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Prepared by the United States Department of Justice Tom C. Clark, Attorney General, 1947.
[111]
APPENDIX A
[PUBLIC LAW 404--79TH CONGRESS]
[CHAPTER 324--2D SESSION]
[S. 7]
AN ACT
To improve the administration of justice by
prescribing fair administrative procedure.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
TITLE
SECTION 1. This Act may be cited as the "Administrative Procedure
Act".
DEFINITIONS
SEC. 2. As used in this Act--
(a) AGENCY.--"Agency" means each authority (whether or
not within or subject to review by another agency) of the Government
of the United States other than Congress, the courts, or the
governments of the possessions, Territories, or the District of
Columbia. Nothing in this Act shall be construed to repeal
delegations of authority as provided by law. Except as to the
requirements of section 3, there shall be excluded from the operation
of this Act (1) agencies composed of representatives of the parties
or of representatives of organizations of the parties to the disputes
determined by them, (2) courts martial and military commissions, (3)
military or naval authority exercised in the field in time of war or
in occupied territory, or (4) functions which by law expire on the
termination of present hostilities, within any fixed period
thereafter, or before July 1, 1947, and the functions conferred by
the following statutes: Selective Training and Service Act of 1940;
Contract Settlement Act of 1944; Surplus Property Act of 1944.
(b) PERSON AND PARTY.--"Person" includes individuals,
partnerships, corporations, associations, or public or private
organizations of any character other than agencies. "Party" includes
any person or agency named or admitted as a party, or properly
seeking and entitled as of right to be admitted as a party, in any
[112] agency proceeding; but nothing herein shall be construed to
prevent an agency from admitting any person or agency as a party for
limited purposes.
(c) RULE AND RULE MAKING.--"Rule" means the whole or any part of
any agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law or
policy or to describe the organization, procedure, or practice
requirements of any agency and includes the approval or perscription
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 upon any of the foregoing. "Rule making" means
agency process for the formulation, amendment, or repeal of a rule.
(d) ORDER AND ADJUDICATION.--"Order" means the whole or any part
of the final disposition (whether affirmative, negative, injunctive,
or declaratory in form) of any agency in any matter other than rule
making but including licensing. "Adjudication" means agency process
for the formulation of an order.
(e) LICENSE AND LICENSING.--"License" includes the whole or part
of any agency permit, certificate, approval, registration, charter,
membership, statutory exemption or other form of permission.
"Licensing" includes agency process respecting the grant, renewal,
denial, revocation, suspension, annulment, withdrawal, limitation
amendment, modification, or conditioning of a license.
(f) SANCTION AND RELIEF.--"Sanction" includes the whole or part of
any agency (1) prohibition, requirement, limitation, or other
condition affecting the freedom of any person; (2) withholding of
relief; (3) imposition of any form of penalty or fine; (4)
destruction, taking, seizure, or withholding of property; (5)
assessment of damages, reimbursement, restitution, compensation,
costs, charges, or fees; (6) requirement, revocation, or suspension
of a license; or (7) taking of other compulsory or restrictive
action. "Relief" includes the whole or part of any agency (1) grant
of money, assistance, license, authority, exemption, exception,
privilege, or remedy; (2) recognition of any claim, right, immunity,
privilege, exemption, or exception; or (3) taking of any other action
upon the application or petition of, and beneficial to, any person.
(g) AGENCY PROCEEDING AND ACTION.--"Agency proceeding" means any
agency process as defined in subsections (c), (d), and [113] (e) of
this section. "Agency action" includes the whole or part of every
agency rule, order, license, sanction, relief, or the equivalent or
denial thereof, or failure to act.
PUBLIC INFORMATION
SEC. 3. Except to the extent that there is involved (1) any
function of the United States requiring secrecy in the public
interest or (2) any matter relating solely to the internal management
of an agency--
(a ) RULES.--Every agency shall separately state and
currently publish in the Federal Register (1) descriptions of its
central and field organization including delegations by the agency of
final authority and the established places at which, and methods
whereby, the public may secure information or make submittals or
requests; (2) statements of the general course and method by which
its functions are channeled and determined, including the nature and
requirements of all formal or informal procedures available as well
as forms and instructions as to the scope and contents of all papers,
reports, or examinations; and (3) substantive rules adopted as
authorized by law and statements of general policy or interpretations
formulated and adopted by the agency for the guidance of the public,
but not rules addressed to and served upon named persons in
accordance with law. No person shall in any manner be required to
resort to organization or procedure not so published.
