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pdf§ 306
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
DELEGATION OF FUNCTIONS
Functions of President under subsec. (b) of this section delegated to Director of Office of Management and
Budget, see Ex. Ord. No. 12152, Aug. 14, 1979, 44 F.R.
48143, set out as a note under section 301 of Title 3, The
President.
DISSOLUTION OF VIRGIN ISLANDS CORPORATION
Virgin Islands Corporation established to have succession until June 30, 1969, unless sooner dissolved by
Act of Congress, by act June 30, 1949, ch. 285, 63 Stat.
350, as amended (48 U.S.C. 1407 et seq.). Corporation terminated its program June 30, 1965, and dissolved July 1,
1966. Act June 30, 1949, was repealed by Pub. L. 97–357,
title III, § 308(e), Oct. 19, 1982, 96 Stat. 1710.
§ 306. Agency strategic plans
(a) Not later than the first Monday in February of any year following the year in which
the term of the President commences under section 101 of title 3, the head of each agency shall
make available on the public website of the
agency a strategic plan and notify the President
and Congress of its availability. Such plan shall
contain—
(1) a comprehensive mission statement covering the major functions and operations of
the agency;
(2) general goals and objectives, including
outcome-oriented goals, for the major functions and operations of the agency;
(3) a description of how any goals and objectives contribute to the Federal Government
priority goals required by section 1120(a) of
title 31;
(4) a description of how the goals and objectives are to be achieved, including—
(A) a description of the operational processes, skills and technology, and the human,
capital, information, and other resources required to achieve those goals and objectives;
and
(B) a description of how the agency is
working with other agencies to achieve its
goals and objectives as well as relevant Federal Government priority goals;
(5) a description of how the goals and objectives incorporate views and suggestions obtained through congressional consultations required under subsection (d);
(6) a description of how the performance
goals provided in the plan required by section
1115(a) of title 31, including the agency priority goals required by section 1120(b) of title 31,
if applicable, contribute to the general goals
and objectives in the strategic plan;
(7) an identification of those key factors external to the agency and beyond its control
that could significantly affect the achievement of the general goals and objectives; and
(8) a description of the program evaluations
used in establishing or revising general goals
and objectives, with a schedule for future program evaluations to be conducted.
(b) The strategic plan shall cover a period of
not less than 4 years following the fiscal year in
which the plan is submitted. As needed, the head
of the agency may make adjustments to the
strategic plan to reflect significant changes in
the environment in which the agency is operating, with appropriate notification of Congress.
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(c) The performance plan required by section
1115(b) of title 31 shall be consistent with the
agency’s strategic plan. A performance plan
may not be submitted for a fiscal year not covered by a current strategic plan under this section.
(d) When developing or making adjustments to
a strategic plan, the agency shall consult periodically with the Congress, including majority
and minority views from the appropriate authorizing, appropriations, and oversight committees, and shall solicit and consider the views
and suggestions of those entities potentially affected by or interested in such a plan. The agency shall consult with the appropriate committees of Congress at least once every 2 years.
(e) The functions and activities of this section
shall be considered to be inherently governmental functions. The drafting of strategic
plans under this section shall be performed only
by Federal employees.
(f) For purposes of this section the term
‘‘agency’’ means an Executive agency defined
under section 105, but does not include the Central Intelligence Agency, the Government Accountability Office, the United States Postal
Service, and the Postal Regulatory Commission.
(Added Pub. L. 111–352, § 2, Jan. 4, 2011, 124 Stat.
3866.)
PRIOR PROVISIONS
A prior section 306, added Pub. L. 103–62, § 3, Aug. 3,
1993, 107 Stat. 286; amended Pub. L. 106–65, div. A, title
IX, § 902, Oct. 5, 1999, 113 Stat. 717; Pub. L. 108–271, § 8(b),
July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI,
§ 604(b), Dec. 20, 2006, 120 Stat. 3241, related to strategic
plans, prior to repeal by Pub. L. 111–352, § 2, Jan. 4, 2011,
124 Stat. 3866.
CHAPTER 5—ADMINISTRATIVE PROCEDURE
SUBCHAPTER I—GENERAL PROVISIONS
Sec.
500.
501.
502.
Administrative practice; general provisions.
Advertising practice; restrictions.
Administrative practice; Reserves and National Guardsmen.
503.
Witness fees and allowances.
504.
Costs and fees of parties.
SUBCHAPTER II—ADMINISTRATIVE PROCEDURE
551.
552.
Definitions.
Public information; agency rules, opinions,
orders, records, and proceedings.
552a.
Records about individuals.1
552b.
Open meetings.
553.
Rule making.
554.
Adjudications.
555.
Ancillary matters.
556.
Hearings; presiding employees; powers and
duties; burden of proof; evidence; record as
basis of decision.
557.
Initial decisions; conclusiveness; review by
agency; submissions by parties; contents of
decisions; record.
558.
Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses.
559.
Effect on other laws; effect of subsequent
statute.
SUBCHAPTER III—NEGOTIATED RULEMAKING
PROCEDURE
561.
1 So
Purpose.
in original. Does not conform to section catchline.
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
562.
563.
Definitions.
Determination of need for negotiated rulemaking committee.
564.
Publication of notice; applications for membership on committees.
565.
Establishment of committee.
566.
Conduct of committee activity.
567.
Termination of committee.
568.
Services, facilities, and payment of committee member expenses.
569.
Encouraging negotiated rulemaking.
570.
Judicial review.
570a.
Authorization of appropriations.
SUBCHAPTER IV—ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE
PROCESS
571.
Definitions.
572.
General authority.
573.
Neutrals.
574.
Confidentiality.
575.
Authorization of arbitration.
576.
Enforcement of arbitration agreements.
577.
Arbitrators.
578.
Authority of the arbitrator.
579.
Arbitration proceedings.
580.
Arbitration awards.
581.
Judicial review.
[582.
Repealed.]
583.
Support services.
584.
Authorization of appropriations.
SUBCHAPTER V—ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES
591.
592.
593.
594.
595.
596.
Purposes.
Definitions.
Administrative Conference of the
States.
Powers and duties of the Conference.
Organization of the Conference.
Authorization of appropriations.
United
AMENDMENTS
2004—Pub. L. 108–401, § 2(b)(2), Oct. 30, 2004, 118 Stat.
2255, substituted ‘‘Purposes’’ for ‘‘Purpose’’ in item 591.
1996—Pub. L. 104–320, §§ 4(b)(2), 10(b), 11(b)(2), (d)(2),
Oct. 19, 1996, 110 Stat. 3871, 3873, 3874, in item 569 substituted ‘‘Encouraging negotiated rulemaking’’ for
‘‘Role of the Administrative Conference of the United
States and other entities’’, added items 570a and 584,
and struck out item 582 ‘‘Compilation of information’’.
1992—Pub. L. 102–354, § 4, Aug. 26, 1992, 106 Stat. 945,
substituted headings of subchapters III, IV, and V and
items 561 to 570, 571 to 583, and 591 to 596 for former
heading of subchapter III and former items 571 to 576
relating to Administrative Conference of the United
States, former heading of subchapter IV and former
items 581 to 593 relating to alternative means of dispute
resolution in the administrative process, and former
heading of subchapter IV and former items 581 to 590 relating to negotiated rulemaking procedure.
1990—Pub. L. 101–648, § 3(b), Nov. 29, 1990, 104 Stat.
4976, added heading of subchapter IV and items 581 to
590 relating to negotiated rulemaking procedure.
Pub. L. 101–552, § 4(c), Nov. 15, 1990, 104 Stat. 2745,
added heading of subchapter IV and items 581 to 593 [renumbered 571 to 583] relating to alternative means of
dispute resolution.
1986—Pub. L. 99–470, § 2(b), Oct. 14, 1986, 100 Stat. 1198,
substituted ‘‘Authorization of appropriations’’ for ‘‘Appropriations’’ in item 576.
1985—Pub. L. 99–80, § 6, Aug. 5, 1985, 99 Stat. 186, revived item 504 and repealed Pub. L. 96–481, title II,
§ 203(c), Oct. 21, 1980, 94 Stat. 2327, which provided for
the repeal, effective Oct. 1, 1984, of item 504.
1980—Pub. L. 96–481, title II, § 203(a)(2), (c), Oct. 21,
1980, 94 Stat. 2327, added item 504 ‘‘Costs and fees of parties’’, and repealed that item effective Oct. 1, 1984.
1976—Pub. L. 94–409, § 3(b), Sept. 13, 1976, 90 Stat. 1246,
added item 552b.
§ 500
1974—Pub. L. 93–579, § 4, Dec. 31, 1974, 88 Stat. 1905,
added item 552a.
1967—Pub. L. 90–83, § 1(1)(B), Sept. 11, 1967, 81 Stat. 195,
added item 500.
Pub. L. 90–23, § 2, June 5, 1967, 81 Stat. 56, substituted
‘‘Public information; agency rules, opinions, orders,
records and proceedings’’ for ‘‘Publication of information, rules, opinions, orders, and public records’’ in
item 552.
SUBCHAPTER I—GENERAL PROVISIONS
§ 500. Administrative practice; general provisions
(a) For the purpose of this section—
(1) ‘‘agency’’ has the meaning given it by
section 551 of this title; and
(2) ‘‘State’’ means a State, a territory or
possession of the United States including a
Commonwealth, or the District of Columbia.
(b) An individual who is a member in good
standing of the bar of the highest court of a
State may represent a person before an agency
on filing with the agency a written declaration
that he is currently qualified as provided by this
subsection and is authorized to represent the
particular person in whose behalf he acts.
(c) An individual who is duly qualified to practice as a certified public accountant in a State
may represent a person before the Internal Revenue Service of the Treasury Department on filing with that agency a written declaration that
he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.
(d) This section does not—
(1) grant or deny to an individual who is not
qualified as provided by subsection (b) or (c) of
this section the right to appear for or represent a person before an agency or in an agency proceeding;
(2) authorize or limit the discipline, including disbarment, of individuals who appear in a
representative capacity before an agency;
(3) authorize an individual who is a former
employee of an agency to represent a person
before an agency when the representation is
prohibited by statute or regulation; or
(4) prevent an agency from requiring a power
of attorney as a condition to the settlement of
a controversy involving the payment of
money.
(e) Subsections (b)–(d) of this section do not
apply to practice before the United States Patent and Trademark Office with respect to patent
matters that continue to be covered by chapter
3 (sections 31–33) of title 35.
(f) When a participant in a matter before an
agency is represented by an individual qualified
under subsection (b) or (c) of this section, a notice or other written communication required or
permitted to be given the participant in the
matter shall be given to the representative in
addition to any other service specifically required by statute. When a participant is represented by more than one such qualified representative, service on any one of the representatives is sufficient.
(Added Pub. L. 90–83, § 1(1)(A), Sept. 11, 1967, 81
Stat. 195; amended Pub. L. 106–113, div. B,
§ 1000(a)(9) [title IV, § 4732(b)(2)], Nov. 29, 1999, 113
Stat. 1536, 1501A–583.)
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
§ 501
HISTORICAL AND REVISION NOTES
Section of
title 5
Source (U.S. Code)
500(a) .........
5 App.: 1014.
500(b)–(e) ...
5 App.: 1012.
500(f) .........
5 App.: 1013.
Source (Revised Statutes at
Large)
Nov.
§ 3,
Nov.
§ 1,
Nov.
§ 2,
8,
79
8,
79
8,
79
1965, Pub. L. 89–332,
Stat. 1281.
1965, Pub. L. 89–332,
Stat. 1281.
1965, Pub. L. 89–332,
Stat. 1281.
The definition of ‘‘State’’ in subsection (a)(2) is supplied for convenience and is based on the words ‘‘State,
possession, territory, Commonwealth, or District of Columbia’’ in subsections (a) and (b) of 5 App. U.S.C. 1012.
In subsection (d), the words ‘‘This section does not’’
are substituted for ‘‘nothing herein shall be construed’’.
In subsection (d)(3), the word ‘‘employee’’ is substituted for ‘‘officer or employee’’ to conform to the
definition of ‘‘employee’’ in 5 U.S.C. 2105.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
§ 503. Witness fees and allowances
(a) For the purpose of this section, ‘‘agency’’
has the meaning given it by section 5721 of this
title.
(b) A witness is entitled to the fees and allowances allowed by statute for witnesses in the
courts of the United States when—
(1) he is subpenaed under section 304(a) of
this title; or
(2) he is subpenaed to and appears at a hearing before an agency authorized by law to hold
hearings and subpena witnesses to attend the
hearings.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)
HISTORICAL AND REVISION NOTES
AMENDMENTS
1999—Subsec. (e). Pub. L. 106–113 substituted ‘‘United
States Patent and Trademark Office’’ for ‘‘Patent Office’’.
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by Pub. L. 106–113 effective 4 months
after Nov. 29, 1999, see section 1000(a)(9) [title IV, § 4731]
of Pub. L. 106–113, set out as a note under section 1 of
Title 35, Patents.
§ 501. Advertising practice; restrictions
An individual, firm, or corporation practicing
before an agency of the United States may not
use the name of a Member of either House of
Congress or of an individual in the service of the
United States in advertising the business.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)
HISTORICAL AND REVISION NOTES
Derivation
..................
U.S. Code
5 U.S.C. 101.
Revised Statutes and
Statutes at Large
Apr. 27, 1916, ch. 89, § 1, 39
Stat. 54.
The words ‘‘may not’’ are substituted for ‘‘It shall be
unlawful for’’. The words ‘‘agency of the United
States’’ are substituted for ‘‘any department or office
of the Government’’. The words ‘‘an individual in the
service of the United States’’ are substituted for ‘‘officer of the Government’’ in view of the definitions in
sections 2104 and 2105.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
§ 502. Administrative practice; Reserves and National Guardsmen
Membership in a reserve component of the
armed forces or in the National Guard does not
prevent an individual from practicing his civilian profession or occupation before, or in connection with, an agency of the United States.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)
HISTORICAL AND REVISION NOTES
Derivation
..................
U.S. Code
5 U.S.C. 30r(c) (2d
sentence).
Page 20
Revised Statutes and
Statutes at Large
Aug. 10, 1956, ch. 1041, § 29(c)
(2d sentence), 70A Stat.
632.
Derivation
..................
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 95.
5 U.S.C. 95a.
R.S. § 185.
Aug. 2, 1946, ch. 744, § 10, 60
Stat. 809.
Former sections 95 and 95a are combined and restated
for clarity and brevity. The words ‘‘or expenses in the
case of Government officers and employees’’ are omitted as covered by section 1823 of title 28. The word
‘‘agency’’ is substituted for ‘‘department’’ and defined
to conform to the definition of ‘‘department’’ in section
18 of the Act of Aug. 2, 1946, ch. 744, 60 Stat. 811.
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added
Aug. 10, 1949, ch. 412, § 4, 63 Stat. 579 (former 5 U.S.C.
171–1), which provides ‘‘Except to the extent inconsistent with the provisions of this Act [National Security
Act of 1947], the provisions of title IV of the Revised
Statutes as now or hereafter amended shall be applicable to the Department of Defense’’ is omitted from this
title but is not repealed.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
§ 504. Costs and fees of parties
(a)(1) An agency that conducts an adversary
adjudication shall award, to a prevailing party
other than the United States, fees and other expenses incurred by that party in connection
with that proceeding, unless the adjudicative officer of the agency finds that the position of the
agency was substantially justified or that special circumstances make an award unjust.
Whether or not the position of the agency was
substantially justified shall be determined on
the basis of the administrative record, as a
whole, which is made in the adversary adjudication for which fees and other expenses are
sought.
(2) A party seeking an award of fees and other
expenses shall, within thirty days of a final disposition in the adversary adjudication, submit
to the agency an application which shows that
the party is a prevailing party and is eligible to
receive an award under this section, and the
amount sought, including an itemized statement
from any attorney, agent, or expert witness representing or appearing in behalf of the party
stating the actual time expended and the rate at
which fees and other expenses were computed.
The party shall also allege that the position of
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
the agency was not substantially justified. When
the United States appeals the underlying merits
of an adversary adjudication, no decision on an
application for fees and other expenses in connection with that adversary adjudication shall
be made under this section until a final and unreviewable decision is rendered by the court on
the appeal or until the underlying merits of the
case have been finally determined pursuant to
the appeal.
(3) The adjudicative officer of the agency may
reduce the amount to be awarded, or deny an
award, to the extent that the party during the
course of the proceedings engaged in conduct
which unduly and unreasonably protracted the
final resolution of the matter in controversy.
The decision of the adjudicative officer of the
agency under this section shall be made a part
of the record containing the final decision of the
agency and shall include written findings and
conclusions and the reason or basis therefor.
The decision of the agency on the application
for fees and other expenses shall be the final administrative decision under this section.
(4) If, in an adversary adjudication arising
from an agency action to enforce a party’s compliance with a statutory or regulatory requirement, the demand by the agency is substantially
in excess of the decision of the adjudicative officer and is unreasonable when compared with
such decision, under the facts and circumstances
of the case, the adjudicative officer shall award
to the party the fees and other expenses related
to defending against the excessive demand, unless the party has committed a willful violation
of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Fees and
expenses awarded under this paragraph shall be
paid only as a consequence of appropriations
provided in advance.
(b)(1) For the purposes of this section—
(A) ‘‘fees and other expenses’’ includes the
reasonable expenses of expert witnesses, the
reasonable cost of any study, analysis, engineering report, test, or project which is found
by the agency to be necessary for the preparation of the party’s case, and reasonable attorney or agent fees (The amount of fees awarded
under this section shall be based upon prevailing market rates for the kind and quality of
the services furnished, except that (i) no expert witness shall be compensated at a rate in
excess of the highest rate of compensation for
expert witnesses paid by the agency involved,
and (ii) attorney or agent fees shall not be
awarded in excess of $125 per hour unless the
agency determines by regulation that an increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys or agents for the proceedings involved,
justifies a higher fee.);
(B) ‘‘party’’ means a party, as defined in section 551(3) of this title, who is (i) an individual
whose net worth did not exceed $2,000,000 at
the time the adversary adjudication was initiated, or (ii) any owner of an unincorporated
business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed
$7,000,000 at the time the adversary adjudication was initiated, and which had not more
§ 504
than 500 employees at the time the adversary
adjudication was initiated; except that an organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 (26 U.S.C.
501(c)(3)) exempt from taxation under section
501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may
be a party regardless of the net worth of such
organization or cooperative association or for
purposes of subsection (a)(4), a small entity as
defined in section 601;
(C) ‘‘adversary adjudication’’ means (i) an
adjudication under section 554 of this title in
which the position of the United States is represented by counsel or otherwise, but excludes
an adjudication for the purpose of establishing
or fixing a rate or for the purpose of granting
or renewing a license, (ii) any appeal of a decision made pursuant to section 7103 of title 41
before an agency board of contract appeals as
provided in section 7105 of title 41, (iii) any
hearing conducted under chapter 38 of title 31,
and (iv) the Religious Freedom Restoration
Act of 1993;
(D) ‘‘adjudicative officer’’ means the deciding official, without regard to whether the official is designated as an administrative law
judge, a hearing officer or examiner, or otherwise, who presided at the adversary adjudication;
(E) ‘‘position of the agency’’ means, in addition to the position taken by the agency in the
adversary adjudication, the action or failure
to act by the agency upon which the adversary
adjudication is based; except that fees and
other expenses may not be awarded to a party
for any portion of the adversary adjudication
in which the party has unreasonably protracted the proceedings; and
(F) ‘‘demand’’ means the express demand of
the agency which led to the adversary adjudication, but does not include a recitation by
the agency of the maximum statutory penalty
(i) in the administrative complaint, or (ii)
elsewhere when accompanied by an express demand for a lesser amount.
(2) Except as otherwise provided in paragraph
(1), the definitions provided in section 551 of this
title apply to this section.
(c)(1) After consultation with the Chairman of
the Administrative Conference of the United
States, each agency shall by rule establish uniform procedures for the submission and consideration of applications for an award of fees and
other expenses. If a court reviews the underlying
decision of the adversary adjudication, an award
for fees and other expenses may be made only
pursuant to section 2412(d)(3) of title 28, United
States Code.
(2) If a party other than the United States is
dissatisfied with a determination of fees and
other expenses made under subsection (a), that
party may, within 30 days after the determination is made, appeal the determination to the
court of the United States having jurisdiction to
review the merits of the underlying decision of
the agency adversary adjudication. The court’s
determination on any appeal heard under this
paragraph shall be based solely on the factual
record made before the agency. The court may
§ 504
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
modify the determination of fees and other expenses only if the court finds that the failure to
make an award of fees and other expenses, or the
calculation of the amount of the award, was unsupported by substantial evidence.
(d) Fees and other expenses awarded under this
subsection shall be paid by any agency over
which the party prevails from any funds made
available to the agency by appropriation or
otherwise.
(e) The Chairman of the Administrative Conference of the United States, after consultation
with the Chief Counsel for Advocacy of the
Small Business Administration, shall report annually to the Congress on the amount of fees
and other expenses awarded during the preceding fiscal year pursuant to this section. The report shall describe the number, nature, and
amount of the awards, the claims involved in
the controversy, and any other relevant information which may aid the Congress in evaluating the scope and impact of such awards. Each
agency shall provide the Chairman with such information as is necessary for the Chairman to
comply with the requirements of this subsection.
(f) No award may be made under this section
for costs, fees, or other expenses which may be
awarded under section 7430 of the Internal Revenue Code of 1986.
(Added Pub. L. 96–481, title II, § 203(a)(1), (c), Oct.
21, 1980, 94 Stat. 2325, 2327; revived and amended
Pub. L. 99–80, §§ 1, 6, Aug. 5, 1985, 99 Stat. 183, 186;
Pub. L. 99–509, title VI, § 6103(c), Oct. 21, 1986, 100
Stat. 1948; Pub. L. 99–514, § 2, Oct. 22, 1986, 100
Stat. 2095; Pub. L. 100–647, title VI, § 6239(b), Nov.
10, 1988, 102 Stat. 3746; Pub. L. 103–141, § 4(b), Nov.
16, 1993, 107 Stat. 1489; Pub. L. 104–121, title II,
§ 231, Mar. 29, 1996, 110 Stat. 862; Pub. L. 111–350,
§ 5(a)(1), Jan. 4, 2011, 124 Stat. 3841.)
REFERENCES IN TEXT
The Religious Freedom Restoration Act of 1993, referred to in subsec. (b)(1)(C)(iv), is Pub. L. 103–141, Nov.
16, 1993, 107 Stat. 1488, which is classified principally to
chapter 21B (§ 2000bb et seq.) of Title 42, The Public
Health and Welfare. For complete classification of this
Act to the Code, see Short Title note set out under section 2000bb of Title 42 and Tables.
Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (f), is classified to section 7430 of
Title 26, Internal Revenue Code.
AMENDMENTS
2011—Subsec. (b)(1)(C)(ii). Pub. L. 111–350 substituted
‘‘section 7103 of title 41’’ for ‘‘section 6 of the Contract
Disputes Act of 1978 (41 U.S.C. 605)’’ and ‘‘section 7105 of
title 41’’ for ‘‘section 8 of that Act (41 U.S.C. 607)’’.
1996—Subsec. (a)(4). Pub. L. 104–121, § 231(a), added
par. (4).
Subsec. (b)(1)(A)(ii). Pub. L. 104–121, § 231(b)(1), substituted ‘‘$125’’ for ‘‘$75’’.
Subsec. (b)(1)(B). Pub. L. 104–121, § 231(b)(2), inserted
before semicolon at end ‘‘or for purposes of subsection
(a)(4), a small entity as defined in section 601’’.
Subsec. (b)(1)(F). Pub. L. 104–121, § 231(b)(3)–(5), added
subpar. (F).
1993—Subsec. (b)(1)(C). Pub. L. 103–141 added cl. (iv).
1988—Subsec. (f). Pub. L. 100–647 added subsec. (f).
1986—Subsec. (b)(1)(B). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue
Code of 1954’’.
Subsec. (b)(1)(C)(iii). Pub. L. 99–509 added cl. (iii).
1985—Subsec. (a)(1). Pub. L. 99–80, § 1(a)(1), (2), struck
out ‘‘as a party to the proceeding’’ after ‘‘the position
Page 22
of the agency’’, and inserted ‘‘Whether or not the position of the agency was substantially justified shall be
determined on the basis of the administrative record,
as a whole, which is made in the adversary adjudication
for which fees and other expenses are sought.’’
Subsec. (a)(2). Pub. L. 99–80, § 1(b), inserted ‘‘When the
United States appeals the underlying merits of an adversary adjudication, no decision on an application for
fees and other expenses in connection with that adversary adjudication shall be made under this section
until a final and unreviewable decision is rendered by
the court on the appeal or until the underlying merits
of the case have been finally determined pursuant to
the appeal.’’
Subsec. (a)(3). Pub. L. 99–80, § 1(a)(3), inserted ‘‘The
decision of the agency on the application for fees and
other expenses shall be the final administrative decision under this section.’’
Subsec. (b)(1)(B). Pub. L. 99–80, § 1(c)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B)
read as follows: ‘‘ ‘party’ means a party, as defined in
section 551(3) of this title, which is an individual, partnership, corporation, association, or public or private
organization other than an agency, but excludes (i) any
individual whose net worth exceeded $1,000,000 at the
time the adversary adjudication was initiated, and any
sole owner of an unincorporated business, or any partnership, corporation, association, or organization
whose net worth exceeded $5,000,000 at the time the adversary adjudication was initiated, except that an organization described in section 501(c)(3) of the Internal
Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from
taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a
party regardless of the net worth of such organization
or cooperative association, and (ii) any sole owner of an
unincorporated business, or any partnership, corporation, association, or organization, having more than 500
employees at the time the adversary adjudication was
initiated;’’.
Subsec. (b)(1)(C). Pub. L. 99–80, § 1(c)(2), designated existing provisions of subpar. (C) as cl. (i) thereof by inserting ‘‘(i)’’ before ‘‘an adjudication under’’, added cl.
(ii), and struck out ‘‘and’’ after the semicolon at the
end.
Subsec. (b)(1)(D), (E). Pub. L. 99–80, § 1(c)(3), substituted ‘‘; and’’ for the period at end of subpar. (D),
and added subpar. (E).
Subsec. (c)(2). Pub. L. 99–80, § 1(d), amended par. (2)
generally. Prior to amendment, par. (2) read as follows:
‘‘A party dissatisfied with the fee determination made
under subsection (a) may petition for leave to appeal to
the court of the United States having jurisdiction to
review the merits of the underlying decision of the
agency adversary adjudication. If the court denies the
petition for leave to appeal, no appeal may be taken
from the denial. If the court grants the petition, it may
modify the determination only if it finds that the failure to make an award, or the calculation of the amount
of the award, was an abuse of discretion.’’
Subsec. (d). Pub. L. 99–80, § 1(e), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows:
‘‘(1) Fees and other expenses awarded under this section may be paid by any agency over which the party
prevails from any funds made available to the agency,
by appropriation or otherwise, for such purpose. If not
paid by any agency, the fees and other expenses shall
be paid in the same manner as the payment of final
judgments is made pursuant to section 2414 of title 28,
United States Code.
‘‘(2) There is authorized to be appropriated to each
agency for each of the fiscal years 1982, 1983, and 1984,
such sums as may be necessary to pay fees and other
expenses awarded under this section in such fiscal
years.’’
1980—Pub. L. 96–481, § 203(c), which provided for the
repeal of this section effective Oct. 1, 1984, was itself repealed and this section was revived by section 6 of Pub.
L. 99–80, set out as a note below.
Page 23
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
EFFECTIVE DATE OF 1996 AMENDMENT
Section 233 of Pub. L. 104–121 provided that: ‘‘The
amendments made by sections 331 and 332 [probably
means sections 231 and 232, amending this section and
section 2412 of Title 28, Judiciary and Judicial Procedure] shall apply to civil actions and adversary adjudications commenced on or after the date of the enactment of this subtitle [Mar. 29, 1996].’’
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100–647 applicable to proceedings commencing after Nov. 10, 1988, see section 6239(d)
of Pub. L. 100–647, set out as a note under section 7430
of Title 26, Internal Revenue Code.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–509 effective Oct. 21, 1986,
and applicable to any claim or statement made, presented or submitted on or after such date, see section
6104 of Pub. L. 99–509, set out as an Effective Date note
under section 3801 of Title 31, Money and Finance.
EFFECTIVE DATE OF 1985 AMENDMENT
Section 7 of Pub. L. 99–80 provided that:
‘‘(a) IN GENERAL.—Except as otherwise provided in
this section, the amendments made by this Act [reviving and amending this section and section 2412(d) of
Title 28, Judiciary and Judicial Procedure, and amending and repealing provisions set out as notes under
those sections] shall apply to cases pending on or commenced on or after the date of the enactment of this
Act [Aug. 5, 1985].
‘‘(b) APPLICABILITY OF AMENDMENTS TO CERTAIN PRIOR
CASES.—The amendments made by this Act shall apply
to any case commenced on or after October 1, 1984, and
finally disposed of before the date of the enactment of
this Act [Aug. 5, 1985], except that in any such case, the
30-day period referred to in section 504(a)(2) of title 5,
United States Code, or section 2412(d)(1)(B) of title 28,
United States Code, as the case may be, shall be
deemed to commence on the date of the enactment of
this Act.
‘‘(c) APPLICABILITY OF AMENDMENTS TO PRIOR BOARD
OF CONTRACTS APPEALS CASES.—Section 504(b)(1)(C)(ii)
of title 5, United States Code, as added by section
1(c)(2) of this Act, and section 2412(d)(2)(E) of title 28,
United States Code, as added by section 2(c)(2) of this
Act, shall apply to any adversary adjudication pending
on or commenced on or after October 1, 1981, in which
applications for fees and other expenses were timely
filed and were dismissed for lack of jurisdiction.’’
EFFECTIVE DATE
Section 208 of title II of Pub. L. 96–481, as amended by
Pub. L. 99–80, § 5, Aug. 5, 1985, 99 Stat. 186, provided
that: ‘‘This title and the amendments made by this
title [see Short Title note below] shall take effect of
[on] October 1, 1981, and shall apply to any adversary
adjudication, as defined in section 504(b)(1)(C) of title 5,
United States Code, and any civil action or adversary
adjudication described in section 2412 of title 28, United
States Code, which is pending on, or commenced on or
after, such date. Awards may be made for fees and
other expenses incurred before October 1, 1981, in any
such adversary adjudication or civil action.’’
