This electronic document was downloaded from the House of Representatives web site, December 2003,
and is provided for information purposes only. The most current version of the U.S. Code may be found at the
U.S. Code web site.
-CITE-
5 USC CHAPTER 5 - ADMINISTRATIVE PROCEDURE 01/22/02
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
.
-HEAD-
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
-MISC1-
SUBCHAPTER I - GENERAL PROVISIONS
Sec.
500. Administrative practice; general provisions.
501. Advertising practice; restrictions.
502. Administrative practice; Reserves and National Guardsmen.
503. Witness fees and allowances.
504. Costs and fees of parties.
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
551. Definitions.
552. Public information; agency rules, opinions, orders, records,
and proceedings.
552a. Records about individuals. (FOOTNOTE 1)
(FOOTNOTE 1) So in original. Does not conform to section
catchline.
552b. Open meetings.
553. Rule making.
554. Adjudications.
555. Ancillary matters.
556. Hearings; presiding employees; powers and duties; burden of
proof; evidence; record as basis of decision.
557. Initial decisions; conclusiveness; review by agency;
submissions by parties; contents of decisions; record.
558. Imposition of sanctions; determination of applications for
licenses; suspension, revocation, and expiration of licenses.
559. Effect on other laws; effect of subsequent statute.
SUBCHAPTER III - NEGOTIATED RULEMAKING PROCEDURE
561. Purpose.
562. Definitions.
563. Determination of need for negotiated rulemaking committee.
564. Publication of notice; applications for membership on
committee.
565. Establishment of committee.
566. Conduct of committee activity.
567. Termination of committee.
568. Services, facilities, and payment of committee member
expenses.
569. Encouraging negotiated rulemaking.
570. Judicial review.
570a. Authorization of appropriations.
SUBCHAPTER IV - ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
571. Definitions.
572. General authority.
573. Neutrals.
574. Confidentiality.
575. Authorization of arbitration.
576. Enforcement of arbitration agreements.
577. Arbitrators.
578. Authority of the arbitrator.
579. Arbitration proceedings.
580. Arbitration awards.
581. Judicial review.
(582. Repealed.)
583. Support services.
584. Authorization of appropriations.
SUBCHAPTER V - ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
591. Purpose.
592. Definitions.
593. Administrative Conference of the United States.
594. Powers and duties of the Conference.
595. Organization of the Conference.
596. Authorization of appropriations.
AMENDMENTS
1996 - Pub. L. 104-320, Sec. 4(b)(2), 10(b), 11(b)(2), (d)(2),
Oct. 19, 1996, 110 Stat. 3871, 3873, 3874, in item 569 substituted
''Encouraging negotiated rulemaking'' for ''Role of the
Administrative Conference of the United States and other
entities'', added items 570a and 584, and struck out item 582
''Compilation of information''.
1992 - Pub. L. 102-354, Sec. 4, Aug. 26, 1992, 106 Stat. 945,
substituted headings of subchapters III, IV, and V and items 561 to
570, 571 to 583, and 591 to 596 for former heading of subchapter
III and former items 571 to 576 relating to Administrative
Conference of the United States, former heading of subchapter IV
and former items 581 to 593 relating to alternative means of
dispute resolution in the administrative process, and former
heading of subchapter IV and former items 581 to 590 relating to
negotiated rulemaking procedure.
1990 - Pub. L. 101-648, Sec. 3(b), Nov. 29, 1990, 104 Stat. 4976,
added heading of subchapter IV and items 581 to 590 relating to
negotiated rulemaking procedure.
Pub. L. 101-552, Sec. 4(c), Nov. 15, 1990, 104 Stat. 2745, added
heading of subchapter IV and items 581 to 593 (renumbered 571 to
583) relating to alternative means of dispute resolution.
1986 - Pub. L. 99-470, Sec. 2(b), Oct. 14, 1986, 100 Stat. 1198,
substituted ''Authorization of appropriations'' for
''Appropriations'' in item 576.
1985 - Pub. L. 99-80, Sec. 6, Aug. 5, 1985, 99 Stat. 186, revived
item 504 and repealed Pub. L. 96-481, title II, Sec. 203(c), Oct.
21, 1980, 94 Stat. 2327, which provided for the repeal, effective
Oct. 1, 1984, of item 504.
1980 - Pub. L. 96-481, title II, Sec. 203(a)(2), (c), Oct. 21,
1980, 94 Stat. 2327, added item 504 ''Costs and fees of parties'',
and repealed that item effective Oct. 1, 1984.
1976 - Pub. L. 94-409, Sec. 3(b), Sept. 13, 1976, 90 Stat. 1246,
added item 552b.
1974 - Pub. L. 93-579, Sec. 4, Dec. 31, 1974, 88 Stat. 1905,
added item 552a.
1967 - Pub. L. 90-83, Sec. 1(1)(B), Sept. 11, 1967, 81 Stat. 195,
added item 500.
Pub. L. 90-23, Sec. 2, June 5, 1967, 81 Stat. 56, substituted
''Public information; agency rules, opinions, orders, records and
proceedings'' for ''Publication of information, rules, opinions,
orders, and public records'' in item 552.
-SECREF-
CHAPTER REFERRED TO IN OTHER SECTIONS
This chapter is referred to in title 2 section 437d; title 12
sections 1467a, 1730a, 1786, 1818, 2266, 4582, 4633; title 15
sections 77s, 637, 648, 656, 687e, 1541, 1691b, 1715, 2703, 3803;
title 16 section 460aa-3; title 20 sections 1068, 7711; title 21
section 342; title 25 sections 450j, 450l, 458aaa-5, 954; title 29
sections 1861, 2939; title 30 section 811; title 33 section 701n;
title 39 sections 204, 410, 3001, 3603; title 42 sections 300j-6,
9613, 11504; title 43 section 1740; title 44 section 3507; title 45
sections 1116, 1212; title 46 App. section 1241p; title 49 section
106.
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5 USC SUBCHAPTER I - GENERAL PROVISIONS 01/22/02
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
.
-HEAD-
SUBCHAPTER I - GENERAL PROVISIONS
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5 USC Sec. 500 01/22/02
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 500. Administrative practice; general provisions
-STATUTE-
(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 filing with the 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.
(c) An individual who is duly qualified to practice as a
certified public 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 represent a person before an agency or in an agency
proceeding;
(2) authorize or limit the discipline, including disbarment, of
individuals 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
representation 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 title 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 notice or other written communication required
or permitted to be given the participant in the matter shall be
given to the representative in addition to any other service
specifically required by statute. When a participant is
represented by more than one such qualified representative, service
on any one of the representatives is sufficient.
-SOURCE-
(Added Pub. L. 90-83, Sec. 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.)
-MISC1-
Historical and Revision Notes
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Section of title 5 Source (U.S. Code) Source (Revised
Statutes at Large)
---------------------------------------------------------------------
500(a) 5 App.: 1014. Nov. 8, 1965, Pub.
L. 89-332, Sec. 3,
79 Stat. 1281.
500(b)-(e) 5 App.: 1012. Nov. 8, 1965, Pub.
L. 89-332, Sec. 1,
79 Stat. 1281.
500(f) 5 App.: 1013. Nov. 8, 1965, Pub.
L. 89-332, Sec. 2,
79 Stat. 1281.
-------------------------------
The definition of ''State'' in subsection (a)(2) is supplied for
convenience and is based on the words ''State, possession,
territory, Commonwealth, or District of Columbia'' in subsections
(a) and (b) of 5 App. U.S.C. 1012.
In subsection (d), the words ''This section does not'' are
substituted for ''nothing herein shall be construed''.
In subsection (d)(3), the word ''employee'' is substituted for
''officer or employee'' to conform to the definition of
''employee'' in 5 U.S.C. 2105.
AMENDMENTS
1999 - Subsec. (e). Pub. L. 106-113 substituted ''United States
Patent and Trademark Office'' for ''Patent Office''.
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by Pub. L. 106-113 effective 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.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 31 section 330; title 38
section 5901; title 49 section 703.
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5 USC Sec. 501 01/22/02
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 501. Advertising practice; restrictions
-STATUTE-
An individual, firm, or corporation practicing before an agency
of the United States may not use the name of a Member of either
House of Congress or of an individual in the service of the United
States in advertising the business.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381.)
-MISC1-
Historical and Revision Notes
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Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 101. Apr. 27, 1916, ch.
89, Sec. 1, 39
Stat. 54.
-------------------------------
The words ''may not'' are substituted for ''It shall be unlawful
for''. The words ''agency of the United States'' are substituted
for ''any department or office of the Government''. The words ''an
individual in the service of the United States'' are substituted
for ''officer of the Government'' in view of the definitions in
sections 2104 and 2105.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
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5 USC Sec. 502 01/22/02
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 502. Administrative practice; Reserves and National Guardsmen
-STATUTE-
Membership in a reserve component of the armed forces or in the
National Guard does not prevent an individual from practicing his
civilian profession or occupation before, or in connection with, an
agency of the United States.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 30r(c) (2d Aug. 10, 1956, ch.
sentence). 1041, Sec. 29(c)
(2d sentence), 70A
Stat. 632.
-------------------------------
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
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5 USC Sec. 503 01/22/02
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 503. Witness fees and allowances
-STATUTE-
(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
statute 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.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 95. R.S. Sec. 185.
5 U.S.C. 95a. Aug. 2, 1946, ch.
744, Sec. 10, 60
Stat. 809.
-------------------------------
Former sections 95 and 95a are combined and restated for clarity
and brevity. The words ''or expenses in the case of Government
officers and employees'' are omitted as covered by section 1823 of
title 28. The word ''agency'' is substituted for ''department'' and
defined to conform to the definition of ''department'' in section
18 of the Act of Aug. 2, 1946, ch. 744, 60 Stat. 811.