(b) OPINIONS AND ORDERS.--Every agency shall publish or, in
accordance with published rule, make available to public inspection
all final opinions or orders in the adjudication of cases (except
those required for good cause to be held confidential and not cited
as precedents) and all rules.
(c) PUBLIC RECORDS.--Save as otherwise required by statute,
matters of official record shall in accordance with published rule be
made available to persons properly and directly concerned except
information held confidential for good cause found.
RULE MAKING
SEC. 4. Except to the extent that there is involved (1) any
military, naval, or foreign affairs function of the United States or
(2) any matter relating to agency management or personnel or to
public property, loans, grants, benefits, or contracts--
[114] (a) NOTICE.--General notice of proposed rule
making shall be published in the Federal Register (unless all persons
subject thereto are named and either personally served or otherwise
have actual notice thereof in accordance with law) and shall include
(1) a statement of the time, place, and nature of public rule making
proceedings; (2) reference to the authority under which the rule is
proposed; and (3) either the terms or substance of the proposed rule
or a description of the subjects and issues involved. Except where
notice or hearing is required by statute, this subsection shall not
apply to interpretative rules, general statements of policy, rules of
agency organization, procedure, or practice, or in any situation in
which the agency for good cause finds (and incorporates the finding
and a brief statement of the reasons therefor in rules issued) that
notice and public procedure thereon are impracticable, unnecessary,
or contrary to the public interest.
(b) PROCEDURES.--After notice required by this section, the agency
shall afford interested persons an opportunity to participate in the
rule making through submission of written data, views, or arguments
with or without opportunity to present the same orally in any manner;
and, after consideration of all relevant matter presented, the agency
shall incorporate in any rules adopted a concise general statement of
their basis and purpose. Where rules are required by statute to be
made on the record after opportunity for an agency hearing, the
requirements of sections 7 and 8 shall apply in place of the
provisions of this subsection.
(c) EFFECTIVE DATES.--The required publication or service of any
substantive rule (other than one granting or recognizing exemption or
relieving restriction or interpretative rules and statements of
policy) shall be made not less than thirty days prior to the
effective date thereof except as otherwise provided by the agency
upon good cause found and published with the rule.
(d) PETITIONS.--Every agency shall accord any interested person
the right to petition for the issuance, amendment, or repeal of a
rule.
ADJUDICATION
SEC. 5. 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) any matter subject to
a subsequent trial of the law and the facts de novo in any court; (2)
the selection or tenure of an officer or employee of [115] the United
States other than examiners appointed pursuant to section 11; (3)
proceedings in which decisions rest solely on inspections, tests, or
elections; (4) the conduct of military, naval, or foreign affairs
functions; (5) cases in which an agency is acting as an agent for a
court; and (6) the certification of employee representatives--
(a) NOTICE.--Persons entitled to notice of an agency
hearing shall be timely informed of (1) the time, place, and nature
thereof; (2) the legal authority and jurisdiction under which the
hearing is to be held; and (3) the matters of fact and law asserted.
In instances in which private persons are the moving parties, other
parties to the proceeding shall give prompt notice of issues
controverted in fact or law; and in other instances agencies may by
rule require responsive pleading. In fixing the times and places for
hearings, due regard shall be had for the convenience and necessity
of the parties or their representatives.
(b) PROCEDURE.--The agency shall afford all interested parties
opportunity for (1) the submission and consideration of facts,
arguments, offers of settlement, or proposals of adjustment where
time, the nature of the proceeding, and the public interest permit,
and (2) to the extent that the parties are unable so to determine any
controversy by consent, hearing, and decision upon notice and in
conformity with sections 7 and 8.
(c) SEPARATION OF FUNCTIONS.--The same officers who preside at the
reception of evidence pursuant to section 7 shall make the
recommended decision or initial decision required by section 8 except
where such officers become unavailable to the agency. Save to the
extent required for the disposition of ex parte matters as authorized
by law, no such officer shall consult any person or party on any fact
in issue unless upon notice and opportunity for all parties to
participate; nor shall such officer be responsible to or subject to
the supervision or direction of any officer, employee, or agent
engaged in the performance of investigative or prosecuting functions
for any agency. No officer, employee, or agent engaged in the
performance of investigative or prosecuting functions for any agency
in any case shall, in that or a factually related case, participate
or advise in the decision, recommended decision, or agency review
pursuant to section 8 except as witness or counsel in public
proceedings. This subsection shall not apply in determining
applications for initial licenses or to proceedings involving the
validity or application of rates, facilities, or practices of public
utilities or carriers; nor shall it be applicable in any manner to
[116] the agency or any member or members of the body comprising the
agency.
