Forest Service’s FACA Easy Button

I think we posted this earlier in blog history, but I couldn’t find it and FACA has come up again.. so here goes.

Here
is the link:

Here is an excerpt:

Best Practices for Avoiding FACA Violations

Help participants understand how to work with the Forest Service in a FACA-compliant manner; Ensure that Forest Service staff and external stakeholders understand what constitutes consensus advice or recommendations under FACA;

o Individual group members can provide their own personal opinions, advice, or recommendations without implicating FACA.

o This is true even if several individual members of a group provide similar or identical opinions, advice, or recommendations.

Do not solicit consensus advice or recommendations from a group that was established, utilized, managed, or controlled by the Forest Service;

Inform (orally and in writing) members of a group that was established, utilized, managed, or controlled by the Forest Service that the agency cannot obtain the group’s consensus advice or recommendations without triggering FACA;

Seek advice or recommendations from interested stakeholders only after making clear that the agency is not asking the group to reach consensus or to provide only consensus advice;

Ensure that collaborative meetings are open to the public and properly advertised in advance;

Keep detailed minutes of all collaborative meetings;

and Make all records, reports, transcripts, minutes, and other information related to a collaborative group publicly available.

Here’s a big thank you to all involved: Peter Williams, who coordinated it, and other Forest Service folks, OGC, National Partnership Office (NPO) and the Office of Regulatory Management Services (ORMS). This is now the FS’s default “EZ Button” for FACA.

This is a bit of an aside, but when I worked in applied forest ecology (aka silviculture), it was considered good to write things down so that people who didn’t know as much as you do about a certain topic could learn.. you would still be the expert, but there are many things that they could learn for themselves and people on the ground learning more was generally thought to be a good thing. When I got into planning, I discovered that lawyers did not generally feel the same way about writing down helpful summary documents and white papers. Unfortunately, we were assigned to write one called “When NEPA applies” and that’s where I learned this. I think the problem is “writing down” because the lawyers’ reaction to written down “lessons learned” was not good either. In the case of “lessons learned” because plaintiffs could acquire them. Anyway, I just wanted to share what appeared to me to be a cultural difference between “biological advice world” and “legal advice world.” Which makes things like this document even more difficult to do and more worthy of appreciation, IMHO.

14 Comments

  1. “In the case of “lessons learned” because plaintiffs could acquire them.”

    I would be interested in an ethical reason why the government should not share its knowledge about its mistakes. (Of course a practical reason why it should is so it does not make the same mistakes again, but an unethical reason to hide this information would be so it can make those ‘mistakes’ again.)

    • The way I heard it it was that written statements of what went wrong could fall into the hands of those as “things to look for people doing wrong on other projects” . Which is definitely true at the time of appeals.. when there is a great opportunity for feedback from the appeal team. Because those show all the potential places where a project might have weaknesses (in the opinions of those reviewing).

      Now if there were a document called “top ten things not to do in your project NEPA” that was based on a region’s experience (these presentations were always popular at Ranger meetings, getting many guffaws at the hapless unnamed units), I got the feeling we shouldn’t write it down and pass it around. I think because perhaps if someone made those mistakes it would be seen as going against policy? Although handouts are not policy…

      I wish there were a retired OGC person on this blog so that we could understand their rationale better.

  2. Nice point about the different and conflicting views on memorializing. This reminds me of the tension that was felt, when I was a member of the Coeur d’Alene Forestry Coalition, over whether some members or guests may have been present at discussions not to achieve some sort of consensus (or at least mutually agreeable) plan but instead to gather information for a potential challenge or court suit. These kinds of sociological stresses are fascinating.

  3. This is all why it’s so much fun to get a 15,000-page administrative record, including many cryptic emails and undecipherable scribbled meeting notes and sketches, with a 30-day window to either say it’s good enough or move the court for amendment of it, and try to figure out what may have been left out and why… no easy solutions, except maybe mandatory penmanship lessons for FS employees (kidding)

    • Hmm.. when a person decides to invoke an adversarial process, it seems like there are natural consequences. Like the other group becomes your adversary, and does not design their work to make yours easier ;).

      It’s not a lot of fun to have people you don’t know read your emails either.. and who has not written an email that would seem cryptic to if someone else outside the office read it? Let that person cast the first stone…

      You have reminded me is that there is a sense in which the FS has to deal in such processes with the equivalent of one hand tied behind its back.

      Appellants and plaintiffs make snarky written and verbal comments.. FS must be professional.
      Appellants and plaintiffs don’t show their work. FS must…
      FS employees leak FS info to plaintiffs and appellants… NGO employees. not so much.

      So we can all agree that it would be better to have ADR than to go through litigation?

