Legislación
US (United States) Code. Title 5. Chapter 5: Administrative procedure
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5 USC CHAPTER 5 - ADMINISTRATIVE PROCEDURE 01/06/03
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
.
-HEAD-
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
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SUBCHAPTER I - GENERAL PROVISIONS
Sec.
500. Administrative practice; general provisions.
501. Advertising practice; restrictions.
502. Administrative practice; Reserves and National Guardsmen.
503. Witness fees and allowances.
504. Costs and fees of parties.
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
551. Definitions.
552. Public information; agency rules, opinions, orders, records,
and proceedings.
552a. Records about individuals. (FOOTNOTE 1)
(FOOTNOTE 1) So in original. Does not conform to section
catchline.
552b. Open meetings.
553. Rule making.
554. Adjudications.
555. Ancillary matters.
556. Hearings; presiding employees; powers and duties; burden of
proof; evidence; record as basis of decision.
557. Initial decisions; conclusiveness; review by agency;
submissions by parties; contents of decisions; record.
558. Imposition of sanctions; determination of applications for
licenses; suspension, revocation, and expiration of licenses.
559. Effect on other laws; effect of subsequent statute.
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
561. Purpose.
562. Definitions.
563. Determination of need for negotiated rulemaking committee.
564. Publication of notice; applications for membership on
committee.
565. Establishment of committee.
566. Conduct of committee activity.
567. Termination of committee.
568. Services, facilities, and payment of committee member
expenses.
569. Encouraging negotiated rulemaking.
570. Judicial review.
570a. Authorization of appropriations.
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
571. Definitions.
572. General authority.
573. Neutrals.
574. Confidentiality.
575. Authorization of arbitration.
576. Enforcement of arbitration agreements.
577. Arbitrators.
578. Authority of the arbitrator.
579. Arbitration proceedings.
580. Arbitration awards.
581. Judicial review.
(582. Repealed.)
583. Support services.
584. Authorization of appropriations.
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
591. Purpose.
592. Definitions.
593. Administrative Conference of the United States.
594. Powers and duties of the Conference.
595. Organization of the Conference.
596. Authorization of appropriations.
AMENDMENTS
1996 - Pub. L. 104-320, Sec. 4(b)(2), 10(b), 11(b)(2), (d)(2),
Oct. 19, 1996, 110 Stat. 3871, 3873, 3874, in item 569 substituted
''Encouraging negotiated rulemaking'' for ''Role of the
Administrative Conference of the United States and other
entities'', added items 570a and 584, and struck out item 582
''Compilation of information''.
1992 - Pub. L. 102-354, Sec. 4, Aug. 26, 1992, 106 Stat. 945,
substituted headings of subchapters III, IV, and V and items 561 to
570, 571 to 583, and 591 to 596 for former heading of subchapter
III and former items 571 to 576 relating to Administrative
Conference of the United States, former heading of subchapter IV
and former items 581 to 593 relating to alternative means of
dispute resolution in the administrative process, and former
heading of subchapter IV and former items 581 to 590 relating to
negotiated rulemaking procedure.
1990 - Pub. L. 101-648, Sec. 3(b), Nov. 29, 1990, 104 Stat. 4976,
added heading of subchapter IV and items 581 to 590 relating to
negotiated rulemaking procedure.
Pub. L. 101-552, Sec. 4(c), Nov. 15, 1990, 104 Stat. 2745, added
heading of subchapter IV and items 581 to 593 (renumbered 571 to
583) relating to alternative means of dispute resolution.
1986 - Pub. L. 99-470, Sec. 2(b), Oct. 14, 1986, 100 Stat. 1198,
substituted ''Authorization of appropriations'' for
''Appropriations'' in item 576.
1985 - Pub. L. 99-80, Sec. 6, Aug. 5, 1985, 99 Stat. 186, revived
item 504 and repealed Pub. L. 96-481, title II, Sec. 203(c), Oct.
21, 1980, 94 Stat. 2327, which provided for the repeal, effective
Oct. 1, 1984, of item 504.
1980 - Pub. L. 96-481, title II, Sec. 203(a)(2), (c), Oct. 21,
1980, 94 Stat. 2327, added item 504 ''Costs and fees of parties'',
and repealed that item effective Oct. 1, 1984.
1976 - Pub. L. 94-409, Sec. 3(b), Sept. 13, 1976, 90 Stat. 1246,
added item 552b.
1974 - Pub. L. 93-579, Sec. 4, Dec. 31, 1974, 88 Stat. 1905,
added item 552a.
1967 - Pub. L. 90-83, Sec. 1(1)(B), Sept. 11, 1967, 81 Stat. 195,
added item 500.
Pub. L. 90-23, Sec. 2, June 5, 1967, 81 Stat. 56, substituted
''Public information; agency rules, opinions, orders, records and
proceedings'' for ''Publication of information, rules, opinions,
orders, and public records'' in item 552.
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CHAPTER REFERRED TO IN OTHER SECTIONS
This chapter is referred to in title 2 section 437d; title 6
section 112; title 12 sections 1467a, 1730a, 1786, 1818, 2266,
4582, 4633; title 15 sections 77s, 637, 648, 656, 687e, 1541,
1691b, 1715, 2703, 3803; title 16 section 460aa-3; title 20
sections 1068, 7711; title 21 section 342; title 25 sections 450j,
450l, 458aaa-5, 954; title 29 sections 1861, 2939; title 30 section
811; title 33 section 701n; title 39 sections 204, 410, 3001, 3603;
title 42 sections 300j-6, 9613, 11504; title 43 section 1740; title
44 section 3507; title 45 sections 1116, 1212; title 46 App.
section 1241p; title 49 sections 106, 44936.
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5 USC SUBCHAPTER I - GENERAL PROVISIONS 01/06/03
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
.
-HEAD-
SUBCHAPTER I - GENERAL PROVISIONS
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5 USC Sec. 500 01/06/03
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 500. Administrative practice; general provisions
-STATUTE-
(a) For the purpose of this section -
(1) ''agency'' has the meaning given it by section 551 of this
title; and
(2) ''State'' means a State, a territory or possession of the
United States including a Commonwealth, or the District of
Columbia.
(b) An individual who is a member in good standing of the bar of
the highest court of a State may represent a person before an
agency on filing with the agency a written declaration that he is
currently qualified as provided by this subsection and is
authorized to represent the particular person in whose behalf he
acts.
(c) An individual who is duly qualified to practice as a
certified public accountant in a State may represent a person
before the Internal Revenue Service of the Treasury Department on
filing with that agency a written declaration that he is currently
qualified as provided by this subsection and is authorized to
represent the particular person in whose behalf he acts.
(d) This section does not -
(1) grant or deny to an individual who is not qualified as
provided by subsection (b) or (c) of this section the right to
appear for or represent a person before an agency or in an agency
proceeding;
(2) authorize or limit the discipline, including disbarment, of
individuals who appear in a representative capacity before an
agency;
(3) authorize an individual who is a former employee of an
agency to represent a person before an agency when the
representation is prohibited by statute or regulation; or
(4) prevent an agency from requiring a power of attorney as a
condition to the settlement of a controversy involving the
payment of money.
(e) Subsections (b)-(d) of this section do not apply to practice
before the United States Patent and Trademark Office with respect
to patent matters that continue to be covered by chapter 3
(sections 31-33) of title 35.
(f) When a participant in a matter before an agency is
represented by an individual qualified under subsection (b) or (c)
of this section, a notice or other written communication required
or permitted to be given the participant in the matter shall be
given to the representative in addition to any other service
specifically required by statute. When a participant is
represented by more than one such qualified representative, service
on any one of the representatives is sufficient.
-SOURCE-
(Added Pub. L. 90-83, Sec. 1(1)(A), Sept. 11, 1967, 81 Stat. 195;
amended Pub. L. 106-113, div. B, Sec. 1000(a)(9) (title IV, Sec.
4732(b)(2)), Nov. 29, 1999, 113 Stat. 1536, 1501A-583.)
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Historical and Revision Notes
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Section of title 5 Source (U.S. Code) Source (Revised
Statutes at Large)
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500(a) 5 App.: 1014. Nov. 8, 1965, Pub.
L. 89-332, Sec. 3,
79 Stat. 1281.
500(b)-(e) 5 App.: 1012. Nov. 8, 1965, Pub.
L. 89-332, Sec. 1,
79 Stat. 1281.
500(f) 5 App.: 1013. Nov. 8, 1965, Pub.
L. 89-332, Sec. 2,
79 Stat. 1281.
-------------------------------
The definition of ''State'' in subsection (a)(2) is supplied for
convenience and is based on the words ''State, possession,
territory, Commonwealth, or District of Columbia'' in subsections
(a) and (b) of 5 App. U.S.C. 1012.
In subsection (d), the words ''This section does not'' are
substituted for ''nothing herein shall be construed''.
In subsection (d)(3), the word ''employee'' is substituted for
''officer or employee'' to conform to the definition of
''employee'' in 5 U.S.C. 2105.
AMENDMENTS
1999 - Subsec. (e). Pub. L. 106-113 substituted ''United States
Patent and Trademark Office'' for ''Patent Office''.
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by Pub. L. 106-113 effective 4 months after Nov. 29,
1999, see section 1000(a)(9) (title IV, Sec. 4731) of Pub. L.
106-113, set out as a note under section 1 of Title 35, Patents.
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SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 31 section 330; title 38
section 5901; title 49 section 703.
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5 USC Sec. 501 01/06/03
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 501. Advertising practice; restrictions
-STATUTE-
An individual, firm, or corporation practicing before an agency
of the United States may not use the name of a Member of either
House of Congress or of an individual in the service of the United
States in advertising the business.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381.)
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Historical and Revision Notes
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Derivation U.S. Code Revised Statutes and
Statutes at Large
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5 U.S.C. 101. Apr. 27, 1916, ch.
89, Sec. 1, 39
Stat. 54.
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The words ''may not'' are substituted for ''It shall be unlawful
for''. The words ''agency of the United States'' are substituted
for ''any department or office of the Government''. The words ''an
individual in the service of the United States'' are substituted
for ''officer of the Government'' in view of the definitions in
sections 2104 and 2105.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
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5 USC Sec. 502 01/06/03
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 502. Administrative practice; Reserves and National Guardsmen
-STATUTE-
Membership in a reserve component of the armed forces or in the
National Guard does not prevent an individual from practicing his
civilian profession or occupation before, or in connection with, an
agency of the United States.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381.)
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Historical and Revision Notes
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Derivation U.S. Code Revised Statutes and
Statutes at Large
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5 U.S.C. 30r(c) (2d Aug. 10, 1956, ch.
sentence). 1041, Sec. 29(c)
(2d sentence), 70A
Stat. 632.
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Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
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5 USC Sec. 503 01/06/03
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 503. Witness fees and allowances
-STATUTE-
(a) For the purpose of this section, ''agency'' has the meaning
given it by section 5721 of this title.
(b) A witness is entitled to the fees and allowances allowed by
statute for witnesses in the courts of the United States when -
(1) he is subpenaed under section 304(a) of this title; or
(2) he is subpenaed to and appears at a hearing before an
agency authorized by law to hold hearings and subpena witnesses
to attend the hearings.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381.)
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Historical and Revision Notes
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Derivation U.S. Code Revised Statutes and
Statutes at Large
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5 U.S.C. 95. R.S. Sec. 185.
5 U.S.C. 95a. Aug. 2, 1946, ch.
744, Sec. 10, 60
Stat. 809.
-------------------------------
Former sections 95 and 95a are combined and restated for clarity
and brevity. The words ''or expenses in the case of Government
officers and employees'' are omitted as covered by section 1823 of
title 28. The word ''agency'' is substituted for ''department'' and
defined to conform to the definition of ''department'' in section
18 of the Act of Aug. 2, 1946, ch. 744, 60 Stat. 811.
This section was part of title IV of the Revised Statutes. The
Act of July 26, 1947, ch. 343, Sec. 201(d), as added Aug. 10, 1949,
ch. 412, Sec. 4, 63 Stat. 579 (former 5 U.S.C. 171-1), which
provides ''Except to the extent inconsistent with the provisions of
this Act (National Security Act of 1947), the provisions of title
IV of the Revised Statutes as now or hereafter amended shall be
applicable to the Department of Defense'' is omitted from this
title but is not repealed.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
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5 USC Sec. 504 01/06/03
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 504. Costs and fees of parties
-STATUTE-
(a)(1) An agency that conducts an adversary adjudication shall
award, to a prevailing party other than the United States, fees and
other expenses incurred by that party in connection with that
proceeding, unless the adjudicative officer of the agency finds
that the position of the agency was substantially justified or that
special circumstances make an award unjust. Whether or not the
position of the agency was substantially justified shall be
determined on the basis of the administrative record, as a whole,
which is made in the adversary adjudication for which fees and
other expenses are sought.
(2) A party seeking an award of fees and other expenses shall,
within thirty days of a final disposition in the adversary
adjudication, submit to the agency an application which shows that
the party is a prevailing party and is eligible to receive an award
under this section, and the amount sought, including an itemized
statement from any attorney, agent, or expert witness representing
or appearing in behalf of the party stating the actual time
expended and the rate at which fees and other expenses were
computed. The party shall also allege that the position of the
agency was not substantially justified. When the United States
appeals the underlying merits of an adversary adjudication, no
decision on an application for fees and other expenses in
connection with that adversary adjudication shall be made under
this section until a final and unreviewable decision is rendered by
the court on the appeal or until the underlying merits of the case
have been finally determined pursuant to the appeal.
(3) The adjudicative officer of the agency may reduce the amount
to be awarded, or deny an award, to the extent that the party
during the course of the proceedings engaged in conduct which
unduly and unreasonably protracted the final resolution of the
matter in controversy. The decision of the adjudicative officer of
the agency under this section shall be made a part of the record
containing the final decision of the agency and shall include
written findings and conclusions and the reason or basis therefor.
The decision of the agency on the application for fees and other
expenses shall be the final administrative decision under this
section.
(4) If, in an adversary adjudication arising from an agency
action to enforce a party's compliance with a statutory or
regulatory requirement, the demand by the agency is substantially
in excess of the decision of the adjudicative officer and is
unreasonable when compared with such decision, under the facts and
circumstances of the case, the adjudicative officer shall award to
the party the fees and other expenses related to defending against
the excessive demand, unless the party has committed a willful
violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Fees and expenses awarded
under this paragraph shall be paid only as a consequence of
appropriations provided in advance.
(b)(1) For the purposes of this section -
(A) ''fees and other expenses'' includes the reasonable
expenses of expert witnesses, the reasonable cost of any study,
analysis, engineering report, test, or project which is found by
the agency to be necessary for the preparation of the party's
case, and reasonable attorney or agent fees (The amount of fees
awarded under this section shall be based upon prevailing market
rates for the kind and quality of the services furnished, except
that (i) no expert witness shall be compensated at a rate in
excess of the highest rate of compensation for expert witnesses
paid by the agency involved, and (ii) attorney or agent fees
shall not be awarded in excess of $125 per hour unless the agency
determines by regulation that an increase in the cost of living
or a special factor, such as the limited availability of
qualified attorneys or agents for the proceedings involved,
justifies a higher fee.);
(B) ''party'' means a party, as defined in section 551(3) of
this title, who is (i) an individual whose net worth did not
exceed $2,000,000 at the time the adversary adjudication was
initiated, or (ii) any owner of an unincorporated business, or
any partnership, corporation, association, unit of local
government, or organization, the net worth of which did not
exceed $7,000,000 at the time the adversary adjudication was
initiated, and which had not more than 500 employees at the time
the adversary adjudication was initiated; except that an
organization described in section 501(c)(3) of the Internal
Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation
under section 501(a) of such Code, or a cooperative association
as defined in section 15(a) of the Agricultural Marketing Act (12
U.S.C. 1141j(a)), may be a party regardless of the net worth of
such organization or cooperative association or for purposes of
subsection (a)(4), a small entity as defined in section 601;
(C) ''adversary adjudication'' means (i) an adjudication under
section 554 of this title in which the position of the United
States is represented by counsel or otherwise, but excludes an
adjudication for the purpose of establishing or fixing a rate or
for the purpose of granting or renewing a license, (ii) any
appeal of a decision made pursuant to section 6 of the Contract
Disputes Act of 1978 (41 U.S.C. 605) before an agency board of
contract appeals as provided in section 8 of that Act (41 U.S.C.
607), (iii) any hearing conducted under chapter 38 of title 31,
and (iv) the Religious Freedom Restoration Act of 1993;
(D) ''adjudicative officer'' means the deciding official,
without regard to whether the official is designated as an
administrative law judge, a hearing officer or examiner, or
otherwise, who presided at the adversary adjudication;
(E) ''position of the agency'' means, in addition to the
position taken by the agency in the adversary adjudication, the
action or failure to act by the agency upon which the adversary
adjudication is based; except that fees and other expenses may
not be awarded to a party for any portion of the adversary
adjudication in which the party has unreasonably protracted the
proceedings; and
(F) ''demand'' means the express demand of the agency which led
to the adversary adjudication, but does not include a recitation
by the agency of the maximum statutory penalty (i) in the
administrative complaint, or (ii) elsewhere when accompanied by
an express demand for a lesser amount.
(2) Except as otherwise provided in paragraph (1), the
definitions provided in section 551 of this title apply to this
section.
(c)(1) After consultation with the Chairman of the Administrative
Conference of the United States, each agency shall by rule
establish uniform procedures for the submission and consideration
of applications for an award of fees and other expenses. If a
court reviews the underlying decision of the adversary
adjudication, an award for fees and other expenses may be made only
pursuant to section 2412(d)(3) of title 28, United States Code.
(2) If a party other than the United States is dissatisfied with
a determination of fees and other expenses made under subsection
(a), that party may, within 30 days after the determination is
made, appeal the determination to the court of the United States
having jurisdiction to review the merits of the underlying decision
of the agency adversary adjudication. The court's determination on
any appeal heard under this paragraph shall be based solely on the
factual record made before the agency. The court may modify the
determination of fees and other expenses only if the court finds
that the failure to make an award of fees and other expenses, or
the calculation of the amount of the award, was unsupported by
substantial evidence.
(d) Fees and other expenses awarded under this subsection shall
be paid by any agency over which the party prevails from any funds
made available to the agency by appropriation or otherwise.
(e) The Chairman of the Administrative Conference of the United
States, after consultation with the Chief Counsel for Advocacy of
the Small Business Administration, shall report annually to the
Congress on the amount of fees and other expenses awarded during
the preceding fiscal year pursuant to this section. The report
shall describe the number, nature, and amount of the awards, the
claims involved in the controversy, and any other relevant
information which may aid the Congress in evaluating the scope and
impact of such awards. Each agency shall provide the Chairman with
such information as is necessary for the Chairman to comply with
the requirements of this subsection.
(f) No award may be made under this section for costs, fees, or
other expenses which may be awarded under section 7430 of the
Internal Revenue Code of 1986.
-SOURCE-
(Added Pub. L. 96-481, title II, Sec. 203(a)(1), (c), Oct. 21,
1980, 94 Stat. 2325, 2327; revived and amended Pub. L. 99-80, Sec.
1, 6, Aug. 5, 1985, 99 Stat. 183, 186; Pub. L. 99-509, title VI,
Sec. 6103(c), Oct. 21, 1986, 100 Stat. 1948; Pub. L. 99-514, Sec.
2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100-647, title VI, Sec.
6239(b), Nov. 10, 1988, 102 Stat. 3746; Pub. L. 103-141, Sec. 4(b),
Nov. 16, 1993, 107 Stat. 1489; Pub. L. 104-121, title II, Sec. 231,
Mar. 29, 1996, 110 Stat. 862.)
-REFTEXT-
REFERENCES IN TEXT
The Religious Freedom Restoration Act of 1993, referred to in
subsec. (b)(1)(C)(iv), is Pub. L. 103-141, Nov. 16, 1993, 107 Stat.
1488, which is classified principally to chapter 21B (Sec. 2000bb
et seq.) of Title 42, The Public Health and Welfare. For complete
classification of this Act to the Code, see Short Title note set
out under section 2000bb of Title 42 and Tables.
Section 7430 of the Internal Revenue Code of 1986, referred to in
subsec. (f), is classified to section 7430 of Title 26, Internal
Revenue Code.
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AMENDMENTS
1996 - Subsec. (a)(4). Pub. L. 104-121, Sec. 231(a), added par.
(4).
Subsec. (b)(1)(A)(ii). Pub. L. 104-121, Sec. 231(b)(1),
substituted ''$125'' for ''$75''.
Subsec. (b)(1)(B). Pub. L. 104-121, Sec. 231(b)(2), inserted
before semicolon at end ''or for purposes of subsection (a)(4), a
small entity as defined in section 601''.
Subsec. (b)(1)(F). Pub. L. 104-121, Sec. 231(b)(3)-(5), added
subpar. (F).
1993 - Subsec. (b)(1)(C). Pub. L. 103-141 added cl. (iv).
1988 - Subsec. (f). Pub. L. 100-647 added subsec. (f).
1986 - Subsec. (b)(1)(B). Pub. L. 99-514 substituted ''Internal
Revenue Code of 1986'' for ''Internal Revenue Code of 1954''.
Subsec. (b)(1)(C)(iii). Pub. L. 99-509 added cl. (iii).
1985 - Subsec. (a)(1). Pub. L. 99-80, Sec. 1(a)(1), (2), struck
out ''as a party to the proceeding'' after ''the position of the
agency'', and inserted ''Whether or not the position of the agency
was substantially justified shall be determined on the basis of the
administrative record, as a whole, which is made in the adversary
adjudication for which fees and other expenses are sought.''
Subsec. (a)(2). Pub. L. 99-80, Sec. 1(b), inserted ''When the
United States appeals the underlying merits of an adversary
adjudication, no decision on an application for fees and other
expenses in connection with that adversary adjudication shall be
made under this section until a final and unreviewable decision is
rendered by the court on the appeal or until the underlying merits
of the case have been finally determined pursuant to the appeal.''
Subsec. (a)(3). Pub. L. 99-80, Sec. 1(a)(3), inserted ''The
decision of the agency on the application for fees and other
expenses shall be the final administrative decision under this
section.''
Subsec. (b)(1)(B). Pub. L. 99-80, Sec. 1(c)(1), amended subpar.
(B) generally. Prior to amendment, subpar. (B) read as follows: ''
'party' means a party, as defined in section 551(3) of this title,
which is an individual, partnership, corporation, association, or
public or private organization other than an agency, but excludes
(i) any individual whose net worth exceeded $1,000,000 at the time
the adversary adjudication was initiated, and any sole owner of an
unincorporated business, or any partnership, corporation,
association, or organization whose net worth exceeded $5,000,000 at
the time the adversary adjudication was initiated, except that an
organization described in section 501(c)(3) of the Internal Revenue
Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under
section 501(a) of the Code and a cooperative association as defined
in section 15(a) of the Agricultural Marketing Act (12 U.S.C.
1141j(a)), may be a party regardless of the net worth of such
organization or cooperative association, and (ii) any sole owner of
an unincorporated business, or any partnership, corporation,
association, or organization, having more than 500 employees at the
time the adversary adjudication was initiated;''.
Subsec. (b)(1)(C). Pub. L. 99-80, Sec. 1(c)(2), designated
existing provisions of subpar. (C) as cl. (i) thereof by inserting
''(i)'' before ''an adjudication under'', added cl. (ii), and
struck out ''and'' after the semicolon at the end.
Subsec. (b)(1)(D), (E). Pub. L. 99-80, Sec. 1(c)(3), substituted
''; and'' for the period at end of subpar. (D), and added subpar.
(E).
Subsec. (c)(2). Pub. L. 99-80, Sec. 1(d), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ''A party
dissatisfied with the fee determination made under subsection (a)
may petition for leave to appeal to the court of the United States
having jurisdiction to review the merits of the underlying decision
of the agency adversary adjudication. If the court denies the
petition for leave to appeal, no appeal may be taken from the
denial. If the court grants the petition, it may modify the
determination only if it finds that the failure to make an award,
or the calculation of the amount of the award, was an abuse of
discretion.''
Subsec. (d). Pub. L. 99-80, Sec. 1(e), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows:
''(1) Fees and other expenses awarded under this section may be
paid by any agency over which the party prevails from any funds
made available to the agency, by appropriation or otherwise, for
such purpose. If not paid by any agency, the fees and other
expenses shall be paid in the same manner as the payment of final
judgments is made pursuant to section 2414 of title 28, United
States Code.
''(2) There is authorized to be appropriated to each agency for
each of the fiscal years 1982, 1983, and 1984, such sums as may be
necessary to pay fees and other expenses awarded under this section
in such fiscal years.''
1980 - Pub. L. 96-481, Sec. 203(c), which provided for the repeal
of this section effective Oct. 1, 1984, was itself repealed and
this section was revived by section 6 of Pub. L. 99-80, set out as
a note below.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 233 of Pub. L. 104-121 provided that: ''The amendments
made by sections 331 and 332 (probably means sections 231 and 232,
amending this section and section 2412 of Title 28, Judiciary and
Judicial Procedure) shall apply to civil actions and adversary
adjudications commenced on or after the date of the enactment of
this subtitle (Mar. 29, 1996).''
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-647 applicable to proceedings commencing
after Nov. 10, 1988, see section 6239(d) of Pub. L. 100-647, set
out as a note under section 7430 of Title 26, Internal Revenue
Code.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99-509 effective Oct. 21, 1986, and
applicable to any claim or statement made, presented or submitted
on or after such date, see section 6104 of Pub. L. 99-509, set out
as an Effective Date note under section 3801 of Title 31, Money and
Finance.
EFFECTIVE DATE OF 1985 AMENDMENT
Section 7 of Pub. L. 99-80 provided that:
''(a) In General. - Except as otherwise provided in this section,
the amendments made by this Act (reviving and amending this section
and section 2412(d) of Title 28, Judiciary and Judicial Procedure,
and amending and repealing provisions set out as notes under those
sections) shall apply to cases pending on or commenced on or after
the date of the enactment of this Act (Aug. 5, 1985).
''(b) Applicability of Amendments to Certain Prior Cases. - The
amendments made by this Act shall apply to any case commenced on or
after October 1, 1984, and finally disposed of before the date of
the enactment of this Act (Aug. 5, 1985), except that in any such
case, the 30-day period referred to in section 504(a)(2) of title
5, United States Code, or section 2412(d)(1)(B) of title 28, United
States Code, as the case may be, shall be deemed to commence on the
date of the enactment of this Act.
''(c) Applicability of Amendments to Prior Board of Contracts
Appeals Cases. - Section 504(b)(1)(C)(ii) of title 5, United States
Code, as added by section 1(c)(2) of this Act, and section
2412(d)(2)(E) of title 28, United States Code, as added by section
2(c)(2) of this Act, shall apply to any adversary adjudication
pending on or commenced on or after October 1, 1981, in which
applications for fees and other expenses were timely filed and were
dismissed for lack of jurisdiction.''
EFFECTIVE DATE
Section 208 of title II of Pub. L. 96-481, as amended by Pub. L.
99-80, Sec. 5, Aug. 5, 1985, 99 Stat. 186, provided that: ''This
title and the amendments made by this title (see Short Title note
below) shall take effect of (on) October 1, 1981, and shall apply
to any adversary adjudication, as defined in section 504(b)(1)(C)
of title 5, United States Code, and any civil action or adversary
adjudication described in section 2412 of title 28, United States
Code, which is pending on, or commenced on or after, such date.
Awards may be made for fees and other expenses incurred before
October 1, 1981, in any such adversary adjudication or civil
action.''
Section 203(c) of Pub. L. 96-481 which provided that effective
Oct. 1, 1984, this section is repealed, except that the provisions
of this section shall continue to apply through final disposition
of any adversary adjudication initiated before the date of repeal,
was itself repealed by Pub. L. 99-80, Sec. 6(b)(1), Aug. 5, 1985,
99 Stat. 186.
SHORT TITLE
Section 201 of title II of Pub. L. 96-481 provided that: ''This
title (enacting this section, amending section 634 of Title 15,
Commerce and Trade, section 2412 of Title 28, Judiciary and
Judicial Procedure, Rule 37 of the Federal Rules of Civil
Procedure, set out in Title 28 Appendix, and section 1988 of Title
42, The Public Health and Welfare, and enacting provisions set out
as notes under this section and section 2412 of Title 28) may be
cited as the 'Equal Access to Justice Act'.''
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions in subsec.
(e) of this section relating to annual report to Congress on the
amount of fees and other expenses, see section 3003 of Pub. L.
104-66, as amended, set out as a note under section 1113 of Title
31, Money and Finance, and page 153 of House Document No. 103-7.
-TRANS-
TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES
For termination of Administrative Conference of United States,
see provision of title IV of Pub. L. 104-52, set out as a note
preceding section 591 of this title.
-MISC5-
PROHIBITION ON USE OF ENERGY AND WATER DEVELOPMENT APPROPRIATIONS
TO PAY INTERVENING PARTIES IN REGULATORY OR ADJUDICATORY
PROCEEDINGS
Pub. L. 102-377, title V, Sec. 502, Oct. 2, 1992, 106 Stat. 1342,
provided that: ''None of the funds in this Act or subsequent Energy
and Water Development Appropriations Acts shall be used to pay the
expenses of, or otherwise compensate, parties intervening in
regulatory or adjudicatory proceedings funded in such Acts.''
REVIVAL OF PREVIOUSLY REPEALED PROVISIONS
Section 6 of Pub. L. 99-80 provided that:
''(a) Revival of Certain Expired Provisions. - Section 504 of
title 5, United States Code, and the item relating to that section
in the table of sections of chapter 5 of title 5, United States
Code, and subsection (d) of section 2412 of title 28, United States
Code, shall be effective on or after the date of the enactment of
this Act (Aug. 5, 1985) as if they had not been repealed by
sections 203(c) and 204(c) of the Equal Access to Justice Act (Pub.
L. 96-481).
''(b) Repeals. -
''(1) Section 203(c) of the Equal Access to Justice Act (which
repealed this section) is hereby repealed.
''(2) Section 204(c) of the Equal Access to Justice Act (which
repealed section 2412(d) of title 28) is hereby repealed.''
CONGRESSIONAL FINDINGS AND PURPOSES
Section 202 of title II of Pub. L. 96-481 provided that:
''(a) The Congress finds that certain individuals, partnerships,
corporations, and labor and other organizations may be deterred
from seeking review of, or defending against, unreasonable
governmental action because of the expense involved in securing the
vindication of their rights in civil actions and in administrative
proceedings.
''(b) The Congress further finds that because of the greater
resources and expertise of the United States the standard for an
award of fees against the United States should be different from
the standard governing an award against a private litigant, in
certain situations.
''(c) It is the purpose of this title (see Short Title note
above) -
''(1) to diminish the deterrent effect of seeking review of, or
defending against, governmental action by providing in specified
situations an award of attorney fees, expert witness fees, and
other costs against the United States; and
''(2) to insure the applicability in actions by or against the
United States of the common law and statutory exceptions to the
'American rule' respecting the award of attorney fees.''
LIMITATION ON PAYMENTS
Section 207 of title II of Pub. L. 96-481, which provided that
the payment of judgments, fees and other expenses in the same
manner as the payment of final judgments as provided in this Act
(probably should be ''this title'', see Short Title note above)
would be effective only to the extent and in such amounts as are
provided in advance in appropriation Acts, was repealed by Pub. L.
99-80, Sec. 4, Aug. 5, 1985, 99 Stat. 186.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 15 section 634b; title 18
section 293; title 20 section 1234; title 25 section 450m-1; title
28 section 2412; title 42 section 3612.
-CITE-
5 USC SUBCHAPTER II - ADMINISTRATIVE PROCEDURE 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
.
-HEAD-
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-MISC1-
SHORT TITLE
The provisions of this subchapter and chapter 7 of this title
were originally enacted by act June 11, 1946, ch. 324, 60 Stat.
237, popularly known as the ''Administrative Procedure Act''. That
Act was repealed as part of the general revision of this title by
Pub. L. 89-554 and its provisions incorporated into this subchapter
and chapter 7 hereof.
-SECREF-
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in sections 571, 592, 7118, 7134,
8902, 8902a of this title; title 2 sections 501, 502; title 7
sections 136d, 1642, 6911; title 8 section 1753; title 12 sections
635a-2, 1437, 1441a, 1959, 2278a-10, 3349, 4525, 4545; title 15
sections 78dd-1, 78dd-2, 78ggg, 266, 1715, 3412, 3710a, 5103, 5308;
title 16 sections 460aa-3, 470q, 470hh; title 17 sections 701, 802;
title 19 sections 1337, 1677c; title 20 section 107d-2; title 21
sections 360kk, 811, 824, 875, 958, 971; title 22 sections 277d-24,
1623, 1645n, 4116; title 23 sections 134, 135; title 25 section
954; title 28 sections 509, 2467; title 29 sections 156, 164, 213,
481, 628, 792, 1137; title 30 sections 184, 956; title 31 sections
321, 3801, 3803; title 33 sections 524, 597, 2313; title 39 section
3008; title 41 section 43a; title 42 sections 1436c, 2000e-12,
2231, 2236, 2454, 3789d, 6212, 6241, 6393, 7191, 7276, 7383h-1,
7420, 7607, 11346, 12116, 12206; title 43 section 1624; title 45
sections 1116, 1212; title 46 sections 7702, 9303; title 47
sections 303, 305, 310, 409, 1103; title 49 sections 721, 5303,
11123, 11324, 13905, 20143, 40103, 46102, 46105; title 50 sections
167h, 835; title 50 App. sections 463, 2159.