Section 203(c) of Pub. L. 96–481 which provided that
effective Oct. 1, 1984, this section is repealed, except
that the provisions of this section shall continue to
apply through final disposition of any adversary adjudication initiated before the date of repeal, was itself
repealed by Pub. L. 99–80, § 6(b)(1), Aug. 5, 1985, 99 Stat.
186.
SHORT TITLE
Section 201 of title II of Pub. L. 96–481 provided that:
‘‘This title [enacting this section, amending section 634
of Title 15, Commerce and Trade, section 2412 of Title
28, Judiciary and Judicial Procedure, Rule 37 of the
§ 504
Federal Rules of Civil Procedure, set out in Title 28 Appendix, and section 1988 of Title 42, The Public Health
and Welfare, and enacting provisions set out as notes
under this section and section 2412 of Title 28] may be
cited as the ‘Equal Access to Justice Act’.’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (e) of this section relating to annual report
to Congress on the amount of fees and other expenses,
see section 3003 of Pub. L. 104–66, as amended, set out
as a note under section 1113 of Title 31, Money and Finance, and page 153 of House Document No. 103–7.
TERMINATION OF ADMINISTRATIVE CONFERENCE OF
UNITED STATES
For termination of Administrative Conference of
United States, see provision of title IV of Pub. L.
104–52, set out as a note preceding section 591 of this
title.
PROHIBITION ON USE OF ENERGY AND WATER DEVELOPMENT APPROPRIATIONS TO PAY INTERVENING PARTIES
IN REGULATORY OR ADJUDICATORY PROCEEDINGS
Pub. L. 102–377, title V, § 502, Oct. 2, 1992, 106 Stat.
1342, provided that: ‘‘None of the funds in this Act or
subsequent Energy and Water Development Appropriations Acts shall be used to pay the expenses of, or
otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such
Acts.’’
REVIVAL OF PREVIOUSLY REPEALED PROVISIONS
Section 6 of Pub. L. 99–80 provided that:
‘‘(a) REVIVAL OF CERTAIN EXPIRED PROVISIONS.—Section 504 of title 5, United States Code, and the item relating to that section in the table of sections of chapter
5 of title 5, United States Code, and subsection (d) of
section 2412 of title 28, United States Code, shall be effective on or after the date of the enactment of this Act
[Aug. 5, 1985] as if they had not been repealed by sections 203(c) and 204(c) of the Equal Access to Justice
Act [Pub. L. 96–481].
‘‘(b) REPEALS.—
‘‘(1) Section 203(c) of the Equal Access to Justice
Act [which repealed this section] is hereby repealed.
‘‘(2) Section 204(c) of the Equal Access to Justice
Act [which repealed section 2412(d) of title 28] is hereby repealed.’’
CONGRESSIONAL FINDINGS AND PURPOSES
Section 202 of title II of Pub. L. 96–481 provided that:
‘‘(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.
‘‘(b) The Congress further finds that because of the
greater resources and expertise of the United States
the standard for an award of fees against the United
States should be different from the standard governing
an award against a private litigant, in certain situations.
‘‘(c) It is the purpose of this title [see Short Title
note above]—
‘‘(1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by
providing in specified situations an award of attorney
fees, expert witness fees, and other costs against the
United States; and
‘‘(2) to insure the applicability in actions by or
against the United States of the common law and
statutory exceptions to the ‘American rule’ respecting the award of attorney fees.’’
LIMITATION ON PAYMENTS
Section 207 of title II of Pub. L. 96–481, which provided that the payment of judgments, fees and other
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
§ 551
expenses in the same manner as the payment of final
judgments as provided in this Act [probably should be
‘‘this title’’, see Short Title note above] would be effective only to the extent and in such amounts as are provided in advance in appropriation Acts, was repealed by
Pub. L. 99–80, § 4, Aug. 5, 1985, 99 Stat. 186.
SUBCHAPTER II—ADMINISTRATIVE
PROCEDURE
SHORT TITLE
The provisions of this subchapter and chapter 7 of
this title 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 Pub. L. 89–554
and its provisions incorporated into this subchapter
and chapter 7 hereof.
§ 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; 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, nega-
Page 24
tive, 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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381; Pub. L.
94–409, § 4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L.
103–272, § 5(a), July 5, 1994, 108 Stat. 1373; Pub. L.
111–350, § 5(a)(2), Jan. 4, 2011, 124 Stat. 3841.)
HISTORICAL AND REVISION NOTES
Derivation
(1) .............
U.S. Code
5 U.S.C. 1001(a).
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.
Page 25
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
HISTORICAL AND REVISION NOTES—CONTINUED
Derivation
(2)–(13) .......
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1001 (less
(a)).
Mar. 30, 1948, ch. 161, § 301,
62 Stat. 99.
June 11, 1946, ch. 324, § 2
(less (a)), 60 Stat. 237.
In paragraph (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 paragraph (1)(G), the words ‘‘or naval’’ are omitted
as included in ‘‘military’’.
In paragraph (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 ‘‘Selective 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 section 1641(b)(2) of title 50, appendix, is retained notwithstanding its repeal by § 111(a)(1) of the Act of Sept. 21,
1961, Pub. L. 87–256, 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 Pub. L.
87–256.
In paragraph (2), the words ‘‘of any character’’ are
omitted as surplusage.
In paragraph (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 paragraph (9), a comma is supplied between the
words ‘‘limitation’’ and ‘‘amendment’’ to correct an
editorial error of omission.
In paragraph (10)(C), the words ‘‘of any form’’ are
omitted as surplusage.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
CODIFICATION
Section 551 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2242 of Title 7, Agriculture.
AMENDMENTS
2011—Par. (1)(H). Pub. L. 111–350 struck out ‘‘chapter
2 of title 41;’’ after ‘‘title 12;’’.
1994—Par. (1)(H). Pub. L. 103–272 substituted ‘‘subchapter II of chapter 471 of title 49; or sections’’ for ‘‘or
sections 1622,’’.
1976—Par. (14). Pub. L. 94–409 added par. (14).
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94–409 effective 180 days after
Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as
an Effective Date note under section 552b of this title.
STUDY AND REPORTS ON ADMINISTRATIVE SUBPOENAS
Pub. L. 106–544, § 7, Dec. 19, 2000, 114 Stat. 2719, provided that:
‘‘(a) STUDY ON USE OF ADMINISTRATIVE SUBPOENAS.—
Not later than December 31, 2001, the Attorney General,
in consultation with the Secretary of the Treasury,
shall complete a study on the use of administrative
subpoena power by executive branch agencies or entities and shall report the findings to the Committees on
the Judiciary of the Senate and the House of Representatives. Such report shall include—
§ 552
‘‘(1) a description of the sources of administrative
subpoena power and the scope of such subpoena power
within executive branch agencies;
‘‘(2) a description of applicable subpoena enforcement mechanisms;
‘‘(3) a description of any notification provisions and
any other provisions relating to safeguarding privacy
interests;
‘‘(4) a description of the standards governing the issuance of administrative subpoenas; and
‘‘(5) recommendations from the Attorney General
regarding necessary steps to ensure that administrative subpoena power is used and enforced consistently
and fairly by executive branch agencies.
‘‘(b) REPORT ON FREQUENCY OF USE OF ADMINISTRATIVE SUBPOENAS.—
‘‘(1) IN GENERAL.—The Attorney General and the
Secretary of the Treasury shall report in January of
each year to the Committees on the Judiciary of the
Senate and the House of Representatives on the number of administrative subpoenas issued by them under
this section and the identity of the agency or component of the Department of Justice or the Department
of the Treasury issuing the subpoena and imposing
the charges.
‘‘(2) EXPIRATION.—The reporting requirement of this
subsection shall terminate in 3 years after the date of
the enactment of this section [Dec. 19, 2000].’’
§ 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—
§ 552
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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;
(C) administrative staff manuals and instructions to staff that affect a member of the
public;
(D) copies of all records, regardless of form
or format, which have been released to any
person under paragraph (3) and which, because
of the nature of their subject matter, the
agency determines have become or are likely
to become the subject of subsequent requests
for substantially the same records; and
(E) a general index of the records referred to
under subparagraph (D);
unless the materials are promptly published and
copies offered for sale. For records created on or
after November 1, 1996, within one year after
such date, each agency shall make such records
available, including by computer telecommunications or, if computer telecommunications
means have not been established by the agency,
by other electronic means. 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, staff manual, instruction, or copies of
records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully in writing, and the
extent of such deletion shall be indicated on the
portion of the record which is made available or
published, unless including that indication
would harm an interest protected by the exemption in subsection (b) under which the deletion
is made. If technically feasible, the extent of the
deletion shall be indicated at the place in the
record where the deletion was made. 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. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. 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.
Page 26
(3)(A) Except with respect to the records made
available under paragraphs (1) and (2) of this
subsection, and except as provided in subparagraph (E), each agency, upon any request for
records which (i) reasonably describes such
records and (ii) 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.
(B) In making any record available to a person
under this paragraph, an agency shall provide
the record in any form or format requested by
the person if the record is readily reproducible
by the agency in that form or format. Each
agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts
would significantly interfere with the operation
of the agency’s automated information system.
(D) For purposes of this paragraph, the term
‘‘search’’ means to review, manually or by automated means, agency records for the purpose of
locating those records which are responsive to a
request.
(E) An agency, or part of an agency, that is an
element of the intelligence community (as that
term is defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4))) shall not
make any record available under this paragraph
to—
(i) any government entity, other than a
State, territory, commonwealth, or district of
the United States, or any subdivision thereof;
or
(ii) a representative of a government entity
described in clause (i).
(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.
In this clause, the term ‘‘a representative of the
news media’’ means any person or entity that
Page 27
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
gathers information of potential interest to a
segment of the public, uses its editorial skills to
turn the raw materials into a distinct work, and
distributes that work to an audience. In this
clause, the term ‘‘news’’ means information that
is about current events or that would be of current interest to the public. Examples of newsmedia entities are television or radio stations
broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of ‘‘news’’) who make their
products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications
services), such alternative media shall be considered to be news-media entities. A freelance
journalist shall be regarded as working for a
news-media entity if the journalist can demonstrate a solid basis for expecting publication
through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for
such an expectation; the Government may also
consider the past publication record of the requester in making such a determination.
(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.
§ 552
(viii) An agency shall not assess search fees
(or in the case of a requester described under
clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any
time limit under paragraph (6), if no unusual or
exceptional circumstances (as those terms are
defined for purposes of paragraphs (6)(B) and (C),
respectively) apply to the processing of the request.
(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. In addition to any other matters to
which a court accords substantial weight, a
court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under
paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).
(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, § 402(2),
Nov. 8, 1984, 98 Stat. 3357.]
(E)(i) 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.
(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either—
(I) a judicial order, or an enforceable written
agreement or consent decree; or
(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim
is not insubstantial.
(F)(i) 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
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
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.
(ii) The Attorney General shall—
(I) notify the Special Counsel of each civil
action described under the first sentence of
clause (i); and
(II) annually submit a report to Congress on
the number of such civil actions in the preceding year.
(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by
the Special Counsel under clause (i).
(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 20 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.
The 20-day period under clause (i) shall commence on the date on which the request is first
received by the appropriate component of the
agency, but in any event not later than ten days
after the request is first received by any component of the agency that is designated in the
agency’s regulations under this section to receive requests under this section. The 20-day period shall not be tolled by the agency except—
(I) that the agency may make one request to
the requester for information and toll the 20day period while it is awaiting such information that it has reasonably requested from the
requester under this section; or
(II) if necessary to clarify with the requester
issues regarding fee assessment. In either case,
the agency’s receipt of the requester’s response to the agency’s request for information
or clarification ends the tolling period.
(B)(i) 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
unusual circumstances for such extension and
Page 28
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, except as provided in
clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph
(A), the agency shall notify the person making
the request if the request cannot be processed
within the time limit specified in that clause
and shall provide the person an opportunity to
limit the scope of the request so that it may be
processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or
a modified request. To aid the requester, each
agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any
disputes between the requester and the agency.
Refusal by the person to reasonably modify the
request or arrange such an alternative time
frame shall be considered as a factor in determining whether exceptional circumstances exist
for purposes of subparagraph (C).
(iii) As used in this subparagraph, ‘‘unusual
circumstances’’ means, but only to the extent
reasonably necessary to the proper processing of
the particular requests—
(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.
(iv) Each agency may promulgate regulations,
pursuant to notice and receipt of public comment, providing for the aggregation of certain
requests by the same requestor, or by a group of
requestors acting in concert, if the agency reasonably believes that such requests actually
constitute a single request, which would otherwise satisfy the unusual circumstances specified
in this subparagraph, and the requests involve
clearly related matters. Multiple requests involving unrelated matters shall not be aggregated.
(C)(i) 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
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
records under this subsection shall set forth the
names and titles or positions of each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the
term ‘‘exceptional circumstances’’ does not include a delay that results from a predictable
agency workload of requests under this section,
unless the agency demonstrates reasonable
progress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify
the scope of a request or arrange an alternative
time frame for processing a request (or a modified request) under clause (ii) after being given
an opportunity to do so by the agency to whom
the person made the request shall be considered
as a factor in determining whether exceptional
circumstances exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public
comment, providing for multitrack processing of
requests for records based on the amount of
work or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may
provide a person making a request that does not
qualify for the fastest multitrack processing an
opportunity to limit the scope of the request in
order to qualify for faster processing.
(iii) This subparagraph shall not be considered
to affect the requirement under subparagraph
(C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public
comment, providing for expedited processing of
requests for records—
(I) in cases in which the person requesting
the records demonstrates a compelling need;
and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations
under this subparagraph must ensure—
(I) that a determination of whether to provide expedited processing shall be made, and
notice of the determination shall be provided
to the person making the request, within 10
days after the date of the request; and
(II) expeditious consideration of administrative appeals of such determinations of whether
to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for records to which the
agency has granted expedited processing under
this subparagraph. Agency action to deny or affirm denial of a request for expedited processing
pursuant to this subparagraph, and failure by an
agency to respond in a timely manner to such a
request shall be subject to judicial review under
paragraph (4), except that the judicial review
shall be based on the record before the agency at
the time of the determination.
(iv) A district court of the United States shall
not have jurisdiction to review an agency denial
of expedited processing of a request for records
after the agency has provided a complete response to the request.
(v) For purposes of this subparagraph, the
term ‘‘compelling need’’ means—
(I) that a failure to obtain requested records
on an expedited basis under this paragraph
§ 552
could reasonably be expected to pose an imminent threat to the life or physical safety of an
individual; or
(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by
a person making a request for expedited processing shall be made by a statement certified by
such person to be true and correct to the best of
such person’s knowledge and belief.
(F) In denying a request for records, in whole
or in part, an agency shall make a reasonable effort to estimate the volume of any requested
matter the provision of which is denied, and
shall provide any such estimate to the person
making the request, unless providing such estimate would harm an interest protected by the
exemption in subsection (b) pursuant to which
the denial is made.
(7) Each agency shall—
(A) establish a system to assign an individualized tracking number for each request received that will take longer than ten days to
process and provide to each person making a
request the tracking number assigned to the
request; and
(B) establish a telephone line or Internet
service that provides information about the
status of a request to the person making the
request using the assigned tracking number,
including—
(i) the date on which the agency originally
received the request; and
(ii) an estimated date on which the agency
will complete action on the 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),
if that statute—
(A)(i) requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
(B) if enacted after the date of enactment
of the OPEN FOIA Act of 2009, specifically
cites to this paragraph.
(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;
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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. The amount of information deleted, and the exemption under
which the deletion is made, shall be indicated on
the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection
under which the deletion is made. If technically
feasible, the amount of the information deleted,
and the exemption under which the deletion is
made, shall be indicated at the place in the
record where such deletion is made.
(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 inform-
Page 30
ant’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)(1) On or before February 1 of each year,
each agency shall submit to the Attorney General of the United States a report which shall
cover the preceding fiscal year and which shall
include—
(A) the number of determinations made by
the agency not to comply with requests for
records made to such agency under subsection
(a) and the reasons for each such determination;
(B)(i) 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;
and
(ii) a complete list of all statutes that the
agency relies upon to authorize the agency to
withhold information under subsection (b)(3),
the number of occasions on which each statute
was relied upon, a description of whether a
court has upheld the decision of the agency to
withhold information under each such statute,
and a concise description of the scope of any
information withheld;
(C) the number of requests for records pending before the agency as of September 30 of the
preceding year, and the median and average
number of days that such requests had been
pending before the agency as of that date;
(D) the number of requests for records received by the agency and the number of requests which the agency processed;
(E) the median number of days taken by the
agency to process different types of requests,
based on the date on which the requests were
received by the agency;
(F) the average number of days for the agency to respond to a request beginning on the
date on which the request was received by the
agency, the median number of days for the
agency to respond to such requests, and the
range in number of days for the agency to respond to such requests;
(G) based on the number of business days
that have elapsed since each request was originally received by the agency—
(i) the number of requests for records to
which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up
to and including 200 days;
(ii) the number of requests for records to
which the agency has responded with a determination within a period greater than 200
days and less than 301 days;
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(iii) the number of requests for records to
which the agency has responded with a determination within a period greater than 300
days and less than 401 days; and
(iv) the number of requests for records to
which the agency has responded with a determination within a period greater than 400
days;
(H) the average number of days for the agency to provide the granted information beginning on the date on which the request was
originally filed, the median number of days for
the agency to provide the granted information, and the range in number of days for the
agency to provide the granted information;
(I) the median and average number of days
for the agency to respond to administrative
appeals based on the date on which the appeals
originally were received by the agency, the
highest number of business days taken by the
agency to respond to an administrative appeal, and the lowest number of business days
taken by the agency to respond to an administrative appeal;
(J) data on the 10 active requests with the
earliest filing dates pending at each agency,
including the amount of time that has elapsed
since each request was originally received by
the agency;
(K) data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business
days that have elapsed since the requests were
originally received by the agency;
(L) the number of expedited review requests
that are granted and denied, the average and
median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days;
(M) the number of fee waiver requests that
are granted and denied, and the average and
median number of days for adjudicating fee
waiver determinations;
(N) the total amount of fees collected by the
agency for processing requests; and
(O) the number of full-time staff of the agency devoted to processing requests for records
under this section, and the total amount expended by the agency for processing such requests.
(2) Information in each report submitted under
paragraph (1) shall be expressed in terms of each
principal component of the agency and for the
agency overall.
(3) Each agency shall make each such report
available to the public including by computer
telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means.
In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request.
(4) The Attorney General of the United States
shall make each report which has been made
available by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Government Reform and Oversight of
§ 552
the House of Representatives and the Chairman
and ranking minority member of the Committees on Governmental Affairs and the Judiciary
of the Senate, no later than April 1 of the year
in which each such report is issued, that such reports are available by electronic means.
(5) The Attorney General of the United States,
in consultation with the Director of the Office of
Management and Budget, shall develop reporting and performance guidelines in connection
with reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney
General determines may be useful.
(6) The Attorney General of the United States
shall submit an annual report on or before April
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 subparagraphs (E), (F), and (G) of
subsection (a)(4). 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—
(1) ‘‘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; and
(2) ‘‘record’’ and any other term used in this
section in reference to information includes—
(A) any information that would be an
agency record subject to the requirements of
this section when maintained by an agency
in any format, including an electronic format; and
(B) any information described under subparagraph (A) that is maintained for an
agency by an entity under Government contract, for the purposes of records management.
(g) The head of each agency shall prepare and
make publicly available upon request, reference
material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including—
(1) an index of all major information systems of the agency;
(2) a description of major information and
record locator systems maintained by the
agency; and
(3) a handbook for obtaining various types
and categories of public information from the
agency pursuant to chapter 35 of title 44, and
under this section.
(h)(1) There is established the Office of Government Information Services within the National Archives and Records Administration.
(2) The Office of Government Information
Services shall—
(A) review policies and procedures of administrative agencies under this section;
(B) review compliance with this section by
administrative agencies; and
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(C) recommend policy changes to Congress
and the President to improve the administration of this section.
(3) The Office of Government Information
Services shall offer mediation services to resolve disputes between persons making requests
under this section and administrative agencies
as a non-exclusive alternative to litigation and,
at the discretion of the Office, may issue advisory opinions if mediation has not resolved the
dispute.
(i) The Government Accountability Office
shall conduct audits of administrative agencies
on the implementation of this section and issue
reports detailing the results of such audits.
(j) Each agency shall designate a Chief FOIA
Officer who shall be a senior official of such
agency (at the Assistant Secretary or equivalent
level).
(k) The Chief FOIA Officer of each agency
shall, subject to the authority of the head of the
agency—
(1) have agency-wide responsibility for efficient and appropriate compliance with this
section;
(2) monitor implementation of this section
throughout the agency and keep the head of
the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing this section;
(3) recommend to the head of the agency
such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this
section;
(4) review and report to the Attorney General, through the head of the agency, at such
times and in such formats as the Attorney
General may direct, on the agency’s performance in implementing this section;
(5) facilitate public understanding of the
purposes of the statutory exemptions of this
section by including concise descriptions of
the exemptions in both the agency’s handbook
issued under subsection (g), and the agency’s
annual report on this section, and by providing an overview, where appropriate, of certain
general categories of agency records to which
those exemptions apply; and
(6) designate one or more FOIA Public Liaisons.
(l) FOIA Public Liaisons shall report to the
agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under
this section can raise concerns about the service
the requester has received from the FOIA Requester Center, following an initial response
from the FOIA Requester Center Staff. FOIA
Public Liaisons shall be responsible for assisting
in reducing delays, increasing transparency and
understanding of the status of requests, and assisting in the resolution of disputes.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383; Pub. L.
90–23, § 1, June 5, 1967, 81 Stat. 54; Pub. L. 93–502,
§§ 1–3, Nov. 21, 1974, 88 Stat. 1561–1564; Pub. L.
94–409, § 5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L.
95–454, title IX, § 906(a)(10), Oct. 13, 1978, 92 Stat.
1225; Pub. L. 98–620, title IV, § 402(2), Nov. 8, 1984,
98 Stat. 3357; Pub. L. 99–570, title I, §§ 1802, 1803,
Page 32
Oct. 27, 1986, 100 Stat. 3207–48, 3207–49; Pub. L.
104–231, §§ 3–11, Oct. 2, 1996, 110 Stat. 3049–3054;
Pub. L. 107–306, title III, § 312, Nov. 27, 2002, 116
Stat. 2390; Pub. L. 110–175, §§ 3, 4(a), 5, 6(a)(1),
(b)(1), 7(a), 8–10(a), 12, Dec. 31, 2007, 121 Stat.
2525–2530; Pub. L. 111–83, title V, § 564(b), Oct. 28,
2009, 123 Stat. 2184.)
HISTORICAL AND REVISION NOTES
1966 ACT
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1002.
June 11, 1946, ch. 324, § 3, 60
Stat. 238.
In subsection (b)(3), the words ‘‘formulated and’’ are
omitted as surplusage. In the last sentence of subsection (b), the words ‘‘in any manner’’ are omitted as
surplusage since the prohibition is all inclusive.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
1967 ACT
Section 1 [of Pub. L. 90–23] amends section 552 of title
5, United States Code, to reflect Public Law 89–487.
In subsection (a)(1)(A), the words ‘‘employees (and in
the case of a uniformed service, the member)’’ are substituted for ‘‘officer’’ to retain the coverage of Public
Law 89–487 and to conform to the definitions in 5 U.S.C.
2101, 2104, and 2105.
In the last sentence of subsection (a)(2), the words ‘‘A
final order * * * may be relied on * * * only if’’ are substituted for ‘‘No final order * * * may be relied upon
* * * unless’’; and the words ‘‘a party other than an
agency’’ and ‘‘the party’’ are substituted for ‘‘a private
party’’ and ‘‘the private party’’, respectively, on authority of the definition of ‘‘private party’’ in 5 App.
U.S.C. 1002(g).
In subsection (a)(3), the words ‘‘the responsible employee, and in the case of a uniformed service, the responsible member’’ are substituted for ‘‘the responsible
officers’’ to retain the coverage of Public Law 89–487
and to conform to the definitions in 5 U.S.C. 2101, 2104,
and 2105.
In subsection (a)(4), the words ‘‘shall maintain and
make available for public inspection a record’’ are substituted for ‘‘shall keep a record * * * and that record
shall be available for public inspection’’.
In subsection (b)(5) and (7), the words ‘‘a party other
than an agency’’ are substituted for ‘‘a private party’’
on authority of the definition of ‘‘private party’’ in 5
App. U.S.C. 1002(g).
In subsection (c), the words ‘‘This section does not
authorize’’ and ‘‘This section is not authority’’ are substituted for ‘‘Nothing in this section authorizes’’ and
‘‘nor shall this section be authority’’, respectively.
5 App. U.S.C. 1002(g), defining ‘‘private party’’ to
mean a party other than an agency, is omitted since
the words ‘‘party other than an agency’’ are substituted for the words ‘‘private party’’ wherever they
appear in revised 5 U.S.C. 552.
5 App. U.S.C. 1002(h), prescribing the effective date, is
omitted as unnecessary. That effective date is prescribed by section 4 of this bill.
REFERENCES IN TEXT
The date of enactment of the OPEN FOIA Act of 2009,
referred to in subsec. (b)(3)(B), is the date of enactment
of Pub. L. 111–83, which was approved Oct. 28, 2009.
CODIFICATION
Section 552 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2243 of Title 7, Agriculture.
AMENDMENTS
2009—Subsec. (b)(3). Pub. L. 111–83 added par. (3) and
struck out former par. (3), which read as follows: ‘‘spe-
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
cifically 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;’’.
2007—Subsec. (a)(4)(A)(ii). Pub. L. 110–175, § 3, inserted
concluding provisions.
Subsec. (a)(4)(A)(viii). Pub. L. 110–175, § 6(b)(1)(A),
added cl. (viii).
Subsec. (a)(4)(E). Pub. L. 110–175, § 4(a), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (a)(4)(F). Pub. L. 110–175, § 5, designated existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(A). Pub. L. 110–175, § 6(a)(1), inserted
concluding provisions.
Subsec. (a)(6)(B)(ii). Pub. L. 110–175, § 6(b)(1)(B), inserted after the first sentence ‘‘To aid the requester,
each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes
between the requester and the agency.’’
Subsec. (a)(7). Pub. L. 110–175, § 7(a), added par. (7).
Subsec. (b). Pub. L. 110–175, § 12, in concluding provisions, inserted ‘‘, and the exemption under which the
deletion is made,’’ after ‘‘The amount of information
deleted’’ in second sentence and after ‘‘the amount of
the information deleted’’ in third sentence.
Subsec. (e)(1)(B)(ii). Pub. L. 110–175, § 8(a)(1), inserted
‘‘the number of occasions on which each statute was relied upon,’’ after ‘‘subsection (b)(3),’’.
Subsec. (e)(1)(C). Pub. L. 110–175, § 8(a)(2), inserted
‘‘and average’’ after ‘‘median’’.
Subsec. (e)(1)(E). Pub. L. 110–175, § 8(a)(3), inserted before semicolon ‘‘, based on the date on which the requests were received by the agency’’.
Subsec. (e)(1)(F) to (O). Pub. L. 110–175, § 8(a)(4), (5),
added subpars. (F) to (M) and redesignated former subpars. (F) and (G) as (N) and (O), respectively.
Subsec. (e)(2). Pub. L. 110–175, § 8(b)(2), added par. (2).
Former par. (2) redesignated (3).
Subsec. (e)(3). Pub. L. 110–175, § 8(b)(1), (c), redesignated par. (2) as (3) and inserted at end ‘‘In addition,
each agency shall make the raw statistical data used in
its reports available electronically to the public upon
request.’’ Former par. (3) redesignated (4).
Subsec. (e)(4) to (6). Pub. L. 110–175, § 8(b)(1), redesignated pars. (3) to (5) as (4) to (6), respectively.
Subsec. (f)(2). Pub. L. 110–175, § 9, added par. (2) and
struck out former par. (2) which read as follows:
‘‘ ‘record’ and any other term used in this section in
reference to information includes any information that
would be an agency record subject to the requirements
of this section when maintained by an agency in any
format, including an electronic format.’’
Subsecs. (h) to (l). Pub. L. 110–175, § 10(a), added subsecs. (h) to (l).
2002—Subsec. (a)(3)(A). Pub. L. 107–306, § 312(1), inserted ‘‘and except as provided in subparagraph (E),’’
after ‘‘of this subsection,’’.
Subsec. (a)(3)(E). Pub. L. 107–306, § 312(2), added subpar. (E).
1996—Subsec. (a)(2). Pub. L. 104–231, § 4(4), (5), in first
sentence struck out ‘‘and’’ at end of subpar. (B) and inserted subpars. (D) and (E).
Pub. L. 104–231, § 4(7), inserted after first sentence
‘‘For records created on or after November 1, 1996, within one year after such date, each agency shall make
such records available, including by computer telecommunications or, if computer telecommunications
means have not been established by the agency, by
other electronic means.’’
Pub. L. 104–231, § 4(1), in second sentence substituted
‘‘staff manual, instruction, or copies of records referred
to in subparagraph (D)’’ for ‘‘or staff manual or instruction’’.
Pub. L. 104–231, § 4(2), inserted before period at end of
third sentence ‘‘, and the extent of such deletion shall
be indicated on the portion of the record which is made
available or published, unless including that indication
§ 552
would harm an interest protected by the exemption in
subsection (b) under which the deletion is made’’.
Pub. L. 104–231, § 4(3), inserted after third sentence ‘‘If
technically feasible, the extent of the deletion shall be
indicated at the place in the record where the deletion
was made.’’
Pub. L. 104–231, § 4(6), which directed the insertion of
the following new sentence after the fifth sentence
‘‘Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999.’’, was executed by making
the insertion after the sixth sentence, to reflect the
probable intent of Congress and the addition of a new
sentence by section 4(3) of Pub. L. 104–231.
Subsec. (a)(3). Pub. L. 104–231, § 5, inserted subpar. (A)
designation after ‘‘(3)’’, redesignated subpars. (A) and
(B) as cls. (i) and (ii), respectively, and added subpars.
(B) to (D).
Subsec. (a)(4)(B). Pub. L. 104–231, § 6, inserted at end
‘‘In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the
agency’s determination as to technical feasibility
under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).’’
