TITLE 5 Next >>
This title was enacted by Pub. L. 89–554, §1, Sept. 6, 1966, 80 Stat. 378
The Agencies Generally
Civil Service Functions and Responsibilities
1979—Pub. L. 96–54, §2(a)(1), Aug. 14, 1979, 93 Stat. 381, substituted "Civil Service Functions and Responsibilities" for "The United States Civil Service Commission" in item for part II.
Table Showing Disposition of All Sections of Former Title 5
Former Sections
New Sections
30n–1 T. 28 §1823
41 T. 14 §632
44 T. 31 §492–1 (See Rev. T. 31 Table)
46c T. 31 §699a (See Rev. T. 31 Table)
47 3103; T. 18 §1916
47a 8301; T. 10 §1221
60 T. 2 §162
61 D.C. Code, §31–1009
66 T. 18 §1914
67 T. 7 §2220
68 T. 8 §1353c
73b–4 T. 41 §5a
76a T. 20 §244a
78, 78a, 78a–1, 79, 80 T. 31 §§638a–638e (See Rev. T. 31 Table)
84a T. 4 §111
88 T. 31 §554 (See Rev. T. 31 Table)
99, 100 Rep. See T. 18 §207.
104 T. 31 §492–2 (See Rev. T. 31 Table)
108 T. 44 §121 (See Rev. T. 44 Table)
118b T. 31 §530a (See Rev. T. 31 Table)
118r T. 18 §1918
134a T. 40 §722 (See Rev. T. 40 Table)
134b T. 40 §723 (See Rev. T. 40 Table)
134b–1 T. 40 §724 (See Rev. T. 40 Table)
134c T. 40 §726 (See Rev. T. 40 Table)
134d T. 40 §727 (See Rev. T. 40 Table)
134e T. 40 §728 (See Rev. T. 40 Table)
134f T. 40 §729 (See Rev. T. 40 Table)
134g, 134h T. 40 §721 note Rep.
139–139f T. 44 §§421–427 (See Rev. T. 44 Table)
140, 140a T. 31 §§483a, 483b (See Rev. T. 31 Table)
150e–150i T. 10 §2575
150j T. 10 §§4712, 9712
150j–1 to 150j–3 T. 10 §§4713, 9713
150m–150o T. 10 §2541
150p T. 10 §2572
150q–150t T. 10 §2601
151 T. 22 §2651
151a T. 22 §2652
151b T. 22 §2653
151c T. 22 §2658
170e T. 22 §2666
170e–1 T. 22 §2667
170f T. 22 §2662
170g T. 22 §2669
170h T. 22 §2670
170i T. 22 §2671
170j T. 22 §2672
170k T. 22 §2673
170l T. 22 §2674
170m T. 22 §2675
170n T. 22 §2676
170o T. 22 §2677
170q T. 22 §2679
170t T. 22 §2680
170u T. 22 §2684
171 T. 10 §§131, 133
171–1 T. 50 §408
171a(a), (b) T. 10 §133
171a(c) T. 10 §§125, 136, 141, 3010, 3012, 5011, 5031, 8010, 8012
171a(d) T. 10 §133
171a(e) T. 10 §132
171a(f) T. 10 §133
171a(j) T. 10 §124
171a–1 T. 10 §133
171c T. 10 §§134–136, 718, 2358
171e T. 10 §171
171f T. 10 §§141, 142
171g T. 10 §143
171j T. 10 §173
171m T. 50 §411
171m–1 T. 10 §2211
171n T. 50 §410
171p, 171q T. 10 §1581
171s T. 10 §§3230, 5416, 8230
171s–1 T. 31 §700 (See Rev. T. 31 Table)
171v T. 10 §1583
171w T. 10 §2385
171y–1 T. 10 §§3205, 5417, 8205
171z T. 10 §2661
171z–1 T. 10 §2681
171z–2 T. 31 §700a (See Rev. T. 31 Table)
171z–3 to 171z–5 T. 10 §§2673–2675
172 T. 10 §136
172a T. 10 §§3014, 5061, 8014
172b, 172c T. 10 §§2203, 2204
172d T. 10 §2208
172d–1 T. 10 §2210
172f T. 10 §126
172g, 172h T. 10 §§2205, 2206
173c–173e T. 10 §§2452–2454
173f–173h T. 10 §2455
174 T. 31 §650a (See Rev. T. 31 Table)
174a T. 37 §412
174g T. 31 §638f (See Rev. T. 31 Table)
174i T. 31 §700b (See Rev. T. 31 Table)
181–1(a) T. 10 §3012
181–1(c) T. 10 §101(5); T. 50 §409(a)
181–1(d) T. 10 §3011
181–1(e) T. 10 §3062
181–2 T. 10 §3012
181–4 T. 10 §§3012, 4532
185–187 T. 10 §3016
189a T. 10 §§4025, 9025
199 T. 10 §§3693, 8693
224 T. 22 §276aa
225 T. 22 §276bb
226 T. 22 §276cc
227 T. 22 §276dd
228 T. 22 §276ee
235b T. 10 §174
235e T. 10 §§2353, 2357
235f, 235g T. 10 §§2354, 2355
235h T. 10 §§174, 2356
241–245 T. 31 §§1001–1005 (See Rev. T. 31 Table)
247–248a T. 31 §§1007–1009 (See Rev. T. 31 Table)
248c–248e T. 31 §§1010, 1011, 1013 (See Rev. T. 31 Table)
249b, 250 T. 31 §§1014, 1015 (See Rev. T. 31 Table)
252–258a, 259–265 T. 31 §§1016–1030 (See Rev. T. 31 Table)
281c T. 21 §163
295, 295–1 T. 28 §506
300b T. 31 §224b (See Rev. T. 31 Table)
300d T. 28 §536
303, 304 T. 28 §§511, 512
305 T. 28 §521; T. 44 §296a (See Rev. T. 44 Table)
312 T. 28 §§543, 547, 548
323, 324 T. 28 §547
341c T. 28 §§536, 537
341d T. 8 §1555
341h T. 42 §250a
342 T. 8 §1551
342b T. 8 §1552
342b–1 T. 8 §1553
342c T. 8 §1353a
342d T. 8 §1353b
342e T. 8 §1353d
342g T. 8 §1554
342l T. 8 §1557
361 Rep. See T. 39 §§201, 203.
362 Rep. See T. 39 §207.
363, 363a, 364 Rep. See T. 39 §204.
364–1(a) Rep. See T. 39 §§204, 401.
365 Rep. See T. 39 §1011.
369 Rep. See T. 39 §§202, 401, 403, 404.
370 Rep. See T. 39 §§1001, 1006.
372, 373 Rep. See T. 39 §407.
383, 384 Rep. See T. 39 §2601.
411a(a) T. 10 §101(5); T. 50 §409(b)
411a(b) T. 10 §5012
411a(c) T. 10 §§5013, 5402
411b, 412 T. 10 §5031
412a T. 10 §§6952, 7202–7211, 7214, 7215, 7218, 7301, 7472, 7478, 7571, 7572, 7576, 7578, 7579
420, 420a, 421 T. 10 §5034
421a–1 T. 10 §§5034, 5036
421b T. 10 §§5033, 5036
421f T. 10 §§7207–7209
421g T. 10 §§6081, 7204, 7205, 7211, 7214, 7218, 7571, 7572, 7576, 7579
423c–423f T. 10 §§5085–5088
423k T. 10 §§5085, 5086, 5088, 5111
425a T. 10 §§5083, 5133, 5148, 5201
432 T. 10 §§5137, 5141, 5146, 5147
452 T. 10 §§5134–5136
456b, 456c T. 10 §5138
475a, 475b T. 10 §5150
475d T. 10 §§5151, 5152
475k, 475l T. 10 §§2354, 2355
475m T. 10 §§174, 2356
476, 476a, 476b T. 10 §§1581, 1582
514a T. 7 §2210
516a T. 7 §450c
516b (less 3d sentence) T. 7 §450d
516c T. 7 §450e
516d T. 7 §450f
516e T. 7 §450g
541c T. 7 §2233
541e T. 7 §2229
542–1 T. 7 §2235
563 T. 7 §450b
565b T. 7 §2250a
592a–3 T. 15 §1506
601a–601d T. 15 §§189, 189a, 192, 192a
623h T. 42 §3501a
626(a) T. 10 §8012
626(c) T. 10 §101(5); T. 50 §409(c)
626(d) T. 10 §8013
626(e) T. 10 §8012
626(f) T. 10 §8033
626(g) T. 10 §8011
626–1 T. 10 §8013, 8017
626c(a), (f) T. 10 §8062
626c(b) T. 10 §743
626l, 626m T. 10 §9441
626q, 626r T. 10 §9301
626s to 626s–2 T. 10 §2481
626s–3 T. 10 §2667
626t, 626u T. 10 §1581
627b T. 10 §§8071, 8208, 8297, 8299, 8305, 8504, 8685, 8888, 8915, 8916, 8927, 8962, 8991
627f T. 10 §§8549, 8580, 8818
630e T. 40 §755 Rep.
630g T. 40 §756 (See Rev. T. 40 Table)
630g–1 T. 40 §757 (See Rev. T. 40 Table)
630g–2 T. 40 §759 Rep.
630h T. 40 §758 (See Rev. T. 40 Table)
760(L) T. 18 §1921
773(b) 8127; T. 18 §292
774(b) T. 18 §1922
901(c) T. 2 §60e–2. Rep. in part.
902 5541; T. 2 §60e–2
931 T. 2 §60e–3
932a T. 2 §60e–5
932b T. 2 §60e–6
932c(a)–(c) T. 2 §60e–7
932d(a)–(c) T. 2 §60e–8
932d(f) T. 2 §60e–8
932e(a)–(e) T. 2 §60e–9
932f(a)–(d) T. 2 §60e–10
932f(f) T. 2 §60e–10
932g(a)–(c) T. 2 §60e–11
932g(e) T. 2 §60e–11
932h(a), (b) T. 2 §60e–12
932h(d) T. 2 §60e–12
932i(a), (b) T. 2 §60e–13
932i(d), (e) T. 2 §60e–13
933 5544; T. 2 §60e–2b
933a T. 31 §46a (See Rev. T. 31 Table)
955 T. 2 §60e–4a
1031–1040 T. 28 §§2341–2350
1084(a) T. 2 §60e–2a
2152, 2153 T. 10 §§1481, 1482
2161, 2162 T. 10 §1482
2171 T. 42 §1973cc–1
2181 T. 42 §1973cc–11
2351–2356 T. 20 §§901–906
2358(b) T. 20 §907
2371–2379 T. 42 §4271–4279
Enacting Clause
Pub. L. 89–554, §1, Sept. 6, 1966, 80 Stat. 378, provided in part: "That the laws relating to the organization of the Government of the United States and to its civilian officers and employees, generally, are revised, codified, and enacted as title 5 of the United States Code, entitled 'Government Organization and Employees', and may be cited as '5 U.S.C., § '."
Legislative Purpose: Inconsistent Provisions
Pub. L. 89–554, §7(a), Sept. 6, 1966, 80 Stat. 631, provided that: "The legislative purpose in enacting sections 1–6 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act [Sept. 6, 1966]. Laws effective after June 30, 1965, that are inconsistent with this Act are considered as superseding it to the extent of the inconsistency."
References to Other Laws
Pub. L. 89–554, §7(b), Sept. 6, 1966, 80 Stat. 631, provided that: "A reference to a law replaced by sections 1–6 of this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by this Act."
Outstanding Orders, Rules and Regulations
Pub. L. 89–554, §7(c), Sept. 6, 1966, 80 Stat. 631, provided that: "An order, rule, or regulation in effect under a law replaced by sections 1–6 of this Act continues in effect under the corresponding provision enacted by this Act until repealed, amended, or superseded."
Savings Provision
Pub. L. 89–554, §7(d), Sept. 6, 1966, 80 Stat. 631, provided that: "An action taken or an offense committed under a law replaced by sections 1–6 of this Act is deemed to have been taken or committed under the corresponding provision enacted by this Act."
Legislative Construction
Pub. L. 89–554, §7(e), Sept. 6, 1966, 80 Stat. 631, provided that: "An inference of a legislative construction is not to be drawn by reason of the location in the United States Code of a provision enacted by this Act or by reason of the caption or catchline thereof."
Pay, Allowances, Compensation, or Annuity
Pub. L. 89–554, §7(f), Sept. 6, 1966, 80 Stat. 631, provided that: "The enactment of this Act does not increase or decrease the pay, allowances, compensation, or annuity of any person."
Separability
Pub. L. 89–554, §7(g), Sept. 6, 1966, 80 Stat. 631, provided that: "If a provision enacted by this Act is held invalid, all valid provisions that are separable from the invalid provision remain in effect. If a provision of this Act is held invalid in one or more of its applications, the provision remains in effect in all valid applications that are severable from the invalid application or applications."
Applicability to Commissioned Officers of Public Health Service and Coast and Geodetic Survey
Pub. L. 89–554, §7(h), Sept. 6, 1966, 80 Stat. 632, provided that: "Sections 1–6 of this Act shall be construed to apply to commissioned officers of the Public Health Service and commissioned officers of the Coast and Geodetic Survey [now the National Oceanic and Atmospheric Administration] to the same extent that the laws replaced by those sections applied to these officers immediately before the date of enactment of this Act [Sept. 6, 1966]."
Repeals
Pub. L. 89–554, §8(a), Sept. 6, 1966, 80 Stat. 632, repealed the sections or parts thereof of the Revised Statutes or Statutes at Large codified in this title, except with respect to rights and duties that matured, penalties that were incurred, and proceedings that were begun, before Sept. 6, 1966, and except as provided by section 7 of Pub. L. 89–554.
Pub. L. 89–554, §8(c), Sept. 6, 1966, 80 Stat. 632, provided that: "The repeal of a law by this Act may not be construed as a legislative inference that the provision was or was not in effect before its repeal."
Continuation of Right to Deferred Annuity
Pub. L. 89–554, §8(b), Sept. 6, 1966, 80 Stat. 632, provided that: "The right to a deferred annuity on satisfaction of the conditions attached thereto is continued notwithstanding the repeal of the law conferring the right."
Interagency Personnel Rotations
Pub. L. 112–239, div. A, title XI, §1107, Jan. 2, 2013, 126 Stat. 1974, provided that:
"(a) Finding and Purpose.—
"(1) Finding.—Congress finds that the national security and homeland security challenges of the 21st century require that executive branch personnel use a whole-of-Government approach in order for the United States Government to operate in the most effective and efficient manner.
"(2) Purpose.—The purpose of this section is to increase the efficiency and effectiveness of the Government by fostering greater interagency experience among executive branch personnel on national security and homeland security matters involving more than 1 agency.
"(b) Committee on National Security Personnel.—
"(1) Establishment.—There is established a Committee on National Security Personnel within the Executive Office of the President.
"(2) Membership.—The members of the Committee shall include—
"(A) designees of the Director of the Office of Management and Budget, the Director of the Office of Personnel Management, the Assistant to the President for National Security Affairs, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security (1 member to be designated by each); and
"(B) such other members as the President shall designate.
"(c) Program Established.—
"(1) Not later than 270 days after the date of the enactment of this Act [Jan. 2, 2013], the Committee on National Security Personnel, in consultation with representatives of such other agencies as the Committee determines to be appropriate, shall develop and issue a National Security Human Capital Strategy providing policies, processes, and procedures for a program for the interagency rotation of personnel among positions within National Security Interagency Communities of Interest.
"(2) The strategy required by paragraph (1) shall, at a minimum—
"(A) identify specific Interagency Communities of Interest for the purpose of carrying out the program;
"(B) designate agencies to be included or excluded from the program;
"(C) define categories of positions to be covered by the program;
"(D) establish processes by which the heads of relevant agencies may identify—
"(i) positions in Interagency Communities of Interest that are available for rotation under the program; and
"(ii) individual employees who are available to participate in rotational assignments under the program; and
"(E) promulgate procedures for the program, including—
"(i) any minimum or maximum periods of service for participation in the program;
"(ii) any training and education requirements associated with participation in the program;
"(iii) any prerequisites or requirements for participation in the program; and
"(iv) appropriate performance measures, reporting requirements, and other accountability devices for the evaluation of the program.
"(d) Program Requirements.—The policies, processes, and procedures established pursuant to subsection (c) shall, at a minimum, provide that—
"(1) during each of the first 4 fiscal years after the fiscal year in which this Act is enacted—
"(A) the interagency rotation program shall be carried out in at least 2 Interagency Communities of Interest, of which 1 shall be an Interagency Community of Interest for emergency management and 1 shall be an Interagency Community of Interest for stabilization and reconstruction; and
"(B) not fewer than 20 employees in the executive branch of the Government shall be assigned to participate in the interagency personnel rotation program;
"(2) an employee's participation in the interagency rotation program shall require the consent of the head of the agency and shall be voluntary on the part of the employee;
"(3) employees selected to perform interagency rotational service are selected in a fully open and competitive manner that is consistent with the merit system principles set forth in paragraphs (1) and (2) of section 2301(b) of title 5, United States Code, unless the Interagency Community of Interest position is otherwise exempt under another provision of law;
"(4) an employee performing service in a position in another agency pursuant to the program established under this section shall be entitled to return, within a reasonable period of time after the end of the period of service, to the position held by the employee, or a corresponding or higher position, in his or her employing agency;
"(5) an employee performing interagency rotational service shall have all the rights that would be available to the employee if the employee were detailed or assigned under a provision of law other than this section from the agency employing the employee to the agency in which the position in which the employee is serving is located; and
"(6) an employee participating in the program shall receive performance evaluations from officials in his or her employing agency that are based on input from the supervisors of the employee during his or her service in the program that are based primarily on the contribution of the employee to the work of the agency in which the employee performed such service, and these performance evaluations shall be provided the same weight in the receipt of promotions and other rewards by the employee from the employing agency as performance evaluations for service in the employing agency.
"(e) Selection of Individuals to Fill Senior Positions.—The head of each agency participating in the program established pursuant to subsection (c) shall ensure that, in selecting individuals to fill senior positions within an Interagency Community of Interest, the agency gives a strong preference to individuals who have performed interagency rotational service within the Interagency Community of Interest pursuant to such program.
"(f) Interagency Community of Interest Defined.—As used in this section, the term 'National Security Interagency Community of Interest' or 'Interagency Community of Interest' means the positions in the executive branch of the Government that, as determined by the Committee on National Security Personnel—
"(1) as a group are positions within multiple agencies of the executive branch of the Government; and
"(2) have significant responsibility for the same substantive, functional, or regional subject area related to national security or homeland security that requires integration of the positions and activities in that area across multiple agencies to ensure that the executive branch of the Government operates as a single, cohesive enterprise to maximize mission success and minimize cost.
"(g) Report on Performance Measures.—Not later than the end of the 2nd fiscal year after the fiscal year in which this Act is enacted, the Committee on National Security Personnel shall assess the performance measures described in subsection (c)(2)(E)(iv) and issue a report to Congress on the assessment of those performance measures.
"(h) GAO Review.—Not later than the end of the 2nd fiscal year after the fiscal year in which this Act is enacted, the Comptroller General of the United States shall submit to Congress a report assessing the implementation and effectiveness of the interagency rotation program established pursuant to this section. The report required by this section shall address, at a minimum—
"(1) the extent to which the requirements of this section have been implemented by the Committee on National Security Personnel and by national security agencies;
"(2) the extent to which national security agencies have participated in the program established pursuant to this section, including whether the heads of such agencies have—
"(A) identified positions within the agencies that are National Security Interagency Communities of Interest and had employees from other agencies serve in rotational assignments in such positions; and
"(B) identified employees who are eligible for rotational assignments in National Security Interagency Communities of Interest and had such employees serve in rotational assignments in other agencies;
"(3) the extent to which employees serving in rotational assignments under the program established pursuant to this section have benefitted from such assignments, including an assessment of—
"(A) the period of service;
"(B) the duties performed by the employees during such service;
"(C) the value of the training and experience gained by participating employees through such service; and
"(D) the positions (including grade level) held by employees before and after completing interagency rotational service under this section; and
"(4) the extent to which interagency rotational service under this section has improved or is expected to improve interagency integration and coordination within National Security Interagency Communities of Interest.
"(i) Exclusion.—This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))."
Improvement of United States Code by Pub. L. 90–83; Legislative Purpose; Inconsistent Provisions; Corresponding Provisions; Savings and Separability of Provisions
Pub. L. 90–83, §9(a)–(g), Sept. 11, 1967, 81 Stat. 222, provided that:
"(a) The legislative purpose in enacting sections 1–8 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act. Laws effective after February 21, 1967, that are inconsistent with this Act are considered as superseding it to the extent of the inconsistency.
"(b) A reference to a law replaced by sections 1–8 of this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by this Act.
"(c) An order, rule, or regulation in effect under a law replaced by sections 1–8 of this Act continues in effect under the corresponding provision enacted by this Act until repealed, amended, or superseded.
"(d) An action taken or an offense committed under a law replaced by sections 1–8 of this Act is deemed to have been taken or committed under the corresponding provision enacted by this Act.
"(e) An inference of a legislative construction is not to be drawn by reason of the location in the United States Code of a provision enacted by this Act or by reason of the caption or catchline thereof.
"(f) The enactment of this Act does not increase or decrease the pay, allowances, compensation, or annuity of any person.
"(g) If a provision enacted by this Act is held invalid, all valid provisions that are severable from the invalid provision remain in effect. If a provision of this Act is held invalid in one or more of its applications, the provision remains in effect in all valid applications that are severable from the invalid application or applications."
PART I—THE AGENCIES GENERALLY
Chap.
Administrative Procedure
The Analysis of Regulatory Functions
Congressional Review of Agency Rulemaking
Executive Reorganization
1996—Pub. L. 104–121, title II, §253, Mar. 29, 1996, 110 Stat. 874, added item for chapter 8.
1 Pub. L. 90–83 added section 500 to chapter 5 without making a corresponding change in Part analysis.
2 Editorially supplied. Chapter 6 added by Pub. L. 96–354 without a corresponding amendment of Part analysis.
CHAPTER 1—ORGANIZATION
Executive departments.
Military departments.
Government corporation.
Independent establishment.
Executive agency.
§101. Executive departments
The Executive departments are:
The Department of State.
The Department of the Treasury.
The Department of Defense.
The Department of Justice.)
The Department of the Interior.
The Department of Agriculture.
The Department of Commerce.
The Department of Labor.
The Department of Health and Human Services.
The Department of Housing and Urban Development.
The Department of Transportation.
The Department of Energy.
The Department of Education.
The Department of Veterans Affairs.
The Department of Homeland Security.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378; Pub. L. 89–670, §10(b), Oct. 15, 1966, 80 Stat. 948; Pub. L. 91–375, §6(c)(1), Aug. 12, 1970, 84 Stat. 775; Pub. L. 95–91, title VII, §710(a), Aug. 4, 1977, 91 Stat. 609; Pub. L. 96–88, title V, §508(b), Oct. 17, 1979, 93 Stat. 692; Pub. L. 100–527, §13(b), Oct. 25, 1988, 102 Stat. 2643; Pub. L. 109–241, title IX, §902(a)(1), July 11, 2006, 120 Stat. 566.)
Historical and Revision Notes
Revised Statutes and
5 U.S.C. 1. R.S. §158.
Feb. 9, 1889, ch. 122, §1 (38th through 54th words), 25 Stat. 659.
Feb. 14, 1903, ch. 552, §1 (83d through 99th words), 32 Stat. 825.
Mar. 4, 1913, ch. 141, §1 (75th through 91st words), 37 Stat. 736.
Aug. 10, 1949, ch. 412, §4 "Sec. 201(c)", 63 Stat. 579.
July 31, 1956, ch. 802, §1(a), 70 Stat. 732.
The reference in former section 1 to the application of the provisions of this title, referring to title IV of the Revised Statutes, is omitted as unnecessary as the application of those provisions is stated in the text.
The statement in former section 2 that the use of the word "department" means one of the Executive departments named in former section 1 is omitted as unnecessary as the words "Executive department" are used in this title when Executive department is meant.
"The Department of Commerce" is substituted for "The Department of Commerce and Labor" on authority of the act of March 4, 1913, ch. 141, §1, 37 Stat. 736.
2006—Pub. L. 109–241 inserted "The Department of Homeland Security."
1988—Pub. L. 100–527 inserted "The Department of Veterans Affairs."
1979—Pub. L. 96–88 substituted "Department of Health and Human Services" for "Department of Health, Education, and Welfare" and inserted "The Department of Education."
1977—Pub. L. 95–91 inserted "The Department of Energy."
1970—Pub. L. 91–375 struck out "The Post Office Department."
1966—Pub. L. 89–670 inserted "The Department of Housing and Urban Development." and "The Department of Transportation."
Effective Date of 1988 Amendment
Amendment by Pub. L. 100–527 effective Mar. 15, 1989, see section 18(a) of Pub. L. 100–527, set out as a Department of Veterans Affairs Act note under section 301 of Title 38, Veterans' Benefits.
Amendment by Pub. L. 96–88 effective May 4, 1980, with specified exceptions, see section 601 of Pub. L. 96–88, set out as an Effective Date note under section 3401 of Title 20, Education.
Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.
Amendment by Pub. L. 89–670 effective Apr. 1, 1967, as prescribed by the President and published in the Federal Register, see section 16(a), formerly §15(a), of Pub. L. 89–670 and Ex. Ord. No. 11340, Mar. 30, 1967, 32 F.R. 5453.
Short Title of 2021 Amendment
Pub. L. 117–17, §1, June 17, 2021, 135 Stat. 287, provided that: "This Act [amending section 6103 of this title] may be cited as the 'Juneteenth National Independence Day Act'."
Pub. L. 116–283, div. A, title XI, §1131, Jan. 1, 2021, 134 Stat. 3900, provided that: "This subtitle [subtitle B (§§1131–1138) of title XI of div. A of Pub. L. 116–283, amending section 2302 of this title and enacting and amending provisions set out as notes under section 2301 of this title] may be cited as the 'Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020'."
