ADMINISTRAtive ProcedURE

made invalid by taxpayer's request for reimbursement or government's failure to offer mileage and witness fees. United States v Awerkamp (1974, CA7 III) 497 F2d 832.

§ 551

SUBCHAPTER IL. ADMINISTRATIVE PROCEDURE

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Other provisions:

Prior similar provisions. The provisions of 5 USCS §§ 551 et seq. were
originally enacted by Act June 11, 1946, ch 324, 60 Stat. 237,
popularly known as the “Administrative Procedure Act”. That Act was
repealed as part of the general revision of this Title by Act Sept. 6,
1966, and its provisions incorporated into 5 USCS §§ 551 et seq. and
§§ 701 et seq.

Definitions

For the purpose of this subchapter [5 USCS §§ 551 et seq.)—

(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 [5 USCS § 552]

(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 [12 USCS § 1738, 1739, 1743, and 1744]; chapter 2 of title 41 [41 USCS §§ 101 et seq.]; or sections 1622 [50 USCS Appx. § 1622], 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;

35

5 USCS § 551

AGENCIES GENERALLY

(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;

id

(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

מי

ADMINISTRATIVE PROCEDURE

5 USCS § 551

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.

Sept. 6, 1966, P. L. 89-554, § 1, 80 Stat. 381; (Sept. 13, 1976, P. L. 94-409, § 4(b), 90 Stat. 1247.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Revised Statutes and
Statutes at Large
June 11, 1946, ch 324,

§ 2(a), 60 Stat. 237.
Aug. 8, 1946, ch 870, § 302,
60 Stat. 918.

Aug. 10, 1946, ch 951,
§ 601, 60 Stat. 993.
Mar. 31, 1947, ch 30,
§ 6(a), 61 Stat. 37.
June 30, 1947, ch 163,
§ 210, 61 Stat. 201.
Mar. 30, 1948, ch 161,
§301, 62 Stat. 99.

June 11, 1946, ch 324, § 2
(less (a)), 60 Stat. 237.

In para. (1), the sentence "Nothing in this Act shall be construed to
repeal delegations of authority as provided by law," is omitted as
surplusage since there is nothing in the Act which could reasonably be
so construed.

In para. (1)(G), the words "or naval" are omitted as included in
"military".

In para. (1)(H), the words “functions which by law expire on the
termination of present hostilities, within any fixed period thereafter, or
before July 1, 1947" are omitted as executed. Reference to the "Selec-
tive Training and Service Act of 1940” is omitted as that Act expired
Mar. 31, 1947. Reference to the "Sugar Control Extension Act of
1947" is omitted as that Act expired on Mar. 31, 1948. References to
the "Housing and Rent Act of 1947, as amended" and the "Veterans'
Emergency Housing Act of 1946" have been consolidated as they are
related. The reference to former 50 USC Appx § 1641(b)(2) is retained
notwithstanding its repeal by Act Sept. 21, 1961, P. L. 87-256,
§ 111(a)(1), 75 Stat. 538, since § 111(c) of the Act provides that a
reference in other Acts to a provision of law repealed by § 111(a) shall
be considered to be a reference to the appropriate provisions of such
Act Sept. 21, 1961.

In para. (2), the words "of any character" are omitted as surplusage.
In para. (3), the words “and a person or agency admitted by an agency
as a party for limited purposes" are substituted for "but nothing herein
shall be construed to prevent an agency from admitting any person or
agency as a party for limited purposes".

In para. (9), a comma is supplied between the words "limitation" and
"amendment" to correct an editorial error of omission.

In para. (10)(C), the words “of any form” are omitted as surplusage.

(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 [5 USCS §§ 556 and 557] 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—

ADMINISTRATIVE PROCEDUPE

5 USCS § 553

(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.

(Sept. 6, 1966, P. L. 89-554, § 1, 80 Stat. 383.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Prior law and revision:
Derivation

U.S. Code

5 USC § 1003

Revised Statutes and

Statutes at Large
June 11, 1946, ch 324, § 4.
60 Stat. 238.

In subsec. (a)(1), the words "or naval" are omitted as included in
"military".

In subsec. (b), the word "when" is substituted for "in any situation in
which".

In subsec. (c), the words "for oral presentation" are substituted for "to
present the same orally in any manner". The words "sections 556 and
557 of this title apply instead of this subsection" are substituted for
"the requirements of sections 1006 and 1007 of this title shall apply in
place of the provisions of this subsection".

Standard changes are made to conform with the definitions applicable
and the style of this title (5 USCS §§ 101 et seq.).

Explanatory notes:

A former 5 USC § 553 was transferred by Act Sept. 6, 1966, which
enacted 5 USCS §§ 101 et seq., and now appears as 7 USCS § 2245.

Other provisions:

Improving Government regulations. Ex. Or. No. 12044, of Mar. 23,
1978, 43 Fed. Reg. 12661, provided:

"As President of the United States of America, I direct each Executive
Agency to adopt procedures to improve existing and future regulations.
"Section 1. Policy. Regulations shall be as simple and clear as possible.
They shall achieve legislative goals effectively and efficiently. They shall
not impose unnecessary burdens on the economy, on individuals, on
public or private organizations, or on State and local governments.
"To achieve these objectives, regulations shall be developed through a
process which ensures that:

“(a) the need for and purposes of the regulation are clearly established;
"(b) heads of agencies and policy officials exercise effective oversight;
“(c) opportunity exists for early participation and comment by other
Federal agencies, State and local governments, businesses, organizations
and individual members of the public;

“(d) meaningful alternatives are considered and analyzed before the
regulation is issued; and