Federal Advisory Committee Act (FACA): Committee Establishment and Termination

Federal Advisory Committee Act (FACA): Committee Establishment and Termination

Updated October 19, 2023
Federal Advisory Committee Act (FACA): Committee
Establishment and Termination
Federal advisory committees are created by Congress,
A non-discretionary advisory committee is either a
Presidents, and executive branch agencies to gain expertise
and policy advice from individuals outside the federal
• presidential advisory committee mandated by
government. Establishing an advisory committee may also
presidential directive, or
allow the federal government to provide a forum where
potentially controversial topics may be discussed by experts
• statutory advisory committee mandated by statute.
outside the political arena and reduce the workload of
executive branch employees and Members of Congress.
A discretionary advisory committee is either
Many federal advisory committees are subject to the
• established under agency authority in cases when
Federal Advisory Committee Act (FACA; 5 U.S.C.
nonfederal input might benefit agency
Appendix), which has chartering and transparency
decisionmaking, or
requirements. The method by which a committee is
established under FACA also provides for how the
• authorized by law under specific authorization
committee may be terminated. Decisions on whether a
from Congress.
specific committee is subject to FACA rests on many
factors and is often made on a case-by-case basis.
Differences Between Discretionary and Non-
Discretionary Committees
The Committee Management Secretariat (hereinafter
Discretionary committees face more procedural hurdles in
“Secretariat”) of the General Services Administration
the chartering process than non-discretionary committees
(GSA) is responsible for all matters relating to advisory
do. In order to establish, renew, or reestablish a
committees subject to FACA. As part of this responsibility,
discretionary committee, an agency must consult with the
GSA has issued guidance on committee establishment and
Secretariat and explain (1) why the committee needs to be
termination procedures (“Federal Advisory Committee
established; (2) why its existence is essential to the conduct
Management; Final Rule,” 66 Federal Register 37728-
of agency business and is in the public interest; and (3) how
37750, 2001).
the committee’s functions cannot be performed by the
agency, another existing committee, or other means such as
This In Focus details the ways in which a federal advisory
a public hearing.
committee may be established, how a committee may be
terminated, and previous efforts to limit the number of
A non-discretionary committee, by comparison, performs
committees within the executive branch. For more
the functions provided for in statute or in the establishing
information on FACA, see CRS Report R44232, Creating a
presidential directive.
Federal Advisory Committee in the Executive Branch, by
Meghan M. Stuessy.
Creating a Committee by Legislation
When considering legislation that establishes or authorizes
Committee Establishment
the establishment of any advisory committee, FACA
All federal advisory committees subject to FACA must
requires that such legislation include five factors:
submit charters to the GSA Administrator in order to be
formally established (5 U.S.C. §1008). The charter must
a clearly defined purpose for the advisory
define the federal advisory committee’s mission or charge,
committee;
its specific duties, and general operating characteristics.
a fairly balanced advisory committee
The charter must be filed with the advisory committee’s
membership in terms of the points of
agency head, the agency’s Senate and House committees of
view represented and the functions to be
jurisdiction, the Secretariat, and the Library of Congress (41
performed by the advisory committee;
C.F.R. §102-3.70). A committee cannot meet or take action
appropriate provisions to ensure that the
without filing a charter, which must also be refiled every
advisory committee’s recommendations
two years (5 U.S.C. §1013(b)).
are the result of its independent judgment;
Methods to Establish an Advisory Committee
provisions dealing with authorization of
Committees may be established under FACA by one of four
appropriations, the date for submission of
methods, which are further categorized as either “non-
reports (if any), and the duration of the
discretionary” or “discretionary” committees.
advisory committee; and
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Federal Advisory Committee Act (FACA): Committee Establishment and Termination
provisions to assure that the advisory
committee will have adequate staff and
Congressional Review of Duplicate
funds, which may be supplied by an
Committees
agency (5 U.S.C. §1004).
5 U.S.C. §1004(b)
Such factors are also reflected in FACA’s chartering
“In considering legislation establishing, or authorizing the
information requirements (5 U.S.C. §1008).
establishment of any advisory committee, each standing