Subsec. (a)(6)(A)(i). Pub. L. 104–231, § 8(b), substituted
‘‘20 days’’ for ‘‘ten days’’.
Subsec. (a)(6)(B). Pub. L. 104–231, § 7(b), amended subpar. (B) generally. Prior to amendment, subpar. (B)
read as follows: ‘‘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.’’
Subsec. (a)(6)(C). Pub. L. 104–231, § 7(c), designated existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(D). Pub. L. 104–231, § 7(a), added subpar.
(D).
Subsec. (a)(6)(E), (F). Pub. L. 104–231, § 8(a), (c), added
subpars. (E) and (F).
Subsec. (b). Pub. L. 104–231, § 9, inserted at end of closing provisions ‘‘The amount of information deleted
shall be indicated on the released portion of the record,
unless including that indication would harm an interest protected by the exemption in this subsection under
which the deletion is made. If technically feasible, the
amount of the information deleted shall be indicated at
the place in the record where such deletion is made.’’
Subsec. (e). Pub. L. 104–231, § 10, amended subsec. (e)
generally, revising and restating provisions relating to
reports to Congress.
Subsec. (f). Pub. L. 104–231, § 3, amended subsec. (f)
generally. Prior to amendment, subsec. (f) read as follows: ‘‘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.’’
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
Subsec. (g). Pub. L. 104–231, § 11, added subsec. (g).
1986—Subsec. (a)(4)(A). Pub. L. 99–570, § 1803, amended
subpar. (A) generally. Prior to amendment, subpar. (A)
read as follows: ‘‘In order to carry out the provisions of
this section, each agency shall promulgate regulations,
pursuant to notice and receipt of public comment,
specifying a uniform schedule of fees applicable to all
constituent units of such agency. Such fees shall be
limited to reasonable standard charges for document
search and duplication and provide for recovery of only
the direct costs of such search and duplication. Documents shall be furnished without charge or at a reduced
charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily
benefiting the general public.’’
Subsec. (b)(7). Pub. L. 99–570, § 1802(a), amended par.
(7) generally. Prior to amendment, par. (7) read as follows: ‘‘investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records 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;’’.
Subsecs. (c) to (f). Pub. L. 99–570, § 1802(b), added subsec. (c) and redesignated former subsecs. (c) to (e) as (d)
to (f), respectively.
1984—Subsec. (a)(4)(D). Pub. L. 98–620 repealed subpar.
(D) which provided for precedence on the docket and
expeditious disposition of district court proceedings authorized by subsec. (a).
1978—Subsec. (a)(4)(F). Pub. L. 95–454 substituted references to the Special Counsel for references to the
Civil Service Commission wherever appearing and reference to his findings for reference to its findings.
1976—Subsec. (b)(3). Pub. L. 94–409 inserted provision
excluding section 552b of this title from applicability of
exemption from disclosure and provision setting forth
conditions for statute specifically exempting disclosure.
1974—Subsec. (a)(2). Pub. L. 93–502, § 1(a), substituted
provisions relating to maintenance and availability of
current indexes, for provisions relating to maintenance
and availability of a current index, and inserted provisions relating to publication and distribution of copies
of indexes or supplements thereto.
Subsec. (a)(3). Pub. L. 93–502, § 1(b)(1), substituted provisions requiring requests to reasonably describe
records for provisions requiring requests, for identifiable records, and struck out provisions setting forth
procedures to enjoin agencies from withholding the requested records and ordering their production.
Subsec. (a)(4), (5). Pub. L. 93–502, § 1(b)(2), added par.
(4) and redesignated former par. (4) as (5).
Subsec. (a)(6). Pub. L. 93–502, § 1(c), added par. (6).
Subsec. (b)(1). Pub. L. 93–502, § 2(a), designated existing provisions as cl. (A), substituted ‘‘authorized under
criteria established by an’’ for ‘‘required by’’, and
added cl. (B).
Subsec. (b)(7). Pub. L. 93–502, § 2(b), substituted provisions relating to exemption for investigatory records
compiled for law enforcement purposes, for provisions
relating to exemption for investigatory files compiled
for law enforcement purposes.
Subsec. (b), foll. par. (9). Pub. L. 93–502, § 2(c), inserted
provision relating to availability of segregable portion
of records.
Subsecs. (d), (e). Pub. L. 93–502, § 3, added subsecs. (d)
and (e).
1967—Subsec. (a). Pub. L. 90–23 substituted introductory statement requiring every agency to make avail-
Page 34
able to the public certain information for former introductory provision excepting from disclosure (1) any
function of the United States requiring secrecy in the
public interest or (2) any matter relating to internal
management of an agency, covered in subsec. (b)(1) and
(2) of this section.
Subsec. (a)(1). Pub. L. 90–23 incorporated provisions
of: former subsec. (b)(1) in (A), inserting requirement of
publication of names of officers as sources of information and provision for public to obtain decisions, and
striking out publication requirement for delegations by
the agency of final authority; former subsec. (b)(2), introductory part, in (B); former subsec. (b)(2), concluding part, in (C), inserting publication requirement for
rules of procedure and descriptions of forms available
or the places at which forms may be obtained; former
subsec. (b)(3), introductory part, in (D), inserting requirement of general applicability of substantive rules
and interpretations, added clause (E), substituted exemption of any person from failure to resort to any
matter or from being adversely affected by any matter
required to be published in the Federal Register but not
so published for former subsec. (b)(3), concluding part,
excepting from publication rules addressed to and
served upon named persons in accordance with laws and
final sentence reading ‘‘A person may not be required
to resort to organization or procedure not so published’’ and inserted provision deeming matter, which
is reasonably available, as published in the Federal
Register when such matter is incorporated by reference
in the Federal Register with the approval of its Director.
Subsec. (a)(2). Pub. L. 90–23 incorporated provisions of
former subsec. (c), provided for public copying of
records, struck out requirement of agency publication
of final opinions or orders and authority for secrecy
and withholding of opinions and orders required for
good cause to be held confidential and not cited as
precedents, latter provision now superseded by subsec.
(b) of this section, designated existing subsec. (c) as
clause (A), including provision for availability of concurring and dissenting opinions, inserted provisions for
availability of policy statements and interpretations in
clause (B) and staff manuals and instructions in clause
(C), deletion of personal identifications from records to
protect personal privacy with written justification
therefor, and provision for indexing and prohibition of
use of records not indexed against any private party
without actual and timely notice of the terms thereof.
Subsec. (a)(3). Pub. L. 90–23 incorporated provisions of
former subsec. (d) and substituted provisions requiring
identifiable agency records to be made available to any
person upon request and compliance with rules as to
time, place, and procedure for inspection, and payment
of fees and provisions for Federal district court proceedings de novo for enforcement by contempt of noncompliance with court’s orders with the burden on the
agency and docket precedence for such proceedings for
former provisions requiring matters of official record
to be made available to persons properly and directly
concerned except information held confidential for
good cause shown, the latter provision superseded by
subsec. (b) of this section.
Subsec. (a)(4). Pub. L. 90–23 added par. (4).
Subsec. (b). Pub. L. 90–23 added subsec. (b) which superseded provisions excepting from disclosure any function of the United States requiring secrecy in the public interest or any matter relating to internal management of an agency, formerly contained in former subsec. (a), final opinions or orders required for good cause
to be held confidential and not cited as precedents, formerly contained in subsec. (c), and information held
confidential for good cause found, contained in former
subsec. (d) of this section.
Subsec. (c). Pub. L. 90–23 added subsec. (c).
CHANGE OF NAME
Committee on Governmental Affairs of Senate
changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by
Page 35
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Committee on Government Reform and Oversight of
House of Representatives changed to Committee on
Government Reform of House of Representatives by
House Resolution No. 5, One Hundred Sixth Congress,
Jan. 6, 1999. Committee on Government Reform of
House of Representatives changed to Committee on
Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred
Tenth Congress, Jan. 5, 2007.
§ 552
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94–409 effective 180 days after
Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as
an Effective Date note under section 552b of this title.
EFFECTIVE DATE OF 1974 AMENDMENT
Section 4 of Pub. L. 93–502 provided that: ‘‘The
amendments made by this Act [amending this section]
shall take effect on the ninetieth day beginning after
the date of enactment of this Act [Nov. 21, 1974].’’
EFFECTIVE DATE OF 2007 AMENDMENT
EFFECTIVE DATE OF 1967 AMENDMENT
Pub. L. 110–175, § 6(a)(2), Dec. 31, 2007, 121 Stat. 2526,
provided that: ‘‘The amendment made by this subsection [amending this section] shall take effect 1 year
after the date of enactment of this Act [Dec. 31, 2007].’’
Pub. L. 110–175, § 6(b)(2), Dec. 31, 2007, 121 Stat. 2526,
provided that: ‘‘The amendment made by this subsection [amending this section] shall take effect 1 year
after the date of enactment of this Act [Dec. 31, 2007]
and apply to requests for information under section 552
of title 5, United States Code, filed on or after that effective date.’’
Pub. L. 110–175, § 7(b), Dec. 31, 2007, 121 Stat. 2527, provided that: ‘‘The amendment made by this section
[amending this section] shall take effect 1 year after
the date of enactment of this Act [Dec. 31, 2007] and
apply to requests for information under section 552 of
title 5, United States Code, filed on or after that effective date.’’
Pub. L. 110–175, § 10(b), Dec. 31, 2007, 121 Stat. 2530, provided that: ‘‘The amendments made by this section
[amending this section] shall take effect on the date of
enactment of this Act [Dec. 31, 2007].’’
Section 4 of Pub. L. 90–23 provided that: ‘‘This Act
[amending this section] shall be effective July 4, 1967,
or on the date of enactment [June 5, 1967], whichever is
later.’’
EFFECTIVE DATE OF 1996 AMENDMENT
Section 12 of Pub. L. 104–231 provided that:
‘‘(a) IN GENERAL.—Except as provided in subsection
(b), this Act [amending this section and enacting provisions set out as notes below] shall take effect 180 days
after the date of the enactment of this Act [Oct. 2,
1996].
‘‘(b) PROVISIONS EFFECTIVE ON ENACTMENT [sic].—Sections 7 and 8 [amending this section] shall take effect
one year after the date of the enactment of this Act
[Oct. 2, 1996].’’
EFFECTIVE DATE OF 1986 AMENDMENT
Section 1804 of Pub. L. 99–570 provided that:
‘‘(a) The amendments made by section 1802 [amending
this section] shall be effective on the date of enactment
of this Act [Oct. 27, 1986], and shall apply with respect
to any requests for records, whether or not the request
was made prior to such date, and shall apply to any
civil action pending on such date.
‘‘(b)(1) The amendments made by section 1803 [amending this section] shall be effective 180 days after the
date of enactment of this Act [Oct. 27, 1986], except that
regulations to implement such amendments shall be
promulgated by such 180th day.
‘‘(2) The amendments made by section 1803 [amending
this section] shall apply with respect to any requests
for records, whether or not the request was made prior
to such date, and shall apply to any civil action pending on such date, except that review charges applicable
to records requested for commercial use shall not be
applied by an agency to requests made before the effective date specified in paragraph (1) of this subsection or
before the agency has finally issued its regulations.’’
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98–620 not applicable to cases
pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620,
set out as an Effective Date note under section 1657 of
Title 28, Judiciary and Judicial Procedure.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95–454 effective 90 days after
Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as
a note under section 1101 of this title.
SHORT TITLE OF 1996 AMENDMENT
Section 1 of Pub. L. 104–231 provided that: ‘‘This Act
[amending this section and enacting provisions set out
as notes under this section] may be cited as the ‘Electronic Freedom of Information Act Amendments of
1996’.’’
SHORT TITLE OF 1986 AMENDMENT
Section 1801 of Pub. L. 99–570 provided that: ‘‘This
subtitle [subtitle N (§§ 1801–1804) of title I of Pub. L.
99–570, amending this section and enacting provisions
set out as a note under this section] may be cited as
the ‘Freedom of Information Reform Act of 1986’.’’
SHORT TITLE
This section is popularly known as the ‘‘Freedom of
Information Act’’.
PROTECTED NATIONAL SECURITY DOCUMENTS
Pub. L. 111–83, title V, § 565, Oct. 28, 2009, 123 Stat.
2184, provided that:
‘‘(a) SHORT TITLE.—This section may be cited as the
‘Protected National Security Documents Act of 2009’.
‘‘(b) Notwithstanding any other provision of the law
to the contrary, no protected document, as defined in
subsection (c), shall be subject to disclosure under section 552 of title 5, United States Code[,] or any proceeding under that section.
‘‘(c) DEFINITIONS.—In this section:
‘‘(1) PROTECTED DOCUMENT.—The term ‘protected
document’ means any record—
‘‘(A) for which the Secretary of Defense has issued a certification, as described in subsection (d),
stating that disclosure of that record would endanger citizens of the United States, members of the
United States Armed Forces, or employees of the
United States Government deployed outside the
United States; and
‘‘(B) that is a photograph that—
‘‘(i) was taken during the period beginning on
September 11, 2001, through January 22, 2009; and
‘‘(ii) relates to the treatment of individuals engaged, captured, or detained after September 11,
2001, by the Armed Forces of the United States in
operations outside of the United States.
‘‘(2) PHOTOGRAPH.—The term ‘photograph’ encompasses all photographic images, whether originals or
copies, including still photographs, negatives, digital
images, films, video tapes, and motion pictures.
‘‘(d) CERTIFICATION.—
‘‘(1) IN GENERAL.—For any photograph described
under subsection (c)(1), the Secretary of Defense shall
issue a certification if the Secretary of Defense determines that disclosure of that photograph would endanger citizens of the United States, members of the
United States Armed Forces, or employees of the
United States Government deployed outside the
United States.
‘‘(2) CERTIFICATION EXPIRATION.—A certification and
a renewal of a certification issued pursuant to subsection (d)(3) shall expire 3 years after the date on
§ 552
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
which the certification or renewal, [sic] is issued by
the Secretary of Defense.
‘‘(3) CERTIFICATION RENEWAL.—The Secretary of Defense may issue—
‘‘(A) a renewal of a certification at any time; and
‘‘(B) more than 1 renewal of a certification.
‘‘(4) NOTICE TO CONGRESS.—The Secretary of Defense
shall provide Congress a timely notice of the Secretary’s issuance of a certification and of a renewal of
a certification.
‘‘(e) RULE OF CONSTRUCTION.—Nothing in this section
shall be construed to preclude the voluntary disclosure
of a protected document.
‘‘(f) EFFECTIVE DATE.—This section shall take effect
on the date of enactment of this Act [Oct. 28, 2009] and
apply to any protected document.’’
FINDINGS
Pub. L. 110–175, § 2, Dec. 31, 2007, 121 Stat. 2524, provided that: ‘‘Congress finds that—
‘‘(1) the Freedom of Information Act [probably
means Pub. L. 89–487 which amended section 1002 of
former Title 5, Executive Departments and Government Officers and Employees, see Historical and Revision notes above] was signed into law on July 4,
1966, because the American people believe that—
‘‘(A) our constitutional democracy, our system of
self-government, and our commitment to popular
sovereignty depends upon the consent of the governed;
‘‘(B) such consent is not meaningful unless it is
informed consent; and
‘‘(C) as Justice Black noted in his concurring
opinion in Barr v. Matteo (360 U.S. 564 (1959)), ‘The
effective functioning of a free government like ours
depends largely on the force of an informed public
opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or
employees.’;
‘‘(2) the American people firmly believe that our
system of government must itself be governed by a
presumption of openness;
‘‘(3) the Freedom of Information Act establishes a
‘strong presumption in favor of disclosure’ as noted
by the United States Supreme Court in United States
Department of State v. Ray (502 U.S. 164 (1991)), a presumption that applies to all agencies governed by
that Act;
‘‘(4) ‘disclosure, not secrecy, is the dominant objective of the Act,’ as noted by the United States Supreme Court in Department of Air Force v. Rose (425
U.S. 352 (1976));
‘‘(5) in practice, the Freedom of Information Act
has not always lived up to the ideals of that Act; and
‘‘(6) Congress should regularly review section 552 of
title 5, United States Code (commonly referred to as
the Freedom of Information Act), in order to determine whether further changes and improvements are
necessary to ensure that the Government remains
open and accessible to the American people and is always based not upon the ‘need to know’ but upon the
fundamental ‘right to know’.’’
LIMITATION ON AMOUNTS OBLIGATED OR EXPENDED
FROM CLAIMS AND JUDGMENT FUND
Pub. L. 110–175, § 4(b), Dec. 31, 2007, 121 Stat. 2525, provided that: ‘‘Notwithstanding section 1304 of title 31,
United States Code, no amounts may be obligated or
expended from the Claims and Judgment Fund of the
United States Treasury to pay the costs resulting from
fees assessed under section 552(a)(4)(E) of title 5, United
States Code. Any such amounts shall be paid only from
funds annually appropriated for any authorized purpose
for the Federal agency against which a claim or judgment has been rendered.’’
Page 36
‘‘(a) MANDATORY DISCLOSURE REQUIREMENTS INAPPLICABLE.—The requirements to make information
available under section 552 of title 5, United States
Code, shall not apply to land remote sensing information.
‘‘(b) LAND REMOTE SENSING INFORMATION DEFINED.—In
this section, the term ‘land remote sensing information’—
‘‘(1) means any data that—
‘‘(A) are collected by land remote sensing; and
‘‘(B) are prohibited from sale to customers other
than the United States Government and United
States Government-approved customers for reasons
of national security pursuant to the terms of an operating license issued pursuant to the Land Remote
Sensing Policy Act of 1992 ([former] 15 U.S.C. 5601 et
seq.) [now 51 U.S.C. 60101 et seq.]; and
‘‘(2) includes any imagery and other product that is
derived from such data and which is prohibited from
sale to customers other than the United States Government and United States Government-approved
customers for reasons of national security pursuant
to the terms of an operating license described in
paragraph (1)(B).
‘‘(c) STATE OR LOCAL GOVERNMENT DISCLOSURES.—
Land remote sensing information provided by the head
of a department or agency of the United States to a
State, local, or tribal government may not be made
available to the general public under any State, local,
or tribal law relating to the disclosure of information
or records.
‘‘(d) SAFEGUARDING INFORMATION.—The head of each
department or agency of the United States having land
remote sensing information within that department or
agency or providing such information to a State, local,
or tribal government shall take such actions, commensurate with the sensitivity of that information, as are
necessary to protect that information from disclosure
other than in accordance with this section and other
applicable law.
‘‘(e) ADDITIONAL DEFINITION.—In this section, the
term ‘land remote sensing’ has the meaning given such
term in section 3 of the Land Remote Sensing Policy
Act of 1992 ([former] 15 U.S.C. 5602) [now 51 U.S.C.
60101].
‘‘(f) DISCLOSURE TO CONGRESS.—Nothing in this section shall be construed to authorize the withholding of
information from the appropriate committees of Congress.’’
DISCLOSURE OF ARSON, EXPLOSIVE, OR FIREARM
RECORDS
Pub. L. 108–7, div. J, title VI, § 644, Feb. 20, 2003, 117
Stat. 473, provided that: ‘‘No funds appropriated under
this Act or any other Act with respect to any fiscal
year shall be available to take any action based upon
any provision of 5 U.S.C. 552 with respect to records
collected or maintained pursuant to 18 U.S.C. 846(b),
923(g)(3) or 923(g)(7), or provided by Federal, State,
local, or foreign law enforcement agencies in connection with arson or explosives incidents or the tracing of
a firearm, except that such records may continue to be
disclosed to the extent and in the manner that records
so collected, maintained, or obtained have been disclosed under 5 U.S.C. 552 prior to the date of the enactment of this Act [Feb. 20, 2003].’’
DISCLOSURE OF INFORMATION ON JAPANESE IMPERIAL
GOVERNMENT
Pub. L. 106–567, title VIII, Dec. 27, 2000, 114 Stat. 2864,
as amended by Pub. L. 108–199, div. H, § 163, Jan. 23, 2004,
118 Stat. 452; Pub. L. 109–5, § 1, Mar. 25, 2005, 119 Stat. 19,
provided that:
NONDISCLOSURE OF CERTAIN PRODUCTS OF COMMERCIAL
SATELLITE OPERATIONS
‘‘SEC. 801. SHORT TITLE.
‘‘This title may be cited as the ‘Japanese Imperial
Government Disclosure Act of 2000’.
Pub. L. 108–375, div. A, title IX, § 914, Oct. 28, 2004, 118
Stat. 2029, provided that:
‘‘SEC. 802. DESIGNATION.
‘‘(a) DEFINITIONS.—In this section:
Page 37
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
‘‘(1) AGENCY.—The term ‘agency’ has the meaning
given such term under section 551 of title 5, United
States Code.
‘‘(2) INTERAGENCY GROUP.—The term ‘Interagency
Group’ means the Nazi War Crimes and Japanese Imperial Government Records Interagency Working
Group established under subsection (b).
‘‘(3) JAPANESE IMPERIAL GOVERNMENT RECORDS.—The
term ‘Japanese Imperial Government records’ means
classified records or portions of records that pertain
to any person with respect to whom the United
States Government, in its sole discretion, has
grounds to believe ordered, incited, assisted, or otherwise participated in the experimentation on, and persecution of, any person because of race, religion, national origin, or political opinion, during the period
beginning September 18, 1931, and ending on December 31, 1948, under the direction of, or in association
with—
‘‘(A) the Japanese Imperial Government;
‘‘(B) any government in any area occupied by the
military forces of the Japanese Imperial Government;
‘‘(C) any government established with the assistance or cooperation of the Japanese Imperial Government; or
‘‘(D) any government which was an ally of the
Japanese Imperial Government.
‘‘(4) RECORD.—The term ‘record’ means a Japanese
Imperial Government record.
‘‘(b) ESTABLISHMENT OF INTERAGENCY GROUP.—
‘‘(1) IN GENERAL.—Not later than 60 days after the
date of the enactment of this Act [Dec. 27, 2000], the
President shall designate the Working Group established under the Nazi War Crimes Disclosure Act
(Public Law 105–246; 5 U.S.C. 552 note) to also carry
out the purposes of this title with respect to Japanese Imperial Government records, and that Working
Group shall remain in existence for 6 years after the
date on which this title takes effect. Such Working
Group is redesignated as the ‘Nazi War Crimes and
Japanese Imperial Government Records Interagency
Working Group’.
‘‘(2) MEMBERSHIP.—[Amended Pub. L. 105–246, set
out as a note below.]
‘‘(c) FUNCTIONS.—Not later than 1 year after the date
of the enactment of this Act [Dec. 27, 2000], the Interagency Group shall, to the greatest extent possible consistent with section 803—
‘‘(1) locate, identify, inventory, recommend for declassification, and make available to the public at
the National Archives and Records Administration,
all classified Japanese Imperial Government records
of the United States;
‘‘(2) coordinate with agencies and take such actions
as necessary to expedite the release of such records to
the public; and
‘‘(3) submit a report to Congress, including the
Committee on Government Reform [now Committee
on Oversight and Government Reform] and the Permanent Select Committee on Intelligence of the
House of Representatives, and the Committee on the
Judiciary and the Select Committee on Intelligence
of the Senate, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.
‘‘(d) FUNDING.—There is authorized to be appropriated
such sums as may be necessary to carry out the provisions of this title.
‘‘SEC. 803. REQUIREMENT OF DISCLOSURE OF
RECORDS.
‘‘(a) RELEASE OF RECORDS.—Subject to subsections
(b), (c), and (d), the Japanese Imperial Government
Records Interagency Working Group shall release in
their entirety Japanese Imperial Government records.
‘‘(b) EXEMPTIONS.—An agency head may exempt from
release under subsection (a) specific information, that
would—
‘‘(1) constitute an unwarranted invasion of personal
privacy;
§ 552
‘‘(2) reveal the identity of a confidential human
source, or reveal information about an intelligence
source or method when the unauthorized disclosure of
that source or method would damage the national security interests of the United States;
‘‘(3) reveal information that would assist in the development or use of weapons of mass destruction;
‘‘(4) reveal information that would impair United
States cryptologic systems or activities;
‘‘(5) reveal information that would impair the application of state-of-the-art technology within a
United States weapon system;
‘‘(6) reveal United States military war plans that
remain in effect;
‘‘(7) reveal information that would impair relations
between the United States and a foreign government,
or undermine ongoing diplomatic activities of the
United States;
‘‘(8) reveal information that would impair the current ability of United States Government officials to
protect the President, Vice President, and other officials for whom protection services are authorized in
the interest of national security;
‘‘(9) reveal information that would impair current
national security emergency preparedness plans; or
‘‘(10) violate a treaty or other international agreement.
‘‘(c) APPLICATIONS OF EXEMPTIONS.—
‘‘(1) IN GENERAL.—In applying the exemptions provided in paragraphs (2) through (10) of subsection (b),
there shall be a presumption that the public interest
will be served by disclosure and release of the records
of the Japanese Imperial Government. The exemption
may be asserted only when the head of the agency
that maintains the records determines that disclosure and release would be harmful to a specific interest identified in the exemption. An agency head who
makes such a determination shall promptly report it
to the committees of Congress with appropriate jurisdiction, including the Committee on the Judiciary
and the Select Committee on Intelligence of the Senate and the Committee on Government Reform [now
Committee on Oversight and Government Reform]
and the Permanent Select Committee on Intelligence
of the House of Representatives.
‘‘(2) APPLICATION OF TITLE 5.—A determination by
an agency head to apply an exemption provided in
paragraphs (2) through (9) of subsection (b) shall be
subject to the same standard of review that applies in
the case of records withheld under section 552(b)(1) of
title 5, United States Code.
‘‘(d) RECORDS RELATED TO INVESTIGATIONS OR PROSECUTIONS.—This section shall not apply to records—
‘‘(1) related to or supporting any active or inactive
investigation, inquiry, or prosecution by the Office of
Special Investigations of the Department of Justice;
or
‘‘(2) solely in the possession, custody, or control of
the Office of Special Investigations.
‘‘SEC. 804. EXPEDITED PROCESSING OF REQUESTS
FOR
JAPANESE
IMPERIAL
GOVERNMENT
RECORDS.
‘‘For purposes of expedited processing under section
552(a)(6)(E) of title 5, United States Code, any person
who was persecuted in the manner described in section
802(a)(3) and who requests a Japanese Imperial Government record shall be deemed to have a compelling need
for such record.
‘‘SEC. 805. EFFECTIVE DATE.
‘‘The provisions of this title shall take effect on the
date that is 90 days after the date of the enactment of
this Act [Dec. 27, 2000].’’
NAZI WAR CRIMES DISCLOSURE
Pub. L. 105–246, Oct. 8, 1998, 112 Stat. 1859, as amended
by Pub. L. 106–567, § 802(b)(2), Dec. 27, 2000, 114 Stat. 2865,
provided that:
‘‘SECTION 1. SHORT TITLE.
‘‘This Act may be cited as the ‘Nazi War Crimes Disclosure Act’.
§ 552
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
‘‘SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL
RECORDS INTERAGENCY WORKING GROUP.
‘‘(a) DEFINITIONS.—In this section the term—
‘‘(1) ‘agency’ has the meaning given such term
under section 551 of title 5, United States Code;
‘‘(2) ‘Interagency Group’ means the Nazi War Criminal Records Interagency Working Group [redesignated Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group, see
section 802(b)(1) of Pub. L. 106–567, set out above] established under subsection (b);
‘‘(3) ‘Nazi war criminal records’ has the meaning
given such term under section 3 of this Act; and
‘‘(4) ‘record’ means a Nazi war criminal record.
‘‘(b) ESTABLISHMENT OF INTERAGENCY GROUP.—
‘‘(1) IN GENERAL.—Not later than 60 days after the
date of enactment of this Act [Oct. 8, 1998], the President shall establish the Nazi War Criminal Records
Interagency Working Group, which shall remain in
existence for 3 years after the date the Interagency
Group is established.
‘‘(2) MEMBERSHIP.—The President shall appoint to
the Interagency Group individuals whom the President determines will most completely and effectively
carry out the functions of the Interagency Group
within the time limitations provided in this section,
including the Director of the Holocaust Museum, the
Historian of the Department of State, the Archivist
of the United States, the head of any other agency
the President considers appropriate, and no more
than 4 other persons who shall be members of the
public, of whom 3 shall be persons appointed under
the provisions of this Act in effect on October 8,
1998..[sic] The head of an agency appointed by the
President may designate an appropriate officer to
serve on the Interagency Group in lieu of the head of
such agency.
‘‘(3) INITIAL MEETING.—Not later than 90 days after
the date of enactment of this Act, the Interagency
Group shall hold an initial meeting and begin the
functions required under this section.
‘‘(c) FUNCTIONS.—Not later than 1 year after the date
of enactment of this Act [Oct. 8, 1998], the Interagency
Group shall, to the greatest extent possible consistent
with section 3 of this Act—
‘‘(1) locate, identify, inventory, recommend for declassification, and make available to the public at
the National Archives and Records Administration,
all classified Nazi war criminal records of the United
States;
‘‘(2) coordinate with agencies and take such actions
as necessary to expedite the release of such records to
the public; and
‘‘(3) submit a report to Congress, including the
Committee on the Judiciary of the Senate and the
Committee on Government Reform and Oversight
[now Committee on Oversight and Government Reform] of the House of Representatives, describing all
such records, the disposition of such records, and the
activities of the Interagency Group and agencies
under this section.
‘‘(d) FUNDING.—There are authorized to be appropriated such sums as may be necessary to carry out the
provisions of this Act.
‘‘SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS WHO COMMITTED
NAZI WAR CRIMES.
‘‘(a) NAZI WAR CRIMINAL RECORDS.—For purposes of
this Act, the term ‘Nazi war criminal records’ means
classified records or portions of records that—
‘‘(1) pertain to any person with respect to whom the
United States Government, in its sole discretion, has
grounds to believe ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political
opinion, during the period beginning on March 23,
1933, and ending on May 8, 1945, under the direction
of, or in association with—
‘‘(A) the Nazi government of Germany;
Page 38
‘‘(B) any government in any area occupied by the
military forces of the Nazi government of Germany;
‘‘(C) any government established with the assistance or cooperation of the Nazi government of Germany; or
‘‘(D) any government which was an ally of the
Nazi government of Germany; or
‘‘(2) pertain to any transaction as to which the
United States Government, in its sole discretion, has
grounds to believe—
‘‘(A) involved assets taken from persecuted persons during the period beginning on March 23, 1933,
and ending on May 8, 1945, by, under the direction
of, on behalf of, or under authority granted by the
Nazi government of Germany or any nation then allied with that government; and
‘‘(B) such transaction was completed without the
assent of the owners of those assets or their heirs
or assigns or other legitimate representatives.
