materials in its files and the knowledge and experience of the agency, in addition to the materials adduced in public rule making proceedings.

Section 4 (b) provides that upon the completion of public rule making proceedings "after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose". The required statement will be important in that the courts and the public may be expected to use such statements in the interpretation of the agency's rules. The statement is to be "concise" and "general". Except as required by statutes providing for “formal” rule making procedure, findings of fact and conclusions of law are not necessary. Nor is there required an elaborate analysis of the rules or of the considerations upon which the rules were issued. Rather, the statement is intended to advise the public of the general basis and purpose of the rules.

Formal rule making. Section 4 (b) provides that "Where rules are required by statute to be made on the record after opportunity for an agency hearing, the requirements of sections 7 and 8 shall apply in place of the provisions of this subsection." Thus, where a rule is required by some other statute to be issued on the basis of a record after opportunity for an agency hearing, the public rule making proceedings must consist of hearing and decision in accordance with sections 7 and 8. The provisions of section 5 are in no way applicable to rule making. It should be noted that sections 7 and 8 did not become effective until December 11, 1946, and, pursuant to section 12, do not apply to any public rule making proceedings initiated prior to that date.

Statutes rarely require hearings prior to the issuance of rules of general applicability. Such requirements, where they exist, appear in radically different contexts. The Federal Food, Drug and Cosmetic Act (21 U.S.C. 301) is almost unique in that it specifically provides that agency action issuing, amending or repealing specified classes of substantive rules may be taken only after notice and hearing, and that "The Administrator shall base his order only on substantial evidence of record at the hearing and shall set forth as part of the order detailed findings of fact on which the order is based." Upon review in a circuit court of appeals, a transcript of the record is filed, and "the findings of the Administrator as to the facts, if supported by substantial evidence, shall be conclusive" (21 U.S.C. 371). It is clear that such rules are "required by statute to be made on the record after opportunity

for an agency hearing". Accordingly, the rule making hearings required by the Federal Food, Drug and Cosmetic Act, initiated on and after December 11, 1946, must be conducted in accordance with sections 7 and 8 of the Administrative Procedure Act.

Statutes authorizing agencies to prescribe future rates (i.e., rules of either general or particular applicability) for public utilities and common carriers typically require that such rates be established only after an opportunity for a hearing before the agency. Such statutes rarely specify in terms that the agency action must be taken on the basis of the "record" developed in the hearing. However, where rates or prices are established by an agency after a hearing required by statute, the agencies themselves and the courts have long assumed that the agency's action must be based upon the evidence adduced at the hearing. Sometimes the requirement of decision on the record is readily inferred from other statutory provisions defining judicial review. For example, rate orders issued by the Federal Power Commission pursuant to the Natural Gas Act (15 U.S.C. 717) may be made only after hearing; upon review in a circuit court of appeals or the Court of Appeals for the District of Columbia, the Commission certifies and files with the court "a transcript of the record upon which the order complained of was entered", and the Commission's findings of fact "if supported by substantial evidence, shall be conclusive". It seems clear that these provisions of the Natural Gas Act must be construed as requiring the Commission to determine rates "on the record after opportunity for an agency hearing". See H.R. Rep. p. 51, fn. 9 (Sen. Doc. p. 285). The same conclusion would be reached with respect to the determination of minimum wages under the Fair Labor Standards Act (29 U.S.C. 201), which contains substantially the same provisions for hearing and judicial review.

The Interstate Commerce Commission and the Secretary of Agriculture may, after hearing, prescribe rates for carriers and stockyard agencies, respectively. Both types of rate orders are reviewable under the Urgent Deficiencies Act of 1913 (28 U.S.C. 47). Nothing in the Interstate Commerce Act, the Packers and Stockyards Act, or the Urgent Deficiencies Act requires in terms that such rate orders be "made on the record", or provides for the filing of a transcript of the administrative record with the reviewing court, or defines the scope of judicial review. However, both of these agencies and the courts have long assumed

that such rate orders must be based upon the record made in the hearing; furthermore, it has long been the practice under the Urgent Deficiencies Act to review such orders on the basis of the administrative record which is submitted to the reviewing court. United States v. Abilene & Southern Ry. Co., 265 U.S. 274 (1924); Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282 (1934); Acker v. United States, 298 U.S. 426 (1936). It appears, therefore, that rules (as defined in section 2(c)) which are issued after a hearing required by statute, and which are reviewable under the Urgent Deficiencies Act on the basis of the evidence adduced at the agency hearing, must be regarded as "required by statute to be made on the record after opportunity for an agency hearing".

With respect to the types of rule making discussed above, the statutes not only specifically require the agencies to hold hearings but also, specifically, or by clear implication, or by established administrative and judicial construction, require such rules to be formulated upon the basis of the evidentiary record made in the hearing. In these situations, the public rule making procedures required by section 4(b) will consist of a hearing conducted in accordance with sections 7 and 8.