Pub. L. 116–269, §1, Dec. 30, 2020, 134 Stat. 3323, provided that: "This Act [amending provisions set out as a note under section 5547 of this title] may be cited as the 'Secret Service Overtime Pay Extension Act'."
Pub. L. 116–126, §1, Mar. 18, 2020, 134 Stat. 174, provided that: "This Act [enacting sections 8345a and 8466a of this title, amending sections 8331, 8345, 8348, 8401, and 8466 of this title, and enacting provisions set out as notes under section 8331 of this title] may be cited as the 'Representative Payee Fraud Prevention Act of 2019'."
Pub. L. 116–92, div. A, title XI, §1121, Dec. 20, 2019, 133 Stat. 1605, provided that: "This subtitle [subtitle B (§§1121–1124) of title XI of Pub. L. 116–92, enacting chapter 92 of this title, section 1316b of Title 2, The Congress, section 2339 of Title 10, Armed Forces, and section 4714 of Title 41, Public Contracts, amending sections 1302 and 1317 of Title 2, section 62 of Title 26, Internal Revenue Code, and section 604 of Title 28, Judiciary and Judicial Procedure, and enacting provisions set out as notes under sections 9201 and 9202 of this title, section 2339 of Title 10, section 10132 of Title 34, Crime Control and Law Enforcement, and section 4714 of Title 41] may be cited as the 'Fair Chance to Compete for Jobs Act of 2019' or the 'Fair Chance Act'."
Pub. L. 116–92, div. F, title LXXVI, §7601, Dec. 20, 2019, 133 Stat. 2304, provided that: "This subtitle [subtitle A (§§7601–7606) of title LXXVI of Pub. L. 116–92, amending section 6382 of this title, section 1312 of Title 2, The Congress, and sections 2611 and 2612 of Title 29, Labor, enacting provisions set out as notes under section 6382 of this title, section 1312 of Title 2, and sections 2611 and 2612 of Title 29, and amending provisions set out as a note under section 44935 of Title 49, Transportation] may be cited as the 'Federal Employee Paid Leave Act'."
Pub. L. 116–50, §1, Aug. 22, 2019, 133 Stat. 1073, provided that: "This Act [enacting provisions set out as a note under section 552a of this title] may be cited as the 'Creating Advanced Streamlined Electronic Services for Constituents Act of 2019' or the 'CASES Act'."
Pub. L. 115–435, §1(a), Jan. 14, 2019, 132 Stat. 5529, provided that: "This Act [enacting subchapter II of chapter 3 of this title, subchapter III of chapter 35 of Title 44, Public Printing and Documents, and section 3520A of Title 44, amending section 306 of this title, section 402 of Title 13, Census, section 176a of Title 15, Commerce and Trade, sections 3502, 3504, 3506, 3511, and 3520 of Title 44, and sections 6302 and 6314 of Title 49, Transportation, enacting provisions set out as notes under sections 306 and 311 of this title and sections 101, 3506, and 3561 of Title 44, amending provisions set out as a note under section 20155 of Title 49, and repealing provisions set out as a note under section 3501 of Title 44] may be cited as the 'Foundations for Evidence-Based Policymaking Act of 2018'."
Pub. L. 115–352, §1, Dec. 21, 2018, 132 Stat. 5067, provided that: "This Act [amending sections 8334 and 8422 of this title and enacting provisions set out as a note under section 8334 of this title], may be cited as the 'Correcting Miscalculations in Veterans' Pensions Act'."
Pub. L. 115–238, §1, Sept. 7, 2018, 132 Stat. 2450, provided that: "This Act [amending section 6329 of this title and enacting provisions set out as a note under section 6329 of this title] may be cited as the 'Veterans Providing Healthcare Transition Improvement Act'."
Pub. L. 115–195, §1, July 7, 2018, 132 Stat. 1510, provided that: "This Act [amending section 7703 of this title and enacting provisions set out as a note under section 7703 of this title] may be cited as the 'All Circuit Review Act'."
Pub. L. 115–160, §1, Apr. 3, 2018, 132 Stat. 1246, provided that: "This Act [enacting and amending provisions set out as notes under section 5547 of this title] may be cited as the 'Secret Service Recruitment and Retention Act of 2018'."
Pub. L. 115–84, §1, Nov. 17, 2017, 131 Stat. 1272, provided that: "This Act [amending sections 8432b and 8433 of this title and enacting provisions set out as notes under sections 8432b and 8433 of this title] may be cited as the 'TSP Modernization Act of 2017'."
Pub. L. 115–73, §1(a), Oct. 26, 2017, 131 Stat. 1235, provided that: "This Act [enacting sections 2307 and 7515 of this title, amending sections 1214, 1221, 2302, 4505a, and 5755 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, enacting provisions set out as notes under sections 1212 and 2301 of this title and section 703 of Title 38, Veterans' Benefits, and amending provisions set out as a note under section 2302 of this title] may be cited as the 'Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017'."
Pub. L. 115–40, §1, June 14, 2017, 131 Stat. 861, provided that: "This Act [amending section 2302 of this title] may be cited as the 'Follow the Rules Act'."
Pub. L. 115–34, §1, May 16, 2017, 131 Stat. 846, provided that: "This Act [amending section 5707 of this title and enacting provisions set out as a note under section 5707 of this title] may be cited as the 'Modernizing Government Travel Act'."
Pub. L. 115–1, §1, Jan. 20, 2017, 131 Stat. 3, provided that: "This Act [enacting sections 3171 and 3172 of this title and provisions set out as a note under section 3171 of this title] may be cited as the 'Tested Ability to Leverage Exceptional National Talent Act of 2017' or the 'TALENT Act of 2017'."
Pub. L. 114–328, div. A, title XI, §1138(a), Dec. 23, 2016, 130 Stat. 2460, provided that: "This section [enacting sections 6329a to 6329c of this title, amending section 6502 of this title, and enacting provisions set out as notes under section 6329a of this title] may be cited as the 'Administrative Leave Act of 2016'."
Pub. L. 114–302, §1, Dec. 16, 2016, 130 Stat. 1516, provided that: "This Act [amending section 2303 of this title] may be cited as the 'Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016'."
Pub. L. 114–185, §1, June 30, 2016, 130 Stat. 538, provided that: "This Act [amending section 552 of this title and section 3102 of Title 44, Public Printing and Documents, and enacting provisions set out as notes under section 552 of this title] may be cited as the 'FOIA Improvement Act of 2016'."
Pub. L. 114–137, §1, Mar. 18, 2016, 130 Stat. 310, provided that: "This Act [amending sections 3318, 3319, and 9510 of this title and enacting provisions set out as a note under section 3318 of this title] may be cited as the 'Competitive Service Act of 2015'."
Pub. L. 114–136, §1, Mar. 18, 2016, 130 Stat. 301, provided that: "This Act [amending sections 8331, 8701, and 8901 of this title and section 2203 of Title 44, Public Printing and Documents, enacting provisions set out as a note under section 3101 of this title, amending provisions set out as a note under section 102 of Title 3, The President, and repealing provisions set out as a note under section 102 of Title 3] may be cited as the 'Edward "Ted" Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015'."
Pub. L. 114–75, §1, Nov. 5, 2015, 129 Stat. 640, provided that: "This Act [enacting section 6329 of this title and provisions set out as notes under section 6329 of this title] may be cited as the 'Wounded Warriors Federal Leave Act of 2015'."
Pub. L. 114–62, §1, Oct. 7, 2015, 129 Stat. 547, provided that: "This Act [amending section 2108 of this title and enacting provisions set out as a note under section 2108 of this title] may be cited as the 'Gold Star Fathers Act of 2015'."
Pub. L. 114–47, §1, Aug. 7, 2015, 129 Stat. 485, provided that: "This Act [enacting chapter 96 of this title] may be cited as the 'Land Management Workforce Flexibility Act'."
Pub. L. 113–277, §1, Dec. 18, 2014, 128 Stat. 2995, provided that: "This Act [enacting section 5550 of this title and section 147 of Title 6, Domestic Security, amending sections 3132, 5542, 5547, and 8331 of this title and section 213 of Title 29, Labor, and enacting provisions set out as notes under sections 5542 and 5550 of this title and section 146 of Title 6] may be cited as the 'Border Patrol Agent Pay Reform Act of 2014'."
Pub. L. 113–255, §1, Dec. 18, 2014, 128 Stat. 2920, provided that: "This Act [amending sections 8438, 8439, 8472, and 8477 of this title and enacting provisions set out as notes under section 8438 of this title] may be cited as the 'Smart Savings Act'."
Pub. L. 113–170, §1, Sept. 26, 2014, 128 Stat. 1894, provided that: "This Act [amending section 7703 of this title] may be cited as the 'All Circuit Review Extension Act'."
Pub. L. 113–80, §1, Feb. 12, 2014, 128 Stat. 1006, provided that: "This Act [amending section 1304 of this title] may be cited as the 'OPM IG Act'."
Pub. L. 112–230, §1, Dec. 28, 2012, 126 Stat. 1616, provided that: "This Act [enacting section 7326 of this title, amending sections 1501, 1502, 1506, 7322, and 7325 of this title, repealing former section 7326 of this title, and enacting provisions set out as notes under sections 1501 and 7326 of this title] may be cited as the 'Hatch Act Modernization Act of 2012'."
Pub. L. 112–199, §1, Nov. 27, 2012, 126 Stat. 1465, provided that: "This Act [enacting section 2304 of this title, amending sections 1204, 1212, 1214, 1215, 1221, 2302, and 7703 of this title, sections 3 and 8D of the Inspector General Act of 1978, Pub. L. 95–452, set out in the Appendix to this title, and section 133 of Title 6, Domestic Security, renumbering sections 2304 and 2305 of this title as sections 2305 and 2306, respectively, of this title and enacting provisions set out as notes under sections 1204, 2302, and 2304 of this title, section 3 of the Inspector General Act of 1978, and section 1116 of Title 31, Money and Finance] may be cited as the 'Whistleblower Protection Enhancement Act of 2012'."
Pub. L. 112–166, §1, Aug. 10, 2012, 126 Stat. 1283, provided that: "This Act [see Tables for classification] may be cited as the 'Presidential Appointment Efficiency and Streamlining Act of 2011'."
Pub. L. 111–292, §1, Dec. 9, 2010, 124 Stat. 3165, provided that: "This Act [enacting chapter 65 and section 5711 of this title and provisions set out as a note under section 6501 of this title and amending provisions set out as a note and provisions listed in a table under section 6120 of this title] may be cited as the 'Telework Enhancement Act of 2010'."
Pub. L. 111–282, §1(a), Oct. 15, 2010, 124 Stat. 3033, provided that: "This Act [enacting chapter 102 of this title, amending sections 5102, 5541, 6304, and 6324 of this title, enacting provisions set out as notes under sections 5102 and 10201 of this title, and amending provisions set out as notes under section 3056A of Title 18, Crimes and Criminal Procedure] may be cited as the 'United States Secret Service Uniformed Division Modernization Act of 2010'."
Pub. L. 111–178, §1, June 9, 2010, 124 Stat. 1262, provided that: "This Act [enacting section 5724d of this title and provisions set out as a note under section 5724d of this title] may be cited as the 'Special Agent Samuel Hicks Families of Fallen Heroes Act'."
Pub. L. 111–83, title V, §564(a), Oct. 28, 2009, 123 Stat. 2184, provided that: "This section [amending section 552 of this title] may be cited as the 'OPEN FOIA Act of 2009'."
Pub. L. 111–31, div. B, §100(a), June 22, 2009, 123 Stat. 1852, provided that: "This division [enacting sections 8432d and 8480 of this title, amending sections 8432, 8433, 8437 to 8439, and 8477 of this title and section 1450 of Title 10, Armed Forces, and enacting provisions set out as notes under this section and section 8439 of this title] may be cited as the 'Federal Retirement Reform Act of 2009'."
Pub. L. 111–31, div. B, title I, §101, June 22, 2009, 123 Stat. 1853, provided that: "This title [enacting sections 8432d and 8480 of this title, amending sections 8432, 8433, 8437 to 8439, and 8477 of this title, and enacting provisions set out as a note under section 8439 of this title] may be cited as the 'Thrift Savings Plan Enhancement Act of 2009'."
Pub. L. 110–372, §1, Oct. 8, 2008, 122 Stat. 4043, provided that: "This Act [amending sections 3104, 3324, 3325, 5108, 5304, 5307 and 5376 of this title and enacting provisions set out as notes under sections 5307 and 5376 of this title] may be cited as the 'Senior Professional Performance Act of 2008'."
Pub. L. 110–290, §1, July 30, 2008, 122 Stat. 2914, provided that: "This Act [amending section 596 of this title] may be cited as the 'Regulatory Improvement Act of 2007'."
Pub. L. 110–175, §1, Dec. 31, 2007, 121 Stat. 2524, provided that: "This Act [amending section 552 of this title and enacting provisions set out as notes under section 552 of this title] may be cited as the 'Openness Promotes Effectiveness in our National Government Act of 2007' or the 'OPEN Government Act of 2007'."
Pub. L. 109–435, title VIII, §801, Dec. 20, 2006, 120 Stat. 3249, provided that: "This title [enacting section 8909a of this title, amending sections 8334, 8348, and 8906 of this title, enacting provisions set out as notes under sections 8334, 8348, and 8909a of this title, and repealing provisions set out as a note preceding section 2001 of Title 39, Postal Service] may be cited as the 'Postal Civil Service Retirement and Health Benefits Funding Amendments of 2006'."
Pub. L. 109–356, §1(a), Oct. 16, 2006, 120 Stat. 2019, provided that: "This Act [amending sections 5102, 8951, 8981, and 9001 of this title, sections 202, 214, 215b, 216, 216a, 221, 321, and 1813 of Title 12, Banks and Banking, and section 57a of Title 15, Commerce and Trade] may be cited as the '2005 District of Columbia Omnibus Authorization Act'."
Short Title of 2004 Amendments
Pub. L. 108–496, §1, Dec. 23, 2004, 118 Stat. 4001, provided that: "This Act [enacting chapters 89A and 89B of this title, amending section 1005 of Title 39, Postal Service, and enacting provisions set out as a note under section 8951 of this title] may be cited as the 'Federal Employee Dental and Vision Benefits Enhancement Act of 2004'."
Pub. L. 108–469, §1(a), Dec. 21, 2004, 118 Stat. 3891, provided that: "This Act [amending sections 8351, 8432, 8433, 8439, and 8440a to 8440e of this title and enacting provisions set out as a note under section 8350 of this title] may be cited as the 'Thrift Savings Plan Open Elections Act of 2004'."
Pub. L. 108–411, §1(a), Oct. 30, 2004, 118 Stat. 2305, provided that: "This Act [enacting sections 4121, 5550b, 5753, and 5754 of this title, amending sections 4103, 4505a, 5302, 5304, 5305, 5314, 5334, 5361, 5363, 5365, 5377, and 6303 of this title, repealing former sections 5753 and 5754 of this title, enacting provisions set out as notes under sections 5304, 5363, 5550b, 5753, and 6303 of this title, and amending provisions set out as a note under section 5305 of this title] may be cited as the 'Federal Workforce Flexibility Act of 2004'."
Pub. L. 108–401, §1, Oct. 30, 2004, 118 Stat. 2255, provided that: "This Act [amending sections 591, 594, and 596 of this title] may be cited as the 'Federal Regulatory Improvement Act of 2004'."
Pub. L. 108–201, §1, Feb. 24, 2004, 118 Stat. 461, provided that: "This Act [enacting chapter 98 of this title, amending section 2473 of Title 42, The Public Health and Welfare, and enacting provisions set out as a note under section 2473 of Title 42] may be cited as the 'NASA Flexibility Act of 2004'."
Pub. L. 108–196, §1, Dec. 19, 2003, 117 Stat. 2896, provided that: "This Act [enacting provisions set out as a note under section 3371 of this title] may be cited as the 'Federal Law Enforcement Pay and Benefits Parity Act of 2003'."
Pub. L. 108–123, §1, Nov. 11, 2003, 117 Stat. 1345, provided that: "This Act [amending section 5379 of this title] may be cited as the 'Federal Employee Student Loan Assistance Act'."
Pub. L. 108–44, §1, July 3, 2003, 117 Stat. 842, provided that: "This Act [enacting section 3114 of this title] may be cited as the 'Accountant, Compliance, and Enforcement Staffing Act of 2003'."
Pub. L. 108–18, §1, Apr. 23, 2003, 117 Stat. 624, provided that: "This Act [amending sections 8331, 8334, and 8348 of this title, enacting provisions set out as notes under sections 8334 and 8348 of this title and preceding section 2001 of Title 39, Postal Service, and repealing provisions set out as a note under section 8348 of this title] may be cited as the 'Postal Civil Service Retirement System Funding Reform Act of 2003'."
Pub. L. 107–296, title XIII, §1301, Nov. 25, 2002, 116 Stat. 2287, provided that: "This title [enacting chapter 14 of this title, subchapter II of chapter 35 of this title, and section 3319 of this title, amending sections 1103, 3111, 3304, 3393, 3592 to 3594, 4107, 5307, 7701, 7905, 8336, 8339, 8414, and 8421 of this title, sections 1115 and 1116 of Title 31, Money and Finance, and section 1902 of Title 50, War and National Defense, repealing section 3393a of this title, enacting provisions set out as notes under sections 1103, 1401, 3301, 3521, 3592, 3593, and 8336 of this title, and repealing provisions set out as notes under sections 8336 and 8414 of this title] may be cited as the 'Chief Human Capital Officers Act of 2002'."
Pub. L. 107–27, §1, Aug. 20, 2001, 115 Stat. 207, provided that: "This Act [amending sections 8335 and 8425 of this title] may be cited as the 'Federal Firefighters Retirement Age Fairness Act'."
Prohibition Against Construction That Would Render Applicable to the Department of Transportation Provisions of Law Inconsistent With Pub. L. 89–670 Creating the Department of Transportation
Pub. L. 89–670, §10(c), Oct. 15, 1966, 80 Stat. 948, which provided that the amendment made to this section by section 10(b) of Pub. L. 89–670 was not to be construed to make applicable to the Department any provision of law inconsistent with Pub. L. 89–670, was repealed by Pub. L. 104–287, §7(5), Oct. 11, 1996, 110 Stat. 3400.
§102. Military departments
The military departments are:
The Department of the Army.
The Department of the Navy.
The Department of the Air Force.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378.)
The section is supplied to avoid the necessity for defining "military departments" each time it is used in this title. See section 101(7) of title 10.
§103. Government corporation
For the purpose of this title—
(1) "Government corporation" means a corporation owned or controlled by the Government of the United States; and
(2) "Government controlled corporation" does not include a corporation owned by the Government of the United States.
The section is supplied to avoid the necessity for defining "Government corporation" and "Government controlled corporation" each time it is used in this title.
§104. Independent establishment
For the purpose of this title, "independent establishment" means—
(1) an establishment in the executive branch (other than the United States Postal Service or the Postal Regulatory Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and
(2) the Government Accountability Office.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 91–375, §6(c)(2), Aug. 12, 1970, 84 Stat. 775; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, §604(b), Dec. 20, 2006, 120 Stat. 3241.)
The section is supplied to avoid the necessity for defining "independent establishment" each time it is used in this title.
Certain agencies are not independent establishments under the definition since they are constituent agencies or parts of an independent establishment. However, these agencies would continue to be subject to the provisions of this title applicable to the independent establishment of which they are a constituent or part. Also, the definition does not expand or abridge any rights or authority possessed by these agencies as no substantive changes are intended, see section 7(a) of the bill.
2006—Par. (1). Pub. L. 109–435 substituted "Postal Regulatory Commission" for "Postal Rate Commission".
2004—Par. (2). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".
1970—Par. (1). Pub. L. 91–375 inserted "(other than the United States Postal Service or the Postal Rate Commission)" after "executive branch".
§105. Executive agency
For the purpose of this title, "Executive agency" means an Executive department, a Government corporation, and an independent establishment.
The section is supplied to avoid the necessity for defining "Executive agency" each time it is used in this title.
CHAPTER 3—POWERS
SUBCHAPTER I—GENERAL PROVISIONS
Departmental regulations.
Delegation of authority.
Oaths to witnesses.
Subpenas.
Systematic agency review of operations.
Agency strategic plans.
SUBCHAPTER II—FEDERAL EVIDENCE-BUILDING ACTIVITIES
Agency evidence-building plan.
Evaluation Officers.
Statistical expertise.
Advisory Committee on Data for Evidence Building.
2019—Pub. L. 115–435, title I, §101(b), Jan. 14, 2019, 132 Stat. 5532, added headings for subchapters I and II and items 311 to 315.
2011—Pub. L. 111–352, §13(a), Jan. 4, 2011, 124 Stat. 3882, added item 306 and struck out former item 306 "Strategic plans".
1993—Pub. L. 103–62, §11(a), Aug. 3, 1993, 107 Stat. 295, added item 306.
2019—Pub. L. 115–435, title I, §101(a)(1), Jan. 14, 2019, 132 Stat. 5529, inserted subchapter heading.
§301. Departmental regulations
The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.
5 U.S.C. 22. R.S. §161.
Aug. 12, 1958, Pub. L. 85–619, 72 Stat. 547.
The words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. The words "not inconsistent with law" are omitted as surplusage as a regulation which is inconsistent with law is invalid.
The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which provided:
"All laws, orders, regulations, and other actions relating to the National Military Establishment, the Departments of the Army, the Navy, or the Air Force, or to any officer or activity of such establishment or such departments, shall, except to the extent inconsistent with the provisions of this Act, have the same effect as if this Act had not been enacted; but, after the effective date of this Act, any such law, order, regulation, or other action which vested functions in or otherwise related to any officer, department, or establishment, shall be deemed to have vested such function in or relate to the officer, or department, executive or military, succeeding the officer, department, or establishment in which such function was vested. For purposes of this subsection the Department of Defense shall be deemed the department succeeding the National Military Establishment, and the military departments of Army, Navy, and Air Force shall be deemed the departments succeeding the Executive Departments of Army, Navy, and Air Force."
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §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.
Federal Cybersecurity Workforce Assessment
Pub. L. 114–113, div. N, title III, Dec. 18, 2015, 129 Stat. 2975, as amended by Pub. L. 116–283, div. H, title XCIV, §9401(g)(4)(A), Jan. 1, 2021, 134 Stat. 4809, provided that:
"SEC. 301. SHORT TITLE.
"This title may be cited as the 'Federal Cybersecurity Workforce Assessment Act of 2015'.
"SEC. 302. DEFINITIONS.
"In this title:
"(1) Appropriate congressional committees.—The term 'appropriate congressional committees' means—
"(A) the Committee on Armed Services of the Senate;
"(B) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(C) the Select Committee on Intelligence of the Senate;
"(D) the Committee on Commerce, Science, and Transportation of the Senate;
"(E) the Committee on Armed Services of the House of Representatives;
"(F) the Committee on Homeland Security of the House of Representatives;
"(G) the Committee on Oversight and Government Reform of the House of Representatives; and
"(H) the Permanent Select Committee on Intelligence of the House of Representatives.
"(2) Director.—The term 'Director' means the Director of the Office of Personnel Management.
"(3) National initiative for cybersecurity education.—The term 'National Initiative for Cybersecurity Education' means the initiative under the national cybersecurity awareness and education program, as authorized under section 303 of the Cybersecurity Enhancement Act of 2014 (Public Law 113–274) [15 U.S.C. 7443].
"(4) Work roles.—The term 'work roles' means a specialized set of tasks and functions requiring specific knowledge, skills, and abilities.
"SEC. 303. NATIONAL CYBERSECURITY WORKFORCE MEASUREMENT INITIATIVE.
"(a) In General.—The head of each Federal agency shall—
"(1) identify all positions within the agency that require the performance of cybersecurity or other cyber-related functions; and
"(2) assign the corresponding employment code under the National Initiative for Cybersecurity Education in accordance with subsection (b).
"(b) Employment Codes.—
"(1) Procedures.—
"(A) Coding structure.—Not later than 180 days after the date of the enactment of this Act [Dec. 18, 2015], the Director, in coordination with the National Institute of Standards and Technology, shall develop a coding structure under the National Initiative for Cybersecurity Education.
"(B) Identification of civilian cyber personnel.—Not later than 9 months after the date of enactment of this Act, the Director, in coordination with the Secretary of Homeland Security, the Director of the National Institute of Standards and Technology, and the Director of National Intelligence, shall establish procedures to implement the National Initiative for Cybersecurity Education coding structure to identify all Federal civilian positions that require the performance of information technology, cybersecurity, or other cyber-related functions.
"(C) Identification of noncivilian cyber personnel.—Not later than 18 months after the date of enactment of this Act, the Secretary of Defense shall establish procedures to implement the National Initiative for Cybersecurity Education's coding structure to identify all Federal noncivilian positions that require the performance of information technology, cybersecurity, or other cyber-related functions.
"(D) Baseline assessment of existing cybersecurity workforce.—Not later than 3 months after the date on which the procedures are developed under subparagraphs (B) and (C), respectively, the head of each Federal agency shall submit to the appropriate congressional committees of jurisdiction a report that identifies—
"(i) the percentage of personnel with information technology, cybersecurity, or other cyber-related job functions who currently hold the appropriate industry-recognized certifications as identified under the National Initiative for Cybersecurity Education;
"(ii) the level of preparedness of other civilian and noncivilian cyber personnel without existing credentials to take certification exams; and
"(iii) a strategy for mitigating any gaps identified in clause (i) or (ii) with the appropriate training and certification for existing personnel.
"(E) Procedures for assigning codes.—Not later than 3 months after the date on which the procedures are developed under subparagraphs (B) and (C), respectively, the head of each Federal agency shall establish procedures—
"(i) to identify all encumbered and vacant positions with information technology, cybersecurity, or other cyber-related functions (as defined in the National Initiative for Cybersecurity Education's coding structure); and
"(ii) to assign the appropriate employment code to each such position, using agreed standards and definitions.