(d) DECLARATORY ORDERS.--The agency is authorized in its sound
discretion, with like effect as in the case of other orders, to issue
a declaratory order to terminate a controversy or remove uncertainty.
ANCILLARY MATTERS
SEC. 6. Except as otherwise provided in this Act--
(a) APPEARANCE--Any person compelled to appear in
person before any agency or representative thereof shall be accorded
the right to be accompanied, represented, and advised by counsel or,
if permitted by the agency, by other qualified representative. Every
party shall be accorded the right to appear in person or by or with
counsel or other duly qualified representative in any agency
proceeding. So far as the orderly conduct of public business permits,
any interested person may appear before any agency or its responsible
officers or employees for the presentation, adjustment, or
determination of any issue, request, or controversy in any proceeding
(interlocutory, summary, or otherwise) or in connection with any
agency function. Every agency shall proceed with reasonable dispatch
to conclude any matter presented to it except that due regard shall
be had for the convenience and necessity of the parties or their
representatives. Nothing herein shall be construed either to grant or
to deny to any person who is not a lawyer the right to appear for or
represent others before any agency or in any agency proceeding.
(b) INVESTIGATIONS--No process, requirement of a report,
inspection, or other investigative act or demand shall be issued,
made, or enforced in any manner or for any purpose except as
authorized by law. Every person compelled to submit data or evidence
shall be entitled to retain or, on payment of lawfully prescribed
costs, procure a copy or transcript thereof, except that in a
nonpublic investigatory proceeding the witness may for good cause be
limited to inspection of the official transcript of his testimony.
(c) SUBPENAS.--Agency subpenas authorized by law shall be issued
to any party upon request and, as may be required by rules of
procedure, upon a statement or showing of general relevance and
reasonable scope of the evidence sought. Upon contest the court shall
sustain any such subpena or similar process or demand, [117] to the
extent that it is found to be in accordance with law and, in any
proceeding for enforcement, shall issue an order requiring the
appearance of the witness or the production of the evidence or data
within a reasonable time under penalty of punishment for contempt in
case of contumacious failure to comply.
(d) DENIALS.--Prompt notice shall be given of the denial in whole
or in part of any written application, petition, or other request of
any interested person made in connection with any agency proceeding.
Except in affirming a prior denial or where the denial is
self-explanatory, such notice shall be accompanied by a simple
statement of procedural or other grounds.
HEARINGS
SEC. 7. In hearings which section 4 or 5 requires to be conducted
pursuant to this section--
(a) PRESIDING OFFICERS.--There shall preside at the
taking of evidence (1) the agency, (2) one or more members of the
body which comprises the agency, or (3) one or more examiners
appointed as provided in this Act; but nothing in this Act shall be
deemed to supersede the conduct of specified classes of proceedings
in whole or part by or before boards or other officers specially
provided for by or designated pursuant to statute. The functions of
all presiding officers and of officers participating in decisions in
conformity with section 8 shall be conducted in an impartial manner.
Any such officer may at any time withdraw if he deems himself
disqualified; and, upon the filing in good faith of a timely and
sufficient affidavit of personal bias or disqualification of any such
officer, the agency shall determine the matter as a part of the
record and decision in the case.
(b) HEARING POWERS.--Officers presiding at hearings shall have
authority, subject to the published rules of the agency and within
its powers, to (1) administer oaths and affirmations, (2) issue
subpenas authorized by law, (3) rule upon offers of proof and receive
relevant evidence, (4) take or cause depositions to be taken whenever
the ends of justice would be served thereby, (5) regulate the course
of the hearing, (6) hold conferences for the settlement or
simplification of the issues by consent of the parties, (7) dispose
of procedural requests or similar matters, (8) make decisions or
recommend decisions in conformity with section 8, and (9) take any
other action authorized by agency rule consistent with this Act.
[118] (c) EVIDENCE.--Except as statutes otherwise provide, the
proponent of a rule or order shall have the burden of proof. Any oral
or documentary evidence may be received, but every agency shall as a
matter of policy provide for the exclusion of irrelevant immaterial,
or unduly repetitious evidence and no sanction shall be imposed or
rule or order be issued except upon consideration of the whole record
or such portions thereof as may be cited by any party and as
supported by and in accordance with the reliable, probative, and
substantial evidence. Every party shall have the right to present his
case or defense by oral or documentary evidence, to submit rebuttal
evidence, and to conduct such crossexamination 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 any agency may, where the interest of any party will not be
prejudiced thereby, adopt procedures for the submission of all or
part of the evidence in written form.
