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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.)

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§ 566. 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 shail 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.

(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.)

REPEAL OF SECTION

Section repealed effective six years after Nov. 29, 1990, see section 5 of Pub. L. 101-648, as amended, set out as an Effective Date of Repeal; Savings Provision note under section 561 of this title.

REFERENCES IN TEXT

Section 10 of the Federal Advisory Committee Act, referred to in subsecs. (c), (d)(3), and (g), is section 10 of Pub. L. 92-463, which is set out in the Appendix to this title.

AMENDMENTS

1992-Pub. L. 102-354 renumbered section 586 of this
title as this section.

SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 569 of this title.
§ 567. Termination of committee

A negotiated rulemaking committee shall ter-
minate 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 termi-
nation date.

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(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.)

REPEAL OF SECTION

Section repealed effective six years after Nov. 29, 1990, see section 5 of Pub. L. 101-648, as amended, set out as an Effective Date of Repeal; Savings Provision note under section 561 of this title.

AMENDMENTS

1992-Pub. L. 102-354 renumbered section 587 of this title as this section.

§ 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 deter

mine 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.)

REPEAL OF SECTION

Section repealed effective six years after Nov. 29, 1990, see section 5 of Pub. L. 101-648, as amended, set out as an Effective Date of Repeal; Savings Provision note under section 561 of this title.

REFERENCES IN 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.

AMENDMENTS

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".

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 569 of this title. § 569. 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 clearing

house 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 566 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 568(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 595(c)(12) of this title to carry out the purposes of this subchapter.

(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.)

REPEAL OF SECTION

Section repealed effective six years after Nov. 29, 1990, see section 5 of Pub. L. 101-648, as amended, set out as an Effective Date of Repeal; Savings Provision note under section 561 of this title.

AMENDMENTS

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)".

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 568 of this title. § 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.)

REPEAL OF SECTION

Section repealed effective six years after Nov. 29, 1990, see section 5 of Pub. L. 101-648, as amended, set out as an Effective Date of Repeal; Savings Provision note under section 561 of this title.

AMENDMENTS

1992-Pub. L. 102-354 renumbered section 590 of this title as this section.

SUBCHAPTER IV-ALTERNATIVE MEANS
OF DISPUTE RESOLUTION IN THE AD-
MINISTRATIVE PROCESS

TERMINATION OF SUBCHAPTER

For termination of subchapter by section 11 of Pub. L. 101-552, see Termination Date; Savings Provision note set out under section 571 of this title.

CODIFICATION

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(2) “administrative program” includes a Federal function which involves protection of the public interest and the determination of rights, privileges, and obligations of private persons through rule making, adjudication, licensing, or investigation, as those terms are used in subchapter II of this chapter;

(3) "alternative means of dispute resolution" means any procedure that is used, in lieu of an adjudication as defined in section 551(7) of this title, to resolve issues in controversy, including, but not limited to, settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, or any combination thereof;

(4) "award” means any decision by an arbitrator resolving the issues in controversy;

(5) "dispute resolution communication" means any oral or written communication prepared for the purposes of a dispute resolution proceeding, including any memoranda, notes or work product of the neutral, parties or nonparty participant; except that a written agreement to enter into a dispute resolution proceeding, or final written agreement or arbitral award reached as a result of a dispute resolution proceeding, is not a dispute resolution communication;

(6) "dispute resolution proceeding" means any process in which an alternative means of dispute resolution is used to resolve an issue in controversy in which a neutral is appointed and specified parties participate;

(7) "in confidence" means, with respect to information, that the information is provided

(A) with the expressed intent of the source that it not be disclosed; or

(B) under circumstances that would create the reasonable expectation on behalf of the source that the information will not be disclosed;

(8) "issue in controversy" means an issue which is material to a decision concerning an administrative program of an agency, and with which there is disagreement—

(A) between an agency and persons who would be substantially affected by the decision; or

(B) between persons who would be substantially affected by the decision,

except that such term shall not include any matter specified under section 2302 or 7121(c) of this title;

(9) "neutral" means an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy;

(10) "party" means

(A) for a proceeding with named parties, the same as in section 551(3) of this title; and

(B) for a proceeding without named parties, a person who will be significantly affected by the decision in the proceeding and who participates in the proceeding;

(11) "person" has the same meaning as in section 551(2) of this title; and

(12) “roster” means a list of persons qualified to provide services as neutrals.

