BLM Desk Guide to Cooperating Agency Relationships - National ...

vary from State to State. The AO and the CAmust decide on the best ways to work togetherand describe that approach in the MOUestablishing the CA relationship. Keepingpredecisional material from public view ifpermitted under the law may encourage candiddiscussion among all members of the planningor project team, including CA representatives.FACA compliance► Are meetings between theBLM staff and CAs subject to therequirements of the FederalAdvisory Committee Act(FACA, 5 U.S.C. App. 2)?As a general matter many meetings betweenBLM staff and CAs are exempt from FACApursuant to the Unfunded Mandates ReformAct. This intergovernmental exemption toFACA applies to meetings between Federaloffi cials and elected State, local, or tribalgovernment offi cials “or their designatedemployees with authority to act on their behalf”acting in their offi cial capacity (2 U.S.C.1534(b)). The criteria below must be metfor the intergovernmental exemption to beapplicable.Unfunded Mandates Reform Act, 2U.S.C. 1534(b)The Federal Advisory CommitteeAct (5 U.S.C. App.) shall not apply toactions in support of intergovernmentalcommunications where—(1) meetings are held exclusivelybetween Federal offi cials and electedoffi cers of State, local, and tribalgovernments (or their designatedemployees with authority to act on theirbehalf) acting in their offi cial capacities;and(2) such meetings are solely forthe purposes of exchanging views,information, or advice relating to themanagement or implementation ofFederal programs established pursuantto public law that explicitly or inherentlyshare intergovernmental responsibilitiesor administration.Further, even if the requirements of theUnfunded Mandates Reform Act are notmet, FACA will not apply to the group if thesole purpose of the meeting is to “exchangefacts or information” (41 CFR 102-3.40(f)).Additionally, FACA will not apply if a groupmeeting occurs with a Federal offi cial whereadvice or recommendations are sought fromthe attendees on an individual basis and notfrom the group as a whole (41 CFR 102-3.40(e)). These FACA considerations areparticularly important at key decision pointsin a planning or project assessment process,such as the designation of alternativesfor analysis or the selection of a preferredalternative.The BLM’s Collaborative StakeholderEngagement and Appropriate DisputeResolution Program has developed guidanceon FACA, which is available online at http://www.blm.gov/style/medialib/blm/wo/Planning_and_Renewable_Resources/adr_confl ict_prevention.Par.24269.File.dat/facaguide.► May a CA be represented by acontractor instead of an official oremployee of the CA?Yes, but only if the appropriate relationshipbetween the CA and the contractor isestablished. Meetings in which a CA isrepresented by a contractor who is not anoffi cial or employee of the CA with authorityto act on behalf of the CA acting in its offi cialcapacity are generally not covered by theintergovernmental FACA exemption (2 U.S.C.1534(b)). In some situations, State law maytreat the contractor as an employee, and theintergovernmental exception to FACA mayapply. See the question on FACA above formore guidance.It is important to emphasize that the CArelationship is intended to facilitate theexchange of views and expertise betweenBLM personnel and other governmentoffi cials and staff. The BLM recognizes thatlimited local government staff and potentiallyheavy time demands of the CA role maymake it necessary in some instances todesignate contractors to participate in someSection 4. Cooperating Agency Relationships: Frequently Asked Questions35