Federal Advisory Committee Act (FACA): Meeting Requirements

Federal Advisory Committee Act (FACA): Meeting Requirements

Updated October 19, 2023
Federal Advisory Committee Act (FACA): Meeting
Requirements
Federal advisory committees are created by Congress,
The Final Rule recognizes that not all gatherings address
Presidents, and executive branch agencies to gain expertise
substantive matters that require public inspection. The Final
and policy advice from individuals outside the federal
Rule excludes the activities of two or more advisory
government. Establishing an advisory committee may also
committee members related to
allow the federal government to provide a forum where
potentially controversial topics may be discussed by experts
• preparatory work: meetings convened “solely to gather
outside the political arena and reduce the workload of
information, conduct research, or analyze relevant issues
executive branch employees and Congress.
and facts in preparation for a meeting of the advisory
committee, or to draft position papers for deliberation by
Many federal advisory committees are subject to the
the advisory committee”; and
Federal Advisory Committee Act (FACA; 5 U.S.C. Chapter
10), which includes statutory meeting and transparency
• administrative work: meetings convened “solely to
requirements. The Committee Management Secretariat
discuss administrative matters of the advisory
(hereinafter “Secretariat”) of the General Services
committee or to receive administrative information from
Administration (GSA) is responsible for matters relating to
a Federal officer or agency.” (41 C.F.R. §102-3.160)
advisory committees subject to FACA. As part of this
responsibility, GSA has issued guidance on meeting
According to GSA, FACA requires “contemporaneous
procedures (“Federal Advisory Committee Management;
access to the advisory committee deliberative process.”
Final Rule,” 66 Federal Register 37728-37750, 2001).
Critics, however, have questioned the relationship between
emails and the preparatory work exception as possibly
In the Final Rule, GSA stated
allowing agencies to conduct business without triggering
FACA. To remedy this tension, in 2011, the Administrative
[w]hile FACA is not a public participation statute,
Conference of the United States suggested a FACA revision
it directly affects how the executive branch is held
to permit the use of a moderated web forum to be open for
accountable for the use and management of Federal
an extended period of time, rather than solely for the
advisory committees as a major means of obtaining
duration of the meeting, in order to capture deliberative and
public involvement.
preparatory comments. This recommendation has not been
adopted to date.
One of these methods is through FACA’s open and
accessible meeting requirements.
Frequency of Meetings
While FACA does not provide for a minimum or maximum
This In Focus provides an overview of the type of meetings
number of advisory committee meetings, the statute does
covered by FACA, frequency and notice considerations,
indicate that the estimated number and frequency of
open meeting requirements, and meeting minute
meetings must be reported when an advisory committee
preparation requirements. For more information on FACA,
files its charter with GSA (5 U.S.C. §1008). A committee’s
see CRS Report R44232, Creating a Federal Advisory
charter must define the federal advisory committee’s
Committee in the Executive Branch, by Meghan M.
mission or charge, its specific duties, and general operating
Stuessy.
characteristics.
Defining Meetings
When an advisory committee is established, its statute,
While the statute itself does not specify, the Final Rule
agency guidance, or presidential directive creating the
provides a definition of what types of gatherings are subject
committee may specify the number and frequency of
to FACA’s meeting requirements and procedures.
meetings. These meeting requirements would similarly be
reported in the committee’s charter. For more information
What Is a Committee Meeting?
on the establishment of federal advisory committees, see
CRS In Focus IF12102, Federal Advisory Committee Act
Committee meeting means any gathering of advisory committee
(FACA): Committee Establishment and Termination, by
members (whether in person or through electronic means)
Meghan M. Stuessy.
held with the approval of an agency for the purpose of
deliberating on the substantive matters upon which the
Meeting Notice Requirements
advisory committee provides advice or recommendations.
The Final Rule requires advisory committee meeting
“Federal Advisory Committee Management; Final Rule,” 66
notices to be published in the Federal Register at least 15
Federal Register 37734, July 19, 2001.
calendar days in advance. Such a notice is to include
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Federal Advisory Committee Act (FACA): Meeting Requirements
• the name of the committee;
C.F.R. §102-3.140) Meeting rooms are to be sufficient to
accommodate committee members, staff, and a reasonable
• the time, date, and place of the meeting;
number of interested members of the public.
• a summary of the agenda;
As part of its public accessibility tenets, the Final Rule also
