5 U.S.C. § 561 — Purpose

Page 153 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 561 this title, or the provisions of section 5335(a)(B) of this title that relate to administrative law judges, except to the extent that it does so ex- pressly. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388; Pub. L. 90–623, § 1(1), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title VIII, § 801(a)(3)(B)(iii), Oct. 13, 1978, 92 Stat. 1221.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 1011. June 11, 1946, ch. 324, § 12, 60 Stat. 244. In the first and last sentences, the words ‘‘This sub- chapter, chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5362, and 7521, and the provisions of section 5335(a)(B) of this title that relate to hearing exam- iners’’ are substituted for ‘‘this Act’’ to reflect the codification of the Act in this title. The words ‘‘to di- minish the constitutional rights of any person or’’ are omitted as surplusage as there is nothing in the Act that can reasonably be construed to diminish those rights and because a statute may not operate in dero- gation of the Constitution. The third sentence of former section 1011 is omitted as covered by technical section 7. The sixth sentence of former section 1011 is omitted as executed. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1978—Pub. L. 95–454 substituted ‘‘5372’’ for ‘‘5362’’ wherever appearing. Pub. L. 95–251 substituted ‘‘administrative law judges’’ for ‘‘hearing examiners’’ wherever appearing. 1968—Pub. L. 90–623 inserted ‘‘of this title’’ after ‘‘7521’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective on first day of first applicable pay period beginning on or after the 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under sec- tion 5361 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title. SUBCHAPTER III—NEGOTIATED RULEMAKING PROCEDURE Editorial Notes PRIOR PROVISIONS A prior subchapter III (§ 571 et seq.) was redesignated subchapter V (§ 591 et seq.) of this chapter. AMENDMENTS 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. § 561. Purpose The purpose of this subchapter is to establish a framework for the conduct of negotiated rule- making, 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 experi- mentation with the negotiated rulemaking proc- ess or with other innovative rulemaking proce- dures 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.) Editorial Notes AMENDMENTS 1992—Pub. L. 102–354 renumbered section 581 of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL; SAVINGS PROVISION Pub. L. 101–648, § 5, Nov. 29, 1990, 104 Stat. 4976, 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. SHORT TITLE OF 1992 AMENDMENT Pub. L. 102–354, § 1, Aug. 26, 1992, 106 Stat. 944, pro- vided 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, re- numbering 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’.’’ SHORT TITLE OF 1990 AMENDMENT Pub. L. 101–648, § 1, Nov. 29, 1990, 104 Stat. 4969, pro- vided that: ‘‘This Act [enacting this subchapter] may be cited as the ‘Negotiated Rulemaking Act of 1990’.’’ CONGRESSIONAL FINDINGS Pub. L. 101–648, § 2, Nov. 29, 1990, 104 Stat. 4969, as amended by Pub. L. 117–286, § 4(a)(4), Dec. 27, 2022, 136 Stat. 4305, provided that: ‘‘The Congress makes the fol- lowing findings: ‘‘(1) Government regulation has increased substan- tially since the enactment of the Administrative Pro- cedure 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 meet- ing and communicating with each other, and may cause parties with different interests to assume con- flicting 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, ex- pertise, and technical abilities possessed by the af- fected parties. ‘‘(4) Negotiated rulemaking, in which the parties who will be significantly affected by a rule partici- pate in the development of the rule, can provide sig- nificant advantages over adversarial rulemaking. ‘‘(5) Negotiated rulemaking can increase the ac- ceptability and improve the substance of rules, mak- 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.)