‘‘(b) RELEASE OF RECORDS.—
‘‘(1) IN GENERAL.—Subject to paragraphs (2), (3), and
(4), the Nazi War Criminal Records Interagency
Working Group shall release in their entirety Nazi
war criminal records that are described in subsection
(a).
‘‘(2) EXCEPTION FOR PRIVACY, ETC.—An agency head
may exempt from release under paragraph (1) specific
information, that would—
‘‘(A) constitute a clearly unwarranted invasion of
personal privacy;
‘‘(B) reveal the identity of a confidential human
source, or reveal information about the application
of an intelligence source or method, or reveal the
identity of a human intelligence source when the
unauthorized disclosure of that source would clearly and demonstrably damage the national security
interests of the United States;
‘‘(C) reveal information that would assist in the
development or use of weapons of mass destruction;
‘‘(D) reveal information that would impair United
States cryptologic systems or activities;
‘‘(E) reveal information that would impair the application of state-of-the-art technology within a
United States weapon system;
‘‘(F) reveal actual United States military war
plans that remain in effect;
‘‘(G) reveal information that would seriously and
demonstrably impair relations between the United
States and a foreign government, or seriously and
demonstrably undermine ongoing diplomatic activities of the United States;
‘‘(H) reveal information that would clearly and
demonstrably impair the current ability of United
States Government officials to protect the President, Vice President, and other officials for whom
protection services, in the interest of national security, are authorized;
‘‘(I) reveal information that would seriously and
demonstrably impair current national security
emergency preparedness plans; or
‘‘(J) violate a treaty or international agreement.
‘‘(3) APPLICATION OF EXEMPTIONS.—
‘‘(A) IN GENERAL.—In applying the exemptions
listed in subparagraphs (B) through (J) of paragraph (2), there shall be a presumption that the
public interest in the release of Nazi war criminal
records will be served by disclosure and release of
the records. Assertion of such exemption may only
be made when the agency head determines that disclosure and release would be harmful to a specific
interest identified in the exemption. An agency
head who makes such a determination shall
promptly report it to the committees of Congress
with appropriate jurisdiction, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight [now
Committee on Oversight and Government Reform]
of the House of Representatives. The exemptions
set forth in paragraph (2) shall constitute the only
authority pursuant to which an agency head may
Page 39
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
exempt records otherwise subject to release under
paragraph (1).
‘‘(B) APPLICATION OF TITLE 5.—A determination by
an agency head to apply an exemption listed in subparagraphs (B) through (I) of paragraph (2) shall be
subject to the same standard of review that applies
in the case of records withheld under section
552(b)(1) of title 5, United States Code.
‘‘(4) LIMITATION ON APPLICATION.—This subsection
shall not apply to records—
‘‘(A) related to or supporting any active or inactive investigation, inquiry, or prosecution by the
Office of Special Investigations of the Department
of Justice; or
‘‘(B) solely in the possession, custody, or control
of that office.
‘‘(c) INAPPLICABILITY OF NATIONAL SECURITY ACT OF
1947 EXEMPTION.—Section 701(a) of the National Security Act of 1947 (50 U.S.C. 431[(a)]) shall not apply to
any operational file, or any portion of any operational
file, that constitutes a Nazi war criminal record under
section 3 of this Act.
‘‘SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR CRIMINAL RECORDS.
‘‘(a) EXPEDITED PROCESSING.—For purposes of expedited processing under section 552(a)(6)(E) of title 5,
United States Code, any requester of a Nazi war criminal record shall be deemed to have a compelling need
for such record.
‘‘(b) REQUESTER.—For purposes of this section, the
term ‘requester’ means any person who was persecuted
in the manner described under section 3(a)(1) of this
Act who requests a Nazi war criminal record.
‘‘SEC. 5. EFFECTIVE DATE.
‘‘This Act and the amendments made by this Act
shall take effect on the date that is 90 days after the
date of enactment of this Act [Oct. 8, 1998].’’
CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE;
PUBLIC ACCESS TO INFORMATION IN ELECTRONIC FORMAT
Section 2 of Pub. L. 104–231 provided that:
‘‘(a) FINDINGS.—The Congress finds that—
‘‘(1) the purpose of section 552 of title 5, United
States Code, popularly known as the Freedom of Information Act, is to require agencies of the Federal
Government to make certain agency information
available for public inspection and copying and to establish and enable enforcement of the right of any
person to obtain access to the records of such agencies, subject to statutory exemptions, for any public
or private purpose;
‘‘(2) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in
1974 and 1986, the Freedom of Information Act has
been a valuable means through which any person can
learn how the Federal Government operates;
‘‘(3) the Freedom of Information Act has led to the
disclosure of waste, fraud, abuse, and wrongdoing in
the Federal Government;
‘‘(4) the Freedom of Information Act has led to the
identification of unsafe consumer products, harmful
drugs, and serious health hazards;
‘‘(5) Government agencies increasingly use computers to conduct agency business and to store publicly
valuable agency records and information; and
‘‘(6) Government agencies should use new technology to enhance public access to agency records
and information.
‘‘(b) PURPOSES.—The purposes of this Act [see Short
Title of 1996 Amendment note above] are to—
‘‘(1) foster democracy by ensuring public access to
agency records and information;
‘‘(2) improve public access to agency records and information;
‘‘(3) ensure agency compliance with statutory time
limits; and
‘‘(4) maximize the usefulness of agency records and
information collected, maintained, used, retained,
and disseminated by the Federal Government.’’
§ 552
FREEDOM OF INFORMATION ACT EXEMPTION FOR
CERTAIN OPEN SKIES TREATY DATA
Pub. L. 103–236, title V, § 533, Apr. 30, 1994, 108 Stat.
480, provided that:
‘‘(a) IN GENERAL.—Data with respect to a foreign
country collected by sensors during observation flights
conducted in connection with the Treaty on Open
Skies, including flights conducted prior to entry into
force of the treaty, shall be exempt from disclosure
under the Freedom of Information Act—
‘‘(1) if the country has not disclosed the data to the
public; and
‘‘(2) if the country has not, acting through the Open
Skies Consultative Commission or any other diplomatic channel, authorized the United States to disclose the data to the public.
‘‘(b) STATUTORY CONSTRUCTION.—This section constitutes a specific exemption within the meaning of
section 552(b)(3) of title 5, United States Code.
‘‘(c) DEFINITIONS.—For the purposes of this section—
‘‘(1) the term ‘Freedom of Information Act’ means
the provisions of section 552 of title 5, United States
Code;
‘‘(2) the term ‘Open Skies Consultative Commission’ means the commission established pursuant to
Article X of the Treaty on Open Skies; and
‘‘(3) the term ‘Treaty on Open Skies’ means the
Treaty on Open Skies, signed at Helsinki on March
24, 1992.’’
CLASSIFIED NATIONAL SECURITY INFORMATION
For provisions relating to a response to a request for
information under this section when the fact of its existence or nonexistence is itself classified or when it
was originally classified by another agency, see Ex.
Ord. No. 13526, § 3.6, Dec. 29, 2009, 75 F.R. 718, set out as
a note under section 435 of Title 50, War and National
Defense.
EXECUTIVE ORDER NO. 12174
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which
related to minimizing Federal paperwork, was revoked
by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.
EX. ORD. NO. 12600. PREDISCLOSURE NOTIFICATION PROCEDURES FOR CONFIDENTIAL COMMERCIAL INFORMATION
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:
By the authority vested in me as President by the
Constitution and statutes of the United States of
America, and in order to provide predisclosure notification procedures under the Freedom of Information Act
[5 U.S.C. 552] concerning confidential commercial information, and to make existing agency notification provisions more uniform, it is hereby ordered as follows:
SECTION 1. The head of each Executive department
and agency subject to the Freedom of Information Act
[5 U.S.C. 552] shall, to the extent permitted by law, establish procedures to notify submitters of records containing confidential commercial information as described in section 3 of this Order, when those records
are requested under the Freedom of Information Act
[FOIA], 5 U.S.C. 552, as amended, if after reviewing the
request, the responsive records, and any appeal by the
requester, the department or agency determines that it
may be required to disclose the records. Such notice requires that an agency use good-faith efforts to advise
submitters of confidential commercial information of
the procedures established under this Order. Further,
where notification of a voluminous number of submitters is required, such notification may be accomplished
by posting or publishing the notice in a place reasonably calculated to accomplish notification.
SEC. 2. For purposes of this Order, the following definitions apply:
(a) ‘‘Confidential commercial information’’ means
records provided to the government by a submitter
that arguably contain material exempt from release
§ 552
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
under Exemption 4 of the Freedom of Information Act,
5 U.S.C. 552(b)(4), because disclosure could reasonably
be expected to cause substantial competitive harm.
(b) ‘‘Submitter’’ means any person or entity who provides confidential commercial information to the government. The term ‘‘submitter’’ includes, but is not
limited to, corporations, state governments, and foreign governments.
SEC. 3. (a) For confidential commercial information
submitted prior to January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, provide a submitter with notice pursuant to section 1 whenever:
(i) the records are less than 10 years old and the information has been designated by the submitter as confidential commercial information; or
(ii) the department or agency has reason to believe
that disclosure of the information could reasonably be
expected to cause substantial competitive harm.
(b) For confidential commercial information submitted on or after January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, establish procedures to permit submitters of confidential commercial information to designate, at the time the information is submitted to the
Federal government or a reasonable time thereafter,
any information the disclosure of which the submitter
claims could reasonably be expected to cause substantial competitive harm. Such agency procedures may
provide for the expiration, after a specified period of
time or changes in circumstances, of designations of
competitive harm made by submitters. Additionally,
such procedures may permit the agency to designate
specific classes of information that will be treated by
the agency as if the information had been so designated
by the submitter. The head of each Executive department or agency shall, to the extent permitted by law,
provide the submitter notice in accordance with section 1 of this Order whenever the department or agency
determines that it may be required to disclose records:
(i) designated pursuant to this subsection; or
(ii) the disclosure of which the department or agency
has reason to believe could reasonably be expected to
cause substantial competitive harm.
SEC. 4. When notification is made pursuant to section
1, each agency’s procedures shall, to the extent permitted by law, afford the submitter a reasonable period
of time in which the submitter or its designee may object to the disclosure of any specified portion of the information and to state all grounds upon which disclosure is opposed.
SEC. 5. Each agency shall give careful consideration
to all such specified grounds for nondisclosure prior to
making an administrative determination of the issue.
In all instances when the agency determines to disclose
the requested records, its procedures shall provide that
the agency give the submitter a written statement
briefly explaining why the submitter’s objections are
not sustained. Such statement shall, to the extent permitted by law, be provided a reasonable number of days
prior to a specified disclosure date.
SEC. 6. Whenever a FOIA requester brings suit seeking to compel disclosure of confidential commercial information, each agency’s procedures shall require that
the submitter be promptly notified.
SEC. 7. The designation and notification procedures
required by this Order shall be established by regulations, after notice and public comment. If similar procedures or regulations already exist, they should be reviewed for conformity and revised where necessary. Existing procedures or regulations need not be modified if
they are in compliance with this Order.
SEC. 8. The notice requirements of this Order need
not be followed if:
(a) The agency determines that the information
should not be disclosed;
(b) The information has been published or has been
officially made available to the public;
(c) Disclosure of the information is required by law
(other than 5 U.S.C. 552);
Page 40
(d) The disclosure is required by an agency rule that
(1) was adopted pursuant to notice and public comment,
(2) specifies narrow classes of records submitted to the
agency that are to be released under the Freedom of Information Act [5 U.S.C. 552], and (3) provides in exceptional circumstances for notice when the submitter
provides written justification, at the time the information is submitted or a reasonable time thereafter, that
disclosure of the information could reasonably be expected to cause substantial competitive harm;
(e) The information requested is not designated by
the submitter as exempt from disclosure in accordance
with agency regulations promulgated pursuant to section 7, when the submitter had an opportunity to do so
at the time of submission of the information or a reasonable time thereafter, unless the agency has substantial reason to believe that disclosure of the information
would result in competitive harm; or
(f) The designation made by the submitter in accordance with agency regulations promulgated pursuant to
section 7 appears obviously frivolous; except that, in
such case, the agency must provide the submitter with
written notice of any final administrative disclosure
determination within a reasonable number of days
prior to the specified disclosure date.
SEC. 9. Whenever an agency notifies a submitter that
it may be required to disclose information pursuant to
section 1 of this Order, the agency shall also notify the
requester that notice and an opportunity to comment
are being provided the submitter. Whenever an agency
notifies a submitter of a final decision pursuant to section 5 of this Order, the agency shall also notify the requester.
SEC. 10. This Order is intended only to improve the
internal management of the Federal government, and
is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, its officers, or
any person.
RONALD REAGAN.
EX. ORD. NO. 13110. NAZI WAR CRIMES AND JAPANESE IMPERIAL GOVERNMENT RECORDS INTERAGENCY WORKING
GROUP
Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided:
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including the Nazi War Crimes Disclosure Act
(Public Law 105–246) (the ‘‘Act’’) [5 U.S.C. 552 note], it
is hereby ordered as follows:
SECTION 1. Establishment of Working Group. There is
hereby established the Nazi War Criminal Records
Interagency Working Group [now Nazi War Crimes and
Japanese Imperial Government Records Interagency
Working Group] (Working Group). The function of the
Group shall be to locate, inventory, recommend for declassification, and make available to the public at the
National Archives and Records Administration all classified Nazi war criminal records of the United States,
subject to certain designated exceptions as provided in
the Act. The Working Group shall coordinate with
agencies and take such actions as necessary to expedite
the release of such records to the public.
SEC. 2. Schedule. The Working Group should complete
its work to the greatest extent possible and report to
the Congress within 1 year.
SEC. 3. Membership. (a) The Working Group shall be
composed of the following members:
(1) Archivist of the United States (who shall serve as
Chair of the Working Group);
(2) Secretary of Defense;
(3) Attorney General;
(4) Director of Central Intelligence;
(5) Director of the Federal Bureau of Investigation;
(6) Director of the United States Holocaust Memorial
Museum;
(7) Historian of the Department of State; and
(8) Three other persons appointed by the President.
(b) The Senior Director for Records and Access Management of the National Security Council will serve as
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
the liaison to and attend the meetings of the Working
Group. Members of the Working Group who are fulltime Federal officials may serve on the Working Group
through designees.
SEC. 4. Administration. (a) To the extent permitted by
law and subject to the availability of appropriations,
the National Archives and Records Administration
shall provide the Working Group with funding, administrative services, facilities, staff, and other support
services necessary for the performance of the functions
of the Working Group.
(b) The Working Group shall terminate 3 years from
the date of this Executive order.
WILLIAM J. CLINTON.
EX. ORD. NO. 13392. IMPROVING AGENCY DISCLOSURE OF
INFORMATION
Ex. Ord. No. 13392, Dec. 14, 2005, 70 F.R. 75373, provided:
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, and to ensure appropriate agency disclosure
of information, and consistent with the goals of section
552 of title 5, United States Code, it is hereby ordered
as follows:
SECTION 1. Policy.
(a) The effective functioning of our constitutional democracy depends upon the participation in public life
of a citizenry that is well informed. For nearly four
decades, the Freedom of Information Act (FOIA) [5
U.S.C. 552] has provided an important means through
which the public can obtain information regarding the
activities of Federal agencies. Under the FOIA, the
public can obtain records from any Federal agency,
subject to the exemptions enacted by the Congress to
protect information that must be held in confidence for
the Government to function effectively or for other
purposes.
(b) FOIA requesters are seeking a service from the
Federal Government and should be treated as such. Accordingly, in responding to a FOIA request, agencies
shall respond courteously and appropriately. Moreover,
agencies shall provide FOIA requesters, and the public
in general, with citizen-centered ways to learn about
the FOIA process, about agency records that are publicly available (e.g., on the agency’s website), and
about the status of a person’s FOIA request and appropriate information about the agency’s response.
(c) Agency FOIA operations shall be both results-oriented and produce results. Accordingly, agencies shall
process requests under the FOIA in an efficient and appropriate manner and achieve tangible, measurable improvements in FOIA processing. When an agency’s
FOIA program does not produce such results, it should
be reformed, consistent with available resources appropriated by the Congress and applicable law, to increase
efficiency and better reflect the policy goals and objectives of this order.
(d) A citizen-centered and results-oriented approach
will improve service and performance, thereby
strengthening compliance with the FOIA, and will help
avoid disputes and related litigation.
SEC. 2. Agency Chief FOIA Officers.
(a) Designation. The head of each agency shall designate within 30 days of the date of this order a senior
official of such agency (at the Assistant Secretary or
equivalent level), to serve as the Chief FOIA Officer of
that agency. The head of the agency shall promptly notify the Director of the Office of Management and
Budget (OMB Director) and the Attorney General of
such designation and of any changes thereafter in such
designation.
(b) General Duties. The Chief FOIA Officer of each
agency shall, subject to the authority of the head of
the agency:
(i) have agency-wide responsibility for efficient and
appropriate compliance with the FOIA;
(ii) monitor FOIA implementation throughout the
agency, including through the use of meetings with the
§ 552
public to the extent deemed appropriate by the agency’s Chief FOIA Officer, and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s
performance in implementing the FOIA, including the
extent to which the agency meets the milestones in the
agency’s plan under section 3(b) of this order and training and reporting standards established consistent with
applicable law and this order;
(iii) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and
funding as may be necessary to carry out the policy set
forth in section 1 of this order;
(iv) review and report, through the head of the agency, at such times and in such formats as the Attorney
General may direct, on the agency’s performance in implementing the FOIA; and
(v) facilitate public understanding of the purposes of
the FOIA’s statutory exemptions by including concise
descriptions of the exemptions in both the agency’s
FOIA handbook issued under section 552(g) of title 5,
United States Code, and the agency’s annual FOIA report, and by providing an overview, where appropriate,
of certain general categories of agency records to
which those exemptions apply.
(c) FOIA Requester Service Center and FOIA Public Liaisons. In order to ensure appropriate communication
with FOIA requesters:
(i) Each agency shall establish one or more FOIA Requester Service Centers (Center), as appropriate, which
shall serve as the first place that a FOIA requester can
contact to seek information concerning the status of
the person’s FOIA request and appropriate information
about the agency’s FOIA response. The Center shall include appropriate staff to receive and respond to inquiries from FOIA requesters;
(ii) The agency Chief FOIA Officer shall designate one
or more agency officials, as appropriate, as FOIA Public Liaisons, who may serve in the Center or who may
serve in a separate office. FOIA Public Liaisons shall
serve as supervisory officials to whom a FOIA requester
can raise concerns about the service the FOIA requester has received from the Center, following an initial response from the Center staff. FOIA Public Liaisons shall seek to ensure a service-oriented response to
FOIA requests and FOIA-related inquiries. For example, the FOIA Public Liaison shall assist, as appropriate, in reducing delays, increasing transparency and
understanding of the status of requests, and resolving
disputes. FOIA Public Liaisons shall report to the
agency Chief FOIA Officer on their activities and shall
perform their duties consistent with applicable law and
agency regulations;
(iii) In addition to the services to FOIA requesters
provided by the Center and FOIA Public Liaisons, the
agency Chief FOIA Officer shall also consider what
other FOIA-related assistance to the public should appropriately be provided by the agency;
(iv) In establishing the Centers and designating FOIA
Public Liaisons, the agency shall use, as appropriate,
existing agency staff and resources. A Center shall have
appropriate staff to receive and respond to inquiries
from FOIA requesters;
(v) As determined by the agency Chief FOIA Officer,
in consultation with the FOIA Public Liaisons, each
agency shall post appropriate information about its
Center or Centers on the agency’s website, including
contact information for its FOIA Public Liaisons. In
the case of an agency without a website, the agency
shall publish the information on the Firstgov.gov website or, in the case of any agency with neither a website
nor the capability to post on the Firstgov.gov website,
in the Federal Register; and
(vi) The agency Chief FOIA Officer shall ensure that
the agency has in place a method (or methods), including through the use of the Center, to receive and respond promptly and appropriately to inquiries from
FOIA requesters about the status of their requests. The
Chief FOIA Officer shall also consider, in consultation
with the FOIA Public Liaisons, as appropriate, whether
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
the agency’s implementation of other means (such as
tracking numbers for requests, or an agency telephone
or Internet hotline) would be appropriate for responding to status inquiries.
SEC. 3. Review, Plan, and Report.
(a) Review. Each agency’s Chief FOIA Officer shall
conduct a review of the agency’s FOIA operations to
determine whether agency practices are consistent
with the policies set forth in section 1 of this order. In
conducting this review, the Chief FOIA Officer shall:
(i) evaluate, with reference to numerical and statistical benchmarks where appropriate, the agency’s administration of the FOIA, including the agency’s expenditure of resources on FOIA compliance and the extent to which, if any, requests for records have not been
responded to within the statutory time limit (backlog);
(ii) review the processes and practices by which the
agency assists and informs the public regarding the
FOIA process;
(iii) examine the agency’s:
(A) use of information technology in responding to
FOIA requests, including without limitation the
tracking of FOIA requests and communication with
requesters;
(B) practices with respect to requests for expedited
processing; and
(C) implementation of multi-track processing if
used by such agency;
(iv) review the agency’s policies and practices relating to the availability of public information through
websites and other means, including the use of websites
to make available the records described in section
552(a)(2) of title 5, United States Code; and
(v) identify ways to eliminate or reduce its FOIA
backlog, consistent with available resources and taking
into consideration the volume and complexity of the
FOIA requests pending with the agency.
(b) Plan.
(i) Each agency’s Chief FOIA Officer shall develop, in
consultation as appropriate with the staff of the agency
(including the FOIA Public Liaisons), the Attorney
General, and the OMB Director, an agency-specific plan
to ensure that the agency’s administration of the FOIA
is in accordance with applicable law and the policies
set forth in section 1 of this order. The plan, which
shall be submitted to the head of the agency for approval, shall address the agency’s implementation of
the FOIA during fiscal years 2006 and 2007.
(ii) The plan shall include specific activities that the
agency will implement to eliminate or reduce the agency’s FOIA backlog, including (as applicable) changes
that will make the processing of FOIA requests more
streamlined and effective, as well as increased reliance
on the dissemination of records that can be made available to the public through a website or other means
that do not require the public to make a request for the
records under the FOIA.
(iii) The plan shall also include activities to increase
public awareness of FOIA processing, including as appropriate, expanded use of the agency’s Center and its
FOIA Public Liaisons.
(iv) The plan shall also include, taking appropriate
account of the resources available to the agency and
the mission of the agency, concrete milestones, with
specific timetables and outcomes to be achieved, by
which the head of the agency, after consultation with
the OMB Director, shall measure and evaluate the
agency’s success in the implementation of the plan.
(c) Agency Reports to the Attorney General and OMB Director.
(i) The head of each agency shall submit a report, no
later than 6 months from the date of this order, to the
Attorney General and the OMB Director that summarizes the results of the review under section 3(a) of this
order and encloses a copy of the agency’s plan under
section 3(b) of this order. The agency shall publish a
copy of the agency’s report on the agency’s website or,
in the case of an agency without a website, on the
Firstgov.gov website, or, in the case of any agency with
neither a website nor the capability to publish on the
Firstgov.gov website, in the Federal Register.
Page 42
(ii) The head of each agency shall include in the agency’s annual FOIA reports for fiscal years 2006 and 2007
a report on the agency’s development and implementation of its plan under section 3(b) of this order and on
the agency’s performance in meeting the milestones set
forth in that plan, consistent with any related guidelines the Attorney General may issue under section
552(e) of title 5, United States Code.
(iii) If the agency does not meet a milestone in its
plan, the head of the agency shall:
(A) identify this deficiency in the annual FOIA report to the Attorney General;
(B) explain in the annual report the reasons for the
agency’s failure to meet the milestone;
(C) outline in the annual report the steps that the
agency has already taken, and will be taking, to address the deficiency; and
(D) report this deficiency to the President’s Management Council.
SEC. 4. Attorney General.
(a) Report. The Attorney General, using the reports
submitted by the agencies under subsection 3(c)(i) of
this order and the information submitted by agencies
in their annual FOIA reports for fiscal year 2005, shall
submit to the President, no later than 10 months from
the date of this order, a report on agency FOIA implementation. The Attorney General shall consult the
OMB Director in the preparation of the report and shall
include in the report appropriate recommendations on
administrative or other agency actions for continued
agency dissemination and release of public information. The Attorney General shall thereafter submit two
further annual reports, by June 1, 2007, and June 1, 2008,
that provide the President with an update on the agencies’ implementation of the FOIA and of their plans
under section 3(b) of this order.
(b) Guidance. The Attorney General shall issue such
instructions and guidance to the heads of departments
and agencies as may be appropriate to implement sections 3(b) and 3(c) of this order.
SEC. 5. OMB Director. The OMB Director may issue
such instructions to the heads of agencies as are necessary to implement this order, other than sections 3(b)
and 3(c) of this order.
SEC. 6. Definitions. As used in this order:
(a) the term ‘‘agency’’ has the same meaning as the
term ‘‘agency’’ under section 552(f)(1) of title 5, United
States Code; and
(b) the term ‘‘record’’ has the same meaning as the
term ‘‘record’’ under section 552(f)(2) of title 5, United
States Code.
SEC. 7. General Provisions.
(a) The agency reviews under section 3(a) of this
order and agency plans under section 3(b) of this order
shall be conducted and developed in accordance with
applicable law and applicable guidance issued by the
President, the Attorney General, and the OMB Director, including the laws and guidance regarding information technology and the dissemination of information.
(b) This order:
(i) shall be implemented in a manner consistent with
applicable law and subject to the availability of appropriations;
(ii) shall not be construed to impair or otherwise affect the functions of the OMB Director relating to
budget, legislative, or administrative proposals; and
(iii) is intended only to improve the internal management of the executive branch and is not intended to,
and does not, create any right or benefit, substantive
or procedural, enforceable at law or in equity by a
party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.
GEORGE W. BUSH.
FREEDOM OF INFORMATION ACT
Memorandum of President of the United States, Jan.
21, 2009, 74 F.R. 4683, provided:
Memorandum for the Heads of Executive Departments and Agencies
Page 43
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, ‘‘sunlight is said to be the best of disinfectants.’’ In our democracy, the Freedom of Information
Act (FOIA), which encourages accountability through
transparency, is the most prominent expression of a
profound national commitment to ensuring an open
Government. At the heart of that commitment is the
idea that accountability is in the interest of the Government and the citizenry alike.
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt,
openness prevails. The Government should not keep information confidential merely because public officials
might be embarrassed by disclosure, because errors and
failures might be revealed, or because of speculative or
abstract fears. Nondisclosure should never be based on
an effort to protect the personal interests of Government officials at the expense of those they are supposed
to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly
and in a spirit of cooperation, recognizing that such
agencies are servants of the public.
All agencies should adopt a presumption in favor of
disclosure, in order to renew their commitment to the
principles embodied in FOIA, and to usher in a new era
of open Government. The presumption of disclosure
should be applied to all decisions involving FOIA.
The presumption of disclosure also means that agencies should take affirmative steps to make information
public. They should not wait for specific requests from
the public. All agencies should use modern technology
to inform citizens about what is known and done by
their Government. Disclosure should be timely.
I direct the Attorney General to issue new guidelines
governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such
guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by
the agencies under Executive Order 13392 of December
14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies
to increase and improve information dissemination to
the public, including through the use of new technologies, and to publish such guidance in the Federal
Register.
This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in
equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of the Office of Management and Budget
is hereby authorized and directed to publish this memorandum in the Federal Register.
BARACK OBAMA.
§ 552a. Records maintained on individuals
(a) DEFINITIONS.—For purposes of this section—
(1) the term ‘‘agency’’ means agency as defined in section 552(e) 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 as1 See
References in Text note below.
§ 552a
signed 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 nonFederal 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 inkind 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
404(e), 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 deter-
§ 552a
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
mined 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;
(vii) matches performed incident to a
levy described in section 6103(k)(8) of the
Internal Revenue Code of 1986;
(viii) matches performed pursuant to
section 202(x)(3) or 1611(e)(1) of the Social
Security Act (42 U.S.C. 402(x)(3), 1382(e)(1));
or
(ix) matches performed by the Secretary
of Health and Human Services or the Inspector General of the Department of
Health and Human Services with respect
to potential fraud, waste, and abuse, including matches of a system of records
with non-Federal records;
(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
Page 44
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 Government Accountability Office;
(11) pursuant to the order of a court of competent jurisdiction; or
(12) to a consumer reporting agency in accordance with section 3711(e) 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—
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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.
(d) ACCESS TO RECORDS.—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
§ 552a
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.
(e) AGENCY REQUIREMENTS.—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;
§ 552a
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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.
(f) AGENCY RULES.—In order to carry out the
provisions of this section, each agency that
Page 46
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.
(g)(1) CIVIL REMEDIES.—Whenever any agency
(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
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
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.
(i)(1) CRIMINAL PENALTIES.—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
§ 552a
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.
(j) GENERAL EXEMPTIONS.—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.
(k) SPECIFIC EXEMPTIONS.—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
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
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.
(l)(1) ARCHIVAL RECORDS.—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
Page 48
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)(1) GOVERNMENT CONTRACTORS.—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(e) of title
31 shall not be considered a contractor for the
purposes of this section.
(n) MAILING LISTS.—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.
(o) MATCHING AGREEMENTS.—(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
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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
§ 552a
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 30day 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.
(q) SANCTIONS.—(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
§ 552a
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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.
(s) BIENNIAL REPORT.—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)(1) EFFECT OF OTHER LAWS.—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;
Page 50
(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.2
(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.
2 So
in original. Probably should be ‘‘cost-effective.’’
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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) In the reports required by paragraph (3)(D),
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.
(w) APPLICABILITY TO BUREAU OF CONSUMER FINANCIAL PROTECTION.—Except as provided in the
Consumer Financial Protection Act of 2010, this
section shall apply with respect to the Bureau of
Consumer Financial Protection.
(Added Pub. L. 93–579, § 3, Dec. 31, 1974, 88 Stat.