      • I would much rather read an admin report than have to assemble one, no doubt about that! Somewhere recently I read a FS manual on “how to write an admin report”, it was really excellent, will have to look for it… Way back when I worked for the EPA in a microbiology lab, everything we did had to be in a lab book in ink, with carbon copy, and each page signed in ink…. because it might one day end up in court. It was a pain in the butt but resulted in quality documentation, not sure that ADR would have the same motivational effect… although of course we never had to work in the woods, in the rain and snow, watching out for griz… 🙂

  4. Very much appreciate the thanks. Thought I’d mention that the FS’s “Partnership Resource Center” (PRC) has many other materials available publicly and electronically, including links to resources housed electronically elsewhere thanks to partners, organizations, and others. The PRC is the result of a partnership with the National Forest Foundation and several FS staffs, including the National Partnership Office and Ecosystem Management Coordination, as well as several other non-governmental organizations. The link is this: http://www.fs.usda.gov/main/prc/home

    Our next aim is to make more progress on the idea of capturing and sharing lessons learned. Jon and Sharon raise important points about related concerns and about what might be called the perverse or unintended consequences. Yet, perhaps there are innovative ways to address those concerns. I’d certainly welcome thoughts, as well as any discussion that might follow on this site. As we make progress, I’ll aim to share with folks here as well as elsewhere.

  5. Thanks for the invitation to re-post, Guy. Maybe there isn’t a good solution to the “categorical imperative” problem — i.e., that the blog would be a mess if everybody re-posted from their favorite blog. Posting whole articles or extracts doesn’t address that problem of course. But, and then again, it reminds me of an anecdote from my basic training days at Fort Ord in the mid-1960s (E-2, USAR, 1966-1972). (May I?) One guy in our platoon managed to keep a little pet turtle, in a little pond with an island, in his footlocker. I don’t know how he got through a succession of Saturday inspections without that turtle being noticed. But somehow he did. Then, say about four or five weeks in, the platoon SGT spotted it and confiscated it. We all felt a little sorry for the loss. The guy had to report to the company commander over the matter. And when he returned to the barracks we were all curious to learn what had happened. What had the captain said? “Oh, you know,” said the guy, “he said that if let me keep a turtle then EVERYBODY would want to have one, too!”

  6. It is a fine FACA line the Forest Service is walking with its collaboratives. The “Best Practices” advice appears to fall on the wrong side of that line.

    First, “consensus” is not necessary to trigger FACA. Majority vote of the committee membership is also sufficient to satisfy FACA’s “advice and recommendations” prong.

    Second, FS fiscal support for a collaborative is a FACA red flag. Although government fiscal sponsorship is not necessary for a collaborative to fall under FACA, the fact of such financing argues that FACA applies.

    Third, the very purpose of a “collaborative” is discussion among its members for the purpose of reaching recommendations (whether by majority vote or consensus). This distinguishes collaborative groups from town hall meetings, workshops or conferences where the purpose is to give individuals a chance to state their individual views on an agency proposal or plan.

    • Hi Andy,

      If I may, let me offer some thoughts that might clarify your three points. On your first, it seems important to reduce the possibility of some folks might confuse the presence of “consensus” with the act of “majority voting.” As the Best Practices document explains, just because consensus exists doesn’t mean the process or agency actively sought consensus. It is the act of “seeking” consensus that is a FACA-related issue. You are right that the mere existence of consensus is not sufficient to trigger FACA, which the Best Practices document makes clear. You’re also right that a process which seeks consensus, sometimes indicated by a majority vote as part of that process, would be a red flag (as in “necessary but not sufficient”).

      On your second point, as the Best Practices document and GSA’s FACA guidance and federal Rules explain, only specific procedural actions—ultimately as determined by a court—violate FACA (even these Best Practices can’t guarantee that no one will challenge a process because such a choice would be out of our hands). Of those specific actions, however, at least generally, the mere fact of fiscal or financial support is insufficient to prove a violation. Instead, the issue more likely would be whether the financial support was used to establish a process that violated FACA.

      This is important because FS folks and others should know that providing some financial support, such as funding a facilitator or other contractor to support a collaborative process, not only is an option, but often is a very well received, valuable sign of sincerity.

      On your third point, for what it’s worth, many of the process-related issues I run into often stem from framing the purpose of a collaborative discussion as being about “reaching recommendations.” There are perfectly good agency-convened processes for participants to prepare and present recommendations (note that a group coming together on its own and preparing recommendations is not an issue here). For example, there are times when establishing an official FACA committee can be really good. An agency-convened collaborative process, however, is not one of those.

      It also would seem important to distinguish between a collaborative “group” and a collaborative “process.” Establishing an agency-convened collaborative group often seems to raise more concerns than setting up a collaborative process. The FACA Best Practices document doesn’t talk about these last points because it focuses on FACA practices, not those of collaboration more broadly. The FS’s Partnership Resource Center has some material that might help (Homepage: http://www.fs.usda.gov/prc).

      I hope this doesn’t sound too much like “Inside Baseball”…

  7. I have this document saved and have referred to it several times over the past year or two. But something about reading the Best Practices out of context from the rest of the document really threw me. They do seem to suggest that “consensus” is the issue, while it’s really the degree of control the agency has over the group. Perhaps that’s what Andy is getting at in his first point? Also, the word “utilized” took me by surprise again, but then I remembered it is further defined in the document, essentially meaning management or control. For me, the take home message has always been this bullet under When Does FACA Apply? – “Only groups that meet all three of these legal elements are subject to FACA.”

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