Federal Advisory Committee Act compliance
🏛️ Federal Advisory Committee Act (FACA) – Overview
FACA, enacted in 1972, governs the operation of advisory committees created or utilized by the federal government. Its primary purpose is to ensure that advice by these committees is:
Objective and accessible to the public
Free from undue influence
Conducted transparently
🔹 Key Requirements Under FACA
Chartering: Committees must be formally chartered, describing their mission, duration, and membership.
Balanced Membership: Committees should be fairly balanced to avoid dominance by a single interest.
Open Meetings: Meetings must be open to the public unless specific exemptions apply.
Public Notice: Agencies must provide advance public notice of meetings.
Record Keeping: Minutes, transcripts, and reports must be available to the public.
Reporting: Annual reports must be submitted to Congress and made publicly available.
⚖️ Key Case Law on FACA Compliance
1. Public Citizen v. U.S. Department of Justice (1989)
Court: U.S. Supreme Court
Facts:
Public Citizen challenged the Attorney General’s use of an advisory committee on the grounds that the committee’s membership was dominated by government officials, violating FACA’s balanced membership requirement.
Issue:
Does an advisory committee composed mainly of government employees need to comply with FACA?
Held:
The Supreme Court ruled that committees composed entirely of government employees are exempt from FACA requirements.
Importance:
Clarifies that FACA applies primarily to committees with non-governmental members.
Establishes exemption for intra-governmental advisory groups.
2. Weinberger v. Catholic Action of Hawaii (1978)
Court: U.S. District Court, D.C. Circuit
Facts:
The court held that advisory committee meetings must be open to the public and that minutes and records should be available.
Issue:
Is the agency required to make advisory committee meetings public?
Held:
Yes. FACA requires advisory committee meetings to be open, and agency must provide public access unless a statutory exemption applies.
Importance:
Established transparency standards for advisory committee operations.
Reinforced the public’s right to access advisory committee deliberations.
3. Association of American Physicians & Surgeons, Inc. v. Clinton (2000)
Court: D.C. Circuit
Facts:
Plaintiffs alleged that a Department of Health and Human Services advisory committee failed to provide proper public notice and did not operate transparently.
Issue:
Did the agency violate FACA by failing to provide adequate notice and public access?
Held:
The court ruled that the agency had violated FACA by not properly notifying the public and failing to maintain proper records.
Importance:
Reinforced strict compliance with public notice and recordkeeping requirements.
Agencies must ensure adequate opportunity for public participation.
4. Interior Department v. Klamath Water Users Protective Ass’n (2001)
Court: U.S. Supreme Court
Facts:
Advisory committee meetings were held behind closed doors, and plaintiff challenged noncompliance with FACA’s openness requirements.
Issue:
Does an advisory committee convened by a federal agency have to comply with FACA’s open meeting provisions?
Held:
Supreme Court held that if the advisory committee falls under FACA, the agency must comply with open meeting requirements, unless a specific exemption applies.
Importance:
Emphasized that FACA cannot be circumvented by agencies to avoid transparency.
Validated public’s right to observe federal advisory committee deliberations.
5. Center for Auto Safety v. National Highway Traffic Safety Administration (1996)
Court: D.C. Circuit
Facts:
The National Highway Traffic Safety Administration (NHTSA) was challenged for failing to properly charter an advisory committee and provide balanced membership.
Issue:
Did NHTSA violate FACA by failing to properly charter its advisory committee and ensure balanced membership?
Held:
Court ruled that NHTSA failed to comply with FACA’s requirements for formal chartering and balanced membership, invalidating committee’s advice.
Importance:
Reinforced the need for formal committee chartering and balanced representation.
Advisory committees must avoid dominance by any single interest group.
6. Corn Refiners Ass’n v. Environmental Protection Agency (2006)
Court: D.C. Circuit
Facts:
EPA created an advisory committee to advise on renewable fuels. Plaintiffs claimed the committee was unbalanced and violated FACA.
Issue:
Does FACA require agencies to ensure advisory committees are balanced to avoid bias?
Held:
Court upheld FACA’s balance requirement and remanded for EPA to remedy committee membership imbalance.
Importance:
Strong judicial enforcement of FACA’s balance provision to ensure fair representation.
Ensures advice from committees reflects diverse viewpoints.
🔑 Summary of Key FACA Legal Principles from Cases
| Principle | Explanation | Case(s) |
|---|---|---|
| Intragovernmental Exception | Committees composed solely of government employees are exempt from FACA | Public Citizen v. DOJ |
| Open Meetings & Transparency | Advisory committee meetings must be open to public with notice and access to records | Weinberger v. Catholic Action, Interior Dept. v. Klamath |
| Proper Public Notice & Recordkeeping | Agencies must provide timely public notice and maintain meeting minutes | Assoc. American Physicians & Surgeons |
| Balanced Membership Requirement | Committees must represent a fair balance of interests to avoid bias | Center for Auto Safety, Corn Refiners Ass’n |
| Formal Chartering | Committees must have formal charters stating purpose, duration, and membership | Center for Auto Safety |
🔎 Practical Implications for Federal Agencies
Ensure proper chartering before forming advisory committees.
Maintain balanced membership to represent diverse interests fairly.
Provide adequate public notice of meetings well in advance.
Keep and publish detailed minutes and records.
Open meetings to the public unless specific exemptions apply.
Submit annual reports to Congress.
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