"(2) Code assignments.—Not later than 1 year after the date after the procedures are established under paragraph (1)(E), the head of each Federal agency shall complete assignment of the appropriate employment code to each position within the agency with information technology, cybersecurity, or other cyber-related functions.
"(c) Progress Report.—Not later than 180 days after the date of enactment of this Act, the Director shall submit a progress report on the implementation of this section to the appropriate congressional committees.
"SEC. 304. IDENTIFICATION OF CYBER-RELATED WORK ROLES OF CRITICAL NEED.
"(a) In General.—Beginning not later than 1 year after the date on which the employment codes are assigned to employees pursuant to section 303(b)(2), and annually thereafter through 2022, the head of each Federal agency, in consultation with the Director, the Director of the National Institute of Standards and Technology, and the Secretary of Homeland Security, shall—
"(1) identify information technology, cybersecurity, or other cyber-related work roles of critical need in the agency's workforce; and
"(2) submit a report to the Director that—
"(A) describes the information technology, cybersecurity, or other cyber-related roles identified under paragraph (1); and
"(B) substantiates the critical need designations.
"(b) Guidance.—The Director shall provide Federal agencies with timely guidance for identifying information technology, cybersecurity, or other cyber-related roles of critical need, including—
"(1) current information technology, cybersecurity, and other cyber-related roles with acute skill shortages; and
"(2) information technology, cybersecurity, or other cyber-related roles with emerging skill shortages.
"(c) Cybersecurity Needs Report.—Not later than 2 years after the date of the enactment of this Act [Dec. 18, 2015], the Director, in consultation with the Secretary of Homeland Security, shall—
"(1) identify critical needs for information technology, cybersecurity, or other cyber-related workforce across all Federal agencies; and
"(2) submit a progress report on the implementation of this section to the appropriate congressional committees.
"SEC. 305. GOVERNMENT ACCOUNTABILITY OFFICE STATUS REPORTS.
"The Comptroller General of the United States shall—
"(1) analyze and monitor the implementation of sections 303 and 304; and
"(2) not later than 3 years after the date of the enactment of this Act [Dec. 18, 2015], submit a report to the appropriate congressional committees that describes the status of such implementation."
Plain Writing in Government Documents
Pub. L. 111–274, Oct. 13, 2010, 124 Stat. 2861, provided that:
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Plain Writing Act of 2010'.
"SEC. 2. PURPOSE.
"The purpose of this Act is to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use.
"SEC. 3. DEFINITIONS.
"In this Act:
"(1) Agency.—The term 'agency' means an Executive agency, as defined under section 105 of title 5, United States Code.
"(2) Covered document.—The term 'covered document'—
"(A) means any document that—
"(i) is necessary for obtaining any Federal Government benefit or service or filing taxes;
"(ii) provides information about any Federal Government benefit or service; or
"(iii) explains to the public how to comply with a requirement the Federal Government administers or enforces;
"(B) includes (whether in paper or electronic form) a letter, publication, form, notice, or instruction; and
"(C) does not include a regulation.
"(3) Plain writing.—The term 'plain writing' means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.
"SEC. 4. RESPONSIBILITIES OF FEDERAL AGENCIES.
"(a) Preparation for Implementation of Plain Writing Requirements.—
"(1) In general.—Not later than 9 months after the date of enactment of this Act [Oct. 13, 2010], the head of each agency shall—
"(A) designate 1 or more senior officials within the agency to oversee the agency implementation of this Act;
"(B) communicate the requirements of this Act to the employees of the agency;
"(C) train employees of the agency in plain writing;
"(D) establish a process for overseeing the ongoing compliance of the agency with the requirements of this Act;
"(E) create and maintain a plain writing section of the agency's website as required under paragraph (2) that is accessible from the homepage of the agency's website; and
"(F) designate 1 or more agency points-of-contact to receive and respond to public input on—
"(i) agency implementation of this Act; and
"(ii) the agency reports required under section 5.
"(2) Website.—The plain writing section described under paragraph (1)(E) shall—
"(A) inform the public of agency compliance with the requirements of this Act; and
"(B) provide a mechanism for the agency to receive and respond to public input on—
"(b) Requirement to Use Plain Writing in New Documents.—Beginning not later than 1 year after the date of enactment of this Act, each agency shall use plain writing in every covered document of the agency that the agency issues or substantially revises.
"(c) Guidance.—
"(1) In general.—Not later than 6 months after the date of enactment of this Act, the Director of the Office of Management and Budget shall develop and issue guidance on implementing the requirements of this section. The Director may designate a lead agency, and may use interagency working groups to assist in developing and issuing the guidance.
"(2) Interim guidance.—Before the issuance of guidance under paragraph (1), agencies may follow the guidance of—
"(A) the writing guidelines developed by the Plain Language Action and Information Network; or
"(B) guidance provided by the head of the agency that is consistent with the guidelines referred to in subparagraph (A).
"SEC. 5. REPORTS TO CONGRESS.
"(a) Initial Report.—Not later than 9 months after the date of enactment of this Act [Oct. 13, 2010], the head of each agency shall publish on the plain writing section of the agency's website a report that describes the agency plan for compliance with the requirements of this Act.
"(b) Annual Compliance Report.—Not later than 18 months after the date of enactment of this Act, and annually thereafter, the head of each agency shall publish on the plain writing section of the agency's website a report on agency compliance with the requirements of this Act.
"SEC. 6. JUDICIAL REVIEW AND ENFORCEABILITY.
"(a) Judicial Review.—There shall be no judicial review of compliance or noncompliance with any provision of this Act.
"(b) Enforceability.—No provision of this Act shall be construed to create any right or benefit, substantive or procedural, enforceable by any administrative or judicial action.
"SEC. 7. BUDGETARY EFFECTS OF PAYGO LEGISLATION FOR THIS ACT.
"The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act of 2010 [2 U.S.C. 931 et seq.], shall be determined by reference to the latest statement titled 'Budgetary Effects of PAYGO Legislation' for this Act, submitted for printing in the Congressional Record by the Chairman of the House Budget Committee, provided that such statement has been submitted prior to the vote on passage."
Support for Youth Organizations
Pub. L. 109–163, div. A, title X, §1058(a), (b), Jan. 6, 2006, 119 Stat. 3442, provided that:
"(a) Youth Organization Defined.—In this section, the term 'youth organization' means—
"(1) the Boy Scouts of America;
"(2) the Girl Scouts of the United States of America;
"(3) the Boys Clubs of America;
"(4) the Girls Clubs of America;
"(5) the Young Men's Christian Association;
"(6) the Young Women's Christian Association;
"(7) the Civil Air Patrol;
"(8) the United States Olympic Committee [now United States Olympic and Paralympic Committee];
"(9) the Special Olympics;
"(10) Campfire USA;
"(11) the Young Marines;
"(12) the Naval Sea Cadets Corps;
"(13) 4–H Clubs;
"(14) the Police Athletic League;
"(15) Big Brothers—Big Sisters of America;
"(16) National Guard Challenge Program; and
"(17) any other organization designated by the President as an organization that is primarily intended to—
"(A) serve individuals under the age of 21 years;
"(B) provide training in citizenship, leadership, physical fitness, service to community, and teamwork; and
"(C) promote the development of character and ethical and moral values.
"(b) Support for Youth Organizations.—
"(1) Continuation of support.—No Federal law (including any rule, regulation, directive, instruction, or order) shall be construed to limit any Federal agency from providing any form of support for a youth organization (including the Boy Scouts of America or any group officially affiliated with the Boy Scouts of America) that would result in that Federal agency providing less support to that youth organization (or any similar organization chartered under the chapter of title 36, United States Code, relating to that youth organization) than was provided during the preceding fiscal year to that youth organization. This paragraph shall be subject to the availability of appropriations.
"(2) Youth organizations that cease to exist.—Paragraph (1) shall not apply to any youth organization that ceases to exist.
"(3) Waivers.—The head of a Federal agency may waive the application of paragraph (1) to a youth organization with respect to each conviction or investigation described under subparagraph (A) or (B) for a period of not more than two fiscal years if—
"(A) any senior officer (including any member of the board of directors) of the youth organization is convicted of a criminal offense relating to the official duties of that officer or the youth organization is convicted of a criminal offense; or
"(B) the youth organization is the subject of a criminal investigation relating to fraudulent use or waste of Federal funds.
"(4) Types of support.—Support described in paragraph (1) includes—
"(A) authorizing a youth organization to hold meetings, camping events, or other activities on Federal property;
"(B) hosting any official event of a youth organization;
"(C) loaning equipment for the use of a youth organization; and
"(D) providing personnel services and logistical support for a youth organization."
Pub. L. 109–148, div. A, title VIII, §8126(b), Dec. 30, 2005, 119 Stat. 2728, which contained provisions substantially similar to those in Pub. L. 109–163, §1058(a), (b), set out above, was repealed by Pub. L. 109–364, div. A, title X, §1071(f)(3), Oct. 17, 2006, 120 Stat. 2402.
Minimum Standards for Birth Certificates
Pub. L. 108–458, title VII, §7211(a)–(d), Dec. 17, 2004, 118 Stat. 3825–3827, provided that:
"(a) Definition.—In this section [enacting this note and repealing provisions set out as a note below], the term 'birth certificate' means a certificate of birth—
"(1) for an individual (regardless of where born)—
"(A) who is a citizen or national of the United States at birth; and
"(B) whose birth is registered in the United States; and
"(2) that—
"(A) is issued by a Federal, State, or local government agency or authorized custodian of record and produced from birth records maintained by such agency or custodian of record; or
"(B) is an authenticated copy, issued by a Federal, State, or local government agency or authorized custodian of record, of an original certificate of birth issued by such agency or custodian of record.
"(b) Standards for Acceptance by Federal Agencies.—
"(1) In general.—Beginning 2 years after the promulgation of minimum standards under paragraph (3), no Federal agency may accept a birth certificate for any official purpose unless the certificate conforms to such standards.
"(2) State certification.—
"(A) In general.—Each State shall certify to the Secretary of Health and Human Services that the State is in compliance with the requirements of this section.
"(B) Frequency.—Certifications under subparagraph (A) shall be made at such intervals and in such a manner as the Secretary of Health and Human Services, with the concurrence of the Secretary of Homeland Security and the Commissioner of Social Security, may prescribe by regulation.
"(C) Compliance.—Each State shall ensure that units of local government and other authorized custodians of records in the State comply with this section.
"(D) Audits.—The Secretary of Health and Human Services may conduct periodic audits of each State's compliance with the requirements of this section.
"(3) Minimum standards.—Not later than 1 year after the date of enactment of this Act [Dec. 17, 2004], the Secretary of Health and Human Services shall by regulation establish minimum standards for birth certificates for use by Federal agencies for official purposes that—
"(A) at a minimum, shall require certification of the birth certificate by the State or local government custodian of record that issued the certificate, and shall require the use of safety paper or an alternative, equally secure medium, the seal of the issuing custodian of record, and other features designed to prevent tampering, counterfeiting, or otherwise duplicating the birth certificate for fraudulent purposes;
"(B) shall establish requirements for proof and verification of identity as a condition of issuance of a birth certificate, with additional security measures for the issuance of a birth certificate for a person who is not the applicant;
"(C) shall establish standards for the processing of birth certificate applications to prevent fraud;
"(D) may not require a single design to which birth certificates issued by all States must conform; and
"(E) shall accommodate the differences between the States in the manner and form in which birth records are stored and birth certificates are produced from such records.
"(4) Consultation with government agencies.—In promulgating the standards required under paragraph (3), the Secretary of Health and Human Services shall consult with—
"(A) the Secretary of Homeland Security;
"(B) the Commissioner of Social Security;
"(C) State vital statistics offices; and
"(D) other appropriate Federal agencies.
"(5) Extension of effective date.—The Secretary of Health and Human Services may extend the date specified under paragraph (1) for up to 2 years for birth certificates issued by a State if the Secretary determines that the State made reasonable efforts to comply with the date under paragraph (1) but was unable to do so.
"(c) Grants to States.—
"(1) Assistance in meeting federal standards.—
"(A) In general.—Beginning on the date a final regulation is promulgated under subsection (b)(3), the Secretary of Health and Human Services shall award grants to States to assist them in conforming to the minimum standards for birth certificates set forth in the regulation.
"(B) Allocation of grants.—The Secretary shall award grants to States under this paragraph based on the proportion that the estimated average annual number of birth certificates issued by a State applying for a grant bears to the estimated average annual number of birth certificates issued by all States.
"(C) Minimum allocation.—Notwithstanding subparagraph (B), each State shall receive not less than 0.5 percent of the grant funds made available under this paragraph.
"(2) Assistance in matching birth and death records.—
"(A) In general.—The Secretary of Health and Human Services, in coordination with the Commissioner of Social Security and other appropriate Federal agencies, shall award grants to States, under criteria established by the Secretary, to assist States in—
"(i) computerizing their birth and death records;
"(ii) developing the capability to match birth and death records within each State and among the States; and
"(iii) noting the fact of death on the birth certificates of deceased persons.
"(B) Allocation of grants.—The Secretary shall award grants to qualifying States under this paragraph based on the proportion that the estimated annual average number of birth and death records created by a State applying for a grant bears to the estimated annual average number of birth and death records originated by all States.
"(d) Authorization of Appropriations.—There are authorized to be appropriated to the Secretary for each of the fiscal years 2005 through 2009 such sums as may be necessary to carry out this section."
Improvements in Identification-Related Documents
Pub. L. 104–208, div. C, title VI, §656, Sept. 30, 1996, 110 Stat. 3009–716, as amended by Pub. L. 106–69, title III, §355, Oct. 9, 1999, 113 Stat. 1027, which related to standards for acceptance of birth certificates by Federal agencies for any official purpose, required the Secretary of Health and Human Services to make grants to States for assistance in meeting Federal standards and in matching birth and death records and for demonstration projects, and required the Secretary to submit a report to the Congress on ways to reduce the fraudulent obtaining and use of birth certificates, was repealed by Pub. L. 108–458, title VII, §7211(e), Dec. 17, 2004, 118 Stat. 3827.
Modification or Cancellation of Certain License Agreements Granted to Government During World War II
Act Aug. 16, 1950, ch. 716, 64 Stat. 448, provided that: "Notwithstanding any other provision of law, the head of any department or other agency in the executive branch of the Government which subsequent to September 9, 1939, entered into any contract or agreement with the holder of any privately owned patent or any right thereunder whereby such holder granted to the United States, without payment of royalty or with reduction or limitation of royalty, any license under such patent or right, is authorized, upon application of the grantor of such license, to enter into such supplemental contract or agreement for the cancellation of the contract or agreement by which such license was granted as the head of such department or agency shall deem to be warranted by equities existing by reason of changes in circumstances occurring since the granting of such license."
Equal Opportunity in Federal Employment
Establishment of equal employment opportunity programs by heads of Executive departments and agencies, see Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319 and Ex. Ord. No. 11478, Aug. 8, 1969, 34 F.R. 12985, set out as notes under section 2000e of Title 42, The Public Health and Welfare.
§302. Delegation of authority
(a) For the purpose of this section, "agency" has the meaning given it by section 5721 of this title.
(b) In addition to the authority to delegate conferred by other law, the head of an agency may delegate to subordinate officials the authority vested in him—
(1) by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency; and
(2) by section 3702 of title 44 to authorize the publication of advertisements, notices, or proposals.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 94–183, §2(1), Dec. 31, 1975, 89 Stat. 1057.)
5 U.S.C. 22a. Aug. 2, 1946, ch. 744, §12, 60 Stat. 809.
Clause (2) of former section 22a is omitted because of the repeal of R.S. §3683 (31 U.S.C. 675) by the Act of Sept. 12, 1950, ch. 946, §301(76), 64 Stat. 843.
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.
In subsection (b), the words "In addition to the authority to delegate conferred by other law," are added for clarity and in recognition of the various reorganization plans which generally have transferred all functions of the departments and agencies to the heads thereof and have authorized them to delegate the functions to subordinates.
1975—Subsec. (b)(2). Pub. L. 94–183 substituted "3702" for "324".
§303. Oaths to witnesses
(a) An employee of an Executive department lawfully assigned to investigate frauds on or attempts to defraud the United States, or irregularity or misconduct of an employee or agent of the United States, may administer an oath to a witness attending to testify or depose in the course of the investigation.
(b) An employee of the Department of Defense lawfully assigned to investigative duties may administer oaths to witnesses in connection with an official investigation.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 94–213, Feb. 13, 1976, 90 Stat. 179.)
Mar. 2, 1901, ch. 809, §3, 31 Stat. 951.
Feb. 13, 1911, ch. 43, 36 Stat. 898.
The word "employee" is substituted for "officer or clerk" in view of the definition in section 2105. The words "Executive department" are substituted for "departments" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. So much as related to the Armed Forces is omitted as superseded by section 636 of title 14 and section 936(b) of title 10.
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (formerly 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.
1976—Pub. L. 94–213 designated existing provisions as subsec. (a) and added subsec. (b).
§304. Subpenas
(a) The head of an Executive department or military department or bureau thereof in which a claim against the United States is pending may apply to a judge or clerk of a court of the United States to issue a subpena for a witness within the jurisdiction of the court to appear at a time and place stated in the subpena before an individual authorized to take depositions to be used in the courts of the United States, to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application, or to be orally examined and cross-examined on the subject of the claim.
(b) If a witness, after being served with a subpena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpena issued may proceed, on proper process, to enforce obedience to the subpena, or to punish for disobedience, in the same manner as a court of the United States may in case of process of subpena ad testificandum issued by the court.
(a) 5 U.S.C. 94. R.S. §184.
(b) 5 U.S.C. 96. R.S. §186.
In subsection (a), the words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. The word "thereof" is added to reflect the proper relationship between "department" and "bureau" as reflected in title IV of the Revised Statutes of 1878. The words "in any State, District, or Territory" are omitted as unnecessary. The word "individual" is substituted for "officer" as the definition of "officer" in section 2104 is narrower than the word "officer" in R.S. §184 which word includes "officers" as defined in section 2104 as well as notaries public who are not "officers" under section 2104, but are "officers" as that word is used in R.S. §184.
In subsection (a), the words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.
§305. Systematic agency review of operations
(a) For the purpose of this section, "agency" means an Executive agency, but does not include—
(1) a Government controlled corporation;
(2) the Tennessee Valley Authority;
(3) the Virgin Islands Corporation;
(4) the Atomic Energy Commission;
(5) the Central Intelligence Agency;
(6) the Panama Canal Commission; or
(7) the National Security Agency, Department of Defense.
(b) Under regulations prescribed and administered by the President, each agency shall review systematically the operations of each of its activities, functions, or organization units, on a continuing basis.
(c) The purpose of the reviews includes—
(1) determining the degree of efficiency and economy in the operation of the agency's activities, functions, or organization units;
(2) identifying the units that are outstanding in those respects; and
(3) identifying the employees whose personal efforts have caused their units to be outstanding in efficiency and economy of operations.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 380; Pub. L. 96–54, §2(a)(2), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96–70, title III, §3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 97–468, title VI, §615(b)(1)(A), Jan. 14, 1983, 96 Stat. 2578.)
(a) 5 U.S.C. 1085. Oct. 28, 1949, ch. 782, §205, 63 Stat. 957.
(b), (c) 5 U.S.C. 1151. Oct. 28, 1949, ch. 782, §1001, 63 Stat. 971.
Subsection (a) is based in part on former sections 1081 and 1082, which are carried into section 5102.
In subsection (a)(1), the exception of "a Government controlled corporation" is added to preserve the application of this section to "corporations wholly owned by the United States". This is necessary as the defined term "Executive agency" includes the defined term "Government corporation" and the latter includes both Government owned and controlled corporations. Thus the exclusion of Government controlled corporations, which are distinct from wholly owned corporations, operates to preserve the application of this section to wholly owned corporations. The exception for the Inland Waterways Corporation in former section 1082(13) is omitted on authority of the Act of July 19, 1963, Pub. L. 88–67, 77 Stat. 81. The exceptions for Production Credit Corporations and Federal Intermediate Credit Banks in former section 1082(18) and (19) are omitted as they are no longer "corporations wholly owned by the United States". Under the Farm Credit Act of 1956, 70 Stat. 659, the Production Credit Corporations were merged in the Federal Intermediate Credit Banks, and pursuant to that Act the Federal Intermediate Credit Banks have ceased to be corporations wholly owned by the United States.
In subsection (a)(7), the words "Panama Canal Company" are substituted for "Panama Railroad Company" on authority of the Act of Sept. 26, 1950, ch. 1049, §2(a)(2), 64 Stat. 1038.
1983—Subsec. (a)(3) to (8). Pub. L. 97–468 struck out par. (3), which excluded The Alaska Railroad, and redesignated pars. (4) to (8) as (3) to (7), respectively.
1979—Subsec. (a)(7). Pub. L. 96–70 substituted "Commission" for "Company".
Subsec. (b). Pub. L. 96–54 substituted "President" for "Director of the Bureau of the Budget".
Amendment by Pub. L. 97–468 effective on date of transfer of Alaska Railroad to the State [Jan. 5, 1985], pursuant to section 1203 of Title 45, Railroads, see section 615(b) of Pub. L. 97–468.
Effective Date of 1979 Amendments
Amendment by Pub. L. 96–70 effective Oct. 1, 1979, see section 3304 of Pub. L. 96–70, set out as an Effective Date note under section 3601 of Title 22, Foreign Relations and Intercourse.
Pub. L. 96–54, §2(b), Aug. 14, 1979, 93 Stat. 385, provided that: "Except as otherwise expressly provided in subsection (a), the amendments made by subsection (a) [amending sections 305, 1308, 2101, 2105, 2106, 2108, 3102, 3132, 3302, 3305, 3315, 3317, 3324, 3326, 3503, 4102, 4109, 4111, 4112, 4701, 5102, 5108, 5311 to 5316, 5333 to 5335, 5347, 5504, 5514, 5516, 5521, 5545, 5550a, 5562, 5581, 5584, 5596, 5702, 5903, 5943, 6104, 6304, 6305, 6323, 6325, 7325, 7327, 7701, 7702, 8331, 8332, 8339, 8347, 8701, 8901, and 8906 of this title], shall take effect July 12, 1979, or the date of the enactment of this Act [Aug. 14, 1979], whichever is earlier."
Transfer of Functions
Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of Title 42, The Public Health and Welfare. See also Transfer of Functions notes set out under those sections.
Dissolution of Virgin Islands Corporation
Virgin Islands Corporation established to have succession until June 30, 1969, unless sooner dissolved by Act of Congress, by act June 30, 1949, ch. 285, 63 Stat. 350, as amended (48 U.S.C. 1407 et seq.). Corporation terminated its program June 30, 1965, and dissolved July 1, 1966. Act June 30, 1949, was repealed by Pub. L. 97–357, title III, §308(e), Oct. 19, 1982, 96 Stat. 1710.
Delegation of Functions
Functions of President under subsec. (b) of this section delegated to Director of Office of Management and Budget, see Ex. Ord. No. 12152, Aug. 14, 1979, 44 F.R. 48143, set out as a note under section 301 of Title 3, The President.
§306. Agency strategic plans
(a) Not later than the first Monday in February of any year following the year in which the term of the President commences under section 101 of title 3, the head of each agency shall make available on the public website of the agency a strategic plan and notify the President and Congress of its availability. Such plan shall contain—
(1) a comprehensive mission statement covering the major functions and operations of the agency;
(2) general goals and objectives, including outcome-oriented goals, for the major functions and operations of the agency;
(3) a description of how any goals and objectives contribute to the Federal Government priority goals required by section 1120(a) of title 31;
(4) a description of how the goals and objectives are to be achieved, including—
(A) a description of the operational processes, skills and technology, and the human, capital, information, and other resources required to achieve those goals and objectives; and
(B) a description of how the agency is working with other agencies to achieve its goals and objectives as well as relevant Federal Government priority goals;
(5) a description of how the goals and objectives incorporate views and suggestions obtained through congressional consultations required under subsection (d);
(6) a description of how the performance goals provided in the plan required by section 1115(a) of title 31, including the agency priority goals required by section 1120(b) of title 31, if applicable, contribute to the general goals and objectives in the strategic plan;
(7) an identification of those key factors external to the agency and beyond its control that could significantly affect the achievement of the general goals and objectives;
(8) a description of the program evaluations used in establishing or revising general goals and objectives, with a schedule for future program evaluations to be conducted, and citations to relevant provisions of the plans required under section 312; and
(9) an assessment of the coverage, quality, methods, effectiveness, and independence of the statistics, evaluation, research, and analysis efforts of the agency, including—
(A) a list of the activities and operations of the agency that are currently being evaluated and analyzed;
(B) the extent to which the evaluations, research, and analysis efforts and related activities of the agency support the needs of various divisions within the agency;
(C) the extent to which the evaluation research and analysis efforts and related activities of the agency address an appropriate balance between needs related to organizational learning, ongoing program management, performance management, strategic management, interagency and private sector coordination, internal and external oversight, and accountability;
(D) the extent to which the agency uses methods and combinations of methods that are appropriate to agency divisions and the corresponding research questions being addressed, including an appropriate combination of formative and summative evaluation research and analysis approaches;
(E) the extent to which evaluation and research capacity is present within the agency to include personnel and agency processes for planning and implementing evaluation activities, disseminating best practices and findings, and incorporating employee views and feedback; and
(F) the extent to which the agency has the capacity to assist agency staff and program offices to develop the capacity to use evaluation research and analysis approaches and data in the day-to-day operations.
(b) The strategic plan shall cover a period of not less than 4 years following the fiscal year in which the plan is submitted. As needed, the head of the agency may make adjustments to the strategic plan to reflect significant changes in the environment in which the agency is operating, with appropriate notification of Congress.
(c) The performance plan required by section 1115(b) of title 31 shall be consistent with the agency's strategic plan. A performance plan may not be submitted for a fiscal year not covered by a current strategic plan under this section.
