Groups Subject to FACA
The Federal Advisory Committee Act generally applies to groups that meet the following criteria:
- Are established or "utilized" by a federal official;
- Include at least one member who is not a federal government employee; and
- Provide group advice and recommendations to the Agency.
In addition, groups subject to FACA usually have:
- A fixed membership (i.e., the number and composition of members is set or non-discretionary);
- An organizational structure (e.g., officers and staff); and
- A clearly defined purpose.
It is important to note that at least one court has held that a meeting of individuals that did not meet the criteria listed above was still subject to FACA as that group provided advice to an agency. The purpose of your committee (providing advice, information exchange) is more important than the characteristics when determining whether or not it is subject to FACA.
Note: There is no "one meeting" exception
A group that meets only once can still be subject to FACA.
If EPA or another federal agency forms a group, it is considered to have been "established" by the federal government. A group that is established by a non-federal entity is considered to be "utilized" by the federal government if the President or a federal agency exerts "actual management or control" over the group. Criteria considered in determining whether the federal government exercises actual management or control include whether a federal agency selects (or controls the selection of) members, sets the agenda, and/or funds the group's work.
You should address questions regarding the application of FACA to a group established by an entity outside of EPA to the Office of General Counsel's (OGC) FACA attorney.
Note: Committees established or utilized by the executive branch in the interest of obtaining advice or recommendations may be subject to FACA.
Each agency is responsible for ensuring that its advisory committees comply with FACA, though GSA remains responsible for the overall management and implementation of FACA throughout the executive branch. GSA guidance and rules have been published to help agencies comply with the requirements of FACA and successfully manage their advisory committees.
FACA and the GSA rule provide the requirements for establishing, managing, and terminating a federal advisory committee. In addition there are other laws, executive orders, rules, and policies that should be taken into account. These are provided in the appendices to this document. Understand that EPA policies and orders serve as guidance to EPA staff on the roles and responsibilities under FACA and the GSA rules. A more detailed discussion of the roles and responsibilities for the key players in the federal advisory committee process, including the Designated Federal Officer (DFO) and the Committee Management Officer, are discussed in Chapter Two.
Please note: It is EPA policy that subgroups and/or subcommittees (except "working groups") of a chartered advisory committee are subject to all FACA requirements, including recordkeeping, balanced membership, and openness requirements.