Text: S.303 — 101st Congress (1989-1990)All Information (Except Text)

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--S.303--
S.303
One Hundred First Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday, the twenty-third day
of January,
one thousand nine hundred and ninety
An Act
To establish a framework for the conduct of negotiated rulemaking by Federal
agencies.
 Be it enacted by the Senate and House of Representatives of the United
 States of America in Congress assembled,
SECTION 1. SHORT TITLE.
 This Act may be cited as the `Negotiated Rulemaking Act of 1990'.
SEC. 2. FINDINGS.
 The Congress makes the following findings:
 (1) Government regulation has increased substantially since the enactment
 of the Administrative Procedure Act.
 (2) Agencies currently use rulemaking procedures that may discourage the
 affected parties from meeting and communicating with each other, and may
 cause parties with different interests to assume conflicting 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, expertise, and technical abilities possessed
 by the affected parties.
 (4) Negotiated rulemaking, in which the parties who will be significantly
 affected by a rule participate in the development of the rule, can provide
 significant advantages over adversarial rulemaking.
 (5) Negotiated rulemaking can increase the acceptability and improve the
 substance of rules, making 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 negotiated rulemaking committees
 under the laws establishing such agencies and their activities and under
 the Federal Advisory Committee Act (5 U.S.C. App.). Several agencies have
 successfully used negotiated rulemaking. The process has not been widely
 used by other agencies, however, in part because such agencies are unfamiliar
 with the process or uncertain as to the authority for such rulemaking.
SEC. 3. NEGOTIATED RULEMAKING PROCEDURE.
 (a) IN GENERAL- Chapter 5 of title 5, United States Code, is amended by
 adding at the end the following new subchapter:
`SUBCHAPTER IV--NEGOTIATED RULEMAKING PROCEDURE
`Sec. 581. Purpose
 `The purpose of this subchapter is to establish a framework for the conduct
 of negotiated rulemaking, 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 experimentation with the negotiated rulemaking process
 or with other innovative rulemaking procedures otherwise authorized by law.
`Sec. 582. 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.
-` 583. Determination of need for negotiated rulemaking committee
 `(a) DETERMINATION OF NEED BY THE AGENCY- An agency may establish a negotiated
 rulemaking committee to negotiate and develop a proposed rule, if the head
 of the agency determines 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 proposed 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 possible consistent with the legal
 obligations of the agency, will use the consensus of the committee 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 significantly affected by a proposed
 rule, including residents of rural areas; and
 `(B) conducting discussions with such persons to identify the issues
 of concern to such persons, and to ascertain whether the establishment
 of a negotiated rulemaking committee is feasible and appropriate in the
 particular rulemaking.
 `(2) DUTIES OF CONVENERS- The convener shall report findings and may make
 recommendations 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 significantly 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.
-` 584. 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 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.
`Sec. 585. Establishment of committee
 `(a) ESTABLISHMENT-
 `(1) DETERMINATION TO ESTABLISH COMMITTEE- If after considering comments
 and applications submitted under section 584, 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 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.
`Sec. 586. 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 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 10(e) of the Federal
 Advisory Committee Act, 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 10
 (b) and (c) of the Federal Advisory Committee Act, 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 10 (b) and (c) of the Federal Advisory Committee Act.
`Sec. 587. 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.
-` 588. 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 589 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.
-` 589. Role of the Administrative Conference of the United States and
other entities
 `(a) CONSULTATION BY AGENCIES- An agency may consult with the Administrative
 Conference of the United States or other public or private individuals
 or organizations for information and assistance in forming a negotiated
 rulemaking committee and conducting negotiations on a proposed rule.
 `(b) ROSTER OF POTENTIAL CONVENERS AND FACILITATORS- The Administrative
 Conference of the United States, in consultation with the Federal Mediation
 and Conciliation Service, shall maintain a roster of individuals who have
 acted as or are interested in serving as conveners or facilitators in
 negotiated rulemaking proceedings. The roster shall include individuals
 from government agencies and private groups, and shall be made available
 upon request. Agencies may also use rosters maintained by other public or
 private individuals or organizations.
 `(c) PROCEDURES TO OBTAIN CONVENERS AND FACILITATORS-
 `(1) PROCEDURES- The Administrative Conference of the United States shall
 develop procedures which permit agencies to obtain the services of conveners
 and facilitators on an expedited basis.