This section was part of title IV of the Revised Statutes. The
Act of July 26, 1947, ch. 343, Sec. 201(d), as added Aug. 10, 1949,
ch. 412, Sec. 4, 63 Stat. 579 (former 5 U.S.C. 171-1), which
provides ''Except to the extent inconsistent with the provisions of
this Act (National Security Act of 1947), the provisions of title
IV of the Revised Statutes as now or hereafter amended shall be
applicable to the Department of Defense'' is omitted from this
title but is not repealed.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
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5 USC Sec. 504 01/22/02
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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER I - GENERAL PROVISIONS
-HEAD-
Sec. 504. Costs and fees of parties
-STATUTE-
(a)(1) An agency that conducts an adversary adjudication shall
award, to a prevailing party other than the United States, fees and
other expenses incurred by that party in connection with that
proceeding, unless the adjudicative officer of the agency finds
that the position of the agency was substantially justified or that
special circumstances make an award unjust. Whether or not the
position of the agency was substantially justified shall be
determined on the basis of the administrative record, as a whole,
which is made in the adversary adjudication for which fees and
other expenses are sought.
(2) A party seeking an award of fees and other expenses shall,
within thirty days of a final disposition in the adversary
adjudication, submit to the agency an application which shows that
the party is a prevailing party and is eligible to receive an award
under this section, and the amount sought, including an itemized
statement from any attorney, agent, or expert witness representing
or appearing in behalf of the party stating the actual time
expended and the rate at which fees and other expenses were
computed. The party shall also allege that the position of the
agency was not substantially justified. When the United States
appeals the underlying merits of an adversary adjudication, no
decision on an application for fees and other expenses in
connection with that adversary adjudication shall be made under
this section until a final and unreviewable decision is rendered by
the court on the appeal or until the underlying merits of the case
have been finally determined pursuant to the appeal.
(3) The adjudicative officer of the agency may reduce the amount
to be awarded, or deny an award, to the extent that the party
during the course of the proceedings engaged in conduct which
unduly and unreasonably protracted the final resolution of the
matter in controversy. The decision of the adjudicative officer of
the agency under this section shall be made a part of the record
containing the final decision of the agency and shall include
written findings and conclusions and the reason or basis therefor.
The decision of the agency on the application for fees and other
expenses shall be the final administrative decision under this
section.
(4) If, in an adversary adjudication arising from an agency
action to enforce a party's compliance with a statutory or
regulatory requirement, the demand by the agency is substantially
in excess of the decision of the adjudicative officer and is
unreasonable when compared with such decision, under the facts and
circumstances of the case, the adjudicative officer shall award to
the party the fees and other expenses related to defending against
the excessive demand, unless the party has committed a willful
violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Fees and expenses awarded
under this paragraph shall be paid only as a consequence of
appropriations provided in advance.
(b)(1) For the purposes of this section -
(A) ''fees and other expenses'' includes the reasonable
expenses of expert witnesses, the reasonable cost of any study,
analysis, engineering report, test, or project which is found by
the agency to be necessary for the preparation of the party's
case, and reasonable attorney or agent fees (The amount of fees
awarded under this section shall be based upon prevailing market
rates for the kind and quality of the services furnished, except
that (i) no expert witness shall be compensated at a rate in
excess of the highest rate of compensation for expert witnesses
paid by the agency involved, and (ii) attorney or agent fees
shall not be awarded in excess of $125 per hour unless the agency
determines by regulation that an increase in the cost of living
or a special factor, such as the limited availability of
qualified attorneys or agents for the proceedings involved,
justifies a higher fee.);
(B) ''party'' means a party, as defined in section 551(3) of
this title, who is (i) an individual whose net worth did not
exceed $2,000,000 at the time the adversary adjudication was
initiated, or (ii) any owner of an unincorporated business, or
any partnership, corporation, association, unit of local
government, or organization, the net worth of which did not
exceed $7,000,000 at the time the adversary adjudication was
initiated, and which had not more than 500 employees at the time
the adversary adjudication was initiated; except that an
organization described in section 501(c)(3) of the Internal
Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation
under section 501(a) of such Code, or a cooperative association
as defined in section 15(a) of the Agricultural Marketing Act (12
U.S.C. 1141j(a)), may be a party regardless of the net worth of
such organization or cooperative association or for purposes of
subsection (a)(4), a small entity as defined in section 601;
(C) ''adversary adjudication'' means (i) an adjudication under
section 554 of this title in which the position of the United
States is represented by counsel or otherwise, but excludes an
adjudication for the purpose of establishing or fixing a rate or
for the purpose of granting or renewing a license, (ii) any
appeal of a decision made pursuant to section 6 of the Contract
Disputes Act of 1978 (41 U.S.C. 605) before an agency board of
contract appeals as provided in section 8 of that Act (41 U.S.C.
607), (iii) any hearing conducted under chapter 38 of title 31,
and (iv) the Religious Freedom Restoration Act of 1993;
(D) ''adjudicative officer'' means the deciding official,
without regard to whether the official is designated as an
administrative law judge, a hearing officer or examiner, or
otherwise, who presided at the adversary adjudication;
(E) ''position of the agency'' means, in addition to the
position taken by the agency in the adversary adjudication, the
action or failure to act by the agency upon which the adversary
adjudication is based; except that fees and other expenses may
not be awarded to a party for any portion of the adversary
adjudication in which the party has unreasonably protracted the
proceedings; and
(F) ''demand'' means the express demand of the agency which led
to the adversary adjudication, but does not include a recitation
by the agency of the maximum statutory penalty (i) in the
administrative complaint, or (ii) elsewhere when accompanied by
an express demand for a lesser amount.
(2) Except as otherwise provided in paragraph (1), the
definitions provided in section 551 of this title apply to this
section.
(c)(1) After consultation with the Chairman of the Administrative
Conference of the United States, each agency shall by rule
establish uniform procedures for the submission and consideration
of applications for an award of fees and other expenses. If a
court reviews the underlying decision of the adversary
adjudication, an award for fees and other expenses may be made only
pursuant to section 2412(d)(3) of title 28, United States Code.
(2) If a party other than the United States is dissatisfied with
a determination of fees and other expenses made under subsection
(a), that party may, within 30 days after the determination is
made, appeal the determination to the court of the United States
having jurisdiction to review the merits of the underlying decision
of the agency adversary adjudication. The court's determination on
any appeal heard under this paragraph shall be based solely on the
factual record made before the agency. The court may modify the
determination of fees and other expenses only if the court finds
that the failure to make an award of fees and other expenses, or
the calculation of the amount of the award, was unsupported by
substantial evidence.
(d) Fees and other expenses awarded under this subsection shall
be paid by any agency over which the party prevails from any funds
made available to the agency by appropriation or otherwise.
(e) The Chairman of the Administrative Conference of the United
States, after consultation with the Chief Counsel for Advocacy of
the Small Business Administration, shall report annually to the
Congress on the amount of fees and other expenses awarded during
the preceding fiscal year pursuant to this section. The report
shall describe the number, nature, and amount of the awards, the
claims involved in the controversy, and any other relevant
information which may aid the Congress in evaluating the scope and
impact of such awards. Each agency shall provide the Chairman with
such information as is necessary for the Chairman to comply with
the requirements of this subsection.
(f) No award may be made under this section for costs, fees, or
other expenses which may be awarded under section 7430 of the
Internal Revenue Code of 1986.
-SOURCE-
(Added Pub. L. 96-481, title II, Sec. 203(a)(1), (c), Oct. 21,
1980, 94 Stat. 2325, 2327; revived and amended Pub. L. 99-80, Sec.
1, 6, Aug. 5, 1985, 99 Stat. 183, 186; Pub. L. 99-509, title VI,
Sec. 6103(c), Oct. 21, 1986, 100 Stat. 1948; Pub. L. 99-514, Sec.
2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100-647, title VI, Sec.
6239(b), Nov. 10, 1988, 102 Stat. 3746; Pub. L. 103-141, Sec. 4(b),
Nov. 16, 1993, 107 Stat. 1489; Pub. L. 104-121, title II, Sec. 231,
Mar. 29, 1996, 110 Stat. 862.)
-REFTEXT-
REFERENCES IN TEXT
The Religious Freedom Restoration Act of 1993, referred to in
subsec. (b)(1)(C)(iv), is Pub. L. 103-141, Nov. 16, 1993, 107 Stat.
1488, which is classified principally to chapter 21B (Sec. 2000bb
et seq.) of Title 42, The Public Health and Welfare. For complete
classification of this Act to the Code, see Short Title note set
out under section 2000bb of Title 42 and Tables.
Section 7430 of the Internal Revenue Code of 1986, referred to in
subsec. (f), is classified to section 7430 of Title 26, Internal
Revenue Code.
-MISC2-
AMENDMENTS
1996 - Subsec. (a)(4). Pub. L. 104-121, Sec. 231(a), added par.
(4).
Subsec. (b)(1)(A)(ii). Pub. L. 104-121, Sec. 231(b)(1),
substituted ''$125'' for ''$75''.
Subsec. (b)(1)(B). Pub. L. 104-121, Sec. 231(b)(2), inserted
before semicolon at end ''or for purposes of subsection (a)(4), a
small entity as defined in section 601''.
Subsec. (b)(1)(F). Pub. L. 104-121, Sec. 231(b)(3)-(5), added
subpar. (F).
1993 - Subsec. (b)(1)(C). Pub. L. 103-141 added cl. (iv).
1988 - Subsec. (f). Pub. L. 100-647 added subsec. (f).
1986 - Subsec. (b)(1)(B). Pub. L. 99-514 substituted ''Internal
Revenue Code of 1986'' for ''Internal Revenue Code of 1954''.
Subsec. (b)(1)(C)(iii). Pub. L. 99-509 added cl. (iii).
1985 - Subsec. (a)(1). Pub. L. 99-80, Sec. 1(a)(1), (2), struck
out ''as a party to the proceeding'' after ''the position of the
agency'', and inserted ''Whether or not the position of the agency
was substantially justified shall be determined on the basis of the
administrative record, as a whole, which is made in the adversary
adjudication for which fees and other expenses are sought.''
Subsec. (a)(2). Pub. L. 99-80, Sec. 1(b), inserted ''When the
United States appeals the underlying merits of an adversary
adjudication, no decision on an application for fees and other
expenses in connection with that adversary adjudication shall be
made under this section until a final and unreviewable decision is
rendered by the court on the appeal or until the underlying merits
of the case have been finally determined pursuant to the appeal.''
