Prepared by the United States Department of Justice Tom C. Clark, Attorney General, 1947.
V SECTION 6--ANCILLARY MATTERS
Section 6 defines various procedural rights of private parties which may be incidental to
rule making, adjudication, or the exercise of any other agency authority. The introductory words
of section 6, "Except as otherwise provided in this Act," are intended to assure that its provisions
do not override contrary provisions in other parts of the act. Thus, the opportunity for informal
appearance contemplated by section 6 (a) is not to be construed so as to authorize ex parte
conferences during formal proceedings when such conferences are forbidden by other sections of
the act. Sen. Rep. p. 18, H.R. Rep. p. 31 (Sen. Doc. pp. 204, 263).
Governing Definitions. The provisions of section 6 hinge to a considerable extent upon
the definition of the terms "party", "person" and "agency proceeding". These terms are defined in
section 2 of the act as follows:
(b) "Person" includes individuals, partnerships, corporations, associations, or public
or private organizations of any character other than agencies. "Party" includes any person
or agency named or admitted as a party, or properly seeking and entitled as of right to be
admitted as a party, in any agency proceeding; but nothing herein shall be construed to
prevent an agency from admitting any person or agency as a party for limited purposes.
* * * *
(g) "Agency proceeding" means any agency process as defined in subsections (c), (d),
and (e) of this section. [Defining rule making, adjudication and licensing, respectively.]
SECTION 6 (a)--APPEARANCE
Formal Appearance. The first sentence of section 6 (a) provides that "Any person
compelled to appear in person before any agency or representative thereof shall be accorded the
right to be accompanied, represented, and advised by counsel or, if permitted by the agency, by
other qualified representative." This restates existing law and practice that persons compelled to
appear in person before an agency or its representative must be accorded the right to be
accompanied by counsel and to consult with or be advised by such counsel. Such persons are also
entitled to have counsel act as their spokesmen in argument and where otherwise appropriate.
Senate Comparative Print of June 1945, p. 10 (Sen. Doc. p. 26). It is clear, of course, that this
provision relates only to persons whose appearance is compelled or commanded, and does not
extend to persons who appear volun-tarily or in response to mere request by an agency.
Where appearance is compelled, whether as a party or as a witness, the right to counsel exists.
The phrase "or, if permitted by the agency, by other qualified representative" refers to the
present practice of some agencies of permitting appearance or representation in certain matters by
non-lawyers, such as accountants. The phrasing of this clause, together with the last sentence of
the subsection, makes it clear that nothing in the first sentence was intended to change the existing
powers of agencies in this respect. See discussion, infra at pp. 65-6.
The second sentence of the subsection relates to the rights of "parties" to "agency
proceedings". It provides that every "party" shall have the right to appear in any agency
proceeding "in person or by or with counsel or other duly qualified representative."(1)
The right of
a party to appear personally or by or with counsel extends, in view of the definition of "agency
proceeding", to proceedings involving rule making, adjudication or licensing. The identity of the
"parties" is usually clear in adjudication, licensing and formal rule making proceedings. However,
since the provision is not limited to formal proceedings (those governed by sections 7 and 8), but
extends to informal rule making proceedings, the term "party", in the latter type of proceeding,
means any person showing the requisite interest in the matters involved. Sen. Rep. p. 19; H.R.
Rep. p. 31 (Sen. Doc. pp. 205, 263). It is entirely clear that this right to appear in informal rule
making proceedings is limited by the nature of the procedure adopted by an agency, pursuant to
section 4 (b). If the agency, under section 4 (b), provides interested persons an opportunity to
present their views orally, the agency must allow any person with the requisite interest to appear
personally or by counsel or other qualified representative. On the other hand, if the agency
desires to hold informal rule making proceedings consisting of the submission of written data,
views, or arguments, nothing in section 6 (a) requires the agency to provide in addition for
personal appearance. In other words, the second sentence of section 6 (a) is not intended to limit
an agency's discretion as to the type of rule making proceedings to be held in a particular case.
(See opening clause of section 6: "Except as otherwise provided in this Act").
