Title 5 — Government Organization and Employees — § 553. Rule making
Summary
Pages 147-148 of Title 5, Government Organization and Employees, print § 553, Rule making, with the end of § 552b and the start of § 554 on adjudications. Section 553 requires general notice of proposed rule making in the Federal Register, giving the proceedings, the legal authority and the terms or substance of the rule and, since Pub. L. 118–9 of July 25, 2023, the internet address of a plain-language summary of not more than 100 words posted on regulations.gov. Agencies must let interested persons submit written data, views or arguments and must publish a substantive rule not less than 30 days before it takes effect, with exceptions. Military and foreign affairs functions and matters of agency management, personnel, public property, loans, grants, benefits or contracts are excluded. Each agency must let interested persons petition for the issuance, amendment or repeal of a rule.
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Page 147 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 553
does not authorize the closing of any agency United States that the public is entitled to the fullest
meeting or portion thereof required by any practicable information regarding the decisionmaking
other provision of law to be open. processes of the Federal Government. It is the purpose
(m) Nothing in this section authorizes any of this Act [see Short Title note set out above] to pro-
vide the public with such information while protecting
agency to withhold from any individual any the rights of individuals and the ability of the Govern-
record, including transcripts, recordings, or ment to carry out its responsibilities.’’
minutes required by this section, which is other-
wise accessible to such individual under section § 553. Rule making
552a of this title.
(a) This section applies, according to the pro-
(Added Pub. L. 94–409, § 3(a), Sept. 13, 1976, 90 visions thereof, except to the extent that there
Stat. 1241; amended Pub. L. 104–66, title III, is involved—
§ 3002, Dec. 21, 1995, 109 Stat. 734.) (1) a military or foreign affairs function of
the United States; or
Editorial Notes (2) a matter relating to agency management
REFERENCES IN TEXT or personnel or to public property, loans,
grants, benefits, or contracts.
Section 552(e) of this title, referred to in subsec.
(a)(1), was redesignated section 552(f) of this title by (b) General notice of proposed rule making
section 1802(b) of Pub. L. 99–570. shall be published in the Federal Register, un-
180 days after the date of enactment of this section, less persons subject thereto are named and ei-
referred to in subsec. (g), means 180 days after the date
of enactment of Pub. L. 94–409, which was approved
ther personally served or otherwise have actual
Sept. 13, 1976. notice thereof in accordance with law. The no-
tice shall include—
AMENDMENTS (1) a statement of the time, place, and na-
1995—Subsec. (j). Pub. L. 104–66 amended subsec. (j) ture of public rule making proceedings;
generally. Prior to amendment, subsec. (j) read as fol- (2) reference to the legal authority under
lows: ‘‘Each agency subject to the requirements of this which the rule is proposed;
section shall annually report to Congress regarding its (3) either the terms or substance of the pro-
compliance with such requirements, including a tabula- posed rule or a description of the subjects and
tion of the total number of agency meetings open to
the public, the total number of meetings closed to the issues involved; and
public, the reasons for closing such meetings, and a de- (4) the Internet address of a summary of not
scription of any litigation brought against the agency more than 100 words in length of the proposed
under this section, including any costs assessed against rule, in plain language, that shall be posted on
the agency in such litigation (whether or not paid by the Internet website under section 206(d) of the
the agency).’’ E-Government Act of 2002 (44 U.S.C. 3501 note)
(commonly known as regulations.gov).
Statutory Notes and Related Subsidiaries
Except when notice or hearing is required by
EFFECTIVE DATE statute, this subsection does not apply—
Pub. L. 94–409, § 6, Sept. 13, 1976, 90 Stat. 1248, provided (A) to interpretative rules, general state-
that: ments of policy, or rules of agency organiza-
‘‘(a) Except as provided in subsection (b) of this sec- tion, procedure, or practice; or
tion, the provisions of this Act [see Short Title note set (B) when the agency for good cause finds
out below] shall take effect 180 days after the date of
its enactment [Sept. 13, 1976]. (and incorporates the finding and a brief state-
‘‘(b) Subsection (g) of section 552b of title 5, United ment of reasons therefor in the rules issued)
States Code, as added by section 3(a) of this Act, shall that notice and public procedure thereon are
take effect upon enactment [Sept. 13, 1976].’’ impracticable, unnecessary, or contrary to the
SHORT TITLE OF 1976 AMENDMENT public interest.
Pub. L. 94–409, § 1, Sept. 13, 1976, 90 Stat. 1241, pro- (c) After notice required by this section, the
vided: ‘‘That this Act [enacting this section, amending agency shall give interested persons an oppor-
sections 551, 552, 556, and 557 of this title, section 10 of tunity to participate in the rule making through
Pub. L. 92–463, formerly set out in the Appendix to this submission of written data, views, or arguments
title, and section 410 of Title 39, and enacting provi- with or without opportunity for oral presen-
sions set out as notes under this section] may be cited
tation. After consideration of the relevant mat-
as the ‘Government in the Sunshine Act’.’’
ter presented, the agency shall incorporate in
TERMINATION OF REPORTING REQUIREMENTS the rules adopted a concise general statement of
For termination, effective May 15, 2000, of provisions their basis and purpose. When rules are required
of law requiring submittal to Congress of any annual, by statute to be made on the record after oppor-
semiannual, or other regular periodic report listed in tunity for an agency hearing, sections 556 and
House Document No. 103–7 (in which the report required 557 of this title apply instead of this subsection.
by subsec. (j) of this section is listed on page 151), see (d) The required publication or service of a
section 3003 of Pub. L. 104–66, as amended, set out as a
substantive rule shall be made not less than 30
note under section 1113 of Title 31, Money and Finance.
days before its effective date, except—
TERMINATION OF ADMINISTRATIVE CONFERENCE OF (1) a substantive rule which grants or recog-
UNITED STATES nizes an exemption or relieves a restriction;
For termination of Administrative Conference of (2) interpretative rules and statements of
United States, see provision of title IV of Pub. L. policy; or
104–52, set out as a note preceding section 591 of this (3) as otherwise provided by the agency for
title. good cause found and published with the rule.
