ADMINISTRATIVE PROCEDURE ACT

[PUBLIC

LAW

404—79TH

CONGRESS]

[CHAPTER

324—2D

SESSION]

[S. 7]

AN ACT To improve the administration of justice by prescribing fair

administrative procedure

Be it enacted by the Senate and House of Representatives of the

United

States of America in

Congress

assembled,

TITLE

SECTION

1. This Act may be cited as the "Administrative Procedure

Act".

DEFINITIONS

SEC.

2. As used in this Act—

(a)

AGENCY.—"Agency"

means each authority (whether or not

within or subject to review by another agency) or the Government of

the United States other than Congress, the courts, or the governments

of the possessions, Territories, or the District of Columbia. Nothing

in this Act shall be construed to repeal delegations of authority as

provided by law. Except as to the requirements of section 3, there

shall be excluded from the operation of this Act (1) agencies com-

posed of representatives of the parties or of representatives of organ-

izations of the parties to the disputes determined by them, (2) courts

martial and military commissions, (3) military or naval authority

exercised in the field in time of war or in occupied territory, or (4)

functions which by law expire on the termination of present hos-

tilities, within any fixed period thereafter, or before July

1,1947,

and

the functions conferred by the following statutes: Selective Training

and Service Act of 1940; Contract Settlement Act of 1944; Surplus

Property Act of 1944.

(b)

PERSON

AND

PARTY.—"Person"

includes individuals, partner-

ships,

corporations, associations, or public or private organizations

of any character other than agencies. "Party" includes any person

or agency named or admitted as a party, or properly seeking and

entitled as of right to be admitted as a party, in any agency proceed-

ing; but nothing herein shall be construed to prevent an agency

from admitting any person or agency as a party for limited purposes.

(c)

RULE

AND

RULE

MAKING.—"Rule"

means the whole or any

part of any agency statement of general or particular applicability

ADMINISTRATIVE PROCEDURE

and future effect designed to implement, interpret, or prescribe law or

policy or to describe the organization, procedure, or practice require-

ments of any agency and includes the approval or prescription for the

future of rates, wages, corporate or financial structures or reorganiza-

tions

thereof,

prices,

facilities, appliances, services or allowances there-

for or of valuations, costs, or accounting, or practices bearing upon

any of the foregoing. "Rule making" means agency process for the

formulation, amendment, or repeal of a rule.

(d) ORDER AND

ADJUDICATION.—"Order"

means the whole, or any

part of the final disposition (whether affirmative, negative, injunctive,

or declaratory in form) of any agency in any matter other than

rule making out including licensing. "Adjudication" means agency

process for the formulation of an order.

(e) LICENSE AND LICENSING.—"License" includes the whole or part

of any agency permit, certificate, approval, registration, charter, mem-

bership, statutory exemption or other form of permission. "Licens-

ing" includes agency process respecting the grant, renewal, denial,

revocation, suspension, annulment, withdrawal, limitation amendment,

modification, or conditioning of a license.

(f) SANCTION AND

RELIEF.—"Sanction"

includes the whole or part

of any agency (1) prohibition, requirement, limitation, or other con-

dition affecting the freedom of any person; (2) withholding of

relief;

(3) imposition of any form of penalty or fine; (4) destruction,

taking, seizure, or withholding of property; (5) assessment of dam-

ages,

reimbursement, restitution, compensation, costs, charges, or fees;

(6) requirement, revocation, or suspension of a license; or (7) taking

of other compulsory or restrictive action.

"Relief"

includes the whole

or part of any agency (1) grant of

money,

assistance,

license,

authority,

exemption, exception, privilege, or remedy; (2) recognition of any

claim, right, immunity, privilege, exemption, or exception; or (3)

taking of any other action upon the application or petition of, and

beneficial to, any person.