(d) RECORD.--The transcript of testimony and exhibits, together
with all papers and requests filed in the proceeding, shall
constitute the exclusive record for decision in accordance with
section 8 and, upon payment of lawfully prescribed costs, shall be
made available to the parties. Where any agency decision rests on
official notice of a material fact not appearing in the evidence in
the record, any party shall on timely request be afforded an
opportunity to show the contrary.
DECISIONS
SEC. 8. In cases in which a hearing is required to be conducted in
conformity with section 7--
(a) ACTION BY SUBORDINATES.--In cases in which the
agency has not presided at the reception of the evidence, the officer
who presided (or, in cases not subect to subsection (c) of section 5,
any other officer or officers qualified to preside at hearings
pursuant to section 7) shall initially decide the case or the agency
shall require (in specific cases or by general rule) the entire
record to be certified to it for initial decision. Whenever such
officers make the initial decision and in the absence of either an
appeal to the agency or review upon motion of the agency within time
provided by rule, such decision shall without further proceedings
then become the decision of the agency. On appeal from or review of
the initial decisions of such officers the agency shall, except as it
may limit [119] the issues upon notice or by rule, have all the
powers which it would have in making the initial decision. Whenever
the agency makes the initial decision without having presided at the
reception of the evidence, such officers shall first recommend a
decision except that in rule making or determining applications for
initial licenses (1) in lieu thereof the agency may issue a tentative
decision or any of its responsible officers may recommend a decision
or (2) any such procedure may be omitted in any case in which the
agency finds upon the record that due and timely execution of its
functions imperatively and unavoidably so requires.
(b) SUBMITTALS AM DECISIONS.--Prior to each recommended, initial,
or tentative decision, or decision upon agency review of the decision
of subordinate officers the parties shall be afforded a reasonable
opportunity to submit for the consideration of the officers
participating in such decisions (1) proposed findings and
conclusions, or (2) exceptions to the decisions or recommended
decisions of subordinate officers or to tentative agency decisions,
and (3) supporting reasons for such exceptions or proposed findings
or conclusions. The record shall show the ruling upon each such
finding, conclusion, or exception presented. All decisions (including
initial, recommended, or tentative decisions) shall become a part of
the record and include a statement of (1) findings and conclusions,
as well as the reasons or basis therefor, upon all the material
issues of fact, law, or discretion presented on the record; and (2)
the appropriate rule, order, sanction, relief, or denial thereof.
SANCTIONS AND POWERS
SEC. 9. In the exercise of any power or authority--
(a) IN GENERAL.--No sanction shall be imposed or
substantive rule or order be issued except within jurisdiction
delegated to the agency and as authorized by law.
(b) LICENSES.--In any case in which application is made for a
license required by law the agency, with due regard to the rights or
privileges of all the interested parties or adversely affected
persons and with reasonable dispatch, shall set and complete any
proceedings required to be conducted pursuant to sections 7 and 8 of
this Act or other proceedings required by law and shall make its
decision. Except in cases of willfulness or those in which public
health, interest, or safety requires otherwise, no withdrawal,
suspension, revocation, or annulment of any license shall be lawful
[120] unless, prior to the institution of agency proceedings
therefor, facts or conduct which may warrant such action shall have
been called to the attention of the licensee by the agency in writing
and the licensee shall have been accorded opportunity to demonstrate
or achieve compliance with all lawful requirements. In any case in
which the licensee has, in accordance with agency rules, made timely
and sufficient application for a renewal or a new license, no license
with reference to any activity of a continuing nature shall expire
until such application shall have been finally determined by the
agency.
JUDICIAL REVIEW
SEC. 10. Except so far as (1) statutes precude judicial review or
(2) agency action is by law committed to agency discretion--
(a) RIGHT OF REVIEW.--Any person suffering legal wrong
because of any action, or adversely affected or aggrieved by such
action within the meaning of any relevant statute, shall be entitled
to judicial review thereof.
(b) FORM AND VENUE OF ACTION.--The form of proceeding, for
judicial review shall be any special statutory review proceeding,
relevant to the subject matter in any 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 any court of
competent jurisdiction. Agency action shall be subject to judicial
review in civil or criminal proceedings for judicial enforcement
except to the extent that prior, adequate, and exclusive opportunity
for such review is provided by law.
