The Federal Advisory Committee Act

Ken Becher

Aug 30, 2021

The Advisory Committee has long been a valuable resource for federal officials and agencies. In fiscal year 2019 alone, federal agencies had received more than 1,000 support from advisory committees and had more than 60,000 members. The Federal Advisory Commission Act(FACA) attempts to establish a control and disclosure mechanism for the use of informal advisers, which inadvertently creates barriers for regulatory decision makers to obtain advice from the public and industry representatives.

Although FACA is well-meant, it actually hinders agencies’ willingness to cooperate with external consultants.The question of when to invoke FACA and comply with its requirements has raised concerns among agency employees. If agency employees want to meet regularly or hold multiple meetings with groups in a particular industry, they must consider whether to treat these groups as advisory committees, which may involve FACA. As a result, some agency employees will avoid interaction with external consultants, which results in very limited access to key information about financial technology issues from industry participants.

The provisions of FACA also limit the frequency and efficiency of advisory meetings. During the meeting, agency employeesbecame aware that their discussionswere open, which could have a negative impact on frank discussions—the requirement of openness discouraged the committee from providing valuable insights to the agency in a timely manner.

Driven by efficiency and governance issues, FACA was promulgated in 1972, which formally determined the rules for the establishment, operation and termination of the Federal Advisory Committee. Before the operations begin, the advisory group charter must be submitted by designated agency officials to senior agency officials, Congress, the Library of Congress, and the General Services Administration (GSA), and it must go through several levels of review. Once the review is completed by the committee management secretariat of GSA, the charter must be published in the Federal Register, which is asa notice of its formation.

Almost all advisory committee meetings must be open to the public, just with a few exceptions.Adequate notice of these meetings must be published in the Federal Register. The advisory group must maintain detailed meeting minutes, which should at least include: "Records of attendees, complete and accurate descriptions of the mattersdiscussed and conclusions reachedat the meeting, and copies of all reports received, issued or approved by the Advisory Committee."This information, as well as all other documents used by the Committee, must subsequently be made available to the public for inspection.

Many agency employees’ concerns about FACA stem from the unclear applicability of its regulations.This revision may require all advisory committees to comply with the requirements of FACA, so as to solve the problem of the fuzzy of application.

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