 Informal Appearance. The third sentence of section 6 (a) provides that "So far as the
orderly conduct of public business permits, any interested person may appear before any agency
or its responsible officers or employees for the presentation, adjustment, or determination of any
issue, request, or controversy in any proceeding (interlocutory, summary, or otherwise) or in
connection with any agency function." This sentence contemplates that interested persons may
appear not only in matters involving rule making, adjudication, and licensing, but also in
connection with other agency functions. This provision is not to be construed as requiring an
agency to give notice of its proposed action and to invite appearances by interested persons; an
agency is not required to provide an opportunity for appearance and adjustment to interested
persons unless they request it. Sen. Rep. p. 19 (Sen. Doc. p. 205).
The opportunity for informal appearance contemplated by the third sentence of section 6
(a) means that any person should be given an opportunity to confer or discuss with responsible
officers or employees of the agency matters in which he is properly interested. This opportunity
should be with a responsible officer or employee--one who can decide the matter or whose
function it is to make recommendations on such matters--rather than officers or employees whose
duties are merely mechanical or formal. Sen. Rep. p. 19; H.R. Rep. p. 32 (Sen. Doc. pp. 205,
This provision for informal appearance is expressly limited by the subsection to "so far as
the orderly conduct of public business permits." Clearly, both the right and its limitation should
be construed to achieve practical and fair results. Appearance should be allowed except where it
would be inconsistent with the orderly conduct of public business. A properly interested person
who is permitted to appear should be accorded an opportunity to present his case or proposals to
a responsible officer or employee as defined above. Repeated opportunities to present the same
arguments or proposals are not required. Further, the act does not require that every interested
person be permitted to follow the chain of command to the head of the agency. It was not
intended to require the directors of the Reconstruction Finance Corporation, for example, to
confer personally with every applicant for a loan. It is sufficient if the opportunity to confer is
with an official of such status that he knows the agency's policy, and is able to  bring unusual
or meritorious cases to the attention of the officials who shape the policy or make final decisions.
The opportunity thus to appear "for the presentation, adjustment, or determination of any issue,
request, or controversy in any proceeding"--or "in connection with any agency function" relates
not only to "agency proceedings" as defined in section 2 (g), but also to all other agency
functions. It means, for example, that upon request any person should be allowed, where this is
feasible, to present his reasons as to why a particular loan or benefit should be made or granted to
him. It would also seem to mean that he can present his reasons as to why a particular
controversy should be settled informally rather than in formal proceedings with attendant
publicity. However, there is no requirement that the agency accept such proposals for informal
settlement; if, for example, the agency believes that formal public proceedings will best serve the
public interest, it is free to conduct such proceedings.
The reference to "interlocutory" or "summary" proceedings appears to be intended to
provide an opportunity for informal appearance and discussion in those situations where an
agency takes significant action without prior formal proceedings. H.R. Rep. p. 32 (Sen. Doc. p.
264). For example, section 609 of the Civil Aeronautics Act of 1938 (49 U.S.C. 559) provides
that "In cases of emergency, any such certificate [airworthiness certificate, airman certificate, etc.]
may be suspended, in whole or in part, for a period not in excess of thirty days, without regard to
any requirement as to notice and hearing." Under section 6 (a) of the Administrative Procedure
Act, the persons who would be affected by such summary action should, if feasible, be allowed to
appear and present their views on the proposed action. It is absolutely clear, however, that
nothing in this subsection was intended to interfere with the primary objective of assuring safety in
air travel. To the extent that the timely execution of the Administrator's duties, i.e., the "orderly
conduct of public business," precludes discussion and negotiation, he need not hold such
There will doubtless be many cases in which an agency will find it necessary to notice a
matter for public hearing without preliminary discussion because a statute or the subject matter or
the special circumstances so require. Sen. Rep. p. 41 (Sen. Doc. p. 227).
 The fourth sentence of section 6 (a) provides that "Every agency shall proceed with
reasonable dispatch to conclude any matter presented to it except that due regard shall be had for
the convenience and necessity of the parties or their representatives." This provision merely
restates a principle of good administration.