(d) When developing or making adjustments to a strategic plan, the agency shall consult periodically with the Congress, including majority and minority views from the appropriate authorizing, appropriations, and oversight committees, and shall solicit and consider the views and suggestions of those entities potentially affected by or interested in such a plan. The agency shall consult with the appropriate committees of Congress at least once every 2 years.
(e) The functions and activities of this section shall be considered to be inherently governmental functions. The drafting of strategic plans under this section shall be performed only by Federal employees.
(f) For purposes of this section the term "agency" means an Executive agency defined under section 105, but does not include the Central Intelligence Agency, the Government Accountability Office, the United States Postal Service, and the Postal Regulatory Commission.
(Added Pub. L. 111–352, §2, Jan. 4, 2011, 124 Stat. 3866; amended Pub. L. 115–435, title I, §101(c), Jan. 14, 2019, 132 Stat. 5533.)
Prior Provisions
A prior section 306, added Pub. L. 103–62, §3, Aug. 3, 1993, 107 Stat. 286; amended Pub. L. 106–65, div. A, title IX, §902, Oct. 5, 1999, 113 Stat. 717; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, §604(b), Dec. 20, 2006, 120 Stat. 3241, related to strategic plans, prior to repeal by Pub. L. 111–352, §2, Jan. 4, 2011, 124 Stat. 3866.
2019—Subsec. (a)(7). Pub. L. 115–435, §101(c)(1), substituted semicolon for "; and" at end.
Subsec. (a)(8). Pub. L. 115–435, §101(c)(2), inserted ", and citations to relevant provisions of the plans required under section 312; and" after "to be conducted" and struck out period at end.
Subsec. (a)(9). Pub. L. 115–435, §101(c)(3), added par. (9).
Pub. L. 115–435, title IV, §403, Jan. 14, 2019, 132 Stat. 5557, provided that: "Except as otherwise provided, this Act [see Short Title of 2019 Amendment note set out under section 101 of this title], and the amendments made by this Act, shall take effect on the date that is 180 days after the date of the enactment of this Act [Jan. 14, 2019]."
Construction of 2019 Amendment
Pub. L. 115–435, title IV, §401, Jan. 14, 2019, 132 Stat. 5556, provided that: "Nothing in this Act [see Short Title of 2019 Amendment note set out under section 101 of this title], or the amendments made by this Act, may be construed—
"(1) to require the disclosure of information or records that are exempt from disclosure under section 552 of title 5, United States Code (commonly known as the 'Freedom of Information Act');
"(2) to create or expand an exemption from disclosure under such section;
"(3) to override, limit, or otherwise affect intellectual property rights, including rights under titles 17 and 35, United States Code;
"(4) to affect the authority of a Federal agency regarding the use, disclosure, or licensing of—
"(A) confidential business information that could be withheld under section 552(b)(4) of title 5, United States Code; or
"(B) data assets restricted from disclosure under a contract or other binding, written agreement; or
"(5) to affect the independence, responsibilities, or work products of an Inspector General of any agency."
[For definition of "agency" as used in section 401 of Pub. L. 115–435, set out above, see section 101(e)(4)(A) of Pub. L. 115–435, set out as a note under section 311 of this title.]
GAO Report
Pub. L. 115–435, title I, §101(d), Jan. 14, 2019, 132 Stat. 5533, provided that: "Not later than 2 years after the date on which each strategic plan required under section 306(a) of title 5, United States Code, is published, the Comptroller General of the United States shall submit to Congress a report that—
"(1) summarizes agency findings and highlights trends in the assessment conducted pursuant to subsection (a)(9) of section 306 of title 5, United States Code, as added by subsection (c); and
"(2) if appropriate, recommends actions to further improve agency capacity to use evaluation techniques and data to support evaluation efforts."
[For definitions of "agency" and "evaluation" as used in section 101(d) of Pub. L. 115–435, set out above, see section 101(e)(4) of Pub. L. 115–435, set out as a note under section 311 of this title.]
Biennial OMB Report
Pub. L. 115–435, title II, §202(g)(2), Jan. 14, 2019, 132 Stat. 5544, provided that: "Not later than 1 year after [the] date of the enactment of this Act [Jan. 14, 2019], and biennially thereafter, the Director of the Office of Management and Budget shall electronically publish a report on agency performance and compliance with this Act [see Short Title of 2019 Amendment note set out under section 101 of this title] and the amendments made by this Act."
[For definition of "agency" as used in section 202(g)(2) of Pub. L. 115–435, set out above, see section 101(e)(4)(A) of Pub. L. 115–435, set out as a note under section 311 of this title.]
Use of Existing Resources
Pub. L. 115–435, title IV, §402, Jan. 14, 2019, 132 Stat. 5557, provided that: "To the extent practicable, the head of each agency shall use existing procedures and systems to carry out agency requirements and shall select existing employees for appointments under this Act [see Short Title of 2019 Amendment note set out under section 101 of this title] and the amendments made by this Act."
§311. Definitions
In this subchapter:
(1) Agency.—The term "agency" means an agency referred to under section 901(b) of title 31.
(2) Director.—The term "Director" means the Director of the Office of Management and Budget.
(3) Evaluation.—The term "evaluation" means an assessment using systematic data collection and analysis of one or more programs, policies, and organizations intended to assess their effectiveness and efficiency.
(4) Evidence.—The term "evidence" has the meaning given that term in section 3561 of title 44.
(5) State.—The term "State" means each of the several States, the District of Columbia, each territory or possession of the United States, and each federally recognized governing body of any Indian Tribe, band, nation, pueblo, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
(6) Statistical activities; statistical agency or unit; statistical purpose.—The terms "statistical activities", "statistical agency or unit", and "statistical purpose" have the meanings given those terms in section 3561 of title 44.
(Added Pub. L. 115–435, title I, §101(a)(2), Jan. 14, 2019, 132 Stat. 5530.)
Section effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.
Evaluation and Personnel Standards
Pub. L. 115–435, title I, §101(e), Jan. 14, 2019, 132 Stat. 5534, provided that:
"(1) Requirement.—Not later than 1 year after the date of enactment of this Act [Jan. 14, 2019], the Director of the Office of Management and Budget, in consultation with any interagency council relating to evaluation, shall—
"(A) issue guidance for program evaluation for agencies consistent with widely accepted standards for evaluation; and
"(B) identify best practices for evaluation that would improve Federal program evaluation.
"(2) Guidance.—Not later than 90 days after the date on which the guidance under paragraph (1) is issued, the head of each agency shall oversee the implementation of such guidance.
"(3) OPM guidance.—Not later than 180 days after the date on which the guidance under paragraph (1) is issued, the Director of the Office of Personnel Management, in consultation with the Director of the Office of Management and Budget, shall—
"(A) identify key skills and competencies needed for program evaluation in an agency;
"(B) establish a new occupational series, or update and improve an existing occupational series, for program evaluation within an agency; and
"(C) establish a new career path for program evaluation within an agency.
"(4) Definitions.—In this Act [see Short Title of 2019 Amendment note set out under section 101 of this title]:
"(A) Agency.—Except as otherwise provided, the term 'agency' has the meaning given the term 'Executive agency' under section 105 [probably means section 105 of title 5, United States Code].
"(B) Evaluation.—The term 'evaluation' has the meaning given that term in section 311 of title 5, United States Code, as added by subsection (a)."
§312. Agency evidence-building plan
(a) Requirement.—The head of each agency shall include in the strategic plan required under section 306 a systematic plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of the agency. Such plan shall contain the following:
(1) A list of policy-relevant questions for which the agency intends to develop evidence to support policymaking.
(2) A list of data the agency intends to collect, use, or acquire to facilitate the use of evidence in policymaking.
(3) A list of methods and analytical approaches that may be used to develop evidence to support policymaking.
(4) A list of any challenges to developing evidence to support policymaking, including any statutory or other restrictions to accessing relevant data.
(5) A description of the steps the agency will take to accomplish paragraphs (1) and (2).
(6) Any other information as required by guidance issued by the Director.
(b) Evaluation Plan.—The head of each agency shall issue in conjunction with the performance plan required under section 1115(b) of title 31, an evaluation plan describing activities the agency plans to conduct pursuant to subsection (a) of this section during the fiscal year following the year in which the performance plan is submitted. Such plan shall—
(1) describe key questions for each significant evaluation study that the agency plans to begin in the next fiscal year;
(2) describe key information collections or acquisitions the agency plans to begin in the next fiscal year; and
(3) any 1 other information included in guidance issued by the Director under subsection (a)(6).
(c) Consultation.—In developing the plan required under subsection (a), the head of an agency shall consult with stakeholders, including the public, agencies, State and local governments, and representatives of non-governmental researchers.
1 So in original.
§313. Evaluation Officers
(a) Establishment.—The head of each agency shall designate a senior employee of the agency as the Evaluation Officer of the agency.
(b) Qualifications.—The Evaluation Officer of an agency shall be appointed or designated without regard to political affiliation and based on demonstrated expertise in evaluation methodology and practices and appropriate expertise to the disciplines of the agency.
(c) Coordination.—The Evaluation Officer of an agency shall, to the extent practicable, coordinate activities with agency officials necessary to carry out the functions required under subsection (d).
(d) Functions.—The Evaluation Officer of each agency shall—
(1) continually assess the coverage, quality, methods, consistency, effectiveness, independence, and balance of the portfolio of evaluations, policy research, and ongoing evaluation activities of the agency;
(2) assess agency capacity to support the development and use of evaluation;
(3) establish and implement an agency evaluation policy; and
(4) coordinate, develop, and implement the plans required under section 312.
§314. Statistical expertise
(a) In General.—The head of each agency shall designate the head of any statistical agency or unit within the agency, or in the case of an agency that does not have a statistical agency or unit, any senior agency official with appropriate expertise, as a statistical official to advise on statistical policy, techniques, and procedures. Agency officials engaged in statistical activities may consult with any such statistical official as necessary.
(b) Membership on Interagency Council on Statistical Policy.—Each statistical official designated under subsection (a) shall serve as a member of the Interagency Council on Statistical Policy established under section 3504(e)(8) of title 44.
§315. Advisory Committee on Data for Evidence Building
(a) Establishment.—The Director, or the head of an agency designated by the Director, shall establish an Advisory Committee on Data for Evidence Building (in this section referred to as the "Advisory Committee") to review, analyze, and make recommendations on how to promote the use of Federal data for evidence building.
(b) Membership.—The members of the Advisory Committee shall consist of the Chief Statistician of the United States, who shall serve as the Chair of the Advisory Committee, and other members appointed by the Director as follows:
(1) One member who is an agency Chief Information Officer.
(2) One member who is an agency Chief Privacy Officer.
(3) One member who is an agency Chief Performance Officer.
(4) Three members who are agency Chief Data Officers.
(5) Three members who are agency Evaluation Officers.
(6) Three members who are members of the Interagency Council for Statistical Policy 1 established under section 3504(e)(8) of title 44.
(7) At least 10 members who are representatives of State and local governments and nongovernmental stakeholders with expertise in government data policy, privacy, technology, transparency policy, evaluation and research methodologies, and other relevant subjects, of whom—
(A) at least one shall have expertise in transparency policy;
(B) at least one shall have expertise in privacy policy;
(C) at least one shall have expertise in statistical data use;
(D) at least one shall have expertise in information management;
(E) at least one shall have expertise in information technology; and
(F) at least one shall be from the research and evaluation community.
(c) Term of Service.—
(1) In general.—Each member of the Advisory Committee shall serve for a term of 2 years.
(2) Vacancy.—Any member appointed to fill a vacancy occurring before the expiration of the term for which the member's predecessor was appointed shall be appointed only for the remainder of that term. A vacancy in the Commission shall be filled in the manner in which the original appointment was made.
(d) Compensation.—Members of the Advisory Committee shall serve without compensation.
(e) Duties.—The Advisory Committee shall—
(1) assist the Director in carrying out the duties of the Director under part D of subchapter III of chapter 35 of title 44;
(2) evaluate and provide recommendations to the Director on how to facilitate data sharing, enable data linkage, and develop privacy enhancing techniques; and
(3) review the coordination of data sharing or availability for evidence building across all agencies.
(f) Reports.—The Advisory Committee shall submit to the Director and make publicly available an annual report on the activities and findings of the Advisory Committee.
(g) Termination.—The Advisory Committee shall terminate not later than two years after the date of the first meeting.
1 So in original. Probably should be "Interagency Council on Statistical Policy".
CHAPTER 5—ADMINISTRATIVE PROCEDURE
Administrative practice; general provisions.
Advertising practice; restrictions.
Administrative practice; Reserves and National Guardsmen.
Witness fees and allowances.
Costs and fees of parties.
SUBCHAPTER II—ADMINISTRATIVE PROCEDURE
Public information; agency rules, opinions, orders, records, and proceedings.
Records about individuals.1
552b.
Open meetings.
Rule making.
Adjudications.
Ancillary matters.
Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.
Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record.
Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses.
Effect on other laws; effect of subsequent statute.
SUBCHAPTER III—NEGOTIATED RULEMAKING PROCEDURE
Determination of need for negotiated rulemaking committee.
Publication of notice; applications for membership on committees.
Establishment of committee.
Conduct of committee activity.
Termination of committee.
Services, facilities, and payment of committee member expenses.
Encouraging negotiated rulemaking.
Judicial review.
Authorization of appropriations.
SUBCHAPTER IV—ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS
General authority.
Neutrals.
Authorization of arbitration.
Enforcement of arbitration agreements.
Arbitrators.
Authority of the arbitrator.
Arbitration proceedings.
Arbitration awards.
[582.
Repealed.]
Support services.
SUBCHAPTER V—ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Administrative Conference of the United States.
Powers and duties of the Conference.
Organization of the Conference.
2004—Pub. L. 108–401, §2(b)(2), Oct. 30, 2004, 118 Stat. 2255, substituted "Purposes" for "Purpose" in item 591.
1996—Pub. L. 104–320, §§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, §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, §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, §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, §2(b), Oct. 14, 1986, 100 Stat. 1198, substituted "Authorization of appropriations" for "Appropriations" in item 576.
1985—Pub. L. 99–80, §6, Aug. 5, 1985, 99 Stat. 186, revived item 504 and repealed Pub. L. 96–481, title II, §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, §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, §3(b), Sept. 13, 1976, 90 Stat. 1246, added item 552b.
1974—Pub. L. 93–579, §4, Dec. 31, 1974, 88 Stat. 1905, added item 552a.
1967—Pub. L. 90–83, §1(1)(B), Sept. 11, 1967, 81 Stat. 195, added item 500.
Pub. L. 90–23, §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.
1 So in original. Does not conform to section catchline.
§500. Administrative practice; general provisions
(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.
(Added Pub. L. 90–83, §1(1)(A), Sept. 11, 1967, 81 Stat. 195; amended Pub. L. 106–113, div. B, §1000(a)(9) [title IV, §4732(b)(2)], Nov. 29, 1999, 113 Stat. 1536, 1501A-583.)
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, §3, 79 Stat. 1281.
500(b)–(e) 5 App.: 1012. Nov. 8, 1965, Pub. L. 89–332, §1, 79 Stat. 1281.
500(f) 5 App.: 1013. Nov. 8, 1965, Pub. L. 89–332, §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.
1999—Subsec. (e). Pub. L. 106–113 substituted "United States Patent and Trademark Office" for "Patent Office".
Amendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, §4731] of Pub. L. 106–113, set out as a note under section 1 of Title 35, Patents.
§501. Advertising practice; restrictions
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.
5 U.S.C. 101. Apr. 27, 1916, ch. 89, §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.
§502. Administrative practice; Reserves and National Guardsmen
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.
5 U.S.C. 30r(c) (2d sentence). Aug. 10, 1956, ch. 1041, §29(c) (2d sentence), 70A Stat. 632.
§503. Witness fees and allowances
(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.
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.
§504. Costs and fees of parties
(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 7103 of title 41 before an agency board of contract appeals as provided in section 7105 of title 41, (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.
(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)(1) Not later than March 31 of the first fiscal year beginning after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, and every fiscal year thereafter, the Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for Advocacy of the Small Business Administration, shall submit to Congress and make publicly available online a report on the amount of fees and other expenses awarded during the preceding fiscal year under this section.
(2) Each report under paragraph (1) shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information that may aid Congress in evaluating the scope and impact of such awards.
(3)(A) Each report under paragraph (1) shall account for all payments of fees and other expenses awarded under this section that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to a nondisclosure provision.
(B) The disclosure of fees and other expenses required under subparagraph (A) shall not affect any other information that is subject to a nondisclosure provision in a settlement agreement.
(f) As soon as practicable, and in any event not later than the date on which the first report under subsection (e)(1) is required to be submitted, the Chairman of the Administrative Conference of the United States shall create and maintain online a searchable database containing, with respect to each award of fees and other expenses under this section made on or after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, the following information:
(1) The case name and number of the adversary adjudication, if available, hyperlinked to the case, if available.
(2) The name of the agency involved in the adversary adjudication.
(3) A description of the claims in the adversary adjudication.
(4) The name of each party to whom the award was made as such party is identified in the order or other court document making the award.
(5) The amount of the award.
(6) The basis for the finding that the position of the agency concerned was not substantially justified.
(g) The online searchable database described in subsection (f) may not reveal any information the disclosure of which is prohibited by law or a court order.
(h) The head of each agency shall provide to the Chairman of the Administrative Conference of the United States in a timely manner all information requested by the Chairman to comply with the requirements of subsections (e), (f), and (g).
(i) 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.
(Added Pub. L. 96–481, title II, §203(a)(1), (c), Oct. 21, 1980, 94 Stat. 2325, 2327; revived and amended Pub. L. 99–80, §§1, 6, Aug. 5, 1985, 99 Stat. 183, 186; Pub. L. 99–509, title VI, §6103(c), Oct. 21, 1986, 100 Stat. 1948; Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–647, title VI, §6239(b), Nov. 10, 1988, 102 Stat. 3746; Pub. L. 103–141, §4(b), Nov. 16, 1993, 107 Stat. 1489; Pub. L. 104–121, title II, §231, Mar. 29, 1996, 110 Stat. 862; Pub. L. 111–350, §5(a)(1), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 116–9, title IV, §4201(a)(1), Mar. 12, 2019, 133 Stat. 762.)
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 (§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.
The date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, referred to in subsecs. (e)(1) and (f), is the date of enactment of Pub. L. 116–9, which was approved Mar. 12, 2019.
Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (i), is classified to section 7430 of Title 26, Internal Revenue Code.
2019—Subsec. (c)(1). Pub. L. 116–9, §4201(a)(1)(A), struck out ", United States Code" after "title 28".
Subsec. (e). Pub. L. 116–9, §4201(a)(1)(C), added subsec. (e) and struck out former subsec. (e) which read as follows: "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."
Subsecs. (f) to (i). Pub. L. 116–9, §4201(a)(1)(B), (C), added subsecs. (f) to (h) and redesignated former subsec. (f) as (i).
2011—Subsec. (b)(1)(C)(ii). Pub. L. 111–350 substituted "section 7103 of title 41" for "section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)" and "section 7105 of title 41" for "section 8 of that Act (41 U.S.C. 607)".
1996—Subsec. (a)(4). Pub. L. 104–121, §231(a), added par. (4).
Subsec. (b)(1)(A)(ii). Pub. L. 104–121, §231(b)(1), substituted "$125" for "$75".
Subsec. (b)(1)(B). Pub. L. 104–121, §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, §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, §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, §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, §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, §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, §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, §1(c)(3), substituted "; and" for the period at end of subpar. (D), and added subpar. (E).
Subsec. (c)(2). Pub. L. 99–80, §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, §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, §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.
Pub. L. 104–121, title II, §233, Mar. 29, 1996, 110 Stat. 864, 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]."
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.
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.
Pub. L. 99–80, §7, Aug. 5, 1985, 99 Stat. 186, 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."
Pub. L. 96–481, title II, §208, Oct. 21, 1980, 94 Stat. 2330, as amended by Pub. L. 99–80, §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."
Pub. L. 96–481, title II, §203(c), Oct. 21, 1980, 94 Stat. 2327, 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, §6(b)(1), Aug. 5, 1985, 99 Stat. 186.
Pub. L. 96–481, title II, §201, Oct. 21, 1980, 94 Stat. 2325, 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.
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.
Prohibition on Use of Energy and Water Development Appropriations To Pay Intervening Parties in Regulatory or Adjudicatory Proceedings
Pub. L. 102–377, title V, §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
"(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
Pub. L. 96–481, title II, §202, Oct. 21, 1980, 94 Stat. 2325, 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
Pub. L. 96–481, title II, §207, Oct. 21, 1980, 94 Stat. 2330, 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, §4, Aug. 5, 1985, 99 Stat. 186.
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.
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; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641(b)(2), of title 50, appendix; 1
(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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381; Pub. L. 94–409, §4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 103–272, §5(a), July 5, 1994, 108 Stat. 1373; Pub. L. 111–350, §5(a)(2), Jan. 4, 2011, 124 Stat. 3841.)
(1) 5 U.S.C. 1001(a). June 11, 1946, ch. 324, §2(a), 60 Stat. 237.
Aug. 8, 1946, ch. 870, §302, 60 Stat. 918.
Aug. 10, 1946, ch. 951, §601, 60 Stat. 993.
Mar. 31, 1947, ch. 30, §6(a), 61 Stat. 37.
June 30, 1947, ch. 163, §210, 61 Stat. 201.
Mar. 30, 1948, ch. 161, §301, 62 Stat. 99.
(2)–(13) 5 U.S.C. 1001 (less (a)). June 11, 1946, ch. 324, §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 §111(a)(1) of the Act of Sept. 21, 1961, Pub. L. 87–256, 75 Stat. 538, since §111(c) of the Act provides that a reference in other Acts to a provision of law repealed by §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.
Sections 1884 and 1891–1902 of title 50, appendix, referred to in par. (1)(H), were a part of the various Housing and Rent Acts which were classified to section 1881 et seq. of the former Appendix to Title 50, War and National Defense, and had been repealed or omitted from the Code as executed prior to the elimination of the Appendix to Title 50. See Elimination of Title 50, Appendix note preceding section 1 of Title 50. Section 1641 of title 50, appendix, referred to in par. (1)(H), was repealed by Pub. L. 87–256, §111(a)(1), Sept. 21, 1961, 75 Stat. 538. See Historical and Revision Note above.
Section 551 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2242 of Title 7, Agriculture.
2011—Par. (1)(H). Pub. L. 111–350 struck out "chapter 2 of title 41;" after "title 12;".
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).
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, §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]."
Executive Order No. 13892
Ex. Ord. No. 13892, Oct. 9, 2019, 84 F.R. 55239, which related to civil administrative enforcement and adjudication, was revoked by Ex. Ord. No. 13992, §2, Jan. 20, 2021, 86 F.R. 7049, set out below.
Ex. Ord. No. 13979, Jan. 18, 2021, 86 F.R. 6813, which required senior appointee participation in agency rulemaking, was revoked by Ex. Ord. No. 14018, §1, Feb. 24, 2021, 86 F.R. 11855.
Ex. Ord. No. 13992. Revocation of Certain Executive Orders Concerning Federal Regulation
Ex. Ord. No. 13992, Jan. 20, 2021, 86 F.R. 7049, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered that:
Section 1. Policy. It is the policy of my Administration to use available tools to confront the urgent challenges facing the Nation, including the coronavirus disease 2019 (COVID–19) pandemic, economic recovery, racial justice, and climate change. To tackle these challenges effectively, executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Government's ability to confront these problems, and empowers agencies to use appropriate regulatory tools to achieve these goals.
Sec. 2. Revocation of Orders. Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs) [former 5 U.S.C. 601 note], Executive Order 13777 of February 24, 2017 (Enforcing the Regulatory Reform Agenda) [former 5 U.S.C. 601 note], Executive Order 13875 of June 14, 2019 (Evaluating and Improving the Utility of Federal Advisory Committees) [former 5 U.S.C. App. note], Executive Order 13891 of October 9, 2019 (Promoting the Rule of Law Through Improved Agency Guidance Documents) [former 5 U.S.C. 601 note], Executive Order 13892 of October 9, 2019 (Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication) [formerly set out above], and Executive Order 13893 of October 10, 2019 (Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO) [former 5 U.S.C. 601 note], are hereby revoked.
Sec. 3. Implementation. The Director of the Office of Management and Budget and the heads of agencies shall promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the Executive Orders identified in section 2 of this order, as appropriate and consistent with applicable law, including the Administrative Procedure Act, 5 U.S.C. 551 et seq. If in any case such rescission cannot be finalized immediately, the Director and the heads of agencies shall promptly take steps to provide all available exemptions authorized by any such orders, rules, regulations, guidelines, or policies, as appropriate and consistent with applicable law. In addition, any personnel positions, committees, task forces, or other entities established pursuant to the Executive Orders identified in section 2 of this order, including the regulatory reform officer positions and regulatory reform task forces established by sections 2 and 3 of Executive Order 13777 [former 5 U.S.C. 601 note], shall be abolished, as appropriate and consistent with applicable law.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
1 See References in Text note below.
§552. Public information; agency rules, opinions, orders, records, and proceedings
(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 in an electronic format—
(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—
(i) that have been released to any person under paragraph (3); and
(ii)(I) that 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; or
(II) that have been requested 3 or more times; 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 in an electronic format 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, and except as provided in subparagraph (E), 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.
(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) 1 shall not make any record available under this paragraph to—
(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or
(ii) a representative of a government entity described in clause (i).
(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.
In this clause, the term "a representative of the news media" means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term "news" means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of "news") who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.
(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.
(viii)(I) Except as provided in subclause (II), an agency shall not assess any search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees) under this subparagraph if the agency has failed to comply with any time limit under paragraph (6).
(II)(aa) If an agency has determined that unusual circumstances apply (as the term is defined in paragraph (6)(B)) and the agency provided a timely written notice to the requester in accordance with paragraph (6)(B), a failure described in subclause (I) is excused for an additional 10 days. If the agency fails to comply with the extended time limit, the agency may not assess any search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees).