1897; amended Pub. L. 94–183, § 2(2), Dec. 31, 1975,
89 Stat. 1057; Pub. L. 97–365, § 2, Oct. 25, 1982, 96
Stat. 1749; Pub. L. 97–375, title II, § 201(a), (b),
Dec. 21, 1982, 96 Stat. 1821; Pub. L. 97–452,
§ 2(a)(1), Jan. 12, 1983, 96 Stat. 2478; Pub. L.
98–477, § 2(c), Oct. 15, 1984, 98 Stat. 2211; Pub. L.
98–497, title I, § 107(g), Oct. 19, 1984, 98 Stat. 2292;
Pub. L. 100–503, §§ 2–6(a), 7, 8, Oct. 18, 1988, 102
Stat. 2507–2514; Pub. L. 101–508, title VII,
§ 7201(b)(1), Nov. 5, 1990, 104 Stat. 1388–334; Pub. L.
103–66, title XIII, § 13581(c), Aug. 10, 1993, 107
Stat. 611; Pub. L. 104–193, title I, § 110(w), Aug. 22,
1996, 110 Stat. 2175; Pub. L. 104–226, § 1(b)(3), Oct.
2, 1996, 110 Stat. 3033; Pub. L. 104–316, title I,
§ 115(g)(2)(B), Oct. 19, 1996, 110 Stat. 3835; Pub. L.
105–34, title X, § 1026(b)(2), Aug. 5, 1997, 111 Stat.
925; Pub. L. 105–362, title XIII, § 1301(d), Nov. 10,
§ 552a
1998, 112 Stat. 3293; Pub. L. 106–170, title IV,
§ 402(a)(2), Dec. 17, 1999, 113 Stat. 1908; Pub. L.
108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L.
111–148, title VI, § 6402(b)(2), Mar. 23, 2010, 124
Stat. 756; Pub. L. 111–203, title X, § 1082, July 21,
2010, 124 Stat. 2080.)
REFERENCES IN TEXT
Section 552(e) of this title, referred to in subsec.
(a)(1), was redesignated section 552(f) of this title by
section 1802(b) of Pub. L. 99–570.
Section 6103 of the Internal Revenue Code of 1986, referred to in subsec. (a)(8)(B)(iv), (vii), is classified to
section 6103 of Title 26, Internal Revenue Code.
Sections 404, 464, and 1137 of the Social Security Act,
referred to in subsec. (a)(8)(B)(iv), are classified to sections 604, 664, and 1320b–7, respectively, of Title 42, The
Public Health and Welfare.
For effective date of this section, referred to in subsecs. (k)(2), (5), (7), (l)(2), (3), and (m), see Effective Date
note below.
Section 6 of the Privacy Act of 1974, referred to in
subsec. (s)(1), is section 6 of Pub. L. 93–579, which was
set out below and was repealed by section 6(c) of Pub.
L. 100–503.
For classification of the Privacy Act of 1974, referred
to in subsec. (s)(4), see Short Title note below.
The Consumer Financial Protection Act of 2010, referred to in subsec. (w), is title X of Pub. L. 111–203,
July 21, 2010, 124 Stat. 1955, which enacted subchapter V
(§ 5481 et seq.) of chapter 53 of Title 12, Banks and Banking, and enacted and amended numerous other sections
and notes in the Code. For complete classification of
this Act to the Code, see Short Title note set out under
section 5301 of Title 12 and Tables.
CODIFICATION
Section 552a of former Title 5, Executive Departments and Government Officers and Employees, was
transferred to section 2244 of Title 7, Agriculture.
AMENDMENTS
2010—Subsec. (a)(8)(B)(ix). Pub. L. 111–148 added cl.
(ix).
Subsec. (w). Pub. L. 111–203 added subsec. (w).
2004—Subsec. (b)(10). Pub. L. 108–271 substituted
‘‘Government Accountability Office’’ for ‘‘General Accounting Office’’.
1999—Subsec. (a)(8)(B)(viii). Pub. L. 106–170 added cl.
(viii).
1998—Subsec. (u)(6), (7). Pub. L. 105–362 redesignated
par. (7) as (6), substituted ‘‘paragraph (3)(D)’’ for ‘‘paragraphs (3)(D) and (6)’’, and struck out former par. (6)
which read as follows: ‘‘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.’’
1997—Subsec. (a)(8)(B)(vii). Pub. L. 105–34 added cl.
(vii).
1996—Subsec. (a)(8)(B)(iv)(III). Pub. L. 104–193 substituted ‘‘section 404(e), 464,’’ for ‘‘section 464’’.
Subsec. (a)(8)(B)(v) to (vii). Pub. L. 104–226 inserted
‘‘or’’ at end of cl. (v), struck out ‘‘or’’ at end of cl. (vi),
and struck out cl. (vii) which read as follows: ‘‘matches
performed pursuant to section 6103(l)(12) of the Internal
Revenue Code of 1986 and section 1144 of the Social Security Act;’’.
Subsecs. (b)(12), (m)(2). Pub. L. 104–316 substituted
‘‘3711(e)’’ for ‘‘3711(f)’’.
§ 552a
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
1993—Subsec. (a)(8)(B)(vii). Pub. L. 103–66 added cl.
(vii).
1990—Subsec. (p). Pub. L. 101–508 amended subsec. (p)
generally, restating former pars. (1) and (3) as par. (1),
adding provisions relating to Data Integrity Boards,
and restating former pars. (2) and (4) as (2) and (3), respectively.
1988—Subsec. (a)(8) to (13). Pub. L. 100–503, § 5, added
pars. (8) to (13).
Subsec. (e)(12). Pub. L. 100–503, § 3(a), added par. (12).
Subsec. (f). Pub. L. 100–503, § 7, substituted ‘‘biennially’’ for ‘‘annually’’ in last sentence.
Subsecs. (o) to (q). Pub. L. 100–503, § 2(2), added subsecs. (o) to (q). Former subsecs. (o) to (q) redesignated
(r) to (t), respectively.
Subsec. (r). Pub. L. 100–503, § 3(b), inserted ‘‘and
matching programs’’ in heading and amended text generally. Prior to amendment, text read as follows: ‘‘Each
agency shall provide adequate advance notice to Congress and the Office of Management and Budget of any
proposal to establish or alter any system of records in
order to permit an evaluation of the probable or potential effect of such proposal on the privacy and other
personal or property rights of individuals or the disclosure of information relating to such individuals, and its
effect on the preservation of the constitutional principles of federalism and separation of powers.’’
Pub. L. 100–503, § 2(1), redesignated former subsec. (o)
as (r).
Subsec. (s). Pub. L. 100–503, § 8, substituted ‘‘Biennial’’
for ‘‘Annual’’ in heading, ‘‘biennially submit’’ for ‘‘annually submit’’ in introductory provisions, ‘‘preceding
2 years’’ for ‘‘preceding year’’ in par. (1), and ‘‘such
years’’ for ‘‘such year’’ in par. (2).
Pub. L. 100–503, § 2(1), redesignated former subsec. (p)
as (s).
Subsec. (t). Pub. L. 100–503, § 2(1), redesignated former
subsec. (q) as (t).
Subsec. (u). Pub. L. 100–503, § 4, added subsec. (u).
Subsec. (v). Pub. L. 100–503, § 6(a), added subsec. (v).
1984—Subsec. (b)(6). Pub. L. 98–497, § 107(g)(1), substituted ‘‘National Archives and Records Administration’’ for ‘‘National Archives of the United States’’, and
‘‘Archivist of the United States or the designee of the
Archivist’’ for ‘‘Administrator of General Services or
his designee’’.
Subsec. (l)(1). Pub. L. 98–497, § 107(g)(2), substituted
‘‘Archivist of the United States’’ for ‘‘Administrator of
General Services’’ in two places.
Subsec. (q). Pub. L. 98–477 designated existing provisions as par. (1) and added par. (2).
1983—Subsec. (b)(12). Pub. L. 97–452 substituted ‘‘section 3711(f) of title 31’’ for ‘‘section 3(d) of the Federal
Claims Collection Act of 1966 (31 U.S.C. 952(d))’’.
Subsec. (m)(2). Pub. L. 97–452 substituted ‘‘section
3711(f) of title 31’’ for ‘‘section 3(d) of the Federal
Claims Collection Act of 1966 (31 U.S.C. 952(d))’’.
1982—Subsec. (b)(12). Pub. L. 97–365, § 2(a), added par.
(12).
Subsec. (e)(4). Pub. L. 97–375, § 201(a), substituted
‘‘upon establishment or revision’’ for ‘‘at least annually’’ after ‘‘Federal Register’’.
Subsec. (m). Pub. L. 97–365, § 2(b), designated existing
provisions as par. (1) and added par. (2).
Subsec. (p). Pub. L. 97–375, § 201(b), substituted provisions requiring annual submission of a report by the
President to the Speaker of the House and President
pro tempore of the Senate relating to the Director of
the Office of Management and Budget, individual rights
of access, changes or additions to systems of records,
and other necessary or useful information, for provisions which had directed the President to submit to the
Speaker of the House and the President of the Senate,
by June 30 of each calendar year, a consolidated report,
separately listing for each Federal agency the number
of records contained in any system of records which
were exempted from the application of this section
under the provisions of subsections (j) and (k) of this
section during the preceding calendar year, and the
reasons for the exemptions, and such other information
as indicate efforts to administer fully this section.
Page 52
1975—Subsec. (g)(5). Pub. L. 94–183 substituted ‘‘to
September 27, 1975’’ for ‘‘to the effective date of this
section’’.
CHANGE OF NAME
Committee on Governmental Affairs of Senate
changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by
Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Committee on Government Operations of House of
Representatives treated as referring to Committee on
Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as
a note under section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House
of Representatives changed to Committee on Government Reform of House of Representatives by House
Resolution No. 5, One Hundred Sixth Congress, Jan. 6,
1999. Committee on Government Reform of House of
Representatives changed to Committee on Oversight
and Government Reform of House of Representatives
by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
EFFECTIVE DATE OF 2010 AMENDMENT
Pub. L. 111–203, title X, § 1082, July 21, 2010, 124 Stat.
2080, provided that the amendment made by section
1082 is effective on July 21, 2010.
Pub. L. 111–203, title X, § 1100H, July 21, 2010, 124 Stat.
2113, provided that: ‘‘Except as otherwise provided in
this subtitle [subtitle H (§§ 1081–1100H) of title X of Pub.
L. 111–203, see Tables for classification] and the amendments made by this subtitle, this subtitle and the
amendments made by this subtitle, other than sections
1081 [amending section 8G of Pub. L. 95–452, set out in
the Appendix to this title, and enacting provisions set
out as a note under section 8G of Pub. L. 95–452] and
1082 [amending this section and enacting provisions set
out as a note under this section], shall become effective
on the designated transfer date.’’
[The term ‘‘designated transfer date’’ is defined in
section 5481(9) of Title 12, Banks and Banking, as the
date established under section 5582 of Title 12, which is
July 21, 2011.]
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by Pub. L. 106–170 applicable to individuals whose period of confinement in an institution
commences on or after the first day of the fourth
month beginning after December 1999, see section
402(a)(4) of Pub. L. 106–170, set out as a note under section 402 of Title 42, The Public Health and Welfare.
EFFECTIVE DATE OF 1997 AMENDMENT
Amendment by Pub. L. 105–34 applicable to levies issued after Aug. 5, 1997, see section 1026(c) of Pub. L.
105–34, set out as a note under section 6103 of Title 26,
Internal Revenue Code.
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104–193 effective July 1, 1997,
with transition rules relating to State options to accelerate such date, rules relating to claims, actions, and
proceedings commenced before such date, rules relating
to closing out of accounts for terminated or substantially modified programs and continuance in office of
Assistant Secretary for Family Support, and provisions
relating to termination of entitlement under AFDC
program, see section 116 of Pub. L. 104–193, as amended,
set out as an Effective Date note under section 601 of
Title 42, The Public Health and Welfare.
EFFECTIVE DATE OF 1993 AMENDMENT
Amendment by Pub. L. 103–66 effective Jan. 1, 1994,
see section 13581(d) of Pub. L. 103–66, set out as a note
under section 1395y of Title 42, The Public Health and
Welfare.
Page 53
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
§ 552a
EFFECTIVE DATE OF 1988 AMENDMENT
TERMINATION OF REPORTING REQUIREMENTS
Section 10 of Pub. L. 100–503, as amended by Pub. L.
101–56, § 2, July 19, 1989, 103 Stat. 149, provided that:
‘‘(a) IN GENERAL.—Except as provided in subsections
(b) and (c), the amendments made by this Act [amending this section and repealing provisions set out as a
note below] shall take effect 9 months after the date of
enactment of this Act [Oct. 18, 1988].
‘‘(b) EXCEPTIONS.—The amendment made by sections
3(b), 6, 7, and 8 of this Act [amending this section and
repealing provisions set out as a note below] shall take
effect upon enactment.
‘‘(c) EFFECTIVE DATE DELAYED FOR EXISTING PROGRAMS.—In the case of any matching program (as defined in section 552a(a)(8) of title 5, United States Code,
as added by section 5 of this Act) in operation before
June 1, 1989, the amendments made by this Act (other
than the amendments described in subsection (b)) shall
take effect January 1, 1990, if—
‘‘(1) such matching program is identified by an
agency as being in operation before June 1, 1989; and
‘‘(2) such identification is—
‘‘(A) submitted by the agency to the Committee
on Governmental Affairs of the Senate, the Committee on Government Operations of the House of
Representatives, and the Office of Management and
Budget before August 1, 1989, in a report which contains a schedule showing the dates on which the
agency expects to have such matching program in
compliance with the amendments made by this Act,
and
‘‘(B) published by the Office of Management and
Budget in the Federal Register, before September
15, 1989.’’
For termination, effective May 15, 2000, of reporting
provisions in subsec. (s) of this section, see section 3003
of Pub. L. 104–66, as amended, set out as a note under
section 1113 of Title 31, Money and Finance, and page 31
of House Document No. 103–7.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98–497 effective Apr. 1, 1985,
see section 301 of Pub. L. 98–497, set out as a note under
section 2102 of Title 44, Public Printing and Documents.
EFFECTIVE DATE
Section 8 of Pub. L. 93–579 provided that: ‘‘The provisions of this Act [enacting this section and provisions
set out as notes under this section] shall be effective on
and after the date of enactment [Dec. 31, 1974], except
that the amendments made by sections 3 and 4 [enacting this section and amending analysis preceding section 500 of this title] shall become effective 270 days following the day on which this Act is enacted.’’
SHORT TITLE OF 1990 AMENDMENT
Section 7201(a) of Pub. L. 101–508 provided that: ‘‘This
section [amending this section and enacting provisions
set out as notes below] may be cited as the ‘Computer
Matching and Privacy Protection Amendments of
1990’.’’
SHORT TITLE OF 1989 AMENDMENT
Pub. L. 101–56, § 1, July 19, 1989, 103 Stat. 149, provided
that: ‘‘This Act [amending section 10 of Pub. L. 100–503,
set out as a note above] may be cited as the ‘Computer
Matching and Privacy Protection Act Amendments of
1989’.’’
SHORT TITLE OF 1988 AMENDMENT
Section 1 of Pub. L. 100–503 provided that: ‘‘This Act
[amending this section, enacting provisions set out as
notes above and below, and repealing provisions set out
as a note below] may be cited as the ‘Computer Matching and Privacy Protection Act of 1988’.’’
SHORT TITLE OF 1974 AMENDMENT
Section 1 of Pub. L. 93–579 provided: ‘‘That this Act
[enacting this section and provisions set out as notes
under this section] may be cited as the ‘Privacy Act of
1974’.’’
SHORT TITLE
This section is popularly known as the ‘‘Privacy
Act’’.
DELEGATION OF FUNCTIONS
Functions of Director of Office of Management and
Budget under this section delegated to Administrator
for Office of Information and Regulatory Affairs by section 3 of Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2825, set
out as a note under section 3503 of Title 44, Public
Printing and Documents.
PUBLICATION OF GUIDANCE UNDER SUBSECTION
(p)(1)(A)(ii)
Section 7201(b)(2) of Pub. L. 101–508 provided that:
‘‘Not later than 90 days after the date of the enactment
of this Act [Nov. 5, 1990], the Director of the Office of
Management and Budget shall publish guidance under
subsection (p)(1)(A)(ii) of section 552a of title 5, United
States Code, as amended by this Act.’’
LIMITATION ON APPLICATION OF VERIFICATION
REQUIREMENT
Section 7201(c) of Pub. L. 101–508 provided that: ‘‘Section 552a(p)(1)(A)(ii)(II) of title 5, United States Code,
as amended by section 2 [probably means section
7201(b)(1) of Pub. L. 101–508], shall not apply to a program referred to in paragraph (1), (2), or (4) of section
1137(b) of the Social Security Act (42 U.S.C. 1320b–7),
until the earlier of—
‘‘(1) the date on which the Data Integrity Board of
the Federal agency which administers that program
determines that there is not a high degree of confidence that information provided by that agency
under Federal matching programs is accurate; or
‘‘(2) 30 days after the date of publication of guidance under section 2(b) [probably means section
7201(b)(2) of Pub. L. 101–508, set out as a note above].’’
EFFECTIVE DATE DELAYED FOR CERTAIN EDUCATION
BENEFITS COMPUTER MATCHING PROGRAMS
Pub. L. 101–366, title II, § 206(d), Aug. 15, 1990, 104 Stat.
442, provided that:
‘‘(1) In the case of computer matching programs between the Department of Veterans Affairs and the Department of Defense in the administration of education
benefits programs under chapters 30 and 32 of title 38
and chapter 106 of title 10, United States Code, the
amendments made to section 552a of title 5, United
States Code, by the Computer Matching and Privacy
Protection Act of 1988 [Pub. L. 100–503] (other than the
amendments made by section 10(b) of that Act) [see Effective Date of 1988 Amendment note above] shall take
effect on October 1, 1990.
‘‘(2) For purposes of this subsection, the term ‘matching program’ has the same meaning provided in section
552a(a)(8) of title 5, United States Code.’’
IMPLEMENTATION GUIDANCE FOR 1988 AMENDMENTS
Section 6(b) of Pub. L. 100–503 provided that: ‘‘The Director shall, pursuant to section 552a(v) of title 5,
United States Code, develop guidelines and regulations
for the use of agencies in implementing the amendments made by this Act [amending this section and repealing provisions set out as a note below] not later
than 8 months after the date of enactment of this Act
[Oct. 18, 1988].’’
CONSTRUCTION OF 1988 AMENDMENTS
Section 9 of Pub. L. 100–503 provided that: ‘‘Nothing
in the amendments made by this Act [amending this
section and repealing provisions set out as a note
below] shall be construed to authorize—
‘‘(1) the establishment or maintenance by any agency of a national data bank that combines, merges, or
§ 552a
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
links information on individuals maintained in systems of records by other Federal agencies;
‘‘(2) the direct linking of computerized systems of
records maintained by Federal agencies;
‘‘(3) the computer matching of records not otherwise authorized by law; or
‘‘(4) the disclosure of records for computer matching except to a Federal, State, or local agency.’’
CONGRESSIONAL FINDINGS AND STATEMENT OF PURPOSE
Section 2 of Pub. L. 93–579 provided that:
‘‘(a) The Congress finds that—
‘‘(1) the privacy of an individual is directly affected
by the collection, maintenance, use, and dissemination of personal information by Federal agencies;
‘‘(2) the increasing use of computers and sophisticated information technology, while essential to the
efficient operations of the Government, has greatly
magnified the harm to individual privacy that can
occur from any collection, maintenance, use, or dissemination of personal information;
‘‘(3) the opportunities for an individual to secure
employment, insurance, and credit, and his right to
due process, and other legal protections are endangered by the misuse of certain information systems;
‘‘(4) the right to privacy is a personal and fundamental right protected by the Constitution of the
United States; and
‘‘(5) in order to protect the privacy of individuals
identified in information systems maintained by Federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance, use,
and dissemination of information by such agencies.
‘‘(b) The purpose of this Act [enacting this section
and provisions set out as notes under this section] is to
provide certain safeguards for an individual against an
invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to—
‘‘(1) permit an individual to determine what records
pertaining to him are collected, maintained, used, or
disseminated by such agencies;
‘‘(2) permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for
another purpose without his consent;
‘‘(3) permit an individual to gain access to information pertaining to him in Federal agency records, to
have a copy made of all or any portion thereof, and
to correct or amend such records;
‘‘(4) collect, maintain, use, or disseminate any
record of identifiable personal information in a manner that assures that such action is for a necessary
and lawful purpose, that the information is current
and accurate for its intended use, and that adequate
safeguards are provided to prevent misuse of such information;
‘‘(5) permit exemptions from the requirements with
respect to records provided in this Act only in those
cases where there is an important public policy need
for such exemption as has been determined by specific statutory authority; and
‘‘(6) be subject to civil suit for any damages which
occur as a result of willful or intentional action
which violates any individual’s rights under this
Act.’’
PRIVACY PROTECTION STUDY COMMISSION
Section 5 of Pub. L. 93–579, as amended by Pub. L.
95–38, June 1, 1977, 91 Stat. 179, which established the
Privacy Protection Study Commission and provided
that the Commission study data banks, automated data
processing programs and information systems of governmental, regional and private organizations to determine standards and procedures in force for protection
of personal information, that the Commission report to
the President and Congress the extent to which requirements and principles of section 552a of title 5
should be applied to the information practices of those
organizations, and that it make other legislative rec-
Page 54
ommendations to protect the privacy of individuals
while meeting the legitimate informational needs of
government and society, ceased to exist on September
30, 1977, pursuant to section 5(g) of Pub. L. 93–579.
GUIDELINES AND REGULATIONS FOR MAINTENANCE OF
PRIVACY AND PROTECTION OF RECORDS OF INDIVIDUALS
Section 6 of Pub. L. 93–579, which provided that the
Office of Management and Budget shall develop guidelines and regulations for use of agencies in implementing provisions of this section and provide continuing
assistance to and oversight of the implementation of
the provisions of such section by agencies, was repealed
by Pub. L. 100–503, § 6(c), Oct. 18, 1988, 102 Stat. 2513.
DISCLOSURE OF SOCIAL SECURITY NUMBER
Section 7 of Pub. L. 93–579 provided that:
‘‘(a)(1) It shall be unlawful for any Federal, State or
local government agency to deny to any individual any
right, benefit, or privilege provided by law because of
such individual’s refusal to disclose his social security
account number.
‘‘(2) the [The] provisions of paragraph (1) of this subsection shall not apply with respect to—
‘‘(A) any disclosure which is required by Federal
statute, or
‘‘(B) the disclosure of a social security number to
any Federal, State, or local agency maintaining a
system of records in existence and operating before
January 1, 1975, if such disclosure was required under
statute or regulation adopted prior to such date to
verify the identity of an individual.
‘‘(b) Any Federal, State, or local government agency
which requests an individual to disclose his social security account number shall inform that individual
whether that disclosure is mandatory or voluntary, by
what statutory or other authority such number is solicited, and what uses will be made of it.’’
AUTHORIZATION OF APPROPRIATIONS TO PRIVACY
PROTECTION STUDY COMMISSION
Section 9 of Pub. L. 93–579, as amended by Pub. L.
94–394, Sept. 3, 1976, 90 Stat. 1198, authorized appropriations for the period beginning July 1, 1975, and ending
on September 30, 1977.
EX. ORD. NO. 9397. NUMBERING SYSTEM FOR FEDERAL
ACCOUNTS RELATING TO INDIVIDUAL PERSONS
Ex. Ord. No. 9397, Nov. 22, 1943, 8 F.R. 16095, as amended by Ex. Ord. No. 13478, § 2, Nov. 18, 2008, 73 F.R. 70239,
provided:
WHEREAS certain Federal agencies from time to
time require in the administration of their activities a
system of numerical identification of accounts of individual persons; and
WHEREAS some seventy million persons have heretofore been assigned account numbers pursuant to the
Social Security Act; and
WHEREAS a large percentage of Federal employees
have already been assigned account numbers pursuant
to the Social Security Act; and
WHEREAS it is desirable in the interest of economy
and orderly administration that the Federal Government move towards the use of a single, unduplicated
numerical identification system of accounts and avoid
the unnecessary establishment of additional systems:
NOW, THEREFORE, by virtue of the authority vested
in me as President of the United States, it is hereby ordered as follows:
1. Hereafter any Federal department, establishment,
or agency may, whenever the head thereof finds it advisable to establish a new system of permanent account
numbers pertaining to individual persons, utilize the
Social Security Act account numbers assigned pursuant to title 20, section 422.103 of the Code of Federal
Regulations and pursuant to paragraph 2 of this order.
2. The Social Security Administration shall provide
for the assignment of an account number to each person who is required by any Federal agency to have such
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
a number but who has not previously been assigned
such number by the Administration. The Administration may accomplish this purpose by (a) assigning such
numbers to individual persons, (b) assigning blocks of
numbers to Federal agencies for reassignment to individual persons, or (c) making such other arrangements
for the assignment of numbers as it may deem appropriate.
3. The Social Security Administration shall furnish,
upon request of any Federal agency utilizing the numerical identification system of accounts provided for
in this order, the account number pertaining to any
person with whom such agency has an account or the
name and other identifying data pertaining to any account number of any such person.
4. The Social Security Administration and each Federal agency shall maintain the confidential character
of information relating to individual persons obtained
pursuant to the provisions of this order.
5. There shall be transferred to the Social Security
Administration, from time to time, such amounts as
the Director of the Office of Management and Budget
shall determine to be required for reimbursement by
any Federal agency for the services rendered by the Administration pursuant to the provisions of this order.
6. This order shall be implemented in accordance with
applicable law and subject to the availability of appropriations.
7. This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the
United States, its departments, agencies, instrumentalities, or entities, its officers, employees, or agents, or
any other person.
8. This order shall be published in the Federal Register.
CLASSIFIED NATIONAL SECURITY INFORMATION
For provisions relating to a response to a request for
information under this section when the fact of its existence or nonexistence is itself classified or when it
was originally classified by another agency, see Ex.
Ord. No. 13526, § 3.6, Dec. 29, 2009, 75 F.R. 718, set out as
a note under section 435 of Title 50, War and National
Defense.
§ 552b. Open meetings
(a) For purposes of this section—
(1) the term ‘‘agency’’ means any agency, as
defined in section 552(e) 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
1 See
References in Text note below.
§ 552b
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
§ 552b
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
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 ex-
Page 56
tent 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
Page 57
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
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
§ 552b
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.
§ 553
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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.
(Added Pub. L. 94–409, § 3(a), Sept. 13, 1976, 90
Stat. 1241; amended Pub. L. 104–66, title III,
§ 3002, Dec. 21, 1995, 109 Stat. 734.)
REFERENCES IN TEXT
Section 552(e) of this title, referred to in subsec.
(a)(1), was redesignated section 552(f) of this title by
section 1802(b) of Pub. L. 99–570.
180 days after the date of enactment of this section,
referred to in subsec. (g), means 180 days after the date
of enactment of Pub. L. 94–409, which was approved
Sept. 13, 1976.
AMENDMENTS
1995—Subsec. (j). Pub. L. 104–66 amended subsec. (j)
generally. Prior to amendment, subsec. (j) read as follows: ‘‘Each agency subject to the requirements of this
section shall annually report to Congress regarding its
compliance with such requirements, including a tabulation of the total number of agency meetings open to
the public, the total number of meetings closed to the
public, the reasons for closing such meetings, and a description of any litigation brought against the agency
under this section, including any costs assessed against
the agency in such litigation (whether or not paid by
the agency).’’
EFFECTIVE DATE
Section 6 of Pub. L. 94–409 provided that:
‘‘(a) Except as provided in subsection (b) of this section, the provisions of this Act [see Short Title note set
out below] shall take effect 180 days after the date of
its enactment [Sept. 13, 1976].
‘‘(b) Subsection (g) of section 552b of title 5, United
States Code, as added by section 3(a) of this Act, shall
take effect upon enactment [Sept. 13, 1976].’’
SHORT TITLE OF 1976 AMENDMENT
Section 1 of Pub. L. 94–409 provided: ‘‘That this Act
[enacting this section, amending sections 551, 552, 556,
and 557 of this title, section 10 of Pub. L. 92–463, set out
in the Appendix to this title, and section 410 of Title 39,
and enacting provisions set out as notes under this section] may be cited as the ‘Government in the Sunshine
Act’.’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
of law requiring submittal to Congress of any annual,
semiannual, or other regular periodic report listed in
House Document No. 103–7 (in which the report required
by subsec. (j) of this section is listed on page 151), see
section 3003 of Pub. L. 104–66, as amended, set out as a
note under section 1113 of Title 31, Money and Finance.
TERMINATION OF ADMINISTRATIVE CONFERENCE OF
UNITED STATES
For termination of Administrative Conference of
United States, see provision of title IV of Pub. L.
104–52, set out as a note preceding section 591 of this
title.
DECLARATION OF POLICY AND STATEMENT OF PURPOSE
Section 2 of Pub. L. 94–409 provided that: ‘‘It is hereby
declared to be the policy of the United States that the
Page 58
public is entitled to the fullest practicable information
regarding the decisionmaking processes of the Federal
Government. It is the purpose of this Act [see Short
Title note set out above] to provide the public with
such information while protecting the rights of individuals and the ability of the Government to carry out its
responsibilities.’’
§ 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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383.)
Page 59
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1003.
June 11, 1946, ch. 324, § 4, 60
Stat. 238.
In subsection (a)(1), the words ‘‘or naval’’ are omitted
as included in ‘‘military’’.
In subsection (b), the word ‘‘when’’ is substituted for
‘‘in any situation in which’’.
In subsection (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 as outlined
in the preface to the report.
CODIFICATION
Section 553 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2245 of Title 7, Agriculture.
EXECUTIVE ORDER NO. 12044
Ex. Ord. No. 12044, Mar. 23, 1978, 43 F.R. 12661, as
amended by Ex. Ord. No. 12221, June 27, 1980, 45 F.R.
44249, which related to the improvement of Federal regulations, was revoked by Ex. Ord. No. 12291, Feb. 17,
1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.
§ 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 1 administrative law judge appointed
under section 3105 of this title;
(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 So
in original.
§ 554
(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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 384; Pub. L.
95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183.)
HISTORICAL AND REVISION NOTES
Derivation
..................
U.S. Code
5 U.S.C. 1004.
Revised Statutes and
Statutes at Large
June 11, 1946, ch. 324, § 5, 60
Stat. 239.