(g) AGENCY

PROCEEDING

AND ACTION.—"Agency proceeding" means

any agency process as defined in subsections (c), (d), and (e) of this

section. "Agency action" includes the whole or part of every agency

rule,

order, license, sanction,

relief,

or the equivalent or denial

thereof,

or failure to act.

PUBLIC INFORMATION

SEC.

3. Except to the extent that there is involved (1) any function

of the United States requiring secrecy in the public interest or (2) any

matter relating solely to the internal management of any agency—

(a) RULES.—Every agency shall separately state and currently

publish in the Federal Register (1) descriptions of its central and

field

organization including delegations by the agency of final author-

ity and the established places at which, and methods whereby, the

public may secure information or make submittals or requests; (2)

statements of the general course and method by which, its functions

are channeled and determined, including the nature and requirements

of all formal or informal procedures available as well as forms and

instructions as to the scope and contents of all papers, reports, or

examinations; and (3) substantive rules adopted as authorized by

law and statements or general policy or interpretations formulated

ADMINISTRATIVE

PROCEDURE 3

and adopted by the agency for the guidance of the public, but not

rules addressed to and served upon named persons in accordance

with law. No person shall in any manner be required to resort to

organization or procedure not so published.

(b) OPINIONS AND ORDERS.—Every agency shall publish or, in

accordance with published rule, make available to public inspection

all final opinions or orders in the adjudication of cases (except those

required for good cause to be held confidential and not cited as

precedents) and all rules.

ters of official record shall in accordance with published rule be made

available to persons properly and directly concerned except informa-

tion held confidential for good cause found.

RULE MAKING

SEC.

Except to the extent that there is involved (1) any military,

naval, or foreign affairs function of the United States or (2) any

matter relating to agency management or personnel or to public

property, loans, grants, benefits, or contracts—

(a)

NOTICE.—General

notice of proposed rule making shall be pub-

lished in the Federal Register (unless all persons subject thereto are

named and either personally served or otherwise have actual notice

thereof in accordance with law) and shall include (1) a statement of

the time, place, and nature of public rule making proceedings; (2)

reference to the authority under which the rule is proposed; and (8)

either the terms or substance of the proposed rule or a description of

the subjects and issues involved. Except where notice or hearing is

required by statute, this subsection shall not apply to interpretative

rules,

general statements of policy, rules of agency organization, pro-

cedure, or practice, or in any situation in which the agency for good

cause finds (and incorporates the finding and a brief statement of

the reasons therefor in the rules issued) that notice and public pro-

cedure thereon are impracticable, unnecessary, or contrary to the

public interest.

(b)

PROCEDURES.—After

notice required by this section, the agency

shall afford interested persons an opportunity to participate in the

rule making through submission of written data, views, or arguments

with or without opportunity to present the same orally in any man-

ner; and, after consideration of all relevant matter presented, the

agency shall incorporate in any rules adopted a concise general state-

ment of their basis and purpose. Where rules are required by statute

to be made on the record after opportunity for an agency hearing, the

requirements of sections 7 and 8 shall apply in place of the provisions

of this subsection.

(c)

EFFECTIVE

DATES.—The required publication or service of any

substantive rule (other than one granting or recognizing exemption

or relieving restriction or interpretative rules and statements of pol-

icy) shall be made not less than thirty days prior to the effective date

thereof except as otherwise provided by the agency upon good cause

found and published with the rule.

(d)

PETITIONS.—Every

agency shall accord any interested person

the right to petition for the issuance, amendment, or repeal of a rule.

ADMINISTRATIVE PROCEDURE

ADJUDICATION

SEC.

5. In every case of adjudication required by statute to be deter-

mined on the record after opportunity for an agency hearing, except

to the extent that there is involved (1) any matter subject to a subse-

quent trial of the law and the facts de novo in any court; (2) the

selection or tenure of an officer or employee of the United States other

than examiners appointed pursuant to section 11; (3) proceedings in

which decisions rest solely on inspections, tests, or elections; (4) the

conduct of military, naval, or foreign affairs functions; (5) cases in

which an agency is acting as an agent for a court; and (6) the certifi-

cation of employee representatives—

(a)

NOTICE.—Persons

entitled to notice of an agency hearing shall

be timely informed of (1) the time, place, and nature

thereof;

(2) the

legal authority and jurisdiction under which the hearing is to be held;

and (3) the matters of fact and law asserted. In instances in which

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 times and places for hearings, due regard shall be had for

the convenience and necessity of the parties or their representatives.