(Added Pub. L. 101-552, § 4(b), Nov. 15, 1990, 104 Stat. 2738, § 581; renumbered § 571 and amended Pub. L. 102-354, §§ 3(b)(2), 5(b)(1), (2), Aug. 26, 1992, 106 Stat. 944, 946.)

TERMINATION OF SECTION

For termination of section by section 11 of Pub. L. 101-552, see Termination Date; Savings Provision note below.

CODIFICATION

Section 571 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2256 of Title 7, Agriculture.

PRIOR PROVISIONS

A prior section 571 was renumbered section 591 of this title.

AMENDMENTS

1992-Pub. L. 102-354, § 3(b)(2), renumbered section 581 of this title as this section.

Par. (3). Pub. L. 102-354, § 5(b)(1), inserted comma after "including".

Par. (8). Pub. L. 102-354, § 5(b)(2), amended par. (8) generally. Prior to amendment, par. (8) read as follows: "issue in controversy' means an issue which is material to a decision concerning an administrative program of an agency, and with which there is disagreement between the agency and persons who would be substantially affected by the decision but shall not extend to matters specified under the provisions of sections 2302 and 7121(c) of title 5;".

TERMINATION Date; Savings PROVISION

Section 11 of Pub. L. 101-552 provided that: "The authority of agencies to use dispute resolution proceedings under this Act [see Short Title note below] and the amendments made by this Act shall terminate on October 1, 1995, except that such authority shall continue in effect with respect to then pending proceedings which, in the judgment of the agencies that are parties to the dispute resolution proceedings, require such continuation, until such proceedings terminate."

SHORT TITLE

Section 1 of Pub. L. 101-552 provided that: "This Act [enacting this subchapter, amending section 556 of this title, section 10 of Title 9, Arbitration, section 2672 of Title 28, Judiciary and Judicial Procedure, section 173 of Title 29, Labor, section 3711 of Title 31, Money and Finance, and sections 605 and 607 of Title 41, Public Contracts, and enacting provisions set out as notes under this section] may be cited as the 'Administrative Dispute Resolution Act'."

CONGRESSIONAL FINDINGS Section 2 of Pub. L. 101-552 provided that: "The Congress finds that

"(1) administrative procedure, as embodied in chapter 5 of title 5, United States Code, and other statutes, is intended to offer a prompt, expert, and inexpensive means of resolving disputes as an alternative to litigation in the Federal courts;

"(2) administrative proceedings have become increasingly formal, costly, and lengthy resulting in unnecessary expenditures of time and in a decreased likelihood of achieving consensual resolution of disputes;

“(3) alternative means of dispute resolution have been used in the private sector for many years and, in appropriate circumstances, have yielded decisions that are faster, less expensive, and less contentious; "(4) such alternative means can lead to more creative, efficient, and sensible outcomes;

"(5) such alternative means may be used advantageously in a wide variety of administrative programs; “(6) explicit authorization of the use of well-tested dispute resolution techniques will eliminate ambiguity of agency authority under existing law;

"(7) Federal agencies may not only receive the benefit of techniques that were developed in the private sector, but may also take the lead in the further development and refinement of such techniques; and

“(8) the availability of a wide range of dispute resolution procedures, and an increased understanding of the most effective use of such procedures, will enhance the operation of the Government and better serve the public."