Practice Before Agencies. The last sentence of section 6 (a) provides that "Nothing
herein shall be construed either to grant or to deny to any person who is not a lawyer the right to
appear for or represent others before any agency or in any agency proceeding." The question of
the extent to which non-lawyers should be permitted to practice before administrative agencies
was deliberately left to the determination of the various agencies, as, heretofore. House Hearings
(1945) p. 34 (Sen. Doc. p. 80); H. R. Rep. p. 32 (Sen. Doc. p. 264).
More broadly, section 6 (a) leaves intact the agencies' control over both lawyers and non-lawyers who practice before them. The reports of the Senate and House Judiciary Committees
contain expressions of opinion to the effect that, as to lawyers desiring to practice before an
agency, the agency should normally require no more than a statement from a lawyer that he is in
good standing before the courts. Sen. Rep. p. 19; H.R. Rep. p. 39. (Sen. Doc. pp. 205, 264).
However, the legislative history leaves no doubt that the Congress intended to keep unchanged
the agencies' existing powers to regulate practice before them. When the House Committee on
the Judiciary held hearings in 1945 on H.R. 1203 (79th Cong., lst sess.) which, under the title of
S. 7, was enacted as the Administrative Procedure Act, the Committee was specifically aware of
the fact that H.R. 1203 contained no provision relating to attorneys practicing before agencies,
while H.R. 339, and H.R. 1117, also pending before the Committee, contained such provisions.
House Hearings (1945) p. 34 (Sen. Doc. p. 80). Finally, during the House debate on S. 7,
Representative Kefauver offered the following amendment to section 6:
Any member of the bar who is in good standing and who has been admitted to the bar of
the Supreme Court of the United States or of the highest court of the State of his or her
residence shall be eligible to practice before any agency: Provided, however, That an
agency shall for good cause be authorized by order to suspend or deny the right to practice
before such agency.
The amendment was rejected by the House, apparently on the ground that the subject
should be covered by separate legislation. 92 Cong. Rec. 5666-8 (Sen. Doc. pp. 401-405).
 It is clear, therefore, that the existing powers of the agencies to control practice before
them are not changed by the Administrative Procedure Act. For example, an agency may exclude,
after notice and opportunity for hearing, persons of improper character from practice before it,
Goldsmith v. Board of Tax Appeals, 270 U.S. 117 (1926), or exclude parties or counsel from
participation in proceedings by reason of unruly conduct, Okin v. Securities and Exchange
Commission, 137 F. (2d) 398 (C.C.A. 2, 1943), or impose reasonable time limits during which
former employees may not practice before the agency.
SECTION 6 (b)--INVESTIGATIONS
The first sentence of section 6 (b) provides that "No process, requirement of a report,
inspection, or other investigative act or demand shall be issued, made, or enforced in any manner
or for any purpose except as authorized by law." This is a restatement of existing law. Senate
Comparative Print of June 1945, p. 11, Sen. Rep. p. 41 (Sen. Doc. pp. 27, 227).
The second sentence of subsection 6 (b) provides that "Every person compelled to submit
data or evidence shall be entitled to retain or, on payment of lawfully prescribed costs, procure a
copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for
good cause be limited to inspection of the official transcript of his testimony." Under this, any
person compelled to submit data or evidence, either as a party or as a witness, must be accorded
the right to retain copies of written data submitted in response to a subpena duces tecum or other
demand, or, upon payment of lawfully prescribed costs, to procure from the agency a copy of the
data thus submitted or a transcript of the oral testimony which he was required to give. This
right, it will be noted, is limited to the data and evidence submitted by the particular witness, and
does not entitle him to copies or transcripts of the data and evidence submitted by other persons.
Moreover, it extends only to persons "compelled" to testify or to submit data, and not to those
who are merely requested to do so or who do so voluntarily.