Subsec. (a)(3). Pub. L. 99-80, Sec. 1(a)(3), inserted ''The
decision of the agency on the application for fees and other
expenses shall be the final administrative decision under this
section.''
Subsec. (b)(1)(B). Pub. L. 99-80, Sec. 1(c)(1), amended subpar.
(B) generally. Prior to amendment, subpar. (B) read as follows: ''
'party' means a party, as defined in section 551(3) of this title,
which is an individual, partnership, corporation, association, or
public or private organization other than an agency, but excludes
(i) any individual whose net worth exceeded $1,000,000 at the time
the adversary adjudication was initiated, and any sole owner of an
unincorporated business, or any partnership, corporation,
association, or organization whose net worth exceeded $5,000,000 at
the time the adversary adjudication was initiated, except that an
organization described in section 501(c)(3) of the Internal Revenue
Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under
section 501(a) of the Code and a cooperative association as defined
in section 15(a) of the Agricultural Marketing Act (12 U.S.C.
1141j(a)), may be a party regardless of the net worth of such
organization or cooperative association, and (ii) any sole owner of
an unincorporated business, or any partnership, corporation,
association, or organization, having more than 500 employees at the
time the adversary adjudication was initiated;''.
Subsec. (b)(1)(C). Pub. L. 99-80, Sec. 1(c)(2), designated
existing provisions of subpar. (C) as cl. (i) thereof by inserting
''(i)'' before ''an adjudication under'', added cl. (ii), and
struck out ''and'' after the semicolon at the end.
Subsec. (b)(1)(D), (E). Pub. L. 99-80, Sec. 1(c)(3), substituted
''; and'' for the period at end of subpar. (D), and added subpar.
(E).
Subsec. (c)(2). Pub. L. 99-80, Sec. 1(d), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ''A party
dissatisfied with the fee determination made under subsection (a)
may petition for leave to appeal to the court of the United States
having jurisdiction to review the merits of the underlying decision
of the agency adversary adjudication. If the court denies the
petition for leave to appeal, no appeal may be taken from the
denial. If the court grants the petition, it may modify the
determination only if it finds that the failure to make an award,
or the calculation of the amount of the award, was an abuse of
discretion.''
Subsec. (d). Pub. L. 99-80, Sec. 1(e), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows:
''(1) Fees and other expenses awarded under this section may be
paid by any agency over which the party prevails from any funds
made available to the agency, by appropriation or otherwise, for
such purpose. If not paid by any agency, the fees and other
expenses shall be paid in the same manner as the payment of final
judgments is made pursuant to section 2414 of title 28, United
States Code.
''(2) There is authorized to be appropriated to each agency for
each of the fiscal years 1982, 1983, and 1984, such sums as may be
necessary to pay fees and other expenses awarded under this section
in such fiscal years.''
1980 - Pub. L. 96-481, Sec. 203(c), which provided for the repeal
of this section effective Oct. 1, 1984, was itself repealed and
this section was revived by section 6 of Pub. L. 99-80, set out as
a note below.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 233 of Pub. L. 104-121 provided that: ''The amendments
made by sections 331 and 332 (probably means sections 231 and 232,
amending this section and section 2412 of Title 28, Judiciary and
Judicial Procedure) shall apply to civil actions and adversary
adjudications commenced on or after the date of the enactment of
this subtitle (Mar. 29, 1996).''
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-647 applicable to proceedings commencing
after Nov. 10, 1988, see section 6239(d) of Pub. L. 100-647, set
out as a note under section 7430 of Title 26, Internal Revenue
Code.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99-509 effective Oct. 21, 1986, and
applicable to any claim or statement made, presented or submitted
on or after such date, see section 6104 of Pub. L. 99-509, set out
as an Effective Date note under section 3801 of Title 31, Money and
Finance.
EFFECTIVE DATE OF 1985 AMENDMENT
Section 7 of Pub. L. 99-80 provided that:
''(a) In General. - Except as otherwise provided in this section,
the amendments made by this Act (reviving and amending this section
and section 2412(d) of Title 28, Judiciary and Judicial Procedure,
and amending and repealing provisions set out as notes under those
sections) shall apply to cases pending on or commenced on or after
the date of the enactment of this Act (Aug. 5, 1985).
''(b) Applicability of Amendments to Certain Prior Cases. - The
amendments made by this Act shall apply to any case commenced on or
after October 1, 1984, and finally disposed of before the date of
the enactment of this Act (Aug. 5, 1985), except that in any such
case, the 30-day period referred to in section 504(a)(2) of title
5, United States Code, or section 2412(d)(1)(B) of title 28, United
States Code, as the case may be, shall be deemed to commence on the
date of the enactment of this Act.
''(c) Applicability of Amendments to Prior Board of Contracts
Appeals Cases. - Section 504(b)(1)(C)(ii) of title 5, United States
Code, as added by section 1(c)(2) of this Act, and section
2412(d)(2)(E) of title 28, United States Code, as added by section
2(c)(2) of this Act, shall apply to any adversary adjudication
pending on or commenced on or after October 1, 1981, in which
applications for fees and other expenses were timely filed and were
dismissed for lack of jurisdiction.''
EFFECTIVE DATE
Section 208 of title II of Pub. L. 96-481, as amended by Pub. L.
99-80, Sec. 5, Aug. 5, 1985, 99 Stat. 186, provided that: ''This
title and the amendments made by this title (see Short Title note
below) shall take effect of (on) October 1, 1981, and shall apply
to any adversary adjudication, as defined in section 504(b)(1)(C)
of title 5, United States Code, and any civil action or adversary
adjudication described in section 2412 of title 28, United States
Code, which is pending on, or commenced on or after, such date.
Awards may be made for fees and other expenses incurred before
October 1, 1981, in any such adversary adjudication or civil
action.''
Section 203(c) of Pub. L. 96-481 which provided that effective
Oct. 1, 1984, this section is repealed, except that the provisions
of this section shall continue to apply through final disposition
of any adversary adjudication initiated before the date of repeal,
was itself repealed by Pub. L. 99-80, Sec. 6(b)(1), Aug. 5, 1985,
99 Stat. 186.
SHORT TITLE
Section 201 of title II of Pub. L. 96-481 provided that: ''This
title (enacting this section, amending section 634 of Title 15,
Commerce and Trade, section 2412 of Title 28, Judiciary and
Judicial Procedure, Rule 37 of the Federal Rules of Civil
Procedure, set out in Title 28 Appendix, and section 1988 of Title
42, The Public Health and Welfare, and enacting provisions set out
as notes under this section and section 2412 of Title 28) may be
cited as the 'Equal Access to Justice Act'.''
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions in subsec.
(e) of this section relating to annual report to Congress on the
amount of fees and other expenses, see section 3003 of Pub. L.
104-66, as amended, set out as a note under section 1113 of Title
31, Money and Finance, and page 153 of House Document No. 103-7.
-TRANS-
TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES
For termination of Administrative Conference of United States,
see provision of title IV of Pub. L. 104-52, set out as a note
preceding section 591 of this title.
-MISC5-
PROHIBITION ON USE OF ENERGY AND WATER DEVELOPMENT APPROPRIATIONS
TO PAY INTERVENING PARTIES IN REGULATORY OR ADJUDICATORY
PROCEEDINGS
Pub. L. 102-377, title V, Sec. 502, Oct. 2, 1992, 106 Stat. 1342,
provided that: ''None of the funds in this Act or subsequent Energy
and Water Development Appropriations Acts shall be used to pay the
expenses of, or otherwise compensate, parties intervening in
regulatory or adjudicatory proceedings funded in such Acts.''
REVIVAL OF PREVIOUSLY REPEALED PROVISIONS
Section 6 of Pub. L. 99-80 provided that:
''(a) Revival of Certain Expired Provisions. - Section 504 of
title 5, United States Code, and the item relating to that section
in the table of sections of chapter 5 of title 5, United States
Code, and subsection (d) of section 2412 of title 28, United States
Code, shall be effective on or after the date of the enactment of
this Act (Aug. 5, 1985) as if they had not been repealed by
sections 203(c) and 204(c) of the Equal Access to Justice Act (Pub.
L. 96-481).
''(b) Repeals. -
''(1) Section 203(c) of the Equal Access to Justice Act (which
repealed this section) is hereby repealed.
''(2) Section 204(c) of the Equal Access to Justice Act (which
repealed section 2412(d) of title 28) is hereby repealed.''
CONGRESSIONAL FINDINGS AND PURPOSES
Section 202 of title II of Pub. L. 96-481 provided that:
''(a) The Congress finds that certain individuals, partnerships,
corporations, and labor and other organizations may be deterred
from seeking review of, or defending against, unreasonable
governmental action because of the expense involved in securing the
vindication of their rights in civil actions and in administrative
proceedings.
''(b) The Congress further finds that because of the greater
resources and expertise of the United States the standard for an
award of fees against the United States should be different from
the standard governing an award against a private litigant, in
certain situations.
''(c) It is the purpose of this title (see Short Title note
above) -
''(1) to diminish the deterrent effect of seeking review of, or
defending against, governmental action by providing in specified
situations an award of attorney fees, expert witness fees, and
other costs against the United States; and
''(2) to insure the applicability in actions by or against the
United States of the common law and statutory exceptions to the
'American rule' respecting the award of attorney fees.''
LIMITATION ON PAYMENTS
Section 207 of title II of Pub. L. 96-481, which provided that
the payment of judgments, fees and other expenses in the same
manner as the payment of final judgments as provided in this Act
(probably should be ''this title'', see Short Title note above)
would be effective only to the extent and in such amounts as are
provided in advance in appropriation Acts, was repealed by Pub. L.
99-80, Sec. 4, Aug. 5, 1985, 99 Stat. 186.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 15 section 634b; title 18
section 293; title 20 section 1234; title 25 section 450m-1; title
28 section 2412; title 42 section 3612.
-CITE-
5 USC SUBCHAPTER II - ADMINISTRATIVE PROCEDURE 01/22/02
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
.
