A prior subchapter III (§571 et seq.) was redesignated subchapter V (§591 et seq.) of this chapter.
1992—Pub. L. 102–354, §3(a)(1), Aug. 26, 1992, 106 Stat. 944, redesignated subchapter IV of this chapter relating to negotiated rulemaking procedure as this subchapter.
The purpose of this subchapter is to establish a framework for the conduct of negotiated rulemaking, consistent with section 553 of this title, to encourage agencies to use the process when it enhances the informal rulemaking process. Nothing in this subchapter should be construed as an attempt to limit innovation and experimentation with the negotiated rulemaking process or with other innovative rulemaking procedures otherwise authorized by law.
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4970, §581; renumbered §561, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
1992—Pub. L. 102–354 renumbered section 581 of this title as this section.
Section 5 of Pub. L. 101–648, as amended by Pub. L. 102–354, §5(a)(2), Aug. 26, 1992, 106 Stat. 945, which provided that subchapter III of chapter 5 of title 5 and the table of sections corresponding to such subchapter, were repealed, effective 6 years after Nov. 29, 1990, except for then pending proceedings, was repealed by Pub. L. 104–320, §11(a), Oct. 19, 1996, 110 Stat. 3873.
Section 1 of Pub. L. 102–354 provided that: “This Act [amending sections 565, 568, 569, 571, 577, 580, 581, and 593 of this title, section 10 of Title 9, Arbitration, and section 173 of Title 29, Labor, renumbering sections 571 to 576, 581 to 590, and 581 to 593 as 591 to 596, 561 to 570, and 571 to 583, respectively, of this title, and amending provisions set out as notes under this section and section 571 of this title] may be cited as the ‘Administrative Procedure Technical Amendments Act of 1991’.”
Section 1 of Pub. L. 101–648 provided that: “This Act [enacting this subchapter] may be cited as the ‘Negotiated Rulemaking Act of 1990’.”
Section 2 of Pub. L. 101–648 provided that: “The Congress makes the following findings:
“(1) Government regulation has increased substantially since the enactment of the Administrative Procedure Act [see Short Title note set out preceding section 551 of this title].
“(2) Agencies currently use rulemaking procedures that may discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions and to engage in expensive and time-consuming litigation over agency rules.
“(3) Adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It also deprives them of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.
“(4) Negotiated rulemaking, in which the parties who will be significantly affected by a rule participate in the development of the rule, can provide significant advantages over adversarial rulemaking.
“(5) Negotiated rulemaking can increase the acceptability and improve the substance of rules, making it less likely that the affected parties will resist enforcement or challenge such rules in court. It may also shorten the amount of time needed to issue final rules.
“(6) Agencies have the authority to establish negotiated rulemaking committees under the laws establishing such agencies and their activities and under the Federal Advisory Committee Act (5 U.S.C. App.). Several agencies have successfully used negotiated rulemaking. The process has not been widely used by other agencies, however, in part because such agencies are unfamiliar with the process or uncertain as to the authority for such rulemaking.”
Section 4 of Pub. L. 101–648, as amended by Pub. L. 102–354, §5(a)(1), Aug. 26, 1992, 106 Stat. 945, authorized additional appropriations to Administrative Conference of the United States to carry out Pub. L. 101–648 in fiscal years 1991, 1992, and 1993.
For the purposes of this subchapter, the term—
(1) “agency” has the same meaning as in section 551(1) of this title;
(2) “consensus” means unanimous concurrence among the interests represented on a negotiated rulemaking committee established under this subchapter, unless such committee—
(A) agrees to define such term to mean a general but not unanimous concurrence; or
(B) agrees upon another specified definition;
(3) “convener” means a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate in a particular rulemaking;
(4) “facilitator” means a person who impartially aids in the discussions and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule;
(5) “interest” means, with respect to an issue or matter, multiple parties which have a similar point of view or which are likely to be affected in a similar manner;
(6) “negotiated rulemaking” means rulemaking through the use of a negotiated rulemaking committee;
(7) “negotiated rulemaking committee” or “committee” means an advisory committee established by an agency in accordance with this subchapter and the Federal Advisory Committee Act to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule;
(8) “party” has the same meaning as in section 551(3) of this title;
(9) “person” has the same meaning as in section 551(2) of this title;
(10) “rule” has the same meaning as in section 551(4) of this title; and
(11) “rulemaking” means “rule making” as that term is defined in section 551(5) of this title.
