The Unfunded Mandates Reform Act of 1995:
The Intergovernmental Committees Exemption of FACA
Purpose – Congress and the President passed the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, in an effort to limit the number of unfunded federal mandates imposed by the federal government on state, local, and tribal governments. In addition, UMRA was intended to strengthen the partnership and communications between the federal government and its state, local, and tribal counterparts.
Exemption from FACA – UMRA provides a critical exemption to the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. chapter 10, in order to promote the free communication between the federal government and state, local, and tribal governments. Generally, it permits federal officials to speak with their state, local, and tribal counterparts without implicating the FACA as long as a two-part test, as set forth in 2 U.S.C. §1534(b), is met.
The Two-Part Test - In order for the UMRA exemption from FACA to apply to a meeting between federal and state, local, and tribal officials, the meeting must meet the following two conditions:
(1) Meetings are held exclusively between federal officials and “elected officers of state, local, and tribal governments (or their designated employees with authority to act on their behalf) acting in their official capacities”; and
(2) Such meetings are solely for the purpose of exchanging views, information, or advice “relating to the management or implementation of federal programs established pursuant to statute, that explicitly or inherently share intergovernmental responsibilities or administration. Read Federal Advisory Committee Management; Final Rule, 41 CFR §102.3-40(f).
Guidance – Office of Management and Budget was tasked with providing guidance for implementing Section 204 of UMRA. Section II of these guidelines address the UMRA exemption to the FACA and provides guidance to help determine when a meeting qualifies for this exemption from the FACA. Section 204(b) of UMRA is to be construed broadly to apply to any meeting called to discuss areas of shared responsibility.
U.S. General Services Administration