requires that any member of the public be permitted to file a
• a statement of whether the meeting is open to the public
written statement with the advisory committee. However,
or will be closed pursuant to the Government in the
members of the public may address the committee only if
Sunshine Act (Sunshine Act; 5 U.S.C. §552b); and
the agency’s guidelines permit it. In the event the meeting
is held by teleconference or virtually, the format must also
• the name of the Designated Federal Officer or other
meet these same requirements. (41 C.F.R. §102-3.140(e))
responsible agency official who may be contacted for
additional information concerning the meeting.
Questions regarding meeting accessibility still remain. The
Final Rule does not require agencies to conduct meetings in
Meetings may not take place with less than 15 days’ notice
specific formats. Meetings held in person may limit
unless the meeting is determined by the President to be
participation to those who can travel to the meeting, while
necessary for national security reasons (5 U.S.C. §1009) or
virtual meetings may limit meetings to the digitally literate
due to “exceptional circumstances,” provided the reasoning
and those with internet access and appropriate hardware or
is included in the Federal Register notice. (41 C.F.R. §102-
software.
3.150)
Additionally, current guidance does not require meetings to
Open Meetings
be held in multiple formats, nor does it prohibit an agency
In order for Congress and the public to be kept informed on
from doing so. Depending on the type of software or virtual
the activities of advisory committees, FACA provides that
meeting method selected, participants with disabilities may
meetings be open and available to public inspection. GSA’s
be impacted differently. Though the Final Rule references
discussion of meeting accessibility includes the requirement
Section 504 of the Rehabilitation Act of 1973, it may also
that any member of the public be permitted to file a written
be possible that Section 508, governing the accessibility of
statement with the advisory committee, and be permitted to
electronic and information technology, would apply. For
speak or address the advisory committee in accordance with
more information on Section 508, see CRS In Focus
the agency’s guidelines. As described above, meetings
IF12093, The Accessibility of Federal Information and
consisting of preparatory or administrative work do not
Data: A Brief Overview of Section 508 of the Rehabilitation
have to comply with the open meeting requirements of
Act, by Natalie R. Ortiz.
FACA.
Minutes Requirements
Closing a Meeting
FACA requires that detailed minutes of each advisory
FACA also permits advisory committees to close meetings
committee meeting be kept. Under the Final Rule, minutes
in whole or in part in a manner compatible with the
are to include
Sunshine Act. The Sunshine Act includes 10 exemptions
that allow deliberations to be closed to the public (5 U.S.C.
• the time, date, and place of the meeting;
§552b(c)). The exemptions allow meetings that might
disclose, for example, trade secrets and commercial or
• a list of persons who were present, including committee
financial information, to take place behind closed doors.
members and staff, agency employees, and members of
The Sunshine Act’s exemptions bear many similarities to
the public who presented oral or written statements;
the nine exemptions of the Freedom of Information Act
(FOIA; 5 U.S.C. §552).
• an accurate description of each matter discussed and the
resolution; and
Under the Sunshine Act, any member may request a vote on
whether to close a meeting. The vote must be recorded and
• copies of each document received, issued or approved.
the results made publicly available within one day of the
vote being taken (5 U.S.C. §552b(d)(3)). The act also
Statute requires that the accuracy of the advisory
stipulates that the meeting notice will also indicate whether
committee’s minutes be certified by the committee’s chair
the meeting is to be open or closed to the public (5 U.S.C.
(5 U.S.C. §1009(c)). Furthermore, the agency’s
§552b(e)(1)). For more information about the Sunshine Act
representative, or Designated Federal Officer, must ensure
and FOIA, see CRS Report R47058, Access to Government
the minutes are certified within 90 calendar days of the
Information: An Overview, by Meghan M. Stuessy.
meeting. (41 C.F.R. §102-3.165) However, the guidance
does not indicate that meeting minutes must be published in
Meeting Accessibility and Virtual Formats
advance of the committee’s next meeting date.
The Final Rule recognizes that meetings may be held in
person or virtually. GSA stipulates that virtual meetings,
Meghan M. Stuessy, Analyst in Government Organization
like those held in person, must comply with Section 504 of
and Management
the Rehabilitation Act of 1973, as amended (29 U.S.C.
§791 et seq.) and be held at a reasonable time and in “a
IF12252
manner or place reasonably accessible to the public.” (41
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Federal Advisory Committee Act (FACA): Meeting Requirements

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https://crsreports.congress.gov | IF12252 · VERSION 49 · UPDATED