Thursday, December 2, 2010

Coast Guard Partnerships and the Federal Advisory Committee Act

Excerpt from U.S. Coast Guard “Proceedings of the Marine Safety & Security Council” magazine by Mr. Rich Walter, Attorney Advisor, U.S. Coast Guard Office of Regulatory and Administrative Law.

FACA Facts
The Federal Advisory Committee Act was enacted as a way of controlling the many advisory committees established to provide federal agencies with access to the views and recommendations of industry, consumer groups, and other outside experts.

FACA’s aims are simple:
  • Provide ground rules for establishing, managing, and overseeing advisory committees.
  • Provide fair compensation of non-federal government advisory committee members.
  • Open committee meetings to public scrutiny.
  • Reduce costs by terminating unnecessary committees.

We want to ensure that all Coast Guard partnerships with people outside the federal government are constructed with this act in mind.

How Do I Tell?
Whether or not the partnership is called an “advisory committee” is irrelevant—any group that involves non-federal government personnel and that gives advice or makes recommendations to the Coast Guard might be a FACA advisory committee, no matter what it calls itself.

Is the Group Established or Utilized by the Coast Guard?
If we fund the group’s activities, determine its composition, or set its agenda, the group may need to follow FACA procedures.

Trade associations generally fall outside the act, and if we meet with an association’s representatives to hear their views on an issue, we can do so without “implicating” FACA. However, if we bring representatives of several trade associations together, we need to ask more questions before determining whether that group will be covered by FACA.

Is the Group Meant to Provide Advice or Recommendations to the Coast Guard?
We often meet with groups of citizens to discuss port safety and security measures, possible new regulations, and the like. If these meetings are called to provide information or exchange individual views, FACA is not implicated. The key is whether we meant for the group to advise us as a group.

Suppose we call a meeting with local industry leaders, environmentalists, and concerned citizens to discuss a proposed regulation. At first, some citizens say they might be agreeable to the proposal, while others say they are firmly opposed. Gradually, the tide swings in favor of the opposition, and by the end of the meeting everyone is telling us the proposal is a bad idea.

Consensus? Group recommendation? Yes, but FACA is unlikely to apply because we called the meeting to hear individual viewpoints, and did nothing to manage the meeting in such a way that attendees felt any need to agree on a single point of view.

Does the Group Fall Within a Recognized FACA Exemption?
The Coast Guard generally can meet with groups of state officials or local civic groups without triggering FACA. Also, if Congress tells the Coast Guard to use private sector committees to help implement certain measures, those committees are also likely to fall outside FACA.

To Be Sure
The Coast Guard’s Office of Regulations and Administrative Law is the office responsible for determining when a collaborative effort should—or should not—be handled under FACA. Coast Guard units should involve this office as they seek to extend stakeholder partnerships.

For more information:
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