In subsection (a)(2), the word ‘‘employee’’ is substituted for ‘‘officer or employee of the United States’’
in view of the definition of ‘‘employee’’ in section 2105.
In subsection (a)(4), the word ‘‘naval’’ is omitted as
included in ‘‘military’’.
In subsection (a)(5), the word ‘‘or’’ is substituted for
‘‘and’’ since the exception is applicable if any one of
the factors are involved.
In subsection (a)(6), the word ‘‘worker’’ is substituted
for ‘‘employee’’, since the latter is defined in section
2105 as meaning Federal employees.
In subsection (b), the word ‘‘When’’ is substituted for
‘‘In instances in which’’.
In subsection (c)(2), the comma after the word ‘‘hearing’’ is omitted to correct an editorial error.
In subsection (d), the words ‘‘The employee’’ and
‘‘such an employee’’ are substituted in the first two
sentences for ‘‘The same officers’’ and ‘‘such officers’’
in view of the definition of ‘‘employee’’ in section 2105.
§ 555
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
The word ‘‘officer’’ is omitted in the third and fourth
sentences as included in ‘‘employee’’ as defined in section 2105. The prohibition in the third and fourth sentences is restated in positive form. In paragraph (C) of
the last sentence, the words ‘‘in any manner’’ are omitted as surplusage.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
CODIFICATION
Section 554 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2246 of Title 7, Agriculture.
AMENDMENTS
1978—Subsec. (a)(2). Pub. L. 95–251 substituted ‘‘administrative law judge’’ for ‘‘hearing examiner’’.
§ 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.
Page 60
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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 385.)
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1005.
June 11, 1946, ch. 324, § 6, 60
Stat. 240.
In subsection (b), the words ‘‘is entitled’’ are substituted for ‘‘shall be accorded the right’’. The word
‘‘officers’’ is omitted as included in ‘‘employees’’ in
view of the definition of ‘‘employee’’ in section 2105.
The words ‘‘With due regard for the convenience and
necessity of the parties or their representatives and
within a reasonable time’’ are substituted for ‘‘with
reasonable dispatch’’ and ‘‘except that due regard shall
be had for the convenience and necessity of the parties
or their representatives’’. The prohibition in the last
sentence is restated in positive form and the words
‘‘This subsection does not’’ are substituted for ‘‘Nothing herein shall be construed either to’’.
In subsection (c), the words ‘‘in any manner or for
any purpose’’ are omitted as surplusage.
In subsection (e), the word ‘‘brief’’ is substituted for
‘‘simple’’. The words ‘‘of the grounds for denial’’ are
substituted for ‘‘of procedural or other grounds’’ for
clarity.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
CODIFICATION
Section 555 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2247 of Title 7, Agriculture.
§ 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;
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 386; Pub. L.
94–409, § 4(c), Sept. 13, 1976, 90 Stat. 1247; Pub. L.
95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L.
101–552, § 4(a), Nov. 15, 1990, 104 Stat. 2737.)
§ 556
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1006.
June 11, 1946, ch. 324, § 7, 60
Stat. 241.
In subsection (b), the words ‘‘hearing examiners’’ are
substituted for ‘‘examiners’’ in paragraph (3) for clarity. The prohibition in the second sentence is restated
in positive form and the words ‘‘This subchapter does
not’’ are substituted for ‘‘but nothing in this chapter
shall be deemed to’’. The words ‘‘employee’’ and ‘‘employees’’ are substituted for ‘‘officer’’ and ‘‘officers’’ in
view of the definition of ‘‘employee’’ in section 2105.
The sentence ‘‘A presiding or participating employee
may at any time disqualify himself.’’ is substituted for
the words ‘‘Any such officer may at any time withdraw
if he deems himself disqualified.’’
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
AMENDMENTS
1990—Subsec. (c)(6). Pub. L. 101–552, § 4(a)(1), inserted
before semicolon at end ‘‘or by the use of alternative
means of dispute resolution as provided in subchapter
IV of this chapter’’.
Subsec. (c)(7) to (11). Pub. L. 101–552, § 4(a)(2), added
pars. (7) and (8) and redesignated former pars. (7) and (8)
and redesignated former pars. (7) to (9) as (9) to (11), respectively.
1978—Subsec. (b)(3). Pub. L. 95–251 substituted ‘‘administrative law judges’’ for ‘‘hearing examiners’’.
1976—Subsec. (d). Pub. L. 94–409 inserted provisions
relating to consideration by agency of a violation
under section 557(d) of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94–409 effective 180 days after
Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as
an Effective Date note under section 552b of this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF
AGRICULTURE
Functions vested by this subchapter in hearing examiners employed by Department of Agriculture not included in functions of officers, agencies, and employees
of that Department transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, § 1, eff. June 4, 1953,
18 F.R. 3219, 67 Stat. 633, set out in the Appendix to this
title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF
COMMERCE
Functions vested by this subchapter in hearing examiners employed by Department of Commerce not included in functions of officers, agencies, and employees
of that Department transferred to Secretary of Commerce by 1950 Reorg. Plan No. 5, § 1, eff. May 24, 1950, 15
F.R. 3174, 64 Stat. 1263, set out in the Appendix to this
title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF
THE INTERIOR
Functions vested by this subchapter in hearing examiners employed by Department of the Interior not included in functions of officers, agencies, and employees
of that Department transferred to Secretary of the Interior by 1950 Reorg. Plan No. 3, § 1, eff. May 24, 1950, 15
F.R. 3174, 64 Stat. 1262, set out in the Appendix to this
title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF
JUSTICE
Functions vested by this subchapter in hearing examiners employed by Department of Justice not included
in functions of officers, agencies, and employees of that
§ 557
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
Department transferred to Attorney General by 1950
Reorg. Plan No. 2, § 1, eff. May 24, 1950, 15 F.R. 3173, 64
Stat. 1261, set out in the Appendix to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF
LABOR
Functions vested by this subchapter in hearing examiners employed by Department of Labor not included in
functions of officers, agencies, and employees of that
Department transferred to Secretary of Labor by 1950
Reorg. Plan No. 6, § 1, eff. May 24, 1950, 15 F.R. 3174, 64
Stat. 1263, set out in the Appendix to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF
THE TREASURY
Functions vested by this subchapter in hearing examiners employed by Department of the Treasury not included in functions of officers, agencies, and employees
of that Department transferred to Secretary of the
Treasury by 1950 Reorg. Plan. No. 26, § 1, eff. July 31,
1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix
to this title.
§ 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.
Page 62
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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 387; Pub. L.
94–409, § 4(a), Sept. 13, 1976, 90 Stat. 1246.)
Page 63
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1007.
June 11, 1946, ch. 324, § 8, 60
Stat. 242.
In subsection (b), the word ‘‘employee’’ is substituted
for ‘‘officer’’ and ‘‘officers’’ in view of the definition of
‘‘employee’’ in section 2105. The word ‘‘either’’ is added
after the word ‘‘requires’’ in the first sentence to eliminate the need for parentheses. The words ‘‘the presiding
employee or an employee qualified to preside at hearings under section 556 of this title’’ are substituted for
‘‘such officers’’ in the last sentence. The word ‘‘initial’’
is omitted before ‘‘decision’’, the final word in the first
sentence and the sixth word of the fourth sentence, to
avoid confusion between the ‘‘initial decision’’ of the
presiding employee and the ‘‘initial decision’’ of the
agency.
In subsection (c), the word ‘‘employees’’ is substituted for ‘‘officers’’ in view of the definition of ‘‘employee’’ in section 2105.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
CODIFICATION
Section 557 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2207 of Title 7, Agriculture.
Section 557a of former Title 5, Executive Departments and Government Officers and Employees, was
transferred to section 2208 of Title 7.
AMENDMENTS
1976—Subsec. (d). Pub. L. 94–409 added subsec. (d).
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94–409 effective 180 days after
Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as
an Effective Date note under section 552b of this title.
§ 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
§ 559
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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388.)
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1008.
June 11, 1946, ch. 324, § 9, 60
Stat. 242.
In subsection (b), the prohibition is restated in positive form.
In subsection (c), the words ‘‘within a reasonable
time’’ are substituted for ‘‘with reasonable dispatch’’.
The last two sentences are restated for conciseness and
clarity and to restate the prohibition in positive form.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
CODIFICATION
Section 558 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2209 of Title 7, Agriculture.
§ 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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388; Pub. L.
90–623, § 1(1), Oct. 22, 1968, 82 Stat. 1312; Pub. L.
95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L.
95–454, title VIII, § 801(a)(3)(B)(iii), Oct. 13, 1978,
92 Stat. 1221.)
HISTORICAL AND REVISION NOTES
Derivation
..................
U.S. Code
5 U.S.C. 1011.
Revised Statutes and
Statutes at Large
June 11, 1946, ch. 324, § 12, 60
Stat. 244.
In the first and last sentences, the words ‘‘This subchapter, chapter 7, and sections 1305, 3105, 3344,
4301(2)(E), 5362, and 7521, and the provisions of section
5335(a)(B) of this title that relate to hearing examiners’’ are substituted for ‘‘this Act’’ to reflect the codification of the Act in this title. The words ‘‘to diminish
the constitutional rights of any person or’’ are omitted
as surplusage as there is nothing in the Act that can
reasonably be construed to diminish those rights and
because a statute may not operate in derogation of the
Constitution.
The third sentence of former section 1011 is omitted
as covered by technical section 7. The sixth sentence of
former section 1011 is omitted as executed.
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
§ 561
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
AMENDMENTS
1978—Pub. L. 95–454 substituted ‘‘5372’’ for ‘‘5362’’
wherever appearing.
Pub. L. 95–251 substituted ‘‘administrative law
judges’’ for ‘‘hearing examiners’’ wherever appearing.
1968—Pub. L. 90–623 inserted ‘‘of this title’’ after
‘‘7521’’ wherever appearing.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95–454 effective on first day of
first applicable pay period beginning on or after the
90th day after Oct. 13, 1978, see section 801(a)(4) of Pub.
L. 95–454, set out as an Effective Date note under section 5361 of this title.
EFFECTIVE DATE OF 1968 AMENDMENT
Amendment by Pub. L. 90–623 intended to restate
without substantive change the law in effect on Oct. 22,
1968, see section 6 of Pub. L. 90–623, set out as a note
under section 5334 of this title.
SUBCHAPTER III—NEGOTIATED
RULEMAKING PROCEDURE
PRIOR PROVISIONS
A prior subchapter III (§ 571 et seq.) was redesignated
subchapter V (§ 591 et seq.) of this chapter.
AMENDMENTS
1992—Pub. L. 102–354, § 3(a)(1), Aug. 26, 1992, 106 Stat.
944, redesignated subchapter IV of this chapter relating
to negotiated rulemaking procedure as this subchapter.
§ 561. Purpose
The purpose of this subchapter is to establish
a framework for the conduct of negotiated rulemaking, consistent with section 553 of this title,
to encourage agencies to use the process when it
enhances the informal rulemaking process.
Nothing in this subchapter should be construed
as an attempt to limit innovation and experimentation with the negotiated rulemaking process or with other innovative rulemaking procedures otherwise authorized by law.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4970, § 581; renumbered § 561, Pub. L. 102–354,
§ 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 581 of this
title as this section.
EFFECTIVE DATE OF REPEAL; SAVINGS PROVISION
Section 5 of Pub. L. 101–648, as amended by Pub. L.
102–354, § 5(a)(2), Aug. 26, 1992, 106 Stat. 945, which provided that subchapter III of chapter 5 of title 5 and the
table of sections corresponding to such subchapter,
were repealed, effective 6 years after Nov. 29, 1990, except for then pending proceedings, was repealed by Pub.
L. 104–320, § 11(a), Oct. 19, 1996, 110 Stat. 3873.
SHORT TITLE OF 1992 AMENDMENT
Section 1 of Pub. L. 102–354 provided that: ‘‘This Act
[amending sections 565, 568, 569, 571, 577, 580, 581, and 593
of this title, section 10 of Title 9, Arbitration, and section 173 of Title 29, Labor, renumbering sections 571 to
576, 581 to 590, and 581 to 593 as 591 to 596, 561 to 570, and
571 to 583, respectively, of this title, and amending provisions set out as notes under this section and section
571 of this title] may be cited as the ‘Administrative
Procedure Technical Amendments Act of 1991’.’’
Page 64
SHORT TITLE OF 1990 AMENDMENT
Section 1 of Pub. L. 101–648 provided that: ‘‘This Act
[enacting this subchapter] may be cited as the ‘Negotiated Rulemaking Act of 1990’.’’
CONGRESSIONAL FINDINGS
Section 2 of Pub. L. 101–648 provided that: ‘‘The Congress makes the following findings:
‘‘(1) Government regulation has increased substantially since the enactment of the Administrative Procedure Act [see Short Title note set out preceding
section 551 of this title].
‘‘(2) Agencies currently use rulemaking procedures
that may discourage the affected parties from meeting and communicating with each other, and may
cause parties with different interests to assume conflicting and antagonistic positions and to engage in
expensive and time-consuming litigation over agency
rules.
‘‘(3) Adversarial rulemaking deprives the affected
parties and the public of the benefits of face-to-face
negotiations and cooperation in developing and
reaching agreement on a rule. It also deprives them
of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.
‘‘(4) Negotiated rulemaking, in which the parties
who will be significantly affected by a rule participate in the development of the rule, can provide significant advantages over adversarial rulemaking.
‘‘(5) Negotiated rulemaking can increase the acceptability and improve the substance of rules, making it less likely that the affected parties will resist
enforcement or challenge such rules in court. It may
also shorten the amount of time needed to issue final
rules.
‘‘(6) Agencies have the authority to establish negotiated rulemaking committees under the laws establishing such agencies and their activities and under
the Federal Advisory Committee Act (5 U.S.C. App.).
Several agencies have successfully used negotiated
rulemaking. The process has not been widely used by
other agencies, however, in part because such agencies are unfamiliar with the process or uncertain as
to the authority for such rulemaking.’’
AUTHORIZATION OF APPROPRIATIONS
Section 4 of Pub. L. 101–648, as amended by Pub. L.
102–354, § 5(a)(1), Aug. 26, 1992, 106 Stat. 945, authorized
additional appropriations to Administrative Conference
of the United States to carry out Pub. L. 101–648 in fiscal years 1991, 1992, and 1993.
§ 562. Definitions
For the purposes of this subchapter, the
term—
(1) ‘‘agency’’ has the same meaning as in
section 551(1) of this title;
(2) ‘‘consensus’’ means unanimous concurrence among the interests represented on a negotiated rulemaking committee established
under this subchapter, unless such committee—
(A) agrees to define such term to mean a
general but not unanimous concurrence; or
(B) agrees upon another specified definition;
(3) ‘‘convener’’ means a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking
committee is feasible and appropriate in a particular rulemaking;
(4) ‘‘facilitator’’ means a person who impartially aids in the discussions and negotiations
among the members of a negotiated rulemaking committee to develop a proposed rule;
Page 65
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(5) ‘‘interest’’ means, with respect to an
issue or matter, multiple parties which have a
similar point of view or which are likely to be
affected in a similar manner;
(6) ‘‘negotiated rulemaking’’ means rulemaking through the use of a negotiated rulemaking committee;
(7) ‘‘negotiated rulemaking committee’’ or
‘‘committee’’ means an advisory committee
established by an agency in accordance with
this subchapter and the Federal Advisory
Committee Act to consider and discuss issues
for the purpose of reaching a consensus in the
development of a proposed rule;
(8) ‘‘party’’ has the same meaning as in section 551(3) of this title;
(9) ‘‘person’’ has the same meaning as in section 551(2) of this title;
(10) ‘‘rule’’ has the same meaning as in section 551(4) of this title; and
(11) ‘‘rulemaking’’ means ‘‘rule making’’ as
that term is defined in section 551(5) of this
title.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4970, § 582; renumbered § 562, Pub. L. 102–354,
§ 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
REFERENCES IN TEXT
The Federal Advisory Committee Act, referred to in
par. (7), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as
amended, which is set out in the Appendix to this title.
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 582 of this
title as this section.
§ 563. Determination of need for negotiated rulemaking committee
(a) DETERMINATION OF NEED BY THE AGENCY.—
An agency may establish a negotiated rulemaking committee to negotiate and develop a
proposed rule, if the head of the agency determines that the use of the negotiated rulemaking
procedure is in the public interest. In making
such a determination, the head of the agency
shall consider whether—
(1) there is a need for a rule;
(2) there are a limited number of identifiable
interests that will be significantly affected by
the rule;
(3) there is a reasonable likelihood that a
committee can be convened with a balanced
representation of persons who—
(A) can adequately represent the interests
identified under paragraph (2); and
(B) are willing to negotiate in good faith
to reach a consensus on the proposed rule;
(4) there is a reasonable likelihood that a
committee will reach a consensus on the proposed rule within a fixed period of time;
(5) the negotiated rulemaking procedure will
not unreasonably delay the notice of proposed
rulemaking and the issuance of the final rule;
(6) the agency has adequate resources and is
willing to commit such resources, including
technical assistance, to the committee; and
(7) the agency, to the maximum extent possible consistent with the legal obligations of
the agency, will use the consensus of the committee with respect to the proposed rule as the
§ 564
basis for the rule proposed by the agency for
notice and comment.
(b) USE OF CONVENERS.—
(1) PURPOSES OF CONVENERS.—An agency may
use the services of a convener to assist the
agency in—
(A) identifying persons who will be significantly affected by a proposed rule, including
residents of rural areas; and
(B) conducting discussions with such persons to identify the issues of concern to such
persons, and to ascertain whether the establishment of a negotiated rulemaking committee is feasible and appropriate in the particular rulemaking.
(2) DUTIES OF CONVENERS.—The convener
shall report findings and may make recommendations to the agency. Upon request of the
agency, the convener shall ascertain the
names of persons who are willing and qualified
to represent interests that will be significantly affected by the proposed rule, including
residents of rural areas. The report and any
recommendations of the convener shall be
made available to the public upon request.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4970, § 583; renumbered § 563, Pub. L. 102–354,
§ 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 583 of this
title as this section.
NEGOTIATED RULEMAKING COMMITTEES
Pub. L. 104–320, § 11(e), Oct. 19, 1996, 110 Stat. 3874, provided that: ‘‘The Director of the Office of Management
and Budget shall—
‘‘(1) within 180 days of the date of the enactment of
this Act [Oct. 19, 1996], take appropriate action to expedite the establishment of negotiated rulemaking
committees and committees established to resolve
disputes under the Administrative Dispute Resolution Act [Pub. L. 101–552, see Short Title note set out
under section 571 of this title], including, with respect to negotiated rulemaking committees, eliminating any redundant administrative requirements
related to filing a committee charter under section 9
of the Federal Advisory Committee Act (5 U.S.C.
App.) and providing public notice of such committee
under section 564 of title 5, United States Code; and
‘‘(2) within one year of the date of the enactment of
this Act, submit recommendations to Congress for
any necessary legislative changes.’’
§ 564. Publication of notice; applications for
membership on committees
(a) PUBLICATION OF NOTICE.—If, after considering the report of a convener or conducting its
own assessment, an agency decides to establish
a negotiated rulemaking committee, the agency
shall publish in the Federal Register and, as appropriate, in trade or other specialized publications, a notice which shall include—
(1) an announcement that the agency intends to establish a negotiated rulemaking
committee to negotiate and develop a proposed rule;
(2) a description of the subject and scope of
the rule to be developed, and the issues to be
considered;
(3) a list of the interests which are likely to
be significantly affected by the rule;
§ 565
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(4) a list of the persons proposed to represent
such interests and the person or persons proposed to represent the agency;
(5) a proposed agenda and schedule for completing the work of the committee, including
a target date for publication by the agency of
a proposed rule for notice and comment;
(6) a description of administrative support
for the committee to be provided by the agency, including technical assistance;
(7) a solicitation for comments on the proposal to establish the committee, and the proposed membership of the negotiated rulemaking committee; and
(8) an explanation of how a person may apply
or nominate another person for membership
on the committee, as provided under subsection (b).
(b) APPLICATIONS FOR MEMBERSHIP OR 1 COMMITTEE.—Persons who will be significantly affected
by a proposed rule and who believe that their interests will not be adequately represented by
any person specified in a notice under subsection (a)(4) may apply for, or nominate another person for, membership on the negotiated
rulemaking committee to represent such interests with respect to the proposed rule. Each application or nomination shall include—
(1) the name of the applicant or nominee and
a description of the interests such person shall
represent;
(2) evidence that the applicant or nominee is
authorized to represent parties related to the
interests the person proposes to represent;
(3) a written commitment that the applicant
or nominee shall actively participate in good
faith in the development of the rule under consideration; and
(4) the reasons that the persons specified in
the notice under subsection (a)(4) do not adequately represent the interests of the person
submitting the application or nomination.
(c) PERIOD FOR SUBMISSION OF COMMENTS AND
APPLICATIONS.—The agency shall provide for a
period of at least 30 calendar days for the submission of comments and applications under
this section.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4971, § 584; renumbered § 564, Pub. L. 102–354,
§ 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 584 of this
title as this section.
§ 565. Establishment of committee
(a) ESTABLISHMENT.—
(1) DETERMINATION TO ESTABLISH COMMITTEE.—If after considering comments and applications submitted under section 564, the agency determines that a negotiated rulemaking
committee can adequately represent the interests that will be significantly affected by a
proposed rule and that it is feasible and appropriate in the particular rulemaking, the agency may establish a negotiated rulemaking
committee. In establishing and administering
1 So
in original. Probably should be ‘‘on’’.
Page 66
such a committee, the agency shall comply
with the Federal Advisory Committee Act
with respect to such committee, except as
otherwise provided in this subchapter.
(2) DETERMINATION NOT TO ESTABLISH COMMITTEE.—If after considering such comments and
applications, the agency decides not to establish a negotiated rulemaking committee, the
agency shall promptly publish notice of such
decision and the reasons therefor in the Federal Register and, as appropriate, in trade or
other specialized publications, a copy of which
shall be sent to any person who applied for, or
nominated another person for membership on
the negotiating 1 rulemaking committee to
represent such interests with respect to the
proposed rule.
(b) MEMBERSHIP.—The agency shall limit
membership on a negotiated rulemaking committee to 25 members, unless the agency head
determines that a greater number of members is
necessary for the functioning of the committee
or to achieve balanced membership. Each committee shall include at least one person representing the agency.
(c) ADMINISTRATIVE SUPPORT.—The agency
shall provide appropriate administrative support
to the negotiated rulemaking committee, including technical assistance.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4972, § 585; renumbered § 565 and amended
Pub. L. 102–354, § 3(a)(2), (3), Aug. 26, 1992, 106
Stat. 944.)
REFERENCES IN TEXT
The Federal Advisory Committee Act, referred to in
subsec. (a)(1), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770,
as amended, which is set out in the Appendix to this
title.
AMENDMENTS
1992—Pub. L. 102–354, § 3(a)(2), renumbered section 585
of this title as this section.
Subsec. (a)(1). Pub. L. 102–354, § 3(a)(3), substituted
‘‘section 564’’ for ‘‘section 584’’.
§ 566. Conduct of committee activity
(a) DUTIES OF COMMITTEE.—Each negotiated
rulemaking committee established under this
subchapter shall consider the matter proposed
by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any
other matter the committee determines is relevant to the proposed rule.
(b) REPRESENTATIVES OF AGENCY ON COMMITTEE.—The person or persons representing the
agency on a negotiated rulemaking committee
shall participate in the deliberations and activities of the committee with the same rights and
responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.
(c) SELECTING FACILITATOR.—Notwithstanding
section 10(e) of the Federal Advisory Committee
Act, an agency may nominate either a person
from the Federal Government or a person from
outside the Federal Government to serve as a fa1 So
in original. Probably should be ‘‘negotiated’’.
Page 67
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
cilitator for the negotiations of the committee,
subject to the approval of the committee by consensus. If the committee does not approve the
nominee of the agency for facilitator, the agency shall submit a substitute nomination. If a
committee does not approve any nominee of the
agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the
agency in substantive issues may not serve as
facilitator or otherwise chair the committee.
(d) DUTIES OF FACILITATOR.—A facilitator approved or selected by a negotiated rulemaking
committee shall—
(1) chair the meetings of the committee in
an impartial manner;
(2) impartially assist the members of the
committee in conducting discussions and negotiations; and
(3) manage the keeping of minutes and
records as required under section 10(b) and (c)
of the Federal Advisory Committee Act, except that any personal notes and materials of
the facilitator or of the members of a committee shall not be subject to section 552 of this
title.
(e) COMMITTEE PROCEDURES.—A negotiated
rulemaking committee established under this
subchapter may adopt procedures for the operation of the committee. No provision of section
553 of this title shall apply to the procedures of
a negotiated rulemaking committee.
(f) REPORT OF COMMITTEE.—If a committee
reaches a consensus on a proposed rule, at the
conclusion of negotiations the committee shall
transmit to the agency that established the
committee a report containing the proposed
rule. If the committee does not reach a consensus on a proposed rule, the committee may
transmit to the agency a report specifying any
areas in which the committee reached a consensus. The committee may include in a report any
other information, recommendations, or materials that the committee considers appropriate.
Any committee member may include as an addendum to the report additional information,
recommendations, or materials.
(g) RECORDS OF COMMITTEE.—In addition to the
report required by subsection (f), a committee
shall submit to the agency the records required
under section 10(b) and (c) of the Federal Advisory Committee Act.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4973, § 586; renumbered § 566, Pub. L. 102–354,
§ 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
REFERENCES IN TEXT
Section 10 of the Federal Advisory Committee Act,
referred to in subsecs. (c), (d)(3), and (g), is section 10
of Pub. L. 92–463, which is set out in the Appendix to
this title.
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 586 of this
title as this section.
§ 567. Termination of committee
A negotiated rulemaking committee shall terminate upon promulgation of the final rule
under consideration, unless the committee’s
§ 568
charter contains an earlier termination date or
the agency, after consulting the committee, or
the committee itself specifies an earlier termination date.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4974, § 587; renumbered § 567, Pub. L. 102–354,
§ 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 587 of this
title as this section.
§ 568. Services, facilities, and payment of committee member expenses
(a) SERVICES OF CONVENERS AND FACILITATORS.—
(1) IN GENERAL.—An agency may employ or
enter into contracts for the services of an individual or organization to serve as a convener
or facilitator for a negotiated rulemaking
committee under this subchapter, or may use
the services of a Government employee to act
as a convener or a facilitator for such a committee.
(2) DETERMINATION OF CONFLICTING INTERESTS.—An agency shall determine whether a
person under consideration to serve as convener or facilitator of a committee under
paragraph (1) has any financial or other interest that would preclude such person from serving in an impartial and independent manner.
(b) SERVICES AND
TIES.—For purposes
FACILITIES OF OTHER ENTIof this subchapter, an agency may use the services and facilities of other
Federal agencies and public and private agencies
and instrumentalities with the consent of such
agencies and instrumentalities, and with or
without reimbursement to such agencies and instrumentalities, and may accept voluntary and
uncompensated services without regard to the
provisions of section 1342 of title 31. The Federal
Mediation and Conciliation Service may provide
services and facilities, with or without reimbursement, to assist agencies under this subchapter, including furnishing conveners, facilitators, and training in negotiated rulemaking.
(c) EXPENSES OF COMMITTEE MEMBERS.—Members of a negotiated rulemaking committee
shall be responsible for their own expenses of
participation in such committee, except that an
agency may, in accordance with section 7(d) of
the Federal Advisory Committee Act, pay for a
member’s reasonable travel and per diem expenses, expenses to obtain technical assistance,
and a reasonable rate of compensation, if—
(1) such member certifies a lack of adequate
financial resources to participate in the committee; and
(2) the agency determines that such member’s participation in the committee is necessary to assure an adequate representation of
the member’s interest.
(d) STATUS OF MEMBER AS FEDERAL
PLOYEE.—A member’s receipt of funds under
EMthis
section or section 569 shall not conclusively determine for purposes of sections 202 through 209
of title 18 whether that member is an employee
of the United States Government.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4974, § 588; renumbered § 568 and amended
§ 569
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
Pub. L. 102–354, § 3(a)(2), (4), Aug. 26, 1992, 106
Stat. 944.)
REFERENCES IN TEXT
Section 7(d) of the Federal Advisory Committee Act,
referred to in subsec. (c), is section 7(d) of Pub. L.
92–463, which is set out in the Appendix to this title.
Page 68
rule which is the product of negotiated rulemaking and is subject to judicial review shall
not be accorded any greater deference by a court
than a rule which is the product of other rulemaking procedures.
AMENDMENTS
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4976, § 590; renumbered § 570, Pub. L. 102–354,
§ 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
1992—Pub. L. 102–354, § 3(a)(2), renumbered section 588
of this title as this section.
Subsec. (d). Pub. L. 102–354, § 3(a)(4), substituted ‘‘section 569’’ for ‘‘section 589’’.
1992—Pub. L. 102–354 renumbered section 590 of this
title as this section.
§ 569. Encouraging negotiated rulemaking
(a) The President shall designate an agency or
designate or establish an interagency committee
to facilitate and encourage agency use of negotiated rulemaking. An agency that is considering, planning, or conducting a negotiated rulemaking may consult with such agency or committee for information and assistance.
(b) To carry out the purposes of this subchapter, an agency planning or conducting a negotiated rulemaking may accept, hold, administer, and utilize gifts, devises, and bequests of
property, both real and personal if that agency’s
acceptance and use of such gifts, devises, or bequests do not create a conflict of interest. Gifts
and bequests of money and proceeds from sales
of other property received as gifts, devises, or
bequests shall be deposited in the Treasury and
shall be disbursed upon the order of the head of
such agency. Property accepted pursuant to this
section, and the proceeds thereof, shall be used
as nearly as possible in accordance with the
terms of the gifts, devises, or bequests.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104
Stat. 4975, § 589; renumbered § 569 and amended
Pub. L. 102–354, § 3(a)(2), (5), Aug. 26, 1992, 106
Stat. 944; Pub. L. 104–320, § 11(b)(1), Oct. 19, 1996,
110 Stat. 3873.)
AMENDMENTS
1996—Pub. L. 104–320 in section catchline substituted
‘‘Encouraging negotiated rulemaking’’ for ‘‘Role of the
Administrative Conference of the United States and
other entities’’, and in text added subsecs. (a) and (b)
and struck out former subsecs. (a) to (g) which related
to: in subsec. (a), consultation by agencies; in subsec.
