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