Federal Advisory Committee Act (FACA): Membership

Federal Advisory Committee Act (FACA): Membership

October 18, 2023
Federal Advisory Committee Act (FACA): Membership
Federal advisory committees are created by Congress,
nomination process for a particular advisory committee (66
Presidents, and executive branch agencies to gain expertise
Federal Register 37743). For committees without explicit
and policy advice from individuals outside the federal
direction, the appointment process is often described in a
government. Establishing an advisory committee may allow
membership balance plan (see discussion below). Absent
the federal government to provide a forum for discussion of
these requirements, each agency head may specify an
potentially controversial topics, and reporting of
agency’s own nomination policy and procedure (see also
recommendations by experts outside the federal
GAO-19-280).
government. Federal advisory committees may also reduce
the workload of executive branch employees and Congress.
For example, certain agencies solicit nominations through a
notice published in the Federal Register; however, there is
Many federal advisory committees are subject to the
no requirement in FACA to do so. Relatedly, GSA notes
Federal Advisory Committee Act (FACA; 5 U.S.C. Chapter
that Members of Congress, agency officials, the general
10), which allows advisory committee members to offer
public, professional societies, or current and former
perspectives, advice, and ideas on the implementation of
committee members may nominate potential candidates for
federal policy. In administering FACA, the General
membership on a committee.
Services Administration (GSA) has issued guidance in the
form of a rule on membership procedures (hereinafter
Appointing Official
“Final Rule”; see “Federal Advisory Committee
The Final Rule explains that agency heads “retain the final
Management; Final Rule,” 66 Federal Register 37728-
authority for selecting advisory committee members, unless
37750, 2001).
otherwise provided for by a specific statute or Presidential
directive.” In certain cases, the appointing official may be
This In Focus provides an overview of FACA’s
the President, or the agency head may have designated this
membership requirements, including committee
responsibility to another agency official, such as the agency
composition, the nomination process, membership balance
committee management officer (CMO) who oversees the
requirements, types of members, and compensation. For
agency’s implementation of FACA.
more information on FACA, see CRS Report R44232,
Creating a Federal Advisory Committee in the Executive
Branch, by Meghan M. Stuessy.
Membership Balance Requirement
5 U.S. Code §1004(b)(2)
FACA’s Scope and Membership
Composition
FACA requires the membership of an advisory committee “be
fairly balanced in terms of the points of view represented and
FACA applies to advisory committees where at least one
the functions to be performed by the advisory committee.”
nonfederal person—such as members of the public,
business leaders, or state, local, or tribal officials—is
included in the committee’s membership. Committees
Membership Balance
“composed wholly of full-time, or permanent part-time,
FACA requires that committees have a balanced
officers or employees of the Federal Government” are
membership. The method for ensuring a committee’s
outside of FACA’s coverage (5 U.S.C. §1001).
balance varies based on its establishment authority, and
whether it is a nondiscretionary committee (e.g., those
The Final Rule further clarifies which membership
compositions and purposes are outside FACA’s scope. For
mandated by presidential directive or statute) or
discretionary committee (e.g., those authorized by law or
example, intergovernmental committees where the
established under agency authority). For more information
members are acting in their official capacities may be
outside of FACA’s coverage. GSA explains that in order to
about committee establishment, see CRS In Focus IF12102,
Federal Advisory Committee Act (FACA): Committee
be excluded from FACA “the purpose of such a committee
Establishment and Termination, by Meghan M. Stuessy.
must be solely to exchange views, information, or advice
relating to the management or implementation of Federal
For nondiscretionary advisory committees, the membership
programs established pursuant to statute, that explicitly or
balance is incorporated and assessed when Congress or the
inherently share intergovernmental responsibilities or
President drafts the establishment authority. Similarly, the
administration” (41 C.F.R. §102-3.40(g)).
establishment authority could require the membership to
Nomination Process and Appointments
hold certain levels of education, geographic diversity,
professional expertise, or interests to be represented on the
FACA does not specify the manner in which committee
committee. For discretionary advisory committees, the
members must be appointed. Statute, agency guidance, or
Final Rule requires agencies to submit a membership
executive order language, however, may stipulate the
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Federal Advisory Committee Act (FACA): Membership
balance plan when establishing or renewing an advisory
Special Government Employees (SGEs)
committee (41 C.F.R. §102-3.60(b)(3)).
An SGE is a category of federal employment reserved for
an officer or employee who is retained, designated,
Membership Balance Plan
