and no government
respondent specifically praised them
(though some said generally that all
exceptions were important).
Basically everyone agrees that agencies
should be required to define the purpose
of committees in advance, but there is
disagreement on whether GSA should
have any role in that process. With the
exception of one agency, which
experienced some minor delays in
chartering, agencies generally find
FACA‘s chartering requirements and
GSA‘s role in the process to be
appropriate, suggesting that external
constraints are not a source of delay.
By contrast, many agencies note that
internal requirements associated with
committee formation, particularly those
appertaining to ensuring committee
balance, can be a source of significant
delay. Non-government respondents
tended to favor devolving the chartering
process to agencies and limiting the role
of GSA.

5

Some agency survey respondents
suggested that the charter renewal
process should not be required every 2
years (with 4–5 years being suggested
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Clarifying the
Committee
Balance
Requirements

13

4

Whether FACA
Chills
Agencies‘ Use
of New Media

15

1

instead).
All governmental survey respondents
indicated that the existing guidance on
the balance requirements is sufficient,
though one agency survey respondent
suggested that guidance in a GSA
memorandum should be formally
integrated into the implementing
regulations. However, several
publications concerning FACA,
including a GAO report, suggest that the
balance requirements are unclear and
that greater clarification is needed. One
private survey respondent raised the
question of how the ―balance‖
requirement applies to a ―utilized‖
committee, presumably since the agency
will not necessarily select the members
thereof. Another private survey
respondent suggested that it should be
made clearer that courts can review
whether committees have satisfied the
―balance‖ requirements, though the
standard of review should be generous,
and the penalty for non-compliance
should be limited to requiring that the
lack of balance be noted in materials
resulting from the committee‘s work.
Government respondents to the agency
survey uniformly indicated that FACA
had not deterred their use of new media,
though several indicated that guidance
on what uses of new media are
permissible would be beneficial.
Lawyers from one agency whom
Conference staff surveyed, however,
indicated that a great deal of uncertainty
surrounds FACA‘s applicability to new
media, and a private survey respondent
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Federal Register
Notice
Requirement

11

4

Whether FACA
Limits the
Gathering of
Outside Advice
Whether FACA
Chills
Communication
with Outsiders

11

0

12

0

Allowing the
Public to Speak
during Meetings
(Rather Than
Having a
Designated
Public
Comment
Period)

9

2

Ensuring that
Committees Do
Not Outlive

9

1

indicated that email exchanges should
not implicate FACA.
Most sources agreed that the 15-day
advanced notice requirement is useful
and not overly burdensome, though one
agency survey respondent suggested
that only 7 days advance notice should
be required. They were split on whether
a website or email notice could replace
the requirement for notice in the Federal
Register.
By a margin of 7-4, the agency survey
respondents did not feel that FACA
improperly constrains their ability to
meet with outside groups.
Three agency survey respondents and
one private respondent indicated that
FACA has chilled agencies‘ efforts to
seek outside advice. Eight other agency
survey respondents indicated that it has
not done so in their experience.
Agency survey respondents were
basically opposed to this idea,
suggesting that it could make meetings
difficult to control, lead to deviations
from the meeting agenda, and
potentially even render public attendees
de facto committee members. One
private respondent and a private
attorney interviewed by Conference
staff, however, saw value in permitting
public attendees to interact with
committee members during the meeting,
noting that any deviations from topic
could be handled by warning and/or
removing disruptive attendees.
Two agency survey respondents felt that
the current procedures for ensuring that
committees do not outlive their useful
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Their Useful
Lifespan

