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5 U.S.C. § 559 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 559. Effect on other laws; effect of subsequent statute
This subchapter, chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5372, and 7521 of this title, and the provisions of section 5335(a)(B) of this title that relate to administrative law judges, do not limit or repeal additional requirements imposed by statute or otherwise recognized by law. Except as otherwise required by law, requirements or privileges relating to evidence or procedure apply equally to agencies and persons. Each agency is granted the authority necessary to comply with the requirements of this subchapter through the issuance of rules or otherwise. Subsequent statute may not be held to supersede or modify this subchapter, chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372, or 7521 of 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 expressly.
(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.)
text: 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 subchapter, 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 examiners” are substituted for “this Act” to reflect the codification of the Act in this title. The words “to diminish 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 derogation 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 definitions applicable and the style of this title as outlined in the preface to the report.
heading: Editorial Notes
heading: Amendments
text: 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.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 1978 Amendment
text: 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 section 5361 of this title.
heading: Effective Date of 1968 Amendment
text: 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.
5 U.S.C. § 562 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 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 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.)
heading: Editorial Notes
heading: References in Text
text: 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.
heading: Amendments
text: 1992—Pub. L. 102–354 renumbered section 582 of this title as this section.
5 U.S.C. § 564 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 564. Publication of notice; applications for membership on committees
(a) Publication of Notice.—
If, after considering 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 appropriate, in trade or other specialized publications, a notice which shall include—
(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) Applications for Membership or 1 Committee.—
Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person specified in a notice under subsection (a)(4) may apply for, or nominate another person for, membership on the negotiated 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 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) Period for Submission of Comments and Applications.—
The agency shall provide for a period of at least 30 calendar days for the submission 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.)
heading: Editorial Notes
heading: Amendments
text: 1992—Pub. L. 102–354 renumbered section 584 of this title as this section.
5 U.S.C. § 565 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 565. Establishment of committee
(a) Establishment.—
(1) Determination to establish committee.—
If after considering comments and applications submitted under section 564, the agency determines that a negotiated rulemaking 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 the Federal Advisory Committee Act with respect to such committee, except as otherwise provided in this subchapter.
(2) Determination not to establish committee.—
If after considering such comments and applications, the agency decides not to establish 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 membership on the negotiating 1 rulemaking committee to represent such interests with respect to the proposed rule.
(b) Membership.—
The agency shall limit membership on a negotiated rulemaking committee to 25 members, unless the agency head determines that a greater number of members is necessary for the functioning of the committee or to achieve balanced membership. Each committee shall include at least one person representing the agency.
(c) Administrative Support.—
The agency shall provide appropriate administrative support to the negotiated rulemaking committee, including 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.)
heading: Editorial Notes
heading: References in Text
text: 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.
heading: Amendments
text: 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”.
5 U.S.C. § 567 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 567. Termination of committee
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.)
heading: Editorial Notes
heading: Amendments
text: 1992—Pub. L. 102–354 renumbered section 587 of this title as this section.
5 U.S.C. § 568 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 568. Services, facilities, and payment of committee member expenses
(a) Services of Conveners and Facilitators.—
(1) In general.—
An agency may employ or enter into contracts for the services of an individual or organization to serve as a convener or facilitator for a negotiated rulemaking committee under this subchapter, or may use the services of a Government employee to act as a convener or a facilitator for such a committee.
(2) Determination of conflicting interests.—
An agency shall determine whether a person under consideration to serve as convener or facilitator of a committee under paragraph (1) has any financial or other interest that would preclude such person from serving in an impartial and independent manner.
(b) Services and Facilities of Other Entities.—
For purposes of this subchapter, an agency may use the services and facilities of other Federal agencies and public and private agencies and instrumentalities with the consent of such agencies and instrumentalities, and with or without reimbursement to such agencies and instrumentalities, and may accept voluntary and uncompensated services without regard to the provisions of section 1342 of title 31. The Federal Mediation and Conciliation Service may provide services and facilities, with or without reimbursement, to assist agencies under this subchapter, including furnishing conveners, facilitators, and training in negotiated rulemaking.