There are other statutes which require agencies to hold hearings before issuing rules, but contain no language from which the further requirement of decision "on the record" can be inferred, nor any provision for judicial review on the record (as does the Natural Gas Act, supra). For example, the Federal Seed Act (7 U.S.C. 1561) simply provides that "prior to the promulgation of any rule or regulation under this chapter, due notice shall be given by publication in the Federal Register of intention to promulgate and the time and place of a public hearing to be held with reference thereto, and no rule or regulation may be promulgated until after such hearing". See also the so-called Dangerous Cargoes Act (46 U.S.C. 170 (9)) and the Tanker Act (46 U.S.C. 391a (3)) discussed in Senate Hearings (1941) p. 589. In this type of statute, there is no requirement, express or implied, that rules be formulated "on the record".

There is persuasive legislative history to the effect that the Congress did not intend sections 7 and 8 to apply to rule making where the substantive statute merely required a hearing. In 1941, a subcommittee of the Senate Committee on the Judiciary held hearings on S. 674 (77th Cong., 1st sess.) and other administrative procedure bills. Section 209 (d) of S. 674 provided with

respect to rule making that "where legislation specifically requires the holding of hearings prior to the making of rules, formal rulemaking hearings shall be held". Mr. Ashley Sellers, testifying on behalf of the Department of Agriculture, called the subcommittee's attention to the fact that in various statutes, such as the Federal Seed Act, in which the Congress had required hearings to be held prior to the issuance of rules, the obvious purpose "was simply to require that the persons interested in the proposed rule should be permitted to express their views". Mr. Sellers drew a sharp distinction between such hearing requirements and the formal rule making requirements of the Federal Food, Drug and Cosmetic Act. Senate Hearings (1941) pp. 78-81, 1515, 1520.4 Since this situation was thus specifically called to the subcommittee's attention, it is a legitimate inference that with respect to rule making the present dual requirement, i.e., "after opportunity for an agency hearing" and "on the record", was intended to avoid the application of formal procedural requirements in cases where the Congress intended only to provide an opportunity for the expression of views. See Mr. Carl McFarland's statement in Senate Hearings (1941) pp. 1343, 1386. See also Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186 (1935).

Publication of procedures. Each agency which will be affected by section 4 should publish under section 3 (a) (2) the procedures, formal and informal, pursuant to which the public may participate in the formulation of its rules. The statement of informal rule making procedures may be couched in either specific or general terms, depending on whether the agency has adopted a fixed procedure for all its rule making or varies it according to the type of rule to be promulgated. In the latter instance, it would be sufficient to state that proposed substantive rules will be adopted after allowing the public to participate in the rule making process either through submission of written data, oral testimony, etc., the method of participation in each case to be specified in the published notice in the Federal Register. H.R. Rep. p. 25 (Sen. Doc. p. 259).

SECTION 4(C)—EFFECTIVE DATES

Section 4 (c) provides that "The required publication or service of any substantive rule (other than one granting or recog

4 See, also, the statement of Acting Attorney General Biddle citing examples of "statutes which require hearings as a part of the rule making procedure without imposing a requirement of formal adversary judicial methods". Senate Hearings (1941) p. 1468.

nizing exemption or relieving restriction or interpretative rules and statements of policy) shall be made not less than thirty days prior to the effective date thereof except as otherwise provided by the agency upon good cause found and published with the rule." This requirement applies regardless of whether the rules are issued after formal or informal procedure.

The discussion on section 4 (c) in the reports of both the Senate and House Committees on the Judiciary makes clear that the phrase "The required publication or service of any substantive rule" does not relate back or refer to the publication of "general notice of proposed rule making" required by section 4(a); rather it is a requirement that substantive rules which must be published in the Federal Register (see section 3 (a) (3)) shall be so published at least thirty days prior to their effective date. Similarly, "rules addressed to and served upon named persons", when they are substantive in nature, are subject to section 4(c). The purpose of the time lag required by section 4 (c) is to "afford persons affected a reasonable time to prepare for the effective date of a rule or rules or to take any other action which the issuance of rules may prompt". Sen. Rep. p. 15; H.R. Rep. p. 25 (Sen. Doc. pp. 201, 259).

It is possible that section 4 (c) will be interpreted as amending the Federal Register Act so as to require, with respect to rules subject to section 4 (c), actual publication in the Federal Register (or service) at least thirty days prior to their effective date, rather than the mere filing of such rules with the Division of the Federal Register as heretofore. In any event, section 4 (c) applies only to such substantive rules as are not excepted from all the provisions of section 4 by its introductory clause or by section 2(a) of the Act. It is clear, for example, that the effective date of rules issued within the scope of the functions exempted from all of the requirements of section 4 by the introductory clause of that section, will continue to be governed by section 7 of the Federal Register Act (44 U.S.C. 307), rather than by section 4 (c) of the Administrative Procedure Act. Thus, where an agency issues rules relating to public property, such rules may be made effective upon filing with the Division of the Federal Register.

Also, section 7 of the Federal Register Act is not superseded in so far as there are involved rules granting or recognizing exemption or relieving restriction or interpretative rules and statements of policy. Thus, there still may be made effective upon filing with the Division of the Federal Register statements of policy

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