 `(2) PAYMENT FOR SERVICES- Payment for the services of conveners or
 facilitators shall be made by the agency using the services, unless the
 Chairman of the Administrative Conference agrees to pay for such services
 under subsection (f).
 `(d) COMPILATION OF DATA ON NEGOTIATED RULEMAKING; REPORT TO CONGRESS-
 `(1) COMPILATION OF DATA- The Administrative Conference of the United States
 shall compile and maintain data related to negotiated rulemaking and shall
 act as a clearinghouse to assist agencies and parties participating in
 negotiated rulemaking proceedings.
 `(2) SUBMISSION OF INFORMATION BY AGENCIES- Each agency engaged in negotiated
 rulemaking shall provide to the Administrative Conference of the United
 States a copy of any reports submitted to the agency by negotiated rulemaking
 committees under section 586 and such additional information as necessary
 to enable the Administrative Conference of the United States to comply with
 this subsection.
 `(3) REPORTS TO CONGRESS- The Administrative Conference of the United
 States shall review and analyze the reports and information received under
 this subsection and shall transmit a biennial report to the Committee on
 Governmental Affairs of the Senate and the appropriate committees of the
 House of Representatives that--
 `(A) provides recommendations for effective use by agencies of negotiated
 rulemaking; and
 `(B) describes the nature and amounts of expenditures made by the
 Administrative Conference of the United States to accomplish the purposes
 of this subchapter.
 `(e) TRAINING IN NEGOTIATED RULEMAKING- The Administrative Conference of the
 United States is authorized to provide training in negotiated rulemaking
 techniques and procedures for personnel of the Federal Government either
 on a reimbursable or nonreimbursable basis. Such training may be extended
 to private individuals on a reimbursable basis.
 `(f) PAYMENT OF EXPENSES OF AGENCIES- The Chairman of the Administrative
 Conference of the United States is authorized to pay, upon request of an
 agency, all or part of the expenses of establishing a negotiated rulemaking
 committee and conducting a negotiated rulemaking. Such expenses may include,
 but are not limited to--
 `(1) the costs of conveners and facilitators;
 `(2) the expenses of committee members determined by the agency to be
 eligible for assistance under section 588(c); and
 `(3) training costs.
Determinations with respect to payments under this section shall be at the
discretion of such Chairman in furthering the use by Federal agencies of
negotiated rulemaking.
 `(g) USE OF FUNDS OF THE CONFERENCE- The Administrative Conference of the
 United States may apply funds received under section 575(c)(12) of this
 title to carry out the purposes of this subchapter.
`Sec. 590. 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.'.
 (b) The table of sections at the beginning of chapter 5 of title 5, United
 States Code, is amended by adding at the end the following:
`SUBCHAPTER IV--NEGOTIATED RULEMAKING PROCEDURE
`Sec. 581. Purpose.
`Sec. 582. Definitions.
`Sec. 583. Determination of need for negotiated rulemaking committee.
`Sec. 584. Publication of notice; applications for membership on committees.
`Sec. 585. Establishment of committee.
`Sec. 586. Conduct of committee activity.
`Sec. 587. Termination of committee.
`Sec. 588. Services, facilities, and payment of committee member expenses.
`Sec. 589. Role of the Administrative Conference of the United States and
other entities.
`Sec. 590. Judicial review.'.
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
 In order to carry out this Act and the amendments made by this Act, there
 are authorized to be appropriated to the Administrative Conference of the
 United States, in addition to amounts authorized by section 576 of title 5,
 United States Code, not in excess of $500,000 for each of the fiscal years
 1991, 1992, and 1993.
SEC. 5. SUNSET AND SAVINGS PROVISIONS.
 Subchapter IV of title 5, United States Code, as added by section 3 of
 this Act, and that portion of the table of sections at the beginning of
 chapter 5 of title 5, United States Code, relating to subchapter IV, are
 repealed, effective 6 years after the date of the enactment of this Act,
 except that the provisions of such subchapter shall continue to apply after
 the date of the repeal with respect to then pending negotiated rulemaking
 proceedings initiated before the date of repeal which, in the judgment
 of the agencies which are convening or have convened such proceedings,
 require such continuation, until such negotiated rulemaking proceedings
 terminate pursuant to such subchapter.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.