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. § 566

Conduct of committee activity

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(a)Duties of Committee.—Each negotiated rulemaking committee established under this subchapter shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any other matter the committee determines is relevant to the proposed rule.(b)Representatives of Agency on Committee.—The person or persons representing the agency on a negotiated rulemaking committee shall participate in the deliberations and activities of the committee with the same rights and responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.(c)Selecting Facilitator.—Notwithstanding section 1009(e) of this title, an agency may nominate either a person from the Federal Government or a person from outside the Federal Government to serve as a facilitator for the negotiations of the committee, subject to the approval 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 consensus a person to serve as facilitator. A person designated to represent the agency in substantive issues may not serve as facilitator or otherwise chair the committee.(d)Duties of Facilitator.—A facilitator approved 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 negotiations; 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 members 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 operation 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 consensus on a proposed rule, the committee may transmit to the agency a report specifying any areas in which the committee reached a consensus. The committee may include in a report any other information, recommendations, or materials that the committee considers appropriate. Any committee member may include as an addendum to the report additional information, 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 NotesAmendments

2022—Subsec. (c). Pub. L. 117–286, § 4(a)(8)(A), substituted “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.

Notes of Decisions
Cited in 6 cases, 1969–2005 · leading case: Steadman v. Securities & Exchange Commission
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Steadman v. Securities & Exchange Commission (1981) scotus · cites it 2× “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," except in instances not relevant here.”
The Center for Law and Education v. Department of Education (2005) cadc “It then directs that the process of negotiated rulemaking shall follow the prescriptions of the Negotiated Rulemaking Act, such as the consensus requirement contained in 5 U.S.C. § 566 (2000). It is therefore clear that, under the NCLBA, questions concerning the selection of the…”
Robert Loy Day v. National Transportation Safety Board and United States of America (1969) ca5 “Appellant contends that this regulation is invalid since it is inconsistent with an applicable section of the Administrative Procedure Act, 5 U.S.C.A. § 566 (d) which provides that “except as otherwise provided by statute, the proponent of a rule or order has the burden of proof.”
Perry v. Delaney (1999) ilcd “That section refers to facilitation of rule-making committees and does not even mention licenses or CSOs anywhere.”
USA Group Loan Services, Inc. v. Riley (1996) ca7 “See 5 U.S.C. § 566 (f). The complaint about the Secretary’s refusal to adhere to the proposal to cap the servicers’ liability misconceives the nature of negotiation.”
Ctr Law Educ v. EDUC (2005) cadc “It then directs that the process of negotiated rulemaking shall follow the prescriptions of the Negotiated Rulemaking Act, such as the consensus requirement contained in 5 U.S.C. § 566 (2000). It is therefore clear that, under the NCLBA, questions concerning the selection of the…”
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