-HEAD-
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-MISC1-
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 Procedure 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.
-SECREF-
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in sections 571, 592, 7118, 7134,
8902, 8902a of this title; title 2 sections 501, 502; title 7
sections 136d, 1642, 6911; title 12 sections 635a-2, 1437, 1441a,
1959, 2278a-10, 3349, 4525, 4545; title 15 sections 78dd-1, 78dd-2,
78ggg, 266, 1715, 3412, 3710a, 5103, 5308; title 16 sections
460aa-3, 470q, 470hh; title 17 sections 701, 802; title 19 sections
1337, 1677c; title 20 section 107d-2; title 21 sections 360kk, 811,
824, 875, 958, 971; title 22 sections 277d-24, 1623, 1645n, 4116;
title 23 sections 134, 135; title 25 section 954; title 28 sections
509, 2467; title 29 sections 156, 164, 213, 481, 628, 792, 1137;
title 30 sections 184, 956; title 31 sections 321, 3801, 3803;
title 33 sections 524, 597, 2313; title 39 section 3008; title 41
section 43a; title 42 sections 1436c, 2000e-12, 2231, 2236, 2454,
3789d, 6212, 6241, 6393, 7191, 7276, 7420, 7607, 11346, 12116,
12206; title 43 section 1624; title 45 sections 1116, 1212; title
46 sections 7702, 9303; title 47 sections 303, 305, 310, 409, 1103;
title 49 sections 721, 5303, 11123, 11324, 13905, 20143, 40103,
46102, 46105; title 50 sections 167h, 835; title 50 App. sections
463, 2159.
-CITE-
5 USC Sec. 551 01/22/02
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 551. Definitions
-STATUTE-
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 another 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
determined 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, association, 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 general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy or describing
the organization, procedure, or practice requirements of an
agency and includes the approval or prescription for the future
of rates, wages, corporate or financial 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,
amending, 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,
renewal, denial, revocation, suspension, annulment, withdrawal,
limitation, 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
affecting 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,
compensation, 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,
exemption, 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
communication not on the public record with respect to which
reasonable prior notice to all parties is not given, but it shall
not include requests for status reports on any matter or
proceeding covered by this subchapter.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381; Pub. L. 94-409, Sec.
4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 103-272, Sec. 5(a),
July 5, 1994, 108 Stat. 1373.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
(1) 5 U.S.C. 1001(a). June 11, 1946, ch.
324, Sec. 2(a), 60
Stat. 237.
Aug. 8, 1946, ch.
870, Sec. 302, 60
Stat. 918.
Aug. 10, 1946, ch.
951, Sec. 601, 60
Stat. 993.
Mar. 31, 1947, ch.
30, Sec. 6(a), 61
Stat. 37.
June 30, 1947, ch.
163, Sec. 210, 61
Stat. 201.
Mar. 30, 1948, ch.
161, Sec. 301, 62
Stat. 99.
(2)-(13) 5 U.S.C. 1001 (less June 11, 1946, ch.
(a)). 324, Sec. 2 (less
(a)), 60 Stat. 237.
-------------------------------
In paragraph (1), the sentence ''Nothing in this Act shall be
construed to repeal delegations of authority as provided by law,''
is omitted as surplusage since there is nothing in the Act which
could reasonably be so construed.
In paragraph (1)(G), the words ''or naval'' are omitted as
included in ''military''.
In paragraph (1)(H), the words ''functions which by law expire on
the termination of present hostilities, within any fixed period
thereafter, or before July 1, 1947'' are omitted as executed.
Reference to the ''Selective Training and Service Act of 1940'' is
omitted as that Act expired Mar. 31, 1947. Reference to the ''Sugar
Control Extension Act of 1947'' is omitted as that Act expired on
Mar. 31, 1948. References to the ''Housing and Rent Act of 1947, as
amended'' and the ''Veterans' Emergency Housing Act of 1946'' have
been consolidated as they are related. The reference to former
section 1641(b)(2) of title 50, appendix, is retained
notwithstanding its repeal by Sec. 111(a)(1) of the Act of Sept.
21, 1961, Pub. L. 87-256, 75 Stat. 538, since Sec. 111(c) of the
Act provides that a reference in other Acts to a provision of law
repealed by Sec. 111(a) shall be considered to be a reference to
the appropriate provisions of Pub. L. 87-256.
In paragraph (2), the words ''of any character'' are omitted as
surplusage.
In paragraph (3), the words ''and a person or agency admitted by
an agency as a party for limited purposes'' are substituted for
''but nothing herein shall be construed to prevent an agency from
admitting any person or agency as a party for limited purposes''.
In paragraph (9), a comma is supplied between the words
''limitation'' and ''amendment'' to correct an editorial error of
omission.
In paragraph (10)(C), the words ''of any form'' are omitted as
surplusage.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
-COD-
CODIFICATION
Section 551 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2242
of Title 7, Agriculture.
-MISC3-
AMENDMENTS
1994 - Par. (1)(H). Pub. L. 103-272 substituted ''subchapter II
of chapter 471 of title 49; or sections'' for ''or sections
1622,''.
1976 - Par. (14). Pub. L. 94-409 added par. (14).
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.
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 relating 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 Senate 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
Treasury issuing the subpoena and imposing the charges.
''(2) Expiration. - The reporting requirement of this
subsection shall terminate in 3 years after the date of the
enactment of this section (Dec. 19, 2000).''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 500, 504, 552, 562, 571,
592, 595, 601, 701, 804, 3344, 3348 of this title; title 2 sections
501, 502, 658, 1602; title 7 section 6997; title 15 sections 78d-1,
78w, 632, 637c, 766, 2053, 3412, 3416, 6501; title 16 section 470w;
title 22 sections 3731, 6033, 6741; title 25 section 3402; title 26
sections 6103, 9041; title 30 sections 185, 956; title 31 sections
3901, 6101, 7501; title 41 section 422; title 42 sections 2231,
2992c, 6107, 6241, 6393, 7191, 8259, 8262, 11317, 11504; title 46
sections 7702, 9303; title 47 sections 155, 409; title 49 sections
106, 114, 11324; title 50 App. sections 2159, 2412.
-CITE-
5 USC Sec. 552 01/22/02
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 552. Public information; agency rules, opinions, orders,
records, and proceedings
-STATUTE-
(a) Each agency shall make available to the public information as
follows:
(1) Each agency shall separately state and currently publish in
the Federal Register for the guidance of the public -
(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods
whereby, the public may obtain information, make submittals or
requests, or obtain decisions;
(B) statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the
scope and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as
authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted
by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of
the terms thereof, a person may not in any manner be required to
resort to, or be adversely affected by, a matter required to be
published in the Federal Register and not so published. For the
purpose of this paragraph, matter reasonably available to the class
of persons affected thereby is deemed published in the Federal
Register when incorporated by reference therein with the approval
of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying -
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have
been adopted by the agency and are not published in the Federal
Register;
(C) administrative staff manuals and instructions to staff that
affect a member of the public;
(D) copies of all records, regardless of form or format, which
have been released to any person under paragraph (3) and which,
because of the nature of their subject matter, the agency
determines have become or are likely to become the subject of
subsequent requests for substantially the same records; and
(E) a general index of the records referred to under
subparagraph (D);
unless the materials are promptly published and copies offered for
sale. For records created on or after November 1, 1996, within one
year after such date, each agency shall make such records
available, including by computer telecommunications or, if computer
telecommunications means have not been established by the agency,
by other electronic means. To the extent required to prevent a
clearly unwarranted invasion of personal privacy, an agency may
delete identifying details when it makes available or publishes an
opinion, statement of policy, interpretation, staff manual,
instruction, or copies of records referred to in subparagraph (D).
However, in each case the justification for the deletion shall be
explained fully in writing, and the extent of such deletion shall
be indicated on the portion of the record which is made available
or published, unless including that indication would harm an
interest protected by the exemption in subsection (b) under which
the deletion is made. If technically feasible, the extent of the
deletion shall be indicated at the place in the record where the
deletion was made. Each agency shall also maintain and make
available for public inspection and copying current indexes
providing identifying information for the public as to any matter
issued, adopted, or promulgated after July 4, 1967, and required by
this paragraph to be made available or published. Each agency
shall promptly publish, quarterly or more frequently, and
distribute (by sale or otherwise) copies of each index or
supplements thereto unless it determines by order published in the
Federal Register that the publication would be unnecessary and
impracticable, in which case the agency shall nonetheless provide
copies of such index on request at a cost not to exceed the direct
cost of duplication. Each agency shall make the index referred to
in subparagraph (E) available by computer telecommunications by
December 31, 1999. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects a
member of the public may be relied on, used, or cited as precedent
by an agency against a party other than an agency only if -
(i) it has been indexed and either made available or published
as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms
thereof.
(3)(A) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon any
request for records which (i) reasonably describes such records and
(ii) is made in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed, shall make the
records promptly available to any person.
(B) In making any record available to a person under this
paragraph, an agency shall provide the record in any form or format
requested by the person if the record is readily reproducible by
the agency in that form or format. Each agency shall make
reasonable efforts to maintain its records in forms or formats that
are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records,
an agency shall make reasonable efforts to search for the records
in electronic form or format, except when such efforts would
significantly interfere with the operation of the agency's
automated information system.
(D) For purposes of this paragraph, the term ''search'' means to
review, manually or by automated means, agency records for the
purpose of locating those records which are responsive to a
request.
(4)(A)(i) In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, specifying the schedule of fees
applicable to the processing of requests under this section and
establishing procedures and guidelines for determining when such
fees should be waived or reduced. Such schedule shall conform to
the guidelines which shall be promulgated, pursuant to notice and
receipt of public comment, by the Director of the Office of
Management and Budget and which shall provide for a uniform
schedule of fees for all agencies.
(ii) Such agency regulations shall provide that -
(I) fees shall be limited to reasonable standard charges for
document search, duplication, and review, when records are
requested for commercial use;
(II) fees shall be limited to reasonable standard charges for
document duplication when records are not sought for commercial
use and the request is made by an educational or noncommercial
scientific institution, whose purpose is scholarly or scientific
research; or a representative of the news media; and
(III) for any request not described in (I) or (II), fees shall
be limited to reasonable standard charges for document search and
duplication.