Minutes
Requirement

3

0

NARA‘s
General
Records
Schedule 26

2

1

lifespan are sufficient. One agency
respondent and a private respondent
suggested that statutory committees are
particularly likely to outlive their useful
lifespan and can become a burden for
agencies; three other agency
respondents similarly suggested that
there be a sunset provision for statutory
committees. Another agency
respondent proposed an informal review
of committees for continued relevance
every 2 years in lieu of a formal rechartering process. Yet another agency
respondent suggested that committees
that do not issue any report for a number
of years should presumptively be
rejected when they apply for a new
charter.
One agency survey respondent proposed
that minutes not be required for closed
meetings. Another agency respondent
suggested that minutes might not be
needed when a transcript or webcast of
the meeting exists, but also noted that
they could serve a useful purpose as a
summary of the meeting. Yet another
agency respondent suggested that
requiring that minutes be certified
within 90 days can impose a burden on
agencies.
Attorneys from an agency interviewed
by Conference staff indicated that
NARA‘s recordkeeping requirements
for advisory committees were overly
onerous. Two agency survey
respondents, by contrast, expressed
support for NARA‘s requirements.

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Appendix D
Summary of FACA Workshop
The following document contains a brief summary of the results of the Administrative
Conference‘s Federal Advisory Committee Act (―FACA‖) workshop, held at the Occupational
Safety and Health Review Commission‘s Hearing Room on August 16, 2011. The workshop
was open to the public. The summary below focuses solely on recommendations for improving
FACA and eschews any background discussion of FACA and its requirements, though several
such background discussions occurred over the course of the workshop. The various
recommendations considered at the workshop have been classified by subject matter. The topics
considered include: (a) amending or clarifying the conflict of interest standards for committee
members; (b) revising the committee formation process, including chartering and re-chartering;
(c) amending or clarifying the ―exceptions‖ to FACA‘s coverage; (d) ―best practices‖ for
promoting transparency in committee meetings; (e) the value of agencies‘ hosting asynchronous
virtual web meetings of committees; and (f) any other issues workshop participants deemed
relevant.
I.

Conflict of Interest Standards
David Vladeck (Director, FTC Bureau of Consumer Protection) proposed that members
of committees dealing with product approval should be subject to more stringent ethics
standards than members of committees dealing with issues relevant to general
rulemaking.
Richard Thomas (Associate General Counsel, Office of Government Ethics) noted that a
number of aspects of the existing ethics laws permit agencies to tailor the conflict of
interest regime to the needs of the particular committee: the ethics laws authorize conflict
waivers (which are presumably easier to grant when a committee is dealing with less
sensitive matters), SGEs can continue to serve on committees addressing ―particular
matter[s] of general applicability‖ even where an otherwise disqualifying matter related
to their non-federal employment exists, and OGE allows agencies to adopt disclosure
forms other than Form 450 to address the specific issues their committees face.
Richard Thomas (Associate General Counsel, Office of Government Ethics) suggested
that removing confidentiality for financial disclosures might deter prospective committee
members from serving on committees.
Vincent Salamone (Associate General Counsel, Office of Government Ethics) stated that
the ability to appoint some committee members as ―representatives,‖ who are not subject
to ethics standards, can be key to ensuring committee balance.
Jamie Conrad (Attorney, Conrad Law & Policy Counsel) noted that many agencies
improperly classify committee members as ―representatives‖ rather than SGEs so as to
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avoid implicating the federal ethics laws, a practice that both GAO and the
Administrative Conference have criticized.
Jamie Conrad (Attorney, Conrad Law & Policy Counsel) suggested that perhaps the
appropriate threshold question is whether a committee is dealing with scientific/technical
or general policy matters: if it is dealing with the former, committee members should
generally be subject to ethics standards; if it is dealing with the latter, ethics standards
may be unnecessary.
Jamie Conrad (Attorney, Conrad Law & Policy Counsel) noted that it has become
increasingly difficult to grant waivers to potential committee members, so much so that
committees may not be able to recruit the most qualified candidates, some or all of whom
may be ―conflicted out.‖
Phil Harter (Professor, Vermont Law School) criticized the existing ethics regime for
treating advisory committee members as ―employees‖ (i.e., SGEs): it is illogical for an
―employee‖ of the government to provide the government with advice. He also criticized
the rule that any committee member who receives compensation for his or her service
automatically qualifies as an SGE.
Celia Wexler (Washington Representative, Union of Concern Scientists) asserted that
many committee members have conflicts of interest that are undisclosed. Any proposed
reform should ensure that existing conflicts are publicly disclosed.
Alan Morrison (Professor, George Washington University Law School) argued that any
waivers granted to committee members should be publicly disclosed, revealing the
identity of the conflict of interest for which the waiver was granted and, if the conflict is
financial, stating the approximate (but not necessarily exact) monetary value of the
conflicting interest.
II.