PROMOTION OF ALTERNATIVE MEANS OF DISPUTE
RESOLUTION

Section 3 of Pub. L. 101-552 provided that:

"(a) PROMULGATION OF AGENCY POLICY.-Each agency shall adopt a policy that addresses the use of alternative means of dispute resolution and case management. In developing such a policy, each agency shall"(1) consult with the Administrative Conference of the United States and the Federal Mediation and Conciliation Service; and

"(2) examine alternative means of resolving disputes in connection with

"(A) formal and informal adjudications;
"(B) rulemakings;

"(C) enforcement actions;

"(D) issuing and revoking licenses or permits;
"(E) contract administration;

"(F) litigation brought by or against the agency; and

"(G) other agency actions.

"(b) DISPUTE RESOLUTION SPECIALISTS.-The head of each agency shall designate a senior official to be the dispute resolution specialist of the agency. Such official shall be responsible for the implementation of

"(1) the provisions of this Act [see Short Title note above] and the amendments made by this Act; and "(2) the agency policy developed under subsection (a).

"(c) TRAINING.-Each agency shall provide for training on a regular basis for the dispute resolution specialist of the agency and other employees involved in implementing the policy of the agency developed under subsection (a). Such training should encompass the theory and practice of negotiation, mediation, arbitration, or related techniques. The dispute resolution specialist shall periodically recommend to the agency head agency employees who would benefit from similar training.

"(d) PROCEDURES FOR GRANTS AND CONTRACTS.

"(1) Each agency shall review each of its standard agreements for contracts, grants, and other assistance and shall determine whether to amend any such standard agreements to authorize and encourage the use of alternative means of dispute resolution.

"(2)(A) Within 1 year after the date of the enactment of this Act [Nov. 15, 1990), the Federal Acquisition Regulation shall be amended, as necessary, to carry out this Act [see Short Title note above] and the amendments made by this Act.

"(B) For purposes of this section, the term 'Federal Acquisition Regulation' means the single system of Government-wide procurement regulation referred to in section 6(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 405(a))."

USE OF NONATTORNEYS

Section 9 of Pub. L. 101-552 provided that:

"(a) REPRESENTATION OF PARTIES.-Each agency, in developing a policy on the use of alternative means of dispute resolution under this Act [see Short Title note above], shall develop a policy with regard to the representation by persons other than attorneys of parties in alternative dispute resolution proceedings and shall

identify any of its administrative programs with numerous claims or disputes before the agency and determine

"(1) the extent to which individuals are represented or assisted by attorneys or by persons who are not attorneys; and

"(2) whether the subject areas of the applicable proceedings or the procedures are so complex or specialized that only attorneys may adequately provide such representation or assistance.

"(b) REPRESENTATION AND ASSISTANCE BY NONATTORNEYS.-A person who is not an attorney may provide representation or assistance to any individual in a claim or dispute with an agency, if—

"(1) such claim or dispute concerns an administrative program identified under subsection (a);

"(2) such agency determines that the proceeding or procedure does not necessitate representation or assistance by an attorney under subsection (a)(2); and

"(3) such person meets any requirement of the agency to provide representation or assistance in such a claim or dispute.

"(c) DISQUALIFICATION OF REPRESENTATION OR ASSISTANCE.-Any agency that adopts regulations under subchapter IV of chapter 5 of title 5, United States Code, to permit representation or assistance by persons who are not attorneys shall review the rules of practice before such agency to

"(1) ensure that any rules pertaining to disqualification of attorneys from practicing before the agency shall also apply, as appropriate, to other persons who provide representation or assistance; and

"(2) establish effective agency procedures for enforcing such rules of practice and for receiving complaints from affected persons."

DEFINITIONS

Section 10 of Pub. L. 101-552, as amended by Pub. L 102-354, § 5(b)(6), Aug. 26, 1992, 106 Stat. 946, provided that: "As used in this Act [see Short Title note above], the terms 'agency', 'administrative program', and 'alternative means of dispute resolution' have the meanings given such terms in section 571 of title 5, United States Code (enacted as section 581 of title 5, United States Code, by section 4(b) of this Act, and redesignated as section 571 of such title by section 3(b) of the Administrative Procedure Technical Amendments Act of 1991 [Pub. L. 102-354])."

§ 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;

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