5 USC Sec. 556                                              01/16/96

-EXPCITE-

    TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

    PART I - THE AGENCIES GENERALLY

    CHAPTER 5 - ADMINISTRATIVE PROCEDURE

    SUBCHAPTER II - ADMINISTRATIVE PROCEDURE

-HEAD-

    Sec. 556. Hearings; presiding employees; powers and duties; burden

        of proof; evidence; record as basis of decision

-STATUTE-

      (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.

-SOURCE-

    (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.)

-MISC1-

                       Historical and Revision Notes

    ---------------------------------------------------------------------

    Derivation             U.S. Code              Revised Statutes and

                                                   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), 11,

    inserted before semicolon at end ''or by the use of alternative

    means of dispute resolution as provided in subchapter IV of this

    chapter''.  See Termination Date of 1990 Amendment; Savings

    Provision note below.

      Subsec. (c)(7) to (11). Pub. L. 101-552, Sec. 4(a)(2), 11, added

    pars. (7) and (8) and redesignated former pars. (7) and (8) and

    redesignated former pars. (7) to (9) as as (9) to (11),

    respectively.  See Termination Date of 1990 Amendment; Savings

    Provision note below.

      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.

           TERMINATION DATE OF 1990 AMENDMENT; SAVINGS PROVISION

      For termination Oct. 1, 1995, of authority of agencies to use

    dispute resolution proceedings, with exceptions, under amendments

    by Pub. L. 101-552, see section 11 of Pub. L. 101-552, set out as a

    note under section 571 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.

-CROSS-

                              CROSS REFERENCES

      Secretary of Health and Human Services, advisory committee's

    report, regulations covering pesticides and color additives, see

    sections 346a and 379e of Title 21, Food and Drugs.

      Secretary of Health and Human Services or his delegate, action in

    licensing manufacture of narcotic drugs, see section 822 et seq. of

    Title 21.

      Securities and Exchange Commission, delegation of functions by,

    see section 78d-1 of Title 15, Commerce and Trade.

-SECREF-

                   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, 1219, 1220, 1405;

    title 7 sections 86, 87e, 87f-1, 1359ii, 2023, 2707, 3804, 3805,

    4906, 6802, 6804; title 8 section 1182; 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 sections 10b-1, 422; title 42 sections 300h-2, 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.