Committee Formation Processes
David Vladeck (Director, FTC Bureau of Consumer Protection) noted that the burdens
associated with committee formation and chartering are fairly extensive and that agencies
would benefit from some streamlining of the process.
Robert Flaak (Director, Office of Committee and Regulatory Management, General
Services Administration) stated that most delays in the committee formation process are a
result of internal agency procedures, not of requirements imposed by FACA itself or by
GSA in its consultation role in committee formation. GSA provides documentation that
agencies can use for filing their charter and attempting to achieve a balanced committee
membership.
Robert Flaak (Director, Office of Committee and Regulatory Management, General
Services Administration) noted that much of the delay in committee formation results
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from agencies‘ requiring multiple levels of review when selecting potential committee
members and finalizing committee charters.
Phil Harter (Professor, Vermont Law School) asserted that Congress should closely
scrutinize statutory advisory committees, which often do not have a clearly articulated
mission and can sometimes outlive their useful lifespan. Discretionary committees, by
contrast, are an exceptional bargain for agencies, allowing them to obtain outside advice
with minimal expense. As such, barriers to the formation of such committees should be
relaxed so far as possible.
Phil Harter (Professor, Vermont Law School) suggested that the chartering function
might be devolved to individual agencies (thereby removing any consultative role for
GSA), which would expedite the process of committee formation.
Sarah Shortall (Committee Counsel, Office of the Solicitor, Department of Labor) argued
that GSA‘s annual review of existing committees provides any information Congress
might need as to the utility of existing statutory committees and that requiring rechartering of such committees every two years therefore adds very little marginal value.
Karen Carrington (Attorney Advisor, General Law Division, Department of Agriculture)
stated that the major delay in the committee formation process arises from agencies‘
requiring multiple levels of approval prior to finalizing a committee.
Jeff Lubbers (Professor, American University Law School) recommended that Congress
and the President make clear the type of membership balance they have in mind when
setting up non-discretionary advisory committees.
Marilyn Kuray (Acting Assistant General Counsel for Regulatory Issues, General
Counsel‘s Office, Environmental Protection Agency) noted that agencies often require
consideration of a litany of different factors in ensuring committee balance, which can
considerably slow the process of committee formation.
III.

FACA “Exceptions”
David Vladeck (Director, FTC Bureau of Consumer Protection) suggested that the nonvoting participant exception, subcommittee exception, and contractor exception created
improper loopholes in the statute and should be eliminated.
Celia Wexler (Washington Representative, Union of Concerned Scientists) similarly
argued that the non-voting participant, subcommittee, and contractor exceptions are
improper (noting that the House of Representatives has already passed a bill eliminating
these exceptions). The individual advice exception should be retained, but committees
should document contacts with outside parties, even if the committee meets with such
persons individually.
Chris Hammond (General Law Division, Office of the General Counsel, Department of
Health and Human Services) argued that the exceptions are useful to agencies in
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consulting with outsiders and that limits on the abuse of such exceptions already exist.
For instance, a parent committee cannot rubber stamp the advice of a subcommittee,
thereby limiting agencies‘ ability to move all policymaking down to the subcommittee
level.
David Vladeck (Director, FTC Bureau of Consumer Protection) noted that it can be
difficult to determine whether a committee has violated FACA by inappropriately using
one of the various exceptions, given the lack of access to the committee‘s deliberations
and work product.
Jeff Lubbers (Professor, American University Law School) noted that negotiated
rulemaking committees often make use of caucuses and that, if the subcommittee
exception is eliminated, one might wish to create a carve out to allow negotiated
rulemaking committees to continue to use such caucuses without triggering FACA‘s
various procedural requirements.
Sarah Shortall (Committee Counsel, Office of the Solicitor, Department of Labor)
suggested that one might apply certain FACA requirements to subcommittees, such as
requiring that documents be publicly available on request, without applying all such
requirements to subcommittees.
IV.

