Administrative Procedure

• Author: Environmental Law Reporter
• Pages: 7-23

Administrative Procedure

5 U.S.C. §§500-596

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 fil-

ing with the agency a written declaration that he is currently qualified

as provided by this subsection and is authorized to represent the partic-

ular person in whose behalf he acts.

(c) An individual who is duly qualified to practice as a certified pub-

lic 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 rep-

resent a person before an agency or in an agency proceeding;

(2) authorize or limit the discipline, including disbarment, of in-

dividuals 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 representa-

tion 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 ti-

tle 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 no-

tice or other written communication required or permitted to be given

the participant in the matter shall be given to the representative in addi-

tion to any other service specifically required by statute. When a par-

ticipant 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, Sec. 1000(a)(9) [title IV,Sec. 4732(b)(2)], Nov. 29, 1999, 113

Stat. 1536, 1501A-583.)

Effective Date Of 1999 Amendment

Amended by Pub. L. 106-113effective 4 months after Nov. 29, 1999, see section

1000(a)(9) [title IV,Sec. 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 Statesmay not use the name of a Member of either House of

Congress or of an individual in the service of the United States in ad-

vertising the business.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381.)

§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 ci-

vilian profession or occupation before, or in connection with, an

agency of the United States.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381.)

§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 stat-

ute 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.)

[Editors’note: 5 U.S.C. §504 appears infra as part of the Equal Ac-

cess to Justice Act.]

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ADMINISTRATIVEPROCEDURE 5 U.S.C. §500

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 Proce-

dure 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 an-

other 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 de-

termined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in

occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and

1744 of title 12; chapter 2 of title 41; subchapter II of chapter 471

of title 49; or sections 1884, 1891-1902, and former section

1641(b)(2), of title 50, appendix;

(2) “person” includes an individual, partnership, corporation, as-

sociation, 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 gen-

eral or particular applicability and future effect designed to implement,

interpret, or prescribe law or policy or describing the organization, pro-

cedure, or practice requirements of an agency and includes the ap-

proval or prescription for the future of rates, wages, corporate or finan-

cial 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, amend-

ing, or repealing a rule;

(6) “order” means the whole or a part of a final disposition,

whether affirmative, negative, injunctive, or declaratory in form, of

an agency in a matter other than rule making but including licensing;

(7) “adjudication” means agency process for the formulation of

an order;

(8) “license” includes the whole or a part of an agency permit,

certificate, approval, registration, charter, membership, statutory

exemption or other form of permission;

(9) “licensing” includes agency process respecting the grant, re-

newal, denial, revocation, suspension, annulment, withdrawal, lim-

itation, 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 af-

fecting 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, com-

pensation, 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, exemp-

tion, 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 commu-

nication not on the public record with respect to which reasonable

prior notice to all parties is not given, but it shall not include re-

quests 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.)

Codification

Section 551 of former Title 5, Executive Departments and Government Officers

and Employees, was transferred to section 2242 of Title 7, Agriculture.

Effective Date Of 1976 Amendment

Amendmentby Pub. L. 94-409 effective 180 days after Sept. 13, 1976, see section

6of 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, Sec. 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—

“(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 relat-

ing 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 Sen-

ate 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 Treasuryissuing the subpoena

and imposing the charges.

“(2) Expiration.—The reporting requirement of this subsection shall termi-

nate in 3 years after the date of the enactment of this section [Dec. 19, 2000].”

[Editors’note: 5 U.S.C. §§552, 552a appear infra under the Free-

dom of Information Act; 5 U.S.C. §552b appears infra under the Gov-

ernment in the Sunshine Act.]

§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 accor-

dance with law. The notice shall include—

(1) a statement of the time, place, and nature of public rule mak-

ing proceedings;

(2) reference to the legal authority under which the rule is pro-

posed; and

(3) either the terms or substance of the proposed rule or a descrip-

tion 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

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5 U.S.C. §551 ENVIRONMENTALLAW DESKBOOK