(b)

PROCEDURE.—The

agency shall afford all interested parties

opportunity for (1) the submission and consideration of facts, argu-

ments, offers of settlement, or proposals of adjustment where time,

the nature of the proceeding, and the public interest permit, and (2)

to the extent that the parties are unable so to determine any contro-

versy by consent, hearing, and decision upon notice and in conformity

with sections 7 and 8.

FUNCTIONS.—The

same officers who preside at

the reception of evidence pursuant to section 7 shall make the recom-

mended decision or initial decision required by section 8 except

where such officers become unavailable to the agency. Save to the

extent required for the disposition of ex parte matters as authorized

by law, no such officer shall consult any person or party on any fact

in issue unless upon notice and opportunity for all parties to partici-

pate;

nor shall such officer be responsible to or subject to the super-

vision or direction of any officer, employee, or agent engaged in the

performance of investigative or prosecuting functions for any agency.

No officer, employee, or agent engaged in the performance of investi-

gative or prosecuting functions for any agency in any case shall, in

that or a factually related case, participate or advise in the decision,

recommended decision, or agency review pursuant to section 8 except

as witness or counsel in public proceedings. This subsection shall

not apply in determining applications for initial licenses or to pro-

ceedings involving the validity or application of rates, facilities, or

practices of public utilities or carriers; nor shall it be applicable in

any manner to the agency or any member or members of the body

comprising the agency.

(d) DECLARATORY ORDERS.—The agency is authorized in its sound

discretion, with like effect as in the case of other orders, to issue

a declaratory order to terminate a controversy or remove uncertainty.

ADMINISTRATIVE

PROCEDURE

ANCILLARY

MATTERS

SEC.

6. Except as otherwise provided in this Act—

(a)

APPEARANCE.—Any

person compelled to appear in person

before any agency or representative thereof shall be accorded the

right to be accompanied, represented, and advised by counsel or, if

permitted by the agency, by other qualified representative. Every

party shall be accorded the right to appear in person or by or with

counsel or other duly qualified representative in any agency proceed-

ing. So far as the orderly conduct of public business permits, any

interested person may appear before any agency or its responsible

officers or employees for the presentation, adjustment, or determina-

tion of any issue, request, or controversy in any proceeding (inter-

locutory, summary, or otherwise) or in connection with any agency

function. Every agency shall proceed with reasonable dispatch to

conclude any matter presented to it except that due regard shall be

had for the convenience and necessity of the parties or their repre-

sentatives. Nothing herein shall be construed either to grant or to

deny to any person who is not a lawyer the right to appear for or

represent others before any agency or in any agency proceeding.

(b) INVESTIGATIONS.—No process, requirement of a report, inspec-

tion, or other investigative act or demand shall be issued, made, or

enforced in any manner or for any purpose except as authorized by

law. Every person compelled to submit data or evidence shall be

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.

(c)

SUBPENAS.—Agency

subpenas authorized by law shall be issued

to any party upon request and, as may be required by rules of pro-

cedure, upon a statement or showing of general relevance and reason-

able scope of the evidence, sought. Upon contest the court shall sustain

any such subpena or similar process or demand to the extent that it is

found to be in accordance with law and, in any proceeding for enforce-

ment, 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.

(d)

DENIALS.—Prompt

notice shall be given of the denial in whole

or in part of any written application, petition, or other request of any

interested person made in connection with any agency proceeding.

Except in affirming a prior denial or where the denial is self-explana-

tory, such notice shall be accompanied by a simple statement of

procedural or other grounds.

