US Laws, Codes, Statutes & Cases

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[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 5USC556]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                     PART I--THE AGENCIES GENERALLY
 
                   CHAPTER 5--ADMINISTRATIVE PROCEDURE
 
                 SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
 
Sec. 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;
        (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, Sec. 4(c), 
Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95-251, Sec. 2(a)(1), Mar. 27, 
1978, 92 Stat. 183; Pub. L. 101-552, Sec. 4(a), Nov. 15, 1990, 104 Stat. 
2737.)

                      Historical and Revision Notes
------------------------------------------------------------------------
                                                    Revised Statutes and
     Derivation                U.S. Code             Statutes at Large
------------------------------------------------------------------------
                     5 U.S.C. 1006.                June 11, 1946, ch.
                                                    324, Sec.  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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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 Department transferred to Attorney General by 1950 
Reorg. Plan No. 2, Sec. 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, Sec. 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, Sec. 1, eff. July 31, 1950, 15 
F.R. 4935, 64 Stat. 1280, set out in the Appendix to this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 553, 554, 557, 558, 706, 
3105 of this title; title 2 sections 501, 502, 1405; title 7 sections 
86, 87e, 87f-1, 1359ii, 2023, 2707, 3804, 3805, 4604, 4906, 6802, 6804, 
7804; title 8 sections 1182, 1375; title 13 section 305; title 15 
sections 57a, 2605, 3412; title 16 sections 796, 839f, 1536, 2602, 3636; 
title 20 section 1234; title 21 sections 321, 342, 379e, 1041; title 22 
sections 1037a, 4136; title 30 sections 185, 811, 1415; title 33 
sections 907, 1319, 1321; title 39 sections 404, 3624, 3661; title 41 
section 422; title 42 sections 300h-2, 1320a-7c, 2000e-16c, 2241, 7171, 
7407, 7413, 7502, 7511a, 7524, 7607, 9612, 11504; title 46 sections 
7702, 9303; title 47 section 155; title 49 sections 31136, 31317; title 
50 App. sections 16, 2159, 2410, 2412.