-CITE-
5 USC Sec. 551 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 551. Definitions
-STATUTE-
For the purpose of this subchapter -
(1) ''agency'' means each authority of the Government of the
United States, whether or not it is within or subject to review
by another agency, but does not include -
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the
United States;
(D) the government of the District of Columbia;
or except as to the requirements of section 552 of this title -
(E) agencies composed of representatives of the parties or of
representatives of organizations of the parties to the disputes
determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war
or in occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743, and
1744 of title 12; chapter 2 of title 41; subchapter II of
chapter 471 of title 49; or sections 1884, 1891-1902, and
former section 1641(b)(2), of title 50, appendix;
(2) ''person'' includes an individual, partnership,
corporation, association, or public or private organization other
than an agency;
(3) ''party'' includes a person or agency named or admitted as
a party, or properly seeking and entitled as of right to be
admitted as a party, in an agency proceeding, and a person or
agency admitted by an agency as a party for limited purposes;
(4) ''rule'' means the whole or a part of an agency statement
of general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy or describing
the organization, procedure, or practice requirements of an
agency and includes the approval or prescription for the future
of rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services
or allowances therefor or of valuations, costs, or accounting, or
practices bearing on any of the foregoing;
(5) ''rule making'' means agency process for formulating,
amending, or repealing a rule;
(6) ''order'' means the whole or a part of a final disposition,
whether affirmative, negative, injunctive, or declaratory in
form, of an agency in a matter other than rule making but
including licensing;
(7) ''adjudication'' means agency process for the formulation
of an order;
(8) ''license'' includes the whole or a part of an agency
permit, certificate, approval, registration, charter, membership,
statutory exemption or other form of permission;
(9) ''licensing'' includes agency process respecting the grant,
renewal, denial, revocation, suspension, annulment, withdrawal,
limitation, amendment, modification, or conditioning of a
license;
(10) ''sanction'' includes the whole or a part of an agency -
(A) prohibition, requirement, limitation, or other condition
affecting the freedom of a person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding of property;
(E) assessment of damages, reimbursement, restitution,
compensation, costs, charges, or fees;
(F) requirement, revocation, or suspension of a license; or
(G) taking other compulsory or restrictive action;
(11) ''relief'' includes the whole or a part of an agency -
(A) grant of money, assistance, license, authority,
exemption, exception, privilege, or remedy;
(B) recognition of a claim, right, immunity, privilege,
exemption, or exception; or
(C) taking of other action on the application or petition of,
and beneficial to, a person;
(12) ''agency proceeding'' means an agency process as defined
by paragraphs (5), (7), and (9) of this section;
(13) ''agency action'' includes the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act; and
(14) ''ex parte communication'' means an oral or written
communication not on the public record with respect to which
reasonable prior notice to all parties is not given, but it shall
not include requests for status reports on any matter or
proceeding covered by this subchapter.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381; Pub. L. 94-409, Sec.
4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 103-272, Sec. 5(a),
July 5, 1994, 108 Stat. 1373.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
(1) 5 U.S.C. 1001(a). June 11, 1946, ch.
324, Sec. 2(a), 60
Stat. 237.
Aug. 8, 1946, ch.
870, Sec. 302, 60
Stat. 918.
Aug. 10, 1946, ch.
951, Sec. 601, 60
Stat. 993.
Mar. 31, 1947, ch.
30, Sec. 6(a), 61
Stat. 37.
June 30, 1947, ch.
163, Sec. 210, 61
Stat. 201.
Mar. 30, 1948, ch.
161, Sec. 301, 62
Stat. 99.
(2)-(13) 5 U.S.C. 1001 (less June 11, 1946, ch.
(a)). 324, Sec. 2 (less
(a)), 60 Stat. 237.
-------------------------------
In paragraph (1), the sentence ''Nothing in this Act shall be
construed to repeal delegations of authority as provided by law,''
is omitted as surplusage since there is nothing in the Act which
could reasonably be so construed.
In paragraph (1)(G), the words ''or naval'' are omitted as
included in ''military''.
In paragraph (1)(H), the words ''functions which by law expire on
the termination of present hostilities, within any fixed period
thereafter, or before July 1, 1947'' are omitted as executed.
Reference to the ''Selective Training and Service Act of 1940'' is
omitted as that Act expired Mar. 31, 1947. Reference to the ''Sugar
Control Extension Act of 1947'' is omitted as that Act expired on
Mar. 31, 1948. References to the ''Housing and Rent Act of 1947, as
amended'' and the ''Veterans' Emergency Housing Act of 1946'' have
been consolidated as they are related. The reference to former
section 1641(b)(2) of title 50, appendix, is retained
notwithstanding its repeal by Sec. 111(a)(1) of the Act of Sept.
21, 1961, Pub. L. 87-256, 75 Stat. 538, since Sec. 111(c) of the
Act provides that a reference in other Acts to a provision of law
repealed by Sec. 111(a) shall be considered to be a reference to
the appropriate provisions of Pub. L. 87-256.
In paragraph (2), the words ''of any character'' are omitted as
surplusage.
In paragraph (3), the words ''and a person or agency admitted by
an agency as a party for limited purposes'' are substituted for
''but nothing herein shall be construed to prevent an agency from
admitting any person or agency as a party for limited purposes''.
In paragraph (9), a comma is supplied between the words
''limitation'' and ''amendment'' to correct an editorial error of
omission.
In paragraph (10)(C), the words ''of any form'' are omitted as
surplusage.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
-COD-
CODIFICATION
Section 551 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2242
of Title 7, Agriculture.
-MISC3-
AMENDMENTS
1994 - Par. (1)(H). Pub. L. 103-272 substituted ''subchapter II
of chapter 471 of title 49; or sections'' for ''or sections
1622,''.
1976 - Par. (14). Pub. L. 94-409 added par. (14).
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-409 effective 180 days after Sept. 13,
1976, see section 6 of Pub. L. 94-409, set out as an Effective Date
note under section 552b of this title.
STUDY AND REPORTS ON ADMINISTRATIVE SUBPOENAS
Pub. L. 106-544, Sec. 7, Dec. 19, 2000, 114 Stat. 2719, provided
that:
''(a) Study on Use of Administrative Subpoenas. - Not later than
December 31, 2001, the Attorney General, in consultation with the
Secretary of the Treasury, shall complete a study on the use of
administrative subpoena power by executive branch agencies or
entities and shall report the findings to the Committees on the
Judiciary of the Senate and the House of Representatives. Such
report shall include -
''(1) a description of the sources of administrative subpoena
power and the scope of such subpoena power within executive
branch agencies;
''(2) a description of applicable subpoena enforcement
mechanisms;
''(3) a description of any notification provisions and any
other provisions relating to safeguarding privacy interests;
''(4) a description of the standards governing the issuance of
administrative subpoenas; and
''(5) recommendations from the Attorney General regarding
necessary steps to ensure that administrative subpoena power is
used and enforced consistently and fairly by executive branch
agencies.
''(b) Report on Frequency of Use of Administrative Subpoenas. -
''(1) In general. - The Attorney General and the Secretary of
the Treasury shall report in January of each year to the
Committees on the Judiciary of the Senate and the House of
Representatives on the number of administrative subpoenas issued
by them under this section and the identity of the agency or
component of the Department of Justice or the Department of the
Treasury issuing the subpoena and imposing the charges.
''(2) Expiration. - The reporting requirement of this
subsection shall terminate in 3 years after the date of the
enactment of this section (Dec. 19, 2000).''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 500, 504, 552, 562, 571,
592, 595, 601, 701, 804, 3344, 3348 of this title; title 2 sections
501, 502, 658, 1602; title 6 section 131; title 7 section 6997;
title 15 sections 78d-1, 78w, 632, 637c, 766, 2053, 3412, 3416,
6501; title 16 section 470w; title 22 sections 3731, 6033, 6741;
title 25 section 3402; title 26 sections 6103, 9041; title 30
sections 185, 956; title 31 sections 3901, 6101, 7501; title 41
section 422; title 42 sections 2231, 2992c, 6107, 6241, 6393, 7191,
8259, 8262, 11317, 11504; title 46 sections 7702, 9303; title 47
sections 155, 409; title 49 sections 106, 114, 11324; title 50 App.
sections 2159, 2412.
-CITE-
5 USC Sec. 552 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 552. Public information; agency rules, opinions, orders,
records, and proceedings
-STATUTE-
(a) Each agency shall make available to the public information as
follows:
(1) Each agency shall separately state and currently publish in
the Federal Register for the guidance of the public -
(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods
whereby, the public may obtain information, make submittals or
requests, or obtain decisions;
(B) statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the
scope and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as
authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted
by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of
the terms thereof, a person may not in any manner be required to
resort to, or be adversely affected by, a matter required to be
published in the Federal Register and not so published. For the
purpose of this paragraph, matter reasonably available to the class
of persons affected thereby is deemed published in the Federal
Register when incorporated by reference therein with the approval
of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying -
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have
been adopted by the agency and are not published in the Federal
Register;
(C) administrative staff manuals and instructions to staff that
affect a member of the public;
(D) copies of all records, regardless of form or format, which
have been released to any person under paragraph (3) and which,
because of the nature of their subject matter, the agency
determines have become or are likely to become the subject of
subsequent requests for substantially the same records; and
(E) a general index of the records referred to under
subparagraph (D);
unless the materials are promptly published and copies offered for
sale. For records created on or after November 1, 1996, within one
year after such date, each agency shall make such records
available, including by computer telecommunications or, if computer
telecommunications means have not been established by the agency,
by other electronic means. To the extent required to prevent a
clearly unwarranted invasion of personal privacy, an agency may
delete identifying details when it makes available or publishes an
opinion, statement of policy, interpretation, staff manual,
instruction, or copies of records referred to in subparagraph (D).
However, in each case the justification for the deletion shall be
explained fully in writing, and the extent of such deletion shall
be indicated on the portion of the record which is made available
or published, unless including that indication would harm an
interest protected by the exemption in subsection (b) under which
the deletion is made. If technically feasible, the extent of the
deletion shall be indicated at the place in the record where the
deletion was made. Each agency shall also maintain and make
available for public inspection and copying current indexes
providing identifying information for the public as to any matter
issued, adopted, or promulgated after July 4, 1967, and required by
this paragraph to be made available or published. Each agency
shall promptly publish, quarterly or more frequently, and
distribute (by sale or otherwise) copies of each index or
supplements thereto unless it determines by order published in the
Federal Register that the publication would be unnecessary and
impracticable, in which case the agency shall nonetheless provide
copies of such index on request at a cost not to exceed the direct
cost of duplication. Each agency shall make the index referred to
in subparagraph (E) available by computer telecommunications by
December 31, 1999. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects a
member of the public may be relied on, used, or cited as precedent
by an agency against a party other than an agency only if -
(i) it has been indexed and either made available or published
as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms
thereof.
(3)(A) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, and except as provided
in subparagraph (E), each agency, upon any request for records
which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if
any), and procedures to be followed, shall make the records
promptly available to any person.
(B) In making any record available to a person under this
paragraph, an agency shall provide the record in any form or format
requested by the person if the record is readily reproducible by
the agency in that form or format. Each agency shall make
reasonable efforts to maintain its records in forms or formats that
are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records,
an agency shall make reasonable efforts to search for the records
in electronic form or format, except when such efforts would
significantly interfere with the operation of the agency's
automated information system.
(D) For purposes of this paragraph, the term ''search'' means to
review, manually or by automated means, agency records for the
purpose of locating those records which are responsive to a
request.
(E) An agency, or part of an agency, that is an element of the
intelligence community (as that term is defined in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not
make any record available under this paragraph to -
(i) any government entity, other than a State, territory,
commonwealth, or district of the United States, or any
subdivision thereof; or
(ii) a representative of a government entity described in
clause (i).
(4)(A)(i) In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, specifying the schedule of fees
applicable to the processing of requests under this section and
establishing procedures and guidelines for determining when such
fees should be waived or reduced. Such schedule shall conform to
the guidelines which shall be promulgated, pursuant to notice and
receipt of public comment, by the Director of the Office of
Management and Budget and which shall provide for a uniform
schedule of fees for all agencies.
(ii) Such agency regulations shall provide that -
(I) fees shall be limited to reasonable standard charges for
document search, duplication, and review, when records are
requested for commercial use;
(II) fees shall be limited to reasonable standard charges for
document duplication when records are not sought for commercial
use and the request is made by an educational or noncommercial
scientific institution, whose purpose is scholarly or scientific
research; or a representative of the news media; and
(III) for any request not described in (I) or (II), fees shall
be limited to reasonable standard charges for document search and
duplication.
(iii) Documents shall be furnished without any charge or at a
charge reduced below the fees established under clause (ii) if
disclosure of the information is in the public interest because it
is likely to contribute significantly to public understanding of
the operations or activities of the government and is not primarily
in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the
direct costs of search, duplication, or review. Review costs shall
include only the direct costs incurred during the initial
examination of a document for the purposes of determining whether
the documents must be disclosed under this section and for the
purposes of withholding any portions exempt from disclosure under
this section. Review costs may not include any costs incurred in
resolving issues of law or policy that may be raised in the course
of processing a request under this section. No fee may be charged
by any agency under this section -
(I) if the costs of routine collection and processing of the
fee are likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii) (II) or (III) of
this subparagraph for the first two hours of search time or for
the first one hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the
requester has previously failed to pay fees in a timely fashion, or
the agency has determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable
under a statute specifically providing for setting the level of
fees for particular types of records.
(vii) In any action by a requester regarding the waiver of fees
under this section, the court shall determine the matter de novo:
Provided, That the court's review of the matter shall be limited to
the record before the agency.
(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal
place of business, or in which the agency records are situated, or
in the District of Columbia, has jurisdiction to enjoin the agency
from withholding agency records and to order the production of any
agency records improperly withheld from the complainant. In such a
case the court shall determine the matter de novo, and may examine
the contents of such agency records in camera to determine whether
such records or any part thereof shall be withheld under any of the
exemptions set forth in subsection (b) of this section, and the
burden is on the agency to sustain its action. In addition to any
other matters to which a court accords substantial weight, a court
shall accord substantial weight to an affidavit of an agency
concerning the agency's determination as to technical feasibility
under paragraph (2)(C) and subsection (b) and reproducibility under
paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made
under this subsection within thirty days after service upon the
defendant of the pleading in which such complaint is made, unless
the court otherwise directs for good cause shown.
((D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8,
1984, 98 Stat. 3357.)
(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any
case under this section in which the complainant has substantially
prevailed.
(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding raise
questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special Counsel
shall promptly initiate a proceeding to determine whether
disciplinary action is warranted against the officer or employee
who was primarily responsible for the withholding. The Special
Counsel, after investigation and consideration of the evidence
submitted, shall submit his findings and recommendations to the
administrative authority of the agency concerned and shall send
copies of the findings and recommendations to the officer or
employee or his representative. The administrative authority shall
take the corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of the court,
the district court may punish for contempt the responsible
employee, and in the case of a uniformed service, the responsible
member.
(5) Each agency having more than one member shall maintain and
make available for public inspection a record of the final votes of
each member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall -
(i) determine within 20 days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately notify
the person making such request of such determination and the
reasons therefor, and of the right of such person to appeal to
the head of the agency any adverse determination; and
(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal. If on appeal the
denial of the request for records is in whole or in part upheld,
the agency shall notify the person making such request of the
provisions for judicial review of that determination under
paragraph (4) of this subsection.
(B)(i) In unusual circumstances as specified in this
subparagraph, the time limits prescribed in either clause (i) or
clause (ii) of subparagraph (A) may be extended by written notice
to the person making such request setting forth the unusual
circumstances for such extension and the date on which a
determination is expected to be dispatched. No such notice shall
specify a date that would result in an extension for more than ten
working days, except as provided in clause (ii) of this
subparagraph.
(ii) With respect to a request for which a written notice under
clause (i) extends the time limits prescribed under clause (i) of
subparagraph (A), the agency shall notify the person making the
request if the request cannot be processed within the time limit
specified in that clause and shall provide the person an
opportunity to limit the scope of the request so that it may be
processed within that time limit or an opportunity to arrange with
the agency an alternative time frame for processing the request or
a modified request. Refusal by the person to reasonably modify the
request or arrange such an alternative time frame shall be
considered as a factor in determining whether exceptional
circumstances exist for purposes of subparagraph (C).
(iii) As used in this subparagraph, ''unusual circumstances''
means, but only to the extent reasonably necessary to the proper
processing of the particular requests -
(I) the need to search for and collect the requested records
from field facilities or other establishments that are separate
from the office processing the request;
(II) the need to search for, collect, and appropriately examine
a voluminous amount of separate and distinct records which are
demanded in a single request; or
(III) the need for consultation, which shall be conducted with
all practicable speed, with another agency having a substantial
interest in the determination of the request or among two or more
components of the agency having substantial subject-matter
interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for the aggregation of
certain requests by the same requestor, or by a group of requestors
acting in concert, if the agency reasonably believes that such
requests actually constitute a single request, which would
otherwise satisfy the unusual circumstances specified in this
subparagraph, and the requests involve clearly related matters.
Multiple requests involving unrelated matters shall not be
aggregated.
(C)(i) Any person making a request to any agency for records
under paragraph (1), (2), or (3) of this subsection shall be deemed
to have exhausted his administrative remedies with respect to such
request if the agency fails to comply with the applicable time
limit provisions of this paragraph. If the Government can show
exceptional circumstances exist and that the agency is exercising
due diligence in responding to the request, the court may retain
jurisdiction and allow the agency additional time to complete its
review of the records. Upon any determination by an agency to
comply with a request for records, the records shall be made
promptly available to such person making such request. Any
notification of denial of any request for records under this
subsection shall set forth the names and titles or positions of
each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the term ''exceptional
circumstances'' does not include a delay that results from a
predictable agency workload of requests under this section, unless
the agency demonstrates reasonable progress in reducing its backlog
of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a
request or arrange an alternative time frame for processing a
request (or a modified request) under clause (ii) after being given
an opportunity to do so by the agency to whom the person made the
request shall be considered as a factor in determining whether
exceptional circumstances exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for multitrack processing
of requests for records based on the amount of work or time (or
both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person
making a request that does not qualify for the fastest multitrack
processing an opportunity to limit the scope of the request in
order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, providing for expedited
processing of requests for records -
(I) in cases in which the person requesting the records
demonstrates a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this
subparagraph must ensure -
(I) that a determination of whether to provide expedited
processing shall be made, and notice of the determination shall
be provided to the person making the request, within 10 days
after the date of the request; and
(II) expeditious consideration of administrative appeals of
such determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request
for records to which the agency has granted expedited processing
under this subparagraph. Agency action to deny or affirm denial of
a request for expedited processing pursuant to this subparagraph,
and failure by an agency to respond in a timely manner to such a
request shall be subject to judicial review under paragraph (4),
except that the judicial review shall be based on the record before
the agency at the time of the determination.
(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing of
a request for records after the agency has provided a complete
response to the request.
(v) For purposes of this subparagraph, the term ''compelling
need'' means -
(I) that a failure to obtain requested records on an expedited
basis under this paragraph could reasonably be expected to pose
an imminent threat to the life or physical safety of an
individual; or
(II) with respect to a request made by a person primarily
engaged in disseminating information, urgency to inform the
public concerning actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a
request for expedited processing shall be made by a statement
certified by such person to be true and correct to the best of such
person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an
agency shall make a reasonable effort to estimate the volume of any
requested matter the provision of which is denied, and shall
provide any such estimate to the person making the request, unless
providing such estimate would harm an interest protected by the
exemption in subsection (b) pursuant to which the denial is made.
(b) This section does not apply to matters that are -
(1)(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) related solely to the internal personnel rules and
practices of an agency;
(3) specifically exempted from disclosure by statute (other
than section 552b of this title), provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types
of matters to be withheld;
(4) trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency;
(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be
expected to interfere with enforcement proceedings, (B) would
deprive a person of a right to a fair trial or an impartial
adjudication, (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy, (D) could reasonably be
expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by
criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source, (E) would disclose techniques and procedures
for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law, or (F) could reasonably be
expected to endanger the life or physical safety of any
individual;
(8) contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions; or
(9) geological and geophysical information and data, including
maps, concerning wells.
Any reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions
which are exempt under this subsection. The amount of information
deleted shall be indicated on the released portion of the record,
unless including that indication would harm an interest protected
by the exemption in this subsection under which the deletion is
made. If technically feasible, the amount of the information
deleted shall be indicated at the place in the record where such
deletion is made.
(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and -
(A) the investigation or proceeding involves a possible
violation of criminal law; and
(B) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and
(ii) disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements of
this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier
are requested by a third party according to the informant's name or
personal identifier, the agency may treat the records as not
subject to the requirements of this section unless the informant's
status as an informant has been officially confirmed.
(3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to
foreign intelligence or counterintelligence, or international
terrorism, and the existence of the records is classified
information as provided in subsection (b)(1), the Bureau may, as
long as the existence of the records remains classified
information, treat the records as not subject to the requirements
of this section.
(d) This section does not authorize withholding of information or
limit the availability of records to the public, except as
specifically stated in this section. This section is not authority
to withhold information from Congress.
(e)(1) On or before February 1 of each year, each agency shall
submit to the Attorney General of the United States a report which
shall cover the preceding fiscal year and which shall include -
(A) the number of determinations made by the agency not to
comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
(B)(i) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action
upon each appeal that results in a denial of information; and
(ii) a complete list of all statutes that the agency relies
upon to authorize the agency to withhold information under
subsection (b)(3), a description of whether a court has upheld
the decision of the agency to withhold information under each
such statute, and a concise description of the scope of any
information withheld;
(C) the number of requests for records pending before the
agency as of September 30 of the preceding year, and the median
number of days that such requests had been pending before the
agency as of that date;
(D) the number of requests for records received by the agency
and the number of requests which the agency processed;
(E) the median number of days taken by the agency to process
different types of requests;
(F) the total amount of fees collected by the agency for
processing requests; and
(G) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the total
amount expended by the agency for processing such requests.
(2) Each agency shall make each such report available to the
public including by computer telecommunications, or if computer
telecommunications means have not been established by the agency,
by other electronic means.
(3) The Attorney General of the United States shall make each
report which has been made available by electronic means available
at a single electronic access point. The Attorney General of the
United States shall notify the Chairman and ranking minority member
of the Committee on Government Reform and Oversight of the House of
Representatives and the Chairman and ranking minority member of the
Committees on Governmental Affairs and the Judiciary of the Senate,
no later than April 1 of the year in which each such report is
issued, that such reports are available by electronic means.
(4) The Attorney General of the United States, in consultation
with the Director of the Office of Management and Budget, shall
develop reporting and performance guidelines in connection with
reports required by this subsection by October 1, 1997, and may
establish additional requirements for such reports as the Attorney
General determines may be useful.
(5) The Attorney General of the United States shall submit an
annual report on or before April 1 of each calendar year which
shall include for the prior calendar year a listing of the number
of cases arising under this section, the exemption involved in each
case, the disposition of such case, and the cost, fees, and
penalties assessed under subparagraphs (E), (F), and (G) of
subsection (a)(4). Such report shall also include a description of
the efforts undertaken by the Department of Justice to encourage
agency compliance with this section.
(f) For purposes of this section, the term -
(1) ''agency'' as defined in section 551(1) of this title
includes any executive department, military department,
Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government
(including the Executive Office of the President), or any
independent regulatory agency; and
(2) ''record'' and any other term used in this section in
reference to information includes any information that would be
an agency record subject to the requirements of this section when
maintained by an agency in any format, including an electronic
format.
(g) The head of each agency shall prepare and make publicly
available upon request, reference material or a guide for
requesting records or information from the agency, subject to the
exemptions in subsection (b), including -
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator
systems maintained by the agency; and
(3) a handbook for obtaining various types and categories of
public information from the agency pursuant to chapter 35 of
title 44, and under this section.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90-23, Sec.
1, June 5, 1967, 81 Stat. 54; Pub. L. 93-502, Sec. 1-3, Nov. 21,
1974, 88 Stat. 1561-1564; Pub. L. 94-409, Sec. 5(b), Sept. 13,
1976, 90 Stat. 1247; Pub. L. 95-454, title IX, Sec. 906(a)(10),
Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98-620, title IV, Sec.
402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99-570, title I, Sec.
1802, 1803, Oct. 27, 1986, 100 Stat. 3207-48, 3207-49; Pub. L.
104-231, Sec. 3-11, Oct. 2, 1996, 110 Stat. 3049-3054; Pub. L.
107-306, title III, Sec. 312, Nov. 27, 2002, 116 Stat. 2390.)
-MISC1-
Historical and Revision Notes
1966 Act
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1002. June 11, 1946, ch.
324, Sec. 3, 60
Stat. 238.
-------------------------------
In subsection (b)(3), the words ''formulated and'' are omitted as
surplusage. In the last sentence of subsection (b), the words ''in
any manner'' are omitted as surplusage since the prohibition is all
inclusive.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
1967 ACT
Section 1 (of Pub. L. 90-23) amends section 552 of title 5,
United States Code, to reflect Public Law 89-487.
In subsection (a)(1)(A), the words ''employees (and in the case
of a uniformed service, the member)'' are substituted for
''officer'' to retain the coverage of Public Law 89-487 and to
conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.
In the last sentence of subsection (a)(2), the words ''A final
order * * * may be relied on * * * only if'' are substituted for
''No final order * * * may be relied upon * * * unless''; and the
words ''a party other than an agency'' and ''the party'' are
substituted for ''a private party'' and ''the private party'',
respectively, on authority of the definition of ''private party''
in 5 App. U.S.C. 1002(g).
In subsection (a)(3), the words ''the responsible employee, and
in the case of a uniformed service, the responsible member'' are
substituted for ''the responsible officers'' to retain the coverage
of Public Law 89-487 and to conform to the definitions in 5 U.S.C.
2101, 2104, and 2105.
In subsection (a)(4), the words ''shall maintain and make
available for public inspection a record'' are substituted for
''shall keep a record * * * and that record shall be available for
public inspection''.
In subsection (b)(5) and (7), the words ''a party other than an
agency'' are substituted for ''a private party'' on authority of
the definition of ''private party'' in 5 App. U.S.C. 1002(g).
In subsection (c), the words ''This section does not authorize''
and ''This section is not authority'' are substituted for ''Nothing
in this section authorizes'' and ''nor shall this section be
authority'', respectively.
5 App. U.S.C. 1002(g), defining ''private party'' to mean a party
other than an agency, is omitted since the words ''party other than
an agency'' are substituted for the words ''private party''
wherever they appear in revised 5 U.S.C. 552.
5 App. U.S.C. 1002(h), prescribing the effective date, is omitted
as unnecessary. That effective date is prescribed by section 4 of
this bill.
-COD-
CODIFICATION
Section 552 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2243
of Title 7, Agriculture.
-MISC3-
AMENDMENTS
2002 - Subsec. (a)(3)(A). Pub. L. 107-306, Sec. 312(1), inserted
''and except as provided in subparagraph (E),'' after ''of this
subsection,''.
Subsec. (a)(3)(E). Pub. L. 107-306, Sec. 312(2), added subpar.
(E).
1996 - Subsec. (a)(2). Pub. L. 104-231, Sec. 4(4), (5), in first
sentence struck out ''and'' at end of subpar. (B) and inserted
subpars. (D) and (E).
Pub. L. 104-231, Sec. 4(7), inserted after first sentence ''For
records created on or after November 1, 1996, within one year after
such date, each agency shall make such records available, including
by computer telecommunications or, if computer telecommunications
means have not been established by the agency, by other electronic
means.''
Pub. L. 104-231, Sec. 4(1), in second sentence substituted
''staff manual, instruction, or copies of records referred to in
subparagraph (D)'' for ''or staff manual or instruction''.
Pub. L. 104-231, Sec. 4(2), inserted before period at end of
third sentence '', and the extent of such deletion shall be
indicated on the portion of the record which is made available or
published, unless including that indication would harm an interest
protected by the exemption in subsection (b) under which the
deletion is made''.
Pub. L. 104-231, Sec. 4(3), inserted after third sentence ''If
technically feasible, the extent of the deletion shall be indicated
at the place in the record where the deletion was made.''
Pub. L. 104-231, Sec. 4(6), which directed the insertion of the
following new sentence after the fifth sentence ''Each agency shall
make the index referred to in subparagraph (E) available by
computer telecommunications by December 31, 1999.'', was executed
by making the insertion after the sixth sentence, to reflect the
probable intent of Congress and the addition of a new sentence by
section 4(3) of Pub. L. 104-231.
Subsec. (a)(3). Pub. L. 104-231, Sec. 5, inserted subpar. (A)
designation after ''(3)'', redesignated subpars. (A) and (B) as
cls. (i) and (ii), respectively, and added subpars. (B) to (D).
Subsec. (a)(4)(B). Pub. L. 104-231, Sec. 6, inserted at end ''In
addition to any other matters to which a court accords substantial
weight, a court shall accord substantial weight to an affidavit of
an agency concerning the agency's determination as to technical
feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).''
Subsec. (a)(6)(A)(i). Pub. L. 104-231, Sec. 8(b), substituted
''20 days'' for ''ten days''.
Subsec. (a)(6)(B). Pub. L. 104-231, Sec. 7(b), amended subpar.
(B) generally. Prior to amendment, subpar. (B) read as follows:
''In unusual circumstances as specified in this subparagraph, the
time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person
making such request setting forth the reasons for such extension
and the date on which a determination is expected to be
dispatched. No such notice shall specify a date that would result
in an extension for more than ten working days. As used in this
subparagraph, 'unusual circumstances' means, but only to the extent
reasonably necessary to the proper processing of the particular
request -
''(i) the need to search for and collect the requested records
from field facilities or other establishments that are separate
from the office processing the request;
''(ii) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct records
which are demanded in a single request; or
''(iii) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a
substantial interest in the determination of the request or among
two or more components of the agency having substantial
subject-matter interest therein.''
Subsec. (a)(6)(C). Pub. L. 104-231, Sec. 7(c), designated
existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(D). Pub. L. 104-231, Sec. 7(a), added subpar. (D).
Subsec. (a)(6)(E), (F). Pub. L. 104-231, Sec. 8(a), (c), added
subpars. (E) and (F).
Subsec. (b). Pub. L. 104-231, Sec. 9, inserted at end of closing
provisions ''The amount of information deleted shall be indicated
on the released portion of the record, unless including that
indication would harm an interest protected by the exemption in
this subsection under which the deletion is made. If technically
feasible, the amount of the information deleted shall be indicated
at the place in the record where such deletion is made.''
Subsec. (e). Pub. L. 104-231, Sec. 10, amended subsec. (e)
generally, revising and restating provisions relating to reports to
Congress.
Subsec. (f). Pub. L. 104-231, Sec. 3, amended subsec. (f)
generally. Prior to amendment, subsec. (f) read as follows: ''For
purposes of this section, the term 'agency' as defined in section
551(1) of this title includes any executive department, military
department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency.''
Subsec. (g). Pub. L. 104-231, Sec. 11, added subsec. (g).
1986 - Subsec. (a)(4)(A). Pub. L. 99-570, Sec. 1803, amended
subpar. (A) generally. Prior to amendment, subpar. (A) read as
follows: ''In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, specifying a uniform schedule of fees
applicable to all constituent units of such agency. Such fees
shall be limited to reasonable standard charges for document search
and duplication and provide for recovery of only the direct costs
of such search and duplication. Documents shall be furnished
without charge or at a reduced charge where the agency determines
that waiver or reduction of the fee is in the public interest
because furnishing the information can be considered as primarily
benefiting the general public.''
Subsec. (b)(7). Pub. L. 99-570, Sec. 1802(a), amended par. (7)
generally. Prior to amendment, par. (7) read as follows:
''investigatory records compiled for law enforcement purposes, but
only to the extent that the production of such records would (A)
interfere with enforcement proceedings, (B) deprive a person of a
right to a fair trial or an impartial adjudication, (C) constitute
an unwarranted invasion of personal privacy, (D) disclose the
identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential
information furnished only by the confidential source, (E) disclose
investigative techniques and procedures, or (F) endanger the life
or physical safety of law enforcement personnel;''.
Subsecs. (c) to (f). Pub. L. 99-570, Sec. 1802(b), added subsec.
(c) and redesignated former subsecs. (c) to (e) as (d) to (f),
respectively.
1984 - Subsec. (a)(4)(D). Pub. L. 98-620 repealed subpar. (D)
which provided for precedence on the docket and expeditious
disposition of district court proceedings authorized by subsec.
(a).