(c) Expenses of Committee Members.—
Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation in such committee, except that an agency may, in accordance with section 7(d) of the Federal Advisory Committee Act, pay for a member’s reasonable travel and per diem expenses, expenses to obtain technical assistance, and a reasonable rate of compensation, if—
(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) Status of Member as Federal Employee.—
A member’s receipt of funds under this section or section 569 shall not conclusively determine for purposes of sections 202 through 209 of title 18 whether that member is an employee of the United States Government.
(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.)
heading: Editorial Notes
heading: References in Text
text: 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.
heading: Amendments
text: 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”.
5 U.S.C. § 569 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 569. Encouraging negotiated rulemaking
(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.)
heading: Editorial Notes
heading: Amendments
text: 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)”.
5 U.S.C. § 570 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 570. Judicial review
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.)
heading: Editorial Notes
heading: Amendments
text: 1992—Pub. L. 102–354 renumbered section 590 of this title as this section.
5 U.S.C. § 572 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 572. General authority
(a) An agency may use a dispute resolution proceeding for the resolution of an issue in controversy that relates to an administrative program, if the parties agree to such proceeding.
(b) An agency shall consider not using a dispute resolution proceeding if—
(1) a definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative precedent;
(2) the matter involves or may bear upon significant questions of Government policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the agency;
(3) maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions;
(4) the matter significantly affects persons or organizations who are not parties to the proceeding;
(5) a full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record; and
(6) the agency must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the agency’s fulfilling that requirement.
(c) Alternative means of dispute resolution authorized under this subchapter are voluntary procedures which supplement rather than limit other available agency dispute resolution techniques.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2739, § 582; renumbered § 572, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)
heading: Editorial Notes
heading: Codification
text: Section 572 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2257 of Title 7, Agriculture.
heading: Prior Provisions
text: A prior section 572 was renumbered section 592 of this title.
heading: Amendments
text: 1992—Pub. L. 102–354 renumbered section 582 of this title as this section.
5 U.S.C. § 573 (GOVERNMENT ORGANIZATION AND EMPLOYEES)
§ 573. Neutrals
(a) A neutral may be a permanent or temporary officer or employee of the Federal Government or any other individual who is acceptable to the parties to a dispute resolution proceeding. A neutral shall have no official, financial, or personal conflict of interest with respect to the issues in controversy, unless such interest is fully disclosed in writing to all parties and all parties agree that the neutral may serve.
(b) A neutral who serves as a conciliator, fa­cilitator, or mediator serves at the will of the parties.
(c) The President shall designate an agency or designate or establish an interagency committee to facilitate and encourage agency use of dispute resolution under this subchapter. Such agency or interagency committee, in consultation with other appropriate Federal agencies and professional organizations experienced in matters concerning dispute resolution, shall—
(1) encourage and facilitate agency use of alternative means of dispute resolution; and
(2) develop procedures that permit agencies to obtain the services of neutrals on an expedited basis.
(d) An agency may use the services of one or more employees of other agencies to serve as neutrals in dispute resolution proceedings. The agencies may enter into an interagency agreement that provides for the reimbursement by the user agency or the parties of the full or partial cost of the services of such an employee.
(e) Any agency may enter into a contract with any person for services as a neutral, or for training in connection with alternative means of dispute resolution. The parties in a dispute resolution proceeding shall agree on compensation for the neutral that is fair and reasonable to the Government.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2739, § 583; renumbered § 573, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 7(b), Oct. 19, 1996, 110 Stat. 3872.)
heading: Editorial Notes
heading: Codification
text: Section 573 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2258 of Title 7, Agriculture.
heading: Prior Provisions
text: A prior section 573 was renumbered section 593 of this title.
heading: Amendments
text: 1996—Subsec. (c). Pub. L. 104–320, § 7(b)(1), added subsec. (c) and struck out former subsec. (c) which related to power of Administrative Conference of the United States to establish and utilize standards for neutrals and to enter into contracts for services of neutrals.
Subsec. (e). Pub. L. 104–320, § 7(b)(2), struck out “on a roster established under subsection (c)(2) or a roster maintained by other public or private organizations, or individual” after “contract with any person”.
1992—Pub. L. 102–354 renumbered section 583 of this title as this section.