The right defined in the second sentence of section 6 (b) is subject to the limitation "That
in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of
the official transcript of his testimony." In the Committee reports, it is stated that this limitation
was deemed necessary "where  evidence is taken in a case in which prosecutions may be
brought later and it is obviously detrimental to the due execution of the laws to permit copies to
be circulated." Sen. Rep. p. 19, H.R. Rep. p. 33 (Sen. Doc. pp. 205, 265). Thus, the phrase
"nonpublic investigatory proceeding" covers all confidential phases of investigations, formal or
informal, conducted by agencies to determine whether there have been violations of law. In such
situations, the witness may be limited to inspection of such portions of the transcript of
investigation as contain his own testimony. This right to inspect the transcript extends only to
persons who have been compelled to testify.
SECTION 6 (c)--SUBPENAS
The first sentence of section 6 (c) provides that "Agency subpenas authorized by law shall
be issued to any party upon request and, as may be required by rules of procedure, upon a
statement or showing of general relevance and reasonable scope of the evidence sought." The
purpose of this provision is to make agency subpenas available to private parties to the same
extent as to agency representatives. Sen. Rep. p. 20, H.R. Rep. p. 33 (Sen. Doc. pp. 206, 265);
92 Cong. Rec. 5652 (Sen. Doc. p. 363). It applies to both subpenas ad testificandum and
subpenas duces tecum. It should be emphasized that section 6 (c) relates only to existing subpena
powers conferred upon agencies; it does not grant power to issue subpenas to agencies which are
not so empowered by other statutes. Senate Comparative Print of June 1945, p. 14 (Sen. Doc.
The subsection requires the issuance of subpenas to any party "upon request and, as may
be required by rules of procedure, upon a statement or showing of general relevance and
reasonable scope of the evidence sought." It may be argued from the quoted language that
agency subpenas must be issued merely upon request of a party unless the agency requires, by its
published procedural rules, a "statement or showing of general relevance and reasonable scope of
the evidence sought"; accordingly, each agency which is empowered to issue subpenas should
issue rules of procedure stating the manner in which parties are to request subpenas and the
contents of such requests. The standard of "general relevance and reasonable scope" should be
interpreted and applied in the light of the statutory purpose of making administrative subpenas
equally available to private parties and  agency representatives. (See the second sentence of
section 12). On the other hand, agencies should consider that subpenas which it may issue to aid
private parties, like subpenas issued to assist the agencies themselves, are subject to the legal
requirements and limitations restated in the second sentence of section 6(c). Thus, agencies may
refuse to issue to private parties subpenas which appear to be so irrelevant or unreasonable that a
court would refuse to enforce them.
The right to subpenas stated in section 6 (c) is limited to "parties", as defined in section 2
(b). Accordingly, the right to administrative subpenas is applicable to parties to rule making,
adjudication and licensing proceedings.
The Act is silent as to the responsibility for payment of fees to witnesses called by private
parties pursuant to subpenas issued by an agency.(2) It was apparently thought that such a
provision should be the subject of separate legislation. Senate Comparative Print of June 1945, p.
11 (Sen. Doc. p. 28). In view of this, it appears that the question of payment of witness fees may
be dealt with by reasonable administrative regulations such as many agencies have already
The second sentence of section 6 (c) provides that "Upon contest the court shall sustain
any such subpena or similar process or demand to the extent that it is found to be in accordance
with law and, in any proceeding for enforcement, shall issue an order requiring the appearance of
the witness or the production of the evidence or data within a reasonable time under penalty of
punishment for contempt in case of contumacious failure to comply." Upon its face, the
subsection in requiring judicial enforcement of subpenas "found to be in accordance with law" is a
reference to and an adoption of the existing law with respect to subpenas. For example, nothing
in section 6 (c) seems intended to  change existing law as to the reasonableness and scope of
subpenas. Similarly, the subsection leaves unchanged existing law as to the scope of judicial
inquiry where enforcement of a subpena is sought. In Endicott Johnson Corp. v. Perkins, 317
U.S. 501 (1943), the Supreme Court held that where the Secretary of Labor sought judicial
enforcement of a subpena issued in a proceeding under the Walsh-Healey Public Contracts Act,
the District Court was not authorized to determine whether the respondent was subject to that
act, as a condition precedent to enforcement of the subpena. Accord, under the Fair Labor
Standards Act, Oklahoma Press Publishing Company v. Walling, 327 U.S. 186 (1946). Nothing
in the language of section 6 (c) suggests any purpose to change this established rule. It is said
only that the court shall enforce a subpena "to the extent that it is found to be in accordance with
law." "Law" refers to the statutes which a particular agency administers, together with relevant
This natural and literal construction of the second sentence of section 6 (c) finds
conclusive support in the legislative history of the provision. When S. 7 was introduced by
Senator McCarran on January 6, 1945, section 6 (c) provided that "Upon any contest of the
validity of a subpena or similar process or demand, the court shall determine all relevant questions
of law raised by the parties, including the authority or jurisdiction of the agency." (Italics
supplied). Clearly this language could be construed as intended to change the rule stated in
Endicott Johnson Corp. v. Perkins, supra. However, when S. 7 was reported by the Senate
Committee on the Judiciary on November 19, 1945 (Sen. Rep. p. 34 (Sen. Doc. p. 220) ), section
6 was rephrased in its present form. This significant change in language, as well as the natural and
literal reading of section 6 (c), is persuasive that the subsection leaves unchanged the scope of
judicial inquiry upon an application for the enforcement of a subpena. See also Sen. Rep. p. 41
(Sen. Doc. p. 227); 92 Cong. Rec. A2988 (Sen. Doc. p. 415).