1978 - Subsec. (a)(4)(F). Pub. L. 95-454 substituted references
to the Special Counsel for references to the Civil Service
Commission wherever appearing and reference to his findings for
reference to its findings.
1976 - Subsec. (b)(3). Pub. L. 94-409 inserted provision
excluding section 552b of this title from applicability of
exemption from disclosure and provision setting forth conditions
for statute specifically exempting disclosure.
1974 - Subsec. (a)(2). Pub. L. 93-502, Sec. 1(a), substituted
provisions relating to maintenance and availability of current
indexes, for provisions relating to maintenance and availability of
a current index, and inserted provisions relating to publication
and distribution of copies of indexes or supplements thereto.
Subsec. (a)(3). Pub. L. 93-502, Sec. 1(b)(1), substituted
provisions requiring requests to reasonably describe records for
provisions requiring requests, for identifiable records, and struck
out provisions setting forth procedures to enjoin agencies from
withholding the requested records and ordering their production.
Subsec. (a)(4), (5). Pub. L. 93-502, Sec. 1(b)(2), added par. (4)
and redesignated former par. (4) as (5).
Subsec. (a)(6). Pub. L. 93-502, Sec. 1(c), added par. (6).
Subsec. (b)(1). Pub. L. 93-502, Sec. 2(a), designated existing
provisions as cl. (A), substituted ''authorized under criteria
established by an'' for ''required by'', and added cl. (B).
Subsec. (b)(7). Pub. L. 93-502, Sec. 2(b), substituted provisions
relating to exemption for investigatory records compiled for law
enforcement purposes, for provisions relating to exemption for
investigatory files compiled for law enforcement purposes.
Subsec. (b), foll. par. (9). Pub. L. 93-502, Sec. 2(c), inserted
provision relating to availability of segregable portion of
records.
Subsecs. (d), (e). Pub. L. 93-502, Sec. 3, added subsecs. (d) and
(e).
1967 - Subsec. (a). Pub. L. 90-23 substituted introductory
statement requiring every agency to make available to the public
certain information for former introductory provision excepting
from disclosure (1) any function of the United States requiring
secrecy in the public interest or (2) any matter relating to
internal management of an agency, covered in subsec. (b)(1) and (2)
of this section.
Subsec. (a)(1). Pub. L. 90-23 incorporated provisions of: former
subsec. (b)(1) in (A), inserting requirement of publication of
names of officers as sources of information and provision for
public to obtain decisions, and striking out publication
requirement for delegations by the agency of final authority;
former subsec. (b)(2), introductory part, in (B); former subsec.
(b)(2), concluding part, in (C), inserting publication requirement
for rules of procedure and descriptions of forms available or the
places at which forms may be obtained; former subsec. (b)(3),
introductory part, in (D), inserting requirement of general
applicability of substantive rules and interpretations, added
clause (E), substituted exemption of any person from failure to
resort to any matter or from being adversely affected by any matter
required to be published in the Federal Register but not so
published for former subsec. (b)(3), concluding part, excepting
from publication rules addressed to and served upon named persons
in accordance with laws and final sentence reading ''A person may
not be required to resort to organization or procedure not so
published'' and inserted provision deeming matter, which is
reasonably available, as published in the Federal Register when
such matter is incorporated by reference in the Federal Register
with the approval of its Director.
Subsec. (a)(2). Pub. L. 90-23 incorporated provisions of former
subsec. (c), provided for public copying of records, struck out
requirement of agency publication of final opinions or orders and
authority for secrecy and withholding of opinions and orders
required for good cause to be held confidential and not cited as
precedents, latter provision now superseded by subsec. (b) of this
section, designated existing subsec. (c) as clause (A), including
provision for availability of concurring and dissenting opinions,
inserted provisions for availability of policy statements and
interpretations in clause (B) and staff manuals and instructions in
clause (C), deletion of personal identifications from records to
protect personal privacy with written justification therefor, and
provision for indexing and prohibition of use of records not
indexed against any private party without actual and timely notice
of the terms thereof.
Subsec. (a)(3). Pub. L. 90-23 incorporated provisions of former
subsec. (d) and substituted provisions requiring identifiable
agency records to be made available to any person upon request and
compliance with rules as to time, place, and procedure for
inspection, and payment of fees and provisions for Federal district
court proceedings de novo for enforcement by contempt of
noncompliance with court's orders with the burden on the agency and
docket precedence for such proceedings for former provisions
requiring matters of official record to be made available to
persons properly and directly concerned except information held
confidential for good cause shown, the latter provision superseded
by subsec. (b) of this section.
Subsec. (a)(4). Pub. L. 90-23 added par. (4).
Subsec. (b). Pub. L. 90-23 added subsec. (b) which superseded
provisions excepting from disclosure any function of the United
States requiring secrecy in the public interest or any matter
relating to internal management of an agency, formerly contained in
former subsec. (a), final opinions or orders required for good
cause to be held confidential and not cited as precedents, formerly
contained in subsec. (c), and information held confidential for
good cause found, contained in former subsec. (d) of this section.
Subsec. (c). Pub. L. 90-23 added subsec. (c).
-CHANGE-
CHANGE OF NAME
Committee on Government Reform and Oversight of House of
Representatives changed to Committee on Government Reform of House
of Representatives by House Resolution No. 5, One Hundred Sixth
Congress, Jan. 6, 1999.
-MISC4-
EFFECTIVE DATE OF 1996 AMENDMENT
Section 12 of Pub. L. 104-231 provided that:
''(a) In General. - Except as provided in subsection (b), this
Act (amending this section and enacting provisions set out as notes
below) shall take effect 180 days after the date of the enactment
of this Act (Oct. 2, 1996).
''(b) Provisions Effective on Enactment (sic). - Sections 7 and 8
(amending this section) shall take effect one year after the date
of the enactment of this Act (Oct. 2, 1996).''
EFFECTIVE DATE OF 1986 AMENDMENT
Section 1804 of Pub. L. 99-570 provided that:
''(a) The amendments made by section 1802 (amending this section)
shall be effective on the date of enactment of this Act (Oct. 27,
1986), and shall apply with respect to any requests for records,
whether or not the request was made prior to such date, and shall
apply to any civil action pending on such date.
''(b)(1) The amendments made by section 1803 (amending this
section) shall be effective 180 days after the date of enactment of
this Act (Oct. 27, 1986), except that regulations to implement such
amendments shall be promulgated by such 180th day.
''(2) The amendments made by section 1803 (amending this section)
shall apply with respect to any requests for records, whether or
not the request was made prior to such date, and shall apply to any
civil action pending on such date, except that review charges
applicable to records requested for commercial use shall not be
applied by an agency to requests made before the effective date
specified in paragraph (1) of this subsection or before the agency
has finally issued its regulations.''
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-620 not applicable to cases pending on
Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an
Effective Date note under section 1657 of Title 28, Judiciary and
Judicial Procedure.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95-454 effective 90 days after Oct. 13,
1978, see section 907 of Pub. L. 95-454, set out as a note under
section 1101 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-409 effective 180 days after Sept. 13,
1976, see section 6 of Pub. L. 94-409, set out as an Effective Date
note under section 552b of this title.
EFFECTIVE DATE OF 1974 AMENDMENT
Section 4 of Pub. L. 93-502 provided that: ''The amendments made
by this Act (amending this section) shall take effect on the
ninetieth day beginning after the date of enactment of this Act
(Nov. 21, 1974).''
EFFECTIVE DATE OF 1967 AMENDMENT
Section 4 of Pub. L. 90-23 provided that: ''This Act (amending
this section) shall be effective July 4, 1967, or on the date of
enactment (June 5, 1967), whichever is later.''
SHORT TITLE OF 1996 AMENDMENT
Section 1 of Pub. L. 104-231 provided that: ''This Act (amending
this section and enacting provisions set out as notes under this
section) may be cited as the 'Electronic Freedom of Information Act
Amendments of 1996'.''
SHORT TITLE OF 1986 AMENDMENT
Section 1801 of Pub. L. 99-570 provided that: ''This subtitle
(subtitle N (Sec. 1801-1804) of title I of Pub. L. 99-570, amending
this section and enacting provisions set out as a note under this
section) may be cited as the 'Freedom of Information Reform Act of
1986'.''
SHORT TITLE
This section is popularly known as the ''Freedom of Information
Act''.
DISCLOSURE OF INFORMATION ON JAPANESE IMPERIAL GOVERNMENT
Pub. L. 106-567, title VIII, Dec. 27, 2000, 114 Stat. 2864,
provided that:
''SEC. 801. SHORT TITLE.
''This title may be cited as the 'Japanese Imperial Government
Disclosure Act of 2000'.
''SEC. 802. DESIGNATION.
''(a) Definitions. - In this section:
''(1) Agency. - The term 'agency' has the meaning given such
term under section 551 of title 5, United States Code.
''(2) Interagency group. - The term 'Interagency Group' means
the Nazi War Crimes and Japanese Imperial Government Records
Interagency Working Group established under subsection (b).
''(3) Japanese imperial government records. - The term
'Japanese Imperial Government records' means classified records
or portions of records that pertain to any person with respect to
whom the United States Government, in its sole discretion, has
grounds to believe ordered, incited, assisted, or otherwise
participated in the experimentation on, and persecution of, any
person because of race, religion, national origin, or political
opinion, during the period beginning September 18, 1931, and
ending on December 31, 1948, under the direction of, or in
association with -
''(A) the Japanese Imperial Government;
''(B) any government in any area occupied by the military
forces of the Japanese Imperial Government;
''(C) any government established with the assistance or
cooperation of the Japanese Imperial Government; or
''(D) any government which was an ally of the Japanese
Imperial Government.
''(4) Record. - The term 'record' means a Japanese Imperial
Government record.
''(b) Establishment of Interagency Group. -
''(1) In general. - Not later than 60 days after the date of
the enactment of this Act (Dec. 27, 2000), the President shall
designate the Working Group established under the Nazi War Crimes
Disclosure Act (Public Law 105-246; 5 U.S.C. 552 note) to also
carry out the purposes of this title with respect to Japanese
Imperial Government records, and that Working Group shall remain
in existence for 3 years after the date on which this title takes
effect. Such Working Group is redesignated as the 'Nazi War
Crimes and Japanese Imperial Government Records Interagency
Working Group'.
''(2) Membership. - (Amended Pub. L. 105-246, set out as a note
below.)
''(c) Functions. - Not later than 1 year after the date of the
enactment of this Act (Dec. 27, 2000), the Interagency Group shall,
to the greatest extent possible consistent with section 803 -
''(1) locate, identify, inventory, recommend for
declassification, and make available to the public at the
National Archives and Records Administration, all classified
Japanese Imperial Government records of the United States;
''(2) coordinate with agencies and take such actions as
necessary to expedite the release of such records to the public;
and
''(3) submit a report to Congress, including the Committee on
Government Reform and the Permanent Select Committee on
Intelligence of the House of Representatives, and the Committee
on the Judiciary and the Select Committee on Intelligence of the
Senate, describing all such records, the disposition of such
records, and the activities of the Interagency Group and agencies
under this section.
''(d) Funding. - There is authorized to be appropriated such sums
as may be necessary to carry out the provisions of this title.
''SEC. 803. REQUIREMENT OF DISCLOSURE OF RECORDS.
''(a) Release of Records. - Subject to subsections (b), (c), and
(d), the Japanese Imperial Government Records Interagency Working
Group shall release in their entirety Japanese Imperial Government
records.
''(b) Exemptions. - An agency head may exempt from release under
subsection (a) specific information, that would -
''(1) constitute an unwarranted invasion of personal privacy;
''(2) reveal the identity of a confidential human source, or
reveal information about an intelligence source or method when
the unauthorized disclosure of that source or method would damage
the national security interests of the United States;
''(3) reveal information that would assist in the development
or use of weapons of mass destruction;
''(4) reveal information that would impair United States
cryptologic systems or activities;
''(5) reveal information that would impair the application of
state-of-the-art technology within a United States weapon system;
''(6) reveal United States military war plans that remain in
effect;
''(7) reveal information that would impair relations between
the United States and a foreign government, or undermine ongoing
diplomatic activities of the United States;
''(8) reveal information that would impair the current ability
of United States Government officials to protect the President,
Vice President, and other officials for whom protection services
are authorized in the interest of national security;
''(9) reveal information that would impair current national
security emergency preparedness plans; or
''(10) violate a treaty or other international agreement.
''(c) Applications of Exemptions. -
''(1) In general. - In applying the exemptions provided in
paragraphs (2) through (10) of subsection (b), there shall be a
presumption that the public interest will be served by disclosure
and release of the records of the Japanese Imperial Government.
The exemption may be asserted only when the head of the agency
that maintains the records determines that disclosure and release
would be harmful to a specific interest identified in the
exemption. An agency head who makes such a determination shall
promptly report it to the committees of Congress with appropriate
jurisdiction, including the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate and the Committee
on Government Reform and the Permanent Select Committee on
Intelligence of the House of Representatives.
''(2) Application of title 5. - A determination by an agency
head to apply an exemption provided in paragraphs (2) through (9)
of subsection (b) shall be subject to the same standard of review
that applies in the case of records withheld under section
552(b)(1) of title 5, United States Code.
''(d) Records Related to Investigations or Prosecutions. - This
section shall not apply to records -
''(1) related to or supporting any active or inactive
investigation, inquiry, or prosecution by the Office of Special
Investigations of the Department of Justice; or
''(2) solely in the possession, custody, or control of the
Office of Special Investigations.
''SEC. 804. EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL
GOVERNMENT RECORDS.
''For purposes of expedited processing under section 552(a)(6)(E)
of title 5, United States Code, any person who was persecuted in
the manner described in section 802(a)(3) and who requests a
Japanese Imperial Government record shall be deemed to have a
compelling need for such record.
''SEC. 805. EFFECTIVE DATE.
''The provisions of this title shall take effect on the date that
is 90 days after the date of the enactment of this Act (Dec. 27,
2000).''
NAZI WAR CRIMES DISCLOSURE
Pub. L. 105-246, Oct. 8, 1998, 112 Stat. 1859, as amended by Pub.
L. 106-567, Sec. 802(b)(2), Dec. 27, 2000, 114 Stat. 2865, provided
that:
''SECTION 1. SHORT TITLE.
''This Act may be cited as the 'Nazi War Crimes Disclosure Act'.
''SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY
WORKING GROUP.
''(a) Definitions. - In this section the term -
''(1) 'agency' has the meaning given such term under section
551 of title 5, United States Code;
''(2) 'Interagency Group' means the Nazi War Criminal Records
Interagency Working Group (redesignated Nazi War Crimes and
Japanese Imperial Government Records Interagency Working Group,
see section 802(b)(1) of Pub. L. 106-567, set out above)
established under subsection (b);
''(3) 'Nazi war criminal records' has the meaning given such
term under section 3 of this Act; and
''(4) 'record' means a Nazi war criminal record.
''(b) Establishment of Interagency Group. -
''(1) In general. - Not later than 60 days after the date of
enactment of this Act (Oct. 8, 1998), the President shall
establish the Nazi War Criminal Records Interagency Working
Group, which shall remain in existence for 3 years after the date
the Interagency Group is established.
''(2) Membership. - The President shall appoint to the
Interagency Group individuals whom the President determines will
most completely and effectively carry out the functions of the
Interagency Group within the time limitations provided in this
section, including the Director of the Holocaust Museum, the
Historian of the Department of State, the Archivist of the United
States, the head of any other agency the President considers
appropriate, and no more than 4 other persons who shall be
members of the public, of whom 3 shall be persons appointed under
the provisions of this Act in effect on October 8, 1998..(sic)
The head of an agency appointed by the President may designate an
appropriate officer to serve on the Interagency Group in lieu of
the head of such agency.
''(3) Initial meeting. - Not later than 90 days after the date
of enactment of this Act, the Interagency Group shall hold an
initial meeting and begin the functions required under this
section.
''(c) Functions. - Not later than 1 year after the date of
enactment of this Act (Oct. 8, 1998), the Interagency Group shall,
to the greatest extent possible consistent with section 3 of this
Act -
''(1) locate, identify, inventory, recommend for
declassification, and make available to the public at the
National Archives and Records Administration, all classified Nazi
war criminal records of the United States;
''(2) coordinate with agencies and take such actions as
necessary to expedite the release of such records to the public;
and
''(3) submit a report to Congress, including the Committee on
the Judiciary of the Senate and the Committee on Government
Reform and Oversight (now Committee on Government Reform) of the
House of Representatives, describing all such records, the
disposition of such records, and the activities of the
Interagency Group and agencies under this section.
''(d) Funding. - There are authorized to be appropriated such
sums as may be necessary to carry out the provisions of this Act.
''SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS
WHO COMMITTED NAZI WAR CRIMES.
''(a) Nazi War Criminal Records. - For purposes of this Act, the
term 'Nazi war criminal records' means classified records or
portions of records that -
''(1) pertain to any person with respect to whom the United
States Government, in its sole discretion, has grounds to believe
ordered, incited, assisted, or otherwise participated in the
persecution of any person because of race, religion, national
origin, or political opinion, during the period beginning on
March 23, 1933, and ending on May 8, 1945, under the direction
of, or in association with -
''(A) the Nazi government of Germany;
''(B) any government in any area occupied by the military
forces of the Nazi government of Germany;
''(C) any government established with the assistance or
cooperation of the Nazi government of Germany; or
''(D) any government which was an ally of the Nazi government
of Germany; or
''(2) pertain to any transaction as to which the United States
Government, in its sole discretion, has grounds to believe -
''(A) involved assets taken from persecuted persons during
the period beginning on March 23, 1933, and ending on May 8,
1945, by, under the direction of, on behalf of, or under
authority granted by the Nazi government of Germany or any
nation then allied with that government; and
''(B) such transaction was completed without the assent of
the owners of those assets or their heirs or assigns or other
legitimate representatives.
''(b) Release of Records. -
''(1) In general. - Subject to paragraphs (2), (3), and (4),
the Nazi War Criminal Records Interagency Working Group shall
release in their entirety Nazi war criminal records that are
described in subsection (a).
''(2) Exception for privacy, etc. - An agency head may exempt
from release under paragraph (1) specific information, that would
-
''(A) constitute a clearly unwarranted invasion of personal
privacy;
''(B) reveal the identity of a confidential human source, or
reveal information about the application of an intelligence
source or method, or reveal the identity of a human
intelligence source when the unauthorized disclosure of that
source would clearly and demonstrably damage the national
security interests of the United States;
''(C) reveal information that would assist in the development
or use of weapons of mass destruction;
''(D) reveal information that would impair United States
cryptologic systems or activities;
''(E) reveal information that would impair the application of
state-of-the-art technology within a United States weapon
system;
''(F) reveal actual United States military war plans that
remain in effect;
''(G) reveal information that would seriously and
demonstrably impair relations between the United States and a
foreign government, or seriously and demonstrably undermine
ongoing diplomatic activities of the United States;
''(H) reveal information that would clearly and demonstrably
impair the current ability of United States Government
officials to protect the President, Vice President, and other
officials for whom protection services, in the interest of
national security, are authorized;
''(I) reveal information that would seriously and
demonstrably impair current national security emergency
preparedness plans; or
''(J) violate a treaty or international agreement.
''(3) Application of exemptions. -
''(A) In general. - In applying the exemptions listed in
subparagraphs (B) through (J) of paragraph (2), there shall be
a presumption that the public interest in the release of Nazi
war criminal records will be served by disclosure and release
of the records. Assertion of such exemption may only be made
when the agency head determines that disclosure and release
would be harmful to a specific interest identified in the
exemption. An agency head who makes such a determination shall
promptly report it to the committees of Congress with
appropriate jurisdiction, including the Committee on the
Judiciary of the Senate and the Committee on Government Reform
and Oversight (now Committee on Government Reform) of the House
of Representatives. The exemptions set forth in paragraph (2)
shall constitute the only authority pursuant to which an agency
head may exempt records otherwise subject to release under
paragraph (1).
''(B) Application of title 5. - A determination by an agency
head to apply an exemption listed in subparagraphs (B) through
(I) of paragraph (2) shall be subject to the same standard of
review that applies in the case of records withheld under
section 552(b)(1) of title 5, United States Code.
''(4) Limitation on application. - This subsection shall not
apply to records -
''(A) related to or supporting any active or inactive
investigation, inquiry, or prosecution by the Office of Special
Investigations of the Department of Justice; or
''(B) solely in the possession, custody, or control of that
office.
''(c) Inapplicability of National Security Act of 1947 Exemption.
- Section 701(a) of the National Security Act of 1947 (50 U.S.C.
431((a))) shall not apply to any operational file, or any portion
of any operational file, that constitutes a Nazi war criminal
record under section 3 of this Act.
''SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR
CRIMINAL RECORDS.
''(a) Expedited Processing. - For purposes of expedited
processing under section 552(a)(6)(E) of title 5, United States
Code, any requester of a Nazi war criminal record shall be deemed
to have a compelling need for such record.
''(b) Requester. - For purposes of this section, the term
'requester' means any person who was persecuted in the manner
described under section 3(a)(1) of this Act who requests a Nazi war
criminal record.
''SEC. 5. EFFECTIVE DATE.
''This Act and the amendments made by this Act shall take effect
on the date that is 90 days after the date of enactment of this Act
(Oct. 8, 1998).''
CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE; PUBLIC ACCESS TO
INFORMATION IN ELECTRONIC FORMAT
Section 2 of Pub. L. 104-231 provided that:
''(a) Findings. - The Congress finds that -
''(1) the purpose of section 552 of title 5, United States
Code, popularly known as the Freedom of Information Act, is to
require agencies of the Federal Government to make certain agency
information available for public inspection and copying and to
establish and enable enforcement of the right of any person to
obtain access to the records of such agencies, subject to
statutory exemptions, for any public or private purpose;
''(2) since the enactment of the Freedom of Information Act in
1966, and the amendments enacted in 1974 and 1986, the Freedom of
Information Act has been a valuable means through which any
person can learn how the Federal Government operates;
''(3) the Freedom of Information Act has led to the disclosure
of waste, fraud, abuse, and wrongdoing in the Federal Government;
''(4) the Freedom of Information Act has led to the
identification of unsafe consumer products, harmful drugs, and
serious health hazards;
''(5) Government agencies increasingly use computers to conduct
agency business and to store publicly valuable agency records and
information; and
''(6) Government agencies should use new technology to enhance
public access to agency records and information.
''(b) Purposes. - The purposes of this Act (see Short Title of
1996 Amendment note above) are to -
''(1) foster democracy by ensuring public access to agency
records and information;
''(2) improve public access to agency records and information;
''(3) ensure agency compliance with statutory time limits; and
''(4) maximize the usefulness of agency records and information
collected, maintained, used, retained, and disseminated by the
Federal Government.''
FREEDOM OF INFORMATION ACT EXEMPTION FOR CERTAIN OPEN SKIES TREATY
DATA
Pub. L. 103-236, title V, Sec. 533, Apr. 30, 1994, 108 Stat. 480,
provided that:
''(a) In General. - Data with respect to a foreign country
collected by sensors during observation flights conducted in
connection with the Treaty on Open Skies, including flights
conducted prior to entry into force of the treaty, shall be exempt
from disclosure under the Freedom of Information Act -
''(1) if the country has not disclosed the data to the public;
and
''(2) if the country has not, acting through the Open Skies
Consultative Commission or any other diplomatic channel,
authorized the United States to disclose the data to the public.
''(b) Statutory Construction. - This section constitutes a
specific exemption within the meaning of section 552(b)(3) of title
5, United States Code.
''(c) Definitions. - For the purposes of this section -
''(1) the term 'Freedom of Information Act' means the
provisions of section 552 of title 5, United States Code;
''(2) the term 'Open Skies Consultative Commission' means the
commission established pursuant to Article X of the Treaty on
Open Skies; and
''(3) the term 'Treaty on Open Skies' means the Treaty on Open
Skies, signed at Helsinki on March 24, 1992.''
-EXEC-
CLASSIFIED NATIONAL SECURITY INFORMATION
For provisions relating to a response to a request for
information under this section when the fact of its existence or
nonexistence is itself classified or when it was originally
classified by another agency, see Ex. Ord. No. 12958, Sec. 3.7,
Apr. 17, 1995, 60 F.R. 19835, set out as a note under section 435
of Title 50, War and National Defense.
EXECUTIVE ORDER NO. 12174
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which related
to minimizing Federal paperwork, was revoked by Ex. Ord. No. 12291,
Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under
section 601 of this title.
EX. ORD. NO. 12600. PREDISCLOSURE NOTIFICATION PROCEDURES FOR
CONFIDENTIAL COMMERCIAL INFORMATION
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:
By the authority vested in me as President by the Constitution
and statutes of the United States of America, and in order to
provide predisclosure notification procedures under the Freedom of
Information Act (5 U.S.C. 552) concerning confidential commercial
information, and to make existing agency notification provisions
more uniform, it is hereby ordered as follows:
Section 1. The head of each Executive department and agency
subject to the Freedom of Information Act (5 U.S.C. 552) shall, to
the extent permitted by law, establish procedures to notify
submitters of records containing confidential commercial
information as described in section 3 of this Order, when those
records are requested under the Freedom of Information Act (FOIA),
5 U.S.C. 552, as amended, if after reviewing the request, the
responsive records, and any appeal by the requester, the department
or agency determines that it may be required to disclose the
records. Such notice requires that an agency use good-faith
efforts to advise submitters of confidential commercial information
of the procedures established under this Order. Further, where
notification of a voluminous number of submitters is required, such
notification may be accomplished by posting or publishing the
notice in a place reasonably calculated to accomplish notification.
Sec. 2. For purposes of this Order, the following definitions
apply:
(a) ''Confidential commercial information'' means records
provided to the government by a submitter that arguably contain
material exempt from release under Exemption 4 of the Freedom of
Information Act, 5 U.S.C. 552(b)(4), because disclosure could
reasonably be expected to cause substantial competitive harm.
(b) ''Submitter'' means any person or entity who provides
confidential commercial information to the government. The term
''submitter'' includes, but is not limited to, corporations, state
governments, and foreign governments.
Sec. 3. (a) For confidential commercial information submitted
prior to January 1, 1988, the head of each Executive department or
agency shall, to the extent permitted by law, provide a submitter
with notice pursuant to section 1 whenever:
(i) the records are less than 10 years old and the information
has been designated by the submitter as confidential commercial
information; or
(ii) the department or agency has reason to believe that
disclosure of the information could reasonably be expected to cause
substantial competitive harm.
(b) For confidential commercial information submitted on or after
January 1, 1988, the head of each Executive department or agency
shall, to the extent permitted by law, establish procedures to
permit submitters of confidential commercial information to
designate, at the time the information is submitted to the Federal
government or a reasonable time thereafter, any information the
disclosure of which the submitter claims could reasonably be
expected to cause substantial competitive harm. Such agency
procedures may provide for the expiration, after a specified period
of time or changes in circumstances, of designations of competitive
harm made by submitters. Additionally, such procedures may permit
the agency to designate specific classes of information that will
be treated by the agency as if the information had been so
designated by the submitter. The head of each Executive department
or agency shall, to the extent permitted by law, provide the
submitter notice in accordance with section 1 of this Order
whenever the department or agency determines that it may be
required to disclose records:
(i) designated pursuant to this subsection; or
(ii) the disclosure of which the department or agency has reason
to believe could reasonably be expected to cause substantial
competitive harm.
Sec. 4. When notification is made pursuant to section 1, each
agency's procedures shall, to the extent permitted by law, afford
the submitter a reasonable period of time in which the submitter or
its designee may object to the disclosure of any specified portion
of the information and to state all grounds upon which disclosure
is opposed.
Sec. 5. Each agency shall give careful consideration to all such
specified grounds for nondisclosure prior to making an
administrative determination of the issue. In all instances when
the agency determines to disclose the requested records, its
procedures shall provide that the agency give the submitter a
written statement briefly explaining why the submitter's objections
are not sustained. Such statement shall, to the extent permitted
by law, be provided a reasonable number of days prior to a
specified disclosure date.
Sec. 6. Whenever a FOIA requester brings suit seeking to compel
disclosure of confidential commercial information, each agency's
procedures shall require that the submitter be promptly notified.
Sec. 7. The designation and notification procedures required by
this Order shall be established by regulations, after notice and
public comment. If similar procedures or regulations already
exist, they should be reviewed for conformity and revised where
necessary. Existing procedures or regulations need not be modified
if they are in compliance with this Order.
Sec. 8. The notice requirements of this Order need not be
followed if:
(a) The agency determines that the information should not be
disclosed;
(b) The information has been published or has been officially
made available to the public;
(c) Disclosure of the information is required by law (other than
5 U.S.C. 552);
(d) The disclosure is required by an agency rule that (1) was
adopted pursuant to notice and public comment, (2) specifies narrow
classes of records submitted to the agency that are to be released
under the Freedom of Information Act (5 U.S.C. 552), and (3)
provides in exceptional circumstances for notice when the submitter
provides written justification, at the time the information is
submitted or a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm;
(e) The information requested is not designated by the submitter
as exempt from disclosure in accordance with agency regulations
promulgated pursuant to section 7, when the submitter had an
opportunity to do so at the time of submission of the information
or a reasonable time thereafter, unless the agency has substantial
reason to believe that disclosure of the information would result
in competitive harm; or
(f) The designation made by the submitter in accordance with
agency regulations promulgated pursuant to section 7 appears
obviously frivolous; except that, in such case, the agency must
provide the submitter with written notice of any final
administrative disclosure determination within a reasonable number
of days prior to the specified disclosure date.
Sec. 9. Whenever an agency notifies a submitter that it may be
required to disclose information pursuant to section 1 of this
Order, the agency shall also notify the requester that notice and
an opportunity to comment are being provided the submitter.
Whenever an agency notifies a submitter of a final decision
pursuant to section 5 of this Order, the agency shall also notify
the requester.
Sec. 10. This Order is intended only to improve the internal
management of the Federal government, and is not intended to create
any right or benefit, substantive or procedural, enforceable at law
by a party against the United States, its agencies, its officers,
or any person. Ronald Reagan.
EX. ORD. NO. 13110. NAZI WAR CRIMES AND JAPANESE IMPERIAL
GOVERNMENT RECORDS INTERAGENCY WORKING GROUP
Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided:
By the authority vested in me as President by the Constitution
and the laws of the United States of America, including the Nazi
War Crimes Disclosure Act (Public Law 105-246) (the ''Act'') (5
U.S.C. 552 note), it is hereby ordered as follows:
Section 1. Establishment of Working Group. There is hereby
established the Nazi War Criminal Records Interagency Working Group
(now Nazi War Crimes and Japanese Imperial Government Records
Interagency Working Group) (Working Group). The function of the
Group shall be to locate, inventory, recommend for
declassification, and make available to the public at the National
Archives and Records Administration all classified Nazi war
criminal records of the United States, subject to certain
designated exceptions as provided in the Act. The Working Group
shall coordinate with agencies and take such actions as necessary
to expedite the release of such records to the public.
Sec. 2. Schedule. The Working Group should complete its work to
the greatest extent possible and report to the Congress within 1
year.
Sec. 3. Membership. (a) The Working Group shall be composed of
the following members:
(1) Archivist of the United States (who shall serve as Chair of
the Working Group);
(2) Secretary of Defense;
(3) Attorney General;
(4) Director of Central Intelligence;
(5) Director of the Federal Bureau of Investigation;
(6) Director of the United States Holocaust Memorial Museum;
(7) Historian of the Department of State; and
(8) Three other persons appointed by the President.
(b) The Senior Director for Records and Access Management of the
National Security Council will serve as the liaison to and attend
the meetings of the Working Group. Members of the Working Group who
are full-time Federal officials may serve on the Working Group
through designees.
Sec. 4. Administration. (a) To the extent permitted by law and
subject to the availability of appropriations, the National
Archives and Records Administration shall provide the Working Group
with funding, administrative services, facilities, staff, and other
support services necessary for the performance of the functions of
the Working Group.
