(a) This section applies, according
to the provisions thereof, when a hearing is required to be conducted
in accordance with section 556 of this title.
(b) When the agency did not preside at the reception of the evidence,
the presiding employee or, in cases not subject to section 554(d)
of this title, an employee qualified to preside at hearings pursuant
to section 556 of this title, shall initially decide the case unless
the agency requires, either in specific cases or by general rule,
the entire record to be certified to it for decision. When the presiding
employee makes an initial decision, that decision then becomes the
decision of the agency without further proceedings unless there is
an appeal to, or review on motion of, the agency within time provided
by rule. On appeal from or review of the initial decision, the agency
has all the powers which it would have in making the initial decision
except as it may limit the issues on notice or by rule. When the agency
makes the decision without having presided at the reception of the
evidence, the presiding employee or an employee qualified to preside
at hearings pursuant to section 556 of this title shall first recommend
a decision, except that in rule making or determining applications
for initial licenses—
(1) instead thereof the agency may issue
a tentative decision or one of its responsible employees may recommend
a decision; or
(2) this
procedure may be omitted in a case in which the agency finds on the
record that due and timely execution of its functions imperatively
and unavoidably so requires.
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(c) Before a recommended,
initial, or tentative decision, or a decision on agency review of
the decision of subordinate employees, the parties are entitled to
a reasonable opportunity to submit for the consideration of the employees
participating in the decisions—
(1) proposed findings and conclusions;
or
(2) exceptions to
the decisions or recommended decisions of subordinate employees or
to tentative agency decisions; and
(3) supporting reasons for the exceptions
or proposed findings or conclusions.
The record shall show the ruling on each finding, conclusion, or
exception presented. All decisions, including initial, recommended,
and tentative decisions, are a part of the record and shall include
a statement of —
(A) findings and conclusions, and the reasons
or basis therefor, on all the material issues of fact, law, or discretion
presented on the record; and
(B) the appropriate rule, order, sanction,
relief, or denial thereof.
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(d) (1) In any agency proceeding which
is subject to subsection (a) of this section, except to the extent
required for the disposition of ex parte matters as authorized by
law—
(A) no interested person outside the
agency shall make or knowingly cause to be made to any member of the
body comprising the agency, administrative law judge, or other employee
who is or may reasonably be expected to be involved in the decisional
process of the proceeding, an ex parte communication relevant to the
merits of the proceeding;
(B) no member of the body comprising
the agency, administrative law judge, or other employee who is or
may reasonably be expected to be involved in the decisional process
of the proceeding, shall make or knowingly cause to be made to any
interested person outside the agency an ex parte communication relevant
to the merits of the proceeding;
(C) a member of the body comprising
the agency, administrative law judge, or other employee who is or
may reasonably be expected to be involved in the decisional process
of such proceeding who receives, or who makes or knowingly causes
to be made, a communication prohibited by this subsection shall place
on the public record of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance
of all such oral communications; and
(iii) all written responses, and memoranda
stating the substance of all oral responses, to the
materials described in clauses (i) and (ii) of this subparagraph;
(D)
upon receipt of a communication knowingly made or knowingly caused
to be made by a party in violation of this subsection, the agency,
administrative law judge, or other employee presiding at the hearing
may, to the extent consistent with the interests of justice and the
policy of the underlying statutes, require the party to show cause
why his claim or interest in the proceeding should not be dismissed,
denied, disregarded, or otherwise adversely affected on account of
such violation; and
(E) the prohibitions of this subsection shall apply beginning at
such time as the agency may designate, but in no case shall they begin
to apply later than the time at which a proceeding is noticed for
hearing unless the person responsible for the communication has knowledge
that it will be noticed, in which case the prohibitions shall apply
beginning at the time of his acquisition of such knowledge.
(2) This subsection does
not constitute authority to withhold information from Congress.
[5 USC 557. As amended by act of Sept. 13, 1976 (90 Stat. 1246).]
