Collaborative Governance

The Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2, §§ 1-16, restricts the creation and use of advisory committees by federal agencies. An advisory committee is any committee or similar group, which does not consist solely of federal officers or employees, and which is established by statute, by the President, or by a federal agency to advise the President or a federal agency or officer.

The recent joint rulemaking between EPA and NHTSA on greenhouse gas emissions/auto fuel economy has shown the potential for joint rulemaking among agencies with overlapping regulatory responsibilities. But it has also produced logistical and legal challenges. Joint rulemaking is one of many tools that Congress, the President and the agencies have to manage regulatory coordination effectively.

The OPEN Government Act of 2007 created the Office of Government Information Services, a part of NARA, to assist in the resolution of disputes arising under the Freedom of Information Act.  This proposed recommendation suggests ways that OGIS can maximize the effectiveness of its resources to help requesters and agencies resolve FOIA disputes through the use of mediation and other litigation alternatives.

Agencies in diverse areas of regulation are using or contemplating the use of private third parties to carry out inspections and verify that regulated entities are in conformity with standards and other requirements.  Moreover, Congress appears enthusiastic about third-party verification, having mandated or authorized its use in recent legislation. For example, see Title III of the Food Safety Modernization Act of 2011 (Pub. L 111-353).