(bb) If an agency has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, an agency may charge search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees) if the agency has provided a timely written notice to the requester in accordance with paragraph (6)(B) and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with paragraph (6)(B)(ii).
(cc) If a court has determined that exceptional circumstances exist (as that term is defined in paragraph (6)(C)), a failure described in subclause (I) shall be excused for the length of time provided by the court order.
(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, §402(2), Nov. 8, 1984, 98 Stat. 3357.]
(E)(i) 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.
(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either—
(I) a judicial order, or an enforceable written agreement or consent decree; or
(II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.
(F)(i) 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.
(ii) The Attorney General shall—
(I) notify the Special Counsel of each civil action described under the first sentence of clause (i); and
(II) annually submit a report to Congress on the number of such civil actions in the preceding year.
(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i).
(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—
(I) such determination and the reasons therefor;
(II) the right of such person to seek assistance from the FOIA Public Liaison of the agency; and
(III) in the case of an adverse determination—
(aa) the right of such person to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; and
(bb) the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; 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.
The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests under this section. The 20-day period shall not be tolled by the agency except—
(I) that the agency may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester under this section; or
(II) if necessary to clarify with the requester issues regarding fee assessment. In either case, the agency's receipt of the requester's response to the agency's request for information or clarification ends the tolling period.
(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. To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services. 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.
(7) Each agency shall—
(A) establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request; and
(B) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including—
(i) the date on which the agency originally received the request; and
(ii) an estimated date on which the agency will complete action on the request.
(8)(A) An agency shall—
(i) withhold information under this section only if—
(I) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b); or
(II) disclosure is prohibited by law; and
(ii)(I) consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and
(II) take reasonable steps necessary to segregate and release nonexempt information; and
(B) Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3).
(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), if that statute—
(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.
(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 that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
(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, and the exemption under which the deletion is made, 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, and the exemption under which the deletion is made, 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 and to the Director of the Office of Government Information Services 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), the number of occasions on which each statute was relied upon, 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 and average 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, based on the date on which the requests were received by the agency;
(F) the average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests;
(G) based on the number of business days that have elapsed since each request was originally received by the agency—
(i) the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days;
(ii) the number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days;
(iii) the number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days; and
(iv) the number of requests for records to which the agency has responded with a determination within a period greater than 400 days;
(H) the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information;
(I) the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal;
(J) data on the 10 active requests with the earliest filing dates pending at each agency, including the amount of time that has elapsed since each request was originally received by the agency;
(K) data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally received by the agency;
(L) the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days;
(M) the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations;
(N) the total amount of fees collected by the agency for processing requests;
(O) 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;
(P) the number of times the agency denied a request for records under subsection (c); and
(Q) the number of records that were made available for public inspection in an electronic format under subsection (a)(2).
(2) Information in each report submitted under paragraph (1) shall be expressed in terms of each principal component of the agency and for the agency overall.
(3) Each agency shall make each such report available for public inspection in an electronic format. In addition, each agency shall make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which shall be made available—
(A) without charge, license, or registration requirement;
(B) in an aggregated, searchable format; and
(C) in a format that may be downloaded in bulk.
(4) 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 Oversight and Government Reform of the House of Representatives and the Chairman and ranking minority member of the Committees on Homeland Security and Governmental Affairs and the Judiciary of the Senate, no later than March 1 of the year in which each such report is issued, that such reports are available by electronic means.
(5) 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.
(6)(A) The Attorney General of the United States shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and the President a report on or before March 1 of each calendar year, which shall include for the prior calendar year—
(i) a listing of the number of cases arising under this section;
(ii) a listing of—
(I) each subsection, and any exemption, if applicable, involved in each case arising under this section;
(II) the disposition of each case arising under this section; and
(III) the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4); and
(iii) a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.
(B) The Attorney General of the United States shall make—
(i) each report submitted under subparagraph (A) available for public inspection in an electronic format; and
(ii) the raw statistical data used in each report submitted under subparagraph (A) available for public inspection in an electronic format, which shall be made available—
(I) without charge, license, or registration requirement;
(II) in an aggregated, searchable format; and
(III) in a format that may be downloaded in bulk.
(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—
(A) 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; and
(B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management.
(g) The head of each agency shall prepare and make available for public inspection in an electronic format, 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.
(h)(1) There is established the Office of Government Information Services within the National Archives and Records Administration. The head of the Office shall be the Director of the Office of Government Information Services.
(2) The Office of Government Information Services shall—
(A) review policies and procedures of administrative agencies under this section;
(B) review compliance with this section by administrative agencies; and
(C) identify procedures and methods for improving compliance under this section.
(3) The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a nonexclusive alternative to litigation and may issue advisory opinions at the discretion of the Office or upon request of any party to a dispute.
(4)(A) Not less frequently than annually, the Director of the Office of Government Information Services shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and the President—
(i) a report on the findings of the information reviewed and identified under paragraph (2);
(ii) a summary of the activities of the Office of Government Information Services under paragraph (3), including—
(I) any advisory opinions issued; and
(II) the number of times each agency engaged in dispute resolution with the assistance of the Office of Government Information Services or the FOIA Public Liaison; and
(iii) legislative and regulatory recommendations, if any, to improve the administration of this section.
(B) The Director of the Office of Government Information Services shall make each report submitted under subparagraph (A) available for public inspection in an electronic format.
(C) The Director of the Office of Government Information Services shall not be required to obtain the prior approval, comment, or review of any officer or agency of the United States, including the Department of Justice, the Archivist of the United States, or the Office of Management and Budget before submitting to Congress, or any committee or subcommittee thereof, any reports, recommendations, testimony, or comments, if such submissions include a statement indicating that the views expressed therein are those of the Director and do not necessarily represent the views of the President.
(5) The Director of the Office of Government Information Services may directly submit additional information to Congress and the President as the Director determines to be appropriate.
(6) Not less frequently than annually, the Office of Government Information Services shall conduct a meeting that is open to the public on the review and reports by the Office and shall allow interested persons to appear and present oral or written statements at the meeting.
(i) The Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits.
(j)(1) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level).
(2) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency—
(A) have agency-wide responsibility for efficient and appropriate compliance with this section;
(B) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency's performance in implementing this section;
(C) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section;
(D) review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency's performance in implementing this section;
(E) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency's handbook issued under subsection (g), and the agency's annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply;
(F) offer training to agency staff regarding their responsibilities under this section;
(G) serve as the primary agency liaison with the Office of Government Information Services and the Office of Information Policy; and
(H) designate 1 or more FOIA Public Liaisons.
(3) The Chief FOIA Officer of each agency shall review, not less frequently than annually, all aspects of the administration of this section by the agency to ensure compliance with the requirements of this section, including—
(A) agency regulations;
(B) disclosure of records required under paragraphs (2) and (8) of subsection (a);
(C) assessment of fees and determination of eligibility for fee waivers;
(D) the timely processing of requests for information under this section;
(E) the use of exemptions under subsection (b); and
(F) dispute resolution services with the assistance of the Office of Government Information Services or the FOIA Public Liaison.
(k)(1) There is established in the executive branch the Chief FOIA Officers Council (referred to in this subsection as the "Council").
(2) The Council shall be comprised of the following members:
(A) The Deputy Director for Management of the Office of Management and Budget.
(B) The Director of the Office of Information Policy at the Department of Justice.
(C) The Director of the Office of Government Information Services.
(D) The Chief FOIA Officer of each agency.
(E) Any other officer or employee of the United States as designated by the Co-Chairs.
(3) The Director of the Office of Information Policy at the Department of Justice and the Director of the Office of Government Information Services shall be the Co-Chairs of the Council.
(4) The Administrator of General Services shall provide administrative and other support for the Council.
(5)(A) The duties of the Council shall include the following:
(i) Develop recommendations for increasing compliance and efficiency under this section.
(ii) Disseminate information about agency experiences, ideas, best practices, and innovative approaches related to this section.
(iii) Identify, develop, and coordinate initiatives to increase transparency and compliance with this section.
(iv) Promote the development and use of common performance measures for agency compliance with this section.
(B) In performing the duties described in subparagraph (A), the Council shall consult on a regular basis with members of the public who make requests under this section.
(6)(A) The Council shall meet regularly and such meetings shall be open to the public unless the Council determines to close the meeting for reasons of national security or to discuss information exempt under subsection (b).
(B) Not less frequently than annually, the Council shall hold a meeting that shall be open to the public and permit interested persons to appear and present oral and written statements to the Council.
(C) Not later than 10 business days before a meeting of the Council, notice of such meeting shall be published in the Federal Register.
(D) Except as provided in subsection (b), the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents that were made available to or prepared for or by the Council shall be made publicly available.
(E) Detailed minutes of each meeting of the Council shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the Council. The minutes shall be redacted as necessary and made publicly available.
(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.
(m)(1) The Director of the Office of Management and Budget, in consultation with the Attorney General, shall ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records under subsection (a) to any agency from a single website. The portal may include any additional tools the Director of the Office of Management and Budget finds will improve the implementation of this section.
(2) This subsection shall not be construed to alter the power of any other agency to create or maintain an independent online portal for the submission of a request for records under this section. The Director of the Office of Management and Budget shall establish standards for interoperability between the portal required under paragraph (1) and other request processing software used by agencies subject to this section.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90–23, §1, June 5, 1967, 81 Stat. 54; Pub. L. 93–502, §§1–3, Nov. 21, 1974, 88 Stat. 1561–1564; Pub. L. 94–409, §5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95–454, title IX, §906(a)(10), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98–620, title IV, §402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99–570, title I, §§1802, 1803, Oct. 27, 1986, 100 Stat. 3207–48, 3207-49; Pub. L. 104–231, §§3–11, Oct. 2, 1996, 110 Stat. 3049–3054; Pub. L. 107–306, title III, §312, Nov. 27, 2002, 116 Stat. 2390; Pub. L. 110–175, §§3, 4(a), 5, 6(a)(1), (b)(1), 7(a), 8–10(a), 12, Dec. 31, 2007, 121 Stat. 2525–2530; Pub. L. 111–83, title V, §564(b), Oct. 28, 2009, 123 Stat. 2184; Pub. L. 114–185, §2, June 30, 2016, 130 Stat. 538.)
1966 Act
5 U.S.C. 1002. June 11, 1946, ch. 324, §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.
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.
The National Security Act of 1947, referred to in subsec. (a)(3)(E), is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§3001 et seq.) of Title 50. Section 3 of the Act is now classified to section 3003 of Title 50. For complete classification of this Act to the Code, see Tables.
The date of enactment of the OPEN FOIA Act of 2009, referred to in subsec. (b)(3)(B), is the date of enactment of Pub. L. 111–83, which was approved Oct. 28, 2009.
2016—Subsec. (a)(2). Pub. L. 114–185, §2(1)(A)(i), in introductory provisions, substituted "for public inspection in an electronic format" for "for public inspection and copying".
Pub. L. 114–185, §2(1)(A)(iii), in concluding provisions, substituted "public inspection in an electronic format current" for "public inspection and copying current".
Subsec. (a)(2)(D). Pub. L. 114–185, §2(1)(A)(ii), added subpar. (D) and struck out former subpar. (D) which read as follows: "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".
Subsec. (a)(4)(A)(viii). Pub. L. 114–185, §2(1)(B), added cl. (viii) and struck out former cl. (viii) which read as follows: "An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request."
Subsec. (a)(6)(A)(i). Pub. L. 114–185, §2(1)(C)(i), substituted "making such request of—" for "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" and added subcls. (I) to (III).
Subsec. (a)(6)(B)(ii). Pub. L. 114–185, §2(1)(C)(ii), substituted "the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services." for "the agency."
Subsec. (a)(8). Pub. L. 114–185, §2(1)(D), added par. (8).
Subsec. (b)(5). Pub. L. 114–185, §2(2), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "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;".
Subsec. (e)(1). Pub. L. 114–185, §2(3)(A)(i), in introductory provisions, inserted "and to the Director of the Office of Government Information Services" after "United States".
Subsec. (e)(1)(P), (Q). Pub. L. 114–185, §2(3)(A)(ii)–(iv), added subpars. (P) and (Q).
Subsec. (e)(3). Pub. L. 114–185, §2(3)(B), added par. (3) and struck out former par. (3) which read as follows: "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. In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request."
Subsec. (e)(4). Pub. L. 114–185, §2(3)(C), substituted "Oversight and Government Reform" for "Government Reform and Oversight" and "March" for "April" and inserted "Homeland Security and" before "Governmental Affairs".
Subsec. (e)(6). Pub. L. 114–185, §2(3)(D), added par. (6) and struck out former par. (6) which read as follows: "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."
Subsec. (g). Pub. L. 114–185, §2(4), in introductory provisions, substituted "available for public inspection in an electronic format" for "publicly available upon request".
Subsec. (h)(1). Pub. L. 114–185, §2(5)(A), inserted at end "The head of the Office shall be the Director of the Office of Government Information Services."
Subsec. (h)(2)(C). Pub. L. 114–185, §2(5)(B), added subpar. (C) and struck out former subpar. (C) which read as follows: "recommend policy changes to Congress and the President to improve the administration of this section."
Subsec. (h)(3). Pub. L. 114–185, §2(5)(C), added par. (3) and struck out former par. (3) which read as follows: "The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute."
Subsec. (h)(4) to (6). Pub. L. 114–185, §2(5)(D), added pars. (4) to (6).
Subsec. (j). Pub. L. 114–185, §2(6), added subsec. (j) and struck out former subsec. (j) which read as follows: "Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level)."
Subsec. (k). Pub. L. 114–185, §2(6), added subsec. (k) and struck out former subsec. (k) which related to authority and responsibilities of the Chief FOIA Officer.
Subsec. (m). Pub. L. 114–185, §2(7), added subsec. (m).
2009—Subsec. (b)(3). Pub. L. 111–83 added par. (3) and struck out former par. (3) which read as follows: "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;".
2007—Subsec. (a)(4)(A)(ii). Pub. L. 110–175, §3, inserted concluding provisions.
Subsec. (a)(4)(A)(viii). Pub. L. 110–175, §6(b)(1)(A), added cl. (viii).
Subsec. (a)(4)(E). Pub. L. 110–175, §4(a), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (a)(4)(F). Pub. L. 110–175, §5, designated existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(A). Pub. L. 110–175, §6(a)(1), inserted concluding provisions.
Subsec. (a)(6)(B)(ii). Pub. L. 110–175, §6(b)(1)(B), inserted after the first sentence "To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency."
Subsec. (a)(7). Pub. L. 110–175, §7(a), added par. (7).
Subsec. (b). Pub. L. 110–175, §12, in concluding provisions, inserted ", and the exemption under which the deletion is made," after "The amount of information deleted" in second sentence and after "the amount of the information deleted" in third sentence.
Subsec. (e)(1)(B)(ii). Pub. L. 110–175, §8(a)(1), inserted "the number of occasions on which each statute was relied upon," after "subsection (b)(3),".
Subsec. (e)(1)(C). Pub. L. 110–175, §8(a)(2), inserted "and average" after "median".
Subsec. (e)(1)(E). Pub. L. 110–175, §8(a)(3), inserted before semicolon ", based on the date on which the requests were received by the agency".
Subsec. (e)(1)(F) to (O). Pub. L. 110–175, §8(a)(4), (5), added subpars. (F) to (M) and redesignated former subpars. (F) and (G) as (N) and (O), respectively.
Subsec. (e)(2). Pub. L. 110–175, §8(b)(2), added par. (2). Former par. (2) redesignated (3).
Subsec. (e)(3). Pub. L. 110–175, §8(b)(1), (c), redesignated par. (2) as (3) and inserted at end "In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request." Former par. (3) redesignated (4).
Subsec. (e)(4) to (6). Pub. L. 110–175, §8(b)(1), redesignated pars. (3) to (5) as (4) to (6), respectively.
Subsec. (f)(2). Pub. L. 110–175, §9, added par. (2) and struck out former par. (2) which read as follows: " '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."
Subsecs. (h) to (l). Pub. L. 110–175, §10(a), added subsecs. (h) to (l).
2002—Subsec. (a)(3)(A). Pub. L. 107–306, §312(1), inserted "and except as provided in subparagraph (E)," after "of this subsection,".
Subsec. (a)(3)(E). Pub. L. 107–306, §312(2), added subpar. (E).
1996—Subsec. (a)(2). Pub. L. 104–231, §4(4), (5), in first sentence struck out "and" at end of subpar. (B) and inserted subpars. (D) and (E).
Pub. L. 104–231, §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, §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, §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, §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, §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, §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, §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, §8(b), substituted "20 days" for "ten days".
Subsec. (a)(6)(B). Pub. L. 104–231, §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, §7(c), designated existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(D). Pub. L. 104–231, §7(a), added subpar. (D).
Subsec. (a)(6)(E), (F). Pub. L. 104–231, §8(a), (c), added subpars. (E) and (F).
Subsec. (b). Pub. L. 104–231, §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, §10, amended subsec. (e) generally, revising and restating provisions relating to reports to Congress.
Subsec. (f). Pub. L. 104–231, §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, §11, added subsec. (g).
1986—Subsec. (a)(4)(A). Pub. L. 99–570, §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, §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, §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, §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, §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, §1(b)(2), added par. (4) and redesignated former par. (4) as (5).
Subsec. (a)(6). Pub. L. 93–502, §1(c), added par. (6).
Subsec. (b)(1). Pub. L. 93–502, §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, §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, §2(c), inserted provision relating to availability of segregable portion of records.
Subsecs. (d), (e). Pub. L. 93–502, §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).
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.
Pub. L. 114–185, §6, June 30, 2016, 130 Stat. 544, provided that: "This Act [amending this section and section 3102 of Title 44, Public Printing and Documents, and enacting provisions set out as notes under this section and section 101 of this title], and the amendments made by this Act, shall take effect on the date of enactment of this Act [June 30, 2016] and shall apply to any request for records under section 552 of title 5, United States Code, made after the date of enactment of this Act."
Pub. L. 110–175, §6(a)(2), Dec. 31, 2007, 121 Stat. 2526, provided that: "The amendment made by this subsection [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007]."
Pub. L. 110–175, §6(b)(2), Dec. 31, 2007, 121 Stat. 2526, provided that: "The amendment made by this subsection [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007] and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date."
Pub. L. 110–175, §7(b), Dec. 31, 2007, 121 Stat. 2527, provided that: "The amendment made by this section [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007] and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date."
Pub. L. 110–175, §10(b), Dec. 31, 2007, 121 Stat. 2530, provided that: "The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [Dec. 31, 2007]."
Pub. L. 104–231, §12, Oct. 2, 1996, 110 Stat. 3054, 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]."
Pub. L. 99–570, title I, §1804, Oct. 27, 1986, 100 Stat. 3207–50, 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."
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.
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.
Pub. L. 93–502, §4, Nov. 21, 1974, 88 Stat. 1564, 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]."
Pub. L. 90–23, §4, June 5, 1967, 81 Stat. 56, 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."
Pub. L. 104–231, §1, Oct. 2, 1996, 110 Stat. 3048, 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'."
Pub. L. 99–570, title I, §1801, Oct. 27, 1986, 100 Stat. 3207–48, provided that: "This subtitle [subtitle N (§§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'."
This section is popularly known as the "Freedom of Information Act".
Review and Issuance of Regulations
Pub. L. 114–185, §3, June 30, 2016, 130 Stat. 544, provided that:
"(a) In General.—Not later than 180 days after the date of enactment of this Act [June 30, 2016], the head of each agency (as defined in section 551 of title 5, United States Code) shall review the regulations of such agency and shall issue regulations on procedures for the disclosure of records under section 552 of title 5, United States Code, in accordance with the amendments made by section 2 [amending this section].
"(b) Requirements.—The regulations of each agency shall include procedures for engaging in dispute resolution through the FOIA Public Liaison and the Office of Government Information Services."
Treatment of Information in Catch a Serial Offender Program for Certain Purposes
Pub. L. 116–92, div. A, title V, §550, Dec. 20, 2019, 133 Stat. 1379, provided that:
"(a) Treatment Under FOIA.—Victim disclosures under the Catch a Serial Offender Program shall be withheld from public disclosure under paragraph (b)(3) of section 552 of title 5, United States Code (commonly referred to as the 'Freedom of Information Act').
"(b) Preservation of Restricted Report.—The transmittal or receipt in connection with the Catch a Serial Offender Program of a report on a sexual assault that is treated as a restricted report shall not operate to terminate its treatment or status as a restricted report."
Protected National Security Documents
Pub. L. 111–83, title V, §565, Oct. 28, 2009, 123 Stat. 2184, provided that:
"(a) Short Title.—This section may be cited as the 'Protected National Security Documents Act of 2009'.
"(b) Notwithstanding any other provision of the law to the contrary, no protected document, as defined in subsection (c), shall be subject to disclosure under section 552 of title 5, United States Code[,] or any proceeding under that section.
"(c) Definitions.—In this section:
"(1) Protected document.—The term 'protected document' means any record—
"(A) for which the Secretary of Defense has issued a certification, as described in subsection (d), stating that disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States; and
"(B) that is a photograph that—
"(i) was taken during the period beginning on September 11, 2001, through January 22, 2009; and
"(ii) relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.
"(2) Photograph.—The term 'photograph' encompasses all photographic images, whether originals or copies, including still photographs, negatives, digital images, films, video tapes, and motion pictures.
"(d) Certification.—
"(1) In general.—For any photograph described under subsection (c)(1), the Secretary of Defense shall issue a certification if the Secretary of Defense determines that disclosure of that photograph would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.
"(2) Certification expiration.—A certification and a renewal of a certification issued pursuant to subsection (d)(3) shall expire 3 years after the date on which the certification or renewal, [sic] is issued by the Secretary of Defense.
"(3) Certification renewal.—The Secretary of Defense may issue—
"(A) a renewal of a certification at any time; and
"(B) more than 1 renewal of a certification.
"(4) Notice to congress.—The Secretary of Defense shall provide Congress a timely notice of the Secretary's issuance of a certification and of a renewal of a certification.
"(e) Rule of Construction.—Nothing in this section shall be construed to preclude the voluntary disclosure of a protected document.
"(f) Effective Date.—This section shall take effect on the date of enactment of this Act [Oct. 28, 2009] and apply to any protected document."
Pub. L. 110–175, §2, Dec. 31, 2007, 121 Stat. 2524, provided that: "Congress finds that—
"(1) the Freedom of Information Act [probably means Pub. L. 89–487 which amended section 1002 of former Title 5, Executive Departments and Government Officers and Employees, see Historical and Revision notes above] was signed into law on July 4, 1966, because the American people believe that—
"(A) our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends upon the consent of the governed;
"(B) such consent is not meaningful unless it is informed consent; and
"(C) as Justice Black noted in his concurring opinion in Barr v. Matteo (360 U.S. 564 (1959)), 'The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.';
"(2) the American people firmly believe that our system of government must itself be governed by a presumption of openness;
"(3) the Freedom of Information Act establishes a 'strong presumption in favor of disclosure' as noted by the United States Supreme Court in United States Department of State v. Ray (502 U.S. 164 (1991)), a presumption that applies to all agencies governed by that Act;
"(4) 'disclosure, not secrecy, is the dominant objective of the Act,' as noted by the United States Supreme Court in Department of Air Force v. Rose (425 U.S. 352 (1976));
"(5) in practice, the Freedom of Information Act has not always lived up to the ideals of that Act; and
"(6) Congress should regularly review section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), in order to determine whether further changes and improvements are necessary to ensure that the Government remains open and accessible to the American people and is always based not upon the 'need to know' but upon the fundamental 'right to know'."
Limitation on Amounts Obligated or Expended From Claims and Judgment Fund
Pub. L. 110–175, §4(b), Dec. 31, 2007, 121 Stat. 2525, provided that: "Notwithstanding section 1304 of title 31, United States Code, no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay the costs resulting from fees assessed under section 552(a)(4)(E) of title 5, United States Code. Any such amounts shall be paid only from funds annually appropriated for any authorized purpose for the Federal agency against which a claim or judgment has been rendered."
Nondisclosure of Certain Products of Commercial Satellite Operations
Pub. L. 108–375, div. A, title IX, §914, Oct. 28, 2004, 118 Stat. 2029, provided that:
"(a) Mandatory Disclosure Requirements Inapplicable.—The requirements to make information available under section 552 of title 5, United States Code, shall not apply to land remote sensing information.
"(b) Land Remote Sensing Information Defined.—In this section, the term 'land remote sensing information'—
"(1) means any data that—
"(A) are collected by land remote sensing; and
"(B) are prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license issued pursuant to the Land Remote Sensing Policy Act of 1992 ([former] 15 U.S.C. 5601 et seq.) [now 51 U.S.C. 60101 et seq.]; and
"(2) includes any imagery and other product that is derived from such data and which is prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license described in paragraph (1)(B).
"(c) State or Local Government Disclosures.—Land remote sensing information provided by the head of a department or agency of the United States to a State, local, or tribal government may not be made available to the general public under any State, local, or tribal law relating to the disclosure of information or records.
"(d) Safeguarding Information.—The head of each department or agency of the United States having land remote sensing information within that department or agency or providing such information to a State, local, or tribal government shall take such actions, commensurate with the sensitivity of that information, as are necessary to protect that information from disclosure other than in accordance with this section and other applicable law.
"(e) Additional Definition.—In this section, the term 'land remote sensing' has the meaning given such term in section 3 of the Land Remote Sensing Policy Act of 1992 ([former] 15 U.S.C. 5602) [now 51 U.S.C. 60101].
"(f) Disclosure to Congress.—Nothing in this section shall be construed to authorize the withholding of information from the appropriate committees of Congress."
