Erosion of Public Access Under the Federal Advisory Committee Act (FACA). D. M. Byrd, CTRAPS; T. R. Bartman, Shapiro, Lifschitz and Schram; and J. V. DeLong, National Legal Center for the Public
Federal Agencies previously had to comply with FACA (5 U.S.C. App. II), when they established or utilized an advisory committee to obtain advice. FACA created roles for the public in observing the advisory process and in contributing information, subject to Freedom of Information Act exemptions. Recent developments significantly vitiate public participation in, and enlightenment of, advisory committees. Any agency preferring to avoid scrutiny or other duties can now exploit two exemptions to shield these processes from public attention and comment. (1) The General Services Administration (GSA), which has government-wide responsibility for the management of advisory committees FACA, has proposed [65 FR 2540 -2519 (1/14/00)] a revision of the applicable regulation, which included a separate class of nonFACA committees providing similar advice. Under the proposal, subcommittees reporting to a parent committee will become exempt from FACA. Thus, agencies can move all substantive work into subcommittees to exclude the public (the subcommittee exemption). (2) In Byrd v. EPA 174 F.3d 245), the Court of Appeals for the D.C. Circuit recently interpreted FACA [Public Citizen v. Dept. of Justice, 491 U.S. 440 and Food Chem. News v. Young, 900 F.2d 328 (D.C. Cir.)] as meaning that a group set up by a contractor to advise an agency is not a FACA committee. Thus, an agency can retain a contractor to manage an advisory process and exclude the public (the contractor exemption).
Go to . . .
2000 SRA Annual Meeting Table of Contents
2000 SRA Annual Meeting Author Index
Main Abstracts Menu Page
RiskWorld Home Page