(iii) Documents shall be furnished without any charge or at a
charge reduced below the fees established under clause (ii) if
disclosure of the information is in the public interest because it
is likely to contribute significantly to public understanding of
the operations or activities of the government and is not primarily
in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the
direct costs of search, duplication, or review. Review costs shall
include only the direct costs incurred during the initial
examination of a document for the purposes of determining whether
the documents must be disclosed under this section and for the
purposes of withholding any portions exempt from disclosure under
this section. Review costs may not include any costs incurred in
resolving issues of law or policy that may be raised in the course
of processing a request under this section. No fee may be charged
by any agency under this section -
(I) if the costs of routine collection and processing of the
fee are likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii) (II) or (III) of
this subparagraph for the first two hours of search time or for
the first one hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the
requester has previously failed to pay fees in a timely fashion, or
the agency has determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable
under a statute specifically providing for setting the level of
fees for particular types of records.
(vii) In any action by a requester regarding the waiver of fees
under this section, the court shall determine the matter de novo:
Provided, That the court's review of the matter shall be limited to
the record before the agency.
(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal
place of business, or in which the agency records are situated, or
in the District of Columbia, has jurisdiction to enjoin the agency
from withholding agency records and to order the production of any
agency records improperly withheld from the complainant. In such a
case the court shall determine the matter de novo, and may examine
the contents of such agency records in camera to determine whether
such records or any part thereof shall be withheld under any of the
exemptions set forth in subsection (b) of this section, and the
burden is on the agency to sustain its action. In addition to any
other matters to which a court accords substantial weight, a court
shall accord substantial weight to an affidavit of an agency
concerning the agency's determination as to technical feasibility
under paragraph (2)(C) and subsection (b) and reproducibility under
paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made
under this subsection within thirty days after service upon the
defendant of the pleading in which such complaint is made, unless
the court otherwise directs for good cause shown.
((D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8,
1984, 98 Stat. 3357.)
(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any
case under this section in which the complainant has substantially
prevailed.
(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding raise
questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special Counsel
shall promptly initiate a proceeding to determine whether
disciplinary action is warranted against the officer or employee
who was primarily responsible for the withholding. The Special
Counsel, after investigation and consideration of the evidence
submitted, shall submit his findings and recommendations to the
administrative authority of the agency concerned and shall send
copies of the findings and recommendations to the officer or
employee or his representative. The administrative authority shall
take the corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of the court,
the district court may punish for contempt the responsible
employee, and in the case of a uniformed service, the responsible
member.
(5) Each agency having more than one member shall maintain and
make available for public inspection a record of the final votes of
each member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall -
(i) determine within 20 days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately notify
the person making such request of such determination and the
reasons therefor, and of the right of such person to appeal to
the head of the agency any adverse determination; and
(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal. If on appeal the
denial of the request for records is in whole or in part upheld,
the agency shall notify the person making such request of the
provisions for judicial review of that determination under
paragraph (4) of this subsection.
(B)(i) In unusual circumstances as specified in this
subparagraph, the time limits prescribed in either clause (i) or
clause (ii) of subparagraph (A) may be extended by written notice
to the person making such request setting forth the unusual
circumstances for such extension and the date on which a
determination is expected to be dispatched. No such notice shall
specify a date that would result in an extension for more than ten
working days, except as provided in clause (ii) of this
subparagraph.
(ii) With respect to a request for which a written notice under
clause (i) extends the time limits prescribed under clause (i) of
subparagraph (A), the agency shall notify the person making the
request if the request cannot be processed within the time limit
specified in that clause and shall provide the person an
opportunity to limit the scope of the request so that it may be
processed within that time limit or an opportunity to arrange with
the agency an alternative time frame for processing the request or
a modified request. Refusal by the person to reasonably modify the
request or arrange such an alternative time frame shall be
considered as a factor in determining whether exceptional
circumstances exist for purposes of subparagraph (C).
(iii) As used in this subparagraph, ''unusual circumstances''
means, but only to the extent reasonably necessary to the proper
processing of the particular requests -
(I) the need to search for and collect the requested records
from field facilities or other establishments that are separate
from the office processing the request;
(II) the need to search for, collect, and appropriately examine
a voluminous amount of separate and distinct records which are
demanded in a single request; or
(III) the need for consultation, which shall be conducted with
all practicable speed, with another agency having a substantial
interest in the determination of the request or among two or more
components of the agency having substantial subject-matter
interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for the aggregation of
certain requests by the same requestor, or by a group of requestors
acting in concert, if the agency reasonably believes that such
requests actually constitute a single request, which would
otherwise satisfy the unusual circumstances specified in this
subparagraph, and the requests involve clearly related matters.
Multiple requests involving unrelated matters shall not be
aggregated.
(C)(i) Any person making a request to any agency for records
under paragraph (1), (2), or (3) of this subsection shall be deemed
to have exhausted his administrative remedies with respect to such
request if the agency fails to comply with the applicable time
limit provisions of this paragraph. If the Government can show
exceptional circumstances exist and that the agency is exercising
due diligence in responding to the request, the court may retain
jurisdiction and allow the agency additional time to complete its
review of the records. Upon any determination by an agency to
comply with a request for records, the records shall be made
promptly available to such person making such request. Any
notification of denial of any request for records under this
subsection shall set forth the names and titles or positions of
each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the term ''exceptional
circumstances'' does not include a delay that results from a
predictable agency workload of requests under this section, unless
the agency demonstrates reasonable progress in reducing its backlog
of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a
request or arrange an alternative time frame for processing a
request (or a modified request) under clause (ii) after being given
an opportunity to do so by the agency to whom the person made the
request shall be considered as a factor in determining whether
exceptional circumstances exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for multitrack processing
of requests for records based on the amount of work or time (or
both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person
making a request that does not qualify for the fastest multitrack
processing an opportunity to limit the scope of the request in
order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, providing for expedited
processing of requests for records -
(I) in cases in which the person requesting the records
demonstrates a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this
subparagraph must ensure -
(I) that a determination of whether to provide expedited
processing shall be made, and notice of the determination shall
be provided to the person making the request, within 10 days
after the date of the request; and
(II) expeditious consideration of administrative appeals of
such determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request
for records to which the agency has granted expedited processing
under this subparagraph. Agency action to deny or affirm denial of
a request for expedited processing pursuant to this subparagraph,
and failure by an agency to respond in a timely manner to such a
request shall be subject to judicial review under paragraph (4),
except that the judicial review shall be based on the record before
the agency at the time of the determination.
(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing of
a request for records after the agency has provided a complete
response to the request.
(v) For purposes of this subparagraph, the term ''compelling
need'' means -
(I) that a failure to obtain requested records on an expedited
basis under this paragraph could reasonably be expected to pose
an imminent threat to the life or physical safety of an
individual; or
(II) with respect to a request made by a person primarily
engaged in disseminating information, urgency to inform the
public concerning actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a
request for expedited processing shall be made by a statement
certified by such person to be true and correct to the best of such
person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an
agency shall make a reasonable effort to estimate the volume of any
requested matter the provision of which is denied, and shall
provide any such estimate to the person making the request, unless
providing such estimate would harm an interest protected by the
exemption in subsection (b) pursuant to which the denial is made.
(b) This section does not apply to matters that are -
(1)(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) related solely to the internal personnel rules and
practices of an agency;
(3) specifically exempted from disclosure by statute (other
than section 552b of this title), provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types
of matters to be withheld;
(4) trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency;
(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be
expected to interfere with enforcement proceedings, (B) would
deprive a person of a right to a fair trial or an impartial
adjudication, (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy, (D) could reasonably be
expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by
criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source, (E) would disclose techniques and procedures
for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law, or (F) could reasonably be
expected to endanger the life or physical safety of any
individual;
(8) contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions; or
(9) geological and geophysical information and data, including
maps, concerning wells.
Any reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions
which are exempt under this subsection. The amount of information
deleted shall be indicated on the released portion of the record,
unless including that indication would harm an interest protected
by the exemption in this subsection under which the deletion is
made. If technically feasible, the amount of the information
deleted shall be indicated at the place in the record where such
deletion is made.
(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and -
(A) the investigation or proceeding involves a possible
violation of criminal law; and
(B) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and
(ii) disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements of
this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier
are requested by a third party according to the informant's name or
personal identifier, the agency may treat the records as not
subject to the requirements of this section unless the informant's
status as an informant has been officially confirmed.
(3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to
foreign intelligence or counterintelligence, or international
terrorism, and the existence of the records is classified
information as provided in subsection (b)(1), the Bureau may, as
long as the existence of the records remains classified
information, treat the records as not subject to the requirements
of this section.
(d) This section does not authorize withholding of information or
limit the availability of records to the public, except as
specifically stated in this section. This section is not authority
to withhold information from Congress.
(e)(1) On or before February 1 of each year, each agency shall
submit to the Attorney General of the United States a report which
shall cover the preceding fiscal year and which shall include -
(A) the number of determinations made by the agency not to
comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
(B)(i) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action
upon each appeal that results in a denial of information; and
(ii) a complete list of all statutes that the agency relies
upon to authorize the agency to withhold information under
subsection (b)(3), a description of whether a court has upheld
the decision of the agency to withhold information under each
such statute, and a concise description of the scope of any
information withheld;
(C) the number of requests for records pending before the
agency as of September 30 of the preceding year, and the median
number of days that such requests had been pending before the
agency as of that date;
(D) the number of requests for records received by the agency
and the number of requests which the agency processed;
(E) the median number of days taken by the agency to process
different types of requests;
(F) the total amount of fees collected by the agency for
processing requests; and
(G) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the total
amount expended by the agency for processing such requests.
(2) Each agency shall make each such report available to the
public including by computer telecommunications, or if computer
telecommunications means have not been established by the agency,
by other electronic means.