HEARINGS

SEC.

7. In hearings which section 4 or 5 requires to be conducted

pursuant to this section—

(a)

PRESIDING

OFFICERS.—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 examiners appointed as

provided in this Act; but nothing in this Act shall be deemed to

supersede the conduct of specified classes of proceedings in whole or

6 ADMINISTRATIVE PROCEDURE

part

by or

before boards

other officers specially provided

for by or

designated pursuant

statute.

The

functions

of all

presiding officers

and

officers participating

decisions

conformity with section

8 shall

conducted

in an

impartial manner.

Any

such officer

may at

any time withdraw

if he

deems himself disqualified;

and,

upon

the

filing in good faith

of a

timely

and

sufficient affidavit

personal bias

or disqualification

of any

such officer,

the

agency shall determine

the

matter

as a

part

of the

record

and

decision

in the

case.

(b)

HEARING

POWERS.—Officers

presiding

hearings shall have

authority, subject

to the

published rules

of the

agency

and

within

its

powers,

to (1)

administer oaths

and

affirmations,

(2)

issue subpenas

authorized

by law, (3)

rule upon offers

proof

and

receive relevant

evidence,

(4)

take

cause depositions

to be

taken whenever

the

ends

of justice would

served thereby,

(5)

regulate

the

course

of the

hear-

ing,

(6)

hold conferences

for the

settlement

simplification

of the

issues

consent

of the

parties,

(7)

dispose

procedural requests

or similar matters,

(8)

make decisions

recommend decisions

conformity with section

8, and (9)

take

any

other action authorized

by agency rule consistent with this

Act.

(c)

EVIDENCE.—Except

statutes otherwise provide,

the

propo-

nent

of a

rule

order shall have

the

burden

of proof. Any

oral

documentary evidence

may be

received,

but

every agency shall

as a

matter

policy provide

for the

exclusion

irrelevant, immaterial,

or unduly repetitious evidence

and no

sanction shall

imposed

rule

order

issued except upon consideration

of the

whole record

or such portions thereof

as may be

cited

by any

party

and as sup-

ported

by and in

accordance with

the

reliable, probative,

and sub-

stantial evidence. Every party shall have

the

right

present

his

case

defense

oral

documentary evidence,

submit rebuttal

evidence,

and to

conduct such cross-examination

as may be

required

for

full

and

true disclosure

of the

facts.

rule making

deter-

mining claims

for

money

benefits

applications

for

initial licenses

any agency

may,

where

the

interest

of any

party will

not be pre-

judiced thereby, adopt procedures

for the

submission

of all or

part

the

evidence

written form.

(d)

RECORD.—The

transcript

testimony

and

exhibits, together

with

all

papers

and

requests filed

in the

proceeding, shall constitute

the exclusive record

for

decision

accordance with section

8 and,

upon payment

lawfully prescribed costs, shall

made available

the parties. Where

any

agency decision rests

official notice

of a

material fact

not

appearing

in the

evidence

in the

record,

any

party

shall

timely request

afforded

opportunity

show

the con-

trary.

DECISIONS

SEC.

8. In

cases

which

hearing

required

to be

conducted

Conformity with section

7—

(a)

ACTION

SUBORDINATES.—In cases

which

the

agency

has

not presided

at the

reception

of the

evidence,

the

officer

who

presided

(or,

cases

not

subject

subsection

section

5, any

other officer

or officer's qualified

preside

hearings pursuant

section

shall

initially decide

the

case

or the

agency shall require

(in

specific cases

general rule)

the

entire record

to be

certified

to it for

initial

decision. Whenever such officers make

the

initial decision

and in

ADMINISTRATIVE

PROCEDURE 7

the absence of either an appeal to the agency or review upon motion

of the agency within time provided by rule, such decision shall without

further proceedings then become the decision of the agency. On

appeal from or review of the initial decisions of such officers the agency

shall, except as it may limit the issues upon notice or by rule, have

all the powers which it would have in making the initial decision.