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4970, §582; renumbered §562, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
The Federal Advisory Committee Act, referred to in par. (7), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to this title.
1992—Pub. L. 102–354 renumbered section 582 of this title as this section.
(a)
(1) there is a need for a rule;
(2) there are a limited number of identifiable interests that will be significantly affected by the rule;
(3) there is a reasonable likelihood that a committee can be convened with a balanced representation of persons who—
(A) can adequately represent the interests identified under paragraph (2); and
(B) are willing to negotiate in good faith to reach a consensus on the proposed rule;
(4) there is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time;
(5) the negotiated rulemaking procedure will not unreasonably delay the notice of proposed rulemaking and the issuance of the final rule;
(6) the agency has adequate resources and is willing to commit such resources, including technical assistance, to the committee; and
(7) the agency, to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee with respect to the proposed rule as the basis for the rule proposed by the agency for notice and comment.
(b)
(1)
(A) identifying persons who will be significantly affected by a proposed rule, including residents of rural areas; and
(B) conducting discussions with such persons to identify the issues of concern to such persons, and to ascertain whether the establishment of a negotiated rulemaking committee is feasible and appropriate in the particular rulemaking.
(2)
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4970, §583; renumbered §563, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
1992—Pub. L. 102–354 renumbered section 583 of this title as this section.
Pub. L. 104–320, §11(e), Oct. 19, 1996, 110 Stat. 3874, provided that: “The Director of the Office of Management and Budget shall—
“(1) within 180 days of the date of the enactment of this Act [Oct. 19, 1996], take appropriate action to expedite the establishment of negotiated rulemaking committees and committees established to resolve disputes under the Administrative Dispute Resolution Act [Pub. L. 101–552, see Short Title note set out under section 571 of this title], including, with respect to negotiated rulemaking committees, eliminating any redundant administrative requirements related to filing a committee charter under section 9 of the Federal Advisory Committee Act (5 U.S.C. App.) and providing public notice of such committee under section 564 of title 5, United States Code; and
“(2) within one year of the date of the enactment of this Act, submit recommendations to Congress for any necessary legislative changes.”
(a)
(1) an announcement that the agency intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule;
(2) a description of the subject and scope of the rule to be developed, and the issues to be considered;
(3) a list of the interests which are likely to be significantly affected by the rule;
(4) a list of the persons proposed to represent such interests and the person or persons proposed to represent the agency;
(5) a proposed agenda and schedule for completing the work of the committee, including a target date for publication by the agency of a proposed rule for notice and comment;
(6) a description of administrative support for the committee to be provided by the agency, including technical assistance;
(7) a solicitation for comments on the proposal to establish the committee, and the proposed membership of the negotiated rulemaking committee; and
(8) an explanation of how a person may apply or nominate another person for membership on the committee, as provided under subsection (b).
(b)
(1) the name of the applicant or nominee and a description of the interests such person shall represent;
(2) evidence that the applicant or nominee is authorized to represent parties related to the interests the person proposes to represent;
(3) a written commitment that the applicant or nominee shall actively participate in good faith in the development of the rule under consideration; and
(4) the reasons that the persons specified in the notice under subsection (a)(4) do not adequately represent the interests of the person submitting the application or nomination.
(c)
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4971, §584; renumbered §564, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
1992—Pub. L. 102–354 renumbered section 584 of this title as this section.
1 So in original. Probably should be “on”.
(a)
(1)
(2)
(b)
(c)
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4972, §585; renumbered §565 and amended Pub. L. 102–354, §3(a)(2), (3), Aug. 26, 1992, 106 Stat. 944.)
The Federal Advisory Committee Act, referred to in subsec. (a)(1), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to this title.
1992—Pub. L. 102–354, §3(a)(2), renumbered section 585 of this title as this section.
Subsec. (a)(1). Pub. L. 102–354, §3(a)(3), substituted “section 564” for “section 584”.
1 So in original. Probably should be “negotiated”.
(a)
(b)
(c)
(d)
(1) chair the meetings of the committee in an impartial manner;
(2) impartially assist the members of the committee in conducting discussions and negotiations; and
(3) manage the keeping of minutes and records as required under section 10(b) and (c) of the Federal Advisory Committee Act, except that any personal notes and materials of the facilitator or of the members of a committee shall not be subject to section 552 of this title.