(b) The Working Group shall terminate 3 years from the date of
this Executive order. William J. Clinton.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 551, 552a, 552b, 566,
574, 1216, 7133 of this title; title 2 sections 472, 501, 502;
title 6 section 133; title 7 sections 12, 450i, 499f, 608d, 948,
1314g, 1314i, 1508, 1636, 1637b, 1642, 2279b, 5651, 5662, 7035,
8401; title 8 section 1182; title 10 sections 128, 130b, 130c,
1034, 1102, 1506, 2304, 2305, 2306a, 2328, 2371, 4595, 7582, 9594;
title 12 sections 1786, 1818, 1828, 1831o, 4611; title 14 section
645; title 15 sections 18a, 57b-2, 78m, 78o-5, 78q, 78w, 78x,
78dd-1, 78dd-2, 79z-5c, 80a-30, 80b-10a, 278n, 638, 719d, 773, 796,
1314, 1335a, 2055, 2217, 2613, 3364, 3710a, 4019, 4104, 4107, 4305,
4403, 4606, 4912, 5104, 5308, 7006, 7215, 7306; title 16 sections
973j, 1402, 3844, 4304, 5937; title 18 sections 207, 208, 1838;
title 19 sections 1333, 1431, 1509, 1625, 1677f, 2418, 3315; title
20 sections 1078, 1087-2, 9576, 9622; title 21 sections 350c, 350d,
355a, 360c, 360j, 379, 379f, 830, 1904, 1908; title 22 sections
2200a, 3902, 4355, 4415, 4604, 4607, 4833, 5841, 6713, 6744; title
25 sections 450c, 450k, 1951, 2716; title 26 sections 6103, 6110,
7611, 7803; title 28 sections 594, 1657; title 29 sections 1310,
1343, 2635; title 30 section 1604; title 31 sections 716, 1352,
3729, 3733, 5319; title 33 sections 524, 941, 1513; title 35
sections 202, 209; title 38 sections 501, 502, 7451; title 39
sections 410, 3016; title 41 sections 253, 253b, 254b, 423, 706;
title 42 sections 262a, 263b, 300i-2, 300v-2, 300aa-25, 300hh-12,
405, 1306, 1314, 1320c-9, 2167, 2168, 2454, 2996d, 4332, 5916,
5919, 6272-6274, 7135, 7412, 8103, 9122, 9208, 9660, 10704, 13385;
title 44 sections 2201, 2204, 2206, 3501, 3504, 3505, 3506, 3538,
3549; title 46 sections 4309, 6305, 7702, 9303; title 46 App.
section 1705; title 49 sections 106, 114, 706, 10706, 10709, 11162,
14123, 40110, 44921; title 50 sections 403-5c, 403-5e, 431; title
50 App. sections 463, 2158, 2159, 2170, 2406, 2411.
-CITE-
5 USC Sec. 552a 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 552a. Records maintained on individuals
-STATUTE-
(a) Definitions. - For purposes of this section -
(1) the term ''agency'' means agency as defined in section
552(e) (FOOTNOTE 1) of this title;
(FOOTNOTE 1) See References in Text note below.
(2) the term ''individual'' means a citizen of the United
States or an alien lawfully admitted for permanent residence;
(3) the term ''maintain'' includes maintain, collect, use, or
disseminate;
(4) the term ''record'' means any item, collection, or grouping
of information about an individual that is maintained by an
agency, including, but not limited to, his education, financial
transactions, medical history, and criminal or employment history
and that contains his name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as
a finger or voice print or a photograph;
(5) the term ''system of records'' means a group of any records
under the control of any agency from which information is
retrieved by the name of the individual or by some identifying
number, symbol, or other identifying particular assigned to the
individual;
(6) the term ''statistical record'' means a record in a system
of records maintained for statistical research or reporting
purposes only and not used in whole or in part in making any
determination about an identifiable individual, except as
provided by section 8 of title 13;
(7) the term ''routine use'' means, with respect to the
disclosure of a record, the use of such record for a purpose
which is compatible with the purpose for which it was collected;
(8) the term ''matching program'' -
(A) means any computerized comparison of -
(i) two or more automated systems of records or a system of
records with non-Federal records for the purpose of -
(I) establishing or verifying the eligibility of, or
continuing compliance with statutory and regulatory
requirements by, applicants for, recipients or
beneficiaries of, participants in, or providers of services
with respect to, cash or in-kind assistance or payments
under Federal benefit programs, or
(II) recouping payments or delinquent debts under such
Federal benefit programs, or
(ii) two or more automated Federal personnel or payroll
systems of records or a system of Federal personnel or
payroll records with non-Federal records,
(B) but does not include -
(i) matches performed to produce aggregate statistical data
without any personal identifiers;
(ii) matches performed to support any research or
statistical project, the specific data of which may not be
used to make decisions concerning the rights, benefits, or
privileges of specific individuals;
(iii) matches performed, by an agency (or component
thereof) which performs as its principal function any
activity pertaining to the enforcement of criminal laws,
subsequent to the initiation of a specific criminal or civil
law enforcement investigation of a named person or persons
for the purpose of gathering evidence against such person or
persons;
(iv) matches of tax information (I) pursuant to section
6103(d) of the Internal Revenue Code of 1986, (II) for
purposes of tax administration as defined in section
6103(b)(4) of such Code, (III) for the purpose of
intercepting a tax refund due an individual under authority
granted by section 404(e), 464, or 1137 of the Social
Security Act; or (IV) for the purpose of intercepting a tax
refund due an individual under any other tax refund intercept
program authorized by statute which has been determined by
the Director of the Office of Management and Budget to
contain verification, notice, and hearing requirements that
are substantially similar to the procedures in section 1137
of the Social Security Act;
(v) matches -
(I) using records predominantly relating to Federal
personnel, that are performed for routine administrative
purposes (subject to guidance provided by the Director of
the Office of Management and Budget pursuant to subsection
(v)); or
(II) conducted by an agency using only records from
systems of records maintained by that agency;
if the purpose of the match is not to take any adverse
financial, personnel, disciplinary, or other adverse action
against Federal personnel;
(vi) matches performed for foreign counterintelligence
purposes or to produce background checks for security
clearances of Federal personnel or Federal contractor
personnel;
(vii) matches performed incident to a levy described in
section 6103(k)(8) of the Internal Revenue Code of 1986; or
(viii) matches performed pursuant to section 202(x)(3) or
1611(e)(1) of the Social Security Act (42 U.S.C. 402(x)(3),
1382(e)(1));
(9) the term ''recipient agency'' means any agency, or
contractor thereof, receiving records contained in a system of
records from a source agency for use in a matching program;
(10) the term ''non-Federal agency'' means any State or local
government, or agency thereof, which receives records contained
in a system of records from a source agency for use in a matching
program;
(11) the term ''source agency'' means any agency which
discloses records contained in a system of records to be used in
a matching program, or any State or local government, or agency
thereof, which discloses records to be used in a matching
program;
(12) the term ''Federal benefit program'' means any program
administered or funded by the Federal Government, or by any agent
or State on behalf of the Federal Government, providing cash or
in-kind assistance in the form of payments, grants, loans, or
loan guarantees to individuals; and
(13) the term ''Federal personnel'' means officers and
employees of the Government of the United States, members of the
uniformed services (including members of the Reserve Components),
individuals entitled to receive immediate or deferred retirement
benefits under any retirement program of the Government of the
United States (including survivor benefits).
(b) Conditions of Disclosure. - No agency shall disclose any
record which is contained in a system of records by any means of
communication to any person, or to another agency, except pursuant
to a written request by, or with the prior written consent of, the
individual to whom the record pertains, unless disclosure of the
record would be -
(1) to those officers and employees of the agency which
maintains the record who have a need for the record in the
performance of their duties;
(2) required under section 552 of this title;
(3) for a routine use as defined in subsection (a)(7) of this
section and described under subsection (e)(4)(D) of this section;
(4) to the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to
the provisions of title 13;
(5) to a recipient who has provided the agency with advance
adequate written assurance that the record will be used solely as
a statistical research or reporting record, and the record is to
be transferred in a form that is not individually identifiable;
(6) to the National Archives and Records Administration as a
record which has sufficient historical or other value to warrant
its continued preservation by the United States Government, or
for evaluation by the Archivist of the United States or the
designee of the Archivist to determine whether the record has
such value;
(7) to another agency or to an instrumentality of any
governmental jurisdiction within or under the control of the
United States for a civil or criminal law enforcement activity if
the activity is authorized by law, and if the head of the agency
or instrumentality has made a written request to the agency which
maintains the record specifying the particular portion desired
and the law enforcement activity for which the record is sought;
(8) to a person pursuant to a showing of compelling
circumstances affecting the health or safety of an individual if
upon such disclosure notification is transmitted to the last
known address of such individual;
(9) to either House of Congress, or, to the extent of matter
within its jurisdiction, any committee or subcommittee thereof,
any joint committee of Congress or subcommittee of any such joint
committee;
(10) to the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties
of the General Accounting Office;
(11) pursuant to the order of a court of competent
jurisdiction; or
(12) to a consumer reporting agency in accordance with section
3711(e) of title 31.
(c) Accounting of Certain Disclosures. - Each agency, with
respect to each system of records under its control, shall -
(1) except for disclosures made under subsections (b)(1) or
(b)(2) of this section, keep an accurate accounting of -
(A) the date, nature, and purpose of each disclosure of a
record to any person or to another agency made under subsection
(b) of this section; and
(B) the name and address of the person or agency to whom the
disclosure is made;
(2) retain the accounting made under paragraph (1) of this
subsection for at least five years or the life of the record,
whichever is longer, after the disclosure for which the
accounting is made;
(3) except for disclosures made under subsection (b)(7) of this
section, make the accounting made under paragraph (1) of this
subsection available to the individual named in the record at his
request; and
(4) inform any person or other agency about any correction or
notation of dispute made by the agency in accordance with
subsection (d) of this section of any record that has been
disclosed to the person or agency if an accounting of the
disclosure was made.
(d) Access to Records. - Each agency that maintains a system of
records shall -
(1) upon request by any individual to gain access to his record
or to any information pertaining to him which is contained in the
system, permit him and upon his request, a person of his own
choosing to accompany him, to review the record and have a copy
made of all or any portion thereof in a form comprehensible to
him, except that the agency may require the individual to furnish
a written statement authorizing discussion of that individual's
record in the accompanying person's presence;
(2) permit the individual to request amendment of a record
pertaining to him and -
(A) not later than 10 days (excluding Saturdays, Sundays, and
legal public holidays) after the date of receipt of such
request, acknowledge in writing such receipt; and
(B) promptly, either -
(i) make any correction of any portion thereof which the
individual believes is not accurate, relevant, timely, or
complete; or
(ii) inform the individual of its refusal to amend the
record in accordance with his request, the reason for the
refusal, the procedures established by the agency for the
individual to request a review of that refusal by the head of
the agency or an officer designated by the head of the
agency, and the name and business address of that official;
(3) permit the individual who disagrees with the refusal of the
agency to amend his record to request a review of such refusal,
and not later than 30 days (excluding Saturdays, Sundays, and
legal public holidays) from the date on which the individual
requests such review, complete such review and make a final
determination unless, for good cause shown, the head of the
agency extends such 30-day period; and if, after his review, the
reviewing official also refuses to amend the record in accordance
with the request, permit the individual to file with the agency a
concise statement setting forth the reasons for his disagreement
with the refusal of the agency, and notify the individual of the
provisions for judicial review of the reviewing official's
determination under subsection (g)(1)(A) of this section;
(4) in any disclosure, containing information about which the
individual has filed a statement of disagreement, occurring after
the filing of the statement under paragraph (3) of this
subsection, clearly note any portion of the record which is
disputed and provide copies of the statement and, if the agency
deems it appropriate, copies of a concise statement of the
reasons of the agency for not making the amendments requested, to
persons or other agencies to whom the disputed record has been
disclosed; and
(5) nothing in this section shall allow an individual access to
any information compiled in reasonable anticipation of a civil
action or proceeding.
(e) Agency Requirements. - Each agency that maintains a system of
records shall -
(1) maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose
of the agency required to be accomplished by statute or by
executive order of the President;
(2) collect information to the greatest extent practicable
directly from the subject individual when the information may
result in adverse determinations about an individual's rights,
benefits, and privileges under Federal programs;
(3) inform each individual whom it asks to supply information,
on the form which it uses to collect the information or on a
separate form that can be retained by the individual -
(A) the authority (whether granted by statute, or by
executive order of the President) which authorizes the
solicitation of the information and whether disclosure of such
information is mandatory or voluntary;
(B) the principal purpose or purposes for which the
information is intended to be used;
(C) the routine uses which may be made of the information, as
published pursuant to paragraph (4)(D) of this subsection; and
(D) the effects on him, if any, of not providing all or any
part of the requested information;
(4) subject to the provisions of paragraph (11) of this
subsection, publish in the Federal Register upon establishment or
revision a notice of the existence and character of the system of
records, which notice shall include -
(A) the name and location of the system;
(B) the categories of individuals on whom records are
maintained in the system;
(C) the categories of records maintained in the system;
(D) each routine use of the records contained in the system,
including the categories of users and the purpose of such use;
(E) the policies and practices of the agency regarding
storage, retrievability, access controls, retention, and
disposal of the records;
(F) the title and business address of the agency official who
is responsible for the system of records;
(G) the agency procedures whereby an individual can be
notified at his request if the system of records contains a
record pertaining to him;
(H) the agency procedures whereby an individual can be
notified at his request how he can gain access to any record
pertaining to him contained in the system of records, and how
he can contest its content; and
(I) the categories of sources of records in the system;
(5) maintain all records which are used by the agency in making
any determination about any individual with such accuracy,
relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the
determination;
(6) prior to disseminating any record about an individual to
any person other than an agency, unless the dissemination is made
pursuant to subsection (b)(2) of this section, make reasonable
efforts to assure that such records are accurate, complete,
timely, and relevant for agency purposes;
(7) maintain no record describing how any individual exercises
rights guaranteed by the First Amendment unless expressly
authorized by statute or by the individual about whom the record
is maintained or unless pertinent to and within the scope of an
authorized law enforcement activity;
(8) make reasonable efforts to serve notice on an individual
when any record on such individual is made available to any
person under compulsory legal process when such process becomes a
matter of public record;
(9) establish rules of conduct for persons involved in the
design, development, operation, or maintenance of any system of
records, or in maintaining any record, and instruct each such
person with respect to such rules and the requirements of this
section, including any other rules and procedures adopted
pursuant to this section and the penalties for noncompliance;
(10) establish appropriate administrative, technical, and
physical safeguards to insure the security and confidentiality of
records and to protect against any anticipated threats or hazards
to their security or integrity which could result in substantial
harm, embarrassment, inconvenience, or unfairness to any
individual on whom information is maintained;
(11) at least 30 days prior to publication of information under
paragraph (4)(D) of this subsection, publish in the Federal
Register notice of any new use or intended use of the information
in the system, and provide an opportunity for interested persons
to submit written data, views, or arguments to the agency; and
(12) if such agency is a recipient agency or a source agency in
a matching program with a non-Federal agency, with respect to any
establishment or revision of a matching program, at least 30 days
prior to conducting such program, publish in the Federal Register
notice of such establishment or revision.
(f) Agency Rules. - In order to carry out the provisions of this
section, each agency that maintains a system of records shall
promulgate rules, in accordance with the requirements (including
general notice) of section 553 of this title, which shall -
(1) establish procedures whereby an individual can be notified
in response to his request if any system of records named by the
individual contains a record pertaining to him;
(2) define reasonable times, places, and requirements for
identifying an individual who requests his record or information
pertaining to him before the agency shall make the record or
information available to the individual;
(3) establish procedures for the disclosure to an individual
upon his request of his record or information pertaining to him,
including special procedure, if deemed necessary, for the
disclosure to an individual of medical records, including
psychological records, pertaining to him;
(4) establish procedures for reviewing a request from an
individual concerning the amendment of any record or information
pertaining to the individual, for making a determination on the
request, for an appeal within the agency of an initial adverse
agency determination, and for whatever additional means may be
necessary for each individual to be able to exercise fully his
rights under this section; and
(5) establish fees to be charged, if any, to any individual for
making copies of his record, excluding the cost of any search for
and review of the record.
The Office of the Federal Register shall biennially compile and
publish the rules promulgated under this subsection and agency
notices published under subsection (e)(4) of this section in a form
available to the public at low cost.
(g)(1) Civil Remedies. - Whenever any agency
(A) makes a determination under subsection (d)(3) of this
section not to amend an individual's record in accordance with
his request, or fails to make such review in conformity with that
subsection;
(B) refuses to comply with an individual request under
subsection (d)(1) of this section;
(C) fails to maintain any record concerning any individual with
such accuracy, relevance, timeliness, and completeness as is
necessary to assure fairness in any determination relating to the
qualifications, character, rights, or opportunities of, or
benefits to the individual that may be made on the basis of such
record, and consequently a determination is made which is adverse
to the individual; or
(D) fails to comply with any other provision of this section,
or any rule promulgated thereunder, in such a way as to have an
adverse effect on an individual,
the individual may bring a civil action against the agency, and the
district courts of the United States shall have jurisdiction in the
matters under the provisions of this subsection.
(2)(A) In any suit brought under the provisions of subsection
(g)(1)(A) of this section, the court may order the agency to amend
the individual's record in accordance with his request or in such
other way as the court may direct. In such a case the court shall
determine the matter de novo.
(B) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any
case under this paragraph in which the complainant has
substantially prevailed.
(3)(A) In any suit brought under the provisions of subsection
(g)(1)(B) of this section, the court may enjoin the agency from
withholding the records and order the production to the complainant
of any agency records improperly withheld from him. In such a case
the court shall determine the matter de novo, and may examine the
contents of any agency records in camera to determine whether the
records or any portion thereof may be withheld under any of the
exemptions set forth in subsection (k) of this section, and the
burden is on the agency to sustain its action.
(B) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any
case under this paragraph in which the complainant has
substantially prevailed.
(4) In any suit brought under the provisions of subsection
(g)(1)(C) or (D) of this section in which the court determines that
the agency acted in a manner which was intentional or willful, the
United States shall be liable to the individual in an amount equal
to the sum of -
(A) actual damages sustained by the individual as a result of
the refusal or failure, but in no case shall a person entitled to
recovery receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney
fees as determined by the court.
(5) An action to enforce any liability created under this section
may be brought in the district court of the United States in the
district in which the complainant resides, or has his principal
place of business, or in which the agency records are situated, or
in the District of Columbia, without regard to the amount in
controversy, within two years from the date on which the cause of
action arises, except that where an agency has materially and
willfully misrepresented any information required under this
section to be disclosed to an individual and the information so
misrepresented is material to establishment of the liability of the
agency to the individual under this section, the action may be
brought at any time within two years after discovery by the
individual of the misrepresentation. Nothing in this section shall
be construed to authorize any civil action by reason of any injury
sustained as the result of a disclosure of a record prior to
September 27, 1975.
(h) Rights of Legal Guardians. - For the purposes of this
section, the parent of any minor, or the legal guardian of any
individual who has been declared to be incompetent due to physical
or mental incapacity or age by a court of competent jurisdiction,
may act on behalf of the individual.
(i)(1) Criminal Penalties. - Any officer or employee of an
agency, who by virtue of his employment or official position, has
possession of, or access to, agency records which contain
individually identifiable information the disclosure of which is
prohibited by this section or by rules or regulations established
thereunder, and who knowing that disclosure of the specific
material is so prohibited, willfully discloses the material in any
manner to any person or agency not entitled to receive it, shall be
guilty of a misdemeanor and fined not more than $5,000.
(2) Any officer or employee of any agency who willfully maintains
a system of records without meeting the notice requirements of
subsection (e)(4) of this section shall be guilty of a misdemeanor
and fined not more than $5,000.
(3) Any person who knowingly and willfully requests or obtains
any record concerning an individual from an agency under false
pretenses shall be guilty of a misdemeanor and fined not more than
$5,000.
(j) General Exemptions. - The head of any agency may promulgate
rules, in accordance with the requirements (including general
notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this
title, to exempt any system of records within the agency from any
part of this section except subsections (b), (c)(1) and (2),
(e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if
the system of records is -
(1) maintained by the Central Intelligence Agency; or
(2) maintained by an agency or component thereof which performs
as its principal function any activity pertaining to the
enforcement of criminal laws, including police efforts to
prevent, control, or reduce crime or to apprehend criminals, and
the activities of prosecutors, courts, correctional, probation,
pardon, or parole authorities, and which consists of (A)
information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and
disposition of criminal charges, sentencing, confinement,
release, and parole and probation status; (B) information
compiled for the purpose of a criminal investigation, including
reports of informants and investigators, and associated with an
identifiable individual; or (C) reports identifiable to an
individual compiled at any stage of the process of enforcement of
the criminal laws from arrest or indictment through release from
supervision.
At the time rules are adopted under this subsection, the agency
shall include in the statement required under section 553(c) of
this title, the reasons why the system of records is to be exempted
from a provision of this section.
(k) Specific Exemptions. - The head of any agency may promulgate
rules, in accordance with the requirements (including general
notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this
title, to exempt any system of records within the agency from
subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of
this section if the system of records is -
(1) subject to the provisions of section 552(b)(1) of this
title;
(2) investigatory material compiled for law enforcement
purposes, other than material within the scope of subsection
(j)(2) of this section: Provided, however, That if any individual
is denied any right, privilege, or benefit that he would
otherwise be entitled by Federal law, or for which he would
otherwise be eligible, as a result of the maintenance of such
material, such material shall be provided to such individual,
except to the extent that the disclosure of such material would
reveal the identity of a source who furnished information to the
Government under an express promise that the identity of the
source would be held in confidence, or, prior to the effective
date of this section, under an implied promise that the identity
of the source would be held in confidence;
(3) maintained in connection with providing protective services
to the President of the United States or other individuals
pursuant to section 3056 of title 18;
(4) required by statute to be maintained and used solely as
statistical records;
(5) investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for
Federal civilian employment, military service, Federal contracts,
or access to classified information, but only to the extent that
the disclosure of such material would reveal the identity of a
source who furnished information to the Government under an
express promise that the identity of the source would be held in
confidence, or, prior to the effective date of this section,
under an implied promise that the identity of the source would be
held in confidence;
(6) testing or examination material used solely to determine
individual qualifications for appointment or promotion in the
Federal service the disclosure of which would compromise the
objectivity or fairness of the testing or examination process; or
(7) evaluation material used to determine potential for
promotion in the armed services, but only to the extent that the
disclosure of such material would reveal the identity of a source
who furnished information to the Government under an express
promise that the identity of the source would be held in
confidence, or, prior to the effective date of this section,
under an implied promise that the identity of the source would be
held in confidence.
At the time rules are adopted under this subsection, the agency
shall include in the statement required under section 553(c) of
this title, the reasons why the system of records is to be exempted
from a provision of this section.
(l)(1) Archival Records. - Each agency record which is accepted
by the Archivist of the United States for storage, processing, and
servicing in accordance with section 3103 of title 44 shall, for
the purposes of this section, be considered to be maintained by the
agency which deposited the record and shall be subject to the
provisions of this section. The Archivist of the United States
shall not disclose the record except to the agency which maintains
the record, or under rules established by that agency which are not
inconsistent with the provisions of this section.
(2) Each agency record pertaining to an identifiable individual
which was transferred to the National Archives of the United States
as a record which has sufficient historical or other value to
warrant its continued preservation by the United States Government,
prior to the effective date of this section, shall, for the
purposes of this section, be considered to be maintained by the
National Archives and shall not be subject to the provisions of
this section, except that a statement generally describing such
records (modeled after the requirements relating to records subject
to subsections (e)(4)(A) through (G) of this section) shall be
published in the Federal Register.
(3) Each agency record pertaining to an identifiable individual
which is transferred to the National Archives of the United States
as a record which has sufficient historical or other value to
warrant its continued preservation by the United States Government,
on or after the effective date of this section, shall, for the
purposes of this section, be considered to be maintained by the
National Archives and shall be exempt from the requirements of this
section except subsections (e)(4)(A) through (G) and (e)(9) of this
section.
(m)(1) Government Contractors. - When an agency provides by a
contract for the operation by or on behalf of the agency of a
system of records to accomplish an agency function, the agency
shall, consistent with its authority, cause the requirements of
this section to be applied to such system. For purposes of
subsection (i) of this section any such contractor and any employee
of such contractor, if such contract is agreed to on or after the
effective date of this section, shall be considered to be an
employee of an agency.
(2) A consumer reporting agency to which a record is disclosed
under section 3711(e) of title 31 shall not be considered a
contractor for the purposes of this section.
(n) Mailing Lists. - An individual's name and address may not be
sold or rented by an agency unless such action is specifically
authorized by law. This provision shall not be construed to
require the withholding of names and addresses otherwise permitted
to be made public.
(o) Matching Agreements. - (1) No record which is contained in a
system of records may be disclosed to a recipient agency or
non-Federal agency for use in a computer matching program except
pursuant to a written agreement between the source agency and the
recipient agency or non-Federal agency specifying -
(A) the purpose and legal authority for conducting the program;
(B) the justification for the program and the anticipated
results, including a specific estimate of any savings;
(C) a description of the records that will be matched,
including each data element that will be used, the approximate
number of records that will be matched, and the projected
starting and completion dates of the matching program;
(D) procedures for providing individualized notice at the time
of application, and notice periodically thereafter as directed by
the Data Integrity Board of such agency (subject to guidance
provided by the Director of the Office of Management and Budget
pursuant to subsection (v)), to -
(i) applicants for and recipients of financial assistance or
payments under Federal benefit programs, and
(ii) applicants for and holders of positions as Federal
personnel,
that any information provided by such applicants, recipients,
holders, and individuals may be subject to verification through
matching programs;
(E) procedures for verifying information produced in such
matching program as required by subsection (p);
(F) procedures for the retention and timely destruction of
identifiable records created by a recipient agency or non-Federal
agency in such matching program;
(G) procedures for ensuring the administrative, technical, and
physical security of the records matched and the results of such
programs;
(H) prohibitions on duplication and redisclosure of records
provided by the source agency within or outside the recipient
agency or the non-Federal agency, except where required by law or
essential to the conduct of the matching program;
(I) procedures governing the use by a recipient agency or
non-Federal agency of records provided in a matching program by a
source agency, including procedures governing return of the
records to the source agency or destruction of records used in
such program;
(J) information on assessments that have been made on the
accuracy of the records that will be used in such matching
program; and
(K) that the Comptroller General may have access to all records
of a recipient agency or a non-Federal agency that the
Comptroller General deems necessary in order to monitor or verify
compliance with the agreement.
(2)(A) A copy of each agreement entered into pursuant to
paragraph (1) shall -
(i) be transmitted to the Committee on Governmental Affairs of
the Senate and the Committee on Government Operations of the
House of Representatives; and
(ii) be available upon request to the public.
(B) No such agreement shall be effective until 30 days after the
date on which such a copy is transmitted pursuant to subparagraph
(A)(i).
(C) Such an agreement shall remain in effect only for such
period, not to exceed 18 months, as the Data Integrity Board of the
agency determines is appropriate in light of the purposes, and
length of time necessary for the conduct, of the matching program.
(D) Within 3 months prior to the expiration of such an agreement
pursuant to subparagraph (C), the Data Integrity Board of the
agency may, without additional review, renew the matching agreement
for a current, ongoing matching program for not more than one
additional year if -
(i) such program will be conducted without any change; and
(ii) each party to the agreement certifies to the Board in
writing that the program has been conducted in compliance with
the agreement.
(p) Verification and Opportunity to Contest Findings. - (1) In
order to protect any individual whose records are used in a
matching program, no recipient agency, non-Federal agency, or
source agency may suspend, terminate, reduce, or make a final
denial of any financial assistance or payment under a Federal
benefit program to such individual, or take other adverse action
against such individual, as a result of information produced by
such matching program, until -
(A)(i) the agency has independently verified the information;
or
(ii) the Data Integrity Board of the agency, or in the case of
a non-Federal agency the Data Integrity Board of the source
agency, determines in accordance with guidance issued by the
Director of the Office of Management and Budget that -
(I) the information is limited to identification and amount
of benefits paid by the source agency under a Federal benefit
program; and
(II) there is a high degree of confidence that the
information provided to the recipient agency is accurate;
(B) the individual receives a notice from the agency containing
a statement of its findings and informing the individual of the
opportunity to contest such findings; and
(C)(i) the expiration of any time period established for the
program by statute or regulation for the individual to respond to
that notice; or
(ii) in the case of a program for which no such period is
established, the end of the 30-day period beginning on the date
on which notice under subparagraph (B) is mailed or otherwise
provided to the individual.
(2) Independent verification referred to in paragraph (1)
requires investigation and confirmation of specific information
relating to an individual that is used as a basis for an adverse
action against the individual, including where applicable
investigation and confirmation of -
(A) the amount of any asset or income involved;
(B) whether such individual actually has or had access to such
asset or income for such individual's own use; and
(C) the period or periods when the individual actually had such
asset or income.
(3) Notwithstanding paragraph (1), an agency may take any
appropriate action otherwise prohibited by such paragraph if the
agency determines that the public health or public safety may be
adversely affected or significantly threatened during any notice
period required by such paragraph.
(q) Sanctions. - (1) Notwithstanding any other provision of law,
no source agency may disclose any record which is contained in a
system of records to a recipient agency or non-Federal agency for a
matching program if such source agency has reason to believe that
the requirements of subsection (p), or any matching agreement
entered into pursuant to subsection (o), or both, are not being met
by such recipient agency.
(2) No source agency may renew a matching agreement unless -
(A) the recipient agency or non-Federal agency has certified
that it has complied with the provisions of that agreement; and
(B) the source agency has no reason to believe that the
certification is inaccurate.
(r) Report on New Systems and Matching Programs. - Each agency
that proposes to establish or make a significant change in a system
of records or a matching program shall provide adequate advance
notice of any such proposal (in duplicate) to the Committee on
Government Operations of the House of Representatives, the
Committee on Governmental Affairs of the Senate, and the Office of
Management and Budget in order to permit an evaluation of the
probable or potential effect of such proposal on the privacy or
other rights of individuals.
(s) Biennial Report. - The President shall biennially submit to
the Speaker of the House of Representatives and the President pro
tempore of the Senate a report -
(1) describing the actions of the Director of the Office of
Management and Budget pursuant to section 6 of the Privacy Act of
1974 during the preceding 2 years;
(2) describing the exercise of individual rights of access and
amendment under this section during such years;
(3) identifying changes in or additions to systems of records;
(4) containing such other information concerning administration
of this section as may be necessary or useful to the Congress in
reviewing the effectiveness of this section in carrying out the
purposes of the Privacy Act of 1974.
(t)(1) Effect of Other Laws. - No agency shall rely on any
exemption contained in section 552 of this title to withhold from
an individual any record which is otherwise accessible to such
individual under the provisions of this section.
(2) No agency shall rely on any exemption in this section to
withhold from an individual any record which is otherwise
accessible to such individual under the provisions of section 552
of this title.
(u) Data Integrity Boards. - (1) Every agency conducting or
participating in a matching program shall establish a Data
Integrity Board to oversee and coordinate among the various
components of such agency the agency's implementation of this
section.
(2) Each Data Integrity Board shall consist of senior officials
designated by the head of the agency, and shall include any senior
official designated by the head of the agency as responsible for
implementation of this section, and the inspector general of the
agency, if any. The inspector general shall not serve as chairman
of the Data Integrity Board.
(3) Each Data Integrity Board -
(A) shall review, approve, and maintain all written agreements
for receipt or disclosure of agency records for matching programs
to ensure compliance with subsection (o), and all relevant
statutes, regulations, and guidelines;
(B) shall review all matching programs in which the agency has
participated during the year, either as a source agency or
recipient agency, determine compliance with applicable laws,
regulations, guidelines, and agency agreements, and assess the
costs and benefits of such programs;
(C) shall review all recurring matching programs in which the
agency has participated during the year, either as a source
agency or recipient agency, for continued justification for such
disclosures;
(D) shall compile an annual report, which shall be submitted to
the head of the agency and the Office of Management and Budget
and made available to the public on request, describing the
matching activities of the agency, including -
(i) matching programs in which the agency has participated as
a source agency or recipient agency;
(ii) matching agreements proposed under subsection (o) that
were disapproved by the Board;
(iii) any changes in membership or structure of the Board in
the preceding year;
(iv) the reasons for any waiver of the requirement in
paragraph (4) of this section for completion and submission of
a cost-benefit analysis prior to the approval of a matching
program;
(v) any violations of matching agreements that have been
alleged or identified and any corrective action taken; and
(vi) any other information required by the Director of the
Office of Management and Budget to be included in such report;
(E) shall serve as a clearinghouse for receiving and providing
information on the accuracy, completeness, and reliability of
records used in matching programs;
(F) shall provide interpretation and guidance to agency
components and personnel on the requirements of this section for
matching programs;
(G) shall review agency recordkeeping and disposal policies and
practices for matching programs to assure compliance with this
section; and
(H) may review and report on any agency matching activities
that are not matching programs.
(4)(A) Except as provided in subparagraphs (B) and (C), a Data
Integrity Board shall not approve any written agreement for a
matching program unless the agency has completed and submitted to
such Board a cost-benefit analysis of the proposed program and such
analysis demonstrates that the program is likely to be cost
effective. (FOOTNOTE 2)
(FOOTNOTE 2) So in original. Probably should be
''cost-effective.''
(B) The Board may waive the requirements of subparagraph (A) of
this paragraph if it determines in writing, in accordance with
guidelines prescribed by the Director of the Office of Management
and Budget, that a cost-benefit analysis is not required.
(C) A cost-benefit analysis shall not be required under
subparagraph (A) prior to the initial approval of a written
agreement for a matching program that is specifically required by
statute. Any subsequent written agreement for such a program shall
not be approved by the Data Integrity Board unless the agency has
submitted a cost-benefit analysis of the program as conducted under
the preceding approval of such agreement.
(5)(A) If a matching agreement is disapproved by a Data Integrity
Board, any party to such agreement may appeal the disapproval to
the Director of the Office of Management and Budget. Timely notice
of the filing of such an appeal shall be provided by the Director
of the Office of Management and Budget to the Committee on
Governmental Affairs of the Senate and the Committee on Government
Operations of the House of Representatives.
