5 U.S.C. § 565 — Establishment of committee

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 Page 156 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 566 necessary for the functioning of the committee or to achieve balanced membership. Each com- mittee shall include at least one person rep- resenting the agency. (c) ADMINISTRATIVE SUPPORT.—The agency shall provide appropriate administrative support to the negotiated rulemaking committee, in- cluding technical assistance. (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; Pub. L. 117–286, § 4(a)(7), Dec. 27, 2022, 136 Stat. 4305.) Editorial Notes AMENDMENTS 2022—Subsec. (a)(1). Pub. L. 117–286 substituted ‘‘chap- ter 10 of this title’’ for ‘‘the Federal Advisory Com- mittee Act’’. 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’’. § 566. Conduct of committee activity (a) DUTIES OF COMMITTEE.—Each negotiated rulemaking committee established under this subchapter shall consider the matter proposed by the agency for consideration and shall at- tempt to reach a consensus concerning a pro- posed rule with respect to such matter and any other matter the committee determines is rel- evant to the proposed rule. (b) REPRESENTATIVES OF AGENCY ON COM- MITTEE.—The person or persons representing the agency on a negotiated rulemaking committee shall participate in the deliberations and activi- ties of the committee with the same rights and responsibilities as other members of the com- mittee, and shall be authorized to fully rep- resent the agency in the discussions and nego- tiations of the committee. (c) SELECTING FACILITATOR.—Notwithstanding section 1009(e) of this title, an agency may nominate either a person from the Federal Gov- ernment or a person from outside the Federal Government to serve as a facilitator for the ne- gotiations of the committee, subject to the ap- proval of the committee by consensus. If the committee does not approve the nominee of the agency for facilitator, the agency shall submit a substitute nomination. If a committee does not approve any nominee of the agency for facilitator, the committee shall select by con- sensus a person to serve as facilitator. A person designated to represent the agency in sub- stantive issues may not serve as facilitator or otherwise chair the committee. (d) DUTIES OF FACILITATOR.—A facilitator ap- proved or selected by a negotiated rulemaking committee shall— (1) chair the meetings of the committee in an impartial manner; (2) impartially assist the members of the committee in conducting discussions and ne- gotiations; and (3) manage the keeping of minutes and records as required under section 1009(b) and (c) of this title, except that any personal notes and materials of the facilitator or of the mem- bers of a committee shall not be subject to section 552 of this title. (e) COMMITTEE PROCEDURES.—A negotiated rulemaking committee established under this subchapter may adopt procedures for the oper- ation of the committee. No provision of section 553 of this title shall apply to the procedures of a negotiated rulemaking committee. (f) REPORT OF COMMITTEE.—If a committee reaches a consensus on a proposed rule, at the conclusion of negotiations the committee shall transmit to the agency that established the committee a report containing the proposed rule. If the committee does not reach a con- sensus on a proposed rule, the committee may transmit to the agency a report specifying any areas in which the committee reached a con- sensus. The committee may include in a report any other information, recommendations, or materials that the committee considers appro- priate. Any committee member may include as an addendum to the report additional informa- tion, recommendations, or materials. (g) RECORDS OF COMMITTEE.—In addition to the report required by subsection (f), a committee shall submit to the agency the records required under section 1009(b) and (c) of this title. (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; amended Pub. L. 117–286, § 4(a)(8), Dec. 27, 2022, 136 Stat. 4305.) Editorial Notes AMENDMENTS 2022—Subsec. (c). Pub. L. 117–286, § 4(a)(8)(A), sub- stituted ‘‘section 1009(e) of this title,’’ for ‘‘section 10(e) of the Federal Advisory Committee Act,’’. Subsec. (d)(3). Pub. L. 117–286, § 4(a)(8)(B), substituted ‘‘section 1009(b) and (c) of this title,’’ for ‘‘section 10(b) and (c) of the Federal Advisory Committee Act,’’. Subsec. (g). Pub. L. 117–286, § 4(a)(8)(C), substituted ‘‘section 1009(b) and (c) of this title.’’ for ‘‘section 10(b) and (c) of the Federal Advisory Committee Act.’’ 1992—Pub. L. 102–354 renumbered section 586 of this title as this section. § 567. Termination of committee A negotiated rulemaking committee shall ter- minate 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 termi- nation 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.) Editorial Notes AMENDMENTS 1992—Pub. L. 102–354 renumbered section 587 of this title as this section. § 568. Services, facilities, and payment of com- mittee member expenses (a) SERVICES OF CONVENERS AND FACILITATORS.—