(3) The Attorney General of the United States shall make each
report which has been made available by electronic means available
at a single electronic access point. The Attorney General of the
United States shall notify the Chairman and ranking minority member
of the Committee on Government Reform and Oversight of the House of
Representatives and the Chairman and ranking minority member of the
Committees on Governmental Affairs and the Judiciary of the Senate,
no later than April 1 of the year in which each such report is
issued, that such reports are available by electronic means.
(4) The Attorney General of the United States, in consultation
with the Director of the Office of Management and Budget, shall
develop reporting and performance guidelines in connection with
reports required by this subsection by October 1, 1997, and may
establish additional requirements for such reports as the Attorney
General determines may be useful.
(5) The Attorney General of the United States shall submit an
annual report on or before April 1 of each calendar year which
shall include for the prior calendar year a listing of the number
of cases arising under this section, the exemption involved in each
case, the disposition of such case, and the cost, fees, and
penalties assessed under subparagraphs (E), (F), and (G) of
subsection (a)(4). Such report shall also include a description of
the efforts undertaken by the Department of Justice to encourage
agency compliance with this section.
(f) For purposes of this section, the term -
(1) ''agency'' as defined in section 551(1) of this title
includes any executive department, military department,
Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government
(including the Executive Office of the President), or any
independent regulatory agency; and
(2) ''record'' and any other term used in this section in
reference to information includes any information that would be
an agency record subject to the requirements of this section when
maintained by an agency in any format, including an electronic
format.
(g) The head of each agency shall prepare and make publicly
available upon request, reference material or a guide for
requesting records or information from the agency, subject to the
exemptions in subsection (b), including -
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator
systems maintained by the agency; and
(3) a handbook for obtaining various types and categories of
public information from the agency pursuant to chapter 35 of
title 44, and under this section.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90-23, Sec.
1, June 5, 1967, 81 Stat. 54; Pub. L. 93-502, Sec. 1-3, Nov. 21,
1974, 88 Stat. 1561-1564; Pub. L. 94-409, Sec. 5(b), Sept. 13,
1976, 90 Stat. 1247; Pub. L. 95-454, title IX, Sec. 906(a)(10),
Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98-620, title IV, Sec.
402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99-570, title I, Sec.
1802, 1803, Oct. 27, 1986, 100 Stat. 3207-48, 3207-49; Pub. L.
104-231, Sec. 3-11, Oct. 2, 1996, 110 Stat. 3049-3054.)
-MISC1-
Historical and Revision Notes
1966 Act
---------------------------------------------------------------------
Derivation U.S. Code Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1002. June 11, 1946, ch.
324, Sec. 3, 60
Stat. 238.
-------------------------------
In subsection (b)(3), the words ''formulated and'' are omitted as
surplusage. In the last sentence of subsection (b), the words ''in
any manner'' are omitted as surplusage since the prohibition is all
inclusive.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
1967 ACT
Section 1 (of Pub. L. 90-23) amends section 552 of title 5,
United States Code, to reflect Public Law 89-487.
In subsection (a)(1)(A), the words ''employees (and in the case
of a uniformed service, the member)'' are substituted for
''officer'' to retain the coverage of Public Law 89-487 and to
conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.
In the last sentence of subsection (a)(2), the words ''A final
order * * * may be relied on * * * only if'' are substituted for
''No final order * * * may be relied upon * * * unless''; and the
words ''a party other than an agency'' and ''the party'' are
substituted for ''a private party'' and ''the private party'',
respectively, on authority of the definition of ''private party''
in 5 App. U.S.C. 1002(g).
In subsection (a)(3), the words ''the responsible employee, and
in the case of a uniformed service, the responsible member'' are
substituted for ''the responsible officers'' to retain the coverage
of Public Law 89-487 and to conform to the definitions in 5 U.S.C.
2101, 2104, and 2105.
In subsection (a)(4), the words ''shall maintain and make
available for public inspection a record'' are substituted for
''shall keep a record * * * and that record shall be available for
public inspection''.
In subsection (b)(5) and (7), the words ''a party other than an
agency'' are substituted for ''a private party'' on authority of
the definition of ''private party'' in 5 App. U.S.C. 1002(g).
In subsection (c), the words ''This section does not authorize''
and ''This section is not authority'' are substituted for ''Nothing
in this section authorizes'' and ''nor shall this section be
authority'', respectively.
5 App. U.S.C. 1002(g), defining ''private party'' to mean a party
other than an agency, is omitted since the words ''party other than
an agency'' are substituted for the words ''private party''
wherever they appear in revised 5 U.S.C. 552.
5 App. U.S.C. 1002(h), prescribing the effective date, is omitted
as unnecessary. That effective date is prescribed by section 4 of
this bill.
-COD-
CODIFICATION
Section 552 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2243
of Title 7, Agriculture.
-MISC3-
AMENDMENTS
1996 - Subsec. (a)(2). Pub. L. 104-231, Sec. 4(4), (5), in first
sentence struck out ''and'' at end of subpar. (B) and inserted
subpars. (D) and (E).
Pub. L. 104-231, Sec. 4(7), inserted after first sentence ''For
records created on or after November 1, 1996, within one year after
such date, each agency shall make such records available, including
by computer telecommunications or, if computer telecommunications
means have not been established by the agency, by other electronic
means.''
Pub. L. 104-231, Sec. 4(1), in second sentence substituted
''staff manual, instruction, or copies of records referred to in
subparagraph (D)'' for ''or staff manual or instruction''.
Pub. L. 104-231, Sec. 4(2), inserted before period at end of
third sentence '', and the extent of such deletion shall be
indicated on the portion of the record which is made available or
published, unless including that indication would harm an interest
protected by the exemption in subsection (b) under which the
deletion is made''.
Pub. L. 104-231, Sec. 4(3), inserted after third sentence ''If
technically feasible, the extent of the deletion shall be indicated
at the place in the record where the deletion was made.''
Pub. L. 104-231, Sec. 4(6), which directed the insertion of the
following new sentence after the fifth sentence ''Each agency shall
make the index referred to in subparagraph (E) available by
computer telecommunications by December 31, 1999.'', was executed
by making the insertion after the sixth sentence, to reflect the
probable intent of Congress and the addition of a new sentence by
section 4(3) of Pub. L. 104-231.
Subsec. (a)(3). Pub. L. 104-231, Sec. 5, inserted subpar. (A)
designation after ''(3)'', redesignated subpars. (A) and (B) as
cls. (i) and (ii), respectively, and added subpars. (B) to (D).
Subsec. (a)(4)(B). Pub. L. 104-231, Sec. 6, inserted at end ''In
addition to any other matters to which a court accords substantial
weight, a court shall accord substantial weight to an affidavit of
an agency concerning the agency's determination as to technical
feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).''
Subsec. (a)(6)(A)(i). Pub. L. 104-231, Sec. 8(b), substituted
''20 days'' for ''ten days''.
Subsec. (a)(6)(B). Pub. L. 104-231, Sec. 7(b), amended subpar.
(B) generally. Prior to amendment, subpar. (B) read as follows:
''In unusual circumstances as specified in this subparagraph, the
time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person
making such request setting forth the reasons for such extension
and the date on which a determination is expected to be
dispatched. No such notice shall specify a date that would result
in an extension for more than ten working days. As used in this
subparagraph, 'unusual circumstances' means, but only to the extent
reasonably necessary to the proper processing of the particular
request -
''(i) the need to search for and collect the requested records
from field facilities or other establishments that are separate
from the office processing the request;
''(ii) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct records
which are demanded in a single request; or
''(iii) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a
substantial interest in the determination of the request or among
two or more components of the agency having substantial
subject-matter interest therein.''
Subsec. (a)(6)(C). Pub. L. 104-231, Sec. 7(c), designated
existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(D). Pub. L. 104-231, Sec. 7(a), added subpar. (D).
Subsec. (a)(6)(E), (F). Pub. L. 104-231, Sec. 8(a), (c), added
subpars. (E) and (F).
Subsec. (b). Pub. L. 104-231, Sec. 9, inserted at end of closing
provisions ''The amount of information deleted shall be indicated
on the released portion of the record, unless including that
indication would harm an interest protected by the exemption in
this subsection under which the deletion is made. If technically
feasible, the amount of the information deleted shall be indicated
at the place in the record where such deletion is made.''
Subsec. (e). Pub. L. 104-231, Sec. 10, amended subsec. (e)
generally, revising and restating provisions relating to reports to
Congress.
Subsec. (f). Pub. L. 104-231, Sec. 3, amended subsec. (f)
generally. Prior to amendment, subsec. (f) read as follows: ''For
purposes of this section, the term 'agency' as defined in section
551(1) of this title includes any executive department, military
department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency.''
Subsec. (g). Pub. L. 104-231, Sec. 11, added subsec. (g).
1986 - Subsec. (a)(4)(A). Pub. L. 99-570, Sec. 1803, amended
subpar. (A) generally. Prior to amendment, subpar. (A) read as
follows: ''In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, specifying a uniform schedule of fees
applicable to all constituent units of such agency. Such fees
shall be limited to reasonable standard charges for document search
and duplication and provide for recovery of only the direct costs
of such search and duplication. Documents shall be furnished
without charge or at a reduced charge where the agency determines
that waiver or reduction of the fee is in the public interest
because furnishing the information can be considered as primarily
benefiting the general public.''
Subsec. (b)(7). Pub. L. 99-570, Sec. 1802(a), amended par. (7)
generally. Prior to amendment, par. (7) read as follows:
''investigatory records compiled for law enforcement purposes, but
only to the extent that the production of such records would (A)
interfere with enforcement proceedings, (B) deprive a person of a
right to a fair trial or an impartial adjudication, (C) constitute
an unwarranted invasion of personal privacy, (D) disclose the
identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential
information furnished only by the confidential source, (E) disclose
investigative techniques and procedures, or (F) endanger the life
or physical safety of law enforcement personnel;''.
Subsecs. (c) to (f). Pub. L. 99-570, Sec. 1802(b), added subsec.
(c) and redesignated former subsecs. (c) to (e) as (d) to (f),
respectively.
