Part I Chapter 5 Subchapter II Adminstrative
Procedures
Chapter 7 Judicial Review
Part III Chapter 31 Authority for Employment
Chapter 53 Pay Rates and Systems
Chapter 75 Adverse Actions
PART I - THE AGENCIES GENERALLY
CHAPTER 5
§551. Definitions.
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.
§552. Public information; agency rules, opinions, orders, records,
and proceedings.
- (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; and
- (C) administrative staff manuals and instructions to staff
that affect a member of the public;
- unless the materials are promptly published and copies offered
for sale. 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, or staff manual or instruction. However, in each
case the justification for the deletion shall be explained fully
in writing. 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. 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) Except with respect to the records made available under paragraphs
(1) and (2) of this subsection, each agency, upon any request for
records which (A) reasonably describes such records and (B) 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.
- (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.
- (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 ten 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) 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.
- (C) 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.
-
(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.
-
(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) On or before March 1 of each calendar year, each agency shall submit
a report covering the preceding calendar year to the Speaker of the House
of Representatives and President of the Senate for referral to the appropriate
committees of the Congress. The report shall include -
- (1) the number of determinations made by such agency not to comply
with requests for records made to such agency under subsection (a)
and the reasons for each such determination;
- (2) 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;
- (3) the names and titles or positions of each person responsible
for the denial of records requested under this section, and the number
of instances of participation for each;
- (4) the results of each proceeding conducted pursuant to subsection
(a)(4)(F), including a report of the disciplinary action taken against
the officer or employee who was primarily responsible for improperly
withholding records or an explanation of why disciplinary action
was not taken;
- (5) a copy of every rule made by such agency regarding this section;
- (6) a copy of the fee schedule and the total amount of fees collected
by the agency for making records available under this section; and
- (7) such other information as indicates efforts to administer fully
this section. The Attorney General shall submit an annual report
on or before March 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 subsections
(a)(4)(E), (F), and (G). 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 ''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.
§552a. Records about individuals.
For purposes of this section
- (1) the term ''agency'' means agency as defined in section 552(e) (FOOTNOTE
1) of this title;
- (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 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; or
- (vii) matches performed pursuant to section 6103(l)(12) of
the Internal Revenue Code of 1986 and section 1144 of the Social
Security Act;
- (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(f)
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.
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.
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.
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.
Whenever any agency
- (1)
- (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.
- (1) 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.
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.
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.
- (1) 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) Government Contractors.
- (1) 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(f) of title 31 shall not be considered a contractor for the
purposes of this section.
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.
- (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.
- (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.
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) Effect of Other Laws.
- (1) 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) 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.
- (7) In the reports required by paragraphs (3)(D) and (6), 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.
§552b. Open meetings.
- (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;
- (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.
§553. Rule making.
- (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.
§554. Adjudications.
- (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.
§555. Ancillary matters.
- (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.
§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.
§557. Initial decisions; conclusiveness; review by agency; submissions
by parties; contents of decisions; record.
- (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.
§558. Imposition of sanctions; determination of applications for
licenses; suspension, revocation, and expiration of licenses.
- (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.
§559. Effect on other laws; effect of subsequent 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.
Return to Top
CHAPTER 7 - JUDICIAL REVIEW
§701. Application; definitions.
- (a) This chapter applies, according to the provisions thereof, except
to the extent that -
- (1) statutes preclude judicial review; or
- (2) agency action is committed to agency discretion by law.
- (b) For the purpose of this chapter -
- (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;
- (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; and
- (2) ''person'', ''rule'', ''order'', ''license'', ''sanction'',
''relief'', and ''agency action'' have the meanings given them by
section 551 of this title.
§702. Right of review.
A person suffering legal wrong because of agency action, or adversely affected
or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof. An action in a court of the United States
seeking relief other than money damages and stating a claim that an agency
or an officer or employee thereof acted or failed to act in an official capacity
or under color of legal authority shall not be dismissed nor relief therein
be denied on the ground that it is against the United States or that the
United States is an indispensable party. The United States may be named as
a defendant in any such action, and a judgment or decree may be entered against
the United States: Provided, That any mandatory or injunctive decree shall
specify the Federal officer or officers (by name or by title), and their
successors in office, personally responsible for compliance. Nothing herein
(1) affects other limitations on judicial review or the power or duty of
the court to dismiss any action or deny relief on any other appropriate legal
or equitable ground; or (2) confers authority to grant relief if any other
statute that grants consent to suit expressly or impliedly forbids the relief
which is sought.
§703. Form and venue of proceeding.
The form of proceeding for judicial review is the special statutory review
proceeding relevant to the subject matter in a court specified by statute
or, in the absence or inadequacy thereof, any applicable form of legal action,
including actions for declaratory judgments or writs of prohibitory or mandatory
injunction or habeas corpus, in a court of competent jurisdiction. If no
special statutory review proceeding is applicable, the action for judicial
review may be brought against the United States, the agency by its official
title, or the appropriate officer. Except to the extent that prior, adequate,
and exclusive opportunity for judicial review is provided by law, agency
action is subject to judicial review in civil or criminal proceedings for
judicial enforcement.
§704. Actions reviewable.
Agency action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court are subject to judicial review.
A preliminary, procedural, or intermediate agency action or ruling not directly
reviewable is subject to review on the review of the final agency action.
Except as otherwise expressly required by statute, agency action otherwise
final is final for the purposes of this section whether or not there has
been presented or determined an application for a declaratory order, for
any form of reconsideration, or, unless the agency otherwise requires by
rule and provides that the action meanwhile is inoperative, for an appeal
to superior agency authority.