(b), roster of potential conveners and facilitators; in
subsec. (c), procedures to obtain conveners and facilitators; in subsec. (d), compilation of data on negotiated
rulemaking and report to Congress; in subsec. (e),
training in negotiated rulemaking; in subsec. (f), payment of expenses of agencies; and in subsec. (g), use of
funds of the conference.
1992—Pub. L. 102–354, § 3(a)(2), renumbered section 589
of this title as this section.
Subsec. (d)(2). Pub. L. 102–354, § 3(a)(5)(A), substituted
‘‘section 566’’ for ‘‘section 586’’.
Subsec. (f)(2). Pub. L. 102–354, § 3(a)(5)(B), substituted
‘‘section 568(c)’’ for ‘‘section 588(c)’’.
Subsec. (g). Pub. L. 102–354, § 3(a)(5)(C), substituted
‘‘section 595(c)(12)’’ for ‘‘section 575(c)(12)’’.
§ 570. Judicial review
Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking
committee under this subchapter shall not be
subject to judicial review. Nothing in this section shall bar judicial review of a rule if such judicial review is otherwise provided by law. A
AMENDMENTS
§ 570a. Authorization of appropriations
There are authorized to be appropriated such
sums as may be necessary to carry out the purposes of this subchapter.
(Added Pub. L. 104–320, § 11(d)(1), Oct. 19, 1996, 110
Stat. 3873.)
SUBCHAPTER IV—ALTERNATIVE MEANS
OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS
CODIFICATION
Another subchapter IV (§ 581 et seq.) relating to negotiated rulemaking procedure was redesignated subchapter III (§ 561 et seq.) of this chapter.
AMENDMENTS
1992—Pub. L. 102–354, § 3(b)(1), Aug. 26, 1992, 106 Stat.
944, transferred this subchapter so as to appear immediately after subchapter III of this chapter.
§ 571. Definitions
For the purposes of this subchapter, the
term—
(1) ‘‘agency’’ has the same meaning as in
section 551(1) of this title;
(2) ‘‘administrative program’’ includes a
Federal function which involves protection of
the public interest and the determination of
rights, privileges, and obligations of private
persons through rule making, adjudication, licensing, or investigation, as those terms are
used in subchapter II of this chapter;
(3) ‘‘alternative means of dispute resolution’’
means any procedure that is used to resolve issues in controversy, including, but not limited
to, conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of
ombuds, or any combination thereof;
(4) ‘‘award’’ means any decision by an arbitrator resolving the issues in controversy;
(5) ‘‘dispute resolution communication’’
means any oral or written communication prepared for the purposes of a dispute resolution
proceeding, including any memoranda, notes
or work product of the neutral, parties or nonparty participant; except that a written agreement to enter into a dispute resolution proceeding, or final written agreement or arbitral
award reached as a result of a dispute resolution proceeding, is not a dispute resolution
communication;
(6) ‘‘dispute resolution proceeding’’ means
any process in which an alternative means of
dispute resolution is used to resolve an issue
in controversy in which a neutral is appointed
and specified parties participate;
(7) ‘‘in confidence’’ means, with respect to
information, that the information is provided—
Page 69
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(A) with the expressed intent of the source
that it not be disclosed; or
(B) under circumstances that would create
the reasonable expectation on behalf of the
source that the information will not be disclosed;
(8) ‘‘issue in controversy’’ means an issue
which is material to a decision concerning an
administrative program of an agency, and
with which there is disagreement—
(A) between an agency and persons who
would be substantially affected by the decision; or
(B) between persons who would be substantially affected by the decision;
(9) ‘‘neutral’’ means an individual who, with
respect to an issue in controversy, functions
specifically to aid the parties in resolving the
controversy;
(10) ‘‘party’’ means—
(A) for a proceeding with named parties,
the same as in section 551(3) of this title; and
(B) for a proceeding without named parties, a person who will be significantly affected by the decision in the proceeding and
who participates in the proceeding;
(11) ‘‘person’’ has the same meaning as in
section 551(2) of this title; and
(12) ‘‘roster’’ means a list of persons qualified to provide services as neutrals.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2738, § 581; renumbered § 571 and amended
Pub. L. 102–354, §§ 3(b)(2), 5(b)(1), (2), Aug. 26, 1992,
106 Stat. 944, 946; Pub. L. 104–320, § 2, Oct. 19, 1996,
110 Stat. 3870.)
CODIFICATION
Section 571 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2256 of Title 7, Agriculture.
PRIOR PROVISIONS
A prior section 571 was renumbered section 591 of this
title.
AMENDMENTS
1996—Par. (3). Pub. L. 104–320, § 2(1), struck out ‘‘, in
lieu of an adjudication as defined in section 551(7) of
this title,’’ after ‘‘any procedure that is used’’, struck
out ‘‘settlement negotiations,’’ after ‘‘but not limited
to,’’ and substituted ‘‘arbitration, and use of ombuds’’
for ‘‘and arbitration’’.
Par. (8). Pub. L. 104–320, § 2(2), substituted ‘‘decision;’’
for ‘‘decision,’’ at end of subpar. (B), and struck out
closing provisions which read as follows: ‘‘except that
such term shall not include any matter specified under
section 2302 or 7121(c) of this title;’’.
1992—Pub. L. 102–354, § 3(b)(2), renumbered section 581
of this title as this section.
Par. (3). Pub. L. 102–354, § 5(b)(1), inserted comma
after ‘‘including’’.
Par. (8). Pub. L. 102–354, § 5(b)(2), amended par. (8) generally. Prior to amendment, par. (8) read as follows:
‘‘ ‘issue in controversy’ means an issue which is material to a decision concerning an administrative program of an agency, and with which there is disagreement between the agency and persons who would be
substantially affected by the decision but shall not extend to matters specified under the provisions of sections 2302 and 7121(c) of title 5;’’.
TERMINATION DATE; SAVINGS PROVISION
Section 11 of Pub. L. 101–552, as amended by Pub. L.
104–106, div. D, title XLIII, § 4321(i)(5), Feb. 10, 1996, 110
§ 571
Stat. 676, which provided that the authority of agencies
to use dispute resolution proceedings under this Act
[see Short Title note below] was to terminate on Oct.
1, 1995, except with respect to pending proceedings, was
repealed by Pub. L. 104–320, § 9, Oct. 19, 1996, 110 Stat.
3872.
SHORT TITLE OF 1996 AMENDMENT
Section 1 of Pub. L. 104–320 provided that: ‘‘This Act
[enacting sections 570a and 584 of this title, amending
this section, sections 569, 573 to 575, 580, 581, and 583 of
this title, section 2304 of Title 10, Armed Forces, section 1491 of Title 28, Crimes and Criminal Procedure,
section 173 of Title 29, Labor, section 3556 of Title 31,
Money and Finance, and sections 253 and 605 of Title 41,
Public Contracts, repealing section 582 of this title, enacting provisions set out as notes under section 563 of
this title, section 1491 of Title 28, and section 3556 of
Title 31, amending provisions set out as notes under
this section, and repealing provisions set out as notes
under this section and section 561 of this title] may be
cited as the ‘Administrative Dispute Resolution Act of
1996’.’’
SHORT TITLE
Section 1 of Pub. L. 101–552 provided that: ‘‘This Act
[enacting this subchapter, amending section 556 of this
title, section 10 of Title 9, Arbitration, section 2672 of
Title 28, Judiciary and Judicial Procedure, section 173
of Title 29, Labor, section 3711 of Title 31, Money and
Finance, and sections 605 and 607 of Title 41, Public
Contracts, and enacting provisions set out as notes
under this section] may be cited as the ‘Administrative
Dispute Resolution Act’.’’
CONGRESSIONAL FINDINGS
Section 2 of Pub. L. 101–552 provided that: ‘‘The Congress finds that—
‘‘(1) administrative procedure, as embodied in chapter 5 of title 5, United States Code, and other statutes, is intended to offer a prompt, expert, and inexpensive means of resolving disputes as an alternative
to litigation in the Federal courts;
‘‘(2) administrative proceedings have become increasingly formal, costly, and lengthy resulting in
unnecessary expenditures of time and in a decreased
likelihood of achieving consensual resolution of disputes;
‘‘(3) alternative means of dispute resolution have
been used in the private sector for many years and, in
appropriate circumstances, have yielded decisions
that are faster, less expensive, and less contentious;
‘‘(4) such alternative means can lead to more creative, efficient, and sensible outcomes;
‘‘(5) such alternative means may be used advantageously in a wide variety of administrative programs;
‘‘(6) explicit authorization of the use of well-tested
dispute resolution techniques will eliminate ambiguity of agency authority under existing law;
‘‘(7) Federal agencies may not only receive the benefit of techniques that were developed in the private
sector, but may also take the lead in the further development and refinement of such techniques; and
‘‘(8) the availability of a wide range of dispute resolution procedures, and an increased understanding of
the most effective use of such procedures, will enhance the operation of the Government and better
serve the public.’’
PROMOTION OF ALTERNATIVE MEANS OF DISPUTE
RESOLUTION
Section 3 of Pub. L. 101–552, as amended by Pub. L.
104–320, § 4(a), Oct. 19, 1996, 110 Stat. 3871, provided that:
‘‘(a) PROMULGATION OF AGENCY POLICY.—Each agency
shall adopt a policy that addresses the use of alternative means of dispute resolution and case management. In developing such a policy, each agency shall—
‘‘(1) consult with the agency designated by, or the
interagency committee designated or established by,
§ 572
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
the President under section 573 of title 5, United
States Code, to facilitate and encourage agency use
of alternative dispute resolution under subchapter IV
of chapter 5 of such title; and
‘‘(2) examine alternative means of resolving disputes in connection with—
‘‘(A) formal and informal adjudications;
‘‘(B) rulemakings;
‘‘(C) enforcement actions;
‘‘(D) issuing and revoking licenses or permits;
‘‘(E) contract administration;
‘‘(F) litigation brought by or against the agency;
and
‘‘(G) other agency actions.
‘‘(b) DISPUTE RESOLUTION SPECIALISTS.—The head of
each agency shall designate a senior official to be the
dispute resolution specialist of the agency. Such official shall be responsible for the implementation of—
‘‘(1) the provisions of this Act [see Short Title note
above] and the amendments made by this Act; and
‘‘(2) the agency policy developed under subsection
(a).
‘‘(c) TRAINING.—Each agency shall provide for training on a regular basis for the dispute resolution specialist of the agency and other employees involved in implementing the policy of the agency developed under
subsection (a). Such training should encompass the theory and practice of negotiation, mediation, arbitration,
or related techniques. The dispute resolution specialist
shall periodically recommend to the agency head agency employees who would benefit from similar training.
‘‘(d) PROCEDURES FOR GRANTS AND CONTRACTS.—
‘‘(1) Each agency shall review each of its standard
agreements for contracts, grants, and other assistance and shall determine whether to amend any such
standard agreements to authorize and encourage the
use of alternative means of dispute resolution.
‘‘(2)(A) Within 1 year after the date of the enactment of this Act [Nov. 15, 1990], the Federal Acquisition Regulation shall be amended, as necessary, to
carry out this Act [see Short Title note above] and
the amendments made by this Act.
‘‘(B) For purposes of this section, the term ‘Federal
Acquisition Regulation’ means the single system of
Government-wide procurement regulation referred to
in section 6(a) of the Office of Federal Procurement
Policy Act ([former] 41 U.S.C. 405(a)) [now 41 U.S.C.
1121(a) to (c)(1)].’’
USE OF NONATTORNEYS
Section 9 of Pub. L. 101–552 provided that:
‘‘(a) REPRESENTATION OF PARTIES.—Each agency, in
developing a policy on the use of alternative means of
dispute resolution under this Act [see Short Title note
above], shall develop a policy with regard to the representation by persons other than attorneys of parties
in alternative dispute resolution proceedings and shall
identify any of its administrative programs with numerous claims or disputes before the agency and determine—
‘‘(1) the extent to which individuals are represented
or assisted by attorneys or by persons who are not attorneys; and
‘‘(2) whether the subject areas of the applicable proceedings or the procedures are so complex or specialized that only attorneys may adequately provide such
representation or assistance.
‘‘(b) REPRESENTATION AND ASSISTANCE BY NONATTORNEYS.—A person who is not an attorney may provide representation or assistance to any individual in a
claim or dispute with an agency, if—
‘‘(1) such claim or dispute concerns an administrative program identified under subsection (a);
‘‘(2) such agency determines that the proceeding or
procedure does not necessitate representation or assistance by an attorney under subsection (a)(2); and
‘‘(3) such person meets any requirement of the
agency to provide representation or assistance in
such a claim or dispute.
‘‘(c) DISQUALIFICATION OF REPRESENTATION OR ASSISTANCE.—Any agency that adopts regulations under sub-
Page 70
chapter IV of chapter 5 of title 5, United States Code,
to permit representation or assistance by persons who
are not attorneys shall review the rules of practice before such agency to—
‘‘(1) ensure that any rules pertaining to disqualification of attorneys from practicing before the agency shall also apply, as appropriate, to other persons
who provide representation or assistance; and
‘‘(2) establish effective agency procedures for enforcing such rules of practice and for receiving complaints from affected persons.’’
DEFINITIONS
Section 10 of Pub. L. 101–552, as amended by Pub. L.
102–354, § 5(b)(6), Aug. 26, 1992, 106 Stat. 946, provided
that: ‘‘As used in this Act [see Short Title note above],
the terms ‘agency’, ‘administrative program’, and ‘alternative means of dispute resolution’ have the meanings given such terms in section 571 of title 5, United
States Code (enacted as section 581 of title 5, United
States Code, by section 4(b) of this Act, and redesignated as section 571 of such title by section 3(b) of the
Administrative Procedure Technical Amendments Act
of 1991 [Pub. L. 102–354]).’’
§ 572. General authority
(a) An agency may use a dispute resolution
proceeding for the resolution of an issue in controversy that relates to an administrative program, if the parties agree to such proceeding.
(b) An agency shall consider not using a dispute resolution proceeding if—
(1) a definitive or authoritative resolution of
the matter is required for precedential value,
and such a proceeding is not likely to be accepted generally as an authoritative precedent;
(2) the matter involves or may bear upon
significant questions of Government policy
that require additional procedures before a
final resolution may be made, and such a proceeding would not likely serve to develop a
recommended policy for the agency;
(3) maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a
proceeding would not likely reach consistent
results among individual decisions;
(4) the matter significantly affects persons
or organizations who are not parties to the
proceeding;
(5) a full public record of the proceeding is
important, and a dispute resolution proceeding cannot provide such a record; and
(6) the agency must maintain continuing jurisdiction over the matter with authority to
alter the disposition of the matter in the light
of changed circumstances, and a dispute resolution proceeding would interfere with the
agency’s fulfilling that requirement.
(c) Alternative means of dispute resolution authorized under this subchapter are voluntary
procedures which supplement rather than limit
other available agency dispute resolution techniques.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2739, § 582; renumbered § 572, Pub. L. 102–354,
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)
CODIFICATION
Section 572 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2257 of Title 7, Agriculture.
Page 71
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
PRIOR PROVISIONS
A prior section 572 was renumbered section 592 of this
title.
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 582 of this
title as this section.
§ 573. Neutrals
(a) A neutral may be a permanent or temporary officer or employee of the Federal Government or any other individual who is acceptable to the parties to a dispute resolution proceeding. A neutral shall have no official, financial, or personal conflict of interest with respect
to the issues in controversy, unless such interest
is fully disclosed in writing to all parties and all
parties agree that the neutral may serve.
(b) A neutral who serves as a conciliator, facilitator, or mediator serves at the will of the
parties.
(c) The President shall designate an agency or
designate or establish an interagency committee
to facilitate and encourage agency use of dispute resolution under this subchapter. Such
agency or interagency committee, in consultation with other appropriate Federal agencies
and professional organizations experienced in
matters concerning dispute resolution, shall—
(1) encourage and facilitate agency use of alternative means of dispute resolution; and
(2) develop procedures that permit agencies
to obtain the services of neutrals on an expedited basis.
(d) An agency may use the services of one or
more employees of other agencies to serve as
neutrals in dispute resolution proceedings. The
agencies may enter into an interagency agreement that provides for the reimbursement by
the user agency or the parties of the full or partial cost of the services of such an employee.
(e) Any agency may enter into a contract with
any person for services as a neutral, or for training in connection with alternative means of dispute resolution. The parties in a dispute resolution proceeding shall agree on compensation for
the neutral that is fair and reasonable to the
Government.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2739, § 583; renumbered § 573, Pub. L. 102–354,
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended
Pub. L. 104–320, § 7(b), Oct. 19, 1996, 110 Stat.
3872.)
CODIFICATION
Section 573 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2258 of Title 7, Agriculture.
PRIOR PROVISIONS
A prior section 573 was renumbered section 593 of this
title.
AMENDMENTS
1996—Subsec. (c). Pub. L. 104–320, § 7(b)(1), added subsec. (c) and struck out former subsec. (c) which related
to power of Administrative Conference of the United
States to establish and utilize standards for neutrals
and to enter into contracts for services of neutrals.
Subsec. (e). Pub. L. 104–320, § 7(b)(2), struck out ‘‘on a
roster established under subsection (c)(2) or a roster
§ 574
maintained by other public or private organizations, or
individual’’ after ‘‘contract with any person’’.
1992—Pub. L. 102–354 renumbered section 583 of this
title as this section.
§ 574. Confidentiality
(a) Except as provided in subsections (d) and
(e), a neutral in a dispute resolution proceeding
shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication or
any communication provided in confidence to
the neutral, unless—
(1) all parties to the dispute resolution proceeding and the neutral consent in writing,
and, if the dispute resolution communication
was provided by a nonparty participant, that
participant also consents in writing;
(2) the dispute resolution communication
has already been made public;
(3) the dispute resolution communication is
required by statute to be made public, but a
neutral should make such communication
public only if no other person is reasonably
available to disclose the communication; or
(4) a court determines that such testimony
or disclosure is necessary to—
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health or
safety,
of sufficient magnitude in the particular case
to outweigh the integrity of dispute resolution
proceedings in general by reducing the confidence of parties in future cases that their
communications will remain confidential.
(b) A party to a dispute resolution proceeding
shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication, unless—
(1) the communication was prepared by the
party seeking disclosure;
(2) all parties to the dispute resolution proceeding consent in writing;
(3) the dispute resolution communication
has already been made public;
(4) the dispute resolution communication is
required by statute to be made public;
(5) a court determines that such testimony
or disclosure is necessary to—
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health and
safety,
of sufficient magnitude in the particular case
to outweigh the integrity of dispute resolution
proceedings in general by reducing the confidence of parties in future cases that their
communications will remain confidential;
(6) the dispute resolution communication is
relevant to determining the existence or
meaning of an agreement or award that resulted from the dispute resolution proceeding
or to the enforcement of such an agreement or
award; or
(7) except for dispute resolution communications generated by the neutral, the dispute
resolution communication was provided to or
was available to all parties to the dispute resolution proceeding.
§ 575
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(c) Any dispute resolution communication
that is disclosed in violation of subsection (a) or
(b), shall not be admissible in any proceeding relating to the issues in controversy with respect
to which the communication was made.
(d)(1) The parties may agree to alternative
confidential procedures for disclosures by a neutral. Upon such agreement the parties shall inform the neutral before the commencement of
the dispute resolution proceeding of any modifications to the provisions of subsection (a) that
will govern the confidentiality of the dispute
resolution proceeding. If the parties do not so
inform the neutral, subsection (a) shall apply.
(2) To qualify for the exemption established
under subsection (j), an alternative confidential
procedure under this subsection may not provide
for less disclosure than the confidential procedures otherwise provided under this section.
(e) If a demand for disclosure, by way of discovery request or other legal process, is made
upon a neutral regarding a dispute resolution
communication, the neutral shall make reasonable efforts to notify the parties and any affected nonparty participants of the demand. Any
party or affected nonparty participant who receives such notice and within 15 calendar days
does not offer to defend a refusal of the neutral
to disclose the requested information shall have
waived any objection to such disclosure.
(f) Nothing in this section shall prevent the
discovery or admissibility of any evidence that
is otherwise discoverable, merely because the
evidence was presented in the course of a dispute resolution proceeding.
(g) Subsections (a) and (b) shall have no effect
on the information and data that are necessary
to document an agreement reached or order issued pursuant to a dispute resolution proceeding.
(h) Subsections (a) and (b) shall not prevent
the gathering of information for research or
educational purposes, in cooperation with other
agencies, governmental entities, or dispute resolution programs, so long as the parties and the
specific issues in controversy are not identifiable.
(i) Subsections (a) and (b) shall not prevent
use of a dispute resolution communication to resolve a dispute between the neutral in a dispute
resolution proceeding and a party to or participant in such proceeding, so long as such dispute
resolution communication is disclosed only to
the extent necessary to resolve such dispute.
(j) A dispute resolution communication which
is between a neutral and a party and which may
not be disclosed under this section shall also be
exempt from disclosure under section 552(b)(3).
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2740, § 584; renumbered § 574, Pub. L. 102–354,
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended
Pub. L. 104–320, § 3, Oct. 19, 1996, 110 Stat. 3870.)
CODIFICATION
Section 574 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2255 of Title 7, Agriculture.
Section 574a of former Title 5, Executive Departments and Government Officers and Employees, was
transferred to section 2226 of Title 7.
Page 72
PRIOR PROVISIONS
A prior section 574 was renumbered section 594 of this
title.
AMENDMENTS
1996—Subsecs. (a), (b). Pub. L. 104–320, § 3(a), in introductory provisions struck out ‘‘any information concerning’’ after ‘‘be required to disclose’’.
Subsec. (b)(7). Pub. L. 104–320, § 3(b), amended par. (7)
generally. Prior to amendment, par. (7) read as follows:
‘‘the dispute resolution communication was provided to
or was available to all parties to the dispute resolution
proceeding’’.
Subsec. (d). Pub. L. 104–320, § 3(c), designated existing
provisions as par. (1) and added par. (2).
Subsec. (j). Pub. L. 104–320, § 3(d), amended subsec. (j)
generally. Prior to amendment, subsec. (j) read as follows: ‘‘This section shall not be considered a statute
specifically exempting disclosure under section
552(b)(3) of this title.’’
1992—Pub. L. 102–354 renumbered section 584 of this
title as this section.
§ 575. Authorization of arbitration
(a)(1) Arbitration may be used as an alternative means of dispute resolution whenever all
parties consent. Consent may be obtained either
before or after an issue in controversy has arisen. A party may agree to—
(A) submit only certain issues in controversy to arbitration; or
(B) arbitration on the condition that the
award must be within a range of possible outcomes.
(2) The arbitration agreement that sets forth
the subject matter submitted to the arbitrator
shall be in writing. Each such arbitration agreement shall specify a maximum award that may
be issued by the arbitrator and may specify
other conditions limiting the range of possible
outcomes.
(3) An agency may not require any person to
consent to arbitration as a condition of entering
into a contract or obtaining a benefit.
(b) An officer or employee of an agency shall
not offer to use arbitration for the resolution of
issues in controversy unless such officer or employee—
(1) would otherwise have authority to enter
into a settlement concerning the matter; or
(2) is otherwise specifically authorized by
the agency to consent to the use of arbitration.
(c) Prior to using binding arbitration under
this subchapter, the head of an agency, in consultation with the Attorney General and after
taking into account the factors in section 572(b),
shall issue guidance on the appropriate use of
binding arbitration and when an officer or employee of the agency has authority to settle an
issue in controversy through binding arbitration.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2742, § 585; renumbered § 575, Pub. L. 102–354,
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended
Pub. L. 104–320, § 8(c), Oct. 19, 1996, 110 Stat. 3872.)
CODIFICATION
Section 575 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2259 of Title 7, Agriculture.
Page 73
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
PRIOR PROVISIONS
A prior section 575 was renumbered section 595 of this
title.
AMENDMENTS
1996—Subsec. (a)(2). Pub. L. 104–320, § 8(c)(1), (2), substituted ‘‘The’’ for ‘‘Any’’ and inserted at end ‘‘Each
such arbitration agreement shall specify a maximum
award that may be issued by the arbitrator and may
specify other conditions limiting the range of possible
outcomes.’’
Subsec. (b). Pub. L. 104–320, § 8(c)(3), in introductory
provisions substituted ‘‘shall not offer to use arbitration for the resolution of issues in controversy unless’’
for ‘‘may offer to use arbitration for the resolution of
issues in controversy, if’’, and in par. (1) substituted
‘‘would otherwise have authority’’ for ‘‘has authority’’.
Subsec. (c). Pub. L. 104–320, § 8(c)(4), added subsec. (c).
1992—Pub. L. 102–354 renumbered section 585 of this
title as this section.
§ 576. Enforcement of arbitration agreements
An agreement to arbitrate a matter to which
this subchapter applies is enforceable pursuant
to section 4 of title 9, and no action brought to
enforce such an agreement shall be dismissed
nor shall relief therein be denied on the grounds
that it is against the United States or that the
United States is an indispensable party.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2742, § 586; renumbered § 576, Pub. L. 102–354,
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)
CODIFICATION
Section 576 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2260 of Title 7, Agriculture, and subsequently repealed by Pub. L. 107–171, title X, § 10418(a)(3),
May 13, 2002, 116 Stat. 507.
PRIOR PROVISIONS
A prior section 576 was renumbered section 596 of this
title.
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 586 of this
title as this section.
§ 577. Arbitrators
(a) The parties to an arbitration proceeding
shall be entitled to participate in the selection
of the arbitrator.
(b) The arbitrator shall be a neutral who
meets the criteria of section 573 of this title.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2742, § 587; renumbered § 577 and amended
Pub. L. 102–354, § 3(b)(2), (3), Aug. 26, 1992, 102
Stat. 944, 945.)
AMENDMENTS
1992—Pub. L. 102–354, § 3(b)(2), renumbered section 587
of this title as this section.
Subsec. (b). Pub. L. 102–354, § 3(b)(3), substituted ‘‘section 573’’ for ‘‘section 583’’.
§ 578. Authority of the arbitrator
An arbitrator to whom a dispute is referred
under this subchapter may—
(1) regulate the course of and conduct arbitral hearings;
(2) administer oaths and affirmations;
(3) compel the attendance of witnesses and
production of evidence at the hearing under
§ 579
the provisions of section 7 of title 9 only to the
extent the agency involved is otherwise authorized by law to do so; and
(4) make awards.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2742, § 588; renumbered § 578, Pub. L. 102–354,
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 588 of this
title as this section.
§ 579. Arbitration proceedings
(a) The arbitrator shall set a time and place
for the hearing on the dispute and shall notify
the parties not less than 5 days before the hearing.
(b) Any party wishing a record of the hearing
shall—
(1) be responsible for the preparation of such
record;
(2) notify the other parties and the arbitrator of the preparation of such record;
(3) furnish copies to all identified parties and
the arbitrator; and
(4) pay all costs for such record, unless the
parties agree otherwise or the arbitrator determines that the costs should be apportioned.
(c)(1) The parties to the arbitration are entitled to be heard, to present evidence material to
the controversy, and to cross-examine witnesses
appearing at the hearing.
(2) The arbitrator may, with the consent of the
parties, conduct all or part of the hearing by
telephone, television, computer, or other electronic means, if each party has an opportunity
to participate.
(3) The hearing shall be conducted expeditiously and in an informal manner.
(4) The arbitrator may receive any oral or documentary evidence, except that irrelevant, immaterial, unduly repetitious, or privileged evidence may be excluded by the arbitrator.
(5) The arbitrator shall interpret and apply
relevant statutory and regulatory requirements,
legal precedents, and policy directives.
(d) No interested person shall make or knowingly cause to be made to the arbitrator an unauthorized ex parte communication relevant to
the merits of the proceeding, unless the parties
agree otherwise. If a communication is made in
violation of this subsection, the arbitrator shall
ensure that a memorandum of the communication is prepared and made a part of the record,
and that an opportunity for rebuttal is allowed.
Upon receipt of a communication made in violation of this subsection, the arbitrator may, to
the extent consistent with the interests of justice and the policies underlying this subchapter,
require the offending party to show cause why
the claim of such party should not be resolved
against such party as a result of the improper
conduct.
(e) The arbitrator shall make the award within 30 days after the close of the hearing, or the
date of the filing of any briefs authorized by the
arbitrator, whichever date is later, unless—
(1) the parties agree to some other time
limit; or
(2) the agency provides by rule for some
other time limit.
§ 580
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2742, § 589; renumbered § 579, Pub. L. 102–354,
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 589 of this
title as this section.
§ 580. Arbitration awards
(a)(1) Unless the agency provides otherwise by
rule, the award in an arbitration proceeding
under this subchapter shall include a brief, informal discussion of the factual and legal basis
for the award, but formal findings of fact or conclusions of law shall not be required.
(2) The prevailing parties shall file the award
with all relevant agencies, along with proof of
service on all parties.
(b) The award in an arbitration proceeding
shall become final 30 days after it is served on
all parties. Any agency that is a party to the
proceeding may extend this 30-day period for an
additional 30-day period by serving a notice of
such extension on all other parties before the
end of the first 30-day period.
(c) A final award is binding on the parties to
the arbitration proceeding, and may be enforced
pursuant to sections 9 through 13 of title 9. No
action brought to enforce such an award shall be
dismissed nor shall relief therein be denied on
the grounds that it is against the United States
or that the United States is an indispensable
party.
(d) An award entered under this subchapter in
an arbitration proceeding may not serve as an
estoppel in any other proceeding for any issue
that was resolved in the proceeding. Such an
award also may not be used as precedent or
otherwise be considered in any factually unrelated proceeding, whether conducted under this
subchapter, by an agency, or in a court, or in
any other arbitration proceeding.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2743, § 590; renumbered § 580 and amended
Pub. L. 102–354, §§ 3(b)(2), 5(b)(3), Aug. 26, 1992, 106
Stat. 944, 946; Pub. L. 104–320, § 8(a), Oct. 19, 1996,
110 Stat. 3872.)
AMENDMENTS
1996—Subsec. (c). Pub. L. 104–320, § 8(a), redesignated
subsec. (d) as (c) and struck out former subsec. (c)
which read as follows: ‘‘The head of any agency that is
a party to an arbitration proceeding conducted under
this subchapter is authorized to terminate the arbitration proceeding or vacate any award issued pursuant to
the proceeding before the award becomes final by serving on all other parties a written notice to that effect,
in which case the award shall be null and void. Notice
shall be provided to all parties to the arbitration proceeding of any request by a party, nonparty participant
or other person that the agency head terminate the arbitration proceeding or vacate the award. An employee
or agent engaged in the performance of investigative or
prosecuting functions for an agency may not, in that or
a factually related case, advise in a decision under this
subsection to terminate an arbitration proceeding or to
vacate an arbitral award, except as witness or counsel
in public proceedings.’’