(c) REVIEWABLE ACTS.--Every agency action made reviewable by
statute and every final agency action for which there is no other
adequate remedy in any court shall be subject to judicial review. Any
preliminary, procedural, or intermediate agency action or ruling not
directly reviewable shall be subject to review upon the review of the
final agency action. Except as otherwise expressly required by
statute, agency action otherwise final shall be final for the
purposes of this subsection whether or not there has been presented
or determined any application for a declaratory order, for any form
of reconsideration, or (unless the agency otherwise requires by rule
and provides that the action meanwhile shall be inoperative) for an
appeal to superior agency authority.
[121] (d) INTERIM RELIEF.--Pending judicial review any agency is
authorized, where it finds that justice so requires, to postpone the
effective date of any action taken by it. Upon such conditions as may
be required and to the extent necessary to prevent irreparable
injury, every reviewing court (including every court to which a case
may be taken on appeal from or upon application for certiorari or
other writ to a reviewing court) is authorized to issue all necessary
and appropriate process to postpone the effective date of any agency
action or to preserve status or rights pending conclusion of the
review proceedings.
(e) SCOPE OF REVIEW.--So far as necessary to decision and where
presented the reviewing court shall decide all relevant questions of
law, interpret constitutional and statutory provisions, and determine
the meaning or applicability of the terms of any agency action. It
shall (A) compel agency action unlawfully withheld or unreasonably
delayed; and (B) hold unlawful and set aside agency action, findings,
and conclusions found to be (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) contrary to
constitutional right, power, privilege, or immunity; (3) in excess of
statutory jurisdiction, authority, or limitations, or short of
statutory right; (4) without observance of procedure required by law;
(5) unsupported by substantial evidence in any case subject to the
requirements of sections 7 and 8 or otherwise reviewed on the record
of an agency hearing provided by statute; or (6) unwarranted by the
facts to the extent that the facts are subject to trail de novo by
the reviewing court. In making the foregoing determinations the court
shall review the whole record or such portions thereof as may be
cited by any party, and due account shall be taken of the rule of
prejudicial error.
EXAMINERS
SEC. 11. Subject to the civil-service and other laws to the extent
not inconsistent with this Act, there shall be appointed by and for
each agency as many qualified and competent examiners as may be
necessary for proceedings pursuant to sections 7 and 8, who shall be
assigned to cases in rotation so far as practicable and shall perform
no duties inconsistent with their duties and responsibilities as
examiners. Examiners shall be removable by the agency in which they
are employed only for good cause established and determined by the
Civil Service Commission (here-[122]inafter called the Commission)
after opportunity for hearing and upon the record thereof. Examiners
shall receive compensation prescribed by the Commission independently
of agency recommendations or ratings and in accordance with the
Classification Act of 1923, as amended, except that the provisions of
paragraphs (2) and (3) of subsection (b) of section 7 of said Act, as
amended, and the provisions of section 9 of said Act, as amended,
shall not be applicable. Agencies occasionally or temporarily
insufficiently staffed may utilize examiners selected by the
Commission from and with the consent of other agencies. For the
purposes of this section, the Commission is authorized to make
investigations, require reports by agencies, issue reports, including
an annual report to the Congress, promulgate rules, appoint such
advisory committees as may be deemed necessary, recommend
legislation, subpena witnesses or records, and pay witness fees as
established for the United States courts.
CONSTRUCTION AND EFFECT
SEC. 12. Nothing in this Act shall be held to diminish the
constitutional rights of any person or to limit or repeal additional
requirements imposed by statute or otherwise recognized by law.
Except as otherwise required by law, all requirements or privileges
relating to evidence or procedure shall apply equally to agencies and
persons. If any provision of this Act or the application thereof is
held invalid, the remainder of this Act or other applications of such
provision shall not be affected. Every agency is granted all
authority necessary to comply with the requirements of this Act
through the issuance of rules or otherwise. No subsequent legislation
shall be held to supersede or modify the provisions of this Act
except to the extent that such legislation shall do so expressly.
This Act shall take effect three months after its approval except
that sections 7 and 8 shall take effect six months after such
approval, the requirement of the selection of examiners pursuant to
section 11 shall not become effective until one year after such
approval, and no procedural requirement shall be mandatory as to any
agency proceeding initiated prior to the effective date of such
requirement.
Approved June 11, 1946.
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