Whenever the agency makes the initial decision without having pre-

sided at the reception of the evidence, such officers shall; first recom-

mend a decision except that in rule making or determining applications

for initial licenses (1) in lieu thereof the agency may issue a tentative

decision or any of its responsible officers may recommend a decision

or (2) any such procedure may be omitted in any case in which the

agency finds upon the record that due and timely execution of its

functions imperatively and unavoidably so requires.

(b)

SUBMITTALS

AND DECISIONS.—Prior to each recommended,

initial, or tentative decision, or decision upon agency review of the

decision of subordinate officers the parties shall be afforded a reason-

able opportunity to submit for the consideration of the officers partici-

pating in such decisions (1) proposed findings and conclusions, or

(2) exceptions to the decisions or recommended decisions of subordi-

nate officers or to tentative agency decisions, and (3) supporting

reasons for such exceptions or proposed findings or conclusions. The

record shall show the ruling upon each such finding, conclusion, or

exception presented. All decisions (including initial, recommended,

or tentative decisions) shall become a part of the record and include

a statement of (1) findings and conclusions, as well as the reasons

or basis therefor, upon all the material issues of fact, law, or discre-

tion presented on the record; and (2) the appropriate rule, order,

sanction,

relief,

or denial

thereof.

SANCTIONS

AND

POWERS

SEC.

9. In the exercise of any power or authority—

(a) I N

GENERAL.—No

sanction shall be imposed or substantive rule

or order be issued except within jurisdiction delegated to the agency

and as authorized by law.

(b)

LICENSES.—In

any case in which application is made for a

license required by law the agency, with due regard to the rights or

privileges of all the interested parties or adversely affected persons

and with reasonable dispatch, shall set and complete any proceedings

required to be conducted pursuant to sections 7 and 8 of this Act or

other proceedings required by law and shall make its decision. Ex-

cept in cases of willfulness or those in which public health, interest or

safety requires otherwise, no withdrawal, suspension, revocation, or

annulment of any license shall be lawful unless, prior to the institution

of agency proceedings therefor, facts or conduct which may warrant

such action shall have been called to the attention of the licensee by the

agency in writing and the licensee shall have been accorded oppor-

tunity to demonstrate or achieve compliance with all lawful require-

ments. In any case in which the licensee has, in accordance with

agency rules, made timely and sufficient application for a renewal or a

new license, no license with reference to any activity of a continuing

nature shall expire until such application shall have been finally de-

termined by the agency.

ADMINISTRATIVE PROCEDURE

JUDICIAL

REVIEW

SEC.

10. Except so far as (1) statutes preclude judicial review or

(2) agency action is by law committed to agency discretion—

(a) RIGHT OF REVIEW.—Any person suffering legal wrong because

of any agency action, or adversely affected or aggrieved by such

action within the meaning of any relevant statute, shall be entitled to

judicial review

thereof.

(b) FORM

AND

VENUE

ACTION.—The form of proceeding for judi-

cial review shall be any special statutory review proceeding relevant

to the subject matter in any court specified by statute or, in the

absence of inadequacy

thereof,

any applicable form of legal action

(including actions for declaratory judgments or writs of prohibitory

or mandatory injunction or habeas corpus) in any court of competent

jurisdiction. Agency action shall be subject to judicial review in

civil or criminal proceedings for judicial enforcement except to the

extent that prior, adequate, and exclusive opportunity for such review

is provided by law.

(c)

REVIEWABLE ACTS.—Every agency action made reviewable by

statute and every final agency action for which there is no other

adequate remedy in any court shall be subject to judicial review.

Any preliminary, procedural, or intermediate agency action or ruling

not directly reviewable shall be subject to review upon the review of

the final agency action. Except as otherwise expressly required by

statute, agency action otherwise final shall be final for the purposes

of this subsection whether or not there has been presented or deter-

mined any application for a declaratory order, for any form of recon-

sideration, or (unless the agency otherwise requires by rule and pro-

vides that the action meanwhile shall be inoperative) for an appeal

to superior agency authority.

