Federal Advisory Committee Act

FACA

The 1972 Federal Advisory Committee Act (FACA) is often cited as a barrier to collaboration. It was passed to ensure citizen involvement in federal decisions is equitable, that no individual or group has undue influence.

When does FACA apply?

A federal agency must comply with FACA when it 1) establishes, utilizes, controls, or manages 2) a group with non-federal members that 3) provides the agency with consensus advice or recommendations.

Only groups that meet all three of these legal elements are subject to FACA.

Understanding FACA is easiest if you break it into three questions:

How do you work with a group? – Do you utilize it?
- Under FACA, an agency utilizes a group only when it exercises actual management or control over a group’s operations. Although there is no precise legal definition of “actual management or control,” the following factors may be used by an agency to determine whether or not a groups is “utilized:”
  - Does the agency manage or control the group’s membership or otherwise determine its composition?
  - Does the agency manage or control the group’s agenda?
  - Does the agency fund the group’s activities?
Who is in the group? – Are there non-federal, non-exempt participants?
What does the group do for you? – Is the process aimed at consensus?
- The key test is whether the goal for the group is to reach group consensus.
- However, the development of consensus among all or some of the attendees at a public meeting or similar forum does not automatically invoke FACA.
  - Consensus across individual opinions is NOT the same as having a consensus process.
- Individual group members can provide their own personal opinions, advice, or recommendations without implicating FACA.
- This is true even if several individual members of a group provide similar or identical opinions, advice or recommendations.

Best Practices to Avoid FACA Violations:

The simplest way to comply with FACA is to host only meetings with non-federal employees that are “open to all” and transparent.

In addition, make clear to all participants that the Agency, by law, must value insights from each individual and organization separately and equitably AND must not rely solely on any single individual or group perspective when making agency decisions.

For more information, please refer to Key Principles and Practical Advice for Complying with FACA.

Also refer to the FACA Decision Tree that will help guide you on whether or not FACA applies to your situation.