Disclosure of Arson, Explosive, or Firearm Records
Pub. L. 108–7, div. J, title VI, §644, Feb. 20, 2003, 117 Stat. 473, provided that: "No funds appropriated under this Act or any other Act with respect to any fiscal year shall be available to take any action based upon any provision of 5 U.S.C. 552 with respect to records collected or maintained pursuant to 18 U.S.C. 846(b), 923(g)(3) or 923(g)(7), or provided by Federal, State, local, or foreign law enforcement agencies in connection with arson or explosives incidents or the tracing of a firearm, except that such records may continue to be disclosed to the extent and in the manner that records so collected, maintained, or obtained have been disclosed under 5 U.S.C. 552 prior to the date of the enactment of this Act [Feb. 20, 2003]."
Disclosure of Information on Japanese Imperial Government
Pub. L. 106–567, title VIII, Dec. 27, 2000, 114 Stat. 2864, as amended by Pub. L. 108–199, div. H, §163, Jan. 23, 2004, 118 Stat. 452; Pub. L. 109–5, §1, Mar. 25, 2005, 119 Stat. 19, provided that:
"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 6 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 [now Committee on Oversight and 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 [now Committee on Oversight and 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, §802(b)(2), Dec. 27, 2000, 114 Stat. 2865, provided that:
"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.
"(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;
"(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 Oversight and 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 Oversight and Reform] of the House of Representatives. The exemptions set forth in paragraph (2) shall constitute the only authority pursuant to which an agency head may exempt records otherwise subject to release under paragraph (1).
"(B) Application of title 5.—A determination by an agency head to apply an exemption listed in subparagraphs (B) through (I) of paragraph (2) 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.
"(4) Limitation on application.—This subsection shall not apply to records—
"(A) related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or
"(B) solely in the possession, custody, or control of that office.
"(c) Inapplicability of National Security Act of 1947 Exemption.—Section 701(a) of the National Security Act of 1947 (50 U.S.C. 431[(a)]) [now 50 U.S.C. 3141(a)] shall not apply to any operational file, or any portion of any operational file, that constitutes a Nazi war criminal record under section 3 of this Act.
"SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR CRIMINAL RECORDS.
"(a) Expedited Processing.—For purposes of expedited processing under section 552(a)(6)(E) of title 5, United States Code, any requester of a Nazi war criminal record shall be deemed to have a compelling need for such record.
"(b) Requester.—For purposes of this section, the term 'requester' means any person who was persecuted in the manner described under section 3(a)(1) of this Act who requests a Nazi war criminal record.
"SEC. 5. EFFECTIVE DATE.
"This Act and the amendments made by this Act shall take effect on the date that is 90 days after the date of enactment of this Act [Oct. 8, 1998]."
Congressional Statement of Findings and Purpose; Public Access to Information in Electronic Format
Pub. L. 104–231, §2, Oct. 2, 1996, 110 Stat. 3048, provided that:
"(a) Findings.—The Congress finds that—
"(1) the purpose of section 552 of title 5, United States Code, popularly known as the Freedom of Information Act, is to require agencies of the Federal Government to make certain agency information available for public inspection and copying and to establish and enable enforcement of the right of any person to obtain access to the records of such agencies, subject to statutory exemptions, for any public or private purpose;
"(2) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information Act has been a valuable means through which any person can learn how the Federal Government operates;
"(3) the Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government;
"(4) the Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards;
"(5) Government agencies increasingly use computers to conduct agency business and to store publicly valuable agency records and information; and
"(6) Government agencies should use new technology to enhance public access to agency records and information.
"(b) Purposes.—The purposes of this Act [see Short Title of 1996 Amendment note above] are to—
"(1) foster democracy by ensuring public access to agency records and information;
"(2) improve public access to agency records and information;
"(3) ensure agency compliance with statutory time limits; and
"(4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government."
Freedom of Information Act Exemption for Certain Open Skies Treaty Data
Pub. L. 103–236, title V, §533, Apr. 30, 1994, 108 Stat. 480, provided that:
"(a) In General.—Data with respect to a foreign country collected by sensors during observation flights conducted in connection with the Treaty on Open Skies, including flights conducted prior to entry into force of the treaty, shall be exempt from disclosure under the Freedom of Information Act—
"(1) if the country has not disclosed the data to the public; and
"(2) if the country has not, acting through the Open Skies Consultative Commission or any other diplomatic channel, authorized the United States to disclose the data to the public.
"(b) Statutory Construction.—This section constitutes a specific exemption within the meaning of section 552(b)(3) of title 5, United States Code.
"(c) Definitions.—For the purposes of this section—
"(1) the term 'Freedom of Information Act' means the provisions of section 552 of title 5, United States Code;
"(2) the term 'Open Skies Consultative Commission' means the commission established pursuant to Article X of the Treaty on Open Skies; and
"(3) the term 'Treaty on Open Skies' means the Treaty on Open Skies, signed at Helsinki on March 24, 1992."
Classified National Security Information
For provisions relating to a response to a request for information under this section when the fact of its existence or nonexistence is itself classified or when it was originally classified by another agency, see Ex. Ord. No. 13526, §3.6, Dec. 29, 2009, 75 F.R. 718, set out as a note under section 3161 of Title 50, War and National Defense.
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which related to minimizing Federal paperwork, was revoked by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.
Ex. Ord. No. 12600. Predisclosure Notification Procedures for Confidential Commercial Information
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:
By the authority vested in me as President by the Constitution and statutes of the United States of America, and in order to provide predisclosure notification procedures under the Freedom of Information Act [5 U.S.C. 552] concerning confidential commercial information, and to make existing agency notification provisions more uniform, it is hereby ordered as follows:
Section 1. The head of each Executive department and agency subject to the Freedom of Information Act [5 U.S.C. 552] shall, to the extent permitted by law, establish procedures to notify submitters of records containing confidential commercial information as described in section 3 of this Order, when those records are requested under the Freedom of Information Act [FOIA], 5 U.S.C. 552, as amended, if after reviewing the request, the responsive records, and any appeal by the requester, the department or agency determines that it may be required to disclose the records. Such notice requires that an agency use good-faith efforts to advise submitters of confidential commercial information of the procedures established under this Order. Further, where notification of a voluminous number of submitters is required, such notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.
Sec. 2. For purposes of this Order, the following definitions apply:
(a) "Confidential commercial information" means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.
(b) "Submitter" means any person or entity who provides confidential commercial information to the government. The term "submitter" includes, but is not limited to, corporations, state governments, and foreign governments.
Sec. 3. (a) For confidential commercial information submitted prior to January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, provide a submitter with notice pursuant to section 1 whenever:
(i) the records are less than 10 years old and the information has been designated by the submitter as confidential commercial information; or
(ii) the department or agency has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.
(b) For confidential commercial information submitted on or after January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, establish procedures to permit submitters of confidential commercial information to designate, at the time the information is submitted to the Federal government or a reasonable time thereafter, any information the disclosure of which the submitter claims could reasonably be expected to cause substantial competitive harm. Such agency procedures may provide for the expiration, after a specified period of time or changes in circumstances, of designations of competitive harm made by submitters. Additionally, such procedures may permit the agency to designate specific classes of information that will be treated by the agency as if the information had been so designated by the submitter. The head of each Executive department or agency shall, to the extent permitted by law, provide the submitter notice in accordance with section 1 of this Order whenever the department or agency determines that it may be required to disclose records:
(i) designated pursuant to this subsection; or
(ii) the disclosure of which the department or agency has reason to believe could reasonably be expected to cause substantial competitive harm.
Sec. 4. When notification is made pursuant to section 1, each agency's procedures shall, to the extent permitted by law, afford the submitter a reasonable period of time in which the submitter or its designee may object to the disclosure of any specified portion of the information and to state all grounds upon which disclosure is opposed.
Sec. 5. Each agency shall give careful consideration to all such specified grounds for nondisclosure prior to making an administrative determination of the issue. In all instances when the agency determines to disclose the requested records, its procedures shall provide that the agency give the submitter a written statement briefly explaining why the submitter's objections are not sustained. Such statement shall, to the extent permitted by law, be provided a reasonable number of days prior to a specified disclosure date.
Sec. 6. Whenever a FOIA requester brings suit seeking to compel disclosure of confidential commercial information, each agency's procedures shall require that the submitter be promptly notified.
Sec. 7. The designation and notification procedures required by this Order shall be established by regulations, after notice and public comment. If similar procedures or regulations already exist, they should be reviewed for conformity and revised where necessary. Existing procedures or regulations need not be modified if they are in compliance with this Order.
Sec. 8. The notice requirements of this Order need not be followed if:
(a) The agency determines that the information should not be disclosed;
(b) The information has been published or has been officially made available to the public;
(c) Disclosure of the information is required by law (other than 5 U.S.C. 552);
(d) The disclosure is required by an agency rule that (1) was adopted pursuant to notice and public comment, (2) specifies narrow classes of records submitted to the agency that are to be released under the Freedom of Information Act [5 U.S.C. 552], and (3) provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm;
(e) The information requested is not designated by the submitter as exempt from disclosure in accordance with agency regulations promulgated pursuant to section 7, when the submitter had an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm; or
(f) The designation made by the submitter in accordance with agency regulations promulgated pursuant to section 7 appears obviously frivolous; except that, in such case, the agency must provide the submitter with written notice of any final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date.
Sec. 9. Whenever an agency notifies a submitter that it may be required to disclose information pursuant to section 1 of this Order, the agency shall also notify the requester that notice and an opportunity to comment are being provided the submitter. Whenever an agency notifies a submitter of a final decision pursuant to section 5 of this Order, the agency shall also notify the requester.
Sec. 10. This Order is intended only to improve the internal management of the Federal government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
Ronald Reagan.
Ex. Ord. No. 13110. Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Nazi War Crimes Disclosure Act (Public Law 105–246) (the "Act") [5 U.S.C. 552 note], it is hereby ordered as follows:
Section 1. Establishment of Working Group. There is hereby established the Nazi War Criminal Records Interagency Working Group [now Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group] (Working Group). The function of the Group shall be to locate, 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, subject to certain designated exceptions as provided in the Act. The Working Group shall coordinate with agencies and take such actions as necessary to expedite the release of such records to the public.
Sec. 2. Schedule. The Working Group should complete its work to the greatest extent possible and report to the Congress within 1 year.
Sec. 3. Membership. (a) The Working Group shall be composed of the following members:
(1) Archivist of the United States (who shall serve as Chair of the Working Group);
(2) Secretary of Defense;
(3) Attorney General;
(4) Director of Central Intelligence;
(5) Director of the Federal Bureau of Investigation;
(6) Director of the United States Holocaust Memorial Museum;
(7) Historian of the Department of State; and
(8) Three other persons appointed by the President.
(b) The Senior Director for Records and Access Management of the National Security Council will serve as the liaison to and attend the meetings of the Working Group. Members of the Working Group who are full-time Federal officials may serve on the Working Group through designees.
Sec. 4. Administration. (a) To the extent permitted by law and subject to the availability of appropriations, the National Archives and Records Administration shall provide the Working Group with funding, administrative services, facilities, staff, and other support services necessary for the performance of the functions of the Working Group.
(b) The Working Group shall terminate 3 years from the date of this Executive order.
William J. Clinton.
Ex. Ord. No. 13392. Improving Agency Disclosure of Information
Ex. Ord. No. 13392, Dec. 14, 2005, 70 F.R. 75373, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure appropriate agency disclosure of information, and consistent with the goals of section 552 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Policy.
(a) The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed. For nearly four decades, the Freedom of Information Act (FOIA) [5 U.S.C. 552] has provided an important means through which the public can obtain information regarding the activities of Federal agencies. Under the FOIA, the public can obtain records from any Federal agency, subject to the exemptions enacted by the Congress to protect information that must be held in confidence for the Government to function effectively or for other purposes.
(b) FOIA requesters are seeking a service from the Federal Government and should be treated as such. Accordingly, in responding to a FOIA request, agencies shall respond courteously and appropriately. Moreover, agencies shall provide FOIA requesters, and the public in general, with citizen-centered ways to learn about the FOIA process, about agency records that are publicly available (e.g., on the agency's website), and about the status of a person's FOIA request and appropriate information about the agency's response.
(c) Agency FOIA operations shall be both results-oriented and produce results. Accordingly, agencies shall process requests under the FOIA in an efficient and appropriate manner and achieve tangible, measurable improvements in FOIA processing. When an agency's FOIA program does not produce such results, it should be reformed, consistent with available resources appropriated by the Congress and applicable law, to increase efficiency and better reflect the policy goals and objectives of this order.
(d) A citizen-centered and results-oriented approach will improve service and performance, thereby strengthening compliance with the FOIA, and will help avoid disputes and related litigation.
Sec. 2. Agency Chief FOIA Officers.
(a) Designation. The head of each agency shall designate within 30 days of the date of this order a senior official of such agency (at the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer of that agency. The head of the agency shall promptly notify the Director of the Office of Management and Budget (OMB Director) and the Attorney General of such designation and of any changes thereafter in such designation.
(b) General Duties. The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency:
(i) have agency-wide responsibility for efficient and appropriate compliance with the FOIA;
(ii) monitor FOIA implementation throughout the agency, including through the use of meetings with the public to the extent deemed appropriate by the agency's Chief FOIA Officer, and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency's performance in implementing the FOIA, including the extent to which the agency meets the milestones in the agency's plan under section 3(b) of this order and training and reporting standards established consistent with applicable law and this order;
(iii) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to carry out the policy set forth in section 1 of this order;
(iv) review and report, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency's performance in implementing the FOIA; and
(v) facilitate public understanding of the purposes of the FOIA's statutory exemptions by including concise descriptions of the exemptions in both the agency's FOIA handbook issued under section 552(g) of title 5, United States Code, and the agency's annual FOIA report, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply.
(c) FOIA Requester Service Center and FOIA Public Liaisons. In order to ensure appropriate communication with FOIA requesters:
(i) Each agency shall establish one or more FOIA Requester Service Centers (Center), as appropriate, which shall serve as the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's FOIA response. The Center shall include appropriate staff to receive and respond to inquiries from FOIA requesters;
(ii) The agency Chief FOIA Officer shall designate one or more agency officials, as appropriate, as FOIA Public Liaisons, who may serve in the Center or who may serve in a separate office. FOIA Public Liaisons shall serve as supervisory officials to whom a FOIA requester can raise concerns about the service the FOIA requester has received from the Center, following an initial response from the Center staff. FOIA Public Liaisons shall seek to ensure a service-oriented response to FOIA requests and FOIA-related inquiries. For example, the FOIA Public Liaison shall assist, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes. FOIA Public Liaisons shall report to the agency Chief FOIA Officer on their activities and shall perform their duties consistent with applicable law and agency regulations;
(iii) In addition to the services to FOIA requesters provided by the Center and FOIA Public Liaisons, the agency Chief FOIA Officer shall also consider what other FOIA-related assistance to the public should appropriately be provided by the agency;
(iv) In establishing the Centers and designating FOIA Public Liaisons, the agency shall use, as appropriate, existing agency staff and resources. A Center shall have appropriate staff to receive and respond to inquiries from FOIA requesters;
(v) As determined by the agency Chief FOIA Officer, in consultation with the FOIA Public Liaisons, each agency shall post appropriate information about its Center or Centers on the agency's website, including contact information for its FOIA Public Liaisons. In the case of an agency without a website, the agency shall publish the information on the Firstgov.gov website or, in the case of any agency with neither a website nor the capability to post on the Firstgov.gov website, in the Federal Register; and
(vi) The agency Chief FOIA Officer shall ensure that the agency has in place a method (or methods), including through the use of the Center, to receive and respond promptly and appropriately to inquiries from FOIA requesters about the status of their requests. The Chief FOIA Officer shall also consider, in consultation with the FOIA Public Liaisons, as appropriate, whether the agency's implementation of other means (such as tracking numbers for requests, or an agency telephone or Internet hotline) would be appropriate for responding to status inquiries.
Sec. 3. Review, Plan, and Report.
(a) Review. Each agency's Chief FOIA Officer shall conduct a review of the agency's FOIA operations to determine whether agency practices are consistent with the policies set forth in section 1 of this order. In conducting this review, the Chief FOIA Officer shall:
(i) evaluate, with reference to numerical and statistical benchmarks where appropriate, the agency's administration of the FOIA, including the agency's expenditure of resources on FOIA compliance and the extent to which, if any, requests for records have not been responded to within the statutory time limit (backlog);
(ii) review the processes and practices by which the agency assists and informs the public regarding the FOIA process;
(iii) examine the agency's:
(A) use of information technology in responding to FOIA requests, including without limitation the tracking of FOIA requests and communication with requesters;
(B) practices with respect to requests for expedited processing; and
(C) implementation of multi-track processing if used by such agency;
(iv) review the agency's policies and practices relating to the availability of public information through websites and other means, including the use of websites to make available the records described in section 552(a)(2) of title 5, United States Code; and
(v) identify ways to eliminate or reduce its FOIA backlog, consistent with available resources and taking into consideration the volume and complexity of the FOIA requests pending with the agency.
(b) Plan.
(i) Each agency's Chief FOIA Officer shall develop, in consultation as appropriate with the staff of the agency (including the FOIA Public Liaisons), the Attorney General, and the OMB Director, an agency-specific plan to ensure that the agency's administration of the FOIA is in accordance with applicable law and the policies set forth in section 1 of this order. The plan, which shall be submitted to the head of the agency for approval, shall address the agency's implementation of the FOIA during fiscal years 2006 and 2007.
(ii) The plan shall include specific activities that the agency will implement to eliminate or reduce the agency's FOIA backlog, including (as applicable) changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA.
(iii) The plan shall also include activities to increase public awareness of FOIA processing, including as appropriate, expanded use of the agency's Center and its FOIA Public Liaisons.
(iv) The plan shall also include, taking appropriate account of the resources available to the agency and the mission of the agency, concrete milestones, with specific timetables and outcomes to be achieved, by which the head of the agency, after consultation with the OMB Director, shall measure and evaluate the agency's success in the implementation of the plan.
(c) Agency Reports to the Attorney General and OMB Director.
(i) The head of each agency shall submit a report, no later than 6 months from the date of this order, to the Attorney General and the OMB Director that summarizes the results of the review under section 3(a) of this order and encloses a copy of the agency's plan under section 3(b) of this order. The agency shall publish a copy of the agency's report on the agency's website or, in the case of an agency without a website, on the Firstgov.gov website, or, in the case of any agency with neither a website nor the capability to publish on the Firstgov.gov website, in the Federal Register.
(ii) The head of each agency shall include in the agency's annual FOIA reports for fiscal years 2006 and 2007 a report on the agency's development and implementation of its plan under section 3(b) of this order and on the agency's performance in meeting the milestones set forth in that plan, consistent with any related guidelines the Attorney General may issue under section 552(e) of title 5, United States Code.
(iii) If the agency does not meet a milestone in its plan, the head of the agency shall:
(A) identify this deficiency in the annual FOIA report to the Attorney General;
(B) explain in the annual report the reasons for the agency's failure to meet the milestone;
(C) outline in the annual report the steps that the agency has already taken, and will be taking, to address the deficiency; and
(D) report this deficiency to the President's Management Council.
Sec. 4. Attorney General.
(a) Report. The Attorney General, using the reports submitted by the agencies under subsection 3(c)(i) of this order and the information submitted by agencies in their annual FOIA reports for fiscal year 2005, shall submit to the President, no later than 10 months from the date of this order, a report on agency FOIA implementation. The Attorney General shall consult the OMB Director in the preparation of the report and shall include in the report appropriate recommendations on administrative or other agency actions for continued agency dissemination and release of public information. The Attorney General shall thereafter submit two further annual reports, by June 1, 2007, and June 1, 2008, that provide the President with an update on the agencies' implementation of the FOIA and of their plans under section 3(b) of this order.
(b) Guidance. The Attorney General shall issue such instructions and guidance to the heads of departments and agencies as may be appropriate to implement sections 3(b) and 3(c) of this order.
Sec. 5. OMB Director. The OMB Director may issue such instructions to the heads of agencies as are necessary to implement this order, other than sections 3(b) and 3(c) of this order.
(a) the term "agency" has the same meaning as the term "agency" under section 552(f)(1) of title 5, United States Code; and
(b) the term "record" has the same meaning as the term "record" under section 552(f)(2) of title 5, United States Code.
Sec. 7. General Provisions.
(a) The agency reviews under section 3(a) of this order and agency plans under section 3(b) of this order shall be conducted and developed in accordance with applicable law and applicable guidance issued by the President, the Attorney General, and the OMB Director, including the laws and guidance regarding information technology and the dissemination of information.
(b) This order:
(i) shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations;
(ii) shall not be construed to impair or otherwise affect the functions of the OMB Director relating to budget, legislative, or administrative proposals; and
(iii) is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.
George W. Bush.
Ex. Ord. No. 13642. Making Open and Machine Readable the New Default for Government Information
Ex. Ord. No. 13642, May 9, 2013, 78 F.R. 28111, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. General Principles. Openness in government strengthens our democracy, promotes the delivery of efficient and effective services to the public, and contributes to economic growth. As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans' lives and contributes significantly to job creation.
Decades ago, the U.S. Government made both weather data and the Global Positioning System freely available. Since that time, American entrepreneurs and innovators have utilized these resources to create navigation systems, weather newscasts and warning systems, location-based applications, precision farming tools, and much more, improving Americans' lives in countless ways and leading to economic growth and job creation. In recent years, thousands of Government data resources across fields such as health and medicine, education, energy, public safety, global development, and finance have been posted in machine-readable form for free public use on Data.gov. Entrepreneurs and innovators have continued to develop a vast range of useful new products and businesses using these public information resources, creating good jobs in the process.
To promote continued job growth, Government efficiency, and the social good that can be gained from opening Government data to the public, the default state of new and modernized Government information resources shall be open and machine readable. Government information shall be managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable. In making this the new default state, executive departments and agencies (agencies) shall ensure that they safeguard individual privacy, confidentiality, and national security.
Sec. 2. Open Data Policy. (a) The Director of the Office of Management and Budget (OMB), in consultation with the Chief Information Officer (CIO), Chief Technology Officer (CTO), and Administrator of the Office of Information and Regulatory Affairs (OIRA), shall issue an Open Data Policy to advance the management of Government information as an asset, consistent with my memorandum of January 21, 2009 (Transparency and Open Government), OMB Memorandum M–10–06 (Open Government Directive), OMB and National Archives and Records Administration Memorandum M–12–18 (Managing Government Records Directive), the Office of Science and Technology Policy Memorandum of February 22, 2013 (Increasing Access to the Results of Federally Funded Scientific Research), and the CIO's strategy entitled "Digital Government: Building a 21st Century Platform to Better Serve the American People." The Open Data Policy shall be updated as needed.
(b) Agencies shall implement the requirements of the Open Data Policy and shall adhere to the deadlines for specific actions specified therein. When implementing the Open Data Policy, agencies shall incorporate a full analysis of privacy, confidentiality, and security risks into each stage of the information lifecycle to identify information that should not be released. These review processes should be overseen by the senior agency official for privacy. It is vital that agencies not release information if doing so would violate any law or policy, or jeopardize privacy, confidentiality, or national security.
Sec. 3. Implementation of the Open Data Policy. To facilitate effective Government-wide implementation of the Open Data Policy, I direct the following:
(a) Within 30 days of the issuance of the Open Data Policy, the CIO and CTO shall publish an open online repository of tools and best practices to assist agencies in integrating the Open Data Policy into their operations in furtherance of their missions. The CIO and CTO shall regularly update this online repository as needed to ensure it remains a resource to facilitate the adoption of open data practices.
(b) Within 90 days of the issuance of the Open Data Policy, the Administrator for Federal Procurement Policy, Controller of the Office of Federal Financial Management, CIO, and Administrator of OIRA shall work with the Chief Acquisition Officers Council, Chief Financial Officers Council, Chief Information Officers Council, and Federal Records Council to identify and initiate implementation of measures to support the integration of the Open Data Policy requirements into Federal acquisition and grant-making processes. Such efforts may include developing sample requirements language, grant and contract language, and workforce tools for agency acquisition, grant, and information management and technology professionals.
(c) Within 90 days of the date of this order, the Chief Performance Officer (CPO) shall work with the President's Management Council to establish a Cross-Agency Priority (CAP) Goal to track implementation of the Open Data Policy. The CPO shall work with agencies to set incremental performance goals, ensuring they have metrics and milestones in place to monitor advancement toward the CAP Goal. Progress on these goals shall be analyzed and reviewed by agency leadership, pursuant to the GPRA Modernization Act of 2010 (Public Law 111–352).
(d) Within 180 days of the date of this order, agencies shall report progress on the implementation of the CAP Goal to the CPO. Thereafter, agencies shall report progress quarterly, and as appropriate.
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) Nothing in this order shall compel or authorize the disclosure of privileged information, law enforcement information, national security information, personal information, or information the disclosure of which is prohibited by law.
(e) Independent agencies are requested to adhere to this order.
Barack Obama.
Memorandum of President of the United States, Jan. 21, 2009, 74 F.R. 4683, provided:
Memorandum for the Heads of Executive Departments and Agencies
A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.
I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by the agencies under Executive Order 13392 of December 14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Register.
This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.