§705. Relief pending review.
When an agency finds that justice so requires, it may postpone the effective
date of action taken by it, pending judicial review. On such conditions as
may be required and to the extent necessary to prevent irreparable injury,
the reviewing court, including the court to which a case may be taken on
appeal from or on application for certiorari or other writ to a reviewing
court, may issue all necessary and appropriate process to postpone the effective
date of an agency action or to preserve status or rights pending conclusion
of the review proceedings.
§706. Scope of review.
To the extent necessary to decision and when 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 an agency action. The reviewing court shall -
- (1) compel agency action unlawfully withheld or unreasonably delayed;
and
- (2) hold unlawful and set aside agency action, findings, and conclusions
found to be -
- (A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
- (B) contrary to constitutional right, power, privilege, or immunity;
- (C) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
- (D) without observance of procedure required by law;
- (E) unsupported by substantial evidence in a case subject to sections
556 and 557 of this title or otherwise reviewed on the record of
an agency hearing provided by statute; or
- (F) unwarranted by the facts 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 those
parts of it cited by a party, and due account shall be taken of the
rule of prejudicial error.
Return to Top
PART III - EMPLOYEES
Subpart B - Employment and Retention
SUBCHAPTER I - EMPLOYMENT AUTHORITIES
§3105. Appointment of administrative law judges
Each agency shall appoint as many administrative law judges as are necessary
for proceedings required to be conducted in accordance with sections 556
and 557 of this title. Administrative law judges shall be assigned to cases
in rotation so far as practicable, and may not perform duties inconsistent
with their duties and responsibilities as administrative law judges.
SUBCHAPTER III - DETAILS
§3344. Details; administrative law judges.
An agency as defined by section 551 of this title which occasionally or
temporarily is insufficiently staffed with administrative law judges appointed
under section 3105 of this title may use administrative law judges selected
by the Office of Personnel Management from and with the consent of other
agencies.
Return to Top
SUBPART D - PAY AND ALLOWANCES
SUBCHAPTER VII - MISCELLANEOUS PROVISIONS
§5372. Administrative law judges.¹
(a) For the purposes of this section, the term ''administrative law judge''
means an administrative law judge appointed under section 3105.
(b)
- (1) There shall be 3 levels of basic pay for administrative law judges
(designated as AL-1, 2, and 3, respectively), and each such judge shall
be paid at 1 of those levels, in accordance with the provisions of this
section. The rates of basic pay for those levels shall be as follows:
BASIC PAY TABLE
AL-3, rate A |
65 percent of the rate of basic pay for level IV
of the Executive Schedule. |
AL-3, rate B |
70 percent of the rate of basic pay for level IV
of the Executive Schedule. |
AL-3, rate C |
75 percent of the rate of basic pay for level IV
of the Executive Schedule. |
AL-3, rate D |
80 percent of the rate of basic pay for level IV
of the Executive Schedule. |
AL-3, rate E |
85 percent of the rate of basic pay for level IV
of the Executive Schedule. |
AL-3, rate F |
90 percent of the rate of basic pay for level IV
of the Executive Schedule. |
AL-2 |
95 percent of the rate of basic pay for level IV
of the Executive Schedule. |
AL-1 |
The rate of basic pay for level IV of the Executive
Schedule. |
- (2) The Office of Personnel Management shall determine, in accordance
with procedures which the Office shall by regulation prescribe, the level
in which each administrative-law-judge position shall be placed and the
qualifications to be required for appointment to each level.
- (3)
- (A) Upon appointment to a position in AL-3, an administrative law
judge shall be paid at rate A of AL-3, and shall be advanced successively
to rates B, C, and D of that level upon completion of 52 weeks of
service in the next lower rate, and to rates E and F of that level
upon completion of 104 weeks of service in the next lower rate.
- (B) The Office of Personnel Management may provide for appointment
of an administrative law judge in AL-3 at an advanced rate under
such circumstances as the Office may determine appropriate.
(c) The Office of Personnel Management shall prescribe regulations necessary
to administer this section.
CONVERSION RULE FOR ADMINISTRATIVE LAW JUDGES
Section 529 (title I, Sec. 104(e)) of Pub. L. 101-509 provided that: ''In
making initial pay adjustments for administrative law judges after this section
and the amendments made by this section (enacting section 5372a of this title,
amending this section, sections 5102, 5311, and 5335 of this title, section
938 of Title 30, Mineral Lands and Mining, and section 607 of Title 41, Public
Contracts) take effect (see Effective Date of 1990 Amendment note set out
under section 5301 of this title), the rate of basic pay for any such judge
shall, upon conversion to the new pay system, be at least equal to the rate
which was payable to that individual immediately before such conversion.''
Return to Top
Subpart F - Labor-Management and Employee Relations
SUBCHAPTER III - ADMINISTRATIVE LAW JUDGES
§7521. Actions against administrative law judges.
- (a) An action may be taken against an administrative law judge appointed
under section 3105 of this title by the agency in which the administrative
law judge is employed only for good cause established and determined by
the Merit Systems Protection Board on the record after opportunity for
hearing before the Board.
- (b) The actions covered by this section are -
- (1) a removal;
- (2) a suspension;
- (3) a reduction in grade;
- (4) a reduction in pay; and
- (5) a furlough of 30 days or less; but do not include -
- (A) a suspension or removal under section 7532 of this title;
- (B) a reduction-in-force action under section 3502 of this
title; or
- (C) any action initiated under section 1215 of this title.
Return to Top