U.S. Code » Title 5 » Part PART I— THE AGENCIES GENERALLY › Chapter CHAPTER 5— ADMINISTRATIVE PROCEDURE › Subchapter SUBCHAPTER III— NEGOTIATED RULEMAKING PROCEDURE

5 U.S.C. § 565

Establishment of committee

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(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 chapter 10 of this title 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 11 So in original. Probably should be “negotiated”. 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; Pub. L. 117–286, § 4(a)(7), Dec. 27, 2022, 136 Stat. 4305.)Editorial NotesAmendments

2022—Subsec. (a)(1). Pub. L. 117–286 substituted “chapter 10 of this title” for “the Federal Advisory Committee 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”.

Notes of Decisions
Cited in 7 cases, 1992–2017 · leading case: The Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152 (D.C. Cir. 2005).
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The Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152 (D.C. Cir. 2005). “Indeed, establishing a negotiated rulemaking committee “under [that] subchapter” is a discretionary act, 5 U.S.C. § 565 , which follows consideration of multiple factors enumerated at 5 U.”
Ctr. for Law & Educ. v. United States Dep't of Educ., 315 F. Supp. 2d 15 (D.D.C. 2004). “More to the point, Congress did explicitly state that 5 U.S.C. § 565 would not apply to the NCLBA's negotiated rulemaking process.”
Ambuild Co., LLC v. United States, 119 Fed. Cl. 10 (Fed. Cl. 2014). “5 U.S.C. § 565 (b); see also Advanced Sys.”
Ctr. for Law & Educ. v. United States Dep't of Educ., 209 F. Supp. 2d 102 (D.D.C. 2002). “See 5 U.S.C. § 565 ("[i]n establishing and administering such a committee, the agency shall comply with the Federal Advisory Committee Act .”
Haitian Centers Council, Inc. v. McNary, 789 F. Supp. 541 (E.D.N.Y 1992). “The district court subsequently issued another TRO (the “Second TRO”) on the plaintiffs’ claim that defendants failed to follow the procedural requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 565 (b), 557, 558 and 702. On December 19, 1991, the Eleventh…”
Pub. Hous. Authorities Directors Ass'n v. United States (Fed. Cl. 2017). “See 5 U.S.C. §§ 565–66. Because of the enhanced opportunities for stakeholder input, “[p]roponents of negotiated rulemaking claim that these procedures—which encourage affected parties to reach an agreement at the outset—will decrease the amount of time it takes to develop…”
Ctr Law Educ v. EDUC (D.C. Cir. 2005). “Indeed, establishing a negotiated rulemaking committee “under [that] subchapter” is a discretionary act, 5 U.S.C. § 565 , which follows consideration of multiple factors enumerated at 5 U.”
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