committee of the Senate and of the House of
Committee Termination
Representatives shall determine, and report such
All advisory committees subject to FACA must renew their
determination to the Senate or to the House of
charters with GSA every two years or cease operations.
Representatives, as the case may be, whether the
However, discretionary and non-discretionary advisory
functions of the proposed advisory committee are being
committee charters may differ in descriptions of a
or could be performed by one or more agencies or by an
committee’s expected duration (5 U.S.C. §1013).
advisory committee already in existence, or by enlarging
the mandate of an existing advisory committee.”
For example, a discretionary committee charter typically
indicates that it is expected to terminate two years from the
date the charter is filed unless the charter is renewed prior
Executive Order 12838
to termination. In contrast, a non-discretionary presidential
E.O. 12838 required that one-third of discretionary advisory
advisory committee charter typically indicates that the need
committees subject to FACA be terminated by the end of
for the committee is continuing but is subject to renewal
FY1993. The order also required that proposed new
every two years. A presidential advisory committee may
committees be approved by the Director of the Office of
terminate earlier if the executive order establishing the
Management and Budget (OMB) in addition to existing
committee is rescinded.
GSA Secretariat approval requirements.
A statutory advisory committee may exist for any period
E.O. 12838 was later incorporated into OMB Circular No.
that its establishing statute provides. A statutory advisory
A-135, which, among other powers, permits OMB to set
committee charter typically indicates that the committee
advisory committee ceilings for each agency. These limits
will terminate on a specific date and is subject to renewal
do not affect non-discretionary committees. However,
every two years until that date. A statutory advisory
Circular No. A-135 encourages agencies to work with
committee that waives the Section 1013 termination
OMB to develop legislation for Congress to terminate non-
requirement in its establishing statute may exist indefinitely
discretionary statutory committees that are no longer
and be terminated only by additional legislation. However,
considered necessary.
a statutory committee must still have its charter approved
every two years. GSA considers a statutory committee with
To determine the effectiveness of E.O. 12838 in improving
an indefinite termination date and no approved charter to be
committee efficiency, the Government Accountability
administratively inactive, and the committee is unable to
Office (GAO) studied the impact of E.O. 12838 in 1997 (T-
conduct business until a charter is approved.
GGD-98-24). GAO found that the overall number of federal
advisory committees had declined by one-third since 1993.
The Administrative Conference of the United States has
However, the number of members per committee and
recommended that, as a best practice when creating a
statutory committee, Congress “should provide guidance
committee costs rose during the same five-year period.
GAO suggested that increased costs and membership may
concerning the intended duration of each such committee
or, alternatively, a clear explanation of the committee’s
have been the result of committee mergers.
mission and a provision that the committee should
Executive Order 13875
terminate upon completion of that mission.”
E.O. 13875 revisited aspects of E.O. 12838 and directed the
Efforts to Reduce Number of
termination of at least one-third of discretionary advisory
Committees
committees by September 30, 2019. E.O. 13875 required an
agency to apply for a waiver from OMB to create a new
Congress and other establishing entities are encouraged by
advisory committee if the number of discretionary
statute and FACA’s implementing guidance to consider
whether or not a new committee’s purposes would be
committees government-wide exceeded 350. E.O. 13992,
issued on January 20, 2021, revoked E.O. 13875. For more
duplicative of existing efforts. Two executive orders
information about E.O. 13875, see also (archived) CRS
(E.O.s), E.O. 12838 issued in 1993 and E.O. 13875 issued
Insight IN11139, Executive Order to Reduce the Number of
in 2019, have sought to reduce the number of advisory
Federal Advisory Committees, by Meghan M. Stuessy.
committees in an effort to improve advisory committee
efficiency and reduce redundancy.
Meghan M. Stuessy, Analyst in Government Organization
E.O.s cannot terminate statutory advisory committees.
and Management
However, these E.O.s do directly affect discretionary
IF12102
committees established by executive agencies and suggest
changes to committees established by or subject to renewal
by presidential directive.
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Federal Advisory Committee Act (FACA): Committee Establishment and Termination

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