§552a. Records maintained on individuals
(a) Definitions.—For purposes of this section—
(1) the term "agency" means agency as defined in section 552(e) 1 of this title;
(2) the term "individual" means a citizen of the United States or an alien lawfully admitted for permanent residence;
(3) the term "maintain" includes maintain, collect, use, or disseminate;
(4) the term "record" means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;
(5) the term "system of records" means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual;
(6) the term "statistical record" means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by section 8 of title 13;
(7) the term "routine use" means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected;
(8) the term "matching program"—
(A) means any computerized comparison of—
(i) two or more automated systems of records or a system of records with non-Federal records for the purpose of—
(I) establishing or verifying the eligibility of, or continuing compliance with statutory and regulatory requirements by, applicants for, recipients or beneficiaries of, participants in, or providers of services with respect to, cash or in-kind assistance or payments under Federal benefit programs, or
(II) recouping payments or delinquent debts under such Federal benefit programs, or
(ii) two or more automated Federal personnel or payroll systems of records or a system of Federal personnel or payroll records with non-Federal records,
(B) but does not include—
(i) matches performed to produce aggregate statistical data without any personal identifiers;
(ii) matches performed to support any research or statistical project, the specific data of which may not be used to make decisions concerning the rights, benefits, or privileges of specific individuals;
(iii) matches performed, by an agency (or component thereof) which performs as its principal function any activity pertaining to the enforcement of criminal laws, subsequent to the initiation of a specific criminal or civil law enforcement investigation of a named person or persons for the purpose of gathering evidence against such person or persons;
(iv) matches of tax information (I) pursuant to section 6103(d) of the Internal Revenue Code of 1986, (II) for purposes of tax administration as defined in section 6103(b)(4) of such Code, (III) for the purpose of intercepting a tax refund due an individual under authority granted by section 404(e), 464, or 1137 of the Social Security Act; or (IV) for the purpose of intercepting a tax refund due an individual under any other tax refund intercept program authorized by statute which has been determined by the Director of the Office of Management and Budget to contain verification, notice, and hearing requirements that are substantially similar to the procedures in section 1137 of the Social Security Act;
(v) matches—
(I) using records predominantly relating to Federal personnel, that are performed for routine administrative purposes (subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection (v)); or
(II) conducted by an agency using only records from systems of records maintained by that agency;
if the purpose of the match is not to take any adverse financial, personnel, disciplinary, or other adverse action against Federal personnel;
(vi) matches performed for foreign counterintelligence purposes or to produce background checks for security clearances of Federal personnel or Federal contractor personnel;
(vii) matches performed incident to a levy described in section 6103(k)(8) of the Internal Revenue Code of 1986;
(viii) matches performed pursuant to section 202(x)(3) or 1611(e)(1) of the Social Security Act (42 U.S.C. 402(x)(3), 1382(e)(1));
(ix) matches performed by the Secretary of Health and Human Services or the Inspector General of the Department of Health and Human Services with respect to potential fraud, waste, and abuse, including matches of a system of records with non-Federal records; or
(x) matches performed pursuant to section 3(d)(4) of the Achieving a Better Life Experience Act of 2014; 1
(9) the term "recipient agency" means any agency, or contractor thereof, receiving records contained in a system of records from a source agency for use in a matching program;
(10) the term "non-Federal agency" means any State or local government, or agency thereof, which receives records contained in a system of records from a source agency for use in a matching program;
(11) the term "source agency" means any agency which discloses records contained in a system of records to be used in a matching program, or any State or local government, or agency thereof, which discloses records to be used in a matching program;
(12) the term "Federal benefit program" means any program administered or funded by the Federal Government, or by any agent or State on behalf of the Federal Government, providing cash or in-kind assistance in the form of payments, grants, loans, or loan guarantees to individuals; and
(13) the term "Federal personnel" means officers and employees of the Government of the United States, members of the uniformed services (including members of the Reserve Components), individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States (including survivor benefits).
(b) Conditions of Disclosure.—No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be—
(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;
(2) required under section 552 of this title;
(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;
(4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13;
(5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;
(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;
(8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;
(9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
(10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the Government Accountability Office;
(11) pursuant to the order of a court of competent jurisdiction; or
(12) to a consumer reporting agency in accordance with section 3711(e) of title 31.
(c) Accounting of Certain Disclosures.—Each agency, with respect to each system of records under its control, shall—
(1) except for disclosures made under subsections (b)(1) or (b)(2) of this section, keep an accurate accounting of—
(A) the date, nature, and purpose of each disclosure of a record to any person or to another agency made under subsection (b) of this section; and
(B) the name and address of the person or agency to whom the disclosure is made;
(2) retain the accounting made under paragraph (1) of this subsection for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;
(3) except for disclosures made under subsection (b)(7) of this section, make the accounting made under paragraph (1) of this subsection available to the individual named in the record at his request; and
(4) inform any person or other agency about any correction or notation of dispute made by the agency in accordance with subsection (d) of this section of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.
(d) Access to Records.—Each agency that maintains a system of records shall—
(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence;
(2) permit the individual to request amendment of a record pertaining to him and—
(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and
(B) promptly, either—
(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
(ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;
(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official's determination under subsection (g)(1)(A) of this section;
(4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and
(5) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.
(e) Agency Requirements.—Each agency that maintains a system of records shall—
(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President;
(2) collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs;
(3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual—
(A) the authority (whether granted by statute, or by executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;
(B) the principal purpose or purposes for which the information is intended to be used;
(C) the routine uses which may be made of the information, as published pursuant to paragraph (4)(D) of this subsection; and
(D) the effects on him, if any, of not providing all or any part of the requested information;
(4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include—
(A) the name and location of the system;
(B) the categories of individuals on whom records are maintained in the system;
(C) the categories of records maintained in the system;
(D) each routine use of the records contained in the system, including the categories of users and the purpose of such use;
(E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records;
(F) the title and business address of the agency official who is responsible for the system of records;
(G) the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him;
(H) the agency procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system of records, and how he can contest its content; and
(I) the categories of sources of records in the system;
(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;
(6) prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes;
(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;
(8) make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record;
(9) establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance;
(10) establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained;
(11) at least 30 days prior to publication of information under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency; and
(12) if such agency is a recipient agency or a source agency in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, at least 30 days prior to conducting such program, publish in the Federal Register notice of such establishment or revision.
(f) Agency Rules.—In order to carry out the provisions of this section, each agency that maintains a system of records shall promulgate rules, in accordance with the requirements (including general notice) of section 553 of this title, which shall—
(1) establish procedures whereby an individual can be notified in response to his request if any system of records named by the individual contains a record pertaining to him;
(2) define reasonable times, places, and requirements for identifying an individual who requests his record or information pertaining to him before the agency shall make the record or information available to the individual;
(3) establish procedures for the disclosure to an individual upon his request of his record or information pertaining to him, including special procedure, if deemed necessary, for the disclosure to an individual of medical records, including psychological records, pertaining to him;
(4) establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each individual to be able to exercise fully his rights under this section; and
(5) establish fees to be charged, if any, to any individual for making copies of his record, excluding the cost of any search for and review of the record.
The Office of the Federal Register shall biennially compile and publish the rules promulgated under this subsection and agency notices published under subsection (e)(4) of this section in a form available to the public at low cost.
(g)(1) Civil Remedies.—Whenever any agency
(A) makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection;
(B) refuses to comply with an individual request under subsection (d)(1) of this section;
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual,
the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.
(2)(A) In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual's record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo.
(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.
(3)(A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case the court shall determine the matter de novo, and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld under any of the exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action.
(4) In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of—
(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees as determined by the court.
(5) An action to enforce any liability created under this section may be brought in 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, without regard to the amount in controversy, within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975.
(h) Rights of Legal Guardians.—For the purposes of this section, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.
(i)(1) Criminal Penalties.—Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.
(2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.
(3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.
(j) General Exemptions.—The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is—
(1) maintained by the Central Intelligence Agency; or
(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.
(k) Specific Exemptions.—The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of records is—
(1) subject to the provisions of section 552(b)(1) of this title;
(2) investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section: Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;
(3) maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18;
(4) required by statute to be maintained and used solely as statistical records;
(5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;
(6) testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or
(7) evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.
(l)(1) Archival Records.—Each agency record which is accepted by the Archivist of the United States for storage, processing, and servicing in accordance with section 3103 of title 44 shall, for the purposes of this section, be considered to be maintained by the agency which deposited the record and shall be subject to the provisions of this section. The Archivist of the United States shall not disclose the record except to the agency which maintains the record, or under rules established by that agency which are not inconsistent with the provisions of this section.
(2) Each agency record pertaining to an identifiable individual which was transferred to the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, prior to the effective date of this section, shall, for the purposes of this section, be considered to be maintained by the National Archives and shall not be subject to the provisions of this section, except that a statement generally describing such records (modeled after the requirements relating to records subject to subsections (e)(4)(A) through (G) of this section) shall be published in the Federal Register.
(3) Each agency record pertaining to an identifiable individual which is transferred to the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, on or after the effective date of this section, shall, for the purposes of this section, be considered to be maintained by the National Archives and shall be exempt from the requirements of this section except subsections (e)(4)(A) through (G) and (e)(9) of this section.
(m)(1) Government Contractors.—When an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function, the agency shall, consistent with its authority, cause the requirements of this section to be applied to such system. For purposes of subsection (i) of this section any such contractor and any employee of such contractor, if such contract is agreed to on or after the effective date of this section, shall be considered to be an employee of an agency.
(2) A consumer reporting agency to which a record is disclosed under section 3711(e) of title 31 shall not be considered a contractor for the purposes of this section.
(n) Mailing Lists.—An individual's name and address may not be sold or rented by an agency unless such action is specifically authorized by law. This provision shall not be construed to require the withholding of names and addresses otherwise permitted to be made public.
(o) Matching Agreements.—(1) No record which is contained in a system of records may be disclosed to a recipient agency or non-Federal agency for use in a computer matching program except pursuant to a written agreement between the source agency and the recipient agency or non-Federal agency specifying—
(A) the purpose and legal authority for conducting the program;
(B) the justification for the program and the anticipated results, including a specific estimate of any savings;
(C) a description of the records that will be matched, including each data element that will be used, the approximate number of records that will be matched, and the projected starting and completion dates of the matching program;
(D) procedures for providing individualized notice at the time of application, and notice periodically thereafter as directed by the Data Integrity Board of such agency (subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection (v)), to—
(i) applicants for and recipients of financial assistance or payments under Federal benefit programs, and
(ii) applicants for and holders of positions as Federal personnel,
that any information provided by such applicants, recipients, holders, and individuals may be subject to verification through matching programs;
(E) procedures for verifying information produced in such matching program as required by subsection (p);
(F) procedures for the retention and timely destruction of identifiable records created by a recipient agency or non-Federal agency in such matching program;
(G) procedures for ensuring the administrative, technical, and physical security of the records matched and the results of such programs;
(H) prohibitions on duplication and redisclosure of records provided by the source agency within or outside the recipient agency or the non-Federal agency, except where required by law or essential to the conduct of the matching program;
(I) procedures governing the use by a recipient agency or non-Federal agency of records provided in a matching program by a source agency, including procedures governing return of the records to the source agency or destruction of records used in such program;
(J) information on assessments that have been made on the accuracy of the records that will be used in such matching program; and
(K) that the Comptroller General may have access to all records of a recipient agency or a non-Federal agency that the Comptroller General deems necessary in order to monitor or verify compliance with the agreement.
(2)(A) A copy of each agreement entered into pursuant to paragraph (1) shall—
(i) be transmitted to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House of Representatives; and
(ii) be available upon request to the public.
(B) No such agreement shall be effective until 30 days after the date on which such a copy is transmitted pursuant to subparagraph (A)(i).
(C) Such an agreement shall remain in effect only for such period, not to exceed 18 months, as the Data Integrity Board of the agency determines is appropriate in light of the purposes, and length of time necessary for the conduct, of the matching program.
(D) Within 3 months prior to the expiration of such an agreement pursuant to subparagraph (C), the Data Integrity Board of the agency may, without additional review, renew the matching agreement for a current, ongoing matching program for not more than one additional year if—
(i) such program will be conducted without any change; and
(ii) each party to the agreement certifies to the Board in writing that the program has been conducted in compliance with the agreement.
(p) Verification and Opportunity to Contest Findings.—(1) In order to protect any individual whose records are used in a matching program, no recipient agency, non-Federal agency, or source agency may suspend, terminate, reduce, or make a final denial of any financial assistance or payment under a Federal benefit program to such individual, or take other adverse action against such individual, as a result of information produced by such matching program, until—
(A)(i) the agency has independently verified the information; or
(ii) the Data Integrity Board of the agency, or in the case of a non-Federal agency the Data Integrity Board of the source agency, determines in accordance with guidance issued by the Director of the Office of Management and Budget that—
(I) the information is limited to identification and amount of benefits paid by the source agency under a Federal benefit program; and
(II) there is a high degree of confidence that the information provided to the recipient agency is accurate;
(B) the individual receives a notice from the agency containing a statement of its findings and informing the individual of the opportunity to contest such findings; and
(C)(i) the expiration of any time period established for the program by statute or regulation for the individual to respond to that notice; or
(ii) in the case of a program for which no such period is established, the end of the 30-day period beginning on the date on which notice under subparagraph (B) is mailed or otherwise provided to the individual.
(2) Independent verification referred to in paragraph (1) requires investigation and confirmation of specific information relating to an individual that is used as a basis for an adverse action against the individual, including where applicable investigation and confirmation of—
(A) the amount of any asset or income involved;
(B) whether such individual actually has or had access to such asset or income for such individual's own use; and
(C) the period or periods when the individual actually had such asset or income.
(3) Notwithstanding paragraph (1), an agency may take any appropriate action otherwise prohibited by such paragraph if the agency determines that the public health or public safety may be adversely affected or significantly threatened during any notice period required by such paragraph.
(q) Sanctions.—(1) Notwithstanding any other provision of law, no source agency may disclose any record which is contained in a system of records to a recipient agency or non-Federal agency for a matching program if such source agency has reason to believe that the requirements of subsection (p), or any matching agreement entered into pursuant to subsection (o), or both, are not being met by such recipient agency.
(2) No source agency may renew a matching agreement unless—
(A) the recipient agency or non-Federal agency has certified that it has complied with the provisions of that agreement; and
(B) the source agency has no reason to believe that the certification is inaccurate.
(r) Report on New Systems and Matching Programs.—Each agency that proposes to establish or make a significant change in a system of records or a matching program shall provide adequate advance notice of any such proposal (in duplicate) to the Committee on Government Operations of the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Office of Management and Budget in order to permit an evaluation of the probable or potential effect of such proposal on the privacy or other rights of individuals.
(s) Biennial Report.—The President shall biennially submit to the Speaker of the House of Representatives and the President pro tempore of the Senate a report—
(1) describing the actions of the Director of the Office of Management and Budget pursuant to section 6 of the Privacy Act of 1974 during the preceding 2 years;
(2) describing the exercise of individual rights of access and amendment under this section during such years;
(3) identifying changes in or additions to systems of records;
(4) containing such other information concerning administration of this section as may be necessary or useful to the Congress in reviewing the effectiveness of this section in carrying out the purposes of the Privacy Act of 1974.
(t)(1) Effect of Other Laws.—No agency shall rely on any exemption contained in section 552 of this title to withhold from an individual any record which is otherwise accessible to such individual under the provisions of this section.
(2) No agency shall rely on any exemption in this section to withhold from an individual any record which is otherwise accessible to such individual under the provisions of section 552 of this title.
(u) Data Integrity Boards.—(1) Every agency conducting or participating in a matching program shall establish a Data Integrity Board to oversee and coordinate among the various components of such agency the agency's implementation of this section.
(2) Each Data Integrity Board shall consist of senior officials designated by the head of the agency, and shall include any senior official designated by the head of the agency as responsible for implementation of this section, and the inspector general of the agency, if any. The inspector general shall not serve as chairman of the Data Integrity Board.
(3) Each Data Integrity Board—
(A) shall review, approve, and maintain all written agreements for receipt or disclosure of agency records for matching programs to ensure compliance with subsection (o), and all relevant statutes, regulations, and guidelines;
(B) shall review all matching programs in which the agency has participated during the year, either as a source agency or recipient agency, determine compliance with applicable laws, regulations, guidelines, and agency agreements, and assess the costs and benefits of such programs;
(C) shall review all recurring matching programs in which the agency has participated during the year, either as a source agency or recipient agency, for continued justification for such disclosures;
(D) shall compile an annual report, which shall be submitted to the head of the agency and the Office of Management and Budget and made available to the public on request, describing the matching activities of the agency, including—
(i) matching programs in which the agency has participated as a source agency or recipient agency;
(ii) matching agreements proposed under subsection (o) that were disapproved by the Board;
(iii) any changes in membership or structure of the Board in the preceding year;
(iv) the reasons for any waiver of the requirement in paragraph (4) of this section for completion and submission of a cost-benefit analysis prior to the approval of a matching program;
(v) any violations of matching agreements that have been alleged or identified and any corrective action taken; and
(vi) any other information required by the Director of the Office of Management and Budget to be included in such report;
(E) shall serve as a clearinghouse for receiving and providing information on the accuracy, completeness, and reliability of records used in matching programs;
(F) shall provide interpretation and guidance to agency components and personnel on the requirements of this section for matching programs;
(G) shall review agency recordkeeping and disposal policies and practices for matching programs to assure compliance with this section; and
(H) may review and report on any agency matching activities that are not matching programs.
(4)(A) Except as provided in subparagraphs (B) and (C), a Data Integrity Board shall not approve any written agreement for a matching program unless the agency has completed and submitted to such Board a cost-benefit analysis of the proposed program and such analysis demonstrates that the program is likely to be cost effective.2
(B) The Board may waive the requirements of subparagraph (A) of this paragraph if it determines in writing, in accordance with guidelines prescribed by the Director of the Office of Management and Budget, that a cost-benefit analysis is not required.
(C) A cost-benefit analysis shall not be required under subparagraph (A) prior to the initial approval of a written agreement for a matching program that is specifically required by statute. Any subsequent written agreement for such a program shall not be approved by the Data Integrity Board unless the agency has submitted a cost-benefit analysis of the program as conducted under the preceding approval of such agreement.
(5)(A) If a matching agreement is disapproved by a Data Integrity Board, any party to such agreement may appeal the disapproval to the Director of the Office of Management and Budget. Timely notice of the filing of such an appeal shall be provided by the Director of the Office of Management and Budget to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House of Representatives.
(B) The Director of the Office of Management and Budget may approve a matching agreement notwithstanding the disapproval of a Data Integrity Board if the Director determines that—
(i) the matching program will be consistent with all applicable legal, regulatory, and policy requirements;
(ii) there is adequate evidence that the matching agreement will be cost-effective; and
(iii) the matching program is in the public interest.
(C) The decision of the Director to approve a matching agreement shall not take effect until 30 days after it is reported to committees described in subparagraph (A).
(D) If the Data Integrity Board and the Director of the Office of Management and Budget disapprove a matching program proposed by the inspector general of an agency, the inspector general may report the disapproval to the head of the agency and to the Congress.
(6) In the reports required by paragraph (3)(D), agency matching activities that are not matching programs may be reported on an aggregate basis, if and to the extent necessary to protect ongoing law enforcement or counterintelligence investigations.
(v) Office of Management and Budget Responsibilities.—The Director of the Office of Management and Budget shall—
(1) develop and, after notice and opportunity for public comment, prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section; and
(2) provide continuing assistance to and oversight of the implementation of this section by agencies.
(w) Applicability to Bureau of Consumer Financial Protection.—Except as provided in the Consumer Financial Protection Act of 2010, this section shall apply with respect to the Bureau of Consumer Financial Protection.
(Added Pub. L. 93–579, §3, Dec. 31, 1974, 88 Stat. 1897; amended Pub. L. 94–183, §2(2), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 97–365, §2, Oct. 25, 1982, 96 Stat. 1749; Pub. L. 97–375, title II, §201(a), (b), Dec. 21, 1982, 96 Stat. 1821; Pub. L. 97–452, §2(a)(1), Jan. 12, 1983, 96 Stat. 2478; Pub. L. 98–477, §2(c), Oct. 15, 1984, 98 Stat. 2211; Pub. L. 98–497, title I, §107(g), Oct. 19, 1984, 98 Stat. 2292; Pub. L. 100–503, §§2–6(a), 7, 8, Oct. 18, 1988, 102 Stat. 2507–2514; Pub. L. 101–508, title VII, §7201(b)(1), Nov. 5, 1990, 104 Stat. 1388–334; Pub. L. 103–66, title XIII, §13581(c), Aug. 10, 1993, 107 Stat. 611; Pub. L. 104–193, title I, §110(w), Aug. 22, 1996, 110 Stat. 2175; Pub. L. 104–226, §1(b)(3), Oct. 2, 1996, 110 Stat. 3033; Pub. L. 104–316, title I, §115(g)(2)(B), Oct. 19, 1996, 110 Stat. 3835; Pub. L. 105–34, title X, §1026(b)(2), Aug. 5, 1997, 111 Stat. 925; Pub. L. 105–362, title XIII, §1301(d), Nov. 10, 1998, 112 Stat. 3293; Pub. L. 106–170, title IV, §402(a)(2), Dec. 17, 1999, 113 Stat. 1908; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 111–148, title VI, §6402(b)(2), Mar. 23, 2010, 124 Stat. 756; Pub. L. 111–203, title X, §1082, July 21, 2010, 124 Stat. 2080; Pub. L. 113–295, div. B, title I, §102(d), Dec. 19, 2014, 128 Stat. 4062.)
Section 552(e) of this title, referred to in subsec. (a)(1), was redesignated section 552(f) of this title by section 1802(b) of Pub. L. 99–570.
Section 6103 of the Internal Revenue Code of 1986, referred to in subsec. (a)(8)(B)(iv), (vii), is classified to section 6103 of Title 26, Internal Revenue Code.
Sections 404, 464, and 1137 of the Social Security Act, referred to in subsec. (a)(8)(B)(iv), are classified to sections 604, 664, and 1320b–7, respectively, of Title 42, The Public Health and Welfare.
The Achieving a Better Life Experience Act of 2014, referred to in subsec. (a)(8)(B)(x), probably means Pub. L. 113–295, div. B, Dec. 19, 2014, 128 Stat. 4056, known as the Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014 or the Stephen Beck, Jr., ABLE Act of 2014. The Act does not contain a section 3.
For effective date of this section, referred to in subsecs. (k)(2), (5), (7), (l)(2), (3), and (m), see Effective Date note below.
Section 6 of the Privacy Act of 1974, referred to in subsec. (s)(1), is section 6 of Pub. L. 93–579, which was set out below and was repealed by section 6(c) of Pub. L. 100–503.
For classification of the Privacy Act of 1974, referred to in subsec. (s)(4), see Short Title note below.
The Consumer Financial Protection Act of 2010, referred to in subsec. (w), is title X of Pub. L. 111–203, July 21, 2010, 124 Stat. 1955, which enacted subchapter V (§5481 et seq.) of chapter 53 of Title 12, Banks and Banking, and enacted and amended numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 12 and Tables.
Section 552a of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2244 of Title 7, Agriculture.
2014—Subsec. (a)(8)(B)(x). Pub. L. 113–295 added cl. (x).
2010—Subsec. (a)(8)(B)(ix). Pub. L. 111–148 added cl. (ix).
Subsec. (w). Pub. L. 111–203 added subsec. (w).
2004—Subsec. (b)(10). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".
1999—Subsec. (a)(8)(B)(viii). Pub. L. 106–170 added cl. (viii).
1998—Subsec. (u)(6), (7). Pub. L. 105–362 redesignated par. (7) as (6), substituted "paragraph (3)(D)" for "paragraphs (3)(D) and (6)", and struck out former par. (6) which read as follows: "The Director of the Office of Management and Budget shall, annually during the first 3 years after the date of enactment of this subsection and biennially thereafter, consolidate in a report to the Congress the information contained in the reports from the various Data Integrity Boards under paragraph (3)(D). Such report shall include detailed information about costs and benefits of matching programs that are conducted during the period covered by such consolidated report, and shall identify each waiver granted by a Data Integrity Board of the requirement for completion and submission of a cost-benefit analysis and the reasons for granting the waiver."
1997—Subsec. (a)(8)(B)(vii). Pub. L. 105–34 added cl. (vii).
1996—Subsec. (a)(8)(B)(iv)(III). Pub. L. 104–193 substituted "section 404(e), 464," for "section 464".
Subsec. (a)(8)(B)(v) to (vii). Pub. L. 104–226 inserted "or" at end of cl. (v), struck out "or" at end of cl. (vi), and struck out cl. (vii) which read as follows: "matches performed pursuant to section 6103(l)(12) of the Internal Revenue Code of 1986 and section 1144 of the Social Security Act;".
Subsecs. (b)(12), (m)(2). Pub. L. 104–316 substituted "3711(e)" for "3711(f)".
1990—Subsec. (p). Pub. L. 101–508 amended subsec. (p) generally, restating former pars. (1) and (3) as par. (1), adding provisions relating to Data Integrity Boards, and restating former pars. (2) and (4) as (2) and (3), respectively.
1988—Subsec. (a)(8) to (13). Pub. L. 100–503, §5, added pars. (8) to (13).
Subsec. (e)(12). Pub. L. 100–503, §3(a), added par. (12).
Subsec. (f). Pub. L. 100–503, §7, substituted "biennially" for "annually" in last sentence.
Subsecs. (o) to (q). Pub. L. 100–503, §2(2), added subsecs. (o) to (q). Former subsecs. (o) to (q) redesignated (r) to (t), respectively.
Subsec. (r). Pub. L. 100–503, §3(b), inserted "and matching programs" in heading and amended text generally. Prior to amendment, text read as follows: "Each agency shall provide adequate advance notice to Congress and the Office of Management and Budget of any proposal to establish or alter any system of records in order to permit an evaluation of the probable or potential effect of such proposal on the privacy and other personal or property rights of individuals or the disclosure of information relating to such individuals, and its effect on the preservation of the constitutional principles of federalism and separation of powers."
Pub. L. 100–503, §2(1), redesignated former subsec. (o) as (r).
Subsec. (s). Pub. L. 100–503, §8, substituted "Biennial" for "Annual" in heading, "biennially submit" for "annually submit" in introductory provisions, "preceding 2 years" for "preceding year" in par. (1), and "such years" for "such year" in par. (2).
Pub. L. 100–503, §2(1), redesignated former subsec. (p) as (s).
Subsec. (t). Pub. L. 100–503, §2(1), redesignated former subsec. (q) as (t).
Subsec. (u). Pub. L. 100–503, §4, added subsec. (u).
Subsec. (v). Pub. L. 100–503, §6(a), added subsec. (v).