1984 - Subsec. (a)(4)(D). Pub. L. 98-620 repealed subpar. (D)
which provided for precedence on the docket and expeditious
disposition of district court proceedings authorized by subsec.
(a).
1978 - Subsec. (a)(4)(F). Pub. L. 95-454 substituted references
to the Special Counsel for references to the Civil Service
Commission wherever appearing and reference to his findings for
reference to its findings.
1976 - Subsec. (b)(3). Pub. L. 94-409 inserted provision
excluding section 552b of this title from applicability of
exemption from disclosure and provision setting forth conditions
for statute specifically exempting disclosure.
1974 - Subsec. (a)(2). Pub. L. 93-502, Sec. 1(a), substituted
provisions relating to maintenance and availability of current
indexes, for provisions relating to maintenance and availability of
a current index, and inserted provisions relating to publication
and distribution of copies of indexes or supplements thereto.
Subsec. (a)(3). Pub. L. 93-502, Sec. 1(b)(1), substituted
provisions requiring requests to reasonably describe records for
provisions requiring requests, for identifiable records, and struck
out provisions setting forth procedures to enjoin agencies from
withholding the requested records and ordering their production.
Subsec. (a)(4), (5). Pub. L. 93-502, Sec. 1(b)(2), added par. (4)
and redesignated former par. (4) as (5).
Subsec. (a)(6). Pub. L. 93-502, Sec. 1(c), added par. (6).
Subsec. (b)(1). Pub. L. 93-502, Sec. 2(a), designated existing
provisions as cl. (A), substituted ''authorized under criteria
established by an'' for ''required by'', and added cl. (B).
Subsec. (b)(7). Pub. L. 93-502, Sec. 2(b), substituted provisions
relating to exemption for investigatory records compiled for law
enforcement purposes, for provisions relating to exemption for
investigatory files compiled for law enforcement purposes.
Subsec. (b), foll. par. (9). Pub. L. 93-502, Sec. 2(c), inserted
provision relating to availability of segregable portion of
records.
Subsecs. (d), (e). Pub. L. 93-502, Sec. 3, added subsecs. (d) and
(e).
1967 - Subsec. (a). Pub. L. 90-23 substituted introductory
statement requiring every agency to make available to the public
certain information for former introductory provision excepting
from disclosure (1) any function of the United States requiring
secrecy in the public interest or (2) any matter relating to
internal management of an agency, covered in subsec. (b)(1) and (2)
of this section.
Subsec. (a)(1). Pub. L. 90-23 incorporated provisions of: former
subsec. (b)(1) in (A), inserting requirement of publication of
names of officers as sources of information and provision for
public to obtain decisions, and striking out publication
requirement for delegations by the agency of final authority;
former subsec. (b)(2), introductory part, in (B); former subsec.
(b)(2), concluding part, in (C), inserting publication requirement
for rules of procedure and descriptions of forms available or the
places at which forms may be obtained; former subsec. (b)(3),
introductory part, in (D), inserting requirement of general
applicability of substantive rules and interpretations, added
clause (E), substituted exemption of any person from failure to
resort to any matter or from being adversely affected by any matter
required to be published in the Federal Register but not so
published for former subsec. (b)(3), concluding part, excepting
from publication rules addressed to and served upon named persons
in accordance with laws and final sentence reading ''A person may
not be required to resort to organization or procedure not so
published'' and inserted provision deeming matter, which is
reasonably available, as published in the Federal Register when
such matter is incorporated by reference in the Federal Register
with the approval of its Director.
Subsec. (a)(2). Pub. L. 90-23 incorporated provisions of former
subsec. (c), provided for public copying of records, struck out
requirement of agency publication of final opinions or orders and
authority for secrecy and withholding of opinions and orders
required for good cause to be held confidential and not cited as
precedents, latter provision now superseded by subsec. (b) of this
section, designated existing subsec. (c) as clause (A), including
provision for availability of concurring and dissenting opinions,
inserted provisions for availability of policy statements and
interpretations in clause (B) and staff manuals and instructions in
clause (C), deletion of personal identifications from records to
protect personal privacy with written justification therefor, and
provision for indexing and prohibition of use of records not
indexed against any private party without actual and timely notice
of the terms thereof.
Subsec. (a)(3). Pub. L. 90-23 incorporated provisions of former
subsec. (d) and substituted provisions requiring identifiable
agency records to be made available to any person upon request and
compliance with rules as to time, place, and procedure for
inspection, and payment of fees and provisions for Federal district
court proceedings de novo for enforcement by contempt of
noncompliance with court's orders with the burden on the agency and
docket precedence for such proceedings for former provisions
requiring matters of official record to be made available to
persons properly and directly concerned except information held
confidential for good cause shown, the latter provision superseded
by subsec. (b) of this section.
Subsec. (a)(4). Pub. L. 90-23 added par. (4).
Subsec. (b). Pub. L. 90-23 added subsec. (b) which superseded
provisions excepting from disclosure any function of the United
States requiring secrecy in the public interest or any matter
relating to internal management of an agency, formerly contained in
former subsec. (a), final opinions or orders required for good
cause to be held confidential and not cited as precedents, formerly
contained in subsec. (c), and information held confidential for
good cause found, contained in former subsec. (d) of this section.
Subsec. (c). Pub. L. 90-23 added subsec. (c).
-CHANGE-
CHANGE OF NAME
Committee on Government Reform and Oversight of House of
Representatives changed to Committee on Government Reform of House
of Representatives by House Resolution No. 5, One Hundred Sixth
Congress, Jan. 6, 1999.
-MISC4-
EFFECTIVE DATE OF 1996 AMENDMENT
Section 12 of Pub. L. 104-231 provided that:
''(a) In General. - Except as provided in subsection (b), this
Act (amending this section and enacting provisions set out as notes
below) shall take effect 180 days after the date of the enactment
of this Act (Oct. 2, 1996).
''(b) Provisions Effective on Enactment (sic). - Sections 7 and 8
(amending this section) shall take effect one year after the date
of the enactment of this Act (Oct. 2, 1996).''
EFFECTIVE DATE OF 1986 AMENDMENT
Section 1804 of Pub. L. 99-570 provided that:
''(a) The amendments made by section 1802 (amending this section)
shall be effective on the date of enactment of this Act (Oct. 27,
1986), and shall apply with respect to any requests for records,
whether or not the request was made prior to such date, and shall
apply to any civil action pending on such date.
''(b)(1) The amendments made by section 1803 (amending this
section) shall be effective 180 days after the date of enactment of
this Act (Oct. 27, 1986), except that regulations to implement such
amendments shall be promulgated by such 180th day.
''(2) The amendments made by section 1803 (amending this section)
shall apply with respect to any requests for records, whether or
not the request was made prior to such date, and shall apply to any
civil action pending on such date, except that review charges
applicable to records requested for commercial use shall not be
applied by an agency to requests made before the effective date
specified in paragraph (1) of this subsection or before the agency
has finally issued its regulations.''
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-620 not applicable to cases pending on
Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an
Effective Date note under section 1657 of Title 28, Judiciary and
Judicial Procedure.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95-454 effective 90 days after Oct. 13,
1978, see section 907 of Pub. L. 95-454, set out as a note under
section 1101 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.
EFFECTIVE DATE OF 1974 AMENDMENT
Section 4 of Pub. L. 93-502 provided that: ''The amendments made
by this Act (amending this section) shall take effect on the
ninetieth day beginning after the date of enactment of this Act
(Nov. 21, 1974).''
EFFECTIVE DATE OF 1967 AMENDMENT
Section 4 of Pub. L. 90-23 provided that: ''This Act (amending
this section) shall be effective July 4, 1967, or on the date of
enactment (June 5, 1967), whichever is later.''
SHORT TITLE OF 1996 AMENDMENT
Section 1 of Pub. L. 104-231 provided that: ''This Act (amending
this section and enacting provisions set out as notes under this
section) may be cited as the 'Electronic Freedom of Information Act
Amendments of 1996'.''
SHORT TITLE OF 1986 AMENDMENT
Section 1801 of Pub. L. 99-570 provided that: ''This subtitle
(subtitle N (Sec. 1801-1804) of title I of Pub. L. 99-570, amending
this section and enacting provisions set out as a note under this
section) may be cited as the 'Freedom of Information Reform Act of
1986'.''
SHORT TITLE
This section is popularly known as the ''Freedom of Information
Act''.
DISCLOSURE OF INFORMATION ON JAPANESE IMPERIAL GOVERNMENT
Pub. L. 106-567, title VIII, Dec. 27, 2000, 114 Stat. 2864,
provided that:
''SEC. 801. SHORT TITLE.
''This title may be cited as the 'Japanese Imperial Government
Disclosure Act of 2000'.
''SEC. 802. DESIGNATION.
''(a) Definitions. - In this section:
''(1) Agency. - The term 'agency' has the meaning given such
term under section 551 of title 5, United States Code.
''(2) Interagency group. - The term 'Interagency Group' means
the Nazi War Crimes and Japanese Imperial Government Records
Interagency Working Group established under subsection (b).
''(3) Japanese imperial government records. - The term
'Japanese Imperial Government records' means classified records
or portions of records that pertain to any person with respect to
whom the United States Government, in its sole discretion, has
grounds to believe ordered, incited, assisted, or otherwise
participated in the experimentation on, and persecution of, any
person because of race, religion, national origin, or political
opinion, during the period beginning September 18, 1931, and
ending on December 31, 1948, under the direction of, or in
association with -
''(A) the Japanese Imperial Government;
''(B) any government in any area occupied by the military
forces of the Japanese Imperial Government;
''(C) any government established with the assistance or
cooperation of the Japanese Imperial Government; or
''(D) any government which was an ally of the Japanese
Imperial Government.
''(4) Record. - The term 'record' means a Japanese Imperial
Government record.
''(b) Establishment of Interagency Group. -
''(1) In general. - Not later than 60 days after the date of
the enactment of this Act (Dec. 27, 2000), the President shall
designate the Working Group established under the Nazi War Crimes
Disclosure Act (Public Law 105-246; 5 U.S.C. 552 note) to also
carry out the purposes of this title with respect to Japanese
Imperial Government records, and that Working Group shall remain
in existence for 3 years after the date on which this title takes
effect. Such Working Group is redesignated as the 'Nazi War
Crimes and Japanese Imperial Government Records Interagency
Working Group'.