(B) The Director of the Office of Management and Budget may
approve a matching agreement notwithstanding the disapproval of a
Data Integrity Board if the Director determines that -
(i) the matching program will be consistent with all applicable
legal, regulatory, and policy requirements;
(ii) there is adequate evidence that the matching agreement
will be cost-effective; and
(iii) the matching program is in the public interest.
(C) The decision of the Director to approve a matching agreement
shall not take effect until 30 days after it is reported to
committees described in subparagraph (A).
(D) If the Data Integrity Board and the Director of the Office of
Management and Budget disapprove a matching program proposed by the
inspector general of an agency, the inspector general may report
the disapproval to the head of the agency and to the Congress.
(6) In the reports required by paragraph (3)(D), agency matching
activities that are not matching programs may be reported on an
aggregate basis, if and to the extent necessary to protect ongoing
law enforcement or counterintelligence investigations.
(v) Office of Management and Budget Responsibilities. - The
Director of the Office of Management and Budget shall -
(1) develop and, after notice and opportunity for public
comment, prescribe guidelines and regulations for the use of
agencies in implementing the provisions of this section; and
(2) provide continuing assistance to and oversight of the
implementation of this section by agencies.
-SOURCE-
(Added Pub. L. 93-579, Sec. 3, Dec. 31, 1974, 88 Stat. 1897;
amended Pub. L. 94-183, Sec. 2(2), Dec. 31, 1975, 89 Stat. 1057;
Pub. L. 97-365, Sec. 2, Oct. 25, 1982, 96 Stat. 1749; Pub. L.
97-375, title II, Sec. 201(a), (b), Dec. 21, 1982, 96 Stat. 1821;
Pub. L. 97-452, Sec. 2(a)(1), Jan. 12, 1983, 96 Stat. 2478; Pub. L.
98-477, Sec. 2(c), Oct. 15, 1984, 98 Stat. 2211; Pub. L. 98-497,
title I, Sec. 107(g), Oct. 19, 1984, 98 Stat. 2292; Pub. L.
100-503, Sec. 2-6(a), 7, 8, Oct. 18, 1988, 102 Stat. 2507-2514;
Pub. L. 101-508, title VII, Sec. 7201(b)(1), Nov. 5, 1990, 104
Stat. 1388-334; Pub. L. 103-66, title XIII, Sec. 13581(c), Aug. 10,
1993, 107 Stat. 611; Pub. L. 104-193, title I, Sec. 110(w), Aug.
22, 1996, 110 Stat. 2175; Pub. L. 104-226, Sec. 1(b)(3), Oct. 2,
1996, 110 Stat. 3033; Pub. L. 104-316, title I, Sec. 115(g)(2)(B),
Oct. 19, 1996, 110 Stat. 3835; Pub. L. 105-34, title X, Sec.
1026(b)(2), Aug. 5, 1997, 111 Stat. 925; Pub. L. 105-362, title
XIII, Sec. 1301(d), Nov. 10, 1998, 112 Stat. 3293; Pub. L. 106-170,
title IV, Sec. 402(a)(2), Dec. 17, 1999, 113 Stat. 1908.)
-REFTEXT-
REFERENCES IN TEXT
Section 552(e) of this title, referred to in subsec. (a)(1), was
redesignated section 552(f) of this title by section 1802(b) of
Pub. L. 99-570.
Section 6103 of the Internal Revenue Code of 1986, referred to in
subsec. (a)(8)(B)(iv), (vii), is classified to section 6103 of
Title 26, Internal Revenue Code.
Sections 404, 464, and 1137 of the Social Security Act, referred
to in subsec. (a)(8)(B)(iv), are classified to sections 604, 664,
and 1320b-7, respectively, of Title 42, The Public Health and
Welfare.
For effective date of this section, referred to in subsecs.
(k)(2), (5), (7), (l)(2), (3), and (m), see Effective Date note
below.
Section 6 of the Privacy Act of 1974, referred to in subsec.
(s)(1), is section 6 of Pub. L. 93-579, which was set out below and
was repealed by section 6(c) of Pub. L. 100-503.
For classification of the Privacy Act of 1974, referred to in
subsec. (s)(4), see Short Title note below.
-COD-
CODIFICATION
Section 552a of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2244
of Title 7, Agriculture.
-MISC3-
AMENDMENTS
1999 - Subsec. (a)(8)(B)(viii). Pub. L. 106-170 added cl. (viii).
1998 - Subsec. (u)(6), (7). Pub. L. 105-362 redesignated par. (7)
as (6), substituted ''paragraph (3)(D)'' for ''paragraphs (3)(D)
and (6)'', and struck out former par. (6) which read as follows:
''The Director of the Office of Management and Budget shall,
annually during the first 3 years after the date of enactment of
this subsection and biennially thereafter, consolidate in a report
to the Congress the information contained in the reports from the
various Data Integrity Boards under paragraph (3)(D). Such report
shall include detailed information about costs and benefits of
matching programs that are conducted during the period covered by
such consolidated report, and shall identify each waiver granted by
a Data Integrity Board of the requirement for completion and
submission of a cost-benefit analysis and the reasons for granting
the waiver.''
1997 - Subsec. (a)(8)(B)(vii). Pub. L. 105-34 added cl. (vii).
1996 - Subsec. (a)(8)(B)(iv)(III). Pub. L. 104-193 substituted
''section 404(e), 464,'' for ''section 464''.
Subsec. (a)(8)(B)(v) to (vii). Pub. L. 104-226 inserted ''or'' at
end of cl. (v), struck out ''or'' at end of cl. (vi), and struck
out cl. (vii) which read as follows: ''matches performed pursuant
to section 6103(l)(12) of the Internal Revenue Code of 1986 and
section 1144 of the Social Security Act;''.
Subsecs. (b)(12), (m)(2). Pub. L. 104-316 substituted ''3711(e)''
for ''3711(f)''.
1993 - Subsec. (a)(8)(B)(vii). Pub. L. 103-66 added cl. (vii).
1990 - Subsec. (p). Pub. L. 101-508 amended subsec. (p)
generally, restating former pars. (1) and (3) as par. (1), adding
provisions relating to Data Integrity Boards, and restating former
pars. (2) and (4) as (2) and (3), respectively.
1988 - Subsec. (a)(8) to (13). Pub. L. 100-503, Sec. 5, added
pars. (8) to (13).
Subsec. (e)(12). Pub. L. 100-503, Sec. 3(a), added par. (12).
Subsec. (f). Pub. L. 100-503, Sec. 7, substituted ''biennially''
for ''annually'' in last sentence.
Subsecs. (o) to (q). Pub. L. 100-503, Sec. 2(2), added subsecs.
(o) to (q). Former subsecs. (o) to (q) redesignated (r) to (t),
respectively.
Subsec. (r). Pub. L. 100-503, Sec. 3(b), inserted ''and matching
programs'' in heading and amended text generally. Prior to
amendment, text read as follows: ''Each agency shall provide
adequate advance notice to Congress and the Office of Management
and Budget of any proposal to establish or alter any system of
records in order to permit an evaluation of the probable or
potential effect of such proposal on the privacy and other personal
or property rights of individuals or the disclosure of information
relating to such individuals, and its effect on the preservation of
the constitutional principles of federalism and separation of
powers.''
Pub. L. 100-503, Sec. 2(1), redesignated former subsec. (o) as
(r).
Subsec. (s). Pub. L. 100-503, Sec. 8, substituted ''Biennial''
for ''Annual'' in heading, ''biennially submit'' for ''annually
submit'' in introductory provisions, ''preceding 2 years'' for
''preceding year'' in par. (1), and ''such years'' for ''such
year'' in par. (2).
Pub. L. 100-503, Sec. 2(1), redesignated former subsec. (p) as
(s).
Subsec. (t). Pub. L. 100-503, Sec. 2(1), redesignated former
subsec. (q) as (t).
Subsec. (u). Pub. L. 100-503, Sec. 4, added subsec. (u).
Subsec. (v). Pub. L. 100-503, Sec. 6(a), added subsec. (v).
1984 - Subsec. (b)(6). Pub. L. 98-497, Sec. 107(g)(1),
substituted ''National Archives and Records Administration'' for
''National Archives of the United States'', and ''Archivist of the
United States or the designee of the Archivist'' for
''Administrator of General Services or his designee''.
Subsec. (l)(1). Pub. L. 98-497, Sec. 107(g)(2), substituted
''Archivist of the United States'' for ''Administrator of General
Services'' in two places.
Subsec. (q). Pub. L. 98-477 designated existing provisions as
par. (1) and added par. (2).
1983 - Subsec. (b)(12). Pub. L. 97-452 substituted ''section
3711(f) of title 31'' for ''section 3(d) of the Federal Claims
Collection Act of 1966 (31 U.S.C. 952(d))''.
Subsec. (m)(2). Pub. L. 97-452 substituted ''section 3711(f) of
title 31'' for ''section 3(d) of the Federal Claims Collection Act
of 1966 (31 U.S.C. 952(d))''.
1982 - Subsec. (b)(12). Pub. L. 97-365, Sec. 2(a), added par.
(12).
Subsec. (e)(4). Pub. L. 97-375, Sec. 201(a), substituted ''upon
establishment or revision'' for ''at least annually'' after
''Federal Register''.
Subsec. (m). Pub. L. 97-365, Sec. 2(b), designated existing
provisions as par. (1) and added par. (2).
Subsec. (p). Pub. L. 97-375, Sec. 201(b), substituted provisions
requiring annual submission of a report by the President to the
Speaker of the House and President pro tempore of the Senate
relating to the Director of the Office of Management and Budget,
individual rights of access, changes or additions to systems of
records, and other necessary or useful information, for provisions
which had directed the President to submit to the Speaker of the
House and the President of the Senate, by June 30 of each calendar
year, a consolidated report, separately listing for each Federal
agency the number of records contained in any system of records
which were exempted from the application of this section under the
provisions of subsections (j) and (k) of this section during the
preceding calendar year, and the reasons for the exemptions, and
such other information as indicate efforts to administer fully this
section.
1975 - Subsec. (g)(5). Pub. L. 94-183 substituted ''to September
27, 1975'' for ''to the effective date of this section''.
-CHANGE-
CHANGE OF NAME
Committee on Government Operations of House of Representatives
treated as referring to Committee on Government Reform and
Oversight of House of Representatives by section 1(a) of Pub. L.
104-14, set out as a note under section 21 of Title 2, The
Congress. Committee on Government Reform and Oversight of House of
Representatives changed to Committee on Government Reform of House
of Representatives by House Resolution No. 5, One Hundred Sixth
Congress, Jan. 6, 1999.
-MISC4-
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by Pub. L. 106-170 applicable to individuals whose
period of confinement in an institution commences on or after the
first day of the fourth month beginning after December 1999, see
section 402(a)(4) of Pub. L. 106-170, set out as a note under
section 402 of Title 42, The Public Health and Welfare.
EFFECTIVE DATE OF 1997 AMENDMENT
Amendment by Pub. L. 105-34 applicable to levies issued after
Aug. 5, 1997, see section 1026(c) of Pub. L. 105-34, set out as a
note under section 6103 of Title 26, Internal Revenue Code.
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104-193 effective July 1, 1997, with
transition rules relating to State options to accelerate such date,
rules relating to claims, actions, and proceedings commenced before
such date, rules relating to closing out of accounts for terminated
or substantially modified programs and continuance in office of
Assistant Secretary for Family Support, and provisions relating to
termination of entitlement under AFDC program, see section 116 of
Pub. L. 104-193, as amended, set out as an Effective Date note
under section 601 of Title 42, The Public Health and Welfare.
EFFECTIVE DATE OF 1993 AMENDMENT
Amendment by Pub. L. 103-66 effective Jan. 1, 1994, see section
13581(d) of Pub. L. 103-66, set out as a note under section 1395y
of Title 42, The Public Health and Welfare.
EFFECTIVE DATE OF 1988 AMENDMENT
Section 10 of Pub. L. 100-503, as amended by Pub. L. 101-56, Sec.
2, July 19, 1989, 103 Stat. 149, provided that:
''(a) In General. - Except as provided in subsections (b) and
(c), the amendments made by this Act (amending this section and
repealing provisions set out as a note below) shall take effect 9
months after the date of enactment of this Act (Oct. 18, 1988).
''(b) Exceptions. - The amendment made by sections 3(b), 6, 7,
and 8 of this Act (amending this section and repealing provisions
set out as a note below) shall take effect upon enactment.
''(c) Effective Date Delayed for Existing Programs. - In the case
of any matching program (as defined in section 552a(a)(8) of title
5, United States Code, as added by section 5 of this Act) in
operation before June 1, 1989, the amendments made by this Act
(other than the amendments described in subsection (b)) shall take
effect January 1, 1990, if -
''(1) such matching program is identified by an agency as being
in operation before June 1, 1989; and
''(2) such identification is -
''(A) submitted by the agency to the Committee on
Governmental Affairs of the Senate, the Committee on Government
Operations of the House of Representatives, and the Office of
Management and Budget before August 1, 1989, in a report which
contains a schedule showing the dates on which the agency
expects to have such matching program in compliance with the
amendments made by this Act, and
''(B) published by the Office of Management and Budget in the
Federal Register, before September 15, 1989.''
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-497 effective Apr. 1, 1985, see section
301 of Pub. L. 98-497, set out as a note under section 2102 of
Title 44, Public Printing and Documents.
EFFECTIVE DATE
Section 8 of Pub. L. 93-579 provided that: ''The provisions of
this Act (enacting this section and provisions set out as notes
under this section) shall be effective on and after the date of
enactment (Dec. 31, 1974), except that the amendments made by
sections 3 and 4 (enacting this section and amending analysis
preceding section 500 of this title) shall become effective 270
days following the day on which this Act is enacted.''
SHORT TITLE OF 1990 AMENDMENT
Section 7201(a) of Pub. L. 101-508 provided that: ''This section
(amending this section and enacting provisions set out as notes
below) may be cited as the 'Computer Matching and Privacy
Protection Amendments of 1990'.''
SHORT TITLE OF 1989 AMENDMENT
Pub. L. 101-56, Sec. 1, July 19, 1989, 103 Stat. 149, provided
that: ''This Act (amending section 10 of Pub. L. 100-503, set out
as a note above) may be cited as the 'Computer Matching and Privacy
Protection Act Amendments of 1989'.''
SHORT TITLE OF 1988 AMENDMENT
Section 1 of Pub. L. 100-503 provided that: ''This Act (amending
this section, enacting provisions set out as notes above and below,
and repealing provisions set out as a note below) may be cited as
the 'Computer Matching and Privacy Protection Act of 1988'.''
SHORT TITLE OF 1974 AMENDMENT
Section 1 of Pub. L. 93-579 provided: ''That this Act (enacting
this section and provisions set out as notes under this section)
may be cited as the 'Privacy Act of 1974'.''
SHORT TITLE
This section is popularly known as the ''Privacy Act''.
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of reporting provisions
in subsec. (s) of this section, see section 3003 of Pub. L. 104-66,
as amended, set out as a note under section 1113 of Title 31, Money
and Finance, and page 31 of House Document No. 103-7.
-TRANS-
DELEGATION OF FUNCTIONS
Functions of Director of Office of Management and Budget under
this section delegated to Administrator for Office of Information
and Regulatory Affairs by section 3 of Pub. L. 96-511, Dec. 11,
1980, 94 Stat. 2825, set out as a note under section 3503 of Title
44, Public Printing and Documents.
-MISC5-
PUBLICATION OF GUIDANCE UNDER SUBSECTION (P)(1)(A)(II)
Section 7201(b)(2) of Pub. L. 101-508 provided that: ''Not later
than 90 days after the date of the enactment of this Act (Nov. 5,
1990), the Director of the Office of Management and Budget shall
publish guidance under subsection (p)(1)(A)(ii) of section 552a of
title 5, United States Code, as amended by this Act.''
LIMITATION ON APPLICATION OF VERIFICATION REQUIREMENT
Section 7201(c) of Pub. L. 101-508 provided that: ''Section
552a(p)(1)(A)(ii)(II) of title 5, United States Code, as amended by
section 2 (probably means section 7201(b)(1) of Pub. L. 101-508),
shall not apply to a program referred to in paragraph (1), (2), or
(4) of section 1137(b) of the Social Security Act (42 U.S.C.
1320b-7), until the earlier of -
''(1) the date on which the Data Integrity Board of the Federal
agency which administers that program determines that there is
not a high degree of confidence that information provided by that
agency under Federal matching programs is accurate; or
''(2) 30 days after the date of publication of guidance under
section 2(b) (probably means section 7201(b)(2) of Pub. L.
101-508, set out as a note above).''
EFFECTIVE DATE DELAYED FOR CERTAIN EDUCATION BENEFITS COMPUTER
MATCHING PROGRAMS
Pub. L. 101-366, title II, Sec. 206(d), Aug. 15, 1990, 104 Stat.
442, provided that:
''(1) In the case of computer matching programs between the
Department of Veterans Affairs and the Department of Defense in the
administration of education benefits programs under chapters 30 and
32 of title 38 and chapter 106 of title 10, United States Code, the
amendments made to section 552a of title 5, United States Code, by
the Computer Matching and Privacy Protection Act of 1988 (Pub. L.
100-503) (other than the amendments made by section 10(b) of that
Act) (see Effective Date of 1988 Amendment note above) shall take
effect on October 1, 1990.
''(2) For purposes of this subsection, the term 'matching
program' has the same meaning provided in section 552a(a)(8) of
title 5, United States Code.''
IMPLEMENTATION GUIDANCE FOR 1988 AMENDMENTS
Section 6(b) of Pub. L. 100-503 provided that: ''The Director
shall, pursuant to section 552a(v) of title 5, United States Code,
develop guidelines and regulations for the use of agencies in
implementing the amendments made by this Act (amending this section
and repealing provisions set out as a note below) not later than 8
months after the date of enactment of this Act (Oct. 18, 1988).''
CONSTRUCTION OF 1988 AMENDMENTS
Section 9 of Pub. L. 100-503 provided that: ''Nothing in the
amendments made by this Act (amending this section and repealing
provisions set out as a note below) shall be construed to authorize
-
''(1) the establishment or maintenance by any agency of a
national data bank that combines, merges, or links information on
individuals maintained in systems of records by other Federal
agencies;
''(2) the direct linking of computerized systems of records
maintained by Federal agencies;
''(3) the computer matching of records not otherwise authorized
by law; or
''(4) the disclosure of records for computer matching except to
a Federal, State, or local agency.''
CONGRESSIONAL FINDINGS AND STATEMENT OF PURPOSE
Section 2 of Pub. L. 93-579 provided that:
''(a) The Congress finds that -
''(1) the privacy of an individual is directly affected by the
collection, maintenance, use, and dissemination of personal
information by Federal agencies;
''(2) the increasing use of computers and sophisticated
information technology, while essential to the efficient
operations of the Government, has greatly magnified the harm to
individual privacy that can occur from any collection,
maintenance, use, or dissemination of personal information;
''(3) the opportunities for an individual to secure employment,
insurance, and credit, and his right to due process, and other
legal protections are endangered by the misuse of certain
information systems;
''(4) the right to privacy is a personal and fundamental right
protected by the Constitution of the United States; and
''(5) in order to protect the privacy of individuals identified
in information systems maintained by Federal agencies, it is
necessary and proper for the Congress to regulate the collection,
maintenance, use, and dissemination of information by such
agencies.
''(b) The purpose of this Act (enacting this section and
provisions set out as notes under this section) is to provide
certain safeguards for an individual against an invasion of
personal privacy by requiring Federal agencies, except as otherwise
provided by law, to -
''(1) permit an individual to determine what records pertaining
to him are collected, maintained, used, or disseminated by such
agencies;
''(2) permit an individual to prevent records pertaining to him
obtained by such agencies for a particular purpose from being
used or made available for another purpose without his consent;
''(3) permit an individual to gain access to information
pertaining to him in Federal agency records, to have a copy made
of all or any portion thereof, and to correct or amend such
records;
''(4) collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that
such action is for a necessary and lawful purpose, that the
information is current and accurate for its intended use, and
that adequate safeguards are provided to prevent misuse of such
information;
''(5) permit exemptions from the requirements with respect to
records provided in this Act only in those cases where there is
an important public policy need for such exemption as has been
determined by specific statutory authority; and
''(6) be subject to civil suit for any damages which occur as a
result of willful or intentional action which violates any
individual's rights under this Act.''
PRIVACY PROTECTION STUDY COMMISSION
Section 5 of Pub. L. 93-579, as amended by Pub. L. 95-38, June 1,
1977, 91 Stat. 179, which established the Privacy Protection Study
Commission and provided that the Commission study data banks,
automated data processing programs and information systems of
governmental, regional and private organizations to determine
standards and procedures in force for protection of personal
information, that the Commission report to the President and
Congress the extent to which requirements and principles of section
552a of title 5 should be applied to the information practices of
those organizations, and that it make other legislative
recommendations to protect the privacy of individuals while meeting
the legitimate informational needs of government and society,
ceased to exist on September 30, 1977, pursuant to section 5(g) of
Pub. L. 93-579.
GUIDELINES AND REGULATIONS FOR MAINTENANCE OF PRIVACY AND
PROTECTION OF RECORDS OF INDIVIDUALS
Section 6 of Pub. L. 93-579, which provided that the Office of
Management and Budget shall develop guidelines and regulations for
use of agencies in implementing provisions of this section and
provide continuing assistance to and oversight of the
implementation of the provisions of such section by agencies, was
repealed by Pub. L. 100-503, Sec. 6(c), Oct. 18, 1988, 102 Stat.
2513.
DISCLOSURE OF SOCIAL SECURITY NUMBER
Section 7 of Pub. L. 93-579 provided that:
''(a)(1) It shall be unlawful for any Federal, State or local
government agency to deny to any individual any right, benefit, or
privilege provided by law because of such individual's refusal to
disclose his social security account number.
''(2) the (The) provisions of paragraph (1) of this subsection
shall not apply with respect to -
''(A) any disclosure which is required by Federal statute, or
''(B) the disclosure of a social security number to any
Federal, State, or local agency maintaining a system of records
in existence and operating before January 1, 1975, if such
disclosure was required under statute or regulation adopted prior
to such date to verify the identity of an individual.
''(b) Any Federal, State, or local government agency which
requests an individual to disclose his social security account
number shall inform that individual whether that disclosure is
mandatory or voluntary, by what statutory or other authority such
number is solicited, and what uses will be made of it.''
AUTHORIZATION OF APPROPRIATIONS TO PRIVACY PROTECTION STUDY
COMMISSION
Section 9 of Pub. L. 93-579, as amended by Pub. L. 94-394, Sept.
3, 1976, 90 Stat. 1198, authorized appropriations for the period
beginning July 1, 1975, and ending on September 30, 1977.
-EXEC-
CLASSIFIED NATIONAL SECURITY INFORMATION
For provisions relating to a response to a request for
information under this section when the fact of its existence or
nonexistence is itself classified or when it was originally
classified by another agency, see Ex. Ord. No. 12958, Sec. 3.7,
Apr. 17, 1995, 60 F.R. 19835, set out as a note under section 435
of Title 50, War and National Defense.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 552b, 1212, 3111, 7133,
8148 of this title; title 6 section 142; title 7 sections 2204b,
2279b, 7035; title 10 sections 1102, 1506, 1588, 1596b; title 12
section 1715z; title 14 section 645; title 15 section 7215; title
16 sections 410cc-35, 1536; title 18 section 2707; title 19 section
1631; title 20 sections 1080a, 1090, 9514, 9573, 9622; title 22
section 4355; title 25 section 3205; title 26 sections 6103, 7852;
title 29 section 1908; title 31 sections 310, 3701, 3711, 3716,
3718, 3729, 3733, 7701; title 38 sections 3684A, 5701; title 39
section 410; title 42 sections 247b-4, 300aa-25, 402, 405, 904,
1306, 1395cc-2, 3544, 7385i, 9660, 14614, 14616; title 44 sections
2906, 3501, 3504, 3506, 3538, 3549, 3602; title 46 sections 7702,
9303; title 49 section 30305; title 50 sections 403-5c, 403-5e;
title 50 App. section 2159.
-CITE-
5 USC Sec. 552b 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 552b. Open meetings
-STATUTE-
(a) For purposes of this section -
(1) the term ''agency'' means any agency, as defined in section
552(e) (FOOTNOTE 1) of this title, headed by a collegial body
composed of two or more individual members, a majority of whom
are appointed to such position by the President with the advice
and consent of the Senate, and any subdivision thereof authorized
to act on behalf of the agency;
(FOOTNOTE 1) See References in Text note below.
(2) the term ''meeting'' means the deliberations of at least
the number of individual agency members required to take action
on behalf of the agency where such deliberations determine or
result in the joint conduct or disposition of official agency
business, but does not include deliberations required or
permitted by subsection (d) or (e); and
(3) the term ''member'' means an individual who belongs to a
collegial body heading an agency.
(b) Members shall not jointly conduct or dispose of agency
business other than in accordance with this section. Except as
provided in subsection (c), every portion of every meeting of an
agency shall be open to public observation.
(c) Except in a case where the agency finds that the public
interest requires otherwise, the second sentence of subsection (b)
shall not apply to any portion of an agency meeting, and the
requirements of subsections (d) and (e) shall not apply to any
information pertaining to such meeting otherwise required by this
section to be disclosed to the public, where the agency properly
determines that such portion or portions of its meeting or the
disclosure of such information is likely to -
(1) disclose matters that are (A) specifically authorized under
criteria established by an Executive order to be kept secret in
the interests of national defense or foreign policy and (B) in
fact properly classified pursuant to such Executive order;
(2) relate solely to the internal personnel rules and practices
of an agency;
(3) disclose matters specifically exempted from disclosure by
statute (other than section 552 of this title), provided that
such statute (A) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue,
or (B) establishes particular criteria for withholding or refers
to particular types of matters to be withheld;
(4) disclose trade secrets and commercial or financial
information obtained from a person and privileged or
confidential;
(5) involve accusing any person of a crime, or formally
censuring any person;
(6) disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal
privacy;
(7) disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in
such records, but only to the extent that the production of such
records or information would (A) interfere with enforcement
proceedings, (B) deprive a person of a right to a fair trial or
an impartial adjudication, (C) constitute an unwarranted invasion
of personal privacy, (D) disclose the identity of a confidential
source and, in the case of a record compiled by a criminal law
enforcement authority in the course of a criminal investigation,
or by an agency conducting a lawful national security
intelligence investigation, confidential information furnished
only by the confidential source, (E) disclose investigative
techniques and procedures, or (F) endanger the life or physical
safety of law enforcement personnel;
(8) disclose information contained in or related to
examination, operating, or condition reports prepared by, on
behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions;
(9) disclose information the premature disclosure of which
would -
(A) in the case of an agency which regulates currencies,
securities, commodities, or financial institutions, be likely
to (i) lead to significant financial speculation in currencies,
securities, or commodities, or (ii) significantly endanger the
stability of any financial institution; or
(B) in the case of any agency, be likely to significantly
frustrate implementation of a proposed agency action,
except that subparagraph (B) shall not apply in any instance
where the agency has already disclosed to the public the content
or nature of its proposed action, or where the agency is required
by law to make such disclosure on its own initiative prior to
taking final agency action on such proposal; or
(10) specifically concern the agency's issuance of a subpena,
or the agency's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an
arbitration, or the initiation, conduct, or disposition by the
agency of a particular case of formal agency adjudication
pursuant to the procedures in section 554 of this title or
otherwise involving a determination on the record after
opportunity for a hearing.
(d)(1) Action under subsection (c) shall be taken only when a
majority of the entire membership of the agency (as defined in
subsection (a)(1)) votes to take such action. A separate vote of
the agency members shall be taken with respect to each agency
meeting a portion or portions of which are proposed to be closed to
the public pursuant to subsection (c), or with respect to any
information which is proposed to be withheld under subsection (c).
A single vote may be taken with respect to a series of meetings, a
portion or portions of which are proposed to be closed to the
public, or with respect to any information concerning such series
of meetings, so long as each meeting in such series involves the
same particular matters and is scheduled to be held no more than
thirty days after the initial meeting in such series. The vote of
each agency member participating in such vote shall be recorded and
no proxies shall be allowed.
(2) Whenever any person whose interests may be directly affected
by a portion of a meeting requests that the agency close such
portion to the public for any of the reasons referred to in
paragraph (5), (6), or (7) of subsection (c), the agency, upon
request of any one of its members, shall vote by recorded vote
whether to close such meeting.
(3) Within one day of any vote taken pursuant to paragraph (1) or
(2), the agency shall make publicly available a written copy of
such vote reflecting the vote of each member on the question. If a
portion of a meeting is to be closed to the public, the agency
shall, within one day of the vote taken pursuant to paragraph (1)
or (2) of this subsection, make publicly available a full written
explanation of its action closing the portion together with a list
of all persons expected to attend the meeting and their
affiliation.
(4) Any agency, a majority of whose meetings may properly be
closed to the public pursuant to paragraph (4), (8), (9)(A), or
(10) of subsection (c), or any combination thereof, may provide by
regulation for the closing of such meetings or portions thereof in
the event that a majority of the members of the agency votes by
recorded vote at the beginning of such meeting, or portion thereof,
to close the exempt portion or portions of the meeting, and a copy
of such vote, reflecting the vote of each member on the question,
is made available to the public. The provisions of paragraphs (1),
(2), and (3) of this subsection and subsection (e) shall not apply
to any portion of a meeting to which such regulations apply:
Provided, That the agency shall, except to the extent that such
information is exempt from disclosure under the provisions of
subsection (c), provide the public with public announcement of the
time, place, and subject matter of the meeting and of each portion
thereof at the earliest practicable time.
(e)(1) In the case of each meeting, the agency shall make public
announcement, at least one week before the meeting, of the time,
place, and subject matter of the meeting, whether it is to be open
or closed to the public, and the name and phone number of the
official designated by the agency to respond to requests for
information about the meeting. Such announcement shall be made
unless a majority of the members of the agency determines by a
recorded vote that agency business requires that such meeting be
called at an earlier date, in which case the agency shall make
public announcement of the time, place, and subject matter of such
meeting, and whether open or closed to the public, at the earliest
practicable time.
(2) The time or place of a meeting may be changed following the
public announcement required by paragraph (1) only if the agency
publicly announces such change at the earliest practicable time.
The subject matter of a meeting, or the determination of the agency
to open or close a meeting, or portion of a meeting, to the public,
may be changed following the public announcement required by this
subsection only if (A) a majority of the entire membership of the
agency determines by a recorded vote that agency business so
requires and that no earlier announcement of the change was
possible, and (B) the agency publicly announces such change and the
vote of each member upon such change at the earliest practicable
time.
(3) Immediately following each public announcement required by
this subsection, notice of the time, place, and subject matter of a
meeting, whether the meeting is open or closed, any change in one
of the preceding, and the name and phone number of the official
designated by the agency to respond to requests for information
about the meeting, shall also be submitted for publication in the
Federal Register.
(f)(1) For every meeting closed pursuant to paragraphs (1)
through (10) of subsection (c), the General Counsel or chief legal
officer of the agency shall publicly certify that, in his or her
opinion, the meeting may be closed to the public and shall state
each relevant exemptive provision. A copy of such certification,
together with a statement from the presiding officer of the meeting
setting forth the time and place of the meeting, and the persons
present, shall be retained by the agency. The agency shall
maintain a complete transcript or electronic recording adequate to
record fully the proceedings of each meeting, or portion of a
meeting, closed to the public, except that in the case of a
meeting, or portion of a meeting, closed to the public pursuant to
paragraph (8), (9)(A), or (10) of subsection (c), the agency shall
maintain either such a transcript or recording, or a set of
minutes. Such minutes shall fully and clearly describe all matters
discussed and shall provide a full and accurate summary of any
actions taken, and the reasons therefor, including a description of
each of the views expressed on any item and the record of any
rollcall vote (reflecting the vote of each member on the
question). All documents considered in connection with any action
shall be identified in such minutes.
(2) The agency shall make promptly available to the public, in a
place easily accessible to the public, the transcript, electronic
recording, or minutes (as required by paragraph (1)) of the
discussion of any item on the agenda, or of any item of the
testimony of any witness received at the meeting, except for such
item or items of such discussion or testimony as the agency
determines to contain information which may be withheld under
subsection (c). Copies of such transcript, or minutes, or a
transcription of such recording disclosing the identity of each
speaker, shall be furnished to any person at the actual cost of
duplication or transcription. The agency shall maintain a complete
verbatim copy of the transcript, a complete copy of the minutes, or
a complete electronic recording of each meeting, or portion of a
meeting, closed to the public, for a period of at least two years
after such meeting, or until one year after the conclusion of any
agency proceeding with respect to which the meeting or portion was
held, whichever occurs later.
(g) Each agency subject to the requirements of this section
shall, within 180 days after the date of enactment of this section,
following consultation with the Office of the Chairman of the
Administrative Conference of the United States and published notice
in the Federal Register of at least thirty days and opportunity for
written comment by any person, promulgate regulations to implement
the requirements of subsections (b) through (f) of this section.