appointed, or employed to perform temporary duties, with
GSA notes that while the membership balance plan
or without compensation, for not more than 130 days during
requirement only applies to discretionary committees, it
any period of 365 days (18 U.S.C. §202). Unlike
recommends this process to nondiscretionary committees as
representatives who, as discussed more below, may be
a good practice.
selected to represent a particular point of view, SGEs are
expected to exercise their own individual best judgment on
In November 2011 supplementary guidance, GSA directs
behalf of the government and are expected to discuss and
agencies to include nine elements in its membership
deliberate in a manner that is free from conflicts of interest.
balance plans. Among other balance factors, such as the
geographic location of candidates, the importance of
Representatives
including members from other levels of government, and
A representative is not a government employee. The
diversity in work sector, a plan must also consider the
appointing authority could designate a committee member
candidate identification process and points of view to be
as a representative if the member is expected to provide the
represented.
point of view of a nongovernmental entity or of a
recognizable group of persons (e.g., an industry sector,
Candidate identification process. The membership
balance plan must summarize the agency’s process to
labor unions, or environmental groups). Generally, under
the guidance, it is expected that representatives will
identify candidates for the committee, resources the agency
represent a particular bias (OGE Advisory Letter 93 x 14).
will use to identify candidates (such as recommendations
from current and former members of the committee,
Membership Designation and Ethics
publication of nomination notices in the Federal Register,
Responsibilities
and search of relevant professional organizations), and key
If the relevant legislation or other establishment authority
agency officeholders who will evaluate the committee for
does not clearly identify how a committee’s members
balance.
should be designated, agency officials are generally
Points of view. GSA directs an agency to describe its
expected to determine each member’s status. OGE provides
process for ascertaining balance among an advisory
legal advisories on what factors agency officials should use
committee’s membership by identifying categories (such as
to determine a member’s designation. These include
individual expertise or represented interests) from which
whether the member is to be paid and if the member is
candidates for membership will be considered. In addition,
speaking on behalf of the federal government (OGE
the plan may identify the anticipated relative distribution of
Memorandum 82 x 22).
membership across these categories, and should discuss
Depending on employment classification, FACA committee
how members will be appointed as special government
members may be subject to the Ethics in Government Act
employees (SGEs) or representative members.
(EIGA). For example, SGEs who serve as committee
Types of Members
members are required to file financial disclosure statements
with their agencies and to negotiate conflict-of-interest
FACA allows for many types of individuals to serve on
remediation, if necessary. SGEs, however, are not generally
advisory committees. Committee members may have
subject to outside employment and income restrictions that
different types of expertise or interactions with the federal
apply to “regular” government employees (5 C.F.R. §2636).
government, and therefore may be appointed in one of three
“Representatives,” since they are not government
categories: ex officio, special government employee, and
employees, are not subject to EIGA requirements. For more
representative. These different types of members may have
information on the EIGA and financial disclosure, see CRS
different ethical requirements. Executive branch ethics
Report R47320, Financial Disclosure in the U.S.
regulations are set by the Office of Government Ethics
Government: Frequently Asked Questions, by Jacob R.
(OGE); individual implementation of ethics requirements
Straus.
occurs at the agency level.
Furthermore, “agencies do not conduct conflict-of-interest
Compensation
reviews for members appointed as representatives” because
FACA does not require that committee members be
only regular and special government employees are subject
compensated. The statute, however, permits agencies to
to the conflict-of-interest statutes (GAO-04-328, p. 18).
compensate members, including salaries, reimbursement of
travel expenses, and per diem in lieu of subsistence (5
Ex Officio
U.S.C. §1006). In implementing FACA, the GSA
An ex officio member holds membership on an advisory
Administrator established uniform fair rates of pay for
committee by virtue of his or her federal office, and serves
committee members, staff, and consultants (41 C.F.R.
only while an incumbent of such a position. For example, if
§102-3.130).
an advisory committee’s establishing statute or directive
requires an agency Deputy or Assistant Secretary to be a
Meghan M. Stuessy, Analyst in Government Organization
member of a particular advisory committee, they would
and Management
serve in an ex officio capacity.
Jacob R. Straus, Specialist on the Congress
IF12512
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Federal Advisory Committee Act (FACA): Membership

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