Pro-Transparency Measures
David Vladeck (Director, FTC Bureau of Consumer Protection) noted that committee
documents are often not readily accessible in the period prior to committee meetings.
David Vladeck (Director, FTC Bureau of Consumer Protection) noted that the majority of
committee meetings are closed, which casts some doubt on the statute‘s effectiveness in
promoting transparency.
Daniel Schuman (Policy Counsel, Sunlight Foundation) noted that technology can allow
committees to promote transparency without imposing a substantial procedural burden on
agencies (and can even mitigate FACA‘s procedural burden in some instances). In this
light, committees should post important documents online, webcast committee meetings,
and seek public comments on potential committee members, all of which would greatly
increase transparency without creating a significant procedural burden for agencies.
Alan Morrison (Professor, George Washington University Law School) noted that, to the
extent agencies can outline in committee charters the type of balance they hope to
achieve, the process of obtaining public input on potential committee members would be
greatly facilitated.
Alice Kottmyer (Attorney Advisor, Department of State) stated that webcasting
committee meetings can be quite expensive and that she doubts all agencies would be
able to afford such an expense.
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Daniel Schuman (Policy Counsel, Sunlight Foundation) noted that the cost of webcasting
has diminished considerably in recent years and that agencies can use relatively low-cost
options, such as Skype.
David Vladeck (Director, FTC Bureau of Consumer Protection) noted that most
committee documents are ―born electronic‖ and therefore that committees should easily
be able to post relevant documents. Promoting a consistent document posting policy
across agencies would be quite beneficial.
Jeff Lubbers (Professor, American University Law School) suggested that all committees
might be required to have a website.
Jamie Conrad (Attorney, Conrad Law and Policy Counsel) stated that the public
comment period is often treated as an afterthought at committee meetings. It might be
beneficial for committees to host an initial data gathering session wherein they actively
seek input from members of the public prior to beginning a project.
V.

Asynchronous Virtual Meetings
Alice Kottmyer (Attorney Advisor, Department of State) suggested that an asynchronous
web forum discussion may not constitute a ―meeting‖ within the definition of FACA and
therefore would be exempt from the statute‘s requirements.
Marilyn Kuray (Acting Assistant General Counsel for Regulatory Issues, General
Counsel‘s Office, Environmental Protection Agency) and Marcia Moore (Committee
Management Officer, Department of Agriculture) noted that requiring DFOs to moderate
a virtual web forum meeting would potentially divert too much time from other
responsibilities they possess.
Sarah Shortall (Committee Counsel, Office of the Solicitor, Department of Labor)
suggested that asynchronous web meetings should not be the only sort of ―virtual
meeting‖ that agencies consider.

VI.

Other Issues
Phil Harter (Professor, Vermont Law School) and Jeff Lubbers (Professor, American
University Law School) criticized the cap on the total number of discretionary advisory
committees, noting that it reflected an improper bias against the formation of such
committees.
Alan Morrison (Professor, George Washington University Law School) suggested that
FACA should perhaps not be applied to Presidential advisory committees. Applying the
statute to such committees raises constitutional separation of powers issues, and courts
have therefore been exceedingly reluctant to apply the statute to such committees.
Unfortunately, these precedents often reaffirm the adage that ―hard cases make bad law,‖
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insofar as their holdings are often generalized to non-Presidential committees (with the
Public Citizen and Cheney decisions serving as sterling illustrations of this point),
notwithstanding the diminished constitutional concerns in applying FACA to such
committees.

85