Any person may bring a proceeding in the United States District
Court for the District of Columbia to require an agency to
promulgate such regulations if such agency has not promulgated such
regulations within the time period specified herein. Subject to
any limitations of time provided by law, any person may bring a
proceeding in the United States Court of Appeals for the District
of Columbia to set aside agency regulations issued pursuant to this
subsection that are not in accord with the requirements of
subsections (b) through (f) of this section and to require the
promulgation of regulations that are in accord with such
subsections.
(h)(1) The district courts of the United States shall have
jurisdiction to enforce the requirements of subsections (b) through
(f) of this section by declaratory judgment, injunctive relief, or
other relief as may be appropriate. Such actions may be brought by
any person against an agency prior to, or within sixty days after,
the meeting out of which the violation of this section arises,
except that if public announcement of such meeting is not initially
provided by the agency in accordance with the requirements of this
section, such action may be instituted pursuant to this section at
any time prior to sixty days after any public announcement of such
meeting. Such actions may be brought in the district court of the
United States for the district in which the agency meeting is held
or in which the agency in question has its headquarters, or in the
District Court for the District of Columbia. In such actions a
defendant shall serve his answer within thirty days after the
service of the complaint. The burden is on the defendant to
sustain his action. In deciding such cases the court may examine
in camera any portion of the transcript, electronic recording, or
minutes of a meeting closed to the public, and may take such
additional evidence as it deems necessary. The court, having due
regard for orderly administration and the public interest, as well
as the interests of the parties, may grant such equitable relief as
it deems appropriate, including granting an injunction against
future violations of this section or ordering the agency to make
available to the public such portion of the transcript, recording,
or minutes of a meeting as is not authorized to be withheld under
subsection (c) of this section.
(2) Any Federal court otherwise authorized by law to review
agency action may, at the application of any person properly
participating in the proceeding pursuant to other applicable law,
inquire into violations by the agency of the requirements of this
section and afford such relief as it deems appropriate. Nothing in
this section authorizes any Federal court having jurisdiction
solely on the basis of paragraph (1) to set aside, enjoin, or
invalidate any agency action (other than an action to close a
meeting or to withhold information under this section) taken or
discussed at any agency meeting out of which the violation of this
section arose.
(i) The court may assess against any party reasonable attorney
fees and other litigation costs reasonably incurred by any other
party who substantially prevails in any action brought in
accordance with the provisions of subsection (g) or (h) of this
section, except that costs may be assessed against the plaintiff
only where the court finds that the suit was initiated by the
plaintiff primarily for frivolous or dilatory purposes. In the
case of assessment of costs against an agency, the costs may be
assessed by the court against the United States.
(j) Each agency subject to the requirements of this section shall
annually report to the Congress regarding the following:
(1) The changes in the policies and procedures of the agency
under this section that have occurred during the preceding 1-year
period.
(2) A tabulation of the number of meetings held, the exemptions
applied to close meetings, and the days of public notice provided
to close meetings.
(3) A brief description of litigation or formal complaints
concerning the implementation of this section by the agency.
(4) A brief explanation of any changes in law that have
affected the responsibilities of the agency under this section.
(k) Nothing herein expands or limits the present rights of any
person under section 552 of this title, except that the exemptions
set forth in subsection (c) of this section shall govern in the
case of any request made pursuant to section 552 to copy or inspect
the transcripts, recordings, or minutes described in subsection (f)
of this section. The requirements of chapter 33 of title 44,
United States Code, shall not apply to the transcripts, recordings,
and minutes described in subsection (f) of this section.
(l) This section does not constitute authority to withhold any
information from Congress, and does not authorize the closing of
any agency meeting or portion thereof required by any other
provision of law to be open.
(m) Nothing in this section authorizes any agency to withhold
from any individual any record, including transcripts, recordings,
or minutes required by this section, which is otherwise accessible
to such individual under section 552a of this title.
-SOURCE-
(Added Pub. L. 94-409, Sec. 3(a), Sept. 13, 1976, 90 Stat. 1241;
amended Pub. L. 104-66, title III, Sec. 3002, Dec. 21, 1995, 109
Stat. 734.)
-REFTEXT-
REFERENCES IN TEXT
Section 552(e) of this title, referred to in subsec. (a)(1), was
redesignated section 552(f) of this title by section 1802(b) of
Pub. L. 99-570.
180 days after the date of enactment of this section, referred to
in subsec. (g), means 180 days after the date of enactment of Pub.
L. 94-409, which was approved Sept. 13, 1976.
-MISC2-
AMENDMENTS
1995 - Subsec. (j). Pub. L. 104-66 amended subsec. (j)
generally. Prior to amendment, subsec. (j) read as follows: ''Each
agency subject to the requirements of this section shall annually
report to Congress regarding its compliance with such requirements,
including a tabulation of the total number of agency meetings open
to the public, the total number of meetings closed to the public,
the reasons for closing such meetings, and a description of any
litigation brought against the agency under this section, including
any costs assessed against the agency in such litigation (whether
or not paid by the agency).''
EFFECTIVE DATE
Section 6 of Pub. L. 94-409 provided that:
''(a) Except as provided in subsection (b) of this section, the
provisions of this Act (see Short Title note set out below) shall
take effect 180 days after the date of its enactment (Sept. 13,
1976).
''(b) Subsection (g) of section 552b of title 5, United States
Code, as added by section 3(a) of this Act, shall take effect upon
enactment (Sept. 13, 1976).''
SHORT TITLE
Section 1 of Pub. L. 94-409 provided: ''That this Act (enacting
this section, amending sections 551, 552, 556, and 557 of this
title, section 10 of Pub. L. 92-463, set out in the Appendix to
this title, and section 410 of Title 39, and enacting provisions
set out as notes under this section) may be cited as the
'Government in the Sunshine Act'.''
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions of law
requiring submittal to Congress of any annual, semiannual, or other
regular periodic report listed in House Document No. 103-7 (in
which the report required by subsec. (j) of this section is listed
on page 151), see section 3003 of Pub. L. 104-66, as amended, set
out as a note under section 1113 of Title 31, Money and Finance.
-TRANS-
TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES
For termination of Administrative Conference of United States,
see provision of title IV of Pub. L. 104-52, set out as a note
preceding section 591 of this title.
-MISC5-
DECLARATION OF POLICY AND STATEMENT OF PURPOSE
Section 2 of Pub. L. 94-409 provided that: ''It is hereby
declared to be the policy of the United States that the public is
entitled to the fullest practicable information regarding the
decisionmaking processes of the Federal Government. It is the
purpose of this Act (see Short Title note set out above) to provide
the public with such information while protecting the rights of
individuals and the ability of the Government to carry out its
responsibilities.''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 552 of this title; title 7
section 945; title 19 section 2347; title 22 sections 4605, 4833;
title 39 section 410; title 42 sections 1862n-5, 2996c, 7171, 8103,
10703, 14195; title 44 section 2204; title 45 sections 1116, 1212;
title 46 sections 7702, 9303; title 49 section 703; title 50 App.
sections 2158, 2159.
-CITE-
5 USC Sec. 553 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 553. Rule making
-STATUTE-
(a) This section applies, according to the provisions thereof,
except to the extent that there is involved -
(1) a military or foreign affairs function of the United
States; or
(2) a matter relating to agency management or personnel or to
public property, loans, grants, benefits, or contracts.
(b) General notice of proposed rule making shall be published in
the Federal Register, unless persons subject thereto are named and
either personally served or otherwise have actual notice thereof in
accordance with law. The notice shall include -
(1) a statement of the time, place, and nature of public rule
making proceedings;
(2) reference to the legal authority under which the rule is
proposed; and
(3) either the terms or substance of the proposed rule or a
description of the subjects and issues involved.
Except when notice or hearing is required by statute, this
subsection does not apply -
(A) to interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules
issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give
interested persons an opportunity to participate in the rule making
through submission of written data, views, or arguments with or
without opportunity for oral presentation. After consideration of
the relevant matter presented, the agency shall incorporate in the
rules adopted a concise general statement of their basis and
purpose. When rules are required by statute to be made on the
record after opportunity for an agency hearing, sections 556 and
557 of this title apply instead of this subsection.
(d) The required publication or service of a substantive rule
shall be made not less than 30 days before its effective date,
except -
(1) a substantive rule which grants or recognizes an exemption
or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found
and published with the rule.
(e) Each agency shall give an interested person the right to
petition for the issuance, amendment, or repeal of a rule.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1003. June 11, 1946, ch.
324, Sec. 4, 60
Stat. 238.
-------------------------------
In subsection (a)(1), the words ''or naval'' are omitted as
included in ''military''.
In subsection (b), the word ''when'' is substituted for ''in any
situation in which''.
In subsection (c), the words ''for oral presentation'' are
substituted for ''to present the same orally in any manner''. The
words ''sections 556 and 557 of this title apply instead of this
subsection'' are substituted for ''the requirements of sections
1006 and 1007 of this title shall apply in place of the provisions
of this subsection''.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
-COD-
CODIFICATION
Section 553 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2245
of Title 7, Agriculture.
-EXEC-
EXECUTIVE ORDER NO. 12044
Ex. Ord. No. 12044, Mar. 23, 1978, 43 F.R. 12661, as amended by
Ex. Ord. No. 12221, June 27, 1980, 45 F.R. 44249, which related to
the improvement of Federal regulations, was revoked by Ex. Ord. No.
12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note
under section 601 of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 552a, 556, 561, 566, 601,
603, 604, 611, 1103, 1105, 5304 of this title; title 2 sections
501, 502, 1383, 1384; title 6 section 441; title 7 sections 499c,
499f, 927, 944a, 2013, 2014, 2707, 4604, 4906, 6802, 6804, 7251,
7253, 7281, 7412, 7804, 7981, 7991; title 8 sections 1288, 1372;
title 9 section 306; title 12 sections 635, 1441a, 1710, 1735f-17,
1828, 3336, 4004, 4008, 4112, 4308, 4526, 4589, 4611; title 15
sections 18a, 45a, 57a, 77f, 78l, 78m, 78n, 78s, 78ee, 78ggg, 1193,
1203, 1262, 1277, 1474, 1476, 1604, 1693b, 2058, 2079, 2082, 2309,
2603, 2604, 2605, 2618, 2643, 2703, 2823, 3412, 3803, 4017, 4404,
5624, 5711, 5721, 5724, 6004, 6102, 6502, 6765; title 16 sections
460nnn-105, 620a, 839b, 971d, 1379, 1381, 1383b, 1463, 1533, 1535,
1604, 1821, 1822, 3341, 3604, 3636, 3801, 5504; title 19 section
2561; title 20 sections 1098a, 1221e-4, 1232, 1406, 1461, 6104,
9581; title 21 sections 358, 463; title 25 sections 450c, 450k;
title 28 section 994; title 30 sections 185, 811, 936, 1211, 1468,
1751; title 33 sections 1231, 1322, 1504; title 35 sections 2, 3;
title 38 sections 501, 502; title 40 section 3704; title 41
sections 43a, 47, 422; title 42 sections 289d, 290aa-10, 300g-1,
300h, 421, 902, 1320a-7c, 1395ff, 1395hh, 1437d, 1437u, 1437z-3,
1796c, 2210a, 2992b-1, 4029, 4905, 5403, 5404, 5419, 5422, 5506,
5919, 6239, 6250d, 6306, 7191, 7407, 7502, 7511a, 7607, 8275, 8411,
9112, 9127, 9204, 9605, 10155, 10193, 11023, 11376, 11387, 12725,
12879, 12898, 12898a, 13603, 13643, 14923, 14941; title 43 section
1740; title 44 section 2206; title 46 sections 7702, 9303, 14104;
title 46 App. sections 1241f, 1716; title 47 section 336; title 49
sections 5103, 20103, 24308, 31136, 31317, 32502, 32902, 40103,
44940, 60102; title 50 App. sections 2158, 2159, 2412.
-CITE-
5 USC Sec. 554 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 554. Adjudications
-STATUTE-
(a) This section applies, according to the provisions thereof, in
every case of adjudication required by statute to be determined on
the record after opportunity for an agency hearing, except to the
extent that there is involved -
(1) a matter subject to a subsequent trial of the law and the
facts de novo in a court;
(2) the selection or tenure of an employee, except a (FOOTNOTE
1) administrative law judge appointed under section 3105 of this
title;
(FOOTNOTE 1) So in original.
(3) proceedings in which decisions rest solely on inspections,
tests, or elections;
(4) the conduct of military or foreign affairs functions;
(5) cases in which an agency is acting as an agent for a court;
or
(6) the certification of worker representatives.
(b) Persons entitled to notice of an agency hearing shall be
timely informed of -
(1) the time, place, and nature of the hearing;
(2) the legal authority and jurisdiction under which the
hearing is to be held; and
(3) the matters of fact and law asserted.
When private persons are the moving parties, other parties to the
proceeding shall give prompt notice of issues controverted in fact
or law; and in other instances agencies may by rule require
responsive pleading. In fixing the time and place for hearings,
due regard shall be had for the convenience and necessity of the
parties or their representatives.
(c) The agency shall give all interested parties opportunity for
-
(1) the submission and consideration of facts, arguments,
offers of settlement, or proposals of adjustment when time, the
nature of the proceeding, and the public interest permit; and
(2) to the extent that the parties are unable so to determine a
controversy by consent, hearing and decision on notice and in
accordance with sections 556 and 557 of this title.
(d) The employee who presides at the reception of evidence
pursuant to section 556 of this title shall make the recommended
decision or initial decision required by section 557 of this title,
unless he becomes unavailable to the agency. Except to the extent
required for the disposition of ex parte matters as authorized by
law, such an employee may not -
(1) consult a person or party on a fact in issue, unless on
notice and opportunity for all parties to participate; or
(2) be responsible to or subject to the supervision or
direction of an employee or agent engaged in the performance of
investigative or prosecuting functions for an agency.
An employee or agent engaged in the performance of investigative or
prosecuting functions for an agency in a case may not, in that or a
factually related case, participate or advise in the decision,
recommended decision, or agency review pursuant to section 557 of
this title, except as witness or counsel in public proceedings.
This subsection does not apply -
(A) in determining applications for initial licenses;
(B) to proceedings involving the validity or application of
rates, facilities, or practices of public utilities or carriers;
or
(C) to the agency or a member or members of the body comprising
the agency.
(e) The agency, with like effect as in the case of other orders,
and in its sound discretion, may issue a declaratory order to
terminate a controversy or remove uncertainty.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 384; Pub. L. 95-251, Sec.
2(a)(1), Mar. 27, 1978, 92 Stat. 183.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1004. June 11, 1946, ch.
324, Sec. 5, 60
Stat. 239.
-------------------------------
In subsection (a)(2), the word ''employee'' is substituted for
''officer or employee of the United States'' in view of the
definition of ''employee'' in section 2105.
In subsection (a)(4), the word ''naval'' is omitted as included
in ''military''.
In subsection (a)(5), the word ''or'' is substituted for ''and''
since the exception is applicable if any one of the factors are
involved.
In subsection (a)(6), the word ''worker'' is substituted for
''employee'', since the latter is defined in section 2105 as
meaning Federal employees.
In subsection (b), the word ''When'' is substituted for ''In
instances in which''.
In subsection (c)(2), the comma after the word ''hearing'' is
omitted to correct an editorial error.
In subsection (d), the words ''The employee'' and ''such an
employee'' are substituted in the first two sentences for ''The
same officers'' and ''such officers'' in view of the definition of
''employee'' in section 2105. The word ''officer'' is omitted in
the third and fourth sentences as included in ''employee'' as
defined in section 2105. The prohibition in the third and fourth
sentences is restated in positive form. In paragraph (C) of the
last sentence, the words ''in any manner'' are omitted as
surplusage.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
-COD-
CODIFICATION
Section 554 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2246
of Title 7, Agriculture.
-MISC3-
AMENDMENTS
1978 - Subsec. (a)(2). Pub. L. 95-251 substituted
''administrative law judge'' for ''hearing examiner''.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 504, 552b, 556, 557, 8124
of this title; title 2 sections 501, 502, 1405, 1602; title 7
sections 86, 87e, 87f-1, 1359ii, 3804, 3805; title 8 sections
1324a, 1324c, 1375; title 12 sections 1817, 1818, 2268, 3413; title
15 sections 78d-1, 1274, 2064, 2066, 2605, 2615, 3412, 6765; title
16 sections 429b-1, 470ff, 773f, 796, 823b, 839f, 973f, 1174, 1437,
1536, 1540, 1852, 1856, 1858, 2407, 2437, 2602, 3142, 3373, 3636,
5010, 5507; title 18 section 3625; title 19 section 1308; title 20
sections 1234, 6083, 7183; title 21 sections 321, 333, 342, 346a,
360e, 844a, 1041; title 22 section 6761; title 29 sections 214,
216, 659, 1813, 1853; title 30 sections 185, 804, 811, 815, 817,
818, 821, 938, 1264, 1268, 1275, 1293, 1426, 1462; title 33
sections 919, 1319, 1321, 1367, 1504; title 38 section 7101A; title
41 section 422; title 42 sections 262, 300g-3, 300h-2, 300gg-22,
2000e-16c, 2000e-17, 2282a, 3783, 3789d, 4910, 6303, 6971, 7407,
7413, 7419, 7502, 7511a, 7524, 7607, 7920, 8433, 9112, 9152, 9609,
9610; title 43 sections 1656, 1766; title 45 section 905; title 46
sections 7702, 9303; title 46 App. section 1187e; title 47 sections
409, 503; title 49 sections 521, 13902, 20104; title 50 App.
sections 16, 2159, 2410, 2412.
-CITE-
5 USC Sec. 555 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 555. Ancillary matters
-STATUTE-
(a) This section applies, according to the provisions thereof,
except as otherwise provided by this subchapter.
(b) A person compelled to appear in person before an agency or
representative thereof is entitled to be accompanied, represented,
and advised by counsel or, if permitted by the agency, by other
qualified representative. A party is entitled to appear in person
or by or with counsel or other duly qualified representative in an
agency proceeding. So far as the orderly conduct of public
business permits, an interested person may appear before an agency
or its responsible employees for the presentation, adjustment, or
determination of an issue, request, or controversy in a proceeding,
whether interlocutory, summary, or otherwise, or in connection with
an agency function. With due regard for the convenience and
necessity of the parties or their representatives and within a
reasonable time, each agency shall proceed to conclude a matter
presented to it. This subsection does not grant or deny a person
who is not a lawyer the right to appear for or represent others
before an agency or in an agency proceeding.
(c) Process, requirement of a report, inspection, or other
investigative act or demand may not be issued, made, or enforced
except as authorized by law. A person compelled to submit data or
evidence is entitled to retain or, on payment of lawfully
prescribed costs, procure a copy or transcript thereof, except that
in a nonpublic investigatory proceeding the witness may for good
cause be limited to inspection of the official transcript of his
testimony.
(d) Agency subpenas authorized by law shall be issued to a party
on request and, when required by rules of procedure, on a statement
or showing of general relevance and reasonable scope of the
evidence sought. On contest, the court shall sustain the subpena
or similar process or demand to the extent that it is found to be
in accordance with law. In a proceeding for enforcement, the court
shall issue an order requiring the appearance of the witness or the
production of the evidence or data within a reasonable time under
penalty of punishment for contempt in case of contumacious failure
to comply.
(e) Prompt notice shall be given of the denial in whole or in
part of a written application, petition, or other request of an
interested person made in connection with any agency proceeding.
Except in affirming a prior denial or when the denial is
self-explanatory, the notice shall be accompanied by a brief
statement of the grounds for denial.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 385.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1005. June 11, 1946, ch.
324, Sec. 6, 60
Stat. 240.
-------------------------------
In subsection (b), the words ''is entitled'' are substituted for
''shall be accorded the right''. The word ''officers'' is omitted
as included in ''employees'' in view of the definition of
''employee'' in section 2105. The words ''With due regard for the
convenience and necessity of the parties or their representatives
and within a reasonable time'' are substituted for ''with
reasonable dispatch'' and ''except that due regard shall be had for
the convenience and necessity of the parties or their
representatives''. The prohibition in the last sentence is
restated in positive form and the words ''This subsection does
not'' are substituted for ''Nothing herein shall be construed
either to''.
In subsection (c), the words ''in any manner or for any purpose''
are omitted as surplusage.
In subsection (e), the word ''brief'' is substituted for
''simple''. The words ''of the grounds for denial'' are substituted
for ''of procedural or other grounds'' for clarity.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
-COD-
CODIFICATION
Section 555 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2247
of Title 7, Agriculture.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 2 sections 501, 502, 1405;
title 8 section 1375; title 16 sections 1536, 3636; title 18
section 3625; title 30 section 185; title 41 section 422; title 42
sections 2000e-16c, 7407, 7502, 7511a, 7607; title 46 sections
7702, 9303; title 50 App. sections 16, 2159, 2410, 2412.
-CITE-
5 USC Sec. 556 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 556. Hearings; presiding employees; powers and duties; burden
of proof; evidence; record as basis of decision
-STATUTE-
(a) This section applies, according to the provisions thereof, to
hearings required by section 553 or 554 of this title to be
conducted in accordance with this section.
(b) There shall preside at the taking of evidence -
(1) the agency;
(2) one or more members of the body which comprises the agency;
or
(3) one or more administrative law judges appointed under
section 3105 of this title.
This subchapter does not supersede the conduct of specified classes
of proceedings, in whole or in part, by or before boards or other
employees specially provided for by or designated under statute.
The functions of presiding employees and of employees participating
in decisions in accordance with section 557 of this title shall be
conducted in an impartial manner. A presiding or participating
employee may at any time disqualify himself. On the filing in good
faith of a timely and sufficient affidavit of personal bias or
other disqualification of a presiding or participating employee,
the agency shall determine the matter as a part of the record and
decision in the case.
(c) Subject to published rules of the agency and within its
powers, employees presiding at hearings may -
(1) administer oaths and affirmations;
(2) issue subpenas authorized by law;
(3) rule on offers of proof and receive relevant evidence;
(4) take depositions or have depositions taken when the ends of
justice would be served;
(5) regulate the course of the hearing;
(6) hold conferences for the settlement or simplification of
the issues by consent of the parties or by the use of alternative
means of dispute resolution as provided in subchapter IV of this
chapter;
(7) inform the parties as to the availability of one or more
alternative means of dispute resolution, and encourage use of
such methods;
(8) require the attendance at any conference held pursuant to
paragraph (6) of at least one representative of each party who
has authority to negotiate concerning resolution of issues in
controversy;
(9) dispose of procedural requests or similar matters;
(10) make or recommend decisions in accordance with section 557
of this title; and
(11) take other action authorized by agency rule consistent
with this subchapter.
(d) Except as otherwise provided by statute, the proponent of a
rule or order has the burden of proof. Any oral or documentary
evidence may be received, but the agency as a matter of policy
shall provide for the exclusion of irrelevant, immaterial, or
unduly repetitious evidence. A sanction may not be imposed or rule
or order issued except on consideration of the whole record or
those parts thereof cited by a party and supported by and in
accordance with the reliable, probative, and substantial evidence.
The agency may, to the extent consistent with the interests of
justice and the policy of the underlying statutes administered by
the agency, consider a violation of section 557(d) of this title
sufficient grounds for a decision adverse to a party who has
knowingly committed such violation or knowingly caused such
violation to occur. A party is entitled to present his case or
defense by oral or documentary evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required
for a full and true disclosure of the facts. In rule making or
determining claims for money or benefits or applications for
initial licenses an agency may, when a party will not be prejudiced
thereby, adopt procedures for the submission of all or part of the
evidence in written form.
(e) The transcript of testimony and exhibits, together with all
papers and requests filed in the proceeding, constitutes the
exclusive record for decision in accordance with section 557 of
this title and, on payment of lawfully prescribed costs, shall be
made available to the parties. When an agency decision rests on
official notice of a material fact not appearing in the evidence in
the record, a party is entitled, on timely request, to an
opportunity to show the contrary.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 386; Pub. L. 94-409, Sec.
4(c), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95-251, Sec. 2(a)(1),
Mar. 27, 1978, 92 Stat. 183; Pub. L. 101-552, Sec. 4(a), Nov. 15,
1990, 104 Stat. 2737.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1006. June 11, 1946, ch.
324, Sec. 7, 60
Stat. 241.
-------------------------------
In subsection (b), the words ''hearing examiners'' are
substituted for ''examiners'' in paragraph (3) for clarity. The
prohibition in the second sentence is restated in positive form and
the words ''This subchapter does not'' are substituted for ''but
nothing in this chapter shall be deemed to''. The words
''employee'' and ''employees'' are substituted for ''officer'' and
''officers'' in view of the definition of ''employee'' in section
2105. The sentence ''A presiding or participating employee may at
any time disqualify himself.'' is substituted for the words ''Any
such officer may at any time withdraw if he deems himself
disqualified.''
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
AMENDMENTS
1990 - Subsec. (c)(6). Pub. L. 101-552, Sec. 4(a)(1), inserted
before semicolon at end ''or by the use of alternative means of
dispute resolution as provided in subchapter IV of this chapter''.
Subsec. (c)(7) to (11). Pub. L. 101-552, Sec. 4(a)(2), added
pars. (7) and (8) and redesignated former pars. (7) and (8) and
redesignated former pars. (7) to (9) as (9) to (11), respectively.
1978 - Subsec. (b)(3). Pub. L. 95-251 substituted
''administrative law judges'' for ''hearing examiners''.
1976 - Subsec. (d). Pub. L. 94-409 inserted provisions relating
to consideration by agency of a violation under section 557(d) of
this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-409 effective 180 days after Sept. 13,
1976, see section 6 of Pub. L. 94-409, set out as an Effective Date
note under section 552b of this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF AGRICULTURE
Functions vested by this subchapter in hearing examiners employed
by Department of Agriculture not included in functions of officers,
agencies, and employees of that Department transferred to Secretary
of Agriculture by 1953 Reorg. Plan No. 2, Sec. 1, eff. June 4,
1953, 18 F.R. 3219, 67 Stat. 633, set out in the Appendix to this
title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF COMMERCE
Functions vested by this subchapter in hearing examiners employed
by Department of Commerce not included in functions of officers,
agencies, and employees of that Department transferred to Secretary
of Commerce by 1950 Reorg. Plan No. 5, Sec. 1, eff. May 24, 1950,
15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF THE INTERIOR
Functions vested by this subchapter in hearing examiners employed
by Department of the Interior not included in functions of
officers, agencies, and employees of that Department transferred to
Secretary of the Interior by 1950 Reorg. Plan No. 3, Sec. 1, eff.
May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in the Appendix
to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF JUSTICE
Functions vested by this subchapter in hearing examiners employed
by Department of Justice not included in functions of officers,
agencies, and employees of that Department transferred to Attorney
General by 1950 Reorg. Plan No. 2, Sec. 1, eff. May 24, 1950, 15
F.R. 3173, 64 Stat. 1261, set out in the Appendix to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF LABOR
Functions vested by this subchapter in hearing examiners employed
by Department of Labor not included in functions of officers,
agencies, and employees of that Department transferred to Secretary
of Labor by 1950 Reorg. Plan No. 6, Sec. 1, eff. May 24, 1950, 15
F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF THE TREASURY
Functions vested by this subchapter in hearing examiners employed
by Department of the Treasury not included in functions of
officers, agencies, and employees of that Department transferred to
Secretary of the Treasury by 1950 Reorg. Plan. No. 26, Sec. 1,
eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the
Appendix to this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 553, 554, 557, 558, 706,
3105 of this title; title 2 sections 501, 502, 1405; title 7
sections 86, 87e, 87f-1, 1359ii, 2023, 2707, 3804, 3805, 4604,
4906, 6802, 6804, 7804; title 8 sections 1182, 1375; title 13
section 305; title 15 sections 57a, 2605, 3412; title 16 sections
796, 839f, 1536, 2602, 3636; title 20 section 1234; title 21
sections 321, 342, 379e, 1041; title 22 sections 1037a, 4136; title
30 sections 185, 811, 1415; title 33 sections 907, 1319, 1321;
title 39 sections 404, 3624, 3661; title 41 section 422; title 42
sections 300h-2, 1320a-7c, 2000e-16c, 2241, 7171, 7407, 7413, 7502,
7511a, 7524, 7607, 9612, 11504; title 46 sections 7702, 9303; title
47 section 155; title 49 sections 31136, 31317; title 50 App.
sections 16, 2159, 2410, 2412.
-CITE-
5 USC Sec. 557 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 557. Initial decisions; conclusiveness; review by agency;
submissions by parties; contents of decisions; record
-STATUTE-
(a) This section applies, according to the provisions thereof,
when a hearing is required to be conducted in accordance with
section 556 of this title.
(b) When the agency did not preside at the reception of the
evidence, the presiding employee or, in cases not subject to
section 554(d) of this title, an employee qualified to preside at
hearings pursuant to section 556 of this title, shall initially
decide the case unless the agency requires, either in specific
cases or by general rule, the entire record to be certified to it
for decision. When the presiding employee makes an initial
decision, that decision then becomes the decision of the agency
without further proceedings unless there is an appeal to, or review
on motion of, the agency within time provided by rule. On appeal
from or review of the initial decision, the agency has all the
powers which it would have in making the initial decision except as
it may limit the issues on notice or by rule. When the agency
makes the decision without having presided at the reception of the
evidence, the presiding employee or an employee qualified to
preside at hearings pursuant to section 556 of this title shall
first recommend a decision, except that in rule making or
determining applications for initial licenses -
(1) instead thereof the agency may issue a tentative decision
or one of its responsible employees may recommend a decision; or
(2) this procedure may be omitted in a case in which the agency
finds on the record that due and timely execution of its
functions imperatively and unavoidably so requires.
(c) Before a recommended, initial, or tentative decision, or a
decision on agency review of the decision of subordinate employees,
the parties are entitled to a reasonable opportunity to submit for
the consideration of the employees participating in the decisions -
(1) proposed findings and conclusions; or
(2) exceptions to the decisions or recommended decisions of
subordinate employees or to tentative agency decisions; and
(3) supporting reasons for the exceptions or proposed findings
or conclusions.
The record shall show the ruling on each finding, conclusion, or
exception presented. All decisions, including initial,
recommended, and tentative decisions, are a part of the record and
shall include a statement of -
(A) findings and conclusions, and the reasons or basis
therefor, on all the material issues of fact, law, or discretion
presented on the record; and
(B) the appropriate rule, order, sanction, relief, or denial
thereof.
(d)(1) In any agency proceeding which is subject to subsection
(a) of this section, except to the extent required for the
disposition of ex parte matters as authorized by law -
(A) no interested person outside the agency shall make or
knowingly cause to be made to any member of the body comprising
the agency, administrative law judge, or other employee who is or
may reasonably be expected to be involved in the decisional
process of the proceeding, an ex parte communication relevant to
the merits of the proceeding;
(B) no member of the body comprising the agency, administrative
law judge, or other employee who is or may reasonably be expected
to be involved in the decisional process of the proceeding, shall
make or knowingly cause to be made to any interested person
outside the agency an ex parte communication relevant to the
merits of the proceeding;
(C) a member of the body comprising the agency, administrative
law judge, or other employee who is or may reasonably be expected
to be involved in the decisional process of such proceeding who
receives, or who makes or knowingly causes to be made, a
communication prohibited by this subsection shall place on the
public record of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance of all such oral
communications; and
(iii) all written responses, and memoranda stating the
substance of all oral responses, to the materials described in
clauses (i) and (ii) of this subparagraph;
(D) upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this subsection, the
agency, administrative law judge, or other employee presiding at
the hearing may, to the extent consistent with the interests of
justice and the policy of the underlying statutes, require the
party to show cause why his claim or interest in the proceeding
should not be dismissed, denied, disregarded, or otherwise
adversely affected on account of such violation; and
(E) the prohibitions of this subsection shall apply beginning
at such time as the agency may designate, but in no case shall
they begin to apply later than the time at which a proceeding is
noticed for hearing unless the person responsible for the
communication has knowledge that it will be noticed, in which
case the prohibitions shall apply beginning at the time of his
acquisition of such knowledge.
(2) This subsection does not constitute authority to withhold
information from Congress.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 387; Pub. L. 94-409, Sec.
4(a), Sept. 13, 1976, 90 Stat. 1246.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1007. June 11, 1946, ch.
324, Sec. 8, 60
Stat. 242.
-------------------------------
In subsection (b), the word ''employee'' is substituted for
''officer'' and ''officers'' in view of the definition of
''employee'' in section 2105. The word ''either'' is added after
the word ''requires'' in the first sentence to eliminate the need
for parentheses. The words ''the presiding employee or an employee
qualified to preside at hearings under section 556 of this title''
are substituted for ''such officers'' in the last sentence. The
word ''initial'' is omitted before ''decision'', the final word in
the first sentence and the sixth word of the fourth sentence, to
avoid confusion between the ''initial decision'' of the presiding
employee and the ''initial decision'' of the agency.
