5 U.S.C. § 563 — Determination of need for negotiated rule-

Page 154 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 562 ing 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 nego- tiated rulemaking committees under the laws estab- lishing such agencies and their activities and under chapter 10 of title 5, United States Code. Several agencies have successfully used negotiated rule- making. The process has not been widely used by other agencies, however, in part because such agen- cies are unfamiliar with the process or uncertain as to the authority for such rulemaking.’’ AUTHORIZATION OF APPROPRIATIONS Pub. L. 101–648, § 4, Nov. 29, 1990, 104 Stat. 4976, as amended by Pub. L. 102–354, § 5(a)(1), Aug. 26, 1992, 106 Stat. 945, authorized additional appropriations to Ad- ministrative Conference of the United States to carry out Pub. L. 101–648 in fiscal years 1991, 1992, and 1993. § 562. Definitions 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 concur- rence among the interests represented on a ne- gotiated rulemaking committee established under this subchapter, unless such com- mittee— (A) agrees to define such term to mean a general but not unanimous concurrence; or (B) agrees upon another specified defini- tion; (3) ‘‘convener’’ means a person who impar- tially assists an agency in determining wheth- er establishment of a negotiated rulemaking committee is feasible and appropriate in a par- ticular rulemaking; (4) ‘‘facilitator’’ means a person who impar- tially aids in the discussions and negotiations among the members of a negotiated rule- making 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 rule- making through the use of a negotiated rule- making committee; (7) ‘‘negotiated rulemaking committee’’ or ‘‘committee’’ means an advisory committee established by an agency in accordance with this subchapter and chapter 10 of this title 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 sec- tion 551(3) of this title; (9) ‘‘person’’ has the same meaning as in sec- tion 551(2) of this title; (10) ‘‘rule’’ has the same meaning as in sec- tion 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; amended Pub. L. 117–286, § 4(a)(5), Dec. 27, 2022, 136 Stat. 4305.) Editorial Notes AMENDMENTS 2022—Par. (7). Pub. L. 117–286 substituted ‘‘chapter 10 of this title’’ for ‘‘the Federal Advisory Committee Act’’. 1992—Pub. L. 102–354 renumbered section 582 of this title as this section. § 563. Determination of need for negotiated rule- making committee (a) DETERMINATION OF NEED BY THE AGENCY.— An agency may establish a negotiated rule- making committee to negotiate and develop a proposed rule, if the head of the agency deter- mines that the use of the negotiated rulemaking procedure is in the public interest. In making such a determination, the head of the agency shall consider whether— (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 pro- posed 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 pos- sible consistent with the legal obligations of the agency, will use the consensus of the com- mittee with respect to the proposed rule as the basis for the rule proposed by the agency for notice and comment. (b) USE OF CONVENERS.— (1) PURPOSES OF CONVENERS.—An agency may use the services of a convener to assist the agency in— (A) identifying persons who will be signifi- cantly affected by a proposed rule, including residents of rural areas; and (B) conducting discussions with such per- sons to identify the issues of concern to such persons, and to ascertain whether the estab- lishment of a negotiated rulemaking com- mittee is feasible and appropriate in the par- ticular rulemaking. (2) DUTIES OF CONVENERS.—The convener shall report findings and may make rec- ommendations to the agency. Upon request of the agency, the convener shall ascertain the names of persons who are willing and qualified to represent interests that will be signifi- cantly affected by the proposed rule, including residents of rural areas. The report and any recommendations of the convener shall be made available to the public upon request. (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.) Page 155 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 565 1 So in original. Probably should be ‘‘on’’. 1 So in original. Probably should be ‘‘negotiated’’. Editorial Notes AMENDMENTS 1992—Pub. L. 102–354 renumbered section 583 of this title as this section. Statutory Notes and Related Subsidiaries NEGOTIATED RULEMAKING COMMITTEES Pub. L. 104–320, § 11(e), Oct. 19, 1996, 110 Stat. 3874, as amended by Pub. L. 117–286, § 4(a)(6), Dec. 27, 2022, 136 Stat. 4305, 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 ex- pedite the establishment of negotiated rulemaking committees and committees established to resolve disputes under the Administrative Dispute Resolu- tion Act [Pub. L. 101–552, see Short Title note set out under section 571 of this title], including, with re- spect to negotiated rulemaking committees, elimi- nating any redundant administrative requirements related to filing a committee charter under section 1008 of title 5, United States Code, and providing pub- lic 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.’’ § 564. Publication of notice; applications for membership on committees (a) PUBLICATION OF NOTICE.—If, after consid- ering the report of a convener or conducting its own assessment, an agency decides to establish a negotiated rulemaking committee, the agency shall publish in the Federal Register and, as ap- propriate, in trade or other specialized publica- tions, a notice which shall include— (1) an announcement that the agency in- tends to establish a negotiated rulemaking committee to negotiate and develop a pro- posed 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 pro- posed to represent the agency; (5) a proposed agenda and schedule for com- pleting 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 agen- cy, including technical assistance; (7) a solicitation for comments on the pro- posal to establish the committee, and the pro- posed membership of the negotiated rule- making committee; and (8) an explanation of how a person may apply or nominate another person for membership on the committee, as provided under sub- section (b). (b) APPLICATIONS FOR MEMBERSHIP OR 1 COM- MITTEE.—Persons who will be significantly af- fected by a proposed rule and who believe that their interests will not be adequately rep- resented by any person specified in a notice under subsection (a)(4) may apply for, or nomi- nate another person for, membership on the ne- gotiated rulemaking committee to represent such interests with respect to the proposed rule. Each application or nomination shall include— (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 con- sideration; and (4) the reasons that the persons specified in the notice under subsection (a)(4) do not ade- quately represent the interests of the person submitting the application or nomination. (c) PERIOD FOR SUBMISSION OF COMMENTS AND APPLICATIONS.—The agency shall provide for a period of at least 30 calendar days for the sub- mission of comments and applications under this section. (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.) Editorial Notes AMENDMENTS 1992—Pub. L. 102–354 renumbered section 584 of this title as this section. § 565. Establishment of committee (a) ESTABLISHMENT.— (1) DETERMINATION TO ESTABLISH COM- MITTEE.—If after considering comments and applications submitted under section 564, the agency determines that a negotiated rule- making committee can adequately represent the interests that will be significantly affected by a proposed rule and that it is feasible and appropriate in the particular rulemaking, the agency may establish a negotiated rulemaking committee. In establishing and administering such a committee, the agency shall comply with chapter 10 of this title with respect to such committee, except as otherwise provided in this subchapter. (2) DETERMINATION NOT TO ESTABLISH COM- MITTEE.—If after considering such comments and applications, the agency decides not to es- tablish a negotiated rulemaking committee, the agency shall promptly publish notice of such decision and the reasons therefor in the Federal Register and, as appropriate, in trade or other specialized publications, a copy of which shall be sent to any person who applied for, or nominated another person for member- ship on the negotiating 1 rulemaking com- mittee to represent such interests with respect to the proposed rule. (b) MEMBERSHIP.—The agency shall limit membership on a negotiated rulemaking com- mittee to 25 members, unless the agency head determines that a greater number of members is