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Rami Fakhoury on IT Immigration

The Fight Book: Appendix I

Rating: 5 votes, 5.00 average.

Rami Fakhoury and Mark Levey


Copyright @2010 Fakhoury Law Group/ Rami Fakhoury


 


APPENDIX  I


Administrative Procedure Act


http://www.archives.gov/federal-register/laws/administrative-procedure/551.html



  • UNITED STATES CODE

    • TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

      • PART I - THE AGENCIES GENERALLY

        • CHAPTER 5 - ADMINISTRATIVE PROCEDURE

          • SUBCHAPTER II - ADMINISTRATIVE PROCEDURE














551. Definitions


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 2of title 41; or sections 1622, 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 therefore 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.






Next Section (552(a) Records Maintained On Individuals; 552(b) Open Meetings)(Skipped)






553. Rule making


(a) This section applies, according to the provisions thereof, except to the extent that there is involved -


(1) a military or foreign affairs function of the United States; or


(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.


(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include -


(1) a statement of the time, place, and nature of public rule making proceedings;


(2) reference to the legal authority under which the rule is proposed; and


(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.


Except when notice or hearing is required by statute, this subsection does not apply -


(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or


(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.


(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.


(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except -


(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;


(2) interpretative rules and statements of policy; or


(3) as otherwise provided by the agency for good cause found and published with the rule.


(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.






Previous Section   |   Next Section






554. Adjudications


(a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved -


(1) a matter subject to a subsequent trial of the law and the facts de novo in a court;


(2) the selection or tenure of an employee, except a (FOOTNOTE 1) administrative law judge appointed under section 3105 of this title;
(FOOTNOTE 1) So in original.


(3) proceedings in which decisions rest solely on inspections, tests, or elections;


(4) the conduct of military or foreign affairs functions;


(5) cases in which an agency is acting as an agent for a court; or


(6) the certification of worker representatives.


(b) Persons entitled to notice of an agency hearing shall be timely informed of -


(1) the time, place, and nature of the hearing;


(2) the legal authority and jurisdiction under which the hearing is to be held; and


(3) the matters of fact and law asserted.


When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.


(c) The agency shall give all interested parties opportunity for -


(1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and


(2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title.


(d) The employee who presides at the reception of evidence pursuant to section 556 of this title shall make the recommended decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, such an employee may not -


(1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or


(2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.


An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of this title, except as witness or counsel in public proceedings. This subsection does not apply -


(A) in determining applications for initial licenses;


(B) to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or


(C) to the agency or a member or members of the body comprising the agency.


(e) The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.






Previous Section   |   Next Section






555. Ancillary matters


(a) This section applies, according to the provisions thereof, except as otherwise provided by this subchapter.


(b) A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding. So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. This subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding.


(c) Process, requirement of a report, inspection, or other investigative act or demand may not be issued, made, or enforced except as authorized by law. A person compelled to submit data or evidence is entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.


(d) Agency subpoenas authorized by law shall be issued to a party on request and, when required by rules of procedure, on a statement or showing of general relevance and reasonable scope of the evidence sought. On contest, the court shall sustain the subpoena or similar process or demand to the extent that it is found to be in accordance with law. In a proceeding for enforcement, the court shall issue an order requiring the appearance of the witness or the production of the evidence or data within a reasonable time under penalty of punishment for contempt in case of contumacious failure to comply.


(e) Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.






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