''(2) Membership. - (Amended Pub. L. 105-246, set out as a note
below.)
''(c) Functions. - Not later than 1 year after the date of the
enactment of this Act (Dec. 27, 2000), the Interagency Group shall,
to the greatest extent possible consistent with section 803 -
''(1) locate, identify, inventory, recommend for
declassification, and make available to the public at the
National Archives and Records Administration, all classified
Japanese Imperial Government records of the United States;
''(2) coordinate with agencies and take such actions as
necessary to expedite the release of such records to the public;
and
''(3) submit a report to Congress, including the Committee on
Government Reform and the Permanent Select Committee on
Intelligence of the House of Representatives, and the Committee
on the Judiciary and the Select Committee on Intelligence of the
Senate, describing all such records, the disposition of such
records, and the activities of the Interagency Group and agencies
under this section.
''(d) Funding. - There is authorized to be appropriated such sums
as may be necessary to carry out the provisions of this title.
''SEC. 803. REQUIREMENT OF DISCLOSURE OF RECORDS.
''(a) Release of Records. - Subject to subsections (b), (c), and
(d), the Japanese Imperial Government Records Interagency Working
Group shall release in their entirety Japanese Imperial Government
records.
''(b) Exemptions. - An agency head may exempt from release under
subsection (a) specific information, that would -
''(1) constitute an unwarranted invasion of personal privacy;
''(2) reveal the identity of a confidential human source, or
reveal information about an intelligence source or method when
the unauthorized disclosure of that source or method would damage
the national security interests of the United States;
''(3) reveal information that would assist in the development
or use of weapons of mass destruction;
''(4) reveal information that would impair United States
cryptologic systems or activities;
''(5) reveal information that would impair the application of
state-of-the-art technology within a United States weapon system;
''(6) reveal United States military war plans that remain in
effect;
''(7) reveal information that would impair relations between
the United States and a foreign government, or undermine ongoing
diplomatic activities of the United States;
''(8) reveal information that would impair the current ability
of United States Government officials to protect the President,
Vice President, and other officials for whom protection services
are authorized in the interest of national security;
''(9) reveal information that would impair current national
security emergency preparedness plans; or
''(10) violate a treaty or other international agreement.
''(c) Applications of Exemptions. -
''(1) In general. - In applying the exemptions provided in
paragraphs (2) through (10) of subsection (b), there shall be a
presumption that the public interest will be served by disclosure
and release of the records of the Japanese Imperial Government.
The exemption may be asserted only when the head of the agency
that maintains the records determines that disclosure and release
would be harmful to a specific interest identified in the
exemption. An agency head who makes such a determination shall
promptly report it to the committees of Congress with appropriate
jurisdiction, including the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate and the Committee
on Government Reform and the Permanent Select Committee on
Intelligence of the House of Representatives.
''(2) Application of title 5. - A determination by an agency
head to apply an exemption provided in paragraphs (2) through (9)
of subsection (b) shall be subject to the same standard of review
that applies in the case of records withheld under section
552(b)(1) of title 5, United States Code.
''(d) Records Related to Investigations or Prosecutions. - This
section shall not apply to records -
''(1) related to or supporting any active or inactive
investigation, inquiry, or prosecution by the Office of Special
Investigations of the Department of Justice; or
''(2) solely in the possession, custody, or control of the
Office of Special Investigations.
''SEC. 804. EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL
GOVERNMENT RECORDS.
''For purposes of expedited processing under section 552(a)(6)(E)
of title 5, United States Code, any person who was persecuted in
the manner described in section 802(a)(3) and who requests a
Japanese Imperial Government record shall be deemed to have a
compelling need for such record.
''SEC. 805. EFFECTIVE DATE.
''The provisions of this title shall take effect on the date that
is 90 days after the date of the enactment of this Act (Dec. 27,
2000).''
NAZI WAR CRIMES DISCLOSURE
Pub. L. 105-246, Oct. 8, 1998, 112 Stat. 1859, as amended by Pub.
L. 106-567, Sec. 802(b)(2), Dec. 27, 2000, 114 Stat. 2865, provided
that:
''SECTION 1. SHORT TITLE.
''This Act may be cited as the 'Nazi War Crimes Disclosure Act'.
''SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY
WORKING GROUP.
''(a) Definitions. - In this section the term -
''(1) 'agency' has the meaning given such term under section
551 of title 5, United States Code;
''(2) 'Interagency Group' means the Nazi War Criminal Records
Interagency Working Group (redesignated Nazi War Crimes and
Japanese Imperial Government Records Interagency Working Group,
see section 802(b)(1) of Pub. L. 106-567, set out above)
established under subsection (b);
''(3) 'Nazi war criminal records' has the meaning given such
term under section 3 of this Act; and
''(4) 'record' means a Nazi war criminal record.
''(b) Establishment of Interagency Group. -
''(1) In general. - Not later than 60 days after the date of
enactment of this Act (Oct. 8, 1998), the President shall
establish the Nazi War Criminal Records Interagency Working
Group, which shall remain in existence for 3 years after the date
the Interagency Group is established.
''(2) Membership. - The President shall appoint to the
Interagency Group individuals whom the President determines will
most completely and effectively carry out the functions of the
Interagency Group within the time limitations provided in this
section, including the Director of the Holocaust Museum, the
Historian of the Department of State, the Archivist of the United
States, the head of any other agency the President considers
appropriate, and no more than 4 other persons who shall be
members of the public, of whom 3 shall be persons appointed under
the provisions of this Act in effect on October 8, 1998..(sic)
The head of an agency appointed by the President may designate an
appropriate officer to serve on the Interagency Group in lieu of
the head of such agency.
''(3) Initial meeting. - Not later than 90 days after the date
of enactment of this Act, the Interagency Group shall hold an
initial meeting and begin the functions required under this
section.
''(c) Functions. - Not later than 1 year after the date of
enactment of this Act (Oct. 8, 1998), the Interagency Group shall,
to the greatest extent possible consistent with section 3 of this
Act -
''(1) locate, identify, inventory, recommend for
declassification, and make available to the public at the
National Archives and Records Administration, all classified Nazi
war criminal records of the United States;
''(2) coordinate with agencies and take such actions as
necessary to expedite the release of such records to the public;
and
''(3) submit a report to Congress, including the Committee on
the Judiciary of the Senate and the Committee on Government
Reform and Oversight (now Committee on Government Reform) of the
House of Representatives, describing all such records, the
disposition of such records, and the activities of the
Interagency Group and agencies under this section.
''(d) Funding. - There are authorized to be appropriated such
sums as may be necessary to carry out the provisions of this Act.
''SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS
WHO COMMITTED NAZI WAR CRIMES.
''(a) Nazi War Criminal Records. - For purposes of this Act, the
term 'Nazi war criminal records' means classified records or
portions of records that -
''(1) pertain to any person with respect to whom the United
States Government, in its sole discretion, has grounds to believe
ordered, incited, assisted, or otherwise participated in the
persecution of any person because of race, religion, national
origin, or political opinion, during the period beginning on
March 23, 1933, and ending on May 8, 1945, under the direction
of, or in association with -
''(A) the Nazi government of Germany;
''(B) any government in any area occupied by the military
forces of the Nazi government of Germany;
''(C) any government established with the assistance or
cooperation of the Nazi government of Germany; or
''(D) any government which was an ally of the Nazi government
of Germany; or
''(2) pertain to any transaction as to which the United States
Government, in its sole discretion, has grounds to believe -
''(A) involved assets taken from persecuted persons during
the period beginning on March 23, 1933, and ending on May 8,
1945, by, under the direction of, on behalf of, or under
authority granted by the Nazi government of Germany or any
nation then allied with that government; and
''(B) such transaction was completed without the assent of
the owners of those assets or their heirs or assigns or other
legitimate representatives.
''(b) Release of Records. -
''(1) In general. - Subject to paragraphs (2), (3), and (4),
the Nazi War Criminal Records Interagency Working Group shall
release in their entirety Nazi war criminal records that are
described in subsection (a).
''(2) Exception for privacy, etc. - An agency head may exempt
from release under paragraph (1) specific information, that would
-
''(A) constitute a clearly unwarranted invasion of personal
privacy;
''(B) reveal the identity of a confidential human source, or
reveal information about the application of an intelligence
source or method, or reveal the identity of a human
intelligence source when the unauthorized disclosure of that
source would clearly and demonstrably damage the national
security interests of the United States;
''(C) reveal information that would assist in the development
or use of weapons of mass destruction;
''(D) reveal information that would impair United States
cryptologic systems or activities;
''(E) reveal information that would impair the application of
state-of-the-art technology within a United States weapon
system;
''(F) reveal actual United States military war plans that
remain in effect;
''(G) reveal information that would seriously and
demonstrably impair relations between the United States and a
foreign government, or seriously and demonstrably undermine
ongoing diplomatic activities of the United States;
''(H) reveal information that would clearly and demonstrably
impair the current ability of United States Government
officials to protect the President, Vice President, and other
officials for whom protection services, in the interest of
national security, are authorized;
''(I) reveal information that would seriously and
demonstrably impair current national security emergency
preparedness plans; or
''(J) violate a treaty or international agreement.
''(3) Application of exemptions. -
''(A) In general. - In applying the exemptions listed in
subparagraphs (B) through (J) of paragraph (2), there shall be
a presumption that the public interest in the release of Nazi
war criminal records will be served by disclosure and release
of the records. Assertion of such exemption may only be made
when the agency head determines that disclosure and release
would be harmful to a specific interest identified in the
exemption. An agency head who makes such a determination shall
promptly report it to the committees of Congress with
appropriate jurisdiction, including the Committee on the
Judiciary of the Senate and the Committee on Government Reform
and Oversight (now Committee on Government Reform) of the House
of Representatives. The exemptions set forth in paragraph (2)
shall constitute the only