5 U.S.C.
§ 556. Hearings; presiding employees; powers and duties; burden of
proof; evidence; record as basis of decision
- (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.
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