Federal Advisory Committee Act

“ Similar attempts to regulate the Federal Government's use of advisory committees were common during the 20 years preceding FACA's enactment. See Note, The Federal Advisor Committee Act, 10 Harv.J.Legis. 217, 219-221 (1973) . An understanding of those efforts is essential to ascertain the intended scope of the term "utilize."
In 1950, the Justice Department issued guidelines for the operation of federal advisory committees in order to forestall their facilitation of anticompetitive behavior by bringing industry leaders together with Government approval. ”

“ Each agency shall be responsible for providing support services for each advisory committee established by or reporting to it unless the establishing authority provides otherwise. Where any such advisory committee reports to more than one agency, only one agency shall be responsible for support services at any one time. ”

“ When Congress requires specific procedures, agencies may not ignore them or fashion substitutes. (FN16)
A congressional directive to consult an advisory committee is more than a formality. The Court of Appeals for the District of Columbia emphasized the significance of advisory committees in explaining the procedural requirements within the Federal Coal Mine Health and Safety Act of 1969:
The most important aspect is the requirement of consultation with knowledgeable representatives of federal and state government, industry and labor. ”

“ The Director, after study and consultation with the Civil Service Commission, shall establish guidelines with respect to uniform fair rates of pay for comparable services of members, staffs, and consultants of advisory committees in a manner which gives appropriate recognition to the responsibilities and qualifications required and other relevant factors. ”

“ Although the bill would have required agencies to report to Congress on their use of advisory committees and would have subjected advisory committees to various controls, it apparently would not have imposed any requirements on private groups, not established by the Federal Government, whose advice was sought by the Executive. ”

“ But unlike in Locke, where "nothing in the legislative history remotely suggest [ed] a congressional intent contrary to Congress' chosen words," 471 U.S., at 96, 105 S.Ct., at 1793, our review of the regulatory scheme prior to FACA's enactment and the likely origin of the phrase "or utilized" in FACA's definition of "advisory committee" reveals that Congress probably did not intend to subject the ABA Committee to FACA's requirements when the ABA Committee offers confidential advice regarding Presidential appointments to the federal bench. ”

“ The terms and method of selecting the governing committee members are as provided in the constitution or bylaws of the FFA, except that all members of the governing committee shall be members of the board of directors and at all times the governing committee shall be comprised of not less than 3 individuals. ”

“ Under the law of its creation, the Council of National Defense is not an executive body, its principal function being to supervise and direct investigations and make recommendations to the President and the heads of the executive departments with regard to a large variety of subjects. The advisory commission is thus advisory to a body which is itself advisory, and the subordinate bodies authorized to be created are collectors of data upon which advice can be formulated. ”

“ The Director is authorized, with the approval of the President, to appoint such additional advisory committees and subcommittees, with respect to State and local cooperation, national morale, civil defense planning, civilian participation, and related defense activities, as he may find necessary or desirable to assist him in the performance of his duties. Such advisory committees may include representatives from Federal departments and agencies, State and local governments, private organizations, and the public at large. ”

“ When the board is not in session, the governing committee has the powers of the board subject to the board's direction and may authorize the seal of the FFA to be affixed to all papers that require it. ”