DECLARATION OF POLICY AND STATEMENT OF PURPOSE (e) Each agency shall give an interested person
Pub. L. 94–409, § 2, Sept. 13, 1976, 90 Stat. 1241, provided the right to petition for the issuance, amend-
that: ‘‘It is hereby declared to be the policy of the ment, or repeal of a rule.
§ 554 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 148
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383; Pub. L. (1) the time, place, and nature of the hear-
118–9, § 2, July 25, 2023, 137 Stat. 55.) ing;
(2) the legal authority and jurisdiction under
HISTORICAL AND REVISION NOTES which the hearing is to be held; and
Revised Statutes and (3) the matters of fact and law asserted.
Derivation U.S. Code
Statutes at Large
When private persons are the moving parties,
.................. 5 U.S.C. 1003. June 11, 1946, ch. 324, § 4, 60 other parties to the proceeding shall give
Stat. 238. prompt notice of issues controverted in fact or
law; and in other instances agencies may by rule
In subsection (a)(1), the words ‘‘or naval’’ are omitted require responsive pleading. In fixing the time
as included in ‘‘military’’.
and place for hearings, due regard shall be had
In subsection (b), the word ‘‘when’’ is substituted for
‘‘in any situation in which’’. for the convenience and necessity of the parties
In subsection (c), the words ‘‘for oral presentation’’ or their representatives.
are substituted for ‘‘to present the same orally in any (c) The agency shall give all interested parties
manner’’. The words ‘‘sections 556 and 557 of this title opportunity for—
apply instead of this subsection’’ are substituted for (1) the submission and consideration of
‘‘the requirements of sections 1006 and 1007 of this title facts, arguments, offers of settlement, or pro-
shall apply in place of the provisions of this sub- posals of adjustment when time, the nature of
section’’. the proceeding, and the public interest permit;
Standard changes are made to conform with the defi- and
nitions applicable and the style of this title as outlined (2) to the extent that the parties are unable
in the preface to the report.
so to determine a controversy by consent,
hearing and decision on notice and in accord-
Editorial Notes
ance with sections 556 and 557 of this title.
REFERENCES IN TEXT (d) The employee who presides at the recep-
Section 206(d) of the E-Government Act of 2002, re- tion of evidence pursuant to section 556 of this
ferred to in subsec. (b)(4), is section 206(d) of Pub. L. title shall make the recommended decision or
107–347, which is set out in a note under section 3501 of initial decision required by section 557 of this
Title 44, Public Printing and Documents. title, unless he becomes unavailable to the agen-
CODIFICATION cy. Except to the extent required for the disposi-
tion of ex parte matters as authorized by law,
Section 553 of former Title 5, Executive Departments
and Government Officers and Employees, was trans- such an employee may not—
ferred to section 2245 of Title 7, Agriculture. (1) consult a person or party on a fact in
issue, unless on notice and opportunity for all
AMENDMENTS parties to participate; or
2023—Subsec. (b)(4). Pub. L. 118–9 added par. (4). (2) be responsible to or subject to the super-
vision or direction of an employee or agent en-
Executive Documents gaged in the performance of investigative or
prosecuting functions for an agency.
EXECUTIVE ORDER NO. 12044
An employee or agent engaged in the perform-
Ex. Ord. No. 12044, Mar. 23, 1978, 43 F.R. 12661, as ance of investigative or prosecuting functions
amended by Ex. Ord. No. 12221, June 27, 1980, 45 F.R.
for an agency in a case may not, in that or a fac-
44249, which related to the improvement of Federal reg-
ulations, was revoked by Ex. Ord. No. 12291, Feb. 17, tually related case, participate or advise in the
1981, 46 F.R. 13193, formerly set out as a note under sec- decision, recommended decision, or agency re-
tion 601 of this title. view pursuant to section 557 of this title, except
as witness or counsel in public proceedings. This
§ 554. Adjudications subsection does not apply—
(A) in determining applications for initial li-
(a) This section applies, according to the pro-
censes;
visions thereof, in every case of adjudication re- (B) to proceedings involving the validity or
quired by statute to be determined on the record application of rates, facilities, or practices of
after opportunity for an agency hearing, except public utilities or carriers; or
to the extent that there is involved— (C) to the agency or a member or members
(1) a matter subject to a subsequent trial of of the body comprising the agency.
the law and the facts de novo in a court;
(2) the selection or tenure of an employee, (e) The agency, with like effect as in the case
except a 1 administrative law judge appointed of other orders, and in its sound discretion, may
under section 3105 of this title; issue a declaratory order to terminate a con-
(3) proceedings in which decisions rest solely troversy or remove uncertainty.
on inspections, tests, or elections; (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 384; Pub. L.
(4) the conduct of military or foreign affairs 95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183.)
functions;
HISTORICAL AND REVISION NOTES
(5) cases in which an agency is acting as an
agent for a court; or Revised Statutes and
Derivation U.S. Code
(6) the certification of worker representa- Statutes at Large
tives. .................. 5 U.S.C. 1004. June 11, 1946, ch. 324, § 5, 60
Stat. 239.
(b) Persons entitled to notice of an agency
hearing shall be timely informed of— In subsection (a)(2), the word ‘‘employee’’ is sub-
stituted for ‘‘officer or employee of the United States’’
1 So in original. in view of the definition of ‘‘employee’’ in section 2105.
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