VIII. Common Challenges for Partnerships

Federal Advisory Committee Act

Often groups work together collaboratively to resolve land management conflicts and want to provide their input to the federal agencies that manage the involved lands. Under the Federal Advisory Committee Act of 1972 (FACA), federal agencies must follow certain guidelines for working with these groups and integrating their ideas into agency decisions.

In enacting FACA, Congress formally recognized the merits of seeking advice and assistance from the nation's citizens. They also wanted to ensure access for all citizens in agency policy decisions. Although the basic purpose of FACA is to support the kind of open discussion and decision-making processes that occur in a collaborative environment, FACA has sometimes been seen as a barrier to collaboration. This is because many people feel that no groups or discussions can be convened to discuss land management issues unless a formal federal advisory committee is established. This does not have to be the case if the members of the group have a basic understanding of the law and agency guidelines.

Partnerships and FACA

The intent of FACA is to provide accountability and public access to policy decisions. If an agency like the Forest Service wants to form a committee to get advice, it must seek approval under FACA. For example, Resource Advisory Committees (RAC), serve as a way to improve collaborative relationships between various interest groups and the agency working on projects that benefit resources on or adjacent to National Forests. RACs are subject to FACA regulations because t hese committees are established by Congress to provide advice and recommendations to the Forest Supervisor for the approval of projects. Other groups that are established by the agency without direct congressional authorization, like the National Environmental Justice Advisory Council, would also be subject to FACA.

There are many situations when FACA does not apply to a group. For example, local watershed groups and National Forest friends' associations are not subject to FACA if the agency does not manage or control the group, even if Forest Service personnel participate. The table at the end of this section will help clarify these issues.

Revised Regulations Ease Implementation

In 2000, the General Service Administration (GSA), the federal agency responsible for implementing FACA, released revised regulations for putting FACA into practice. These regulations are based on case law that had developed in the 20-plus years since FACA was passed. The revised regulations do not change FACA, but they do clarify some of the provisions that have created problems in the past.

Three Key Tests

There are three questions to ask to determine if FACA applies to a group in any given situation. The answer to each of the following questions must be “yes” for FACA to apply:

• Is the group a committee? If the group is a committee that has some formal structure, fixed membership, and specific purpose, and seeks to reach a position as a group, FACA regulations may apply. Advice from individuals, taken either singly or in a meeting, is not regulated by FACA.

• Is the committee “established” or “utilized” by an agency? If an agency establishes the group or has a large share in controlling the group, such as setting the agenda or determining the membership, FACA regulations may apply. If the committee is established and run by a non-federal individual or group it may not violate FACA, even if federal employees are invited to participate.

• Is the purpose of the committee to give advice to the agency? If the purpose of the committee is to directly advise the agency, FACA regulations may apply. A committee formed for other purposes, such as monitoring, conducting investigations, and carrying out other specific activities, does not fall under the purview of FACA if it incidentally advises the agency. A group formed for some other purpose or to give advice to another entity that ends up giving advice to the agency also does not fall under FACA regulations.

The flow chart in this section can also help users determine if FACA applies to their group.

• Graphic version of flowchart
• Web page version of flowchart
• PDF version of flowchart

Where to Find More Information

General Services Administration website – A wealth of information is available at http://www.gsa.gov . Click on “Policy” and select “Management of Federal Advisory Committees” to find GSA information on FACA and its implementation.

Laws and regulations – The revised regulations include an appendix that has several helpful, clearly written examples. These can be found in Part 102-3, Subpart A, Appendix A. The implementing regulations and the text of the original law can be found at the GSA website
http://www.gsa.gov.

Forest Service FACA coordinators – Each Forest Service Region has a FACA coordinator. There is also a national coordinator. These individuals are the primary resource for field employees who need advice on FACA. Each local Forest Service office has more information.

Office of General Counsel – Each Forest Service Region has access to legal opinion through the U.S. Department of Agriculture's Office of General Counsel. Requests for Office of General Counsel opinions are usually controlled by the Department's Regional offices. The Office of General Counsel in Portland , Oregon , has summarized some important FACA information that is available on the Willamette National Forest web site (PDF).

Other attorneys – Some organizations that work with the Forest Service have access to legal services. For those groups, their own attorneys may provide a source of legal information about the situations in which FACA applies.

National Forest Foundation • USDA Forest Service • Partnership Resource Center