SECTION 6 (d)--DENIALS
Section 6 (d) provides that "prompt notice shall be given of the denial in whole or in part
of any written application, petition, or other request of any interested person made in connection
with any agency proceeding. Except in affirming a prior denial or  where the denial is self-explanatory, such notice shall be accompanied by a simple statement of procedural or other
grounds." This requirement relates to applications, petitions and requests made by "interested
persons" in connection with any "agency proceeding", i.e., rule making, adjudication and licensing
proceedings. It applies to such proceedings regardless of whether they are formal or informal.
Sen. Rep. p. 20, H.R. Rep. p. 33 (Sen. Doc. pp. 206, 265). As in the case of section 4 (d), an
"interested person" may be defined generally as one whose interests are or will be affected by the
agency action which may result from the proceeding. It is clear that with respect to formal
proceedings, the only interested persons are those who are "parties" to such proceedings within
the meaning of section 2 (b).
Section 6 (d) has no application to matters which do not relate to rule making,
adjudication or licensing. Generally, it is not applicable to the mass of administrative routine
unrelated to those proceedings.
The prompt notice of denial required by section 6 (d) may be given in writing, addressed
to the applicant, or orally (e.g., in the case of a proceeding conducted by an examiner). The
required statement of grounds for denial, while simple in nature, must be sufficient to advise the
party of the general basis of the denial.
Where the denial is self-explanatory or affirms a previous denial, it need not be
accompanied by a statement of reasons; in such cases, it is assumed that the applicant has
knowledge of the grounds for denial.
1. The phrase "qualified representative", as used in the second sentence of subsection 6 (a),
relates to non-lawyers whose appearance as representatives for others is left, as under the first
sentence of the subsection, to the control of the agencies. See infra, pp. 65-6.
2. Section 10 of the Act of August 2, 1946 (Public Law 600, 79th Cong., 2d sess.) provides
that "Whenever a department is authorized by law to hold hearings and to subpena witnesses for
appearance at said hearings, witnesses summoned to and attending such hearings shall be entitled
to the same fees and mileage, or expenses in the case of Government officers and employees, as
provided by law for witnesses attending in the United States courts."
3. The following examples appear to be reasonable and appropriate:
Federal Power Commission--Rules of Practice Under the Federal Power Act.
Rule 1.131. "Fees of witnesses.--Witnesses who are summoned are entitled to the same
fees as are paid for like services in the courts of the United States, such fees to be paid by the
party at whose instance the testimony is taken, and the Commission before issuing subpoena may
require a deposit of an amount adequate to covcr the fees and milage involved." [16 U.S.C. 825f].
Interstate Commerce Commission--Rules of Practice.
Rule 66(e). "Witness fees. A witness who is summoned and responds thereto is entitled
to the same fee as is paid for like service in the courts of the United States, such fee to be paid by
the party at whose instance the testimony is taken at the time the subpena is served." [49 U.S.C.
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