1984—Subsec. (b)(6). Pub. L. 98–497, §107(g)(1), substituted "National Archives and Records Administration" for "National Archives of the United States", and "Archivist of the United States or the designee of the Archivist" for "Administrator of General Services or his designee".
Subsec. (l)(1). Pub. L. 98–497, §107(g)(2), substituted "Archivist of the United States" for "Administrator of General Services" in two places.
Subsec. (q). Pub. L. 98–477 designated existing provisions as par. (1) and added par. (2).
1983—Subsec. (b)(12). Pub. L. 97–452 substituted "section 3711(f) of title 31" for "section 3(d) of the Federal Claims Collection Act of 1966 (31 U.S.C. 952(d))".
Subsec. (m)(2). Pub. L. 97–452 substituted "section 3711(f) of title 31" for "section 3(d) of the Federal Claims Collection Act of 1966 (31 U.S.C. 952(d))".
1982—Subsec. (b)(12). Pub. L. 97–365, §2(a), added par. (12).
Subsec. (e)(4). Pub. L. 97–375, §201(a), substituted "upon establishment or revision" for "at least annually" after "Federal Register".
Subsec. (m). Pub. L. 97–365, §2(b), designated existing provisions as par. (1) and added par. (2).
Subsec. (p). Pub. L. 97–375, §201(b), substituted provisions requiring annual submission of a report by the President to the Speaker of the House and President pro tempore of the Senate relating to the Director of the Office of Management and Budget, individual rights of access, changes or additions to systems of records, and other necessary or useful information, for provisions which had directed the President to submit to the Speaker of the House and the President of the Senate, by June 30 of each calendar year, a consolidated report, separately listing for each Federal agency the number of records contained in any system of records which were exempted from the application of this section under the provisions of subsections (j) and (k) of this section during the preceding calendar year, and the reasons for the exemptions, and such other information as indicate efforts to administer fully this section.
1975—Subsec. (g)(5). Pub. L. 94–183 substituted "to September 27, 1975" for "to the effective date of this section".
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. 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. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.
Pub. L. 113–295, div. B, title I, §102(f)(1), Dec. 19, 2014, 128 Stat. 4062, provided that: "The amendments made by this section [enacting section 529A of Title 26, Internal Revenue Code, and amending this section, section 5517 of Title 12, Banks and Banking, and sections 26, 877A, 4965, 4973, and 6693 of Title 26] shall apply to taxable years beginning after December 31, 2014."
Pub. L. 111–203, title X, §1082, July 21, 2010, 124 Stat. 2080, provided that the amendment made by section 1082 is effective on July 21, 2010.
Pub. L. 111–203, title X, §1100H, July 21, 2010, 124 Stat. 2113, provided that: "Except as otherwise provided in this subtitle [subtitle H (§§1081–1100H) of title X of Pub. L. 111–203, see Tables for classification] and the amendments made by this subtitle, this subtitle and the amendments made by this subtitle, other than sections 1081 [amending section 8G of Pub. L. 95–452, set out in the Appendix to this title, and enacting provisions set out as a note under section 8G of Pub. L. 95–452] and 1082 [amending this section and enacting provisions set out as a note under this section], shall become effective on the designated transfer date."
[The term "designated transfer date" is defined in section 5481(9) of Title 12, Banks and Banking, as the date established under section 5582 of Title 12, which is July 21, 2011.]
Amendment by Pub. L. 106–170 applicable to individuals whose period of confinement in an institution commences on or after the first day of the fourth month beginning after December 1999, see section 402(a)(4) of Pub. L. 106–170, set out as a note under section 402 of Title 42, The Public Health and Welfare.
Amendment by Pub. L. 105–34 applicable to levies issued after Aug. 5, 1997, see section 1026(c) of Pub. L. 105–34, set out as a note under section 6103 of Title 26, Internal Revenue Code.
Amendment by Pub. L. 104–193 effective July 1, 1997, with transition rules relating to State options to accelerate such date, rules relating to claims, actions, and proceedings commenced before such date, rules relating to closing out of accounts for terminated or substantially modified programs and continuance in office of Assistant Secretary for Family Support, and provisions relating to termination of entitlement under AFDC program, see section 116 of Pub. L. 104–193, as amended, set out as an Effective Date note under section 601 of Title 42, The Public Health and Welfare.
Amendment by Pub. L. 103–66 effective Jan. 1, 1994, see section 13581(d) of Pub. L. 103–66, set out as a note under section 1395y of Title 42, The Public Health and Welfare.
Pub. L. 100–503, §10, Oct. 18, 1988, 102 Stat. 2514, as amended by Pub. L. 101–56, §2, July 19, 1989, 103 Stat. 149, provided that:
"(a) In General.—Except as provided in subsections (b) and (c), the amendments made by this Act [amending this section and repealing provisions set out as a note below] shall take effect 9 months after the date of enactment of this Act [Oct. 18, 1988].
"(b) Exceptions.—The amendment made by sections 3(b), 6, 7, and 8 of this Act [amending this section and repealing provisions set out as a note below] shall take effect upon enactment.
"(c) Effective Date Delayed for Existing Programs.—In the case of any matching program (as defined in section 552a(a)(8) of title 5, United States Code, as added by section 5 of this Act) in operation before June 1, 1989, the amendments made by this Act (other than the amendments described in subsection (b)) shall take effect January 1, 1990, if—
"(1) such matching program is identified by an agency as being in operation before June 1, 1989; and
"(2) such identification is—
"(A) submitted by the agency to the Committee on Governmental Affairs of the Senate, the Committee on Government Operations of the House of Representatives, and the Office of Management and Budget before August 1, 1989, in a report which contains a schedule showing the dates on which the agency expects to have such matching program in compliance with the amendments made by this Act, and
"(B) published by the Office of Management and Budget in the Federal Register, before September 15, 1989."
Amendment by Pub. L. 98–497 effective Apr. 1, 1985, see section 301 of Pub. L. 98–497, set out as a note under section 2102 of Title 44, Public Printing and Documents.
Pub. L. 93–579, §8, Dec. 31, 1974, 88 Stat. 1910, provided that: "The provisions of this Act [enacting this section and provisions set out as notes under this section] shall be effective on and after the date of enactment [Dec. 31, 1974], except that the amendments made by sections 3 and 4 [enacting this section and amending analysis preceding section 500 of this title] shall become effective 270 days following the day on which this Act is enacted."
Pub. L. 101–508, title VII, §7201(a), Nov. 5, 1990, 104 Stat. 1388–334, provided that: "This section [amending this section and enacting provisions set out as notes below] may be cited as the 'Computer Matching and Privacy Protection Amendments of 1990'."
Pub. L. 101–56, §1, July 19, 1989, 103 Stat. 149, provided that: "This Act [amending section 10 of Pub. L. 100–503, set out as a note above] may be cited as the 'Computer Matching and Privacy Protection Act Amendments of 1989'."
Pub. L. 100–503, §1, Oct. 18, 1988, 102 Stat. 2507, provided that: "This Act [amending this section, enacting provisions set out as notes above and below, and repealing provisions set out as a note below] may be cited as the 'Computer Matching and Privacy Protection Act of 1988'."
Pub. L. 93–579, §1, Dec. 31, 1974, 88 Stat. 1896, provided: "That this Act [enacting this section and provisions set out as notes under this section] may be cited as the 'Privacy Act of 1974'."
This section is popularly known as the "Privacy Act" and the "Privacy Act of 1974".
For termination, effective May 15, 2000, of reporting provisions in subsec. (s) of this section, 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 31 of House Document No. 103–7.
Functions of Director of Office of Management and Budget under this section delegated to Administrator for Office of Information and Regulatory Affairs by section 3 of Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2825, set out as a note under section 3503 of Title 44, Public Printing and Documents.
OMB Guidance on Electronic Consent and Access Forms
Pub. L. 116–50, §3, Aug. 22, 2019, 133 Stat. 1073, provided that:
"(a) Guidance.—Not later than 1 year after the date of the enactment of this Act [Aug. 22, 2019], the Director shall issue guidance that does the following:
"(1) Requires each agency to accept electronic identity proofing and authentication processes for the purposes of allowing an individual to provide prior written consent for the disclosure of the individual's records under section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) of such title.
"(2) Creates a template for electronic consent and access forms and requires each agency to post the template on the agency website and to accept the forms from any individual properly identity proofed and authenticated in accordance with paragraph (1) for the purpose of authorizing disclosure of the individual's records under section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) of such title.
"(3) Requires each agency to accept the electronic consent and access forms described in paragraph (2) from any individual properly identity proofed and authenticated in accordance with paragraph (1) for the purpose of authorizing disclosure of the individual's records to another entity, including a congressional office, in accordance with section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) [of such title].
"(b) Agency Compliance.—Each agency shall comply with the guidance issued pursuant to subsection (a) not later than 1 year after the date on which such guidance is issued.
"(1) Agency; individual; record.—The terms 'agency', 'individual', and 'record' have the meanings given those terms in section 552a(a) of title 5, United States Code.
"(2) Director.—The term 'Director' means the Director of the Office of Management and Budget."
Extension of Privacy Act Remedies to Citizens of Designated Countries
Pub. L. 114–126, Feb. 24, 2016, 130 Stat. 282, provided that:
"This Act may be cited as the 'Judicial Redress Act of 2015'.
"SEC. 2. EXTENSION OF PRIVACY ACT REMEDIES TO CITIZENS OF DESIGNATED COUNTRIES.
"(a) Civil Action; Civil Remedies.—With respect to covered records, a covered person may bring a civil action against an agency and obtain civil remedies, in the same manner, to the same extent, and subject to the same limitations, including exemptions and exceptions, as an individual may bring and obtain with respect to records under—
"(1) section 552a(g)(1)(D) of title 5, United States Code, but only with respect to disclosures intentionally or willfully made in violation of section 552a(b) of such title; and
"(2) subparagraphs (A) and (B) of section 552a(g)(1) of title 5, United States Code, but such an action may only be brought against a designated Federal agency or component.
"(b) Exclusive Remedies.—The remedies set forth in subsection (a) are the exclusive remedies available to a covered person under this section.
"(c) Application of the Privacy Act With Respect to a Covered Person.—For purposes of a civil action described in subsection (a), a covered person shall have the same rights, and be subject to the same limitations, including exemptions and exceptions, as an individual has and is subject to under section 552a of title 5, United States Code, when pursuing the civil remedies described in paragraphs (1) and (2) of subsection (a).
"(d) Designation of Covered Country.—
"(1) In general.—The Attorney General may, with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security, designate a foreign country or regional economic integration organization, or member country of such organization, as a 'covered country' for purposes of this section if—
"(A)(i) the country or regional economic integration organization, or member country of such organization, has entered into an agreement with the United States that provides for appropriate privacy protections for information shared for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses; or
"(ii) the Attorney General has determined that the country or regional economic integration organization, or member country of such organization, has effectively shared information with the United States for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses and has appropriate privacy protections for such shared information;
"(B) the country or regional economic integration organization, or member country of such organization, permits the transfer of personal data for commercial purposes between the territory of that country or regional economic organization and the territory of the United States, through an agreement with the United States or otherwise; and
"(C) the Attorney General has certified that the policies regarding the transfer of personal data for commercial purposes and related actions of the country or regional economic integration organization, or member country of such organization, do not materially impede the national security interests of the United States.
"(2) Removal of designation.—The Attorney General may, with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security, revoke the designation of a foreign country or regional economic integration organization, or member country of such organization, as a 'covered country' if the Attorney General determines that such designated 'covered country'—
"(A) is not complying with the agreement described under paragraph (1)(A)(i);
"(B) no longer meets the requirements for designation under paragraph (1)(A)(ii);
"(C) fails to meet the requirements under paragraph (1)(B);
"(D) no longer meets the requirements for certification under paragraph (1)(C); or
"(E) impedes the transfer of information (for purposes of reporting or preventing unlawful activity) to the United States by a private entity or person.
"(e) Designation of Designated Federal Agency or Component.—
"(1) In general.—The Attorney General shall determine whether an agency or component thereof is a 'designated Federal agency or component' for purposes of this section. The Attorney General shall not designate any agency or component thereof other than the Department of Justice or a component of the Department of Justice without the concurrence of the head of the relevant agency, or of the agency to which the component belongs.
"(2) Requirements for designation.—The Attorney General may determine that an agency or component of an agency is a 'designated Federal agency or component' for purposes of this section, if—
"(A) the Attorney General determines that information exchanged by such agency with a covered country is within the scope of an agreement referred to in subsection (d)(1)(A); or
"(B) with respect to a country or regional economic integration organization, or member country of such organization, that has been designated as a 'covered country' under subsection (d)(1)(B), the Attorney General determines that designating such agency or component thereof is in the law enforcement interests of the United States.
"(f) Federal Register Requirement; Nonreviewable Determination.—The Attorney General shall publish each determination made under subsections (d) and (e). Such determination shall not be subject to judicial or administrative review.
"(g) Jurisdiction.—The United States District Court for the District of Columbia shall have exclusive jurisdiction over any claim arising under this section.
"(h) Definitions.—In this Act:
"(1) Agency.—The term 'agency' has the meaning given that term in section 552(f) of title 5, United States Code.
"(2) Covered country.—The term 'covered country' means a country or regional economic integration organization, or member country of such organization, designated in accordance with subsection (d).
"(3) Covered person.—The term 'covered person' means a natural person (other than an individual) who is a citizen of a covered country.
"(4) Covered record.—The term 'covered record' has the same meaning for a covered person as a record has for an individual under section 552a of title 5, United States Code, once the covered record is transferred—
"(A) by a public authority of, or private entity within, a country or regional economic organization, or member country of such organization, which at the time the record is transferred is a covered country; and
"(B) to a designated Federal agency or component for purposes of preventing, investigating, detecting, or prosecuting criminal offenses.
"(5) Designated federal agency or component.—The term 'designated Federal agency or component' means a Federal agency or component of an agency designated in accordance with subsection (e).
"(6) Individual.—The term 'individual' has the meaning given that term in section 552a(a)(2) of title 5, United States Code.
"(i) Preservation of Privileges.—Nothing in this section shall be construed to waive any applicable privilege or require the disclosure of classified information. Upon an agency's request, the district court shall review in camera and ex parte any submission by the agency in connection with this subsection.
"(j) Effective Date.—This Act shall take effect 90 days after the date of the enactment of this Act [Feb. 24, 2016]."
Publication of Guidance Under Subsection (p)(1)(A)(ii)
Pub. L. 101–508, title VII, §7201(b)(2), Nov. 5, 1990, 104 Stat. 1388–334, provided that: "Not later than 90 days after the date of the enactment of this Act [Nov. 5, 1990], the Director of the Office of Management and Budget shall publish guidance under subsection (p)(1)(A)(ii) of section 552a of title 5, United States Code, as amended by this Act."
Limitation on Application of Verification Requirement
Pub. L. 101–508, title VII, §7201(c), Nov. 5, 1990, 104 Stat. 1388–335, provided that: "Section 552a(p)(1)(A)(ii)(II) of title 5, United States Code, as amended by section 2 [probably means section 7201(b)(1) of Pub. L. 101–508], shall not apply to a program referred to in paragraph (1), (2), or (4) of section 1137(b) of the Social Security Act (42 U.S.C. 1320b–7), until the earlier of—
"(1) the date on which the Data Integrity Board of the Federal agency which administers that program determines that there is not a high degree of confidence that information provided by that agency under Federal matching programs is accurate; or
"(2) 30 days after the date of publication of guidance under section 2(b) [probably means section 7201(b)(2) of Pub. L. 101–508, set out as a note above]."
Effective Date Delayed for Certain Education Benefits Computer Matching Programs
Pub. L. 101–366, title II, §206(d), Aug. 15, 1990, 104 Stat. 442, provided that:
"(1) In the case of computer matching programs between the Department of Veterans Affairs and the Department of Defense in the administration of education benefits programs under chapters 30 and 32 of title 38 and chapter 106 of title 10, United States Code, the amendments made to section 552a of title 5, United States Code, by the Computer Matching and Privacy Protection Act of 1988 [Pub. L. 100–503] (other than the amendments made by section 10(b) of that Act) [see Effective Date of 1988 Amendment note above] shall take effect on October 1, 1990.
"(2) For purposes of this subsection, the term 'matching program' has the same meaning provided in section 552a(a)(8) of title 5, United States Code."
Implementation Guidance for 1988 Amendments
Pub. L. 100–503, §6(b), Oct. 18, 1988, 102 Stat. 2513, required the Director, pursuant to section 552a(v) of this title, to develop guidelines and regulations for the use of agencies in implementing amendments made by Pub. L. 100–503 not later than 8 months after Oct. 18, 1988.
Construction of 1988 Amendments
Pub. L. 100–503, §9, Oct. 18, 1988, 102 Stat. 2514, provided that: "Nothing in the amendments made by this Act [amending this section and repealing provisions set out as a note below] shall be construed to authorize—
"(1) the establishment or maintenance by any agency of a national data bank that combines, merges, or links information on individuals maintained in systems of records by other Federal agencies;
"(2) the direct linking of computerized systems of records maintained by Federal agencies;
"(3) the computer matching of records not otherwise authorized by law; or
"(4) the disclosure of records for computer matching except to a Federal, State, or local agency."
Congressional Findings and Statement of Purpose
Pub. L. 93–579, §2, Dec. 31, 1974, 88 Stat. 1896, provided that:
"(a) The Congress finds that—
"(1) the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies;
"(2) the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information;
"(3) the opportunities for an individual to secure employment, insurance, and credit, and his right to due process, and other legal protections are endangered by the misuse of certain information systems;
"(4) the right to privacy is a personal and fundamental right protected by the Constitution of the United States; and
"(5) in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance, use, and dissemination of information by such agencies.
"(b) The purpose of this Act [enacting this section and provisions set out as notes under this section] is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to—
"(1) permit an individual to determine what records pertaining to him are collected, maintained, used, or disseminated by such agencies;
"(2) permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for another purpose without his consent;
"(3) permit an individual to gain access to information pertaining to him in Federal agency records, to have a copy made of all or any portion thereof, and to correct or amend such records;
"(4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information;
"(5) permit exemptions from the requirements with respect to records provided in this Act only in those cases where there is an important public policy need for such exemption as has been determined by specific statutory authority; and
"(6) be subject to civil suit for any damages which occur as a result of willful or intentional action which violates any individual's rights under this Act."
Privacy Protection Study Commission
Pub. L. 93–579, §5, Dec. 31, 1974, 88 Stat. 1905, as amended by Pub. L. 95–38, June 1, 1977, 91 Stat. 179, which established the Privacy Protection Study Commission and provided that the Commission study data banks, automated data processing programs and information systems of governmental, regional and private organizations to determine standards and procedures in force for protection of personal information, that the Commission report to the President and Congress the extent to which requirements and principles of section 552a of title 5 should be applied to the information practices of those organizations, and that it make other legislative recommendations to protect the privacy of individuals while meeting the legitimate informational needs of government and society, ceased to exist on September 30, 1977, pursuant to section 5(g) of Pub. L. 93–579.
Guidelines and Regulations for Maintenance of Privacy and Protection of Records of Individuals
Pub. L. 93–579, §6, Dec. 31, 1974, 88 Stat. 1909, which provided that the Office of Management and Budget shall develop guidelines and regulations for use of agencies in implementing provisions of this section and provide continuing assistance to and oversight of the implementation of the provisions of such section by agencies, was repealed by Pub. L. 100–503, §6(c), Oct. 18, 1988, 102 Stat. 2513.
Disclosure of Social Security Number
"(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.
"(2) the [The] provisions of paragraph (1) of this subsection shall not apply with respect to—
"(A) any disclosure which is required by Federal statute, or
"(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
"(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it."
Authorization of Appropriations to Privacy Protection Study Commission
Pub. L. 93–579, §9, Dec. 31, 1974, 88 Stat. 1910, as amended by Pub. L. 94–394, Sept. 3, 1976, 90 Stat. 1198, authorized appropriations for the period beginning July 1, 1975, and ending on September 30, 1977.
Ex. Ord. No. 9397. Numbering System for Federal Accounts Relating to Individual Persons
Ex. Ord. No. 9397, Nov. 22, 1943, 8 F.R. 16095, as amended by Ex. Ord. No. 13478, §2, Nov. 18, 2008, 73 F.R. 70239, provided:
WHEREAS certain Federal agencies from time to time require in the administration of their activities a system of numerical identification of accounts of individual persons; and
WHEREAS some seventy million persons have heretofore been assigned account numbers pursuant to the Social Security Act; and
WHEREAS a large percentage of Federal employees have already been assigned account numbers pursuant to the Social Security Act; and
WHEREAS it is desirable in the interest of economy and orderly administration that the Federal Government move towards the use of a single, unduplicated numerical identification system of accounts and avoid the unnecessary establishment of additional systems:
NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, it is hereby ordered as follows:
1. Hereafter any Federal department, establishment, or agency may, whenever the head thereof finds it advisable to establish a new system of permanent account numbers pertaining to individual persons, utilize the Social Security Act account numbers assigned pursuant to title 20, section 422.103 of the Code of Federal Regulations and pursuant to paragraph 2 of this order.
2. The Social Security Administration shall provide for the assignment of an account number to each person who is required by any Federal agency to have such a number but who has not previously been assigned such number by the Administration. The Administration may accomplish this purpose by (a) assigning such numbers to individual persons, (b) assigning blocks of numbers to Federal agencies for reassignment to individual persons, or (c) making such other arrangements for the assignment of numbers as it may deem appropriate.
3. The Social Security Administration shall furnish, upon request of any Federal agency utilizing the numerical identification system of accounts provided for in this order, the account number pertaining to any person with whom such agency has an account or the name and other identifying data pertaining to any account number of any such person.
4. The Social Security Administration and each Federal agency shall maintain the confidential character of information relating to individual persons obtained pursuant to the provisions of this order.
5. There shall be transferred to the Social Security Administration, from time to time, such amounts as the Director of the Office of Management and Budget shall determine to be required for reimbursement by any Federal agency for the services rendered by the Administration pursuant to the provisions of this order.
6. This order shall be implemented in accordance with applicable law and subject to the availability of appropriations.
7. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.
8. This order shall be published in the Federal Register.
2 So in original. Probably should be "cost-effective."
§552b. Open meetings
(a) For purposes of this section—
(1) the term "agency" means any agency, as defined in section 552(e) 1 of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency;
(2) the term "meeting" means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e); and
(3) the term "member" means an individual who belongs to a collegial body heading an agency.
(b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation.
(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to—
(1) disclose matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order;
(2) relate solely to the internal personnel rules and practices of an agency;
(3) disclose matters specifically exempted from disclosure by statute (other than section 552 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) disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) involve accusing any person of a crime, or formally censuring any person;
(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information 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;
(8) disclose information 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;
(9) disclose information the premature disclosure of which would—
(A) in the case of an agency which regulates currencies, securities, commodities, or financial institutions, be likely to (i) lead to significant financial speculation in currencies, securities, or commodities, or (ii) significantly endanger the stability of any financial institution; or
(B) in the case of any agency, be likely to significantly frustrate implementation of a proposed agency action,
except that subparagraph (B) shall not apply in any instance where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is required by law to make such disclosure on its own initiative prior to taking final agency action on such proposal; or
(10) specifically concern the agency's issuance of a subpena, or the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing.
(d)(1) Action under subsection (c) shall be taken only when a majority of the entire membership of the agency (as defined in subsection (a)(1)) votes to take such action. A separate vote of the agency members shall be taken with respect to each agency meeting a portion or portions of which are proposed to be closed to the public pursuant to subsection (c), or with respect to any information which is proposed to be withheld under subsection (c). A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in such series. The vote of each agency member participating in such vote shall be recorded and no proxies shall be allowed.
(2) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency close such portion to the public for any of the reasons referred to in paragraph (5), (6), or (7) of subsection (c), the agency, upon request of any one of its members, shall vote by recorded vote whether to close such meeting.
(3) Within one day of any vote taken pursuant to paragraph (1) or (2), the agency shall make publicly available a written copy of such vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, the agency shall, within one day of the vote taken pursuant to paragraph (1) or (2) of this subsection, make publicly available a full written explanation of its action closing the portion together with a list of all persons expected to attend the meeting and their affiliation.
(4) Any agency, a majority of whose meetings may properly be closed to the public pursuant to paragraph (4), (8), (9)(A), or (10) of subsection (c), or any combination thereof, may provide by regulation for the closing of such meetings or portions thereof in the event that a majority of the members of the agency votes by recorded vote at the beginning of such meeting, or portion thereof, to close the exempt portion or portions of the meeting, and a copy of such vote, reflecting the vote of each member on the question, is made available to the public. The provisions of paragraphs (1), (2), and (3) of this subsection and subsection (e) shall not apply to any portion of a meeting to which such regulations apply: Provided, That the agency shall, except to the extent that such information is exempt from disclosure under the provisions of subsection (c), provide the public with public announcement of the time, place, and subject matter of the meeting and of each portion thereof at the earliest practicable time.
(e)(1) In the case of each meeting, the agency shall make public announcement, at least one week before the meeting, of the time, place, and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting. Such announcement shall be made unless a majority of the members of the agency determines by a recorded vote that agency business requires that such meeting be called at an earlier date, in which case the agency shall make public announcement of the time, place, and subject matter of such meeting, and whether open or closed to the public, at the earliest practicable time.
(2) The time or place of a meeting may be changed following the public announcement required by paragraph (1) only if the agency publicly announces such change at the earliest practicable time. The subject matter of a meeting, or the determination of the agency to open or close a meeting, or portion of a meeting, to the public, may be changed following the public announcement required by this subsection only if (A) a majority of the entire membership of the agency determines by a recorded vote that agency business so requires and that no earlier announcement of the change was possible, and (B) the agency publicly announces such change and the vote of each member upon such change at the earliest practicable time.
(3) Immediately following each public announcement required by this subsection, notice of the time, place, and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting, shall also be