(d)

INTERIM RELIEF.—Pending judicial review any agency is

authorized, where it finds that justice so requires, to postpone the

effective date of any action taken by it. Upon such conditions as

may be required and to the extent necessary to prevent irreparable

injury, every reviewing court (including every court to which a case

may be taken on appeal from or upon application for certiorari or

other writ to a reviewing court) is authorized to issue all necessary

and appropriate process to postpone the effective date of any agency

action or to preserve status or rights pending conclusion of the review

proceedings.

(e)

SCOPE OF REVIEW.—So far as necessary to decision and where

presented the reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions, and determine

the meaning or applicability of the terms of any agency action. It

shall (A) compel agency action unlawfully withheld or unreasonably

delayed; and (B) hold unlawful and set aside agency action, findings,

and conclusions found to be (1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) contrary to

constitutional right, power, privilege, or immunity; (3) in excess of

statutory jurisdiction, authority, or limitations, or short of statutory

right; (4) without observance of procedure required by law; (5)

unsupported by substantial evidence in any case subject to the require-

ments of sections 7 and 8 or otherwise reviewed on the record of an

agency hearing provided by statute; or (6) unwarranted by the facts

ADMINISTRATIVE PROCEDURE 9

to the extent that the facts are subject to trial de novo by the reviewing

court. In making the foregoing determinations the court shall review

the whole record or such portions thereof as may be cited by any party,

and due account shall be taken of the rule of prejudicial error.

EXAMINERS

SEC.

11. Subject to the civil-service and other laws to the extent

not inconsistent with this Act, there shall be appointed by and for

each agency as many qualified and competent examiners as may be

necessary for proceedings pursuant to sections 7 and 8, who shall be

assigned to cases in rotation so far as practicable and shall perform

no duties inconsistent with their duties and responsibilities as examin-

ers.

Examiners shall be removable by the agency in which they are

employed only for good cause established and determined by the

Civil Service Commission (hereinafter called the Commission) after

opportunity for hearing and upon the record

thereof.

Examiners

shall receive compensation prescribed by the Commission independ-

ently of agency recommendations or ratings and in accordance with

the Classification Act of 1923, as amended, except that the provisions

of paragraphs (2) and (3) of subsection (b) of section 7 of said

Act, as amended, and the provisions of section 9 of said Act, as

amended, shall not be applicable. Agencies occasionally or tempo-

rarily insufficiently staffed may utilize examiners selected by the

Commission from and with the consent of other agencies. For the

purposes of this section, the Commission is authorized to make

investigations, require reports by agencies, issue reports, including an

annual report to the Congress, promulgate rules, appoint such

advisory committees as may be deemed necessary, recommend legisla-

tion, subpena witnesses or records, and pay witness fees as established

for the United States courts.

CONSTRUCTION

AND EFFECT

SEC.

12. Nothing in this Act shall be held to diminish the con-

stitutional rights of any person or to limit or repeal additional

requirements imposed by statute or otherwise recognized by law.

Except as otherwise required by law, all requirements or privileges

relating to evidence or procedure shall apply equally to agencies and

persons. If any provision of this Act or the application thereof is

held invalid, the remainder of this Act or other applications of such

provision shall not be affected. Every agency is granted all author-

ity necessary to comply with the requirements of this Act through

the issuance of rules or otherwise. No subsequent legislation shall

be held to supersede or modify the provisions of this Act except to

the extent that such legislation shall do so expressly. This Act shall

take effect three months after its approval except that sections 7

and 8 shall take effect six months after such approval, the require-

ment of the selection of examiners pursuant to section 11 shall not

become effective until one year after such approval, and no pro-

cedural requirement shall be mandatory as to any agency proceeding

initiated prior to the effective date of such requirement.

Approved June

11,

1946.