5 U.S.C. § 556 — Hearings; presiding employees; powers and

Page 149 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 556 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 ‘‘hear- ing’’ 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 sec- tion 2105. The prohibition in the third and fourth sen- tences is restated in positive form. In paragraph (C) of the last sentence, the words ‘‘in any manner’’ are omit- ted as surplusage. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes CODIFICATION Section 554 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2246 of Title 7, Agriculture. AMENDMENTS 1978—Subsec. (a)(2). Pub. L. 95–251 substituted ‘‘ad- ministrative law judge’’ for ‘‘hearing examiner’’. § 555. Ancillary matters (a) This section applies, according to the pro- visions thereof, except as otherwise provided by this subchapter. (b) A person compelled to appear in person be- fore an agency or representative thereof is enti- tled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is enti- tled 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 pub- lic business permits, an interested person may appear before an agency or its responsible em- ployees for the presentation, adjustment, or de- termination of an issue, request, or controversy in a proceeding, whether interlocutory, sum- mary, or otherwise, or in connection with an agency function. With due regard for the con- venience 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 agen- cy or in an agency proceeding. (c) Process, requirement of a report, inspec- tion, or other investigative act or demand may not be issued, made, or enforced except as au- thorized by law. A person compelled to submit data or evidence is entitled to retain or, on pay- ment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a non- public investigatory proceeding the witness may for good cause be limited to inspection of the of- ficial 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 sus- tain 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 appear- ance of the witness or the production of the evi- dence 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, pe- tition, 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 ac- companied by a brief statement of the grounds for denial. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 385.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 1005. June 11, 1946, ch. 324, § 6, 60 Stat. 240. In subsection (b), the words ‘‘is entitled’’ are sub- stituted 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 ‘‘Noth- ing 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 defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes CODIFICATION Section 555 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2247 of Title 7, Agriculture. § 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision (a) This section applies, according to the pro- visions thereof, to hearings required by section 553 or 554 of this title to be conducted in accord- ance with this section. (b) There shall preside at the taking of evi- dence— (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 Page 150 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 556 part, by or before boards or other employees spe- cially provided for by or designated under stat- ute. The functions of presiding employees and of employees participating in decisions in accord- ance with section 557 of this title shall be con- ducted in an impartial manner. A presiding or participating employee may at any time dis- qualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or par- ticipating 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 rel- evant 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 meth- ods; (8) require the attendance at any conference held pursuant to paragraph (6) of at least one representative of each party who has author- ity to negotiate concerning resolution of issues in controversy; (9) dispose of procedural requests or similar matters; (10) make or recommend decisions in accord- ance 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, im- material, 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 re- liable, probative, and substantial evidence. The agency may, to the extent consistent with the interests of justice and the policy of the under- lying statutes administered by the agency, con- sider a violation of section 557(d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed such viola- tion or knowingly caused such violation to occur. A party is entitled to present his case or defense by oral or documentary evidence, to sub- mit 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 re- quest, to an opportunity to show the contrary. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 386; Pub. L. 94–409, § 4(c), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 101–552, § 4(a), Nov. 15, 1990, 104 Stat. 2737.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 1006. June 11, 1946, ch. 324, § 7, 60 Stat. 241. In subsection (b), the words ‘‘hearing examiners’’ are substituted for ‘‘examiners’’ in paragraph (3) for clar- ity. 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 ‘‘em- ployees’’ 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 defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1990—Subsec. (c)(6). Pub. L. 101–552, § 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, § 4(a)(2), added 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 ‘‘ad- ministrative 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. Statutory Notes and Related Subsidiaries 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. Executive Documents HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF AGRICULTURE Functions vested by this subchapter in hearing exam- iners employed by Department of Agriculture not in- cluded in functions of officers, agencies, and employees of that Department transferred to Secretary of Agri- culture by 1953 Reorg. Plan No. 2, § 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 exam- iners employed by Department of Commerce not in- Page 151 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 557 cluded in functions of officers, agencies, and employees of that Department transferred to Secretary of Com- merce by 1950 Reorg. Plan No. 5, § 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 exam- iners employed by Department of the Interior not in- cluded in functions of officers, agencies, and employees of that Department transferred to Secretary of the In- terior by 1950 Reorg. Plan No. 3, § 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 exam- iners 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, § 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 exam- iners 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, § 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 exam- iners employed by Department of the Treasury not in- cluded in functions of officers, agencies, and employees of that Department transferred to Secretary of the Treasury by 1950 Reorg. Plan. No. 26, § 1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to this title. § 557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record (a) This section applies, according to the pro- visions 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 re- ception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title, an employee qualified to preside at hear- ings pursuant to section 556 of this title, shall initially decide the case unless the agency re- quires, 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 pro- ceedings 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, ex- cept that in rule making or determining applica- tions for initial licenses— (1) instead thereof the agency may issue a tentative decision or one of its responsible em- ployees 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 im- peratively 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 sub- mit for the consideration of the employees par- ticipating in the decisions— (1) proposed findings and conclusions; or (2) exceptions to the decisions or rec- ommended 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 find- ing, conclusion, or exception presented. All deci- sions, including initial, recommended, and ten- tative 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, re- lief, or denial thereof. (d)(1) In any agency proceeding which is sub- ject 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 agen- cy, administrative law judge, or other em- ployee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication rel- evant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other em- ployee 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 em- ployee 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 communica- tion 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 know- ingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other em-