In subsection (c), the word ''employees'' is substituted for
''officers'' in view of the definition of ''employee'' in section
2105.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
-COD-
CODIFICATION
Section 557 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2207
of Title 7, Agriculture.
Section 557a of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2208
of Title 7.
-MISC3-
AMENDMENTS
1976 - Subsec. (d). Pub. L. 94-409 added subsec. (d).
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-409 effective 180 days after Sept. 13,
1976, see section 6 of Pub. L. 94-409, set out as an Effective Date
note under section 552b of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 553, 554, 556, 558, 706,
3105 of this title; title 2 sections 501, 502, 1405; title 7
sections 86, 87e, 87f-1, 2023, 2707, 4604, 4906, 6802, 6804, 7804;
title 8 section 1375; title 13 section 305; title 15 sections 57a,
2605, 3412; title 16 sections 796, 839f, 2602, 3636; title 20
section 1234; title 21 section 321; title 30 sections 185, 811,
823, 1415; title 39 sections 404, 3624, 3661; title 41 section 422;
title 42 sections 1320a-7c, 1395ww, 1485, 2000e-16c, 2241, 7407,
7502, 7511a, 7607, 11504; title 46 sections 7702, 9303; title 49
sections 31136, 31317; title 50 App. sections 16, 2159, 2410, 2412.
-CITE-
5 USC Sec. 558 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 558. Imposition of sanctions; determination of applications
for licenses; suspension, revocation, and expiration of
licenses
-STATUTE-
(a) This section applies, according to the provisions thereof, to
the exercise of a power or authority.
(b) A sanction may not be imposed or a substantive rule or order
issued except within jurisdiction delegated to the agency and as
authorized by law.
(c) When application is made for a license required by law, the
agency, with due regard for the rights and privileges of all the
interested parties or adversely affected persons and within a
reasonable time, shall set and complete proceedings required to be
conducted in accordance with sections 556 and 557 of this title or
other proceedings required by law and shall make its decision.
Except in cases of willfulness or those in which public health,
interest, or safety requires otherwise, the withdrawal, suspension,
revocation, or annulment of a license is lawful only if, before the
institution of agency proceedings therefor, the licensee has been
given -
(1) notice by the agency in writing of the facts or conduct
which may warrant the action; and
(2) opportunity to demonstrate or achieve compliance with all
lawful requirements.
When the licensee has made timely and sufficient application for a
renewal or a new license in accordance with agency rules, a license
with reference to an activity of a continuing nature does not
expire until the application has been finally determined by the
agency.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 388.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1008. June 11, 1946, ch.
324, Sec. 9, 60
Stat. 242.
-------------------------------
In subsection (b), the prohibition is restated in positive form.
In subsection (c), the words ''within a reasonable time'' are
substituted for ''with reasonable dispatch''. The last two
sentences are restated for conciseness and clarity and to restate
the prohibition in positive form.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
-COD-
CODIFICATION
Section 558 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2209
of Title 7, Agriculture.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 2 sections 501, 502; title
16 section 1824; title 30 section 185; title 41 section 422; title
42 sections 2236, 7651g; title 45 section 312; title 46 sections
7702, 9303; title 50 App. sections 2159, 2412.
-CITE-
5 USC Sec. 559 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 559. Effect on other laws; effect of subsequent statute
-STATUTE-
This subchapter, chapter 7, and sections 1305, 3105, 3344,
4301(2)(E), 5372, and 7521 of this title, and the provisions of
section 5335(a)(B) of this title that relate to administrative law
judges, do not limit or repeal additional requirements imposed by
statute or otherwise recognized by law. Except as otherwise
required by law, requirements or privileges relating to evidence or
procedure apply equally to agencies and persons. Each agency is
granted the authority necessary to comply with the requirements of
this subchapter through the issuance of rules or otherwise.
Subsequent statute may not be held to supersede or modify this
subchapter, chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372,
or 7521 of this title, or the provisions of section 5335(a)(B) of
this title that relate to administrative law judges, except to the
extent that it does so expressly.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 388; Pub. L. 90-623, Sec.
1(1), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 95-251, Sec. 2(a)(1),
Mar. 27, 1978, 92 Stat. 183; Pub. L. 95-454, title VIII, Sec.
801(a)(3)(B)(iii), Oct. 13, 1978, 92 Stat. 1221.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1011. June 11, 1946, ch.
324, Sec. 12, 60
Stat. 244.
-------------------------------
In the first and last sentences, the words ''This subchapter,
chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5362, and
7521, and the provisions of section 5335(a)(B) of this title that
relate to hearing examiners'' are substituted for ''this Act'' to
reflect the codification of the Act in this title. The words ''to
diminish the constitutional rights of any person or'' are omitted
as surplusage as there is nothing in the Act that can reasonably be
construed to diminish those rights and because a statute may not
operate in derogation of the Constitution.
The third sentence of former section 1011 is omitted as covered
by technical section 7. The sixth sentence of former section 1011
is omitted as executed.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
AMENDMENTS
1978 - Pub. L. 95-454 substituted ''5372'' for ''5362'' wherever
appearing.
Pub. L. 95-251 substituted ''administrative law judges'' for
''hearing examiners'' wherever appearing.
1968 - Pub. L. 90-623 inserted ''of this title'' after ''7521''
wherever appearing.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95-454 effective on first day of first
applicable pay period beginning on or after the 90th day after Oct.
13, 1978, see section 801(a)(4) of Pub. L. 95-454, set out as an
Effective Date note under section 5361 of this title.
EFFECTIVE DATE OF 1968 AMENDMENT
Amendment by Pub. L. 90-623 intended to restate without
substantive change the law in effect on Oct. 22, 1968, see section
6 of Pub. L. 90-623, set out as a note under section 5334 of this
title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 2 sections 501, 502; title
15 section 1541; title 30 sections 185, 823, 956; title 41 section
422; title 46 sections 7702, 9303; title 50 App. sections 2159,
2412.
-CITE-
5 USC SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
.
-HEAD-
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-MISC1-
PRIOR PROVISIONS
A prior subchapter III (Sec. 571 et seq.) was redesignated
subchapter V (Sec. 591 et seq.) of this chapter.
AMENDMENTS
1992 - Pub. L. 102-354, Sec. 3(a)(1), Aug. 26, 1992, 106 Stat.
944, redesignated subchapter IV of this chapter relating to
negotiated rulemaking procedure as this subchapter.
-SECREF-
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in title 20 sections 2326, 6571;
title 23 section 202; title 25 sections 450k, 458gg, 458aaa-16,
2018, 4116; title 42 sections 1320d-1, 1395w-26, 1437g, 1485.
-CITE-
5 USC Sec. 561 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 561. Purpose
-STATUTE-
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.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4970,
Sec. 581; renumbered Sec. 561, Pub. L. 102-354, Sec. 3(a)(2), Aug.
26, 1992, 106 Stat. 944.)
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 581 of this title as
this section.
EFFECTIVE DATE OF REPEAL; SAVINGS PROVISION
Section 5 of Pub. L. 101-648, as amended by Pub. L. 102-354, Sec.
5(a)(2), Aug. 26, 1992, 106 Stat. 945, which provided that
subchapter III of chapter 5 of title 5 and the table of sections
corresponding to such subchapter, were repealed, effective 6 years
after Nov. 29, 1990, except for then pending proceedings, was
repealed by Pub. L. 104-320, Sec. 11(a), Oct. 19, 1996, 110 Stat.
3873.
SHORT TITLE OF 1992 AMENDMENT
Section 1 of Pub. L. 102-354 provided that: ''This Act (amending
sections 565, 568, 569, 571, 577, 580, 581, and 593 of this title,
section 10 of Title 9, Arbitration, and section 173 of Title 29,
Labor, renumbering sections 571 to 576, 581 to 590, and 581 to 593
as 591 to 596, 561 to 570, and 571 to 583, respectively, of this
title, and amending provisions set out as notes under this section
and section 571 of this title) may be cited as the 'Administrative
Procedure Technical Amendments Act of 1991'.''
SHORT TITLE OF 1990 AMENDMENT
Section 1 of Pub. L. 101-648 provided that: ''This Act (enacting
this subchapter) may be cited as the 'Negotiated Rulemaking Act of
1990'.''
CONGRESSIONAL FINDINGS
Section 2 of Pub. L. 101-648 provided that: ''The Congress makes
the following findings:
''(1) Government regulation has increased substantially since
the enactment of the Administrative Procedure Act (see Short
Title note set out preceding section 551 of this title).
''(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.''
AUTHORIZATION OF APPROPRIATIONS
Section 4 of Pub. L. 101-648, as amended by Pub. L. 102-354, Sec.
5(a)(1), Aug. 26, 1992, 106 Stat. 945, authorized additional
appropriations to Administrative Conference of the United States to
carry out Pub. L. 101-648 in fiscal years 1991, 1992, and 1993.
-CITE-
5 USC Sec. 562 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 562. Definitions
-STATUTE-
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.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4970,
Sec. 582; renumbered Sec. 562, Pub. L. 102-354, Sec. 3(a)(2), Aug.
26, 1992, 106 Stat. 944.)
-REFTEXT-
REFERENCES IN TEXT
The Federal Advisory Committee Act, referred to in par. (7), is
Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended, which is
set out in the Appendix to this title.
-MISC2-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 582 of this title as
this section.
-CITE-
5 USC Sec. 563 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 563. Determination of need for negotiated rulemaking committee
-STATUTE-
(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.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4970,
Sec. 583; renumbered Sec. 563, Pub. L. 102-354, Sec. 3(a)(2), Aug.
26, 1992, 106 Stat. 944.)
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 583 of this title as
this section.
NEGOTIATED RULEMAKING COMMITTEES
Pub. L. 104-320, Sec. 11(e), Oct. 19, 1996, 110 Stat. 3874,
provided that: ''The Director of the Office of Management and
Budget shall -
''(1) within 180 days of the date of the enactment of this Act
(Oct. 19, 1996), take appropriate action to expedite the
establishment of negotiated rulemaking committees and committees
established to resolve disputes under the Administrative Dispute
Resolution Act (Pub. L. 101-552, see Short Title note set out
under section 571 of this title), including, with respect to
negotiated rulemaking committees, eliminating any redundant
administrative requirements related to filing a committee charter
under section 9 of the Federal Advisory Committee Act (5 U.S.C.
App.) and providing public notice of such committee under section
564 of title 5, United States Code; and
''(2) within one year of the date of the enactment of this Act,
submit recommendations to Congress for any necessary legislative
changes.''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 23 section 202; title 25
sections 2018, 4116.
-CITE-
5 USC Sec. 564 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 564. Publication of notice; applications for membership on
committees
-STATUTE-
(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 (FOOTNOTE 1) 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 -
(FOOTNOTE 1) So in original. Probably should be ''on''.
(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.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4971,
Sec. 584; renumbered Sec. 564, Pub. L. 102-354, Sec. 3(a)(2), Aug.
26, 1992, 106 Stat. 944.)
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 584 of this title as
this section.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 565 of this title; title
25 section 4116; title 42 section 1395w-26.
-CITE-
5 USC Sec. 565 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 565. Establishment of committee
-STATUTE-
(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 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 (FOOTNOTE 1) rulemaking committee
to represent such interests with respect to the proposed rule.
(FOOTNOTE 1) So in original. Probably should be ''negotiated''.
(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.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4972,
Sec. 585; renumbered Sec. 565 and amended Pub. L. 102-354, Sec.
3(a)(2), (3), Aug. 26, 1992, 106 Stat. 944.)
-REFTEXT-
REFERENCES IN TEXT
The Federal Advisory Committee Act, referred to in subsec.
(a)(1), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended,
which is set out in the Appendix to this title.
-MISC2-
AMENDMENTS
1992 - Pub. L. 102-354, Sec. 3(a)(2), renumbered section 585 of
this title as this section.
Subsec. (a)(1). Pub. L. 102-354, Sec. 3(a)(3), substituted
''section 564'' for ''section 584''.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 23 section 202; title 25
sections 458gg, 458aaa-16, 2018, 4116; title 42 section 1395w-26.
-CITE-
5 USC Sec. 566 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 566. Conduct of committee activity
-STATUTE-
(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.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4973,
Sec. 586; renumbered Sec. 566, Pub. L. 102-354, Sec. 3(a)(2), Aug.
26, 1992, 106 Stat. 944.)
-REFTEXT-
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.
-MISC2-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 586 of this title as
this section.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 42 section 1395w-26.
-CITE-
5 USC Sec. 567 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 567. Termination of committee
-STATUTE-
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.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4974,
Sec. 587; renumbered Sec. 567, Pub. L. 102-354, Sec. 3(a)(2), Aug.
26, 1992, 106 Stat. 944.)
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 587 of this title as
this section.
-CITE-
5 USC Sec. 568 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 568. Services, facilities, and payment of committee member
expenses
-STATUTE-
(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
determine for purposes of sections 202 through 209 of title 18
whether that member is an employee of the United States Government.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4974,
Sec. 588; renumbered Sec. 568 and amended Pub. L. 102-354, Sec.
3(a)(2), (4), Aug. 26, 1992, 106 Stat. 944.)
-REFTEXT-
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.
-MISC2-
AMENDMENTS
1992 - Pub. L. 102-354, Sec. 3(a)(2), renumbered section 588 of
this title as this section.
Subsec. (d). Pub. L. 102-354, Sec. 3(a)(4), substituted ''section
569'' for ''section 589''.
-CITE-
5 USC Sec. 569 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 569. Encouraging negotiated rulemaking
-STATUTE-
(a) The President shall designate an agency or designate or
establish an interagency committee to facilitate and encourage
agency use of negotiated rulemaking. An agency that is
considering, planning, or conducting a negotiated rulemaking may
consult with such agency or committee for information and
assistance.
(b) To carry out the purposes of this subchapter, an agency
planning or conducting a negotiated rulemaking may accept, hold,
administer, and utilize gifts, devises, and bequests of property,
both real and personal if that agency's acceptance and use of such
gifts, devises, or bequests do not create a conflict of interest.
Gifts and bequests of money and proceeds from sales of other
property received as gifts, devises, or bequests shall be deposited
in the Treasury and shall be disbursed upon the order of the head
of such agency. Property accepted pursuant to this section, and
the proceeds thereof, shall be used as nearly as possible in
accordance with the terms of the gifts, devises, or bequests.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4975,
Sec. 589; renumbered Sec. 569 and amended Pub. L. 102-354, Sec.
3(a)(2), (5), Aug. 26, 1992, 106 Stat. 944; Pub. L. 104-320, Sec.
11(b)(1), Oct. 19, 1996, 110 Stat. 3873.)
-MISC1-
AMENDMENTS
1996 - Pub. L. 104-320 in section catchline substituted
''Encouraging negotiated rulemaking'' for ''Role of the
Administrative Conference of the United States and other
entities'', and in text added subsecs. (a) and (b) and struck out
former subsecs. (a) to (g) which related to: in subsec. (a),
consultation by agencies; in subsec. (b), roster of potential
conveners and facilitators; in subsec. (c), procedures to obtain
conveners and facilitators; in subsec. (d), compilation of data on
negotiated rulemaking and report to Congress; in subsec. (e),
training in negotiated rulemaking; in subsec. (f), payment of
expenses of agencies; and in subsec. (g), use of funds of the
conference.
1992 - Pub. L. 102-354, Sec. 3(a)(2), renumbered section 589 of
this title as this section.
Subsec. (d)(2). Pub. L. 102-354, Sec. 3(a)(5)(A), substituted
''section 566'' for ''section 586''.
Subsec. (f)(2). Pub. L. 102-354, Sec. 3(a)(5)(B), substituted
''section 568(c)'' for ''section 588(c)''.
Subsec. (g). Pub. L. 102-354, Sec. 3(a)(5)(C), substituted
''section 595(c)(12)'' for ''section 575(c)(12)''.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 568 of this title.
-CITE-
5 USC Sec. 570 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 570. Judicial review
-STATUTE-
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.
-SOURCE-
(Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4976,
Sec. 590; renumbered Sec. 570, Pub. L. 102-354, Sec. 3(a)(2), Aug.
26, 1992, 106 Stat. 944.)
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 590 of this title as
this section.
-CITE-
5 USC Sec. 570a 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
-HEAD-
Sec. 570a. Authorization of appropriations
-STATUTE-
There are authorized to be appropriated such sums as may be
necessary to carry out the purposes of this subchapter.
-SOURCE-
(Added Pub. L. 104-320, Sec. 11(d)(1), Oct. 19, 1996, 110 Stat.
3873.)
-CITE-
5 USC SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE
RESOLUTION IN THE ADMINISTRATIVE PROCESS 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
.
-HEAD-
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-COD-
CODIFICATION
Another subchapter IV (Sec. 581 et seq.) relating to negotiated
rulemaking procedure was redesignated subchapter III (Sec. 561 et
seq.) of this chapter.
-MISC3-
AMENDMENTS
1992 - Pub. L. 102-354, Sec. 3(b)(1), Aug. 26, 1992, 106 Stat.
944, transferred this subchapter so as to appear immediately after
subchapter III of this chapter.
-SECREF-
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in section 556 of this title;
title 12 section 4806; title 25 sections 450j, 450l; title 28
section 2672; title 29 section 173; title 41 section 605.
-CITE-
5 USC Sec. 571 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 571. Definitions
-STATUTE-
For the purposes of this subchapter, the term -
(1) ''agency'' has the same meaning as in section 551(1) of
this title;
(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 to resolve issues in controversy,
including, but not limited to, conciliation, facilitation,
mediation, factfinding, minitrials, arbitration, and use of
ombuds, 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;
(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.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2738,
Sec. 581; renumbered Sec. 571 and amended Pub. L. 102-354, Sec.
3(b)(2), 5(b)(1), (2), Aug. 26, 1992, 106 Stat. 944, 946; Pub. L.
104-320, Sec. 2, Oct. 19, 1996, 110 Stat. 3870.)
-COD-
CODIFICATION
Section 571 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2256
of Title 7, Agriculture.
-MISC3-
PRIOR PROVISIONS
A prior section 571 was renumbered section 591 of this title.
AMENDMENTS
1996 - Par. (3). Pub. L. 104-320, Sec. 2(1), struck out '', in
lieu of an adjudication as defined in section 551(7) of this
title,'' after ''any procedure that is used'', struck out
''settlement negotiations,'' after ''but not limited to,'' and
substituted ''arbitration, and use of ombuds'' for ''and
arbitration''.
Par. (8). Pub. L. 104-320, Sec. 2(2), substituted ''decision;''
for ''decision,'' at end of subpar. (B), and struck out closing
provisions which read as follows: ''except that such term shall not
include any matter specified under section 2302 or 7121(c) of this
title;''.
1992 - Pub. L. 102-354, Sec. 3(b)(2), renumbered section 581 of
this title as this section.
Par. (3). Pub. L. 102-354, Sec. 5(b)(1), inserted comma after
''including''.
Par. (8). Pub. L. 102-354, Sec. 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, as amended by Pub. L. 104-106,
div. D, title XLIII, Sec. 4321(i)(5), Feb. 10, 1996, 110 Stat.
676, which provided that the authority of agencies to use dispute
resolution proceedings under this Act (see Short Title note below)
was to terminate on Oct. 1, 1995, except with respect to pending
proceedings, was repealed by Pub. L. 104-320, Sec. 9, Oct. 19,
1996, 110 Stat. 3872.
SHORT TITLE OF 1996 AMENDMENT
Section 1 of Pub. L. 104-320 provided that: ''This Act (enacting
sections 570a and 584 of this title, amending this section,
sections 569, 573 to 575, 580, 581, and 583 of this title, section
2304 of Title 10, Armed Forces, section 1491 of Title 28, Crimes
and Criminal Procedure, section 173 of Title 29, Labor, section
3556 of Title 31, Money and Finance, and sections 253 and 605 of
Title 41, Public Contracts, repealing section 582 of this title,
enacting provisions set out as notes under section 563 of this
title, section 1491 of Title 28, and section 3556 of Title 31,
amending provisions set out as notes under this section, and
repealing provisions set out as notes under this section and
section 561 of this title) may be cited as the 'Administrative
Dispute Resolution Act of 1996'.''
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, as amended by Pub. L. 104-320, Sec.
4(a), Oct. 19, 1996, 110 Stat. 3871, 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 agency designated by, or the interagency
committee designated or established by, the President under
section 573 of title 5, United States Code, to facilitate and
encourage agency use of alternative dispute resolution under
subchapter IV of chapter 5 of such title; 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.''
-CROSS-
DEFINITIONS
Section 10 of Pub. L. 101-552, as amended by Pub. L. 102-354,
Sec. 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)).''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 6 section 293; title 12
section 4806.
-CITE-
5 USC Sec. 572 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 572. General authority
-STATUTE-
(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;
(4) the matter significantly affects persons or organizations
who are not parties to the proceeding;
(5) a full public record of the proceeding is important, and a
dispute resolution proceeding cannot provide such a record; and
(6) the agency must maintain continuing jurisdiction over the
matter with authority to alter the disposition of the matter in
the light of changed circumstances, and a dispute resolution
proceeding would interfere with the agency's fulfilling that
requirement.
(c) Alternative means of dispute resolution authorized under this
subchapter are voluntary procedures which supplement rather than
limit other available agency dispute resolution techniques.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2739,
Sec. 582; renumbered Sec. 572, Pub. L. 102-354, Sec. 3(b)(2), Aug.
26, 1992, 106 Stat. 944.)
-COD-
CODIFICATION
Section 572 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2257
of Title 7, Agriculture.
-MISC3-
PRIOR PROVISIONS
A prior section 572 was renumbered section 592 of this title.
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 582 of this title as
this section.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 575 of this title; title 9
section 10; title 41 section 605.
-CITE-
5 USC Sec. 573 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 573. Neutrals
-STATUTE-
(a) A neutral may be a permanent or temporary officer or employee
of the Federal Government or any other individual who is acceptable
to the parties to a dispute resolution proceeding. A neutral shall
have no official, financial, or personal conflict of interest with
respect to the issues in controversy, unless such interest is fully
disclosed in writing to all parties and all parties agree that the
neutral may serve.
(b) A neutral who serves as a conciliator, facilitator, or
mediator serves at the will of the parties.
(c) The President shall designate an agency or designate or
establish an interagency committee to facilitate and encourage
agency use of dispute resolution under this subchapter. Such
agency or interagency committee, in consultation with other
appropriate Federal agencies and professional organizations
experienced in matters concerning dispute resolution, shall -
(1) encourage and facilitate agency use of alternative means of
dispute resolution; and
(2) develop procedures that permit agencies to obtain the
services of neutrals on an expedited basis.
(d) An agency may use the services of one or more employees of
other agencies to serve as neutrals in dispute resolution
proceedings. The agencies may enter into an interagency agreement
that provides for the reimbursement by the user agency or the
parties of the full or partial cost of the services of such an
employee.
(e) Any agency may enter into a contract with any person for
services as a neutral, or for training in connection with
alternative means of dispute resolution. The parties in a dispute
resolution proceeding shall agree on compensation for the neutral
that is fair and reasonable to the Government.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2739,
Sec. 583; renumbered Sec. 573, Pub. L. 102-354, Sec. 3(b)(2), Aug.
26, 1992, 106 Stat. 944; amended Pub. L. 104-320, Sec. 7(b), Oct.
19, 1996, 110 Stat. 3872.)
-COD-
CODIFICATION
Section 573 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2258
of Title 7, Agriculture.
-MISC3-
PRIOR PROVISIONS
A prior section 573 was renumbered section 593 of this title.
AMENDMENTS
1996 - Subsec. (c). Pub. L. 104-320, Sec. 7(b)(1), added subsec.
(c) and struck out former subsec. (c) which related to power of
Administrative Conference of the United States to establish and
utilize standards for neutrals and to enter into contracts for
services of neutrals.
Subsec. (e). Pub. L. 104-320, Sec. 7(b)(2), struck out ''on a
roster established under subsection (c)(2) or a roster maintained
by other public or private organizations, or individual'' after
''contract with any person''.
1992 - Pub. L. 102-354 renumbered section 583 of this title as
this section.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 577 of this title; title
29 section 173.
-CITE-
5 USC Sec. 574 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 574. Confidentiality
-STATUTE-
(a) Except as provided in subsections (d) and (e), a neutral in a
dispute resolution proceeding shall not voluntarily disclose or
through discovery or compulsory process be required to disclose any
dispute resolution communication or any communication provided in
confidence to the neutral, unless -
(1) all parties to the dispute resolution proceeding and the
neutral consent in writing, and, if the dispute resolution
communication was provided by a nonparty participant, that
participant also consents in writing;
(2) the dispute resolution communication has already been made
public;
(3) the dispute resolution communication is required by statute
to be made public, but a neutral should make such communication
public only if no other person is reasonably available to
disclose the communication; or
(4) a court determines that such testimony or disclosure is
necessary to -
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health or safety,
of sufficient magnitude in the particular case to outweigh the
integrity of dispute resolution proceedings in general by
reducing the confidence of parties in future cases that their
communications will remain confidential.
(b) A party to a dispute resolution proceeding shall not
voluntarily disclose or through discovery or compulsory process be
required to disclose any dispute resolution communication, unless -
(1) the communication was prepared by the party seeking
disclosure;
(2) all parties to the dispute resolution proceeding consent in
writing;
(3) the dispute resolution communication has already been made
public;
(4) the dispute resolution communication is required by statute
to be made public;
(5) a court determines that such testimony or disclosure is
necessary to -
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health and safety,
of sufficient magnitude in the particular case to outweigh the
integrity of dispute resolution proceedings in general by
reducing the confidence of parties in future cases that their
communications will remain confidential;
(6) the dispute resolution communication is relevant to
determining the existence or meaning of an agreement or award
that resulted from the dispute resolution proceeding or to the
enforcement of such an agreement or award; or
(7) except for dispute resolution communications generated by
the neutral, the dispute resolution communication was provided to
or was available to all parties to the dispute resolution
proceeding.
(c) Any dispute resolution communication that is disclosed in
violation of subsection (a) or (b), shall not be admissible in any
proceeding relating to the issues in controversy with respect to
which the communication was made.
(d)(1) The parties may agree to alternative confidential
procedures for disclosures by a neutral. Upon such agreement the
parties shall inform the neutral before the commencement of the
dispute resolution proceeding of any modifications to the
provisions of subsection (a) that will govern the confidentiality
of the dispute resolution proceeding. If the parties do not so
inform the neutral, subsection (a) shall apply.
(2) To qualify for the exemption established under subsection
(j), an alternative confidential procedure under this subsection
may not provide for less disclosure than the confidential
procedures otherwise provided under this section.
(e) If a demand for disclosure, by way of discovery request or
other legal process, is made upon a neutral regarding a dispute
resolution communication, the neutral shall make reasonable efforts
to notify the parties and any affected nonparty participants of the
demand. Any party or affected nonparty participant who receives
such notice and within 15 calendar days does not offer to defend a
refusal of the neutral to disclose the requested information shall
have waived any objection to such disclosure.
(f) Nothing in this section shall prevent the discovery or
admissibility of any evidence that is otherwise discoverable,
merely because the evidence was presented in the course of a
dispute resolution proceeding.
(g) Subsections (a) and (b) shall have no effect on the
information and data that are necessary to document an agreement
reached or order issued pursuant to a dispute resolution
proceeding.
(h) Subsections (a) and (b) shall not prevent the gathering of
information for research or educational purposes, in cooperation
with other agencies, governmental entities, or dispute resolution
programs, so long as the parties and the specific issues in
controversy are not identifiable.
(i) Subsections (a) and (b) shall not prevent use of a dispute
resolution communication to resolve a dispute between the neutral
in a dispute resolution proceeding and a party to or participant in
such proceeding, so long as such dispute resolution communication
is disclosed only to the extent necessary to resolve such dispute.
(j) A dispute resolution communication which is between a neutral
and a party and which may not be disclosed under this section shall
also be exempt from disclosure under section 552(b)(3).
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2740,
Sec. 584; renumbered Sec. 574, Pub. L. 102-354, Sec. 3(b)(2), Aug.
26, 1992, 106 Stat. 944; amended Pub. L. 104-320, Sec. 3, Oct. 19,
1996, 110 Stat. 3870.)
-COD-
CODIFICATION
Section 574 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2255
of Title 7, Agriculture.
Section 574a of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2226
of Title 7.
-MISC3-
PRIOR PROVISIONS
A prior section 574 was renumbered section 594 of this title.
AMENDMENTS
1996 - Subsecs. (a), (b). Pub. L. 104-320, Sec. 3(a), in
introductory provisions struck out ''any information concerning''
after ''be required to disclose''.
Subsec. (b)(7). Pub. L. 104-320, Sec. 3(b), amended par. (7)
generally. Prior to amendment, par. (7) read as follows: ''the
dispute resolution communication was provided to or was available
to all parties to the dispute resolution proceeding''.
Subsec. (d). Pub. L. 104-320, Sec. 3(c), designated existing
provisions as par. (1) and added par. (2).
Subsec. (j). Pub. L. 104-320, Sec. 3(d), amended subsec. (j)
generally. Prior to amendment, subsec. (j) read as follows: ''This
section shall not be considered a statute specifically exempting
disclosure under section 552(b)(3) of this title.''
1992 - Pub. L. 102-354 renumbered section 584 of this title as
this section.
-CITE-
5 USC Sec. 575 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 575. Authorization of arbitration
-STATUTE-
(a)(1) Arbitration may be used as an alternative means of dispute
resolution whenever all parties consent. Consent may be obtained
either before or after an issue in controversy has arisen. A party
may agree to -
(A) submit only certain issues in controversy to arbitration;
or
(B) arbitration on the condition that the award must be within
a range of possible outcomes.
(2) The arbitration agreement that sets forth the subject matter
submitted to the arbitrator shall be in writing. Each such
arbitration agreement shall specify a maximum award that may be
issued by the arbitrator and may specify other conditions limiting
the range of possible outcomes.
(3) An agency may not require any person to consent to
arbitration as a condition of entering into a contract or obtaining
a benefit.
(b) An officer or employee of an agency shall not offer to use
arbitration for the resolution of issues in controversy unless such
officer or employee -
(1) would otherwise have authority to enter into a settlement
concerning the matter; or
(2) is otherwise specifically authorized by the agency to
consent to the use of arbitration.
(c) Prior to using binding arbitration under this subchapter, the
head of an agency, in consultation with the Attorney General and
after taking into account the factors in section 572(b), shall
issue guidance on the appropriate use of binding arbitration and
when an officer or employee of the agency has authority to settle
an issue in controversy through binding arbitration.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2742,
Sec. 585; renumbered Sec. 575, Pub. L. 102-354, Sec. 3(b)(2), Aug.
26, 1992, 106 Stat. 944; amended Pub. L. 104-320, Sec. 8(c), Oct.
19, 1996, 110 Stat. 3872.)
-COD-
CODIFICATION
Section 575 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2259
of Title 7, Agriculture.
-MISC3-
PRIOR PROVISIONS
A prior section 575 was renumbered section 595 of this title.
AMENDMENTS
1996 - Subsec. (a)(2). Pub. L. 104-320, Sec. 8(c)(1), (2),
substituted ''The'' for ''Any'' and inserted at end ''Each such
arbitration agreement shall specify a maximum award that may be
issued by the arbitrator and may specify other conditions limiting
the range of possible outcomes.''
Subsec. (b). Pub. L. 104-320, Sec. 8(c)(3), in introductory
provisions substituted ''shall not offer to use arbitration for the
resolution of issues in controversy unless'' for ''may offer to use
arbitration for the resolution of issues in controversy, if'', and
in par. (1) substituted ''would otherwise have authority'' for
''has authority''.
Subsec. (c). Pub. L. 104-320, Sec. 8(c)(4), added subsec. (c).
1992 - Pub. L. 102-354 renumbered section 585 of this title as
this section.
-CITE-
5 USC Sec. 576 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 576. Enforcement of arbitration agreements
-STATUTE-
An agreement to arbitrate a matter to which this subchapter
applies is enforceable pursuant to section 4 of title 9, and no
action brought to enforce such an agreement shall be dismissed nor
shall relief therein be denied on the grounds that it is against
the United States or that the United States is an indispensable
party.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2742,
Sec. 586; renumbered Sec. 576, Pub. L. 102-354, Sec. 3(b)(2), Aug.
26, 1992, 106 Stat. 944.)
-COD-
CODIFICATION
Section 576 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2260
of Title 7, Agriculture, and subsequently repealed by Pub. L.
107-171, title X, Sec. 10418(a)(3), May 13, 2002, 116 Stat. 507.
-MISC3-
PRIOR PROVISIONS
A prior section 576 was renumbered section 596 of this title.
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 586 of this title as
this section.
-CITE-
5 USC Sec. 577 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 577. Arbitrators
-STATUTE-
(a) The parties to an arbitration proceeding shall be entitled to
participate in the selection of the arbitrator.
(b) The arbitrator shall be a neutral who meets the criteria of
section 573 of this title.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2742,
Sec. 587; renumbered Sec. 577 and amended Pub. L. 102-354, Sec.
3(b)(2), (3), Aug. 26, 1992, 102 Stat. 944, 945.)
