5 U.S.C. § 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.
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.
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