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When is Federal Advisory Committee Act (FACA) Applicable?When FACA Is and Is Not Applicable To Interactions with The Private Sector INTRODUCTION FACA was enacted in 1972 to control the growth and operation of the "numerous committees, board, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government." 5 U.S.C. App. 1, § 2(a). When initially enacted FACA assigned to the Office of Management and Budget (OMB) responsibility for government oversight of advisory committees. In 1977 President Carter, acting pursuant to a congressionally approved reorganization plan, transferred the advisory committee functions from OMB to the General Services Administration (GSA). (See Executive Order 12024.) The statutorily mandated Committee Management Secretariat (CMS) therefore, also was transferred to GSA to carry out this responsibility. As part of its responsibility under FACA, GSA issues governmentwide guidelines and regulations for Federal Advisory Committee Management. ILLUSTRATIVE SCENARIOS The attachments contain scenarios which illustrate when FACA does and does not apply to interactions between Executive branch officials and the private sector. An overview of the process when FACA applies is also included. SCENARIO ONE - FACA NOT APPLICABLE Factual assumptions: As part of continuing National Performance Review (NPR) initiatives, the Administrator wishes a series of meetings with senior corporate executives from companies which have faced or are facing challenges similar to those facing government today, e.g., downsizing, restructuring, reduced resources, creative financing needs, labor and human resources concerns, increased customer relations demands, etc. The Administrator's intent is to obtain experiential and anecdotal information from each executive on challenges faced by his/her company, how the company met the challenges, approaches which were productive or successful, and those which were not. The attendees may or may not change from session to session. The specific agenda subjects will likely change and may be set in advance or be free form. No consensus advice or recommendations resulting from group deliberation or interaction is expected or will be solicited. FACA does not apply because:
FACA coverage could become an issue if:
SCENARIO TWO - FACA APPLICABLE Factual assumptions: Same fact pattern as described in paragraph 1 of Scenario One except rather than seeking information on individual corporate experiences the Administrator prefers to establish a committee composed of senior corporate officials which will meet, interact, deliberate, and advise him on a variety of issues arising out of the NPR. The committee structure could include a core membership with subgroups. FACA applies because:
REQUIREMENTS/PROCESS WHEN FACA APPLIES Establishment:
Members:
Meetings:
FACA ADVISORY COMMITTEE MEMBERS APPLICABLE ETHICS STATUTES AND REGULATIONS FTE - Full-time regular government employees REP - Representative of particular interest group I. Executive Orders apply to SGEs and FTEs but not to REPs * Representative commission members would only be bound by the standards of conduct if the commission as a body made it applicable to all members. Representative members are reminded that nonpublic information should not be released to the public without permission. ** SGE's are treated less restrictively on a number of conflicts of interest laws.
Last Reviewed 9/15/2008
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