Appendix C: THE FEDERAL ADVISORY COMMITTEE ACT

1. When Does FACA Apply?
In general, any council, panel, conference, task force, or similar group established or utilized by NPS officials for the purpose of obtaining consensus advice or recommendations on issues or policies will likely fall within the purview of FACA. For this reason, you should be cautious when assembling a group for discussion or consultation on NPS matters. But you should also be aware that many of the meetings we typically hold are with groups that are not "established or utilized" within FACA's meaning. Additionally, there are methods and techniques that can be used to avoid invoking FACA.

GSA regulations [41 CFR Part 102-3] recognize only a few types of advisory meetings that would not be covered by FACA. For NPS purposes, these include meetings with:

1. One individual
2. Any committee or group created by non-Federal entities (such as a contractor or private organization), provided that these committees or groups are not actually managed or controlled by the executive branch.
3. Any group where advice is sought from the attendees on an individual basis and not from the group as a whole (this includes public meetings). [In meetings of this sort, remind the group that you are seeking their individual views, and are not looking for the group to necessarily agree on a particular course of action.]
4. Any group that meets with a Federal official(s) for the purpose of exchanging facts or information
5. Any local civic group whose primary function is that of rendering a public service with respect to a Federal program.
6. Any committee composed wholly of full-time or permanent part-time officers or employees of the Federal Government and elected officers of State, local and tribal governments (or their designated employees with authority to act on their behalf), acting in their official capacities. The purpose of such a committee must be solely to exchange views, information, or advice relating to the management or implementation of Federal programs established pursuant to statute, that explicitly or inherently share intergovernmental responsibilities or administration. [NOTE: This exemption may be read broadly, but you should consult with the Division of General Law in the Solicitor's Office when any question arises concerning this exemption.]
   

If you occasionally meet with individuals or groups under conditions akin to one or more of these exemptions, you should be mindful not to change the character of the meeting such that it would be subject to FACA. Management decisions can be challenged and negated as a result of FACA procedural violations.

In structuring interactions with groups so as to avoid the need to charter a committee, you should consider all the factors a court would consider in determining whether the agency has established or "utilized" an advisory committee. These factors include:

1. The purpose of the meeting(s).
2. The frequency of meetings.
3. Who attends.
4. D. Whether the participants change or remain constant over the course of multiple meetings.
5. Whether group input from participants, as opposed to expression of individual views, is an objective or result (even if "consensus" is not obtained). And,
6. The degree of control exercised over the group.
   

GSA regulations governing FACA activities suggest using the following factors to determine whether or not a group is "utilized" within the meaning of the Act:

1. Does the NPS manage or control the group's membership or otherwise determine its composition?
2. Does the NPS manage or control the group's agenda?
3. Does the NPS fund the group's activities?
   Answering "yes" to any or all of questions 1, 2, or 3 does not automatically mean the group is "utilized" within the meaning of FACA. However, if the relationship between the NPS and the group essentially is indistinguishable from an advisory committee established by the NPS, then you should assume it is subject to FACA.

2. Are There Additional Ways to Engage the Public Without Establishing a FACA Committee?
A report prepared for the National Performance Review offers some other suggestions on how to obtain public participation in review of agency matters. For example, a policy discussion group [or "roundtable"] can be formed to discuss draft proposals, option papers, or specific issues. This allows the formal convening process associated with advisory committees to be avoided. Another option is the use of focus groups when there is a need for quick, anecdotal information about how different approaches to solving a problem would work in practice. Both options involve the solicitation of individual opinions only. Neither of these non-FACA options is appropriate, however, if the goal is to obtain consensus advice. Indeed, when meeting with a number of individuals under these circumstances, you should emphasize that you are seeking only the attendees' individual views, and the attendees should be discouraged from attempting to reach a consensus, or otherwise making recommendations as a group.

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