information and technical assistance in the missing children cases. Approved November 29, 1990. LEGISLATIVE HISTORY-S. 3266 (H.R. 5269): HOUSE REPORTS: No. 101-681, Pt. 1 (Comm. on the Judiciary) and Pt. 2 (Comm. on Ways and Means) both accompanying H.R. 5269. CONGRESSIONAL RECORD, Vol. 136 (1990): Oct. 3-5, H.R. 5269 considered and passed House. Oct. 23, considered and passed Senate, amended. Oct. 27, S. 3266 considered and passed Senate and House. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 26 (1990): Nov. 29, Presidential statement. Public Law 101-648 101st Congress 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: Nov. 29, 1990 [S. 303] Negotiated of 1990. 5 USC 581 note. 5 USC 581 note. "SUBCHAPTER IV-NEGOTIATED RULEMAKING "§ 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. "§ 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 com mittee "(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 find- Reports. ings 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 publication. "(a) PUBLICATION OF NOTICE.-If, after considering the report of a Federal convener or conducting its own assessment, an agency decides to Register, 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; Federal publication. "(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. "§ 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 |