Subsecs. (d), (e). Pub. L. 104–320, § 8(a)(2), redesignated
subsec. (e) as (d). Former subsec. (d) redesignated (c).
Subsecs. (f), (g). Pub. L. 104–320, § 8(a)(1), struck out
subsecs. (f) and (g) which read as follows:
‘‘(f) An arbitral award that is vacated under subsection (c) shall not be admissible in any proceeding re-
Page 74
lating to the issues in controversy with respect to
which the award was made.
‘‘(g) If an agency head vacates an award under subsection (c), a party to the arbitration (other than the
United States) may within 30 days of such action petition the agency head for an award of fees and other expenses (as defined in section 504(b)(1)(A) of this title)
incurred in connection with the arbitration proceeding.
The agency head shall award the petitioning party
those fees and expenses that would not have been incurred in the absence of such arbitration proceeding,
unless the agency head or his or her designee finds that
special circumstances make such an award unjust. The
procedures for reviewing applications for awards shall,
where appropriate, be consistent with those set forth in
subsection (a)(2) and (3) of section 504 of this title. Such
fees and expenses shall be paid from the funds of the
agency that vacated the award.’’
1992—Pub. L. 102–354, § 3(b)(2), renumbered section 590
of this title as this section.
Subsec. (g). Pub. L. 102–354, § 5(b)(3), substituted ‘‘fees
and other expenses’’ for ‘‘attorney fees and expenses’’.
§ 581. Judicial Review 1
(a) Notwithstanding any other provision of
law, any person adversely affected or aggrieved
by an award made in an arbitration proceeding
conducted under this subchapter may bring an
action for review of such award only pursuant to
the provisions of sections 9 through 13 of title 9.
(b) A decision by an agency to use or not to
use a dispute resolution proceeding under this
subchapter shall be committed to the discretion
of the agency and shall not be subject to judicial
review, except that arbitration shall be subject
to judicial review under section 10(b) 2 of title 9.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2744, § 591; renumbered § 581 and amended
Pub. L. 102–354, § 3(b)(2), (4), Aug. 26, 1992, 106
Stat. 944, 945; Pub. L. 104–320, § 8(b), Oct. 19, 1996,
110 Stat. 3872.)
REFERENCES IN TEXT
Section 10(b) of title 9, referred to in subsec. (b), was
redesignated section 10(c) of title 9 by Pub. L. 107–169,
§ 1(4), May 7, 2002, 116 Stat. 132.
PRIOR PROVISIONS
A prior section 581 was renumbered section 571 of this
title.
Another prior section 581 was renumbered section 561
of this title.
AMENDMENTS
1996—Subsec. (b). Pub. L. 104–320, which directed that
section 581(d) of this title be amended by striking ‘‘(1)’’
after ‘‘(b)’’ and by striking par. (2), was executed to
subsec. (b) of this section to reflect the probable intent
of Congress. Prior to amendment, par. (2) read as follows: ‘‘A decision by the head of an agency under section 580 to terminate an arbitration proceeding or vacate an arbitral award shall be committed to the discretion of the agency and shall not be subject to judicial review.’’
1992—Pub. L. 102–354, § 3(b)(2), renumbered section 591
of this title as this section.
Subsec. (b)(2). Pub. L. 102–354, § 3(b)(4), substituted
‘‘section 580’’ for ‘‘section 590’’.
[§ 582. Repealed. Pub. L. 104–320, § 4(b)(1), Oct.
19, 1996, 110 Stat. 3871]
Section, added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2744, § 592; renumbered § 582, Pub. L. 102–354,
1 So
in original. Probably should not be capitalized.
References in Text note below.
2 See
Page 75
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944, related to compilation of data on use of alternative means of dispute resolution in conducting agency proceedings.
§ 583. Support services
For the purposes of this subchapter, an agency
may use (with or without reimbursement) the
services and facilities of other Federal agencies,
State, local, and tribal governments, public and
private organizations and agencies, and individuals, with the consent of such agencies, organizations, and individuals. An agency may accept
voluntary and uncompensated services for purposes of this subchapter without regard to the
provisions of section 1342 of title 31.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104
Stat. 2745, § 593; renumbered § 583, Pub. L. 102–354,
§ 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended
Pub. L. 104–320, § 5, Oct. 19, 1996, 110 Stat. 3871.)
PRIOR PROVISIONS
Prior sections 583 to 590 were renumbered sections 573
to 580 of this title, respectively.
Other prior sections 583 to 590 were renumbered sections 563 to 570 of this title, respectively.
AMENDMENTS
1996—Pub. L. 104–320 inserted ‘‘State, local, and tribal
governments,’’ after ‘‘other Federal agencies,’’.
1992—Pub. L. 102–354 renumbered section 593 of this
title as this section.
§ 584. Authorization of appropriations
There are authorized to be appropriated such
sums as may be necessary to carry out the purposes of this subchapter.
(Added Pub. L. 104–320, § 10(a), Oct. 19, 1996, 110
Stat. 3873.)
SUBCHAPTER V—ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES
AMENDMENTS
1992—Pub. L. 102–354, § 2(1), Aug. 26, 1992, 106 Stat. 944,
redesignated subchapter III of this chapter as this subchapter.
TERMINATION OF ADMINISTRATIVE CONFERENCE OF
UNITED STATES
Pub. L. 104–52, title IV, Nov. 19, 1995, 109 Stat. 480,
provided: ‘‘For necessary expenses of the Administrative Conference of the United States, established under
subchapter V of chapter 5 of title 5, United States Code,
$600,000: Provided, That these funds shall only be available for the purposes of the prompt and orderly termination of the Administrative Conference of the United
States by February 1, 1996.’’
§ 591. Purposes
The purposes of this subchapter are—
(1) to provide suitable arrangements through
which Federal agencies, assisted by outside experts, may cooperatively study mutual problems, exchange information, and develop recommendations for action by proper authorities to the end that private rights may be fully
protected and regulatory activities and other
Federal responsibilities may be carried out expeditiously in the public interest;
(2) to promote more effective public participation and efficiency in the rulemaking process;
§ 592
(3) to reduce unnecessary litigation in the
regulatory process;
(4) to improve the use of science in the regulatory process; and
(5) to improve the effectiveness of laws applicable to the regulatory process.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388, § 571; renumbered § 591, Pub. L. 102–354, § 2(2), Aug. 26,
1992, 106 Stat. 944; Pub. L. 108–401, § 2(a), Oct. 30,
2004, 118 Stat. 2255.)
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1045(e).
Aug. 30, 1964, Pub. L. 88–499,
§ 2(e), 78 Stat. 615.
The words ‘‘this subchapter’’ are substituted for ‘‘this
Act’’ to reflect the codification of the Administrative
Conference Act in this subchapter.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
PRIOR PROVISIONS
A prior section 591 was renumbered section 581 of this
title.
AMENDMENTS
2004—Pub. L. 108–401 amended section catchline and
text generally. Prior to amendment, text read as follows: ‘‘It is the purpose of this subchapter to provide
suitable arrangements through which Federal agencies,
assisted by outside experts, may cooperatively study
mutual problems, exchange information, and develop
recommendations for action by proper authorities to
the end that private rights may be fully protected and
regulatory activities and other Federal responsibilities
may be carried out expeditiously in the public interest.’’
1992—Pub. L. 102–354 renumbered section 571 of this
title as this section.
§ 592. Definitions
For the purpose of this subchapter—
(1) ‘‘administrative program’’ includes a
Federal function which involves protection of
the public interest and the determination of
rights, privileges, and obligations of private
persons through rule making, adjudication, licensing, or investigation, as those terms are
used in subchapter II of this chapter, except
that it does not include a military or foreign
affairs function of the United States;
(2) ‘‘administrative agency’’ means an authority as defined by section 551(1) of this
title; and
(3) ‘‘administrative procedure’’ means procedure used in carrying out an administrative
program and is to be broadly construed to include any aspect of agency organization, procedure, or management which may affect the
equitable consideration of public and private
interests, the fairness of agency decisions, the
speed of agency action, and the relationship of
operating methods to later judicial review, but
does not include the scope of agency responsibility as established by law or matters of
substantive policy committed by law to agency discretion.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388, § 572; renumbered § 592, Pub. L. 102–354, § 2(2), Aug. 26,
1992, 106 Stat. 944.)
§ 593
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1045a.
Aug. 30, 1964, Pub. L. 88–499,
§ 3, 78 Stat. 615.
In paragraph (1), the words ‘‘subchapter II of this
chapter’’ are substituted for ‘‘the Administrative Procedure Act (5 U.S.C. 1001–1011)’’ to reflect the codification of the Act in this title. The word ‘‘naval’’ is omitted as included in ‘‘military’’.
In paragraph (2), the words ‘‘section 551(1) of this
title’’ are substituted for ‘‘section 2(a) of the Administrative Procedure Act (5 U.S.C. 1001(a))’’.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
formed by knowledge and experience with respect to Federal administrative procedure.
(c) Members of the Conference, except the
Chairman, are not entitled to pay for service.
Members appointed from outside the Federal
Government are entitled to travel expenses, including per diem instead of subsistence, as authorized by section 5703 of this title for individuals serving without pay.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 389, § 573;
Pub. L. 99–470, § 1, Oct. 14, 1986, 100 Stat. 1198; renumbered § 593 and amended Pub. L. 102–354,
§ 2(2), (3), Aug. 26, 1992, 106 Stat. 944.)
HISTORICAL AND REVISION NOTES
PRIOR PROVISIONS
Derivation
A prior section 592 was renumbered section 582 of this
title and was subsequently repealed.
..................
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 572 of this
title as this section.
§ 593. Administrative Conference of the United
States
(a) The Administrative Conference of the
United States consists of not more than 101 nor
less than 75 members appointed as set forth in
subsection (b) of this section.
(b) The Conference is composed of—
(1) a full-time Chairman appointed for a 5year term by the President, by and with the
advice and consent of the Senate. The Chairman is entitled to pay at the highest rate established by statute for the chairman of an
independent regulatory board or commission,
and may continue to serve until his successor
is appointed and has qualified;
(2) the chairman of each independent regulatory board or commission or an individual
designated by the board or commission;
(3) the head of each Executive department or
other administrative agency which is designated by the President, or an individual designated by the head of the department or
agency;
(4) when authorized by the Council referred
to in section 595(b) of this title, one or more
appointees from a board, commission, department, or agency referred to in this subsection,
designated by the head thereof with, in the
case of a board or commission, the approval of
the board or commission;
(5) individuals appointed by the President to
membership on the Council who are not otherwise members of the Conference; and
(6) not more than 40 other members appointed by the Chairman, with the approval of
the Council, for terms of 2 years, except that
the number of members appointed by the
Chairman may at no time be less than onethird nor more than two-fifths of the total
number of members. The Chairman shall select the members in a manner which will provide broad representation of the views of private citizens and utilize diverse experience.
The members shall be members of the practicing bar, scholars in the field of administrative
law or government, or others specially in-
Page 76
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1045b.
Aug. 30, 1964, Pub. L. 88–499,
§ 4, 78 Stat. 616.
In subsection (a), the words ‘‘There is hereby established’’ are omitted as executed. The words ‘‘hereinafter referred to as the ‘Conference’ ’’ are omitted as
unnecessary as the title ‘‘Administrative Conference of
the United States’’ is fully set out the first time it is
used in each section of this chapter.
In subsection (b)(4), the words ‘‘referred to in section
575(b) of this title’’ are inserted for clarity.
In subsection (c), the words ‘‘by section 5703 of this
title’’ are substituted for ‘‘by law (5 U.S.C. 73b–2)’’ to
reflect the codification of that section in title 5.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
PRIOR PROVISIONS
A prior section 593 was renumbered section 583 of this
title.
AMENDMENTS
1992—Pub. L. 102–354, § 2(2), renumbered section 573 of
this title as this section.
Subsec. (b)(4). Pub. L. 102–354, § 2(3), substituted ‘‘section 595(b)’’ for ‘‘section 575(b)’’.
1986—Subsec. (a). Pub. L. 99–470, § 1(a)(1), substituted
‘‘101’’ for ‘‘91’’.
Subsec. (b)(6). Pub. L. 99–470, § 1(a)(2), substituted
‘‘40’’ for ‘‘36’’.
TERMINATION OF ADMINISTRATIVE CONFERENCE OF
UNITED STATES
For termination of Administrative Conference of
United States, see note set out preceding section 591 of
this title.
DEVELOPMENT OF ADMINISTRATIVE CONFERENCE
The Administrative Conference of the United States,
established as a permanent body by the Administrative
Conference Act, Pub. L. 88–499, Aug. 30, 1964, 78 Stat.
615, was preceded by two temporary Conferences. The
first was called by President Eisenhower in 1953 and
adopted a final report which was transmitted to the
President who acknowledged receipt of it on March 3,
1955. The second was established by President Kennedy
by Executive Order No. 10934, Apr. 14, 1961, 26 F.R. 3233,
which, by its terms, called for a final report to the
President by December 31, 1962. The final report recommended a continuing Conference consisting of both
government personnel and outside experts.
§ 594. Powers and duties of the Conference
To carry out the purposes of this subchapter,
the Administrative Conference of the United
States may—
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TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(1) study the efficiency, adequacy, and fairness of the administrative procedure used by
administrative agencies in carrying out administrative programs, and make recommendations to administrative agencies, collectively or individually, and to the President,
Congress, or the Judicial Conference of the
United States, in connection therewith, as it
considers appropriate;
(2) arrange for interchange among administrative agencies of information potentially
useful in improving administrative procedure;
(3) collect information and statistics from
administrative agencies and publish such reports as it considers useful for evaluating and
improving administrative procedure;
(4) enter into arrangements with any administrative agency or major organizational unit
within an administrative agency pursuant to
which the Conference performs any of the
functions described in this section; and
(5) provide assistance in response to requests
relating to the improvement of administrative
procedure in foreign countries, subject to the
concurrence of the Secretary of State, the Administrator of the Agency for International
Development, or the Director of the United
States Information Agency, as appropriate,
except that—
(A) such assistance shall be limited to the
analysis of issues relating to administrative
procedure, the provision of training of foreign officials in administrative procedure,
and the design or improvement of administrative procedure, where the expertise of
members of the Conference is indicated; and
(B) such assistance may only be undertaken on a fully reimbursable basis, including all direct and indirect administrative
costs.
Payment for services provided by the Conference
pursuant to paragraph (4) shall be credited to
the operating account for the Conference and
shall remain available until expended.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 390, § 574;
Pub. L. 101–422, § 2, Oct. 12, 1990, 104 Stat. 910; renumbered § 594, Pub. L. 102–354, § 2(2), Aug. 26,
1992, 106 Stat. 944; Pub. L. 102–403, Oct. 9, 1992, 106
Stat. 1968; Pub. L. 108–401, § 2(b)(1), Oct. 30, 2004,
118 Stat. 2255.)
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1045c.
Aug. 30, 1964, Pub. L. 88–499,
§ 5, 78 Stat. 616.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
AMENDMENTS
2004—Pub. L. 108–401 substituted ‘‘purposes’’ for ‘‘purpose’’ in introductory provisions.
1992—Pub. L. 102–354 renumbered section 574 of this
title as this section.
Par. (4). Pub. L. 102–403 amended par. (4) generally.
Prior to amendment, par. (4) read as follows: ‘‘enter
into arrangements with any administrative agency or
major organizational unit within an administrative
agency pursuant to which the Conference performs any
§ 595
of the functions described in paragraphs (1), (2), and
(3).’’
Par. (5). Pub. L. 102–403 which directed addition of
par. (5) at end of section, was executed by adding par.
(5) after par. (4) and before concluding provisions, to reflect the probable intent of Congress.
1990—Pub. L. 101–422 added par. (4) and concluding
provisions.
TERMINATION OF ADMINISTRATIVE CONFERENCE OF
UNITED STATES
For termination of Administrative Conference of
United States, see note set out preceding section 591 of
this title.
TRANSFER OF FUNCTIONS
United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau) abolished and functions transferred to
Secretary of State, see sections 6531 and 6532 of Title 22,
Foreign Relations and Intercourse.
§ 595. Organization of the Conference
(a) The membership of the Administrative
Conference of the United States meeting in plenary session constitutes the Assembly of the
Conference. The Assembly has ultimate authority over all activities of the Conference. Specifically, it has the power to—
(1) adopt such recommendations as it considers appropriate for improving administrative
procedure. A member who disagrees with a
recommendation adopted by the Assembly is
entitled to enter a dissenting opinion and an
alternate proposal in the record of the Conference proceedings, and the opinion and proposal so entered shall accompany the Conference recommendation in a publication or
distribution thereof; and
(2) adopt bylaws and regulations not inconsistent with this subchapter for carrying out
the functions of the Conference, including the
creation of such committees as it considers
necessary for the conduct of studies and the
development of recommendations for consideration by the Assembly.
(b) The Conference includes a Council composed of the Chairman of the Conference, who is
Chairman of the Council, and 10 other members
appointed by the President, of whom not more
than one-half shall be employees of Federal regulatory agencies or Executive departments. The
President may designate a member of the Council as Vice Chairman. During the absence or incapacity of the Chairman, or when that office is
vacant, the Vice Chairman shall serve as Chairman. The term of each member, except the
Chairman, is 3 years. When the term of a member ends, he may continue to serve until a successor is appointed. However, the service of any
member ends when a change in his employment
status would make him ineligible for Council
membership under the conditions of his original
appointment. The Council has the power to—
(1) determine the time and place of plenary
sessions of the Conference and the agenda for
the sessions. The Council shall call at least
one plenary session each year;
(2) propose bylaws and regulations, including
rules of procedure and committee organization, for adoption by the Assembly;
(3) make recommendations to the Conference or its committees on a subject germane to the purpose of the Conference;
§ 595
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
(4) receive and consider reports and recommendations of committees of the Conference
and send them to members of the Conference
with the views and recommendations of the
Council;
(5) designate a member of the Council to preside at meetings of the Council in the absence
or incapacity of the Chairman and Vice Chairman;
(6) designate such additional officers of the
Conference as it considers desirable;
(7) approve or revise the budgetary proposals
of the Chairman; and
(8) exercise such other powers as may be delegated to it by the Assembly.
(c) The Chairman is the chief executive of the
Conference. In that capacity he has the power
to—
(1) make inquiries into matters he considers
important for Conference consideration, including matters proposed by individuals inside
or outside the Federal Government;
(2) be the official spokesman for the Conference in relations with the several branches
and agencies of the Federal Government and
with interested organizations and individuals
outside the Government, including responsibility for encouraging Federal agencies to
carry out the recommendations of the Conference;
(3) request agency heads to provide information needed by the Conference, which information shall be supplied to the extent permitted
by law;
(4) recommend to the Council appropriate
subjects for action by the Conference;
(5) appoint, with the approval of the Council,
members of committees authorized by the bylaws and regulations of the Conference;
(6) prepare, for approval of the Council, estimates of the budgetary requirements of the
Conference;
(7) appoint and fix the pay of employees, define their duties and responsibilities, and direct and supervise their activities;
(8) rent office space in the District of Columbia;
(9) provide necessary services for the Assembly, the Council, and the committees of the
Conference;
(10) organize and direct studies ordered by
the Assembly or the Council, to contract for
the performance of such studies with any public or private persons, firm, association, corporation, or institution under title III of the
Federal Property and Administrative Services
Act of 1949, as amended (41 U.S.C. 251–260), and
to use from time to time, as appropriate, experts and consultants who may be employed in
accordance with section 3109 of this title at
rates not in excess of the maximum rate of
pay for grade GS–15 as provided in section 5332
of this title;
(11) utilize, with their consent, the services
and facilities of Federal agencies and of State
and private agencies and instrumentalities
with or without reimbursement;
(12) accept, hold, administer, and utilize
gifts, devises, and bequests of property, both
real and personal, for the purpose of aiding
and facilitating the work of the Conference.
Page 78
Gifts and bequests of money and proceeds from
sales of other property received as gifts, devises, or bequests shall be deposited in the
Treasury and shall be disbursed upon the order
of the Chairman. Property accepted pursuant
to this section, and the proceeds thereof, shall
be used as nearly as possible in accordance
with the terms of the gifts, devises, or bequests. For purposes of Federal income, estate, or gift taxes, property accepted under
this section shall be considered as a gift, devise, or bequest to the United States;
(13) accept voluntary and uncompensated
services, notwithstanding the provisions of
section 1342 of title 31;
(14) on request of the head of an agency, furnish assistance and advice on matters of administrative procedure;
(15) exercise such additional authority as the
Council or Assembly delegates to him; and
(16) request any administrative agency to
notify the Chairman of its intent to enter into
any contract with any person outside the
agency to study the efficiency, adequacy, or
fairness of an agency proceeding (as defined in
section 551(12) of this title).
The Chairman shall preside at meetings of the
Council and at each plenary session of the Conference, to which he shall make a full report
concerning the affairs of the Conference since
the last preceding plenary session. The Chairman, on behalf of the Conference, shall transmit
to the President and Congress an annual report
and such interim reports as he considers desirable.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 390, § 575;
Pub. L. 92–526, § 1, Oct. 21, 1972, 86 Stat. 1048; Pub.
L. 97–258, § 3(a)(1), Sept. 13, 1982, 96 Stat. 1062;
Pub. L. 101–422, § 3, Oct. 12, 1990, 104 Stat. 910; renumbered § 595, Pub. L. 102–354, § 2(2), Aug. 26,
1992, 106 Stat. 944.)
HISTORICAL AND REVISION NOTES
Derivation
..................
U.S. Code
5 U.S.C. 1045d.
Revised Statutes and
Statutes at Large
Aug. 30, 1964, Pub. L. 88–499,
§ 6, 78 Stat. 617.
In subsection (b), the words ‘‘except that the Council
members initially appointed shall serve for one, two, or
three years, as designated by the President’’ are omitted as executed, existing rights being preserved by
technical section 8.
In subsection (b)(1), the words ‘‘the sessions’’ are substituted for ‘‘such meetings’’ for clarity as elsewhere
the word ‘‘sessions’’ refers to sessions of the Conference
and ‘‘meetings’’ refers to meetings of the Council.
In subsection (c)(7), the words ‘‘subject to the civil
service and classification laws’’ are omitted as unnecessary inasmuch as appointments in the executive
branch are made subject to the civil service laws and
pay is fixed under classification laws unless specifically
excepted. The words ‘‘and fix the pay of’’ are added for
clarity.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
REFERENCES IN TEXT
The Federal Property and Administrative Services
Act of 1949, referred to in subsec. (c)(10), is act June 30,
1949, ch. 288, 63 Stat. 377. Title III of the Act was classified generally to subchapter IV (§ 251 et seq.) of chapter
Page 79
TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
4 of former Title 41, Public Contracts, and was substantially repealed and restated in division C (§ 3101 et seq.)
of subtitle I of Title 41, Public Contracts, by Pub. L.
111–350, §§ 3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For
complete classification of this Act to the Code, see
Short Title of 1949 Act note set out under section 101 of
Title 41 and Tables. For disposition of sections of
former Title 41, see Disposition Table preceding section
101 of Title 41.
AMENDMENTS
1992—Pub. L. 102–354 renumbered section 575 of this
title as this section.
1990—Subsec. (c)(16). Pub. L. 101–422 added par. (16).
1982—Subsec. (c)(13). Pub. L. 97–258 substituted ‘‘section 1342 of title 31’’ for ‘‘section 3679(b) of the Revised
Statutes (31 U.S.C. 665(b))’’.
1972—Subsec. (c)(10). Pub. L. 92–526, § 1(a), inserted
provisions authorizing contracts for the performance of
such studies with any public or private persons, etc.,
under title III of the Federal Property and Administrative Services Act of 1949, as amended, and substituted
provisions authorizing the payment of experts and consultants in accordance with rates not in excess of the
maximum rate of pay for grade GS–15 as provided in
section 5332 of this title, for provisions authorizing the
payment of such individuals at rates not in excess of
$100 a day.
Subsec. (c)(11) to (15). Pub. L. 92–526, § 1(b), added
pars. (11) to (13) and redesignated former pars. (11) and
(12) as (14) and (15), respectively.
TERMINATION OF ADMINISTRATIVE CONFERENCE OF
UNITED STATES
For termination of Administrative Conference of
United States, see note set out preceding section 591 of
this title.
§ 596. Authorization of appropriations
There are authorized to be appropriated to
carry out this subchapter not more than
$3,200,000 for fiscal year 2009, $3,200,000 for fiscal
year 2010, and $3,200,000 for fiscal year 2011. Of
any amounts appropriated under this section,
not more than $2,500 may be made available in
each fiscal year for official representation and
entertainment expenses for foreign dignitaries.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 391, § 576;
Pub. L. 91–164, Dec. 24, 1969, 83 Stat. 446; Pub. L.
92–526, § 2, Oct. 21, 1972, 86 Stat. 1048; Pub. L.
95–293, § 1(a), June 13, 1978, 92 Stat. 317; Pub. L.
97–330, Oct. 15, 1982, 96 Stat. 1618; Pub. L. 99–470,
§ 2(a), Oct. 14, 1986, 100 Stat. 1198; Pub. L. 101–422,
§ 1, Oct. 12, 1990, 104 Stat. 910; renumbered § 596,
Pub. L. 102–354, § 2(2), Aug. 26, 1992, 106 Stat. 944;
Pub. L. 108–401, § 3, Oct. 30, 2004, 118 Stat. 2255;
Pub. L. 110–290, § 2, July 30, 2008, 122 Stat. 2914.)
HISTORICAL AND REVISION NOTES
Derivation
..................
Revised Statutes and
Statutes at Large
U.S. Code
5 U.S.C. 1045e.
Aug. 30, 1964, Pub. L. 88–499,
§ 7, 78 Stat. 618.
§ 596
amounts appropriated under this section, not more
than $2,500 may be made available in each fiscal year
for official representation and entertainment expenses
for foreign dignitaries.’’
2004—Pub. L. 108–401 reenacted section catchline
without change and amended text generally. Prior to
amendment, text read as follows: ‘‘There are authorized
to be appropriated to carry out the purposes of this
subchapter not more than $2,000,000 for fiscal year 1990,
$2,100,000 for fiscal year 1991, $2,200,000 for fiscal year
1992, $2,300,000 for fiscal year 1993, and $2,400,000 for fiscal year 1994. Of any amounts appropriated under this
section, not more than $1,500 may be made available in
each fiscal year for official representation and entertainment expenses for foreign dignitaries.’’
1992—Pub. L. 102–354 renumbered section 576 of this
title as this section.
1990—Pub. L. 101–422 amended section generally. Prior
to amendment, section read as follows: ‘‘There are authorized to be appropriated to carry out the purposes of
this subchapter not more than $1,600,000 for fiscal year
1986 and not more than $2,000,000 for each fiscal year
thereafter up to and including fiscal year 1990. Of any
amounts appropriated under this section, not more
than $1,000 may be made available in each fiscal year
for official reception and entertainment expenses for
foreign dignitaries.’’
1986—Pub. L. 99–470 substituted ‘‘Authorization of appropriations’’ for ‘‘Appropriations’’ in section catchline
and amended text generally. Prior to amendment, text
read as follows: ‘‘There are authorized to be appropriated to carry out the purposes of this subchapter
sums not to exceed $2,300,000 for the fiscal year ending
September 30, 1982, and not to exceed $2,300,000 for each
fiscal year thereafter up to and including the fiscal
year ending September 30, 1986.’’
1982—Pub. L. 97–330 substituted provisions authorizing appropriations of not to exceed $2,300,000 for fiscal
year ending Sept. 30, 1982, and not to exceed $2,300,000
for each fiscal year thereafter up to and including fiscal year ending Sept. 30, 1986, for provisions that had
authorized appropriations of not to exceed $1,700,000 for
fiscal year ending Sept. 30, 1979, $2,000,000 for fiscal year
ending Sept. 30, 1980, $2,300,000 for fiscal year ending
Sept. 30, 1981, and $2,300,000 for fiscal year ending Sept.
30, 1982.
1978—Pub. L. 95–293 substituted provisions authorizing appropriations for fiscal years ending Sept. 30, 1979,
Sept. 30, 1980, Sept. 30, 1981, and Sept. 30, 1982, of
$1,700,000, $2,000,000, $2,300,000, and $2,300,000, respectively, for provisions authorizing appropriations for fiscal years ending June 30, 1974, June 30, 1975, June 30,
1976, June 30, 1977, and June 30, 1978, of $760,000, $805,000,
$850,000, $900,000, and $950,000, respectively, and provisions authorizing for each fiscal year thereafter such
sums as may be necessary.
1972—Pub. L. 92–526 substituted provisions authorizing to be appropriated necessary sums not in excess of
$760,000 for fiscal year ending June 30, 1974, $805,000 for
fiscal year ending June 30, 1975, $850,000 for fiscal year
ending June 30, 1976, $900,000 for fiscal year ending June
30, 1977, and $950,000 for fiscal year ending June 30, 1978,
and each fiscal year thereafter, for provisions authorizing to be appropriated necessary sums, not in excess of
$450,000 per annum.
1969—Pub. L. 91–164 substituted ‘‘$450,000 per annum’’
for ‘‘$250,000’’.
EFFECTIVE DATE OF 1978 AMENDMENT
The word ‘‘hereby’’ is omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
Section 1(b) of Pub. L. 95–293 provided that: ‘‘The
amendment made by subsection (a) [amending this section] shall take effect October 1, 1977.’’
AMENDMENTS
CHAPTER 6—THE ANALYSIS OF
REGULATORY FUNCTIONS
2008—Pub. L. 110–290 amended section generally. Prior
to amendment, text read as follows: ‘‘There are authorized to be appropriated to carry out this subchapter not
more than $3,000,000 for fiscal year 2005, $3,100,000 for
fiscal year 2006, and $3,200,000 for fiscal year 2007. Of any
Sec.
601.
602.
603.
Definitions.
Regulatory agenda.
Initial regulatory flexibility analysis.
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