(e)
(f)
(g)
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4973, §586; renumbered §566, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
Section 10 of the Federal Advisory Committee Act, referred to in subsecs. (c), (d)(3), and (g), is section 10 of Pub. L. 92–463, which is set out in the Appendix to this title.
1992—Pub. L. 102–354 renumbered section 586 of this title as this section.
A negotiated rulemaking committee shall terminate upon promulgation of the final rule under consideration, unless the committee's charter contains an earlier termination date or the agency, after consulting the committee, or the committee itself specifies an earlier termination date.
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4974, §587; renumbered §567, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
1992—Pub. L. 102–354 renumbered section 587 of this title as this section.
(a)
(1)
(2)
(b)
(c)
(1) such member certifies a lack of adequate financial resources to participate in the committee; and
(2) the agency determines that such member's participation in the committee is necessary to assure an adequate representation of the member's interest.
(d)
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4974, §588; renumbered §568 and amended Pub. L. 102–354, §3(a)(2), (4), Aug. 26, 1992, 106 Stat. 944.)
Section 7(d) of the Federal Advisory Committee Act, referred to in subsec. (c), is section 7(d) of Pub. L. 92–463, which is set out in the Appendix to this title.
1992—Pub. L. 102–354, §3(a)(2), renumbered section 588 of this title as this section.
Subsec. (d). Pub. L. 102–354, §3(a)(4), substituted “section 569” for “section 589”.
(a) The President shall designate an agency or designate or establish an interagency committee to facilitate and encourage agency use of negotiated rulemaking. An agency that is considering, planning, or conducting a negotiated rulemaking may consult with such agency or committee for information and assistance.
(b) To carry out the purposes of this subchapter, an agency planning or conducting a negotiated rulemaking may accept, hold, administer, and utilize gifts, devises, and bequests of property, both real and personal if that agency's acceptance and use of such gifts, devises, or bequests do not create a conflict of interest. Gifts and bequests of money and proceeds from sales of other property received as gifts, devises, or bequests shall be deposited in the Treasury and shall be disbursed upon the order of the head of such agency. Property accepted pursuant to this section, and the proceeds thereof, shall be used as nearly as possible in accordance with the terms of the gifts, devises, or bequests.
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4975, §589; renumbered §569 and amended Pub. L. 102–354, §3(a)(2), (5), Aug. 26, 1992, 106 Stat. 944; Pub. L. 104–320, §11(b)(1), Oct. 19, 1996, 110 Stat. 3873.)
1996—Pub. L. 104–320 in section catchline substituted “Encouraging negotiated rulemaking” for “Role of the Administrative Conference of the United States and other entities”, and in text added subsecs. (a) and (b) and struck out former subsecs. (a) to (g) which related to: in subsec. (a), consultation by agencies; in subsec. (b), roster of potential conveners and facilitators; in subsec. (c), procedures to obtain conveners and facilitators; in subsec. (d), compilation of data on negotiated rulemaking and report to Congress; in subsec. (e), training in negotiated rulemaking; in subsec. (f), payment of expenses of agencies; and in subsec. (g), use of funds of the conference.
1992—Pub. L. 102–354, §3(a)(2), renumbered section 589 of this title as this section.
Subsec. (d)(2). Pub. L. 102–354, §3(a)(5)(A), substituted “section 566” for “section 586”.
Subsec. (f)(2). Pub. L. 102–354, §3(a)(5)(B), substituted “section 568(c)” for “section 588(c)”.
Subsec. (g). Pub. L. 102–354, §3(a)(5)(C), substituted “section 595(c)(12)” for “section 575(c)(12)”.
Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter shall not be subject to judicial review. Nothing in this section shall bar judicial review of a rule if such judicial review is otherwise provided by law. A rule which is the product of negotiated rulemaking and is subject to judicial review shall not be accorded any greater deference by a court than a rule which is the product of other rulemaking procedures.
(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4976, §590; renumbered §570, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
1992—Pub. L. 102–354 renumbered section 590 of this title as this section.
There are authorized to be appropriated such sums as may be necessary to carry out the purposes of this subchapter.
(Added Pub. L. 104–320, §11(d)(1), Oct. 19, 1996, 110 Stat. 3873.)