PCAP - Presidential Climate Action Project

make an important presentation, he might be persuasive, the information he provides mightaffect the committee’s judgment; however, if he has neither a vote nor a veto over the advice thecommittee renders to the President, he is not a committee member. 459 Thus, if there are nonfederalemployees who participate in a committee but do not have voting authority, or authorityto veto a committee’s consensus decisions, FACA, including the open meeting requirements,does not apply. 460Exceptions to particular FACA requirements include: 1) if the President determines for reasonsof national security, notice of meetings may not be published or provided; 461 and 2) any portionof a committee meeting may be closed to the public and interested persons where the President,or the head of the agency to which the advisory committee reports, determines that such portionof such meeting may be closed in accordance with 5 U.S.C. § 552b(c), the open meetings law. 462This exception is intended to prevent disclosure of certain types of information, for example,matters that are specifically authorized under criteria established by an executive order to be keptsecret in the interests of national defense or foreign policy; matters that relate solely to theinternal personnel rules and practices of an agency; matters that are specifically exempted fromdisclosure by statute; disclosures that are trade secrets and commercial or financial informationobtained from a person and privileged or confidential. There are 10 categories of exceptions inthis provision.Functions of FACA Committees. Although the function of an advisory committee is to be“advisory only,” drafting policy proposals, recommendations and plans are appropriatefunctions for a FACA committee. 463 For example, an advisory committee created by theDepartment of Energy, the Energy Policy Task Force, prepared the National Energy Plandraft. 464Timing. Unless renewed by the President, an advisory committee shall terminate two years afterthe date it is established. 465 The President can terminate a committee prior to that time byexecutive order.Designated Federal Officer. There shall be designated an officer or employee of the FederalGovernment to chair or attend each meeting of each advisory committee. The officer oremployee so designated is authorized, whenever he determines it to be in the public interest, toadjourn any such meeting. No advisory committee shall conduct any meeting in the absence of459 In re Cheney, 406 F.3d 723, 728 (C.A.D.C. 2005).460 There are other considerations in determining whether a person is a “member” of a committee. See GSA, FederalAdvisory Committee Management, Advice and Guidance, “When FACA is and is not Applicable to Interactionswith the Private Sector”, available athttp://www.gsa.gov/Portal/gsa/ep/contentView.do?contentType=GSA_BASIC&contentId=10348&noc=T (e.g.,obtaining information or viewpoints from individual attendees as opposed to advice, opinions or recommendationsfrom the group acting in collective mode; regularity of participation, etc.). However, PCAP is committed torestoring trust in government through transparent and open proceedings so this is not addressed in detail here.461 5 U.S.C. App.2 § 10(a)(2).462 Id. at § 10(d).463 Id. at § 9(b).464 See 60 Comp. Gen. 386, B-202455, 1981 WL 22494 (Comp. Gen.); 5 U.S.C. App. 2 § 9(b).465 5 U.S.C. App. 2 § 14(a)(2).CEES 120 | P age