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354, Sec. 3(b)(2), renumbered section 587 of
this title as this section.
Subsec. (b). Pub. L. 102-354, Sec. 3(b)(3), substituted ''section
573'' for ''section 583''.
-CITE-
5 USC Sec. 578 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 578. Authority of the arbitrator
-STATUTE-
An arbitrator to whom a dispute is referred under this subchapter
may -
(1) regulate the course of and conduct arbitral hearings;
(2) administer oaths and affirmations;
(3) compel the attendance of witnesses and production of
evidence at the hearing under the provisions of section 7 of
title 9 only to the extent the agency involved is otherwise
authorized by law to do so; and
(4) make awards.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2742,
Sec. 588; renumbered Sec. 578, Pub. L. 102-354, Sec. 3(b)(2), Aug.
26, 1992, 106 Stat. 944.)
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 588 of this title as
this section.
-CITE-
5 USC Sec. 579 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 579. Arbitration proceedings
-STATUTE-
(a) The arbitrator shall set a time and place for the hearing on
the dispute and shall notify the parties not less than 5 days
before the hearing.
(b) Any party wishing a record of the hearing shall -
(1) be responsible for the preparation of such record;
(2) notify the other parties and the arbitrator of the
preparation of such record;
(3) furnish copies to all identified parties and the
arbitrator; and
(4) pay all costs for such record, unless the parties agree
otherwise or the arbitrator determines that the costs should be
apportioned.
(c)(1) The parties to the arbitration are entitled to be heard,
to present evidence material to the controversy, and to
cross-examine witnesses appearing at the hearing.
(2) The arbitrator may, with the consent of the parties, conduct
all or part of the hearing by telephone, television, computer, or
other electronic means, if each party has an opportunity to
participate.
(3) The hearing shall be conducted expeditiously and in an
informal manner.
(4) The arbitrator may receive any oral or documentary evidence,
except that irrelevant, immaterial, unduly repetitious, or
privileged evidence may be excluded by the arbitrator.
(5) The arbitrator shall interpret and apply relevant statutory
and regulatory requirements, legal precedents, and policy
directives.
(d) No interested person shall make or knowingly cause to be made
to the arbitrator an unauthorized ex parte communication relevant
to the merits of the proceeding, unless the parties agree
otherwise. If a communication is made in violation of this
subsection, the arbitrator shall ensure that a memorandum of the
communication is prepared and made a part of the record, and that
an opportunity for rebuttal is allowed. Upon receipt of a
communication made in violation of this subsection, the arbitrator
may, to the extent consistent with the interests of justice and the
policies underlying this subchapter, require the offending party to
show cause why the claim of such party should not be resolved
against such party as a result of the improper conduct.
(e) The arbitrator shall make the award within 30 days after the
close of the hearing, or the date of the filing of any briefs
authorized by the arbitrator, whichever date is later, unless -
(1) the parties agree to some other time limit; or
(2) the agency provides by rule for some other time limit.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2742,
Sec. 589; renumbered Sec. 579, Pub. L. 102-354, Sec. 3(b)(2), Aug.
26, 1992, 106 Stat. 944.)
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 589 of this title as
this section.
-CITE-
5 USC Sec. 580 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 580. Arbitration awards
-STATUTE-
(a)(1) Unless the agency provides otherwise by rule, the award in
an arbitration proceeding under this subchapter shall include a
brief, informal discussion of the factual and legal basis for the
award, but formal findings of fact or conclusions of law shall not
be required.
(2) The prevailing parties shall file the award with all relevant
agencies, along with proof of service on all parties.
(b) The award in an arbitration proceeding shall become final 30
days after it is served on all parties. Any agency that is a party
to the proceeding may extend this 30-day period for an additional
30-day period by serving a notice of such extension on all other
parties before the end of the first 30-day period.
(c) A final award is binding on the parties to the arbitration
proceeding, and may be enforced pursuant to sections 9 through 13
of title 9. No action brought to enforce such an award shall be
dismissed nor shall relief therein be denied on the grounds that it
is against the United States or that the United States is an
indispensable party.
(d) An award entered under this subchapter in an arbitration
proceeding may not serve as an estoppel in any other proceeding for
any issue that was resolved in the proceeding. Such an award also
may not be used as precedent or otherwise be considered in any
factually unrelated proceeding, whether conducted under this
subchapter, by an agency, or in a court, or in any other
arbitration proceeding.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2743,
Sec. 590; renumbered Sec. 580 and amended Pub. L. 102-354, Sec.
3(b)(2), 5(b)(3), Aug. 26, 1992, 106 Stat. 944, 946; Pub. L.
104-320, Sec. 8(a), Oct. 19, 1996, 110 Stat. 3872.)
-MISC1-
AMENDMENTS
1996 - Subsec. (c). Pub. L. 104-320, Sec. 8(a), redesignated
subsec. (d) as (c) and struck out former subsec. (c) which read as
follows: ''The head of any agency that is a party to an arbitration
proceeding conducted under this subchapter is authorized to
terminate the arbitration proceeding or vacate any award issued
pursuant to the proceeding before the award becomes final by
serving on all other parties a written notice to that effect, in
which case the award shall be null and void. Notice shall be
provided to all parties to the arbitration proceeding of any
request by a party, nonparty participant or other person that the
agency head terminate the arbitration proceeding or vacate the
award. An employee or agent engaged in the performance of
investigative or prosecuting functions for an agency may not, in
that or a factually related case, advise in a decision under this
subsection to terminate an arbitration proceeding or to vacate an
arbitral award, except as witness or counsel in public
proceedings.''
Subsecs. (d), (e). Pub. L. 104-320, Sec. 8(a)(2), redesignated
subsec. (e) as (d). Former subsec. (d) redesignated (c).
Subsecs. (f), (g). Pub. L. 104-320, Sec. 8(a)(1), struck out
subsecs. (f) and (g) which read as follows:
''(f) An arbitral award that is vacated under subsection (c)
shall not be admissible in any proceeding relating to the issues in
controversy with respect to which the award was made.
''(g) If an agency head vacates an award under subsection (c), a
party to the arbitration (other than the United States) may within
30 days of such action petition the agency head for an award of
fees and other expenses (as defined in section 504(b)(1)(A) of this
title) incurred in connection with the arbitration proceeding. The
agency head shall award the petitioning party those fees and
expenses that would not have been incurred in the absence of such
arbitration proceeding, unless the agency head or his or her
designee finds that special circumstances make such an award
unjust. The procedures for reviewing applications for awards
shall, where appropriate, be consistent with those set forth in
subsection (a)(2) and (3) of section 504 of this title. Such fees
and expenses shall be paid from the funds of the agency that
vacated the award.''
1992 - Pub. L. 102-354, Sec. 3(b)(2), renumbered section 590 of
this title as this section.
Subsec. (g). Pub. L. 102-354, Sec. 5(b)(3), substituted ''fees
and other expenses'' for ''attorney fees and expenses''.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 9 section 10.
-CITE-
5 USC Sec. 581 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 581. Judicial Review (FOOTNOTE 1)
-STATUTE-
(FOOTNOTE 1) So in original. Probably should not be
capitalized.
(a) Notwithstanding any other provision of law, any person
adversely affected or aggrieved by an award made in an arbitration
proceeding conducted under this subchapter may bring an action for
review of such award only pursuant to the provisions of sections 9
through 13 of title 9.
(b) A decision by an agency to use or not to use a dispute
resolution proceeding under this subchapter shall be committed to
the discretion of the agency and shall not be subject to judicial
review, except that arbitration shall be subject to judicial review
under section 10(b) (FOOTNOTE 2) of title 9.
(FOOTNOTE 2) See References in Text note below.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2744,
Sec. 591; renumbered Sec. 581 and amended Pub. L. 102-354, Sec.
3(b)(2), (4), Aug. 26, 1992, 106 Stat. 944, 945; Pub. L. 104-320,
Sec. 8(b), Oct. 19, 1996, 110 Stat. 3872.)
-REFTEXT-
REFERENCES IN TEXT
Section 10(b) of title 9, referred to in subsec. (b), was
redesignated section 10(c) of title 9 by Pub. L. 107-169, Sec.
1(4), May 7, 2002, 116 Stat. 132.
-MISC2-
PRIOR PROVISIONS
A prior section 581 was renumbered section 571 of this title.
Another prior section 581 was renumbered section 561 of this
title.
AMENDMENTS
1996 - Subsec. (b). Pub. L. 104-320, which directed that section
581(d) of this title be amended by striking ''(1)'' after ''(b)''
and by striking par. (2), was executed to subsec. (b) of this
section to reflect the probable intent of Congress. Prior to
amendment, par. (2) read as follows: ''A decision by the head of an
agency under section 580 to terminate an arbitration proceeding or
vacate an arbitral award shall be committed to the discretion of
the agency and shall not be subject to judicial review.''
1992 - Pub. L. 102-354, Sec. 3(b)(2), renumbered section 591 of
this title as this section.
Subsec. (b)(2). Pub. L. 102-354, Sec. 3(b)(4), substituted
''section 580'' for ''section 590''.
-CITE-
5 USC Sec. 582 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
(Sec. 582. Repealed. Pub. L. 104-320, Sec. 4(b)(1), Oct. 19, 1996,
110 Stat. 3871)
-MISC1-
Section, added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104
Stat. 2744, Sec. 592; renumbered Sec. 582, Pub. L. 102-354, Sec.
3(b)(2), Aug. 26, 1992, 106 Stat. 944, related to compilation of
data on use of alternative means of dispute resolution in
conducting agency proceedings.
-CITE-
5 USC Sec. 583 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 583. Support services
-STATUTE-
For the purposes of this subchapter, an agency may use (with or
without reimbursement) the services and facilities of other Federal
agencies, State, local, and tribal governments, public and private
organizations and agencies, and individuals, with the consent of
such agencies, organizations, and individuals. An agency may
accept voluntary and uncompensated services for purposes of this
subchapter without regard to the provisions of section 1342 of
title 31.
-SOURCE-
(Added Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2745,
Sec. 593; renumbered Sec. 583, Pub. L. 102-354, Sec. 3(b)(2), Aug.
26, 1992, 106 Stat. 944; amended Pub. L. 104-320, Sec. 5, Oct. 19,
1996, 110 Stat. 3871.)
-MISC1-
PRIOR PROVISIONS
Prior sections 583 to 590 were renumbered sections 573 to 580 of
this title, respectively.
Other prior sections 583 to 590 were renumbered sections 563 to
570 of this title, respectively.
AMENDMENTS
1996 - Pub. L. 104-320 inserted ''State, local, and tribal
governments,'' after ''other Federal agencies,''.
1992 - Pub. L. 102-354 renumbered section 593 of this title as
this section.
-CITE-
5 USC Sec. 584 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
-HEAD-
Sec. 584. Authorization of appropriations
-STATUTE-
There are authorized to be appropriated such sums as may be
necessary to carry out the purposes of this subchapter.
-SOURCE-
(Added Pub. L. 104-320, Sec. 10(a), Oct. 19, 1996, 110 Stat. 3873.)
-CITE-
5 USC SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE
UNITED STATES 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
.
-HEAD-
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
-MISC1-
AMENDMENTS
1992 - Pub. L. 102-354, Sec. 2(1), Aug. 26, 1992, 106 Stat. 944,
redesignated subchapter III of this chapter as this subchapter.
-TRANS-
TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES
Pub. L. 104-52, title IV, Nov. 19, 1995, 109 Stat. 480, provided:
''For necessary expenses of the Administrative Conference of the
United States, established under subchapter V of chapter 5 of title
5, United States Code, $600,000: Provided, That these funds shall
only be available for the purposes of the prompt and orderly
termination of the Administrative Conference of the United States
by February 1, 1996.''
-CITE-
5 USC Sec. 591 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
-HEAD-
Sec. 591. Purpose
-STATUTE-
It is the purpose of this subchapter to provide suitable
arrangements through which Federal agencies, assisted by outside
experts, may cooperatively study mutual problems, exchange
information, and develop recommendations for action by proper
authorities to the end that private rights may be fully protected
and regulatory activities and other Federal responsibilities may be
carried out expeditiously in the public interest.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 388, Sec. 571; renumbered
Sec. 591, Pub. L. 102-354, Sec. 2(2), Aug. 26, 1992, 106 Stat.
944.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1045(e). Aug. 30, 1964, Pub.
L. 88-499, Sec.
2(e), 78 Stat. 615.
-------------------------------
The words ''this subchapter'' are substituted for ''this Act'' to
reflect the codification of the Administrative Conference Act in
this subchapter.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
PRIOR PROVISIONS
A prior section 591 was renumbered section 581 of this title.
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 571 of this title as
this section.
-CITE-
5 USC Sec. 592 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
-HEAD-
Sec. 592. Definitions
-STATUTE-
For the purpose of this subchapter -
(1) ''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, except that it does not include a military or foreign
affairs function of the United States;
(2) ''administrative agency'' means an authority as defined by
section 551(1) of this title; and
(3) ''administrative procedure'' means procedure used in
carrying out an administrative program and is to be broadly
construed to include any aspect of agency organization,
procedure, or management which may affect the equitable
consideration of public and private interests, the fairness of
agency decisions, the speed of agency action, and the
relationship of operating methods to later judicial review, but
does not include the scope of agency responsibility as
established by law or matters of substantive policy committed by
law to agency discretion.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 388, Sec. 572; renumbered
Sec. 592, Pub. L. 102-354, Sec. 2(2), Aug. 26, 1992, 106 Stat.
944.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1045a. Aug. 30, 1964, Pub.
L. 88-499, Sec. 3,
78 Stat. 615.
-------------------------------
In paragraph (1), the words ''subchapter II of this chapter'' are
substituted for ''the Administrative Procedure Act (5 U.S.C.
1001-1011)'' to reflect the codification of the Act in this title.
The word ''naval'' is omitted as included in ''military''.
In paragraph (2), the words ''section 551(1) of this title'' are
substituted for ''section 2(a) of the Administrative Procedure Act
(5 U.S.C. 1001(a))''.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
PRIOR PROVISIONS
A prior section 592 was renumbered section 582 of this title and
was subsequently repealed.
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 572 of this title as
this section.
-CITE-
5 USC Sec. 593 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
-HEAD-
Sec. 593. Administrative Conference of the United States
-STATUTE-
(a) The Administrative Conference of the United States consists
of not more than 101 nor less than 75 members appointed as set
forth in subsection (b) of this section.
(b) The Conference is composed of -
(1) a full-time Chairman appointed for a 5-year term by the
President, by and with the advice and consent of the Senate. The
Chairman is entitled to pay at the highest rate established by
statute for the chairman of an independent regulatory board or
commission, and may continue to serve until his successor is
appointed and has qualified;
(2) the chairman of each independent regulatory board or
commission or an individual designated by the board or
commission;
(3) the head of each Executive department or other
administrative agency which is designated by the President, or an
individual designated by the head of the department or agency;
(4) when authorized by the Council referred to in section
595(b) of this title, one or more appointees from a board,
commission, department, or agency referred to in this subsection,
designated by the head thereof with, in the case of a board or
commission, the approval of the board or commission;
(5) individuals appointed by the President to membership on the
Council who are not otherwise members of the Conference; and
(6) not more than 40 other members appointed by the Chairman,
with the approval of the Council, for terms of 2 years, except
that the number of members appointed by the Chairman may at no
time be less than one-third nor more than two-fifths of the total
number of members. The Chairman shall select the members in a
manner which will provide broad representation of the views of
private citizens and utilize diverse experience. The members
shall be members of the practicing bar, scholars in the field of
administrative law or government, or others specially informed by
knowledge and experience with respect to Federal administrative
procedure.
(c) Members of the Conference, except the Chairman, are not
entitled to pay for service. Members appointed from outside the
Federal Government are entitled to travel expenses, including per
diem instead of subsistence, as authorized by section 5703 of this
title for individuals serving without pay.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 389, Sec. 573; Pub. L.
99-470, Sec. 1, Oct. 14, 1986, 100 Stat. 1198; renumbered Sec. 593
and amended Pub. L. 102-354, Sec. 2(2), (3), Aug. 26, 1992, 106
Stat. 944.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1045b. Aug. 30, 1964, Pub.
L. 88-499, Sec. 4,
78 Stat. 616.
-------------------------------
In subsection (a), the words ''There is hereby established'' are
omitted as executed. The words ''hereinafter referred to as the
'Conference' '' are omitted as unnecessary as the title
''Administrative Conference of the United States'' is fully set out
the first time it is used in each section of this chapter.
In subsection (b)(4), the words ''referred to in section 575(b)
of this title'' are inserted for clarity.
In subsection (c), the words ''by section 5703 of this title''
are substituted for ''by law (5 U.S.C. 73b-2)'' to reflect the
codification of that section in title 5.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
PRIOR PROVISIONS
A prior section 593 was renumbered section 583 of this title.
AMENDMENTS
1992 - Pub. L. 102-354, Sec. 2(2), renumbered section 573 of this
title as this section.
Subsec. (b)(4). Pub. L. 102-354, Sec. 2(3), substituted ''section
595(b)'' for ''section 575(b)''.
1986 - Subsec. (a). Pub. L. 99-470, Sec. 1(a)(1), substituted
''101'' for ''91''.
Subsec. (b)(6). Pub. L. 99-470, Sec. 1(a)(2), substituted ''40''
for ''36''.
-TRANS-
TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES
For termination of Administrative Conference of United States,
see note set out preceding section 591 of this title.
-MISC5-
DEVELOPMENT OF ADMINISTRATIVE CONFERENCE
The Administrative Conference of the United States, established
as a permanent body by the Administrative Conference Act, Pub. L.
88-499, Aug. 30, 1964, 78 Stat. 615, was preceded by two temporary
Conferences. The first was called by President Eisenhower in 1953
and adopted a final report which was transmitted to the President
who acknowledged receipt of it on March 3, 1955. The second was
established by President Kennedy by Executive Order No. 10934, Apr.
14, 1961, 26 F.R. 3233, which, by its terms, called for a final
report to the President by December 31, 1962. The final report
recommended a continuing Conference consisting of both government
personnel and outside experts.
-CITE-
5 USC Sec. 594 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
-HEAD-
Sec. 594. Powers and duties of the Conference
-STATUTE-
To carry out the purpose of this subchapter, the Administrative
Conference of the United States may -
(1) study the efficiency, adequacy, and fairness of the
administrative procedure used by administrative agencies in
carrying out administrative programs, and make recommendations to
administrative agencies, collectively or individually, and to the
President, Congress, or the Judicial Conference of the United
States, in connection therewith, as it considers appropriate;
(2) arrange for interchange among administrative agencies of
information potentially useful in improving administrative
procedure;
(3) collect information and statistics from administrative
agencies and publish such reports as it considers useful for
evaluating and improving administrative procedure;
(4) enter into arrangements with any administrative agency or
major organizational unit within an administrative agency
pursuant to which the Conference performs any of the functions
described in this section; and
(5) provide assistance in response to requests relating to the
improvement of administrative procedure in foreign countries,
subject to the concurrence of the Secretary of State, the
Administrator of the Agency for International Development, or the
Director of the United States Information Agency, as appropriate,
except that -
(A) such assistance shall be limited to the analysis of
issues relating to administrative procedure, the provision of
training of foreign officials in administrative procedure, and
the design or improvement of administrative procedure, where
the expertise of members of the Conference is indicated; and
(B) such assistance may only be undertaken on a fully
reimbursable basis, including all direct and indirect
administrative costs.
Payment for services provided by the Conference pursuant to
paragraph (4) shall be credited to the operating account for the
Conference and shall remain available until expended.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 390, Sec. 574; Pub. L.
101-422, Sec. 2, Oct. 12, 1990, 104 Stat. 910; renumbered Sec. 594,
Pub. L. 102-354, Sec. 2(2), Aug. 26, 1992, 106 Stat. 944; Pub. L.
102-403, Oct. 9, 1992, 106 Stat. 1968.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1045c. Aug. 30, 1964, Pub.
L. 88-499, Sec. 5,
78 Stat. 616.
-------------------------------
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 574 of this title as
this section.
Par. (4). Pub. L. 102-403 amended par. (4) generally. Prior to
amendment, par. (4) read as follows: ''enter into arrangements with
any administrative agency or major organizational unit within an
administrative agency pursuant to which the Conference performs any
of the functions described in paragraphs (1), (2), and (3).''
Par. (5). Pub. L. 102-403 which directed addition of par. (5) at
end of section, was executed by adding par. (5) after par. (4) and
before concluding provisions, to reflect the probable intent of
Congress.
1990 - Pub. L. 101-422 added par. (4) and concluding provisions.
-TRANS-
TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES
For termination of Administrative Conference of United States,
see note set out preceding section 591 of this title.
TRANSFER OF FUNCTIONS
United States Information Agency (other than Broadcasting Board
of Governors and International Broadcasting Bureau) abolished and
functions transferred to Secretary of State, see sections 6531 and
6532 of Title 22, Foreign Relations and Intercourse.
-CITE-
5 USC Sec. 595 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
-HEAD-
Sec. 595. Organization of the Conference
-STATUTE-
(a) The membership of the Administrative Conference of the United
States meeting in plenary session constitutes the Assembly of the
Conference. The Assembly has ultimate authority over all activities
of the Conference. Specifically, it has the power to -
(1) adopt such recommendations as it considers appropriate for
improving administrative procedure. A member who disagrees with
a recommendation adopted by the Assembly is entitled to enter a
dissenting opinion and an alternate proposal in the record of the
Conference proceedings, and the opinion and proposal so entered
shall accompany the Conference recommendation in a publication or
distribution thereof; and
(2) adopt bylaws and regulations not inconsistent with this
subchapter for carrying out the functions of the Conference,
including the creation of such committees as it considers
necessary for the conduct of studies and the development of
recommendations for consideration by the Assembly.
(b) The Conference includes a Council composed of the Chairman of
the Conference, who is Chairman of the Council, and 10 other
members appointed by the President, of whom not more than one-half
shall be employees of Federal regulatory agencies or Executive
departments. The President may designate a member of the Council
as Vice Chairman. During the absence or incapacity of the Chairman,
or when that office is vacant, the Vice Chairman shall serve as
Chairman. The term of each member, except the Chairman, is 3
years. When the term of a member ends, he may continue to serve
until a successor is appointed. However, the service of any member
ends when a change in his employment status would make him
ineligible for Council membership under the conditions of his
original appointment. The Council has the power to -
(1) determine the time and place of plenary sessions of the
Conference and the agenda for the sessions. The Council shall
call at least one plenary session each year;
(2) propose bylaws and regulations, including rules of
procedure and committee organization, for adoption by the
Assembly;
(3) make recommendations to the Conference or its committees on
a subject germane to the purpose of the Conference;
(4) receive and consider reports and recommendations of
committees of the Conference and send them to members of the
Conference with the views and recommendations of the Council;
(5) designate a member of the Council to preside at meetings of
the Council in the absence or incapacity of the Chairman and Vice
Chairman;
(6) designate such additional officers of the Conference as it
considers desirable;
(7) approve or revise the budgetary proposals of the Chairman;
and
(8) exercise such other powers as may be delegated to it by the
Assembly.
(c) The Chairman is the chief executive of the Conference. In
that capacity he has the power to -
(1) make inquiries into matters he considers important for
Conference consideration, including matters proposed by
individuals inside or outside the Federal Government;
(2) be the official spokesman for the Conference in relations
with the several branches and agencies of the Federal Government
and with interested organizations and individuals outside the
Government, including responsibility for encouraging Federal
agencies to carry out the recommendations of the Conference;
(3) request agency heads to provide information needed by the
Conference, which information shall be supplied to the extent
permitted by law;
(4) recommend to the Council appropriate subjects for action by
the Conference;
(5) appoint, with the approval of the Council, members of
committees authorized by the bylaws and regulations of the
Conference;
(6) prepare, for approval of the Council, estimates of the
budgetary requirements of the Conference;
(7) appoint and fix the pay of employees, define their duties
and responsibilities, and direct and supervise their activities;
(8) rent office space in the District of Columbia;
(9) provide necessary services for the Assembly, the Council,
and the committees of the Conference;
(10) organize and direct studies ordered by the Assembly or the
Council, to contract for the performance of such studies with any
public or private persons, firm, association, corporation, or
institution under title III of the Federal Property and
Administrative Services Act of 1949, as amended (41 U.S.C.
251-260), and to use from time to time, as appropriate, experts
and consultants who may be employed in accordance with section
3109 of this title at rates not in excess of the maximum rate of
pay for grade GS-15 as provided in section 5332 of this title;
(11) utilize, with their consent, the services and facilities
of Federal agencies and of State and private agencies and
instrumentalities with or without reimbursement;
(12) accept, hold, administer, and utilize gifts, devises, and
bequests of property, both real and personal, for the purpose of
aiding and facilitating the work of the Conference. Gifts and
bequests of money and proceeds from sales of other property
received as gifts, devises, or bequests shall be deposited in the
Treasury and shall be disbursed upon the order of the Chairman.
Property accepted pursuant to this section, and the proceeds
thereof, shall be used as nearly as possible in accordance with
the terms of the gifts, devises, or bequests. For purposes of
Federal income, estate, or gift taxes, property accepted under
this section shall be considered as a gift, devise, or bequest to
the United States;
(13) accept voluntary and uncompensated services,
notwithstanding the provisions of section 1342 of title 31;
(14) on request of the head of an agency, furnish assistance
and advice on matters of administrative procedure;
(15) exercise such additional authority as the Council or
Assembly delegates to him; and
(16) request any administrative agency to notify the Chairman
of its intent to enter into any contract with any person outside
the agency to study the efficiency, adequacy, or fairness of an
agency proceeding (as defined in section 551(12) of this title).
The Chairman shall preside at meetings of the Council and at each
plenary session of the Conference, to which he shall make a full
report concerning the affairs of the Conference since the last
preceding plenary session. The Chairman, on behalf of the
Conference, shall transmit to the President and Congress an annual
report and such interim reports as he considers desirable.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 390, Sec. 575; Pub. L.
92-526, Sec. 1, Oct. 21, 1972, 86 Stat. 1048; Pub. L. 97-258, Sec.
3(a)(1), Sept. 13, 1982, 96 Stat. 1062; Pub. L. 101-422, Sec. 3,
Oct. 12, 1990, 104 Stat. 910; renumbered Sec. 595, Pub. L. 102-354,
Sec. 2(2), Aug. 26, 1992, 106 Stat. 944.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1045d. Aug. 30, 1964, Pub.
L. 88-499, Sec. 6,
78 Stat. 617.
-------------------------------
In subsection (b), the words ''except that the Council members
initially appointed shall serve for one, two, or three years, as
designated by the President'' are omitted as executed, existing
rights being preserved by technical section 8.
In subsection (b)(1), the words ''the sessions'' are substituted
for ''such meetings'' for clarity as elsewhere the word
''sessions'' refers to sessions of the Conference and ''meetings''
refers to meetings of the Council.
In subsection (c)(7), the words ''subject to the civil service
and classification laws'' are omitted as unnecessary inasmuch as
appointments in the executive branch are made subject to the civil
service laws and pay is fixed under classification laws unless
specifically excepted. The words ''and fix the pay of'' are added
for clarity.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
-REFTEXT-
REFERENCES IN TEXT
The Federal Property and Administrative Services Act of 1949,
referred to in subsec. (c)(10), is act June 30, 1949, ch. 288, 63
Stat. 377, as amended. Title III of the Act is classified
generally to subchapter IV (Sec. 251 et seq.) of chapter 4 of Title
41, Public Contracts. For complete classification of this Act to
the Code, see Tables.
-MISC2-
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 575 of this title as
this section.
1990 - Subsec. (c)(16). Pub. L. 101-422 added par. (16).
1982 - Subsec. (c)(13). Pub. L. 97-258 substituted ''section 1342
of title 31'' for ''section 3679(b) of the Revised Statutes (31
U.S.C. 665(b))''.
1972 - Subsec. (c)(10). Pub. L. 92-526, Sec. 1(a), inserted
provisions authorizing contracts for the performance of such
studies with any public or private persons, etc., under title III
of the Federal Property and Administrative Services Act of 1949, as
amended, and substituted provisions authorizing the payment of
experts and consultants in accordance with rates not in excess of
the maximum rate of pay for grade GS-15 as provided in section 5332
of this title, for provisions authorizing the payment of such
individuals at rates not in excess of $100 a day.
Subsec. (c)(11) to (15). Pub. L. 92-526, Sec. 1(b), added pars.
(11) to (13) and redesignated former pars. (11) and (12) as (14)
and (15), respectively.
-TRANS-
TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES
For termination of Administrative Conference of United States,
see note set out preceding section 591 of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 593 of this title.
-CITE-
5 USC Sec. 596 01/06/03
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
-HEAD-
Sec. 596. Authorization of appropriations
-STATUTE-
There are authorized to be appropriated to carry out the purposes
of this subchapter not more than $2,000,000 for fiscal year 1990,
$2,100,000 for fiscal year 1991, $2,200,000 for fiscal year 1992,
$2,300,000 for fiscal year 1993, and $2,400,000 for fiscal year
1994. Of any amounts appropriated under this section, not more than
$1,500 may be made available in each fiscal year for official
representation and entertainment expenses for foreign dignitaries.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 391, Sec. 576; Pub. L.
91-164, Dec. 24, 1969, 83 Stat. 446; Pub. L. 92-526, Sec. 2, Oct.
21, 1972, 86 Stat. 1048; Pub. L. 95-293, Sec. 1(a), June 13, 1978,
92 Stat. 317; Pub. L. 97-330, Oct. 15, 1982, 96 Stat. 1618; Pub. L.
99-470, Sec. 2(a), Oct. 14, 1986, 100 Stat. 1198; Pub. L. 101-422,
Sec. 1, Oct. 12, 1990, 104 Stat. 910; renumbered Sec. 596, Pub. L.
102-354, Sec. 2(2), Aug. 26, 1992, 106 Stat. 944.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1045e. Aug. 30, 1964, Pub.
L. 88-499, Sec. 7,
78 Stat. 618.
-------------------------------
The word ''hereby'' is omitted as unnecessary.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
AMENDMENTS
1992 - Pub. L. 102-354 renumbered section 576 of this title as
this section.
1990 - Pub. L. 101-422 amended section generally. Prior to
amendment, section read as follows: ''There are authorized to be
appropriated to carry out the purposes of this subchapter not more
than $1,600,000 for fiscal year 1986 and not more than $2,000,000
for each fiscal year thereafter up to and including fiscal year
1990. Of any amounts appropriated under this section, not more than
$1,000 may be made available in each fiscal year for official
reception and entertainment expenses for foreign dignitaries.''
1986 - Pub. L. 99-470 substituted ''Authorization of
appropriations'' for ''Appropriations'' in section catchline and
amended text generally. Prior to amendment, text read as follows:
''There are authorized to be appropriated to carry out the purposes
of this subchapter sums not to exceed $2,300,000 for the fiscal
year ending September 30, 1982, and not to exceed $2,300,000 for
each fiscal year thereafter up to and including the fiscal year
ending September 30, 1986.''
1982 - Pub. L. 97-330 substituted provisions authorizing
appropriations of not to exceed $2,300,000 for fiscal year ending
Sept. 30, 1982, and not to exceed $2,300,000 for each fiscal year
thereafter up to and including fiscal year ending Sept. 30, 1986,
for provisions that had authorized appropriations of not to exceed
$1,700,000 for fiscal year ending Sept. 30, 1979, $2,000,000 for
fiscal year ending Sept. 30, 1980, $2,300,000 for fiscal year
ending Sept. 30, 1981, and $2,300,000 for fiscal year ending Sept.
30, 1982.
1978 - Pub. L. 95-293 substituted provisions authorizing
appropriations for fiscal years ending Sept. 30, 1979, Sept. 30,
1980, Sept. 30, 1981, and Sept. 30, 1982, of $1,700,000,
$2,000,000, $2,300,000, and $2,300,000, respectively, for
provisions authorizing appropriations for fiscal years ending June
30, 1974, June 30, 1975, June 30, 1976, June 30, 1977, and June 30,
1978, of $760,000, $805,000, $850,000, $900,000, and $950,000,
respectively, and provisions authorizing for each fiscal year
thereafter such sums as may be necessary.
1972 - Pub. L. 92-526 substituted provisions authorizing to be
appropriated necessary sums not in excess of $760,000 for fiscal
year ending June 30, 1974, $805,000 for fiscal year ending June 30,
1975, $850,000 for fiscal year ending June 30, 1976, $900,000 for
fiscal year ending June 30, 1977, and $950,000 for fiscal year
ending June 30, 1978, and each fiscal year thereafter, for
provisions authorizing to be appropriated necessary sums, not in
excess of $450,000 per annum.
1969 - Pub. L. 91-164 substituted ''$450,000 per annum'' for
''$250,000''.
EFFECTIVE DATE OF 1978 AMENDMENT
Section 1(b) of Pub. L. 95-293 provided that: ''The amendment
made by subsection (a) (amending this section) shall take effect
October 1, 1977.''
-CITE-
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| Idioma: | inglés |
| País: | Estados Unidos |
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